Category Archives: Contemporary Life

Of Course!

Of course PM Netanyahu should address Congress on the danger of a nuclear-armed Iran and the ongoing threat of Islamic terror. If not him, then who? If not now, then when?

For one reason, Netanyahu will be in Washington anyway for the AIPAC Policy Conference. That, too, is on his agenda notwithstanding its proximity to the Israeli elections. There is a second reason as well: while Netanyahu is the probable winner in those elections and therefore will head the next government, that is by no means assured. The election campaign – as tawdry and sordid as it is – has changed no minds. Israel’s electorate is as ideologically frozen as the New Jersey tundra this winter, and the outcome will be based on the obvious: turnout of one’s supporters, as it invariably does. The percentage of Israelis actually voting in elections has steadily declined over the last two decades and is slightly above the poor participation rate in the United States. The notion that Netanyahu is coming here in order to win votes is risible. But who knows if a Prime Minister Herzog – not the strongest personality in the country – will project the same resolve or even deign to oppose an Obama whose campaign team was dispatched from the US to get him elected? It might be the last time that Netanyahu has a chance to sound the alarm.

There is a third reason why he should come and speak, and was right in accepting Speaker Boehner’s offer to become only the second foreign leader – Winston Churchill was the other – to address a joint session of Congress three times. Who will alert Congress and the American people to the clear and present danger of a nuclear Iran and the epidemic of Islamic terror – Barack Obama? He is preternaturally incapable of even uttering the phrase “Islamic terror” and has no plan to thwart the Iranian nuclear program. Obama, in just the last few years, has eviscerated the effect of two decades’ worth of diplomacy, UN resolutions and the sanctions regime that was weakening Iran, all in exchange for nothing.

Obama has two goals, both of which have combined to make him the weakest American president in the last half-century, and perhaps in the last century: he is determined not to send any American troops abroad to fight in a war of his choosing (becoming the first President in generations to accomplish that “feat,” and completely oblivious to the cost to American and human life, and world stability, now and in the future); and, he has no objection to the Iranians acquiring a nuclear capacity – as long as they don’t do it on his watch. In essence, he wants to kick the can down the road, pacify the Iranians with the carrots of trade and sanctions relief, and threaten the Israelis into inaction. Obama is today the mullahs’ best friend, and through passivity has allowed Islamic terror – of which the Iranian bomb is just one facet and future tool – to proliferate, all while he denies it really exists.

No wonder Obama reacted apoplectically to the Congressional invitation. (The lie that his minions proffered – that the White House was unaware of the offer until after it was extended and accepted – has already been exposed by the NY Times.) It was the breach of protocol – that wasn’t. No matter.

There are two issues that Netanyahu will raise that threaten to undermine the Obama plan: one is the imminence of the Iranian threat. The pending deal essentially leaves Iran with the capacity to enrich at will and produce a weapon at the time of its choosing, even assuming that it will adhere to any limitations placed or to an inspections regime. The current president, Rouhani, who headed the Iranian negotiating team over a decade ago, admitted lying back then in order to build new facilities, conceal them from UN inspectors, and continue enrichment surreptitiously. If necessary, they will lie again, except for this: Rouhani has been quite open that nothing will deter Iran from obtaining a nuclear capacity and any agreement will have to recognize that right.

Contrast his candor with Obama’s repeated assertions that he will not let Iran acquire a nuclear weapon – this from the same person who said “if you like your doctor, you can keep your doctor”; who said there is “not a smidgeon of evidence of scandal” at the IRS; and who does not believe that Islamic terror even exists.

Netanyahu will burst that bubble and acquaint Americans with the dangers that an Iranian nuclear capacity poses to them and not just Israel and that the deal now pending will make Iran a nuclear power within a short time. Better to state that publicly – loudly and clearly – before the deal is finalized than do it after the deal is formally reached when such opposition by Israel’s leaders will be perceived as a frontal attack on the American President.

There is a second aspect to the Obama disenchantment with Netanyahu of which Americans should be aware. At present, Obama has no intention of bringing an accord with Iran to the US Senate for approval. He wishes to bypass Congress – again; immigration reform, anyone? – and shape US foreign policy on his own. He doesn’t care about constitutional limits; his attitude since he became president is to do what he wants and let the courts sort it out, which takes years.

Netanyahu’s address to Congress essentially re-asserts Congressional supremacy in treaty-making but, more importantly, Congressional relevance in foreign policy. It would be extremely hard for Obama to ignore Congress after Netanyahu has roused them – even subtly – in asserting their constitutional prerogatives. If I had to choose, I would suggest that this reason plays more of a role in Obama’s current disenchantment than the first, and even more than his visceral dislike of PM Netanyahu.

Allegedly, Netanyahu is being “punished” by being denied an audience with President Obama. Well, some people are glad they are not meeting. Would that they never meet again! Those meetings have never gone well for Israel, and they are always accompanied by the expectation that Israel will provide some concession in exchange for the great privilege of sitting down with the most hostile president to Israel in memory. It’s no honor, no privilege, and no good comes out of it. Sometimes a curse is actually a blessing in disguise.

Many suggest that Netanyahu’s visit threatens a rupture in US-Israel relations. Hogwash. The US-Israel alliance and friendship is not based on Obama – or even on Netanyahu – but on the American people’s recognition of justice. A poll this week showed support for Israel among Americans to be four times greater than for the Palestinian “cause,” and a majority supporting Netanyahu’s speech to Congress. And given Obama’s unpopularity in Israel – despite the way Israel’s media elites fawn over him – a confrontation with Netanyahu can only benefit Netanyahu, even if he doesn’t seek one.

Worse, Americans are becoming increasingly uncomfortable with Obama’s stewardship and America’s declining role in the world. It is not just Obama’s bizarre refusal to underscore the problem of Islamic terror; that is just part of the pro-Muslim bias that clouds his thinking about world affairs. Consider: when Muslims (in America) were killed recently, they were killed – as per Obama – because they were Muslims. When blacks are killed, they are killed because they are black. But when Jews are killed, or Christians are killed, across the world, they are killed because they were “random folks” caught in the web of some never-to-be-named “violent extremists.”

Thus, to combat Islamic terror of all stripes and varieties, this is the Obama track record: Boko Haram and its kidnapping, raping, murdering and pillaging – nothing (except for a twitter campaign, for what that is worth); Syria and Iraq – next to nothing. ISIS – a barrage of verbiage, even with Americans being tortured and murdered. Al Qaeda – reborn. Afghanistan – pending withdrawal, which will again empower the Taliban. Yemen – fall of that country to Muslim radicals. Libya – the same. Some of these groups are themselves rivals but they all share one thing in common: they are not Jews, Christians, Buddhists, Hindus, Confucians or Shintos. And the enemy remains unnamed.

At a certain point, this denial moves from the realm of willful blindness into the realm of pathological blindness. And we have moved from an inability to state the truth openly – because of fear or other reasons – to an inability to state the obvious with clarity.

How many innocent heads have to roll in the Middle East before the United States reasserts its indispensable role as a force for good in the world?

Let Netanyahu come as the voice of reason and leadership, and let him sound the alarm. Those Senators who forever proclaim their love for Israel – Schumer and others – let’s see whether their Jewishness and love for America exceeds their fear of Obama and commitment to the Democratic Party. If they find an excuse to absent themselves, they should be called to account. Now is crunch time, time for Jews to move past empty expressions of support for Israel by a host of politicians and demand forthrightness, courage and action.

Those who are unwilling to face the truth and prefer to be ensnared in Obama’s tangled web will have to answer for their poltroonery. Let Netanyahu come, and let lovers of Israel, America and truth show their support for him, and for combating this generation’s greatest foe.

 

Dust Storms

Here in Israel, the election campaign is as brutal and nasty as the winter’s weather has been in New Jersey. It has, though, elicited this rare agreement among all the competing parties. They all agree that anyone who is not a candidate from their own party is a scoundrel, unfit to lead, and will guide the country toward imminent catastrophe if he/she is allowed anywhere near the reins of power. Not all unity is comforting.

The contentiousness is attributable in the first instance to the parliamentary system extant in Israel, with proportional representation that sees many small parties competing for small shares of the pie. Such an unwieldy system has never produced a majority party; yet other parliamentary democracies have not engendered the same viciousness in its campaigns or incapacity to govern after the elections have taken place. (There are eccezioni.) More likely, the acrimony is due to the fragmentation of the electorate and the inability of any leader to project a vision that is appealing to, or even interested in, a majority of the nation.

This “group identity” politics was pioneered by FDR, who concentrated on attracting support from a variety of disparate interest groups (labor unions, farmers, Jews and blacks, to state the four leading blocs) and handily won his elections from that base. In Israel, the “victorious” party will win – if it is fortunate, and if that indeed can be called a victory – anywhere from 20-25% of the national vote. Said another way, the new Prime Minister will be opposed by 75-80% of the nation. That is not exactly a ringing endorsement or a formula for success in governance.

As such, each party seeks just enough votes to get a seat at the governing table, enabling it to provide the benefits (usually money in one form or another) to its voters. These voters reflect different elements of society who each desire its share, and, however incomplete and in no particular order, include: labor unions, peaceniks, settlers, Russians, Arabs, religious Zionists, Haredim, working people, non-working people, the rich, the poor, the middle class, the honest, the not-yet-honest, et al. Each group wants something – and usually something that other groups do not wish to give: increased welfare allowances, more government spending, less government spending, higher taxes on the rich, lower taxes for everyone, more army service for all, less army service for all or for some, a more religious state, a more secular state, amore socialist state, a more capitalist state, etc. The various parties contort themselves into finding some way into the governing coalition, get enough of what they need to mollify their base, and then jump ship when they can’t get more. And we wonder why no government is stable or able to effect any meaningful changes in policy.

There are daily polls measuring the sentiment of the electorate. Israelis poll themselves like a hypochondriac measures his pulse: incessantly and always with the direst possible conclusions. It augments the tension that already exists, owing to the constant threat of Arab terror, the Iranian bomb, the perceived unfriendliness of the American President and other such trifles.

The Jewish Home Party (Habayit Hayehudi) is one of the few parties that does aspire to national leadership and seeks to expand its influence beyond its natural base. That is both its strength and its weakness. The fact that in the last election the party list included men and women, religious and secular, was, as noted here, an honest reflection of what today’s Jewish home looks like. It was a welcome and, for the most part, unprecedented development in Israel.

But leader Naftali Bennett stumbled recently in using one of his personal picks for the party list to nominate a secular soccer player. The hostile reaction encouraged the former athlete to decline the offer. Certainly, Bennett meant well – it was an attempt to be trendy, appeal to Sefaradim and to other secular voters. Nonetheless, he violated one of the first rules of politics: do not offend your base! Secure your base and seek to expand it, but do not repel your natural electorate and assume they have nowhere else to go. The most damaging accusation against the “Jewish Home” is that it constitutes just a “Likud B.” If so, then voters will naturally be drawn to “Likud A.” This precipitated a recent decline in the Jewish Home’s standing in the polls, but it seems to have righted itself. And just in time: it is the party of the right, staunch advocates of Jewish settlement throughout the land of Israel, a strong defense both militarily and diplomatically (summarized in the best campaign slogan: “we have ceased apologizing”), and the application of Torah to modern circumstances.

Its other weakness is that, notwithstanding its outreach to all sectors of the population and its desire to be a national party, most of the country is still locked in to the parochial, sectoral, zero-sum politics of the past. Many (most?) voters still want that – the small party that will wield outsized influence and earn them some of the spoils of government. It is as hard to compete against free stuff in Israel as it is in America. (Labor Party billboard with the year’s most astonishing political promise: Efes kshishim aniyim toch shana – or, “no poor elderly people within one year.” Huh? Does anyone believe that?) And so voters remain drawn to the narrow, partisan vision rather than the broad vision, and some secular voters will never vote a religious party no matter how it is constituted.

Most other contestants are essentially vanity parties, led by individuals who want to exercise power for a small group and protect that group’s interests, not to mention their own perks. These parties are headed by Lieberman, Deri, Lapid, Yishai, and Kachlon. Sadly, the Haredi party – Degel HaTorah – has never aspired to national leadership and has little to offer to the debate on the application of Torah to a modern society. It is still mired in the old politics of trying to grab as many things off the table as is possible – welfare, child allowances, kollel stipends, military service exemptions – before others cry foul. That is sad. If Haredim would take a more active role in society, in the public debate, and in the development of the Jewish state, Israel would be a different country.

The main opposition to Likud is a revived Labor Party, cleverly renaming itself “the Zionist camp” even though its list contains candidates who favor the expulsion of Jews from their homes and the end of the Jewish settlement, who construe the Hatikva as racist, and whose leaders present as more post-Zionist than Zionist. Over her long political career, Tzippi Livni has been on every side of every issue at least once, while moving right to left, and, like a circus acrobat, can twist herself into any position for the sake of attracting votes. Her partner – Buji Herzog (with Bibi and Bogie, every Israeli leader seems to require a childish nickname) – is the choice of President Obama, who so admires his malleability that he has sent over part of his campaign team to assist the Labor election effort, much like Bill Clinton did – to Netanyahu in fact – in the 1999 election. One would think that Herzog has no chance but the Israeli public has long been fickle, and swings back and forth from right to left almost every other election since the early 1980’s. And the peace idol still lords over a decreasing but still sizable element of the population. Illusions die hard, but the real problem is that real people die as a result of those illusions.

That leaves the current prime minister and front-runner Binyamin Netanyahu. If elected again he may exceed David Ben-Gurion as Israel’s longest serving prime minister – hard to fathom given the antipathy so many media types have for him. However one feels about him, the daily accusations against him and especially his wife – and I mean daily – are really beneath contempt, and so obviously contrived as to be laughable. Sara was accused last week of stealing the deposit money on bottles used in the prime minister’s residence, and the two were accused this week of double billing on their overseas trips in years past (both charges quickly disappeared). In every election cycle for almost two decades, she has been attacked by disgruntled employees. In fact, I have yet to hear of even a single “gruntled” employee; they are all disgruntled. It is a shameful display of media distortion and excess and it is hard to imagine a politician who has been more consistently mistreated by the media than PM Netanyahu.

I am lukewarm towards the Prime Minister because, even though his rhetoric – especially during campaigns – is inspiring, he has been a very cautious leader, essentially maintaining the status quo in a very volatile region and gradually leaving Israel more vulnerable. He always seems to do enough so as not to be accused of doing nothing but never enough to actually make a difference and change the dynamic. Perhaps that is part of the tightrope that he walks daily balancing all the diverse interests of the nation, the entreaties of friends and the blandishments of enemies.

In effect, he responds to every enemy attack on Israel – but no more. He has led two invasions of Gaza, both with inconclusive results. He has stood up to a feckless and dangerous American president – but so far in words more than in deeds. He supports Jewish settlement, but officially froze it for almost a year and unofficially for far longer. He supports rights in theory – prayer on the Temple Mount, for example – but not in practice. He has forcefully spoken and written against craven surrenders to terrorists and yet released more than 1000 to secure the release of Gilad Shalit, and continued to provide electricity, food and fuel to Gazans even during the battles. He has championed the right-wing without doing many simple and basic steps that would appeal to the right-wing. Ultimately his words expose a much more determined leader than his actions alone would justify. He is a centrist because that wins elections, even if it disables his actual policies.

Worse, regardless of the campaign slogans, there is a real fear that a victorious Netanyahu will seek a national unity government with the left, if only because that will win him good local and international press and diplomatic plaudits. Whatever protestations are issued now will be ignored the day after the election, as they were in 2012, the last time this dance was held. But such a government would be a disaster for Israel. That prospect alone is worth this timely reminder: it has been Likud politicians who have surrendered most of the land liberated in the 1967 war. It has always been one of the ironies of Israeli political life that Labor proposes and Likud disposes. May Hashem protect us from that scenario again!

In this, Naftali Bennett makes a compelling case for a strong and large “Jewish Home.” It is not only that he is a better ideological fit for the Religious Zionist voter, but also that he is the only leader who can serve as a brake on Netanyahu’s populist ambitions. Today’s insults will be forgotten after the polls close and each party scrambles for its share of the water in the trough.

A large “Jewish Home” will ensure a government of the right that will be sensitive to the traditions and world view of the Torah Zionist world. A small “Jewish Home” will almost ensure the short-term popularity of the Israeli leaders with the most of the international community that has soured on the Jewish historical narrative, Jewish rights and Jewish self-defense but at enormous cost to Israel. It will almost ensure the reality of a second Palestinian state being created with all that entails for Israel’s identity and security.

The strongest argument raised by the left against Netanyahu is the facile appeal for “change.” Americans can surely warn Israelis about the disasters that come about in the wake of that empty call.

The dust storms now sweeping the country have fostered a murkiness that mirrors that of Israel’s political scene. The stakes are great, but then again, the stakes always seem great. Yet, as always, “there are many thoughts in the mind of man, but the plan of G-d that shall prevail.”

 

Modern Exodus

The Midrash (Tanchuma Beshalach 10) relates that when the Jewish people left Egypt and miraculously crossed the Red Sea,  the water was divided into twelve different paths, twelve bridges, one for each tribe. But why couldn’t we all cross on one bridge – why did each tribe need its own bridge?

I think the answer is that in redemption, as in life, one size does not fit all. Even in leaving a bitter exile, we did not all leave the same way (and we don’t all leave the same way), nor do we leave at the same time with the same motivation. Some bridges are smooth, others filled with potholes. Some have tolls – quite exorbitant tolls, which extract a very high price from us – and some are free, and include beautiful vistas. Some are heavily trafficked, and others are smooth sailing. But each tribe found its own way to cross.

Recently, I read a fascinating history of the Soviet Jewry movement that I recommend, published in 2011 by Gal Beckerman and entitled “When They Come For Us, We’ll Be Gone” (from the Safam song of the late 1970’s). It depicts what is nothing less than a remarkable and miraculous chapter in Jewish history that today we take for granted. I knew some of the broad strokes and details, but much of it I did not know. It behooves us to learn it, to know about and to draw conclusions from it. Because we lived through it, as our Sages state (Nida 31a), we have trouble seeing the miracles that took place right before our eyes. What miracles?

It was a miracle that a semblance of Jewish identity remained after so many decades of Communist suppression of Torah, and paradoxically it endured because the Soviets were so obsessed with controlling the lives of their citizens that the government recorded their Jewish nationality on their internal passports. But for that, Jews could have completely assimilated. In essence, they were made to feel like they were Russians, Georgians, Ukrainians, etc. – but not completely. Still outsiders. Even intermarriage didn’t help the Soviet Jew conceal his Jewish roots.

It was a miracle that Jewish groups were able to accomplish anything, with all the infighting that took place. As in most successful enterprises, a few passionate people led the way often against strong opposition until too many establishment Jews thought to make amends for what was largely American Jewish inaction during the Holocaust. Israel had an intelligence unit already in the 1950’s designed to encourage aliya with agents in America, and it also met resistance from American Jews who had a much more modest, even timid, profile back then. There was a long-running dispute between political refuseniks (who pressed the issue of human rights, freedom for all, etc.) and the cultural refuseniks, who wanted to deepen their connection to Judaism, Torah and Israel. They didn’t always work together, and the Soviets treated them differently as well.

There was a long-running dispute between those who favored quiet diplomacy and those who supported active, and occasionally violent, protests; those who supported Scoop Jackson – one of the righteous Gentiles of the last half-century – and his linkage of human rights and freedom of emigration to trade benefits for the Soviets, and those who were vehemently opposed to linkage (think Kissinger, et al); those who wanted to coddle the various presidents and those who wanted to challenge them. (As nothing ever changes in history except the names and the dates, the exact same debate is taking place today over the United States’ dealings with Iran, the threat of renewed sanctions, and the call in Congress for legislation that would immediately implement sanctions when the talks break down in June. And – again, echoes of the past – between those who want to indulge the President thinking that access and photo ops equate to power and influence and those who want to challenge and publicly defy him.)

We should never underestimate what President Reagan did to liberate Soviet Jews, along with George Schultz and even then-Vice President George Bush. The Reagan administration was the first to raise Jewish rights at every meeting in every forum with the Soviets, alternately surprising, antagonizing and even insulting a parade of Soviet dictators. It was Gorbachev who, initially opposed to Jewish rights and emigration as were his predecessors, realized soon after taking power that the jig was up. Kremlin archives now reveal minutes of the Politburo meetings when he informed his cohorts that their nation could not sustain itself without Western assistance, and that assistance would not be forthcoming without human rights and freedom for Jews. (Brezhnev and others had stated among themselves in the 1970’s that the Soviet empire would not survive an open emigration policy. They were right.)

And Reagan was astute enough and humble enough to tell Gorbachev that he can do it at his own pace and announce it for his own reasons – as long as he does it – and that Reagan would not claim credit for it, and would not gloat or embarrass Gorbachev. And that is what happened.

The Soviet dictators present as something out of ancient history even though it was just a few decades ago – the evil, the capriciousness, the insecurity they bred throughout the public. They were true believers, at first incredulous that anyone would want to leave their Communist paradise, and then offended beyond reason when so many did. The numbers fluctuated – from tens of thousands of emigrants in some years to hundreds in others. (That was based largely on politics, trade, pressure, and other events on the world scene.)

Above all, the mesirat nefesh (the self-sacrifice) of the Jews is exhilarating to re-visit. The Holocaust loomed over everything. Even so, people with little connection to Jewish life knew that once they applied for emigration, their lives would never again be the same – loss of job, sometimes residence, sometimes imprisonment, family disruption, divorce, alienation from children, internal exile, Siberia, labor camp, eavesdropping, KGB harassment, etc. And yet they did it, by the tens of thousands, and later by the hundreds of thousands.

And the Jews did not know from one day to the next year what would happen to them – why some people were released quickly and others not for many years. There was no rhyme or reason to the decisions, part of the mind control fostered by the dictatorship. Even Natan Sharansky, before he was released, was moved from his labor camp to Moscow for two weeks, and not told anything about what is happening to him until the night before he was flown out of the Soviet Union when he had to sign documents renouncing his Soviet citizenship. People lived in the dark, and in constant fear.

The courage and dedication were inspiring – and legendary. Sylva Zalmanson telling her sentencing judge that she will live in Israel someday, regardless of her sentence, and saying in Hebrew – while being reprimanded by the judge for speaking a foreign language – “If I forget Jerusalem, may my right hand wither…” Unforgettable.

The road out of exile has twelve bridges, but always requires self-sacrifice like that of Nachshon who jumped first into the water – before the Red Sea had split. Someone had to start and great things then happen. Ironically, the greatest despair among the refuseniks occurred in 1985 – right before Gorbachev changed his mind. They felt there was no hope, no future, all avenues blocked, and no options left. And then, G-d’s salvation came in the blink of an eye – “the heart of the king is in G-d’s hand” (Mishlei 21:1).

When we think of miracles and astonishing events in Jewish history – we need not go back 3700 years; 37 years also works. When the history of the ingathering of the exiles as was prophesied in the Torah is written, we can say we lived through it. We saw it up close, even if we didn’t fully appreciate it at the time. The exodus of Soviet Jews was unlikely at the time – and impossible to fathom in retrospect. It is no exaggeration to say that the Soviet Jewry movement brought down a mighty empire. It also brought American Jewry out of its shell, partly atoning for its silence during the Holocaust.

As in the original exodus, it was only at the end of the process of redemption that the people acknowledged G-d’s great hand. And we do today as well, even in this transition stage from exile to redemption. When we want to teach our children of heroes and heroines, of self-sacrifice, we need not go back millennia and centuries – decades will suffice. It is good for them to know that Jews – our contemporaries, people who still walk among us – sacrificed for Torah, for the Jewish people and for the land of Israel. And they inspire Jews even today.

The Silver Era

What to make of the arrest of NYS Assembly Speaker Sheldon Silver? The allegations against him of taking bribes and kickbacks and trading on his power are certainly serious and distressing. He is accused of steering real estate companies to a law firm with which he was affiliated, in exchange for the firm paying him a substantial sum of money, and for referring patients of a doctor to another law firm with which he was affiliated, in exchange for compensation as well as the grant to the doctor of New York state research funds. Apparently, these arrangements were known for years.

The presumption of innocence should apply, of course, something lost on many people in this age of hysteria, hyperbole and sensational headlines. I cannot comment on his guilt or innocence as all the facts have not yet been adduced, and the media reports do not sound good.

But I am confused. Most of the charges against him are based on the so-called “Honest Services” law which has been roundly criticized by courts and judges for its ambiguity and disconnect from reality. So note the following:

In 2008, the investors in Solyndra donated more than $83,000 to the Obama campaign. One year later, the company was awarded a federal loan in the amount of $532,000,000 (that’s million, quite a return on their investment). That money – our money, taxpayer money – was completely lost in the Solyndra bankruptcy, although it stands to reason that the investors were somehow repaid before bankruptcy was filed. In essence, money goes to political campaign, victorious politician (in the guise of his Department of Energy) funnels money – a lot of money – to that company. Legal? I suppose so. It has never been prosecuted.

The current US Ambassador to France, whose presence at the great anti-terror march was considered unworthy of this great republic, is what is known as a “political appointee.” Jane Hartley was a prodigious fund-raiser for President Obama in the 2012 election, bundling together more than $500,000 for his campaign. She was then appointed Ambassador to France and Monaco (good gig). In essence, money goes to political campaign, and a government job – at taxpayer expense – is awarded to the fund-raiser. Legal? I suppose so. This has been going on forever, under both Republican and Democrat administrations. Some appointees are “diplomatic” (i.e., on the merits, such as career foreign service officers) and some are “political” (i.e., friends of or donors to the president). Hartley’s predecessor as Ambassador to France – he actually spoke French – was co-finance chair of the 2008 Obama campaign. Same deal, in effect. There are hundreds of similar examples that can be cited from across the political world and spectrum.

Is there a difference between these two cases and the Silver allegations? Maybe, but if there is, it is a difference in degree, not in kind. It is the same process. Perhaps in the aforementioned cases, the quid pro quo is not explicitly articulated but is winked at or self-understood; is that really a substantial difference, enough to distinguish between legal and illegal? Perhaps the difference is in timing – there was a delay of 1-2 years separating between the quid and the quo. But does that really matter?

This is emphatically not to say that “everyone does it” and therefore it is capricious to prosecute one when 100,000 could be prosecuted. “Everyone does it” does not make any particular action legal. But “everyone does it” can define what is common custom or, said another way, how modern politics is practiced in America today and probably always.

We should face one simple truth. How many Americans donate to political campaigns without expecting something in return? Sure, there are probably some that love an individual candidate (or hate his opponent enough) that they give on the merits. But the really big campaign money – from Big Oil, Big Pharma, Big Business, Big Insurance, labor unions, teachers unions, environmentalist groups, etc. – is always proffered by those who are demanding something in return. (That is one reason why George Washington decried the formation of political parties, and felt they would promote endemic corruption in American life.)

Thus, people – good people, not necessarily scoundrels – donate to politicians because they want something. Some want a job – ambassador, cabinet, government agency, etc. (A job aspirant called President Coolidge in the middle of the night, and informed him that the Chairman of the Port Authority had just died, and the caller would like to take his place. Coolidge: “If it is all right with the undertaker, it is fine with me.” And Coolidge then hung up.)

Some want legislation passed that will benefit their businesses, give them an exemption from an existing law, stifle their competition, or smooth their way through some regulatory labyrinth. If they do not get what they want, they take their money elsewhere. Some corporations are wealthy (or desperate) enough that they will fund both opponents in a race, hedging their bets while retaining their influence. For some reason, if the money is transferred in an obvious and vulgar way (envelopes stuffed with cash, as in ABSCAM), it is a crime that purports to shock the conscience. But if the money is transferred in a more refined and indirect way – e.g., campaign contributions (or legal fees?)–  then it is construed to be a gracious political donation, protected by the US Constitution and rightfully so, and an indication of the donor’s sophistication and eagerness to participate in civic life.

All want access. And the money, once given to a politician, is his; certainly, if he leaves office, he takes that campaign money with him, in most cases. That can be a nice nest egg.

At the end of the day, however one parses the transactions, money is being assigned from one person to another in exchange for an imminent or expected benefit. Yet, one is legal and one is illegal. One person is deemed a criminal who deserves prison time and one person gets to spend time with the president and nights in the Lincoln Bedroom. That seems arbitrary, too fine a line on which to prosecute, convict and send someone to jail.

Other issues need to be understood as well. To a layman, the notion of “kickbacks” smacks of illegality and corruption. But in law, referral fees, as they are known, are a legal and accepted way of business. A lawyer without expertise in some area refers a client to an attorney who has expertise in that area, and receives a share of the fee in return. While a lawyer may not give a referral fee to a non-lawyer, it is legal and ethical to give it to a lawyer. That is part of the practice of law. Although the Code of Professional Responsibility requires that the referrer do some “reasonable” work on the case, the standard is very loose and rarely enforced. And even if it is: the law states that such applies to a lawyer “who is not a partner in or associate of the lawyer’s law firm.” But Silver wasn’t an outsider; he was a lawyer referring clients to firms of which he was a member. The standard is different.  Moreover, lawyers are routinely hired by firms for their ability to bring in new cases and clients. This is not sinister. This is business. And state legislators are allowed to earn outside income.

In effect, in one case, Silver allegedly referred real estate companies to a certain tax abatement law firm. That firm transacted legitimate business on behalf of those companies – business in which Silver was not involved – and for which the law firm paid Silver a salary. A further allegation is that Silver then used his position to enact legislation of some sort that would benefit those companies. Duh. Is it illegal – has it ever been prosecuted – for a teachers’ union (for one example) to give money to a politician in exchange for a bloc of votes and a favorable contract? Of course not. And that contract then provides the teachers (and the union) with more money to give to more politicians for more votes and an even more favorable contract! In New Jersey, the contract even mandates that the state (i.e., the taxpayer) essentially pays the union dues of each individual teacher. Other interest groups donate money in the hope of enacting favorable legislation. This happens every single day. When did the rules change?

Did Silver funnel state money to the doctor whom he persuaded to refer to his patients to a particular law firm? Well, assuming it is true, that might be questionable, but we should ask: did the doctor apply for those research funds properly? Did he receive the money and do the research? Was Sheldon Silver the only decision-maker? Would not politicians (or anyone) be more inclined to help people they know? Is that necessarily disturbing or criminal? If another politician gave a state job to the relative of a friend – who did good work and deserved the job –is that a crime? It seems that is exactly what happens every day, whether we like it or not.

Before people rush to judgment, we all should more carefully analyze what was done and not done, and how (whether) it differs from politics as usual, the legal kind. And we should realize that the US Attorney Preet Bharara has been a very aggressive prosecutor, which is fine, but has had a number of high profile convictions reversed on appeal, which is nonetheless devastating to the defendant. And realize as well that one of Silver’s predecessors as Speaker, Mel Miller, was convicted of fraud in 1991, and consequently lost both his speakership and his seat in the Assembly. Two years later, his conviction was reversed on appeal, and he went free.

Free – except that his personal and professional lives had already been ruined.

A cautionary tale indeed. Let the presumption of innocence exist in fact and not only in theory. That is both fair and just, and something that we would all expect for ourselves.