Cato Op-Eds

Subscribe to Cato Op-Eds feed
Individual Liberty, Free Markets, and Peace
Updated: 56 min 40 sec ago

Climate Alarmism: When Is This Bozo Going Down?

Wed, 08/27/2014 - 08:38

Patrick J. Michaels and Paul C. "Chip" Knappenberger

Global Science Report is a feature from the Center for the Study of Science, where we highlight one or two important new items in the scientific literature or the popular media. For broader and more technical perspectives, consult our monthly “Current Wisdom.”

—–

Climate alarmism is like one of those pop-up Bozos. No matter how many times you bop it, up it springs. In fact, the only way to stop it, as most kids learn, is to deflate it. In this case, the air inside Bozo is your and my tax money.

Two scientific papers released last week combine for a powerful 1-2 haymaker, but, rest assured, Bozo springs eternal. The first says that human aerosol emissions are not that responsible for offsetting the warming influence of greenhouse gas emissions, while the second finds that the observed warming from human greenhouse gases is less than a lot of people think.

We aren’t at all surprised by the first result.  The cooling effect of sulphate particulates, which go into the air along with carbon dioxide when fossil fuels (mainly coal) are combusted, was only invoked in the mid-1980s, when the lack of warming predicted by computer models was embarrassingly obvious.

This is the kind of thing that the iconic historian of science, Thomas Kuhn, predicted in his classic book, The Structure of Scientific Revolutions. When a scientific “paradigm” is assaulted by reality, increasingly ornate and bizarre explanations are put forth to keep it alive. Sulfates smelled like one of those to us back in the 1980s, and now it looks like the excuses are finally getting comeuppance.

The second result also comes as little news to us, as we have been saying for years that the human carbon dioxide emissions are not the only player in the climate change game.

The two new papers, in combination, mean that the human influence on the climate from the burning of fossil fuels is far less than what the IPCC’s ensemble of climate models says it is. This also goes for the U.S. Global Change Research Program, the EPA ,and the White House.

Rest assured, though, Bozo will rise again—despite a near-continuous barrage of blows supporting the idea that the climate’s sensitivity to human greenhouse gas emissions is far too low to justify any of the expensive and futile actions emanating from Washington and Brussels.

The aerosol paper describes research by a team of Israeli scientists led by Gerald Stanhill (from the ARO Volcani Center) who examined the causes of “solar dimming” and “solar brightening” that have taken place over the past half-century or so. Solar brightening (dimming) refers to multidecadal periods when more (less) solar radiation is reaching the surface of the earth. All else being equal (dangerous words in Science), the earth’s surface would warm during periods of brightening and cool during dimming. Solar dimming has been reported to have taken place from the 1950s through the 1980s and since then there has been a period of recovery (i.e., brightening).  These patterns have been linked by many to human aerosol emissions caused by pernicious economic activity, with heavy emissions leading to global cooling from the 1950s (witness the opaque air of Pittsburgh and London) through the late 1970s and then, as air quality was cleaned up and aerosol emissions declined, an unmasking of the warming impact from greenhouse gas emissions.

This is an essential storyline that might as well have been written by Kuhn. Without invoking the previously undiscovered masking impact of human aerosols, climate models predict that far more global warming should have happened as a result of human greenhouse gas emissions than has been observed, even by the 1980s. Behaving more predictably than the climate, federal climatologists, led by Tom Wigley of the University Corporation for Atmospheric Research (hey, we couldn’t make up the name of that exclusively taxpayer-funded monster), relied on the aerosol “knob” to try to keep climate models from overheating.

Stanhill et al. have bad news for the feds. In their new paper, they examine the records of sunshine duration as recorded at five observation sites with long-term observations. When comparing these sunshine histories with fossil fuel use histories (a proxy for aerosol emissions) from nearby areas, they find very little correspondence. In other words, human aerosol emissions aren’t to blame for much of the solar dimming and brightening.

What may be the cause? Variations in cloud cover.

According to Stanhill and colleagues:

It is concluded that at the sites studied changes in cloud cover rather than anthropogenic aerosols emissions played the major role in determining solar dimming and brightening during the last half century and that there are reasons to suppose that these findings may have wider relevance.

Admittedly, there are only a small number of stations that were being analyzed, but Stanhill et al. have this to say:

This conclusion may be of wider significance than the very small number of sites examined in this study would suggest as the sites sampled Temperate - Maritime, Mediterranean, Continental and Tropical climates,… and covered a wide range of rates of anthropogenic aerosol emission.

The implications are that human aerosols have played a lot smaller role in the global temperature variability of the past 50 years than is generally taken to be the case. And if human aerosols are not responsible for muting the expected temperature rise from greenhouse gas emissions, then it seems that the expected rise is too much. That is, the earth’s temperature is less sensitive to rising greenhouse gas concentrations than forecasted by governmental climate models, and therefore we should expect less warming in the future.

The  second paper, published last week in Science, is yet another study trying to explain the “pause” in the rise of global average surface temperatures.  Using annual data from the University of East Anglia temperature history—the one that scientists consult the most, we are now in our 18th year without a warming trend.

(For a revealing exposé on  how even this data is being jimmied to fit the paradigm, see what just showed up in the most recent Weekend Australian.)

University of Washington’s Xianyao Chen and Ka-Kit Tung found that a naturally occurring change in ocean circulation features in the Atlantic Ocean can act to enhance or suppress the magnitude of heat that is transferred from the surface into the ocean depths. The authors find that this natural cycling was responsible for burying additional heat since the late 1990s while maintaining surface heating during the previous three decades. Coupled with earlier research (Tung and Zhou, 2013), they figure that a substantial portion (~40%) of the rise in the global surface temperatures that has occurred since the mid-20th century was caused by natural variability in the circulation of the Atlantic Ocean. 

The implication here is pretty clear—the role that human greenhouse gas emissions play in the observed warming isn’t what it was cracked up to be.  And, with a little nudge from other variables—like the sun—the quaint myth that “all scientists agree that the majority of warming since 1950 has been caused by human activity” does look more and more like another pop-up Bozo.

Taken together, the two paper combination strikes a haymaker to  the alarmist mantra—that dangerous climate change will result from greenhouse gas emissions. The Stanhill paper suggests that the projected warming wasn’t so masked by sulfate aerosols, and the Chen and Tung paper argues that less of the warming is due to a human influence anyway. This combination—greater warming pressure and less temperature change—means that the IPCC and federal climate models are just way off.

Going forward, we should expect much less human-induced global warming than government-fueled climate models project.

If this refrain sounds familiar, it is because we find ourselves frequently reporting on the subject of the earth’s climate sensitivity (how much warming results for a given input of carbon dioxide).  This issue is the biggest key to understanding anthropogenic climate change, and, because evidence continues to mount that the climate sensitivity is much less than advertised, there will be much more where this came from.

But Bozo, inflated by public monies, will spring eternal.
References

Chen, X., and K-K Tung, 2014. Varying planetary heat sink led to global-warming slowdown and acceleration. Science, 345, 897-903.

Kuhn, T. S., 1962 (and reprints).  The Structure of Scientific Revolutions.  University of Chicago Press„ 174pp.

Stanhill, G., et al., 2014. The cause of solar dimming and brightening at the Earth’s surface during the last half century: evidence from measurements of sunshine duration. Journal of Geophysical Research, doi: 10.1002/2013JD021308

Tung, K-K., and J. Zhou, 2013. Using data to attribute episodes of warming and cooling in instrumental records. Proceedings of the National Academy of Sciences, 110, 2058-2063.

Categories: Policy Institutes

Years After the Recession, Welfare Rolls Hit New Highs

Tue, 08/26/2014 - 11:27

Charles Hughes

New Census data shows that the number of households receiving welfare benefits hit a record high of almost 33.5 million in the fourth quarter of 2012. While part of the surge was due to the recession, the proportion receiving benefits has increased from 25.2 percent to 27.4 percent since the recession officially ended in June 2009. These inflated welfare rolls are not just a temporary response to an economic downturn, and could instead become the new normal. This poses a problem not only for the country as a whole, but for the individuals beneficiaries as well.  These welfare programs could eventually become unaffordable as programs for the elderly take up an increasing share of our budget. At the same time, for a record number of beneficiaries the structure of our current system could actually make it less likely they escape poverty for good.

Of particular concern are the households participating in three or more means-tested non-cash programs, which has also increased significantly, rising from 7.3 percent of all households at the end of the recession to 8.6 percent by the end of 2012. Participation in multiple programs is even more commonplace among families headed by a single mother, similar to the case family we used in The Work versus Welfare Trade-off 2013. In that paper, we found that in some states, the welfare benefits package available could be so generous that it could disincentivize work in some cases. One critique of the paper was that not every low-income household qualified for the programs in our benefit package. This is true, and we acknowledged as much in the paper. We even included a scenario where the family only received benefits from a more limited package. However, this Census data shows that cases like the one we examinedare becoming increasingly common. Almost 44 percent of households headed by a single mother participated in three or more means-tested non-cash programs in 2012, compared to only 38.7 percent when the recession ended.  While the point remains that not every low-income household participates in every welfare program, many do participate in multiple programs, and the proportion has continued to increase years after the recession ended.

These are the people most at risk of becoming caught in a “poverty trap,” in which the very programs intended to help them can actually make if more difficult for them to escape poverty. In these cases, people could find that it is not worth it to enter the workforce or increase their earnings because they face very high effective marginal tax rates. For each additional dollar they earned, they would lose almost as much through the loss of benefits and taxes. A study in the National Tax Journal found that a single parent with two children trying to move from the poverty level to 150 percent of the poverty line faced an average effective marginal tax rate of almost 77 percent. Over that range, these people are keeping less than a quarter of each dollar earned. Through these significant work disincentives, our current system inhibits recipients’ ability to eventually earn enough to transition out of these programs and escape poverty for good.

Some of the recent surge in welfare recipients was due to the economic downturn, but the number of beneficiaries has continued to grow years after the recession ended. More families today are participating in multiple programs, and they are more likely to face a poverty trap. These trends reinforce the need to reform our current welfare system because the status quo is clearly not working. Welfare programs do relieve some of the worst forms of material deprivation, but they have proven costly and ineffective.  In some cases they actually make it harder for people to lift themselves out of poverty. Clearly, it is time for a change.  

Categories: Policy Institutes

Defeat the Islamic State by Allowing Syria and Others to Kill Radicals

Tue, 08/26/2014 - 10:30

Doug Bandow

Administration officials proclaim the Islamic State’s isolated experiment in 7th Century Islam to pose a dire threat to America.  After promising to strictly limit the military mission in Iraq, the president is preparing to expand the war to Syria, where the administration is working to overthrow the Assad government—which now blocks Islamic control over the entire country.  Instead, the administration should encourage other nations, starting with Syria, to kill ISIL radicals.

Iraq is a catastrophic failure.  Yet the Obama administration risks falling into war there again. 

Gen. Martin E. Dempsey, chairman of the Joint Chiefs of Staff, wants to address the Islamic State “on both sides of what is essentially at this point a nonexistent border” between Iraq and Syria. 

However, Washington’s intelligence capabilities in Syria remain limited.  More important, the Obama administration has spent three years attempting to overthrow Syria’s Assad regime, which possesses an air defense system and warned that it would treat any attacks as “aggression.” 

The administration should reconsider its policy in Syria.  As I point out in Forbes online, “The Assad government is even more committed than Washington to eliminating the Islamic State as a geopolitical force.”

Yet America’s support for the opposition has weakened the Assad government’s ability to fight ISIL.  Washington’s preference for less radical groups also has discouraged Damascus from targeting the Islamic State, whose existence inhibits U.S. involvement. 

Reaching a modus vivendi with Damascus would encourage Assad to focus on ISIL.  Assad is no friend of liberty, but Washington must set priorities. 

The administration also should emphasize the responsibility of surrounding states to combat the group.  For instance, Baghdad pursued a narrow sectarian course, crippling politics and the military.  Iraq must reach a broader understanding with Sunnis and Kurds to strengthen internal forces against ISIL. 

Ankara, which claims a position of regional leadership, has much at stake as well.  The group considers Turkish lands to be part of the “caliphate.”  The Islamic State’s attacks on Kurdistan could spur Kurdish refugees into Turkey.

Jordan is far more vulnerable.  The Gulf States are more distant, but Sunni radicals are unlikely to leave the corrupt and licentious Sunni royals in peace. 

These countries might continue their campaign to oust Assad, but they should support groups not dedicated to destabilizing the entire region.  Washington should insist that the Syrian civil war is no excuse for measures which strengthen the Islamic State. 

Equally important, Jordan and Turkey, both on the Islamic State’s hit list, should deploy their air forces and ground forces, if necessary, against ISIL fighters.  Kurdish forces need better and more weapons, which Turkey could provide.  Ankara has improved its ties with Kurdistan in recent years. 

Saudi Arabia and the Gulf States have a different role to play.  As Sunni states they might most usefully delegitimize ISIL’s claim of a new “caliphate.” 

Even Iran can assist, though that might discomfit Washington.  Tehran will support Baghdad’s Shia government irrespective of America’s preferences.

Finally, the Europeans could help provide weapons and training to the Kurds and others. 

The Islamic State is evil.  But its capabilities remain limited. 

Rather than turn ISIL into a military priority and take America into war against the group, Washington should organize an Islamic coalition against the Islamic State.  Even Gen. Dempsey called for a regional effort to “squeeze ISIS from multiple directions,” but that actually requires Washington to do less militarily. 

ISIL’s rise has set in motion the very forces necessary for its defeat.  Rather than hinder creation of a coalition by taking charge militarily, Washington should encourage it by stepping back.  The U.S. already has gone to war twice in Iraq.  There’s no reason to believe that the third time will be the charm. 

Categories: Policy Institutes

When a Hamburger Becomes a Doughnut and Other Lessons About Tax Inversions and Globalization

Mon, 08/25/2014 - 12:40

Daniel J. Ikenson

So Burger King plans to purchase Canadian doughnut icon Tim Hortons and move company headquarters north of the border, where corporate tax rates are as much as 15 percentage points lower than in the United States.  Expect politicians at both ends of Pennsylvania Avenue to accuse Burger King of treachery, while spewing campaign-season pledges to penalize these greedy, “Benedict Arnold” companies.   If the acquisition comes to fruition and ultimately involves a corporate “inversion,” consider it not a problem, but a symptom of a problem. The real problem is that U.S. policymakers inadequately grasp that we live in a globalized economy, where capital is mobile and products and services can be produced and delivered almost anywhere in the world, and where value is created by efficiently combining inputs and processes from multiple countries.  Globalization means that public policies are on trial and that policymakers have to get off their duffs and compete with most every other country in the world to attract investment, which flows to the jurisdictions where it is most productive and, crucially, most welcome to be put to productive use.   Too many policymakers still believe that since the United States is the world’s largest market, U.S.-headquartered companies are tethered to the U.S. economy and committed to investing, hiring, and producing in the United States, regardless of the quality of the business and policy environments. They fail to appreciate how quickly the demographics are changing or that a growing number of currently U.S.-based companies do not share their view. Perhaps too many are unaware of how the United States continues to slide in the various global rankings of attributes that attract business and investment. The leverage politicians have over America’s corporate wealth creators has diminished.

  Like most U.S.-based multinational corporations that face tax rates of 35 percent on profits repatriated from abroad, Apple devotes resources to navigating the maze of rules to minimize its tax burdens. Last year, Senators Carl Levin (D-MI) and John McCain (R-AZ) ripped into Apple CEO Tim Cook for his company’s efforts to reduce its taxes. Levin said:  Apple sought the Holy Grail of tax avoidance. It has created offshore entities holding tens of billions of dollars, while claiming to be tax resident nowhere. We intend to highlight that gimmick and other Apple offshore tax avoidance tactics so that American working families who pay their share of taxes understand how offshore tax loopholes raise their tax burden, add to the federal deficit and ought to be closed. Unlike foreign-based multinationals whose governments don’t tax their profits earned abroad (or do so very lightly), U.S. multinationals are subject to double taxation—first at local tax rates in the foreign countries where they operate and then by the IRS, at up to 35 percent, when profits are brought home. Is it a surprise that such a system discourages profit repatriation? Who’s to blame for depriving the U.S. economy of working capital and encouraging elaborate – but legal – tax avoidance schemes?   Sen. McCain at least acknowledges the faults and disincentives of the system, but then blames Apple for pursuing the interests of its shareholders anyway: I have long advocated for modernizing our broken and uncompetitive tax code, but that cannot and must not be an excuse for turning a blind eye to the highly questionable tax strategies that corporations like Apple use to avoid paying taxes in America. The proper place for the bulk of Apple’s creative energy ought to go into its innovative products and services, not in its tax department. Senators Levin, McCain, and others who prefer to strong-arm U.S. wealth creators should consider carrots instead of sticks. The United States is competing with the rest of the world to attract investment in domestic value-added activities. Companies looking to build or buy production facilities, research centers, biotechnology laboratories, hotels, or burger and doughnut joints consider a multitude of factors, including size of the market, access to appropriately skilled workers and essential material inputs, ease of customs procedures, the reliability of transportation infrastructure, legal and business transparency, and the burdens of regulatory compliance and taxes, to name a few. The capacity of the United States to continue to be a magnet for both foreign and domestic investment is largely a function of its advantages with respect to these considerations. As I noted in a paper on this subject last year: Unlike ever before, the world’s producers have a wealth of options when it comes to where and how they organize product development, production, assembly, distribution, and other functions on the continuum from product conception to consumption. As businesses look to the most productive combinations of labor and capital, to the most efficient production processes, and to the best ways of getting products and services to market, perceptions about the business environment can be determinative. In a global economy, “offshoring” is an inevitable consequence of competition. And policy improvement should be the broad, beneficial result. Combine the current tax incentive structure with stifling and redundant environmental, financial, and health and safety regulations, an out-of-control tort system that often starts with a presumption of corporate malfeasance, exploding health care costs, and costly worker’s compensation rules,  the reasons more and more businesses would consider moving operations abroad permanently become obvious. Thanks to the progressive trends of globalization, liberalization, transportation, and communication, societies’ producers are no longer quite as captive to confiscatory or otherwise suffocating domestic policies. They have choices.   Of course, many choose to stay, and for good reason. We are fortunate to still have the institutions, the rule of law, deep and diversified capital markets, excellent research universities, a highly skilled workforce, cultural diversity, and a society that not only tolerates but encourages dissent, and the world’s largest consumer market. Success is more likely to be achieved in an environment with those advantages. They are the ingredients of our ingenuity, our innovativeness, our willingness to take risks as entrepreneurs, and our economic success.   But those advantages are eroding. According to several reputable business-perception indices, the United States has slipped considerably over the past decade in a variety of areas that directly impact investment decisions. (See “What Really Drives the Investment Decision” begininng on page 15.) Out of 142 countries assessed in the World Economic Forum’s Global Competitiveness Index, the United States ranks 24th on the quality of total infrastructure; 50th on perceptions that crony capitalism is a problem; 58th on the burden of government regulations; 58th on customs procedures; and 63rd on the extent and effect of taxation. Meanwhile, uncertainty over energy, immigration, trade, tax, and regulatory policies continues to deter investment and even encourages companies to offshore operations that might otherwise be performed in the United States.   Rather than begrudge Burger King or Apple or any other profit-maximizing company for its rational business decisions, policymakers should repair the incentives that drive capital away from the United States.  
Categories: Policy Institutes

Coping with the Legacy of Arab Socialism

Mon, 08/25/2014 - 10:04

Dalibor Rohac

Countries of the Arab Spring suffer from many economic, social, and political ills. At their center lies the unfortunate legacy of Arab Socialism, which established itself in the region during the 1950s and 1960s. One of its features, besides the ideology of Pan-Arabism and international ‘non-alignment,’ was an emphasis on government ownership and industrial planning. Far from generating prosperity and economic growth, these policies resulted in large, vastly inefficient government-operated sectors in several Arab economies. My new Cato Policy Analysis provides a sense of the magnitude of the problem and of its evolution over time:

In Egypt, for example, the share of government investment fell from around 85 percent in the late 1990s to below 40 percent in 2012. Over the same period of time, the share of government investment in Algeria doubled, from around 30 percent to above 60 percent. Throughout much of the same period, the average for lower-middle-income countries hovered under 30 percent.

Some Arab governments, most prominently Hosni Mubarak’s regime in Egypt, attempted to put in place large-scale privatization programs. However, these were perceived (and rightly so!) as attempts by the political elites and their cronies to simply seize publicly owned assets, without much regard for the future restructuring of the companies and their exposure to competition. My paper reviews the experience of privatization in other countries and tries to provide some practical lessons to policymakers in countries such as Egypt or Algeria.

First and foremost, privatization needs to be perceived as fair and transparent. Bidding should be competitive and open to a large spectrum of potential bidders, domestic and foreign. Second, private ownership of the financial sector is a requisite for successful privatization and restructuring of the rest of the economy–otherwise Arab countries risk creating a dangerous nexus of cronyism through which the state-owned banks and financial institutions would provide funding to newly privatized companies. Third, in order to avoid the danger of simply replacing government-run monopolies with privately-run ones, privatization should be far-reaching and accompanied by broad economic liberalization and opening up both to trade and investment.

Privatization is not very high on the agenda of Arab policymakers or foreign experts, and is typically eclipsed by the more immediate political concerns about the region. It is not, however, an issue that can be simply ignored.

It is a mistake to think that economic reforms can wait until Middle Eastern countries address their internal political and economic problems. There are not many examples of countries that have transitioned successfully to a representative constitutional government while maintaining economic rules that deny opportunity to large segments of the population. State ownership, accompanied by regulations that favor existing state-owned incumbents, are a critical part of the problem facing countries in the MENA region, most notably Egypt, Libya, Algeria, Syria, and Yemen

Categories: Policy Institutes

The Threat of Poorly Performing Vacuum Cleaners

Mon, 08/25/2014 - 08:47

Simon Lester

I don’t follow domestic regulation as closely as many people at Cato, but I keep an eye on it in relation to “regulatory trade barriers” that are being addressed in trade negotiations. In that context, I came accross this EU attempt to crack down on high-wattage vacuum cleaners:

Consumers are being urged to buy powerful vacuum cleaners while they can after it emerged that some of the most powerful models on the market will disappear in September when a new EU rule comes into force.

An EU energy label, to be introduced from 1 September, means manufacturers will not be able to make or import vacuum cleaners with a motor that exceeds 1,600 watts.

European commission spokeswoman for energy Marlene Holzner said in a blog: “As a result of the new EU eco-design and labelling regulations, consumers will also get better vacuum cleaners. In the past, there was no legislation on vacuum cleaners and companies could sell poorly performing vacuum cleaners.”

Oh, the humanity! Companies might sell “poorly performing vacuum cleaners” to an unsuspecting public! And only legislation can save the day!

Or – and I know this might sound crazy to some people – we could just rely on consumers to evaluate the vacuum cleaners, buying the better ones and leaving the “poorly peforming” ones on the shelf.

Categories: Policy Institutes

How the British Burned Washington

Sun, 08/24/2014 - 17:08

David Boaz

The British burned Washington 200 years ago today. In the Washington Post Joel Achenbach, with help from Steve Vogel, author of Through the Perilous Fight, tells how the day went, including this description of how thorough and careful the British were:

The British knew how to build a bonfire. You just stacked the furniture, sprinkled it with gunpowder and put a torch to it.

They built multiple fires inside the Capitol, immolating the Supreme Court, the Library of Congress and the splendid chambers of the House and Senate.

Later in the evening, Ross and Cockburn made their way to the White House and helped themselves, amid hearty toasts, to the fabulous meal and adult beverages left by Mrs. Madison and her staff. They took a few souvenirs, and one filthy lieutenant ventured into the president’s dressing room and put on one of the president’s clean linen shirts.

Then they set the fires. Up in flames went some of the most beautiful furniture in the country, including pieces obtained by Jefferson in Paris and the private possessions of the Madisons. The fires left the mansion a gutted, smoldering shell.

The British also burned the Treasury building, and the building housing the War and State departments. They ransacked the National Intelligencer newspaper office, with Cockburn ordering the seizure of all the letter C’s from the presses so that the editor could no longer write nasty things about him. The Americans themselves burned the Navy Yard to keep the ships and stores out of British hands. 

The invaders spared private dwellings. This was to be a civilized sacking; no rapes, no murders, minimal plundering. They even spared the Patent Office after being persuaded that patents were private property.

 One would hate to think that the British army was more respectful of private property rights than the current U.S. government.

 

 

 

Categories: Policy Institutes

The First Amendment Protects Random Ugly Rap Lyrics

Fri, 08/22/2014 - 16:33

Ilya Shapiro

To ensure that public discussion remains “uninhibited, robust, and wide-open,” the First Amendment protects speech that is “vituperative, abusive, and inexact.” While nobody will argue that Anthony Elonis’s speech—the subject of a Supreme Court case this coming term—was anything but “vituperative, abusive, and inexact,” there is considerable disagreement over whether his speech should be protected by the First Amendment. 

Elonis’s chosen form of speech was a series of rap lyrics he posted on Facebook under the pseudonym “Tone Dougie.” Many of the lyrics were violent and lurid, and some of those violent images were made in reference to Elonis’s estranged wife, who took them as a threat to her life. As a result of his crude posts, Elonis was fired, his wife obtained a protective order against him, and he was arrested and charged with violating 18 U.S.C. § 875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat to injure the person of another.”

Elonis argued that his rap lyrics were an artistic expression and that because he did not intend them to be a threat, his speech should be protected. The federal district court hearing his case didn’t see it that way. The judge rejected his request that the jury be instructed to consider his actions based on whether he expressed a subjective intent to threaten and instead instructed the jury to judge his speech based on whether a reasonable person would have interpreted the lyrics as a serious expression of intent to inflict bodily injury. Elonis was thus convicted and the U.S. Court of Appeals for the Third Circuit also rejected his argument that a subjective intent to threaten is required before speech loses First Amendment protection.

Now before the Supreme Court, Cato has joined the American Civil Liberties Union, the Abrams Institute for Freedom of Expression at Yale Law School, the Center for Democracy & Technology, and the National Coalition Against Censorship on a brief supporting Elonis’s position. We argue that Supreme Court precedent shows that (1) a subjective intent to threaten is an essential element of a “true threat,” (2) requiring a finding of subjective intent is in line with First Amendment principles, and (3) drawing the line between threat and protected speech carefully is particularly important given the rise of the Internet as a forum of communication—one where it can be easy to take things out of context.

As a matter of most people’s taste, the Internet may well be better off without violent rap lyrics like Anthony Elonis’s. But that shouldn’t matter to this case or how it’s analyzed under the First Amendment, which requires a high standard of proof regarding incitement or threats of violence before individuals can be jailed for their speech. The Supreme Court should take this opportunity to speak that truth freely across all mediums.

Elonis v. United States will be argued at the Supreme Court in November or December.

This blogpost was co-authored by Cato legal associate Julio Colomba.

Categories: Policy Institutes

The Interventionist Bias (on Both the Left and Right)

Fri, 08/22/2014 - 14:32

Christopher A. Preble

Over at Reason today, I have more to say (beyond here and here) about recent goings on in Iraq and Syria, and the debate over what, if anything, the United States might have done, or might do now, to change things.

As I note:

some commentators insist that the current chaos is a direct result of President Obama’s reluctance to intervene decisively in the multi-year conflicts in Iraq and Syria. Most notably, Obama’s own former Secretary of State, Hillary Clinton, in an interview with The Atlantic’s Jeffrey Goldberg, suggested that Obama’s failure to aid the Syrian rebels led to the rise of [the Islamic State in Iraq and the Levant (ISIL).

Clinton claims “that the failure to help build up a credible fighting force of the people who were the originators of the protests against Assad … left a big vacuum, which the jihadists have now filled.” Inherent in that statement is the belief that there was a cadre of relatively liberal-minded opponents of Bashar al-Assad’s regime inside of Syria, and that American support would have been the decisive factor in ensuring that they would triumph over both Assad and the ISIL extremists. By this logic, if the United States had chosen to arm the “correct” anti-Assad rebels in Syria, we would not now be bombing ISIL in Iraq.

But experts, including George Washington University’s Marc Lynch, aren’t so sure. Others question how “moderate” some of the so-called moderates really are. Indeed, many so-called moderates, in turns out, are just “Caliphate, later” people. That is, unlike their “Caliphate, now” brethren, they are willing to use U.S. support to overthrow Assad. Once his regime is defeated, however, many will fight to implement an extremist government, one that is likely to be a thorn in the side of their regional neighbors, as well as the United States. That explains, in part, why we are now fighting in Iraq at least some of the people who we trained in Syria, And yet, the interventionist bias—do something—remains pervasive inside the Washington Beltway.

Ironically, many of the same people who are skeptical of government intervention to deal with domestic problems seem to believe that that same government can somehow cure the ills of other nations. This cognitive dissonance reflects what Michael Munger calls a “unicorn” government: “a State that has the properties, motivations, knowledge, and abilities that they can imagine for it.”

Even if the advocates for U.S. military intervention—on both the left and the right—find that magical, mystical state, they must also show that the problem in question can’t be handled by others, or by nonmilitary means. Just because we have the ability to do something doesn’t mean that we should, or must, do it, nor does it mean that military intervention would improve the situation.

Here, again, some on the right have departed dramatically from their intellectual forefathers who advised that “masterly inactivity” is often preferable to action for action’s sake. Calvin Coolidge advised against the impulse to preemptively deal with any possible problem, no matter how distant. “If you see ten troubles coming down the road, you can be sure that nine will run into the ditch before they reach you and you have to battle with only one of them.”

This is particularly sage advice for the United States, a nation with blessed geography and great wealth, and one that has a robust nuclear arsenal and an unrivaled military that is sufficient to deter any nation wishing to attack us directly. Thus the burden of proof for U.S. military intervention should fall on those making the case for action, not those advising against.

So far at least, that doesn’t seem to be the case. The interventionists are still winning.

Categories: Policy Institutes

Don't Blame School Choice for Philly's School Funding Fiasco

Fri, 08/22/2014 - 09:53

Jason Bedrick

Philadelphia’s government schools are in the midst of a financial crisis and anti–school choice activists think they found the perfect scapegoat.

Earlier this week, the group Americans United (AU) attacked Pennsylvania’s scholarship tax credit program, claiming that it was partially responsible for Philadelphia’s budget woes.

For the second year in a row Philadelphia’s public schools are struggling to open on time, and it appears deep budget cuts—including money siphoned for a voucher-like program—are to blame. … That’s why it’s important to remember that when voucher [sic] programs expand, it often comes at the expense of public schools.

Curiously, in a post of more than 650 words about Philly’s school funding fiasco, the AU blogger could not find space to mention how much Philadelphia actually spends per pupil. Perhaps that’s because citizens are far less sympathetic to claims of school underfunding when they learn how much is already being spent. Consistent with previous studies, a recent Education Next survey found that support for increasing government school spending dropped from 63% to 43% when respondents were first told how much the schools currently spend.

Philadelphia’s schools are well-funded compared to the national and state averages. As Andrew J. Coulson observed last September, the Philly school district spent nearly $16,000 per pupil in 2013-14, which is about $3,000 above the national average and about $1,000 more than Pennsylvania’s statewide average. It’s even $1,600 more than in-state tuition at Temple University. The $32 million budget cut that AU laments is only about 1% of the city’s $3.03 billion budget (p. 54). Moreover, that “cut” came entirely from temporary stimulus funds that had expired.

The AU blogger also does not offer an explanation for how the Educational Improvement Tax Credit (EITC) supposedly harms government schools. The EITC grants tax credits worth 75% to 90% of corporate donations to nonprofit scholarship organizations that help low- and middle-income families select the schools of their choice. The scholarships averaged only $990 in 2011-12, which is barely 6% of Philadelphia’s per pupil expenditures. Scholarship organizations can use up to 20% of the donations they receive for administrative purposes, so even assuming that every organization used the maximum administrative allowance (though a 2010 state report [p. 33] put the average at 8%), that’s still only $1,237.5 per pupil. Even assuming that every donor received the maximum 90% credit, the EITC reduces revenue by only $1,113.75 per pupil, which is still only about 7% of what Philly spends per pupil.

A 2014 report by the Show-Me Institute estimated that if every scholarship recipient were to re-enter the government school system, it would cost Pennsylvania an additional $826 million per year. If all 59,218 scholarship recipients would have attended private school anyway, then the state is forgoing about $66 million in revenue under the extremely conservative assumptions above. However, given that the average scholarship family’s annual income is only $29,000 (p. 31), the actual number of students who would have attended private school anyway is likely quite low—certainly far lower than 93%, which is the breakeven point. 

In other words, the EITC saves a significant amount of money statewide. The AU needs to find another scapegoat.

They also need to find a new champion—though they railed against Gov. Tom Corbett for supporting the EITC, his electoral opponent Tom Wolf supports it as well, calling it “an effective tool to invest in education and support student learning in a multitude of educational settings.”

So what’s driving Philly’s budget woes? The same growth mismanagement plaguing Pennsylvania statewide:

Pennsylvania public school spending has rapidly increased despite declining enrollment, with little growth in academic achievement to show for it. Since the 2000-01 school year, public school spending has risen 71 percent, from $15.3 billion to $26.1 billion (not adjusted for inflation) in the 2010-11 school year. Over that time, enrollment in Pennsylvania public schools declined by 1 percent, or 22,537 students (from 1,799,691 to 1,777,154), while schools have hired an additional 32,937 more employees, or an increase of 26 percent (from 123,231 to 156,168).

Philly is also spending a lot more on many fewer students. A new Commonwealth Foundation report shows that the Philadelphia school district’s per pupil expenditures increased 21% in inflation-adjusted dollars from 2002-03 to 2012-13, while enrollment fell 25% over the same time period.

Had Philadelphia’s spending merely kept pace with inflation, it would be spending half a billion dollars less today. That would be enough to give all 137,674 students in Philadelphia’s government schools a scholarship of $3,632 to attend the school of their choice, more than 3.5 times the average EITC scholarship. Plus, there would be $2.5 billion left over to run empty schools.

Categories: Policy Institutes

Congress Gets Unlimited Power Because Slavery?

Thu, 08/21/2014 - 14:32

Ilya Shapiro

After engaging in a racially motivated street fight with a black man, Charles Cannon found himself facing—as expected—assault charges and a sentencing enhancement to penalize him further under Texas’s hate crime law. To federal prosecutors, however, this was not good enough, so they charged Cannon under the federal Hate Crimes Prevention Act (HCPA). You see, they had to make a federal case out of a fistfight to stop the return of slavery.

If that sounds odd, it probably should. The HCPA was passed pursuant to Section 2 of the Thirteenth Amendment, which authorizes Congress to enforce the Thirteenth Amendment ban on slavery, which authority the Supreme Court has extended to eliminating the “badges and incidents” of slavery. Defining these “badges and incidents” is naturally left up to Congress, and Congress has determined that racially motivated violence fits into that ever-expanding category. Cannon challenged his HCPA charges, but the federal district and appeals courts upheld the HCPA’s constitutionality, deferring to Congress’s power to “rationally determine” what the badges and incidents of slavery entail.

In petitioning the Supreme Court for review, Cannon argues that the HCPA intrudes on the states’ police power to prosecute local crimes and that Congress can’t be the judge of the limits of its own powers, whether under the Thirteenth Amendment or otherwise. Joined by the Reason Foundation and the Individual Rights Foundation, Cato has filed a brief supporting Cannon’s petition. We argue that the use of hate-crime laws to sweep local criminal activity into federal court has nothing to do with stamping out slavery and that the Court should decide the legitimacy of these laws before a more highly politicized case comes along—Ferguson, anyone?—and makes that task even harder.

Not only are federal hate crime laws constitutionally unsound, but, as George Zimmerman’s trial over the death of Trayvon Martin highlighted, they invite people dissatisfied with a state court outcome to demand that the federal government retry unpopular defendants. Giving Congress unlimited power and impairing the fundamental right to be free from double prosecution are too high and too immediate a price to pay to combat the phantom menace of slavery’s return to the United States.

The Supreme Court will decide this fall whether to take Cannon v. United States. For more on the case, see this description and brief on behalf of two members of the U.S. Civil Rights Commission.

This blogpost, as well as Cato’s brief, was co-authored by legal associate Julio Colomba.

Categories: Policy Institutes

L.A. Considers Giving Away Lottery Tickets To Encourage Voting

Thu, 08/21/2014 - 14:24

Walter Olson

Concerned about low voter turnout, the Los Angeles Ethics Commission has floated the idea of using “financial incentives, such as a lottery system” to lure the apathetic to the polls. The Los Angeles Times has the details, while columnist Debra Saunders weighs in with critical commentary here and here.  From Saunders’s second post:

Total prize money is expected to be $100,000, or 1 percent of the $10 mil Los Angeles spent on public financing last year. … While the commission was thinking of giving away 100 $1,000 prizes, [City Councilman Herb] Wesson suggested that the panel consider a bigger takeaway – say a $50,000 prize, and two for $25,000. The measure hasn’t even made it to a City Council vote, and already politicians are trying to figure out how to fatten the prize.

Lottery tickets, paying off in other people’s money, as a reward for voting. That’s a perfect metaphor for the political process, isn’t it?

Categories: Policy Institutes

Would Linda Greenhouse Apply the Same Interpretive Method She Uses in Halbig to Habeas Corpus Cases?

Thu, 08/21/2014 - 10:32

Michael F. Cannon

Yale law professor Linda Greenhouse is a former New York Times Supreme Court correspondent and now writes a legal column for the Times. Today, she writes about Halbig v. Burwell. For my latest on Halbig and similar cases, see here. Now Greenhouse, who argues these cases are just about gutting the Patient Protection and Affordable Care Act: 

To be clear, I’m not suggesting that there is anything wrong with turning to the courts to achieve what politics won’t deliver; we all know that litigation is politics by other means. (Think school desegregation. Think reproductive rights. Think, perhaps, same-sex marriage.) Nor is the creativity and determination of the Affordable Care Act’s opponents any great revelation — not after they came within a hairsbreadth of getting the law’s individual mandate thrown out on a constitutional theory that would have been laughed out of court not too many years ago.

Boy, are they ever determined.

I accept the compliment, with one proviso. The stakes in the Halbig cases are much bigger than the PPACA. The IRS is subjecting those plaintiffs to taxes from which, as Greenhouse implicitly admits, the operative language of the statute would exempt them. The plaintiffs have a right not to be taxed unless Congress expressly grants the IRS that power. A federal judge whom Greenhouse respects (Thomas Griffith) surveyed the IRS’s rationales for subjecting tens of millions of Americans to those taxes, found those rationales to be meritless, and essentially ruled that the IRS is violating the law on a massive scale. If preventing the executive branch from exceeding its lawful powers is just “politics by other means,” then so are the habeas corpus cases Greenhouse approvingly cites.

Unfortunately, when Greenhouse takes the government’s side in Halbig, it seems to be on the basis that, “Of course there are ambiguities and inconsistencies in a 900-page bill that never went to a conference committee for a final stitching together of its many provisions.” That probably is true, but it does not follow that the statute is ambiguous or inconsistent with regard to the question presented in Halbig. The government certainly has asserted such ambiguities and inconsistencies exist. Yet a closer look at the government’s arguments shows that the specific provisions it cites are all quite consistent with the language authorizing subsidies only to those who buy coverage “through an Exchange established by the State.”

Greenhouse also commits an error as well as her own inconsistency. She claims the phrase “through an Exchange established by the State” appears only once in the subsidy-eligibility rules. In fact, it appears explicity twice: one mention appeared in the first draft of those rules; Senate Democrats added the second just before final Senate passage (which all by itself suggests they knew exactly what they were doing). Moreover, that phrase appears seven more times by cross-reference. And the subsidy-eligibility rules do not use any other language – at all – to describe the Exchanges through which the law authorizes subsidies. All of which evince a clear meaning and purpose: to offer subsidies only in states that comply with Congress’ desire that they should establish Exchanges. 

Greenhouse’s inconsistency occurs when she (incorrectly) claims, “the two [Halbig] judges trained a laser focus on a single section, indeed on a single word, in the massive statute…ignor[ing] the broader context, in which Congress clearly intended to make insurance affordable[.]” The habeas corpus cases with which Greenhouse apparently agrees also focused on a single phrase – one could argue, a single word – in the Constitution. Would she criticize those cases for failing to uphold the overarching purpose of the Constitution – which appears right there in the preamble – to “insure domestic Tranquillity” and “provide for the common defense”?

I wrote Greenhouse to thank her for her column, which was far more respectful and gracious than many Halbig critics have been. I thought it might be fruitful to offer to debate these cases with her. She respectfully declined, but noted there is a movement afoot to bring my coauthor Jonathan Adler to New Haven for that purpose. Watch this space for development.

Categories: Policy Institutes

Petty Offenses and Police-Community Relations in Ferguson

Wed, 08/20/2014 - 13:38

Walter Olson

Reading through this Newsweek article on the troubled relations between police and residents in Ferguson, Mo. before this month’s blowup, this passage jumped out at me: 

“Despite Ferguson’s relative poverty, fines and court fees comprise the second largest source of revenue for the city, a total of 2,635,400,” according to the ArchCity Defenders report. And in 2013, the Ferguson Municipal Court issued 24,532 arrest warrants and 12,018 cases, “or about 3 warrants and 1.5 cases per household.”

My first reaction – maybe yours too – was “is that a misprint?” Three arrest warrants per household in Ferguson last year?  

Now let’s stipulate that some of those warrants were written against out-of-towners, especially in matters arising from traffic offenses, tickets being a key revenue source for many municipalities in St. Louis’s North County. Yet here’s a second statistic some will find surprising: while reported property-crime rates in Ferguson have run well above the national average for years, violent-crime rates have not. After a high period that lasted through 2008, they have declined steadily to a point where last year Ferguson had about the same rate of violent crime as the nation generally. 

What seems clear at this point is that Ferguson – while in some ways a nicer and safer town than some have imagined – does suffer from a unusual degree of antagonism between police and residents, an antagonism that crucially involves race (the town is an extreme outlier in its now-famous extent of black underrepresentation in elected office) and yet has other vital dimensions as well. The town gets nearly a quarter of its municipal revenue from court fees – the figure in some neighboring towns is even higher – and according to the ArchCity Defenders report quoted in Newsweek, Ferguson’s municipal court is among the very worst in the way it adds its own hassle factor to the collection of petty fines:

ArchCity Defenders, which has tracked ticketing of St. Louis area residents for five years and focused primarily on vehicle violations, started a court-watching program because so many of its clients complained of traffic prosecution wreaking havoc on their lives. Defendants routinely alleged that a racially-motivated traffic stop led to their being jailed due to inability to pay traffic fines, which in turn prompted people to “los[e] jobs and housing as a result of the incarceration.” … One resident quoted in the study said, “It’s ridiculous how these small municipalities make their lifeline off the blood of the people who drive through the area.”

Racial antagonism between residents and law enforcement is bad no matter what, but it’s worse when residents wind up interacting constantly with law enforcement because of a culture of petty fines. (If you doubt that law enforcement in Ferguson has been touched by a culture of petty fines, read this Daily Beast account of how the town sought to charge a jail inmate for property damage for bleeding on its officers’ uniforms – even though the altercation with jailers arose after the town had picked up the wrong guy on a warrant issued on a common name.)

In recent years scholars and journalists have been developing a literature on how petty fines and low-level law enforcement can snowball into life-changing consequences for persons not by nature inclined toward criminality – recent entries include On the Run: Fugitive Life in an American City by Alice Goffman (“web of warrants”) and The New Jim Crow by Michelle Alexander (“a devastating account of a legal system doing its job perfectly well”). Libertarians have participated actively in this literature, especially through the work of Radley Balko, and in June I brought together some links from Cato and Overlawyered in connection with a Cato podcast.

It seems so random and meaningless that a legal offense as minor as walking on the roadway would set in motion what was to prove the fatal confrontation between officer Darren Wilson and Michael Brown. But in the wider scheme of how Ferguson came to have its problem with policing, it may be neither random nor meaningless. 

Categories: Policy Institutes

What If We Applied the IRS's Reasoning in Halbig & King to the Patriot Act or RFRA, Instead of the ACA?

Wed, 08/20/2014 - 12:31

Michael F. Cannon

Over at Darwin’s Fool, I posted a critique of the Fourth Circuit’s opinion in King v. Burwell. Unlike the D.C. Circuit’s ruling in Halbig v. Burwell, the Fourth Circuit held that the IRS has the authority to issue subsidies in states with federal exchanges, despite the fact that the Patient Protection and Affordable Care Act repeatedly says subsidy recipients must enroll in coverage “through an Exchange established by the State.” I reproduce here my response to a commenter to that post, as his argument parallels those of many others who have been critical of the Obamacare challenges.

My commenter objected that a plain-text reading “must include the entire text of the bill,” which “makes clear that the goal of the bill was to provide health care to all Americans who needed it and could not, at that time get it.” Moreover, “It would be illogical for Congress to establish a national health care system that is based on subsidies and then not include those subsidies in all aspects,” thus “it is entirely reasonable to interpret that one sentence to mean that Congress intended the subsidies for all participants.” My reply:

Sir, I’m afraid you have things exactly backward.

The overall context of the PPACA presents no difficulty for the plaintiffs in King v. Burwell, Halbig v. Burwell, or the other cases challenging subsidies in federal exchanges. The text of the eligibility rules for those subsidies clearly and repeatedly limit eligibility to those who enroll in coverage “through an Exchange established by the State.” There is nothing in the broader context of the statute to suggest that Congress understood the words “established by the State” to have any meaning other than their usual meaning. There isn’t even any statutory language that conflicts with that plain meaning. Jonathan Adler and I addressed (almost) all of these supposed anomalies here.

On the contrary, it is the Obama administration and its supporters for whom both the text and context present difficulties. (We can no longer call them supporters of the PPACA, given how adamantly opposed they are to implementing the law as Congress intended.) The subsidy-eligibility rules are the only place where Congress spoke directly to the question at issue. Those rules flatly contradict the administration’s position. Congress did not throw the phrase “established by the State” around loosely. They referred to exchanges “established by the State” when they meant exchanges established by the states. They referred generically to “an Exchange” when they meant either a state-established or a federal exchange. And they referred to state-established and federally established exchanges separately within a single provision, which shows they saw a difference between the two. Congress also did the exact same thing – withholding subsidies from residents of uncooperative states – in the PPACA’s other massive new entitlement program, the Medicaid expansion." title="<--break-->">

I somehow doubt you or anyone who supports the PPACA’s overarching goal would be comfortable with federal courts adopting a rule that a statute’s purpose should trump the precise means Congress chose to advance that purpose. The PATRIOT Act’s ostensible purpose was to protect Americans from terrorism. Should the president be allowed to do whatever advances that goal, even if his actions exceed the limits Congress placed on the powers created by that statute? The purpose of the Religious Freedom Restoration Act is to protect the freedoms of conscience and exercise of religion. Does that mean courts should interpret the RFRA to allow anyone with a religious objection to opt out of not just the PPACA’s individual mandate, but the statute in its entirety? Should courts allow those with religious objections to opt out of paying taxes?

The problem with your method of statutory interpretation is that Congress never legislates with only one purpose in mind. If it did, then the Occupation Safety and Health Act of 1970 would have devoted 100 percent of U.S. GDP, and conscripted every U.S. resident, to the cause of occupational safety and health – for exactly two days, at which point the Clean Air Act of 1970 would have devoted the nation’s entire stock of human, financial, and physical capital to the cause of clean air. When Congress enacted the PPACA, its purposes included subsidizing health insurance, having states establish and operate exchanges, and using the former as an inducement to the latter. Your recommendation that the executive and the judiciary should vitiate the clear, repeated, and uncontradicted terms of the statute in the name of just one of the legislative branch’s purposes would ironically frustrate Congress’ purpose, not advance it.

Lots more on KingHalbig, and other cases challenging those illegal subsidies, etc., here.

Categories: Policy Institutes

IPAB Case Coons v. Geithner Dismissed, for Now

Wed, 08/20/2014 - 10:46

Michael F. Cannon

Jonathan Adler has a summary at the Volokh Conspiracy.

The Patient Protection and Affordable Care Act’s Independent Payment Advisory Board has been called a “death panel,” though I’ve argued one could just as legitimately call it a “life panel.” Either way, it is the most absurdly unconstitutional part of the PPACA.

Adler’s otherwise excellent summary neglects to mention IPAB’s most unconstitutional feature. Diane Cohen and I describe it here:

The Act requires the Secretary of Health and Human Services to implement [IPAB’s] legislative proposals without regard for congressional or presidential approval. Congress may only stop IPAB from issuing self-executing legislative proposals if three-fifths of all sworn members of Congress pass a joint resolution to dissolve IPAB during a short window in 2017. Even then, IPAB’s enabling statute dictates the terms of its own repeal, and it continues to grant IPAB the power to legislate for six months after Congress repeals it. If Congress fails to repeal IPAB through this process, then Congress can never again alter or reject IPAB’s proposals…

Congress may amend or reject IPAB proposals, subject to stringent limitations, but only from 2015 through 2019. If Congress fails to repeal IPAB in 2017, then after 2019, IPAB may legislate without any congressional interference.

Like I said, absurdly unconstitutional. But that’s ObamaCare for you.

Categories: Policy Institutes

The Size and Scope of Fraud in Medicare

Tue, 08/19/2014 - 16:21

Nicole Kaeding

Medicare spends more than $600 billion annually, but not all of that money is spent wisely. Yesterday, I wrote about the Washington Post’s expose on motorized wheelchair fraud. Records suggest that 80 percent of motorized wheelchair claims are “improper,” amounting to billions in waste. Unfortunately for taxpayers, this is just the tip of the iceberg on Medicare fraud.

The Government Accountability Office estimated that Medicare’s “improper payments” amounted to $44 billion, or 8 percent of total expenditures, in 2012. GAO considers Medicare a “high risk” program for its “vulnerabilities to fraud, waste, abuse, and mismanagement.” GAO criticized Medicare for its inability to control the problem saying that Medicare “has yet to demonstrate sustained progress in lowering the rates [of improper payments].”

Other experts believe that GAO undercounts examples of fraud in Medicare. Malcolm Sparrow of Harvard University estimates that closer to 20 percent of claims–or $120 billion annually are improper.

Medicare’s lax oversight of its payment system perpetuates the issue. Millions of claims come in daily and are paid without review or analysis. Scammers know that Medicare payments will not be scrutinized; the chance of getting caught is quite low. Scammers simply adapt and continue finding ways to game the system.

Just yesterday, the Department of Justice announced that an individual in Louisiana was sentenced to prison for submitting “unnecessary or never provided” claims to Medicare. The federal government’s Medicare Fraud Strike Force “has charged nearly 1,900 defendants who have collectively billed the Medicare program for more than $6 billion” since 2007 illustrating just how widespread the issue is.

Even with the threat of prosecutions, scammers know that Medicare is slow to act. According to John Warren, a former employee in Medicare’s anti-fraud office, Medicare is hesitant to deny claims. It risks denying coverage to a legitimate claim, creating a backlog and potential outrage. Even though the scam cost taxpayers billions, Warren told the Washington Post “looking back, I think we did pretty good.”

These various forces illustrate that Medicare will not be able to control the problem of fraud without serious reform. As my colleague Chris Edwards wrote in 2010,

Efforts to combat Medicare fraud frequently fail, and they can involve a vicious cycle. Cracking down on fraud may open new opportunities for fraud. And fighting fraud often involves new layers of complex regulations that may “discourage organizational innovation and market entry, and [ensnare] innocent providers.” To get out of the vicious cycle of government health care fraud, we should move toward a consumer-driven system where patients and providers would have strong incentives to be frugal with health care dollars and crack down on waste.

Medicare might have slowed the motorized wheelchair scam, but as long as the vulnerabilities in Medicare exist, scammers will surely try to benefit.

Categories: Policy Institutes

Let's Demilitarize the Regulatory Agencies Too

Tue, 08/19/2014 - 13:36

Walter Olson

[cross-posted from Overlawyered]

One consequence of the events in Ferguson, Mo. is that people are talking with each other across ideological lines who usually don’t, a symbol being the attention paid on both left and right to Sen. Rand Paul’s op-ed last week in Time. And one point worth discussing is how the problem of police militarization manifests itself similarly these days in local policing and in the enforcement of federal regulation.

At BuzzFeed, Evan McMorris-Santoro generously quotes me on the prospects for finding common ground on these issues. The feds’ Gibson Guitar raid — our coverage of that here — did much to raise the profile of regulatory SWAT tactics, and John Fund cited others in an April report:

Many of the raids [federal paramilitary enforcers] conduct are against harmless, often innocent, Americans who typically are accused of non-violent civil or administrative violations.

Take the case of Kenneth Wright of Stockton, Calif., who was “visited” by a SWAT team from the U.S. Department of Education in June 2011. Agents battered down the door of his home at 6 a.m., dragged him outside in his boxer shorts, and handcuffed him as they put his three children (ages 3, 7, and 11) in a police car for two hours while they searched his home. The raid was allegedly intended to uncover information on Wright’s estranged wife, Michelle, who hadn’t been living with him and was suspected of college financial-aid fraud.

The year before the raid on Wright, a SWAT team from the Food and Drug Administration raided the farm of Dan Allgyer of Lancaster, Pa. His crime was shipping unpasteurized milk across state lines to a cooperative of young women with children in Washington, D.C., called Grass Fed on the Hill. Raw milk can be sold in Pennsylvania, but it is illegal to transport it across state lines. The raid forced Allgyer to close down his business.

Fund goes on to discuss the rise of homeland-security and military-surplus programs that have contributed to the rapid proliferation of SWAT and paramilitary methods in local policing. He cites Radley Balko’s Rise of the Warrior Cop, which similarly treats both manifestations of paramilitary policing as part of the same trend.

As McMorris-Santoro notes in the BuzzFeed piece, Rep. Chris Stewart (R-Utah) has introduced a bill called the Regulatory Agency Demilitarization Act, citing such unsettling developments as a U.S. Department of Agriculture solicitation for submachine guns. 28 House Republicans have joined as sponsors, according to Ryan Lovelace at National Review.

There has already been left-right cooperation on the issue, as witness the unsuccessful Grayson-Amash amendment in June seeking to cut off the military-surplus 1033 program. As both sides come to appreciate some of the common interests at stake in keeping law enforcement as peaceful and proportionate as situations allow, there will be room for more such cooperation.

 

 

Categories: Policy Institutes

Are Sinjars like Streetcars?

Tue, 08/19/2014 - 10:02

Benjamin H. Friedman

“Pleikus are like streetcars.” That’s how McGeorge Bundy, President Johnson’s national security advisor, explained what the escalation of U.S. bombing of North Vietnam in February 1965 to had to do with the administration’s justification for it, which was a Vietcong attack on U.S. bases near Pleiku. Johnson had already decided to increase bombing, but he wanted a pretext that would make it seem defensive. Bundy meant that, absent the Pleiku attack, another incident would have come along shortly to justify additional bombing. A similar bait-and-switch is occurring today in U.S. Iraq policy.

On August 7, President Obama explained that we were bombing Iraq again to defend U.S. personnel in Erbil and rescue ten of thousands of Yazidi civilians stranded on Mount Sinjar (really mountains) and surrounded by murderous militiamen of Islamic State of Iraq and the Levant (ISIL). Now, it turns out there were far fewer Yazidis on the mountain than the administration claimed; they are mostly out of harm’s way, and the threat to Erbil has ebbed. With the two goals he set for bombing achieved, the President quickly offered a third. In the letter sent to Congress Sunday (pursuant to the War Powers Resolution, which he flouts when it’s inconvenient) the President offered a third rationale for bombing: that U.S. bombing would help “Iraqi forces” retake the Mosul dam. Kurdish Peshmerga and Iraqi Special Forces have now done that.

Monday, the President again broadened the bombing’s objectives. The airstrikes against ISIS still protect U.S. personnel and serve humanitarian purposes, he said, but now, it seems, those are general goals that ongoing bombing serves. The President also suggested that ISIS is a security threat to the United States. Not for the first time, he said that once the new Iraqi government forms, we will “build up” Iraqi military power against ISIS. Only the speed of this slide down a slippery slope is surprising. As I recently noted, the humanitarian case for protecting the Yazidi easily becomes a case for continual bombing of ISIL and resumed counterinsurgency war in Iraq. Their danger to civilians was never limited to Sinjar. And as in Syria, the major humanitarian threat in Iraq is civil war.      

Americans, the president included, need to admit being out of Iraq potentially means letting it burn. The collapse of the fiction that U.S. forces stabilized Iraq before exiting forces us to confront the unpleasant contradictions in U.S. goals there. We want to avoid the tragic costs of U.S. forces trying to suppress Iraq’s violence. We want a stable Iraqi federal government and we want Iraqis to live peacefully. Each of those goals conflicts with the others. Even if the new Prime Minister is amenable to Sunni demands, U.S. bombing is unlikely to allow Iraqis to destroy ISIL and its allies. Large-scale violence will likely continue. Suppressing insurgency will likely require resumption of U.S. ground operations. And even that, we know, may not help much. Centrifugal forces in Iraq will remain strong, especially now that we are arming the Kurds. Vesting federal power in Prime Ministers that are inevitably Shi’ite makes continual sectarian fights likely. We should know by now that we lack the ability to stabilize Iraq at acceptable cost. We should also know that the primary threat to U.S. security in Iraq is the temptation to try to forcefully run it. Knowing these things means accepting some tragedy in Iraq.    

Categories: Policy Institutes

Free Trade Within Countries

Tue, 08/19/2014 - 09:47

Simon Lester

Trade policy people spend most of their time talking about free trade between countries.  But there is still some work to do on free trade within countries.  Some Canadians are making a push right now, as Canadian business groups are calling for Canada’s leaders “to dismantle internal trade barriers and ensure the free movement of goods, services, capital and labour between all parts of the country.”

If that sounds odd, don’t get the wrong idea.  It’s not as though Canadian provinces are imposing tariffs on each other.  Rather, this is part of a more advanced notion of free trade, where you have a “single market” for goods and services.  So for example, these groups complain that:

Different regulations and standards means that manufacturers may need to adapt their machinery in order to produce containers such as dairy creamers, butter and drinkable yogurts for sale nationally across all provincial jurisdictions.

Or:

massage therapy is regulated in some provinces but not all, meaning that a professional would have to become certified in order to be allowed to practice.

These issues are difficult to address between sovereign nations, although people are trying, most notably in the Transatlantic Trade and Investment Partnership negotiations.  But within countries, it seems like this is something that could and should be dealt with.  Here in the U.S., we have the famous problem of not being able to buy health insurance across state lines.  The current effort in Canada seems like a valuable one; it might be useful to have a similar review of internal trade barriers here in the U.S.

Categories: Policy Institutes

Pages