Which, taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries.
On such a full sea are we now afloat,
And we must take the current when it serves,
Or lose our ventures."
William Shakespeare, Julius Caesar, Act 4
Bright and early Monday morning, Senator Mike Lee and superlawyer James Bopp, Jr. addressed a full house of frustrated and forlorn US citizens over at Reid Hall in Paris. Some came in suits, some in jeans. There was a very young woman with blue streaks in her hair and men whose touches of gray were a testimonial to a lot of living. There were lawyers, stay at home mothers, IT workers and artists. A diverse group that was far more representative of the true face of Americans abroad than the usual caricatures of champagne-sipping yacht-owners living it up in Gay Paree. It was coffee and croissants and a frank discussion that at times was fraught with emotion.
Senator Lee spoke first and he began with some anecdotes from the time when he was first elected to the Senate. He's a young man with a quiet and modest demeanour. He recounted how in the very beginning he had moments where because of his youth and appearance he was taken for something other than a member of that august body, the US Senate, and how he finally had to quietly but firmly assert himself as the elected-by-the-people junior Senator from Utah. He invited us to laugh with him and we did. But the funny stories took a very serious turn when he shared the lesson he drew from that experience: "We must assert what is rightfully ours," he said, "if it is to have any meaning."
US citizens wherever they live, he said, have constitutional rights that cannot be taken away by anyone.
And how can the Senator say such a thing with so much conviction? Because he was an American abroad himself. Because his mother was born in Europe to two expatriate American citizens. Because he has a son abroad today.
With great candour he explained that FATCA was part of a larger bill that most US lawmakers probably didn't read and surely barely understood before they voted on it. Furthermore, there was no real political risk to them - no chance that they would lose their seats by attacking Americans abroad, a population little-known and slightly threatening to people in the American homeland. In light of what has happened since it was passed (the citizenship renunciations and the widespread discrimination it has brought to US citizens abroad), it should be repealed, he said, and that's not a liberal versus conservative, or republicans versus democrats issue; it's an American issue. "I will fight until it's done," he assured us, and, "While you can't vote for me, I can vote for you."
Mr. Bopp then took the floor and with quiet precision he laid out the case he is preparing against FATCA and the hated FBAR (renamed the Financial Crimes Enforcement Network Form 114), the latter of which he rightly noted, is based on the assumption that Americans abroad are all tax cheats and simply can't be trusted. FATCA, too, is all about stopping the, as John McCain said, "illegal activities" of the American population abroad. The fines for non-compliance are clearly excessive, he said, and noted one case where an individual caught in the dragnet ended up paying 150% of the value of the non-reported account.
Americans have rights, he noted, under the US Constitution. Government must make an "individualized determination and (have) probable cause" to go after people it believes are violating the law. FATCA and FBAR are nothing more than "fishing expeditions" and while the US IRS does have some leniency in this area, this is "off the scale" and he believes that US courts will strike them down. And all this, he said, to enforce a system of citizenship (not residence)-based taxation which results in "adverse and differential treatment" against Americans abroad.
As for the IGA's (intergovernmental agreements to implements FATCA in foreign countries) there is a serious question about their legitimacy on the US side. Agreements with foreign countries normally require the "advice and consent" of the Senate - something which was not done. Attempts to pass them off as "pre-authorized" or as "sole executive agreements" are questionable because the latter is normally only used for "routine, non-substantive, administrative matters" and it's quite a stretch to consider the FATCA IGAs "routine".
There will be substantial litigation, he said, and a tenacious defense of FATCA. Already, just after the news of the lawsuit and the Republican National Committee resolution against FATCA and for RBT, they were accused of lining up with the "Fat Cats" abroad; Bopp noted jokingly (and a bit ironically) that he was so pleased to have finally met us in person, in this room in Paris this morning.
In answer to one of the first questions asked by the audience about the seriousness of this effort and if we can believe that they will indeed follow through, Bopp replied that he was very serious about it and that his reputation to a certain extent is on the line here. Yes, he said we will carry on regardless of what happens in the mid-term elections. They plan to file the suit 30-60 days after the end of this tour of Europe.
That is the substance of their remarks from my copious notes and I hope I have done them justice here. My personal take on it is that I found them to be entirely credible - non-partisan, thoughtful, clear, and with a surprisingly good understanding of just how bad things have become for America's little-loved communities abroad.
Let's be brutally honest here: we are already in the shallows, and we are losing this fight, folks. All attempts to work within the political arena in the US have come to nothing. All the proposals, from revising the tax code to mitigating FATCA, have not moved forward as far as I can tell. (And, if that's not true, then I invite those who are working on these things to explain in detail where they are right now in their efforts, and if they have made more progress behind the scenes than is apparent to those like me who read their press releases.)
I believe it is past time to go from influencing and educating to asserting what is rightfully ours. The alternatives are so ghastly as to be unthinkable for so many of us: more discrimination, financial ruin, and second-class citizenship - a people with rights that are so eroded that our US citizenship is rendered meaningless in any case, and renouncing becomes the only viable solution to what ails us.
That is where I see us headed if we don't stand up and fight. I honestly think this is the best chance (perhaps the only chance) we have along with the Canadian Charter Challenge. We can continue to be isolated little corks bobbing on the sea at the mercy of the political winds and wishfully hoping that somehow our pleas will move the exalted to be merciful, or we can get in the boat and start rowing with a current that is trying to take us to a better place.
(And I could care less who got to name the damn boat.)
And if we fail?
Well, we will have tried and that is good enough for me.
"There is a tide..."
Senator Lee and James Bopp are asking for support. If you want to make a donation (and I will) you can do so here: FATCA Legal Action. The entity that is collecting this money is a 501(c)(4) organization and the money can only be used for the lawsuit and lobbying against FATCA. For those of you who are concerned that it will be diverted to other causes or to support Republican party efforts in the US, that would be an illegal use of that money and get them in a heap of trouble. So I think we can safely lay those fears to rest.
And if I may, I'd like to ask you to do one more thing: get out your phone book or your email contact list, and tell as many Americans abroad and at home about this effort. Spread the word and the link by all means possible: Facebook, Twitter, email, snail mail, phone calls, skype. If every American abroad reaches just a few people with the news and asking them to, in turn, tell their friends, family and any American organization they belong to locally, we can send this news around the planet, and reach as many people as possible.