Monday, October 16, 2017


 The more I think about it, the less I like the “The Pledge of Allegiance.”  Drafted and revised in the late nineteenth century, officially adopted and named during the Second World War, and finally amended a decade later during the Cold War against “godless communism” to add the words “under God,” it is a simple, thirty-one word, statement: “I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.”  But I want to pledge my allegiance to something better or higher than a two-part loyalty oath to a flag and a form of government.

First consider the flag, originally and usually, a piece of cloth with a design and colors having symbolic meaning.  Most Americans probably know that the thirteen stripes represent the original thirteen colonies and the stars reflect the number of states in the Union.  I have a problem with leaving out Washington, D.C., our nation’s capital and home of nearly 700,000 citizens, a larger population than the populations of the states of Vermont and Wyoming.  Of course, most of D.C.’s citizens are blacks (Vermont and Wyoming are almost entirely white), and America has historically not much liked blacks.  So the flag, by omission, today symbolizes racial disenfranchisement.  Most Americans probably have no idea what values its colors red, white, and blue represent.  According to tradition, white: purity and innocence; red: hardiness and valor; blue: vigilance, perseverance, and justice.  Those ideals might be matched against the political or social reality: corruption and naiveté; self-indulgence and service-dodging; denial, avoidance, and abuse.  The point: a pledge of allegiance to an object having little-known symbolic values is a loyalty oath of empty words meaning little and inspiring nothing.

Then consider the republic for which the flag is a symbol, “a state in which supreme power is held by the people and their elected representatives, and which has an elected or nominated president rather than a monarch”—in a word, a democracy more or less like America’s.  Again, the ideal is worthy, but the reality is not.  The “people” have not been all the people, only shifting sub-sets of the population because many—blacks, women, Indians—have historically been excluded from citizenship or elective power, many presently still disproportionately hindered from voting.  Democrats want the franchise expanded and protected.  Republicans are right that Democrats would benefit from a larger electorate, but they are hypocritical since they benefit from a smaller one.  Self-interest cuts both ways, but the Democrats’ self-interest also serves the commitment in the Declaration of Independence to the “consent of the governed.”  On the contrary, with control of executive and legislative branches in over two dozen states, Republicans are redoubling their efforts to disenfranchise or otherwise restrict access to the ballot box by blacks, Hispanics, the poor, and students, to give the GOP a better chance of winning elections.  In their political precincts, Republicans give the pledge a lot of lip-service but little support.  Power to the party matters much more to them than power to the people.  But saying so would make for an even lousier pledge of allegiance.

Any pledge of loyalty in America to a “Republic” which is “one Nation” is a pledge to a non-existent entity.  American is not “one Nation,” and, if it is not “one” nation, it is not anything like a “Nation.”  For, in simple terms, a nation is a group of people unified by a common legacy of descent, history, culture, and language, usually but not always, living contiguously (the Jewish people are a notable exception; its members are scattered worldwide in groups and as individuals).  Our diversity denies us the status of a nation, with people of many descents, histories, cultures, and languages.  We cannot overcome this diversity by a campaign to make English a national language, as if uniformity of language alone could overcome all other differences.  There are too many of us and just too much of ours to overcome to make us unum e pluribus.  Since we are not a nation or a people, the only reliable basis of unity is allegiance to a civil society with a democratic government, public and secular to ensure equality, as defined by America’s Constitution.

As for the rest of the Pledge, there is little enough to say.  The idea that we are “under God” is an insignificant platitude and a needless embellishment; taken seriously, it means only that all nations and all peoples are similarly situated.  The idea that we are “indivisible” defies the fact of our divisions, both historical and contemporary.  And the idea that we embrace the idea of “liberty and justice for all” is belied by past history and current events, with all parties feeling helpless in the face of powerful elites and forces controlling their lives, or aggrieved by the perceived advantages of all other parties.

Perhaps we should replace the Pledge of Allegiance with a complete do-over which better reflects the patriotic values of our democracy—a hopeless suggestion because we would have to agree on a definition of patriotism.  As we have known probably since the Second World War and certainly since the Vietnam War, opinions differ because violently disagreeing political opponents claim themselves to be patriotic and accuse others of treason—more proof that we are not one nation.  Until we have agreed on a definition of who we are and what we esteem, no pledge will be unifying.  If asked, I would urge a pledge which, reflecting our founding documents, states our aspirations to achieve equality under the law, freedom for all peoples, and the fullest possible exercise of individual rights which does not infringe on anyone else’s equality, freedom, or rights.

As for the National Anthem and the ritual of standing while it is played or sung before athletic contests—please don’t get me started.

Friday, July 7, 2017


Progressives have been loud and clear in talking about Donald Trump’s competence and character—fair enough: competence and character count for a lot, if not everything, in assessing a political person.  But, when I analyzed the competence (proven) and the character (dubious) of Craig Fenske, a candidate for Supervisor of the Doña Ana Soil and Water Conservation District, in a widely circulated email, local Progressives refused to allow the same standard to be applied to one of their own.  Some responded with name-calling or trumped-up charges.  Las Cruces City Councilor Gil Sorg replied that I am a “jerk,” and Dael Goodman alleged that I had sent her “abusive emails.”  Others will have to decide whether I am a jerk, but I can say that one email nine months earlier telling Dael “no” to future emails from her is neither plural nor abusive.

So I know whereof State Land Commissioner Aubrey Dunn speaks when he writes a guest column “Despite political affiliation, human decency must prevail” (Bulletin, June 23).  I agree that we must be honest and decent in communications and not dehumanize others, whatever the differences of opinion.  But I could not square his preaching with his practice.  His column reminded me of an Ambrose Bierce definition of a Christian: “One who believes that the New Testament is a divinely inspired book admirably suited to the spiritual needs of his neighbor.”

Dunn opens by mentioning the shooting of a Republican congressman at a baseball practice, continues by detailing some local episodes of shots fired through windshields and slashed tires, and reflects on their possible cause in “the overheated and dishonest rhetoric coming from the extreme progressive left toward conservative public officials.”  With no relevant facts, just paranoic imaginings, Dunn jumps to a political accusation; he ignores the fact that vehicle vandalism without political motive is a common occurrence in the area.  (With no relevant facts, just a perverse imagination, I might counter that the overheated and dishonest rhetoric coming from the extreme conservative right might have prompted an extreme conservative to such damage in order to blame those on the “extreme progressive left.”)  Dunn’s leap to a one-sided conclusion strikes me as neither honest nor decent.  And, as New Mexicans know, it was one of Arizona congresswoman Gabby Gifford’s extreme conservative constituents who shot, wounded, and mentally maimed her for life—nothing so minor as windshield damage or a slashed tire.

Balance alone—would it not be honest and decent?—might have suggested to Dunn that extremists exist at both ends of the political spectrum.  Honesty and decency might have suggested that extremists should not be taken as representative of either side of the political spectrum; “extremists” are the new straw men of political rhetoric.  But only the “some who don’t respect the need for truthful debate and instead choose to target conservatives” get a mention—the “some” being those who are not “conservatives.”  Yet Dunn has no idea about “truthful debate” since, before it begins, he colors those who disagree with him as “extremists” and claims that “vitriol coming from the extremists toward conservatives” is affecting his decision to run for office.  Although he gives no evidence of extremist vitriol toward other conservatives or him, his words are evidence of his vitriol toward non-conservative opponents.

Dunn complains that Senator Heinrich, by endorsing Dunn’s rival, endorsed what he represents as his rival’s unsavory views on the standoff in Oregon at a federal wildlife refuge.  Dunn claims that his opponent characterized “a group of peacefully protesting ranchers in Oregon” as “Taliban-style terrorists and advocated the federal government taking deadly force against them with no due process.”  Dunn’s complaint is neither honest nor decent.

First, Dunn grossly misrepresents the group of ranchers and likely just as grossly misrepresents his rival’s words.  The group of ranchers in Oregon was not a group of Oregon ranchers or even of local residents.  They were not “peacefully protesting”; they were armed; they evicted employees from their wildlife refuge offices at gunpoint; they threated armed resistance if federal officers tried to arrest them; and one of them was shot and killed when he attempted to draw his weapon on federal officers.  By radically misrepresenting the facts about this episode of a violent, vigilante effort to seize public lands reveals values unworthy of a public servant and antithetical to the public interest.

Second, given Dunn’s misrepresentation of the physical facts of the episode, his claim that his rival urged deadly force and the denial of due process is suspect as improbable.  Dunn does not quote his rival’s words.  So we do not know what his rival’s words or views on this episode are, but they are not likely what Dunn claims them to be.  Dunn substitutes his words instead—a ploy which does not suggest honesty or decency.

Finally, Dunn drags Heinrich into his discussion in order to smear the Senator by association and an unsupported allegation that the senator, whom Dunn never quotes, uses “overheated rhetoric.”  Odds are, Heinrich had many reasons to endorse Dunn’s rival, and endorsing him does not mean endorsing every one of his views, even if, as is very doubtful, he knew them all and one or two were what Dunn says that they are.  Dunn’s gratuitous smear is more of what is neither honest nor decent about his rhetoric.

In this context, Dunn’s concluding “promise to stand up for honest debate” and his challenge to voters to support candidates and officials who “stick to the truth, [and] have honest discussions” demonstrate the hypocrisy of a candidate pseudo-heroically pretending to honesty and decency.  Dunn may know what they are, but he does not act as if he does by practicing what he preaches.  We do not need another partisan hypocrite of poisoned rhetoric like him in public office.  One and done is enough of Dunn.

Wednesday, May 24, 2017


New Mexico’s government combines incompetence and corruption to squander scarce resources and accelerate the State’s economic decline.  Its role in the economy is a joke blending the humor of Rube Goldberg contraptions like Spaceport and and the hilarity of pork-barrel boondoggles like tax giveaways to favored companies larger than the tax revenues from them or their employees.

Not a joke is New Mexico’s desperate, even criminal, device to generate operating revenues.  Its ploy, in the name of protecting against identity theft and fraud, is to impose unreasonable demands on those claiming tax refunds to discourage compliance and thereby allow the State to keep the taxpayers’ refunds.  A Taxation and Revenue Department (NMT&RD) letter to claimants writes, “Additional information is required for the Department to verify your income and identity before your refund request can be processed.”  In other words, no “required" information, no processing of the refund, ergo: no refund.  The letter further requires claimants, within two weeks of its date, to provide documents proving, not their income, but their withholdings, and their identity, both certified on their returns.  By questioning their honesty and identity, the NMT&RD insinuates perjury by claimants even as it hopes to generate a tax windfall for the State.

The one case known to me—newspaper articles make it clear that it is one among thousands of cases of delayed refunds, which experienced legislators know about and ignore—is that of my ex-wife, who lives in Albuquerque, works as a nurse from early morning to late afternoon or early evening, and used H. R. Block to prepare and electronically file her return requesting an electronic refund deposit.  She expected to get a refund in the usual way: file a return and have the refund deposited directly in her bank account.

Instead, she got a letter from the NMT&RD requiring her, like many other refund claimants, to provide documents proving their “income” and their “identity” within two weeks.  The deadline for compliance was unreasonably tight; NMT&RD made it tighter by internal delays.  Five days elapsed between the letter date and the envelope postmark; two more days effected delivery—that is, a lapse of one week.  So she had to deliver all required documents, only one of four optional, within the one remaining week.  There is no reason for such a short deadline, especially since NMT&RD wastes half the allotted time; it is simply its deliberate act of coercion to discourage or defeat compliance.

The proofs which NMT&RD requires have many deficiencies.  Among others, they are redundant, unreliable for their purported purpose, burdensome, or costly.  NMT&RD requires:

“To prove income”

“Copies of all W-2s, 1099s, and/or all other income source documents showing NM withholding.”  This requirement lies about its purpose, not to “prove income,” but to prove withholding.  It is duplicative; taxpayers attach W-2s, 1099s, etc., to their returns if they indicate withholdings.  Moreover, payers report withholdings to the state as well as to payees.  So NMT&RD has two different sources of this information to assess the taxpayers’ returns without requiring this paperwork.

“To prove identity”

“A copy of your driver’s license or identification card.”  Drivers’ licenses are not reliable proofs of identity; they are easily faked, and copies make it harder to detect fakes.  Since some taxpayers change addresses without updating them, the addresses on returns and on licenses might not match and would complicate the question of identity.  Some people without a license also lack an identification card; requiring one imposes a further delay and the cost of a fee ($18 for 4 years; $34 for eight years) against the amount of the refund.  So the copy of a driver’s license is not proof of identity, and an ID card imposes even more paperwork and more expense to acquire.

“A copy of your social security card.”  This requirement seeks a copy of a card frequently stolen (along with credit cards).  Taxpayers who keep their SS cards in a safe deposit box might have to take time (off from work) for a special trip.  So a copy of a social security card can prove little.

“Copies of documentation to verify bank account such as voided check, bank product summary (provided by tax preparer), if requesting direct deposit.”  This requirement is unnecessary because the return requests this information for direct deposit if the taxpayer wants it.  (If the tax return asks for this information, it can also ask for this documentation with the tax return.)

My ex scrambled to comply with these requirements.  The demands, the deadline, and the threat of delay or forfeiture took considerable time and energy, and caused considerable stress.  Failure was not an option; it meant forfeiting a high three-figure refund.  Her H. R. Block agent helped her meet the deadline and possibly avoid weeks of delay.  But my ex still expects a long wait.  I suspect many did not jump through these hoops on time or at all.

The deficiencies of these requirements make suspect the State’s rationale: identity theft and fraud.  The propensity of the Martinez administration to allege identity theft and fraud—remember those 64,000 cases of suspected—but never established—voter impersonation and the mental health agencies defrauding Medicare and Medicaid?—casts doubt on its claims of a large number of tax-related cases of identify theft or fraud, or a large amount of criminally obtained refunds.  Even more doubtful would be similar claims about electronically filed returns from established tax preparation firms.  If the NMR&TD has evidence of criminal cases of identity theft and fraud in tax refunds, it should reveal the size of the problem in terms of numbers and amounts.  Obviously, if it has many such cases, it must know how to detect them without help from taxpayers.

When I spoke with Tiffany Smyth, the “Taxpayer Advocate,” I expressed my concern about the State’s right to retain the refunds if the taxpayer does not provide the required documentation.  Ms. Smyth responded to my concern about retaining the refund by claiming that the State has the right to request information.  She is correct, but her answer evaded my question and amounts to a tacit admission of refund forfeiture in the absence of the “required” information.  State law permits the collection of information to protect against identity theft and fraud.  The website of the Tax Fraud Investigations Division states that it “has the authority to investigate any potential violation of state statute related to taxes.”  The over-reach of this authority is breath-taking and abusive, for NMT&RD can cast its net as widely as it wishes because every tax return, not only those claiming a refund, can be in “potential violation.”  It does cast its net widely and conducts tens of thousands of investigations (an AbqJ article reports 59,000 in 2015).  Yet most returns are complete and accurate; some are accidentally, arithmetically, or mistakenly erroneous and technically violative of the law; some are criminally violative of the law.

The question is on what basis should and does NMR&TD decide whose returns should and does it investigate.  Returns which under-report taxes owed are difficult to identify; returns which claim over-payment of taxes identify themselves.  Investigators appear more concerned with returns claiming a refund for several reasons.  One, it has no problem targeting them, for what is easy to identify is easy to target for investigation.  In the name of protecting everyone—the state and the taxpayer—against identity theft and fraud, it can and does impose requirements on claimants to get their refund back and can and does impose them widely (currently, about one in seven claimants).

Two, no other rationale for selection is clear in the large number of investigations.  The NMT&RD process resembles stop-and-frisk programs targeting minorities or dragnets to apprehend criminals in a larger population.  Like these unconstitutional practices, its process is an insult to the citizens of New Mexico.  I doubt the necessity, virtue, or benefit of randomly and factlessly challenging taxpayers’ honesty in light of their certification, under penalty of perjury, of the completeness and accuracy of their returns, which include original documentation and this information—especially since NMT&RD has data bases with relevant information, including many previous taxpayer’s previous returns to match against present returns.

Three, and most important, NMT&RD can and does use deficient requirements to discourage claimants from pursuing their refunds.  Such requirements intend to make second requests for refunds difficult, if not impossible, to fulfill or to prevent second requests altogether.  For taxpayers averse to dealing with government agencies or officials, unable to comply with multiple requirements in little time, or owed a small refund, the paper chase may not be worth the hassle and the hurdles.  So NMT&RD’s investigative process operates, not for its stated purposes, but for the purpose of raising tax revenues without the executive and legislative branches having to raise taxes.

This probability raises another and far graver question.  The NMT&RD may have the rights to investigate any “potential violation” and to require requests for information, but I doubt that it has the right to retain the refunds if taxpayers do not, for one reason or another or none at all, comply with the requirement.  Yet, in a recent email to me, Ms. Smyth, “Taxpayer Advocate,” clarified the NMT&RD’s authority: “If the department has requested additional information to verify identity and/or income and it is not provided by the date in the request, the refund will be denied.”  I am not a lawyer, but I am quite sure that investigative requirements are not laws, and, even if they were, they cannot justify retaining the refunds without some legal action.  NMT&RD retention presumes a criminal violation of a “state statute related to taxes,” but non-compliance with its requirements is not a criminal violation of such a law.  Its presumption to the contrary is a violation of the Fifth Amendment provision against deprivation of private property without due process of law.  Even more fundamentally, American law is based on the individual’s presumed innocence; the NMT&RD reverses this presumption and operates on the presumption of guilt, the only possible justification for retaining refunds.  In sum, the NMT&RD refusal to issue a refund to a claimant not compliant with its administrative requirements, however rationalized by its efforts to fight identity theft or fraud, does not comport with the Constitution.

I am not a lawyer, but New Mexico has lawyers; I am a sometime columnist, but the State has investigative reporters.  They should ask for a few documents: NMT&RD’s legal authority to investigate these matters, the legal or policy basis of its authority to retain refunds if investigative and administrative requirements are not met, all planning and budgetary documents related to anticipated revenues from forfeited refunds, and the identity of all officials associated with these decisions and documents.  They might investigate the rationale for, and performance of, a “Taxpayer Advocate” who seems to function as the State’s advocate to taxpayers.

A final word on the Solons of Santa Fe.  I have questions about what elected officials know about this racket and, if they do not know about it, why they do not.  The handful with whom I have discussed this situation have claimed ignorance of this ploy or concern about its basis in law, regulation, policy, or administrative rule.  I cannot believe in such universal ignorance; I can believe in universal deniability of complicity in a government-run extortion racket to exploit those owed refunds to prevent the discomfort of raising taxes.  I cannot believe that members of the House and Senate committees on finance and taxation read about delays in tax refunds and yet know nothing of NMT&RD’s collection-agency-like stiff-arming.  I cannot believe that Senior Solon John Arthur Smith, for example, really knows nothing about this abuse of taxpayers.  Notably, no one with whom I spoke, even a member of two of these committees, knows or identifies any responsible individuals.  Now there’s an ethics issue for squabbling and finger-pointing.  Meanwhile, ching, ching!