CRPD and Senator Hatch

On July 10, 2013 Senator Hatch made a statement on the Senate floor that took a lot of us by surprise – he opposed ratification of the Convention on the Rights of Persons with Disabilities (CRPD). He has always been a stronger supporter for and an influencer of U.S. disability policy. He was one of the first Senators, if not the first, to have a standing committee of disability experts and advocates back home in Utah, led for a long time by Dr. Marvin Fifield, which advised him on disability policy. Senator Hatch had a staff member, Chris Lord, who was directly involved in much of the major disability legislation, including the Americans with Disabilities Act. Committee staffers, like me, saw Senator Hatch, as a smart man who could be counted on to find the words to resolve many legislative impasses. He was like Smith-Barney (an investment firm) that had as its tag line – “When Smith-Barney speaks everyone listens.”

Recently there has been pressure on Senator Hatch to join the pro-CRPD ratification team (http://www.sltrib.com/sltrib/opinion/58293709-82/treaty-disabilities-veterans-support.html.csp). This is for two reasons. First, he understands and has helped draft most disability law that is on the books. Second, as a legal expert, with extensive experience on the Senate Judiciary Committee, including as its Chairman in the past, he knows inside and out how our Constitution, laws, and system of government work.

Well, he’s given us another surprise. He had an op-ed piece in the Salt Lake Tribune on August 29, 2014 -- Disabilities treaty would put U.N. in control of U.S. (http://www.sltrib.com/sltrib/opinion/58348861-82/treaty-crpd-disabilities-nations.html.csp).

Senator Hatch says –

Actions speak louder than words. For more than 40 years, the United States has led the world in protecting the rights of persons with disabilities by enacting and implementing laws that set real standards and help real people. Countries around the world have adopted legislation modeled after American statutes such as the Americans with Disabilities Act. We should continue to lead by example.
 

I agree with that. Although, it will be increasingly difficult “to lead by example” going forward if we do not join the CRPD ratification club. One hundred and forty plus nations, which have ratified the CRPD, aren’t afraid of losing by joining together to promote disability rights.

Senator Hatch says –

Some advocates are urging… the United States to go down a different path by ratifying the U.N. Convention on the Rights of Persons with Disabilities, or CRPD. According to the U.N., nations that ratify the CRPD are legally bound to implement domestically the treaty’s "global legal standards" for the "civil, political, economic, social and cultural spheres." The CRPD creates a committee of "experts" to interpret the treaty and tell ratifying nations what they must do to implement its global standards.

Multiple federal departments analyzed the CRPD and U.S. laws and determined that U.S. laws, federal and state laws, are sufficient as they are. In essence, our current domestic laws allow us to meet the standards in the CRPD. This fact is outlined in excruciating detail in the report President Obama sent to the Senate Foreign Relations Committee in May, 2012.

As for the U.N. CRPD Committee, the CRPD resolution that was passed by the Senate Foreign Relations Committee on July 22, 2014 includes an understanding that flat out says “…does not consider conclusions, recommendations, or general comments issued by the Committee [the U.N. CRPD Committee]…to be legally binding on the United States in any manner.” You can’t get much clearer than that. Senator Barrasso, a Republican member of the Foreign Relations Committee, proposed this text, which was approved by the Committee.

So no new laws are required. No U.N. Committee is going to tell us what to do.

Senator Hatch says –

Ratifying the CRPD would be a mistake for three reasons. First, the cost to American sovereignty and self-government outweighs any benefit to Americans or American national interests. Ratified treaties are "the supreme law of the land" with the same legal status as federal statutes and the Constitution. Ratifying the CRPD would endorse an ongoing role for the U.N. in evaluating and telling us how to conduct virtually every area of American life.

What Senator Hatch doesn’t acknowledge is that the CRPD is mostly about outcomes such as – non-discrimination, freedom, choices, and access and opportunities available to people with disabilities that are available to people without disabilities. The CRPD leaves to the nations that ratify it the flexibility to determine how they will achieve outcomes. Our laws, the ones we have now, will allow us to achieve the outcomes spelled out in the CRPD. So you could say the CRPD would become the supreme law of the land with regard to outcomes, but our specific laws would be how we show we achieve the outcomes. It is not an either-or circumstance or an override or replacement circumstance as Senator Hatch suggests.

Senator Hatch says –

In addition, the CRPD’s global standards would apply to every level of government – federal, state, and local. This conflicts with the Constitution’s Tenth Amendment which delegates certain powers to the federal government and reserves the rest to the states. Washington already imposes too many mandates and obligations on the states; we should not invite the United Nations to join in.
 

The CRPD resolution voted out of the Senate Foreign Relations Committee on July 22, 2014, includes a reservation that recognizes and lays out how our federalism system would respond to the CRPD. Some authority is in the hand of states, some in the hands of the federal government. Ratifying the CRPD will not undo or alter this balance of authority. As Senator Hatch knows well, any change in this balance would require legislation that would need to make it through House and Senate committees, the two chambers of Congress, and then make it to the President’s desk. And even then it could be subject to legal challenges and review by the Supreme Court, which won’t look favorably on challenges to the balance of power as spelled out in the Constitution. So, the probability of something like Senator Hatch describes happening is less than .01 percent.

Later in his opinion piece Senator Hatch says –

Second, the CRPD’s flaws cannot be corrected by adding caveats or conditions but only by removing some provisions and fundamentally changing others. The U.S., however, cannot re-negotiate the treaty’s provisions. The resolution of approval sent to the Senate by the Foreign Relations Committee, however, does include a list of caveats or conditions. These say, in effect, that the U.S. will define key terms such as "disability" the way we want, interpret the CRPD’s provisions the way we want, and accept only the obligations that we want. Why give the U.N. authority to say what our laws and practices should be if we plan to do what we want anyway?
 

Here too Senator Hatch fails to acknowledge the powerful and appropriate distinctions between outcomes and the means to achieve them. At the U.N. in the debate on how or if to define the term disability, there were hours of discussion about the value and need to allow nations to define disability through their laws. Here, as much as anywhere else, the U.N. understood the need to give nations flexibility.

Senator Hatch says –

 
Third, U.S. ratification is not necessary for continued U.S. leadership. In the two years that the CRPD has been before the Senate, 34 nations around the world have ratified it. Treaty supporters say that the treaty is modeled after the ADA and that nations will need help to implement it. The United States enacted the ADA in 1990 and revised it in 2008, years before the CRPD was sent to the Senate. The U.S. Agency for International Development has actively implemented development programs to help people with disabilities around the world for nearly two decades. We have been leading by example and helping other nations develop and implement sound disability policy long before the CRPD existed and will continue doing so without ratifying the treaty.

If the world were static, maybe this point made by Senator Hatch would have merit. But the world is not static. More and more countries have passed laws to facilitate their response to the CRPD. More and more committees are being formed to address specific issues. Just visit the U.N. Enabled website for confirmation (http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode=THA&Lang=EN). Disability NGOs are being given a greater say in how money is being spent by governments to improve the condition of persons with disabilities. If the U.S. ratifies the CRPD it will continue to be a player as Senator Hatch suggests. However, if it does not ratify the CRPD, its role and influence will diminish. Why? It comes down to perceived blatant arrogance. Other nations will think the U.S. doesn’t need to sign up, sign on, because the U.S. thinks it has all the answers. The U.S. thinks it can get others to listen, to do what it wants, because of potential financial rewards from U.S. coffers. It is in our national interest to make these perceptions go away.

As you look around the world and see the range of conflicts, do you think the U.S. has control? Influence? Perhaps if we were to ratify the CRPD we would discover we do have influence in new creative ways and bring about some peace.

I truly hope Senator Hatch finds his way to our side.

Thank you.

Common Grounder

Reasons You Should Borrow or Buy one Book on the CRPD

On September 8, 2014 Senators will return to Washington, D.C. Everyone, who has not gotten what they wanted from Senators, will be nipping at their heals asking for their legislation to be considered and passed during the precious few weeks left in September. Crises around the world will demand and absorb much of that time. Race relations and immigration issues will consume much of the domestic political oxygen. Budget and appropriation issues will need to be resolved. And finally, passing a treaty, any treaty (except for those dealing with fishing) is a daunting task. Read Joshua Keating in Slate, The U.S. Will Not Ratify any Treaty Unless It Has to Do with Fish (http://www.slate.com/blogs/the_world_/2014/08/28/obama_s_new_international_climate_change_strategy_how_do_you_negotiate_treaties.html).

So promoting ratification of the Convention in the Rights of a Persons with Disabilities (CRPD) is not for whimps. Now you might say that it's not your job, the government relations people at the associations to which you pay mega bucks should take care of the end game. After all, they know the details. They know who to press. Besides, you're busy, with the start of the school year and everything else.

I understand. However, in all honesty, it is going to take something from all of us, each of us, to secure ratification.

One thing may help you stay with the ratification campaign. You've been with it, even as a spectator, if you have read my posts. There is nothing out there like my book, A Moral Imperative: U.S. Ratification of the Convention on the Rights of Persons with Disabilities (http://t.co/Vigyant7aM, $2.99 at the KindleStore, which has an App so you can read a Kindle book on any device). If you need a "person-on-the-street" explanation of the points of contention, it's in the book. If you need profiles of key Senators with contact information, they're in the book. If you need talking points, they're in the book. If you need to know why some parents who home school their children with disabilities are scared witless, the answer is in the book. If you want to know why ratification is a very good idea, the answer in the book. Think of my book like a one-stop shop. The information will quickly, easily fortify you, so you can take that few minutes to contact your Senators and be credible. Every Senator needs to hear from us. They need to put the CRPD ON THE FRONT BURNER IN SEPTEMBER.

All of my earlier predictions have come to pass. With that fact behind me, let me make one more -- September may represent the last chance to ratify the CRPD.

I have maintained this blog for you, in good faith, since August 9, 2014. When the Congress breaks at the end of September, I plan to shut it down or shift it to other things. Here's hoping and praying that each of you will help make ratification happen and bring real meaning to the 15,860 plus hits this blog has received.

Thank you.
Common Grounder

My Letter to Senator Menendez

August 26, 2014

Dear Senator Menendez:

The views in this letter are my own.

We face challenging times. In September I know your time will be consumed by how to respond to the projected growing threat from ISIS, the crisis in the Ukraine, and the conflict between the Israelis and Palestinians. Therefore, there will be scarce time to pursue and manage a vote on the resolution to advise and consent on the Convention on the Rights of Persons with Disabilities (CRPD). Nonetheless, I plead with you to find the time.

Word on the street is that you need tons of phone calls. Again? We will do that if we must, but I have three questions for you and look forward to receiving your answers:

1.    Are floor amendments to the CRPD off the table?
2.    Are you willing, with a member-to-member effort, to get a vote count? There are 60 Senators who would help you if you asked.
3.    Are you willing to ask Majority Leader Reid to schedule a floor vote in September, regardless of the estimated vote count?

I maintain a blog on the CRPD, which has had 15,000 plus views from around the world (www.wecandothisifwetry.blogspot.com); have written a book on the CRPD, A Moral Imperative: U.S. Ratification of the Convention on the Rights of Persons with Disabilities (A Kindle book, http://t.co/Vigyant7aM, which has been ranked #1 in its category five times over the last seven weeks); and maintain a Facebook page to promote ratification (www.facebook.com/RatifyCRPD, with over 10,000 “likes”).

Clearly there is interest and support for ratification. Many, many people are prepared to be resources if the U.S. has the good sense to use ratification as a diplomatic tool. There are thousands of people and hundreds of companies ready, willing, and able to share human/disability rights expertise and accessibility-related products with the rest of the planet, and many countries are waiting to accept them.

Please take the time to make a Senate floor vote happen in September. We can live with the consequences. We will know where we stand with each of the 100 Senators. We will know what to do after the vote.

Sincerely,

Patricia Morrissey, Ph.D.
A member of the U.S. delegation to the United Nations when the CRPD was being drafted
Board Member, U.S. International Council on Disabilities

CRPD: 5 Things You Can Do Right Now to Promote Ratification

September 8th, when the Senate reconvenes, will be here before we know it. The question on our minds is, what do we do in the meantime? Here are a few suggestions:

1.  Create a mini call center with your friends and make calls to within-state offices of your Senators of BOTH PARTIES urging support for ratification of the Convention on the Rights of Persons with Disabilities. The Senate comes back to Washington, D.C. in September. Then the Senate will be in session for three weeks and after that Senators will go back home, at least until after the fall elections on November 4th.

2.  Write an op ed for your local paper, by yourself or with friends, telling everyone that ratification is a good thing. My book, A Moral Imperative: U.S. Ratification of the Convention on the Rights of Persons with Disabilities, is a good resource on deciding what to say. Here's the link -- http://t.co/Vigyant7aM.

3.  Make a resource folder. Include a list of links to useful resources, such as www.disabilitytreaty.org or www.Facebook.com/RatifyCRPD; Senators' telephone numbers, office addresses, calendar of events where they will be in attendance, Facebook, Twitter, and website addresses and staff names and roles; fact sheets; press clips and links to online media and social networks. Make a few copies of your folder and share with friends.

4.   Use social networks with your friends to create mini campaigns to get out messages to inspire others to get involved in the CRPD ratification campaign. My Twitter account (@AuntPip) has over 1,000, 140 character messages that will give you ideas.

5.  Start an action diary or log and keep track of what you do and when.

Efforts like these will lay the ground work for our final push in September and be the catalyst for real momentum nationwide.

Thank you.
Common Grounder

The CRPD: The Last Dance and Federalism

The Government Printing Office has printed the Committee Report on the Convention on the Rights of Persons with Disabilities  (Treaty Doc. 112-7) (Executive Report 113-12). Here’s the link: http://www.gpo.gov/fdsys/pkg/CRPT-113erpt12/pdf/CRPT-113erpt12.pdf. It includes statements, written testimony, and oral exchanges between Senators and witnesses from the hearings held on November 5 and 21, 2013. It includes letters sent to the Committee and an exhaustive list of organizations that support ratification. It includes, most importantly the text of the resolution, committee comments and recommendations, and two sets of minority views.

I have written about federalism in earlier posts, most recently June 4, 2014. Federalism deals with the division of power between the federal and state governments as laid out in the Constitution. Many opponents of the CRPD argue that ratification of the CRPD will up end that division of power. I see a strong, clear reservation on federalism as one of the essential components that must be in place, in order for us to secure the necessary 67 votes needed for ratification. That is why I was surprised when the Committee made no change in the reservation on federalism in the resolution voted out of committee, 12-6, on July 22, 2014. With a slight change in punctuation and an addition of a legal citation, it is word-for-word the same text it passed out of committee on December 4, 2012. You can read the exact words below, as well as alternative text on a federalism provision offered by a conservative legal scholar, Curtis Bradley

Text of Resolution of Advice and Consent to Ratification, 12/04/12 This Convention shall be implemented by the Federal Government of the United States of America to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the obligations of the United States of America under the Convention are limited to the Federal Government’s taking measures appropriate to the Federal system, which may include enforcement action against state and local actions that are inconsistent with the Constitution, the Americans with Disabilities Act, or other Federal laws, with the ultimate objective of fully implementing the Convention.

Text of Resolution of Advice and Consent to Ratification, 07/22/14 The Convention shall be implemented by the Federal Government of the United States of America to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the State and local governments. To the extent that State and local governments exercise jurisdiction over such matters, the obligations of the United States of America under the Convention are limited to the Federal Government’s taking measures appropriate to the Federal system, which may include enforcement action against State and local actions that are inconsistent with the Constitution, the Americans with Disabilities Act (42 U.S.C. 12101 et seq.), or other Federal laws, with the ultimate objective of fully implementing the Convention.

Curtis Bradley, a legal scholar from Duke University, in his testimony given to the Senate Foreign Relations Committee on 11/21/13 The Federal government has substantial authority to regulate issues relating to the rights of persons with disabilities, and it has exercised this authority in connection with a number of important statutes, including the Americans with Disabilities Act. The Federal government’s authority is not unlimited, however, and some matters that relate to the Convention would typically be addressed by state and local law. The United States expects that the combination of existing Federal law and state and local laws will be sufficient to meet or exceed the obligations of the United States under the Convention as ratified by the United States. Because the United States does not intend to alter the existing scope of Federal authority, it is not assuming obligations under this Convention that would exceed the constitutional authority that the Federal government would have in the absence of the Convention, notwithstanding Article 4(5) of the Convention. Furthermore, nothing in the Convention shall be considered as conferring on the Congress of the United States the authority to enact legislation that would fall outside of the authority that it would otherwise have in the absence of the Convention, or as limiting the powers of the several states of the Federal Union with respect to any matters recognized under the United States Constitution as being within the reserved powers of the several states.

In their analysis of the federalism reservation in their minority views in the report Senators Corker, Risch, Rubio and Johnson say –

By first stating that the Convention ‘‘shall be implemented . . . by state and local governments,’’ and then by limiting our obligations in those areas where state and local governments exercise jurisdiction ‘‘to the Federal Government’s taking measures appropriate to the Federal system,’’ it is unclear whether the Administration seeks to limit the scope of our obligations under the treaty, or only the means by which our obligations will be fully implemented. (p. 29)

…by failing to clearly limit the scope of our obligations under the Convention in the federalism reservation while noting potential concerns about state level compliance, the United States risks the perception (and potential reality) of being in violation of our international legal obligations on a human rights treaty. This can harm our standing with those who share our values, and it can frustrate our efforts to encourage those who don’t. (p. 30)

Senators Corker, Risch, Rubio and Johnson make valid points. We need a stronger, clearer reservation on federalism than the one in the committee report.

How’s this –

The Federal Government of the United States of America shall implement the Convention applying the federal-state structure spelled out in the Constitution. In doing so, the United States of America recognizes and will respect that a combination of federal and state laws will be the basis upon which it complies with the Convention. The United States expects that the combination of existing Federal law and state and local laws will be sufficient to meet or exceed the obligations of the United States under the Convention. The United States does not intend to alter the existing scope of Federal authority. It assumes no obligations under this Convention that would exceed the constitutional authority that the Federal government would have in the absence of the Convention, notwithstanding Article 4(5) of the Convention. Furthermore, nothing in the Convention shall be considered as conferring on the Congress of the United States the authority to enact legislation that would fall outside of the authority that it would otherwise have in the absence of the Convention, or as limiting the powers of the states of the Federal Union with respect to any matters recognized under the United States Constitution as being within the reserved powers of the states.

This is one possibility. Surely there are others. If bipartisan consensus could be achieved on a federalism reservation, the value, clarity, and strength of provisions related to parents’ rights and access to health care would be enhanced as well. I urge everyone who has the power and influence to do so, to take one more look at the federalism reservation. If we are serious about ratification, this is the move that will get us there.

Thank you.

Common Grounder  

CRPD: WHAT WE DO IN AUGUST REALLY MATTERS

This is my 100th blog post.

By contacting Senators back home during the August recess in great numbers we can increase the volume on the CRPD. Doing so has value but we must remember that is a tactic not strategy.

We must be strategic in August.  It is very important in August that people, who know Senators personally and who also support the CRPD, talk to Senators. People in great numbers, who also happen to have disabilities, and big signs saying, "VOTE YES ON THE CRPD", make a great photo op or back drop, but the most important thing will be quiet conversations between senators and people they know.

People who support the CRPD, know Senators personally, especially veterans and business people, are the ones who can have those quiet conversations. Again, with Senators, not staff.

The message that these people deliver is also very important. The message must be fact-based. That means numbers and information from official documents. Information shared shouldn't sound like talking points. That means it must include something about the Senator or things that are important to him. Three areas that will probably have the most traction generally are: the value of the CRPD to veterans who choose to go overseas for any reason; business opportunities that will be gained if the CRPD were ratified; and U.S. standing in the world improving, if ratification were to happen, on a whole range of human rights issues.

Other things that are part of an effective strategy are -- a compilation of information gathered; timestamps on each piece of information acquired; a centralized place to keep it; a willingness to share it; and, most importantly, a willingness to gather it in the first place. If our August strategy includes these components we will more likely have a shot at a ratification vote in September.

I know we have learned a lot and done more in the last months, especially July, to secure ratification of the CRPD. The biggest lesson we learned is that we did not do enough, the right things, or a combination thereof to get a powerful vote in July.

So now we have a chance to be honest with ourselves and be smart over the next five weeks -- the Senate will be back in session on September 8, 2014. Then, the Senate will work for just three weeks, and go out again to campaign for the fall elections. If the Senate chooses to return to Washington, D.C. after the elections, called a "lame duck" session, we need to remember that Republicans have a strong aversion to voting on treaties in a lame duck session.

All this means we have only three weeks in September to get a vote on ratification. And if the Senate were to have a Republican majority as the result of the November 2014 elections, we probably would not see any action on ratification through 2016.

Bottom line is we must go all out in August 2014. If you are not someone who knows a Senator personally, please check out my two blog posts on six degrees of separation. Better yet, buy my book --http://t.co/Vigyant7aM.

Thank you.
Common Grounder

The CRPD and the Gentlemen from Tennessee

Yesterday in the Washington Post Dan Balz had an interesting article on the statesmen, who have held or hold statewide office, in Tennessee. The trigger for the article was the recent funeral of Senator Howard Baker of Tennessee and the pending primary challenge faced by Senator Lamar Alexander of Tennessee. Balz and the people he interviewed claim that Tennessee has a long legacy of electing Republicans, who work across party lines, endorse consensus building, and recognize that governing, not just speech-making, is part of the job. The men that Baltz included in the list, as similar to Howard Baker, are Tennesseans who practice these principles -- the current Governor, Bill Haslam, Senators Lamar Alexander and Bob Corker (ranking Republican on the Senate Foreign Relations Committee), and Bill Frist, former Senate Majority Leader, also my former boss.

Senator Bill Frist supports the Convention on the Rights of Persons with Disabilities (CRPD). If you read his piece you learn compelling reasons to support CRPD ratification from a Republican in the Howard Baker tradition.

In the Balz piece one statement from Governor Haslam stands out. Haslam, who was mayor of Knoxville before being elected governor in 2010, got a start in politics as an intern in Baker’s Senate office. One of his jobs was to reply to constituents about Baker’s support for the Panama Canal Treaty. The letters, he recalled, ran 100-1 against the treaty. “I was sitting there thinking, ‘Why in the world is our guy for this?’ ” he said. “It was actually a great lesson. . . . He honestly thought it was the best thing for the country.”

I suspect if Governor Haslam were a Senator he would vote for ratification of the CRPD. Ratifying the CRPD is certainly in the best interest of our country.

Senators Alexander and Corker, having been characterized as being in the Howard Baker mold, have a powerful opportunity in the next few hours – urge the Senate leadership to hold a vote on the CRPD tomorrow. Talking about getting the right kind of attention. Talking about doing the right thing, given the opposition and timidity of others. Wow. They would have 54 million new friends. They would be saying -- facts not fear, facts not pandering, and facts not political posturing -- are the things that inspired them to act in a fine, long-witnessed, Tennessean tradition.

Thank you.

Common Grounder