Rivera Takes Florida Law Targeting Cuba, Odebrecht to Washington

It's hard to imagine the U.S. embargo of Cuba could possibly get any tighter at this point, right?  Wrong.

First, a quick review of the fifty year-old entanglement of laws, regulations and presidential proclamations all designed to bring down the fifty three year-old Castro regime in Cuba starts with the 1917 Trading with the Enemy Act  - an ironic bill as Cuba was our friend in 1917, but Cuba is now the only country in the world to which the Act still applies.  It also includes several major sanctions upgrades designed to punish Cuba in the wake of the Eastern Bloc collapse two decades ago and create conditions on the island that would lead to regime change there, also to block U.S. companies, including their subsidiaries, from doing business with Cuba, to penalize anyone foreigners that 'traffick' in expropriated Cuban properties, and to dissuade foreign companies from doing business there at all (including, for example, by prohibiting any vessel docking in Cuba from docking in the United States for 180 days).   Such sanctions and more can be found in the 1992 Cuban Democracy Act, the 1996 Helms-Burton Act (known more for its sponsors than for its aspirational title) and the 2000 Trade Sanctions Reform and Export Enhancement Act, which though it legalized heavily regulated cash in advance food and medicine sales to the island, it itched into stone, or public law, the United States' only remaining travel ban, against Cuba (such bans were previously a matter of presidential policy). 

There's more.  So much more that this 44-page report focused on the legal and regulatory framework of the embargo doesn't even cover it all.  Like, efforts that began under the Bush administration and have increased under the Obama administration to prevent Cuba from using or exchanging U.S. dollars in foreign banks (even when those dollars come from American relatives licensed to send them). 

Though there are hundreds of thousands of Cuban Americans who now no longer support the embargo or consider themselves exiles (as evidenced by their frequent trips home to the island), it only takes a couple of well-placed and dedicated lawmakers to buck the trend, and yes, it is possible, further tighten the five decade-old embargo.

One such legislator, Rep. David Rivera, is particularly interesting because he has spent so very much time on Cuba since arriving to the U.S. Congress in 2011.  Since arriving to Congress in January 2011, Rivera has introduced 9 bills, 5 of which focus on Cuba (even if they don't all contain the word 'Cuba').  The various bills focus on the two biggest threats to the ongoing US-Cuba Cold War, the ongoing normalization of Cuban Americans immigrants' dealings with Cuba (excluding, of course, those largely 'historico' generation Cuban Americans who think of themselves as exiles), and deep water oil exploration in Cuba.  But Rep. Rivera is now championing yet another Cuba-related initiative - what I'll call his Odebrecht Amendment, added to the Defense Appropriations Act of 2013 passed out of a House Committee last month - and that could have a far greater impact on U.S. foreign and trade policy beyond U.S.-Cuban relations if it catches on.

For those that aren't already familiar with Rivera's inspiration, earlier this spring, the Florida legislature passed a law to block foreign companies that do business with Cuba and Syria from winning contracts with state or local entities, and it also banned the state's pensions from investing in those companies.  (Having seen the D.C.-based Capitol Hill Cubans website continually pushing for Brazilian contractor Odebrecht, with subs working in Cuba and the United States, to lose its Miami-Dade contracts, the law's passage earlier this spring came as little surprise to me.)  With much fanfare and hardline Cuban American backing, Florida Governor Rick Scott signed the bill.  And then his office released a letter saying the bill wouldn't take affect until Congress passed a law authorizing it.  (Foreign policy is a federal government prerogative; states are not allowed to have their own foreign policies.)  Scott came under immediate fire, of course, and tried to walk back, winning him the mistrust both of the business community and the hardline Cuban exile community.  Enter David Rivera, who after threatening to sue the Governor if his administration fails to enforce the law come July 1, came up with a better idea.  From Rivera's website:

"In a major blow to companies that do business with terrorist nations, the Rivera amendment prohibits the Department of Defense from contracting goods or services from any person or business that does business with a U.S.-designated State Sponsor of Terrorism. The amendment stops the flow of taxpayer dollars to business entities that do business with terrorist states and closes the loophole that allows foreign companies like Repsol to partner with State Sponsors of Terrorism while simultaneously profiting from American taxpayers through their subsidiaries.  Repsol has over $300 million in contracts with the Department of Defense while also partnering with the Cuban dictatorship in oil exploration efforts."

(Repsol was the first of several companies engaged in offshore oil exploration in Cuban waters in the Gulf of Mexico.)

Rivera was either adapting what he saw as a good idea, or trying to help save the Florida law before it gets overturned in the courts as have similar provisions before it  (Governor Scott himself predicted the law would get caught up in litigation, as it now has) by making the Florida law federal policy. 

All of this naturally raises questions around whether and when the United States (or its states) should have the right to discriminate against foreign companies because of whom else they choose to do business with.  Where is the balance between addressing our humanitarian concerns and ensuring that our respomses don't invite unfair discrimination against American companies, a concern raised by President George W. Bush's former Undersecretary of Commerce, Tony Villamil, himself a Cuban American.  The Florida Chamber of Commerce also worries the law may directly impact investment in the state by two key countries, Canada and Brazil, which each have significant ties to Cuba as well. 

What is the definition of a bad actor deserving such treatment and can anyone get it recognized by the World Trade Organization?  Does anyone honestly believe that the basis of Rivera's proposed sanctions, the State Department's list of State Sponsors of Terrorism, to be transparent, complete and credible?   Hitting the terrorists sounds great on paper, until you learn that for more than 15 years, the State Department's rationale for including Cuba on its list has actually read more like a rationale for removing it than for continuing to include it.

The U.S. embargo of Cuba is unquestionably outmoded, ineffective and disproportionate to the grievances the United States has against the island - but no one should expect any of that to deter Rivera in his push to reinforce our failed policy.