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Updated: 2 hours 42 min ago

SCOTUS: Unions Can Waive Don/Doff Pay

Mon, 01/27/2014 - 16:40

Walter Olson

Earlier this month I noted that despite sporadic attacks on the present Supreme Court as supposedly gripped by a result-oriented and pro-business majority, “much of its work [in business law] consists simply of trying to keep the law on a logically coherent and predictable course,” often by unanimous vote. Today we can add another example: a unanimous Court (with Justice Sotomayor withholding consent from one footnote) ruled that U.S. Steel does not owe workers back pay for time spent donning and doffing protective gear in a context where the union representing the workers had specifically bargained away any right for them to be paid for that time. 

If it seems bizarre for employees to claim a right to pay that their union has elected to waive during contract negotiations, read on. Like some others before it, this case illustrates a tension I described in my book The Excuse Factory between the old and mostly stagnant field of labor law – in which unions and their strike threat had been envisaged as the driving and potent force, and progress is measured by contracts for future higher pay – and the newer, perennially self-energizing employment law, in which private attorneys and their lawsuits act as the driving force, with the goal being big backward-looking settlements and the associated attorneys’ fees. So the first point about Sandifer v. U.S. Steel Corp. is that the steelworkers’ union was not the plaintiff, and that we shouldn’t assume unions necessarily wish suits of this kind to succeed.

Private employment-law attorneys do well enough from discrimination and harassment law, but their fastest-growing field of activity in recent years has been wage-and-hour law. Together with several associated statutes, the New Deal-era Fair Labor Standards Act (FLSA) creates many openings to sue in class or collective actions over large retroactive pots of pay for allegedly mischaracterized work – salary vs. hourly-wage, tipped vs. off-tip, employee vs. independent-contractor, and many others. That a particular company policy was well explained to workers at the time, and met with no objection, is no defense, since contracting around the rules is mostly not allowed. For example, an up-and-coming theme in wage-hour lawsuits is that employees should be able to claim retroactive on-the-clock pay for time spent away from the workplace using (or simply being available for) company cellphones, pagers, or email – a form of liability to which many employers have begun reacting by forbidding use of company cellphones or email outside work hours. 

While many of the dictates of wage-hour law are appallingly obscure – a quarter century ago Judge Frank Easterbrook eloquently decried the high cost of its tendency to leave the fact of liability uncertain until long after employers have acted – Congress had actually come very near addressing the question at issue in 1949 when it enacted a relatively narrow legislative fix declaring that it would be up to unions to decide whether to seek or waive pay for time spent “changing clothes.”  

This still left a crack of ambiguity wide enough to try to slip a suit through (the legal, if not the apparel, kind). Lawyers for Sandifer argued that the task of donning metal-tipped boots, flame-retardant jackets and leggings, and other steel-mill gear did not qualify as “changing clothing” because, among other reasons, many of the protective garments were donned on top of (rather than substituting for) street clothes. That meant, they argued, that the union had no right to bargain away the entitlement to the time, and Sandifer and others could seek back pay. The Court unanimously disagreed. It conceded that some types of technical gear, such as safety goggles and wearable electronics, will not qualify as “clothing,” but the overall activity of donning steel-mill protection still more closely resembles “changing clothes” than anything else. 

So there’s a bit of clarity for the law, at long last. Now if only Congress felt any responsibility to clarify – or better yet, move to repeal – the hundred other ambiguous demands of wage-hour law. 

Categories: Policy Institutes

Free America’s Energy Future: Drop Washington’s Misguided Export Ban

Mon, 01/27/2014 - 16:37

Doug Bandow

For years people have been told to expect a dismal energy future.  But because of rapid market innovation Americans now can look forward to an abundant energy future.  The U.S. could even become a leading exporter—if Washington gets out of the way. 

An energy revolution currently is underway, with increasing supplies and falling prices.  Even more could be done if Washington expanded access to federal lands and waters and freed producers to make best use of what they extract.

Arbitrary restrictions bedevil energy exports.  For instance, natural gas licenses are granted automatically for nations with free trade agreements—in this case Canada and Mexico—but otherwise the review process is lengthy and approval is rare.  Last year Energy Secretary Ernest Moniz announced that he was delaying decisions on a score of applications for political reasons even though the department had already concluded that such exports would benefit the U.S. economy. 

The ban on oil is even tougher, with only small amounts being shipped to Canada.  Few licenses have been issued under the law’s “national interest” exception, and none since 2000.

As I point out in my latest Forbes online column:

Forbidding petroleum exports does not make additional oil available to Americans.  Rather, the ban prevents energy companies from saving money.  For instance, it would be cheaper to sell Alaskan crude to Asia and purchase more oil from Latin America.

The export ban also risks halting the increase in domestic energy production.  U.S. oil production is at a quarter century high, but the greatest supply increases have been of crude oil that is “lighter” and “sweeter” than usual.  Most domestic refineries, especially in the Gulf Coast, are designed to handle “heavy” oil. 

It is difficult to get the lighter oil to the right refineries, and there are not enough of them.  Creating a domestic glut depresses prices in America, which means they have less incentive to invest more to produce more. 

If supplies exceed refining capacity, there will be no incentive for more production.  Maria van der Hoeven, executive director of the International Energy Agency, similarly worried that the export ban “could threaten the economic viability of these new supplies, potentially stopping the boom in its tracks.”  

Supporters of the prohibition contend that it helps consumers and reduces foreign dependency.  In fact, exporting natural gas and oil does not increase America’s dependence on foreign imports, but merely reshuffles global supplies.  Today Americans are wasting money on extra transportation costs and failing to collect from higher-priced sales.

Lifting the export prohibition would have little impact on consumer prices.  The ban most directly benefits refiners, who are exporting record amounts of products.  Today a few lucky firms gain billions from an unfair and arbitrary subsidy courtesy Uncle Sam.

In fact, argued van der Hoeven, “American end-users do not benefit from this production windfall since U.S. retail product prices are still heavily influenced by international markets.”  Energy remains a global marketplace.  The best way to reduce consumer prices would be for Uncle Sam to reduce domestic barriers to production and allow international markets to function.  Economists believe that unleashing U.S. exports would have a noticeable impact on the price of  light, sweet crude.

Anyway, trying to artificially hold down prices always has been bad energy policy.  For years below market prices encouraged consumption and discouraged production. 

Last month Secretary Muniz expressed the administration’s interest in relaxing the ban. Congress should eliminate energy export controls, or at least make licensing automatic.  Second best would be to streamline the process, with a presumption in favor of granting licenses.  At least the administration should approve applications before it using existing authority. 

The energy boom is a great boon for Americans.  Innovative markets have erased decades of rhetoric about shortages and scarcity.  America’s energy future will grow even brighter if only Uncle Sam stops getting in the way.

Categories: Policy Institutes

A Primer on State of the Union Economics

Mon, 01/27/2014 - 15:09

Alan Reynolds

Until recently, President Obama’s December 4 “Remarks on Economic Mobility” were thought to preview his State of the Union address by defining “dangerous and growing inequality and lack of upward mobility” as “the defining challenge of our time.”  

That downbeat and divisive theme polled badly. As a result, the President is expected to recast the same story as “ladders to economic opportunity” (which is just another way of describing upward mobility). Obama’s passionately misinformed perceptions about rising inequality and falling mobility, however, are surely unchanged.

In his December 4 address, the President could find no official statistics to support his overblown claims about “growing inequality.” The Census Bureau and Congressional Budget Office report that the top 20 percent earns about half of all income. The CBO finds the top 20 percent received an average of 47.6 percent of all after-tax income since 1983, and roughly the same percentage (48.1) in 2010 and 2011. Yet the President insisted on claiming, “The top 10 percent [not the top 20 percent] no longer takes in one-third of our income – it now takes half.”

Unless the President thinks all affluent people are thieves, the top 10 percent never “take” any fraction of “our” income. On the contrary, they earn 100 percent of their own income.

Eschewing all official data, President Obama relied instead on estimates of pretax, pre-transfer income (which are clearly irrelevant to issues concerning taxes or transfers) from Thomas Piketty and Emmanuel Saez. Among many other problems with these figures, documented in my recent paper, growth in top incomes is exaggerated by including a rising share of business income formerly reported on corporate returns, and also by counting realized capital gains as income (in fact, selling assets does not make anyone richer). Lower incomes, by contrast, are grossly understated by completely excluding the huge and rising share of income from government transfer payments, now approaching $3 trillion a year.

“The combined trends of increased inequality and decreasing mobility,” said President Obama, “pose a fundamental threat to the American Dream, our way of life, and what we stand for.” As the title of his talk suggested, Obama was primarily focusing on decreasing mobility (since repackaged as decreasing opportunity), not increasing inequality per se. As he put it, “the problem is that alongside increased inequality, we’ve seen diminished levels of upward mobility in recent years.”

Two major studies by U.S. Berkeley’s Emmanuel Saez, Harvard’s Raj Chetty and others, find the President entirely wrong about diminished mobility. Their newest paper shows that, “children entering the labor market today have the same chances of moving up in the income distribution relative to their parents as children born in the 1970s.” Moreover, a narrowing “gap in college attendance between children from the lowest- and highest- income families… suggests that mobility in the U.S. may be improving.” The authors conclude that, “if one defines mobility based on relative positions in the income distribution – e.g., a child’s prospects of rising from the bottom to the top quintile – then intergenerational mobility has remained unchanged in recent decades. If instead one defines mobility based on the probability that a child from a low-income family (e.g., the bottom 20%) reaches a fixed upper income threshold (e.g., $100,000), then mobility has increased…” As for the President’s rhetorical effort to link top income shares with declining mobility, the authors find “little or no correlation between mobility and… top 1% income shares – both across countries and across areas within the U.S.” The biggest actual barrier to upward mobility, in fact, turns out to be single parenthood.

President Obama’s revealing December 4 lecture relied on irrelevant pretax, pre-transfer estimates to assert that the top 10 percent have been “taking” half of “our” income, and he used no evidence whatsoever to assert that upward mobility has been declining.

The defining challenge of our time may be to discover ways to stop politicians from using made-up numbers to excuse destructive and demoralizing economic policies.

Categories: Policy Institutes

Closing the Books on 2013: Another Year, Another Nail in the Coffin of Disastrous Global Warming

Mon, 01/27/2014 - 13:03

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.”

A few weeks have now passed since the end of last year, giving enough time for various data-compiling (and “data-adusting”) agencies to get their numbers in order and to release the sad figures from 2013.

U.S. Annual Average Temperature

We pointed out, back in this post in mid-December, that there was an outside chance—if December were cold enough—that the average annual temperature for the U.S. in 2013 would fall below the 20th century average for the first time since 1996.  Well, despite how cold it seemed in December, it turned out to not quite be cold enough to push the January-December 2013 temperature anomaly into negative territory. Figure 1 below shows the U.S. temperature history as compiled by the National Climatic Data Center from 1895 through 2013.

Figure 1. U.S. annual average temperature as compiled by the National Climatic Data Center, 1895-2013 (data: NCDC Climate at a Glance).

Please be advised that this history has been repeatedly “revised” to either make temperatures colder in the earlier years or warmer at the end.  Not one “adjustment” has the opposite effect, a clear contravention of logic and probability.  While the US has gotten slightly warmer in recent decades, compared to the early 20th century, so have the data themselves.  It’s a fact that if you just take all the thousands of fairly evenly-spaced “official” weather stations around the country and average them up since 1895, that you won’t get much of a warming trend at all.   Consequently a major and ongoing federal effort has been to try and cram these numbers into the box imposed by the theory that gives the government the most power—i.e., strong global warming.

What immediately stands out in 2013 is how exceptional the average temperature in 2012 (the warmest year in the record) really was. In fact, the recovery in 2013 from the lofty heights in 2012 was the largest year-over-year temperature decline in the complete 119 year record—an indication that 2012 was an outlier more so than “the new normal.”

Billion Dollar Weather Disasters

Each year the National Oceanic and Atmospheric Administration (NOAA) puts together a list of “billion dollar weather disasters.”  NOAA started doing this a few years ago so as to try to paint a picture that human-caused global warming was leading to ever more weather-related “disasters” in the United States. We dutifully pointed out that NOAA just as well could compile a list of “billion dollar weather disasters averted by global warming,” but for some reason they don’t.   Maybe the same reason that the raw temperature data is continually adjusted to show more warming.

Anyway, NOAA’s annual announcement is usually accompanied by a lot of press fanfare as the powers-that-be at NOAA revisit the damage done by severe weather events during the past year, usually ending the presser with some grand total that shows the past year was the worst one record, or very near to it.

This year, NOAA dropped the number in silence. You can guess the reason… even under their cockeyed accounting system (where, for example, no compensatory benefits occur when a damaging rainstorm also rescues the corn crop, as has happened several times in history) it turns out there were only seven billion-dollar weather disasters in 2013, down from 11 in 2102 and 14 in 2011.  And most of 2013’s billion dollar disasters were near the low end of the cost scale, and in total, amounted to somewhere in the 15-20 billion dollar range (final numbers for damages are not in yet)—near the average of the past 34 years (beginning in 1980 when the NOAA compilation begins (Figure 2)).  But, even this is an overestimate as the NOAA damage numbers do not factor out changes in population and wealth. If you divide the total damages from all billion-dollar weather events NOAA has complied since 1980 by the levelized GDP for each year, the 2013 total comes in at less than half the 34 year average and the overall apparent upwards trend largely disappears. While this method is less than ideal (e.g., it does not examine the changes in the local environment where the damages occurred), it provides a better indication of what has been going on than does the NOAA compilation.

Figure 2. Total annual damage from billion-dollar weather events, 1980-2013. The original (CPI-adjusted) data from NOAA is in red, while our GDP-adjusted data is in blue (data from NOAA).

U.S. Carbon Dioxide Emissions

We are fond to point out that while the current Administration insidiously plots ways of trying to force U.S. carbon dioxide emissions downward, carbon dioxide emissions have been dropping for the past 10 years or so largely as a result of factors other than direct emissions-limiting regulations (etc.) imposed by the federal government. The year 2013 was an exception to this trend. The Energy Information Agency reports that preliminary numbers indicate that carbon dioxide emissions in the U.S. rose by about 2% between 2012 and 2013 (Figure 3). This occurred largely as a result of rising natural gas prices which allowed coal to regain some market share of power production that it had lost to natural gas in recent years.  But even with this small increase in emissions, the 2013 carbon dioxide emission were still more than 10% below the 2005 emissions total and still on target to meet the President’s goal of a 17% reduction from 2005 to 2020.

We reiterate our oft-posed question: Since emissions are largely dropping without a great deal of government intervention, why the continued push from the Administration for more regulations?

Figure 3. Energy related-carbon dioxide emission from the U.S., 2005-2013 (figure adapted from the EIA).

Global Temperatures

And we’d be remiss not to review the global temperature for 2013.

The liberal-leaning press reports the 2013 global temperature as the seventh (or fourth) highest on record, while the conservative-leaning press reports it as another year in which the global temperature has refused to rise (Figure 4).

Figure 4. TOP: Annual global surface temperature history, 1880-2013, as compiled by NOAA (blue) and NASA (red) (figure source, NOAA/NASA Joint Briefing). BOTTOM: Monthly global surface temperature anomalies, 1997-2013 (source: U.K. Hadley Center).

But all can agree that the temperatures in 2013 further extended the “pause” in the global surface temperature record-which now stands at some 17 years. A lot of people are at work trying to explain what’s behind the “pause,” but no matter the cause the longer that it continues, the further from reality climate model projections become (Figure 5).

Figure 5. Observed (blue) and projected (red) temperatures, 1980-2013. The projected temperatures are the annual mean of 106 climate runs (data source, Climate Explorer).

The most viable explanation that ties everything together is that the climate sensitivity-that is, how much the earth will warm in response to a doubling of the effective carbon dioxide concentration-is much larger in the climate models than it is in reality.

If this is indeed the case, and there is plenty of evidence to suggest that it is, than the urgency to “do something” about climate change is reduced and so too the level of support for federal regulations aimed at limiting carbon dioxide and thus limiting our energy choices.

Categories: Policy Institutes

School Choice Enrollment Reaches Record High

Mon, 01/27/2014 - 12:27

Jason Bedrick

Just in time for National School Choice Week, the Friedman Foundation for Educational Choice has released its annual ABCs of School Choice report, detailing every private school choice program in the nation. The number of students participating in school choice programs has reached a record high of more than 301,000 students nationwide, up from about 260,000 in 2012-13. More than half of those students are participating in scholarship tax credit programs.

The Friedman Foundation’s report is an invaluable resource for understanding the dozens of school choice programs and their various rules and regulations. A new feature in this year’s report is an infographic ranking every school choice program along two criteria: eligible population and purchasing power. The Friedman Foundation’s view is that choice programs should have universal eligibility and that the purchasing power of the vouchers or scholarships should be on par with the per student spending at government schools.

Universal access to a variety of schooling options is certainly a noble goal, essential to fostering equality of opportunity. However, it should be noted that wealthier families can already afford school choice. Universal access to school choice does not require universal access to school choice programs. Targeting support to low- and middle-income families is a more efficient way to ensure universal school choice as it directs scarce resources to those who need them most. Of course, measuring access is a lot more difficult than measuring program eligibility, so this is not a deficiency of the Friedman report.

There are other important criteria by which we should judge school choice programs, particularly the amount of regulatory interference imposed on private schools (e.g. - mandating state tests) and the amount of freedom granted to parents to tailor their child’s education (e.g. - New Hampshire’s tax-credit scholarships for homeschoolers). Perhaps the Friedman Foundation will consider these and other criteria for future reports.

Categories: Policy Institutes

New Farm Bill Much Larger Than Last One

Mon, 01/27/2014 - 12:11

Chris Edwards

Congress is gearing up to pass the first big farm bill since 2008. The logrolling between farm interests is nearing completion, the Republicans have given up on making substantial food stamp cuts, and the Treasury stands ready to borrow another $1 trillion. We are all set to go.

It looks like the final farm bill will be expected to cost about $950 billion over 10 years. CRS has details on bill versions from the Fall, but I adjusted those numbers based on the reported GOP cave-in on food stamps.

If the final number is $950 billion, the 2014 farm bill will cost 48 percent more than the $640 billion farm bill passed in 2008. Farm bill supporters claim that the new bill includes “savings” and “cuts,” but that is a myth created by the rising CBO baseline. The reality is that Congress is set to impose a huge, damaging, and unaffordable burden on taxpayers and the economy.

Categories: Policy Institutes

Live Blog of the 2014 State of the Union

Mon, 01/27/2014 - 12:03

Cato Editors

Tomorrow night, President Obama will lay out his plans for the upcoming year in his fifth annual State of the Union (SOTU) address. And, after a year dominated by budget battles, the NSA spying scandal, and the meltdown of Obamacare, the libertarian message is more relevant than ever.

Please join us at 9:00pm Eastern on Tuesday, January 28, 2014 for live commentary during President Obama’s State of the Union address and the Republican response. Cato scholars will live-blog their reactions to what the president says—and what he leaves out.

You may also follow the conversation on Twitter – and add your two cents – using #CatoSOTU. Follow @CatoInstitute for updates.

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Categories: Policy Institutes

Another Cost Overrun on Government Infrastructure

Mon, 01/27/2014 - 09:12

Chris Edwards

From the Wall Street Journal, here’s the latest evidence on quality and efficiency in government infrastructure spending:

New questions were raised about the construction quality of one of the nation’s most vital commuter links when engineers who worked on a Bay-area bridge that replaced one damaged in a 1989 earthquake said Friday that bridge officials routinely brushed aside their concerns.

The engineers’ testimony came at a hearing in Sacramento, where lawmakers also grilled bridge officials about the $6.4 billion eastern span of the San Francisco-Oakland Bay Bridge, which ran into long delays and cost overruns before opening last fall.

The project was beset by political wrangling, delays, construction issues, and cost overruns. The original estimate for the bridge was $1.4 billion, according to the report.

James Merrill, an engineer hired for quality assurance, testified that his firm raised concerns about cracked welds on steel deck pieces being built in China. But he said bridge officials discounted the reports and instructed him “multiple times” that “you’re not to put it in writing.” Mr. Merrill said the request was made so that the concerns would not become public.

See here for more on infrastructure investment. And see here for more on government cost overruns.

Categories: Policy Institutes

Tax Reform: The First Step Is Simple

Mon, 01/27/2014 - 09:10

Chris Edwards

New leadership is coming to the congressional tax-writing committees. Ron Wyden will be taking the helm of Senate Finance and Paul Ryan will be likely taking the helm of Ways and Means. This is good news, as both gentlemen are serious legislators and very interested in major tax reform.

One thing they should tackle is the personal income tax, which is a complex and high-rate mess. It should be restructured into a simple flat tax.

However, the most urgent needed reform is to slash the corporate income tax rate. Policymakers should put aside changes to deductions, credits, and loopholes for now. Those tax base issues are a diversion and policy quagmire, as the R&D credit illustrates. It is far more important to just cut the statutory corporate rate, which would automatically reduce the effects of tax-base distortions and make it politically easier to reform the tax base later on.

Our current high-rate policy is harming the U.S. economy, reducing job growth, and stifling wages—for no good reason. Abolition is a good long-term goal for corporate income tax reform, but we can start with at least chopping our federal-state rate of 40 percent down to the global average of 24 percent.

The charts show KPMG data for top statutory corporate income tax rates in 2013. KPMG shows UAE with the highest rate in the world at 55 percent. However, that rate just applies to foreign banks and foreign oil companies. So I don’t show UAE since the reported rate is not the general corporate rate.

That leaves the United States with the highest general corporate tax rate in the world, and that makes no sense in today’s competitive global economy.

Categories: Policy Institutes

The Drug War vs. the Constitution: 1928 Edition

Fri, 01/24/2014 - 18:21

Walter Olson

Prof. Gerard Magliocca of Indiana University has been doing historical work on the Supreme Court’s “Four Horsemen”—the Justices who dug in to resist FDR’s constitutional revolution in the 1930s—and is coming up with many noteworthy tidbits. Among them is a dissenting opinion by arch-conservative James McReynolds in a 1928 case called Casey v. U.S. At issue was a man’s conviction under a federal statute providing that if an individual was found to possess morphine derivatives without official stamps, it would be prima facie evidence of having obtained them from unlawful sources. Five Justices, led by Holmes, upheld Casey’s conviction, while four (McReynolds, Brandeis, Butler, and Sanford) dissented on various grounds. Here’s McReynolds:

The suggested rational connection between the fact proved and the ultimate fact presumed is imaginary.

Once the thumbscrew and the following confession made conviction easy; but that method was crude and, I suppose, now would be declared unlawful upon some ground. Hereafter, the presumption is to lighten the burden of the prosecutor. The victim will be spared the trouble of confessing and will go to his cell without mutilation or disquieting outcry.

Probably most of those accelerated to prison under the present act will be unfortunate addicts and their abettors; but even they live under the Constitution. And where will the next step take us?

When the Harrison Anti-Narcotic Law became effective, probably some drug containing opium could have been found in a million or more households within the Union. Paregoric, laudanum, Dover’s Powders, were common remedies. Did every man and woman who possessed one of these instantly become a presumptive criminal and liable to imprisonment unless he could explain to the satisfaction of a jury when and where he got the stuff? Certainly, I cannot assent to any such notion, and it seems worthwhile to say so.

Ironic, or maybe not so, that cane-waving mossbacks like McReynolds often showed a stronger commitment to principles of civil liberty than much-hailed progressives like Holmes. 

Categories: Policy Institutes

Nightmare on K Street: Lobbying Revenue Drops a Bit

Fri, 01/24/2014 - 15:25

David Boaz

The Hill, a newspaper covering Capitol Hill, published this scary headline this week:

What’s the nightmare? Lobbying revenues are down! How much? Well, The Hill doesn’t say. But the Washington Post reports:

The District’s 10 largest lobbying firms reported a collective 1 percent drop in lobbying revenue in 2013 compared with 2012, slipping to $226.3 million from $228.9 million.

Oh, the horror.

To be sure, the Post also notes that the revenue of the top 10 firms dropped 10 percent last year. So that’s a real cut. Still, these drops come after total lobbying expenditures doubled in a decade, peaking in those heady days of 2009 and 2010 when federal dollars were being handed out with wild abandon.

Why the slowdown since then? The Hill’s Kevin Bogardus and Megan Wilson note that “most lobby shops couldn’t escape the downward pull of a historically unproductive Congress.” Ah yes, that “least productive Congress” we keep hearing about. Well, this is what you get from an unproductive Congress: a tiny drop in expenditures on lobbying. Keep on being unproductive—of laws, regulations, taxes, grants, subsidies, loans, and bailouts—and maybe lobbying will keep on declining.

Of course, the lobbyists won’t take this lying down. Inside the same issue of The Hill, Wilson reports:

K Street lobbyists are racking up frequent flyer miles with regular trips to Silicon Valley in search of clients.

They are trading power suits for California casual to cash in on the explosive growth of technology lobbying, which has more than doubled over the past decade and shows no signs of slowing down.

Can’t keep a lobbyist down for long. As I’ve written before, Washington keeps telling tech executives, “Nice little company ya got there. Shame if anything happened to it.”

The most important factor in America’s economic future—in raising everyone’s standard of living—is not land, or money, or computers; it’s human talent. And every time some part of the human talent at another of America’s most dynamic companies is diverted from productive activity to protecting the company from political predation and even to engaging in a little predation of its own, it slows our economy down a bit. The parasite economy sucks in another productive enterprise, and we’ll all be poorer for it.

Meanwhile, a real “Nightmare on K Street” would be a blessing for the rest of us. 

Categories: Policy Institutes

Food Stamp Growth Continues, Despite Economic Recovery

Fri, 01/24/2014 - 14:14

Michael D. Tanner

As food stamp utilization escalated over the last several years, the program’s advocates assured us that there was nothing to worry about. Yes, more people than ever before were on food stamps, but that was just because of the recession. Once the recovery began and the unemployment rate declined, fewer people would need food stamps.

Yet, newly released data from the U.S. Department of Agriculture now tells us that in 2013, years after the recession officially ended, 20 percent of U.S. households were on food stamps, an all-time high. According to the USDA, 23.05 million households received food stamps in FY2013. While no doubt some increase in food stamps was a countercyclical response to the recession, this cannot adequately explain why the number of households in the program has increased by 4.43 million since 2010—a period of consistent, albeit low, job growth and a decreasing unemployment rate.

This continued increase in food stamp participation runs counter to the projections put out by the Congressional Budget Office, which in 2011 projected that SNAP participation would decline from 2012 levels to 45.9 million individual participants in 2013. Instead, average monthly enrollment for 2013 was 47.6 million. The continued growth in food stamp participation raises the question of when, if ever, the program will return to pre-recession levels as promised.

In fact, as I pointed out in this policy analysis last year, much of the growth in the program was not due to the recession, but rather to deliberate policy choices that loosened eligibility and work requirements.

Categories: Policy Institutes

Meet the Kronies!

Fri, 01/24/2014 - 13:18

Caleb O. Brown

If you want to get something done (or, just as often, not done) in Washington, you might just need … the Kronies.

Get Konnected with The Kronies Action Figures

Take, for example, Kaptain Korn:

Kaptain Korn is a mutant hero who can change shape at will. One minute he’s coating your corn flakes; another minute he’s bootleg liquor in your gas tank. Though he’s powerless without G-force, subsidies and mandates give Kaptain Korn the muscle he needs to push puny third world back down into the dust. Kaptain Korn ensures jokes stay corny, rears stay flabby and engines run less efficiently.

If you want to help defeat the Kronies, you might want to take a look at Cato’s DownsizingGovernment.org. Learn more from our video series on how to downsize specific departments (all videos will play below):

Downsize the Department of Agriculture
Categories: Policy Institutes

Thought For The Day

Fri, 01/24/2014 - 10:44

Walter Olson

“Maybe we should email one another the Constitution so the government would read it.” – @Ruth_A_Buzzi (yes, of Laugh-In fame).

Ed. note: To read the Constitution and other Founding documents online (and order a copy of Cato’s famed “Pocket Constitution”), click here.

Categories: Policy Institutes

The Voting Rights Amendment Act Is a Bad Idea

Fri, 01/24/2014 - 09:12

Ilya Shapiro

One of the responses to the Supreme Court’s eminently sensible ruling last year that deactivated part of the Voting Rights Act was to call for a new, updated law to subject particularly bad actors to enhanced federal oversight. We now see the product of that motivation, introduced by the motley bipartisan crew of Reps. Jim Sensenbrenner (R-WI) and Jim Clyburn (D-SC) and Sen. Pat Leahy (D-VT). As I write in my new Forbes.com column:

Last week, a group of lawmakers introduced the Voting Rights Amendment Act of 2014. The timing was no coincidence: The bill was announced on Martin Luther King’s birthday, right before the holiday designated to commemorate the civil rights giant (for which Congress took the week off). This is the long-expected legislation responding to the Supreme Court’s decision in Shelby County v. Holder last June that disabled one part of the Voting Rights Act. But it’s both unnecessary to protect the right to vote and goes far beyond the provision it replaces to rework the machinery of American democracy on racial lines.

Based on the reaction of certain elected officials to Shelby County you could be forgiven for thinking that a congressional fix is badly needed to prevent racial minorities from being disenfranchised. But all the Supreme Court did was strike down the “coverage formula” used to apply Section 5 of the Voting Rights Act, which required certain jurisdictions to “preclear” with the federal government any changes in election regulations—even those as small as moving a polling station from a schoolhouse to a firehouse. The Court found the formula to be unconstitutional because it was based on 40-year-old data, such that the states and localities subject to preclearance no longer corresponded to the incidence of racial discrimination in voting. Indeed, black voter registration and turnout is consistently higher in the formerly covered jurisdictions than in the rest of the country.

Nevertheless, the proposed legislation draws a new coverage formula, resurrecting Section 5’s requirements for states with five violations of federal voting law over a rolling 15-year period. (That formula would currently apply to four states: Georgia, Louisiana, Mississippi, and Texas.) It also sweeps in sub-state jurisdictions that have had one violation and “persistent, extremely low minority turnout”—which can mean simply an average racial-minority turnout rate lower than that nationwide for either minorities or non-minorities.

All that sounds reasonable—Congress is finally updating its coverage formula—until you realize that this reimposition of Section 5 comes without any proof that other laws are inadequate to address existing problems (which is what the Constitution demands to justify the suspension of the normal federalism in this area). After all, Section 5 was an emergency provision enacted in 1965 to provide temporary federal receivership of morally bankrupt state elections, not to enable a constitutional revolution based on arbitrary statistical triggers.

Read the whole thing, and download this longer piece on why the Shelby County ruling actually vindicates Martin Luther King’s dream.

Categories: Policy Institutes

Appropriate Appropriations? Transparency and Spending Control

Thu, 01/23/2014 - 17:26

Jim Harper

Luke Rosiak at the Washington Examiner is not just a journalist who rolls his sleeves up to root out corruption. He’s also a capable computer programmer. Rosiak has produced a new feature on the Examiner web site called “Appropriate Appropriations?” that is worth checking out.

The page lists the many bills in Congress that spend taxpayer money—bills that either authorize appropriations or appropriate your money. You can sort spending bills by size, by date of last activity, and by state—look and see if your member of Congress or senator is a spender.

Rather than complaining about spending in the aggregate—“waste, fraud, and abuse” are horses that have escaped the barn—people who want spending control can now rein it in by contacting their members of Congress and senators to talk about specific spending bills.

The “Appropriate Appropriations?” page is powered by data that we produce at Cato. Cato’s “Deepbills” data is in use a lot of other ways, too. We use it to build informative infoboxes for Wikipedia articles about bills in Congress. The New York Times’ “Inside Congress” web pages use Cato data to show what executive branch agencies are topics of the bills in Congress. (See the “Mentions” section of the page for H.R. 1104, for example.) My own WashingtonWatch.com uses the data to show relationships among agencies, bills, and representatives. You’ll also find Cato data used by GovTrack.us, the largest private government transparency web site, to make searches out of references to existing law in the bills in Congress.

There are many more things that can be done with this data. Luke’s code is available to help others get started.

It’s a long game, trying to undo federal government growth that has been underway for at least 80 years. I started talking about how transparency could undercut rational ignorance and rational inaction more than seven years ago here on the blog. The serious work began with the election of President Obama, who promised transparent government. We’ve written about how the government should publish data to make itself transparent, and we’ve graded the quality of the government’s data publication. Now we’re putting out data that the government should, and it’s bearing fruit.

You can now investigate what Congress is doing in terms of spending and ask yourself: Are these “Appropriate Appropriations?

Categories: Policy Institutes

Constitutional Legerdemain – Recess Appointments Branch

Thu, 01/23/2014 - 17:13

Roger Pilon

Constitutional restoration this far down the road will almost certainly come in small steps, one decision at a time, as in a case the Supreme Court heard last week, National Labor Relations Board v. Noel Canning. By most accounts, the justices were skeptical of the government’s claim that the president could make recess appointments when the Senate was arguably not in recess. That’s got friends of the modern executive state worried. Witness an op-ed in yesterday’s New York Times by AEI’s Norman Ornstein, than whom modern expansive government has few greater friends. Ordinarily a strong congressionalist, Ornstein here, in “Disarming the White House,” is alarmed that the case “represents the biggest threat to presidential power in decades.”

Given that President Obama, nearly every day, is making good on Nancy Pelosi’s counsel that we needed to pass Obamacare to find out what’s in it, we’ll be forgiven for thinking that the power of the president to make law as he goes along could use some threatening. But here it’s not some imagined presidential lawmaking power that’s at issue. It’s a real power, grounded in the Constitution, “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The problem as Ornstein sees it is that the D.C. Circuit Court below, and the justices last week, actually read that constitutional language for what it says. Rather than focus on the narrow question of “whether a president or the Senate gets to decide when the legislative body is in recess,” about which the Constitution is also clear, the judges below “ruled that virtually all recess appointments violated the direct language of the Constitution: Only those vacancies occurring during the recess between the two sessions of Congress, and only those filled during that recess, would be allowed.”

Shocking, for sure, that constitutional text should count this late in the day. But there it is. Unfortunately for his argument, what Ornstein has left out is the larger constitutional framework – and the principle underlying it. As Georgetown Law’s (and Cato’s own) Nick Rosenkranz made clear in a forum here just before the High Court heard the case, the president’s recess appointments power is subsidiary to his main power in the matter of appointments – the power to nominate, and by and with the Advice and Consent of the Senate, to appoint such officers as the Constitution and the Congress provide for. As was the case for a good part of our history, should the Senate not be in session when a vacancy occurred and therefore not be able to give its advice and consent to a nomination, the president has the power to make temporary appointments. But that is the exception, not the rule. And the underlying principle, rooted in the separation of powers, is that the Senate should have a role in determining who will fill important executive branch offices.

In the modern era, Ornstein laments, Senate recesses are very brief, which means that “the odds of a significant vacancy opening up during them are near zero.” Is that a problem? It means simply that the president will have to follow the normal course for filling vacancies. He’ll have to do so “by and with the Advice and Consent of the Senate.” Presidents from both parties have found a way around that requirement, of course, especially when the Senate opposes a nominee. They make “recess appointments” for vacancies that happen when the Senate is in session and therefore can consent, but they do so when the Senate is in recess, even briefly. To prevent that, the Senate more recently has held “pro-forma” sessions. But Obama went one further: Not only did the vacancies he filled happen when the Senate was in session, but he filled them when it was in a pro-forma session, and that brought the matter to a head.

Ornstein is unconcerned with such constitutional niceties. Instead, he offers a policy critique of what he fears the Court will do, namely, apply the Constitution as written. He contends that the Senate’s advice and consent power was meant originally only to vet nominees for qualifications, not to veto them over political differences. Yet he writes that “for most of American history, recess appointments were a safety valve for presidents when there were individual disputes over nominees, a modest weapon of the executive in the continuing struggle between the political branches” – constitutional limits on presidential power apparently notwithstanding.

Surely, the Framers were not unaware of the possibility of a struggle between the political branches. In fact, the Constitution is one big rule book for the conduct of that struggle. But in Ornstein’s view, recess appointments – not as they were written to be employed, but as they have come to be made – “are a limited tool, a modest safety valve to ameliorate the worst abuses of Senate power.” He sees the Senate’s refusal to confirm, based on other than narrow grounds, as an abuse of power – when the Constitution is silent on that point. He does not see the president’s exercise of a power he does not have as an abuse. There before you is the kind of argument that has brought us the modern executive state.

Categories: Policy Institutes

The Violence in Iraq: What Can Be Done?

Thu, 01/23/2014 - 16:32

Christopher A. Preble

Just over two years after the last U.S. combat troops were withdrawn from Iraq, an insurgency is raging throughout the country. The black flags of ISIS – the Islamic State of Iraq and al-Sham – now fly over Fallujah, the site of some of the bloodiest battles of the U.S war in Iraq. These recent gains by extremists, and the apparent inability of the Iraqi government to exercise control over its territory, have many in U.S. foreign policy circles worried.

Many blame Iraqi Prime Minister Nuri al-Maliki for the uptick in violence, arguing that his heavy-handed policies toward the Sunni minority laid the groundwork for the current insurgency. (e.g. here) Others blame the Obama administration for failing to successfully negotiate a Status of Forces Agreement (SOFA), which would have allowed a small residual U.S. force to remain in the country to help train the Iraqi army and conduct counterterrorist operations. The claim that such forces would have been able to exert great leverage over the Iraqi political class, and that Obama himself bears some blame for the violence because he withdrew U.S. troops rather than leave them in Iraq without a SOFA, ignores that our forces were unable to fix Iraq’s shattered political system even when they were in Iraq in large numbers. (More on this here.)

Iraqi politics, Iranian influence, and a spillover of violence from the Syrian civil war make the situation far more complex than most want to admit. It’s one thing to assign blame, it’s quite another to find solutions.

At an upcoming Cato policy forum, “Understanding the Continuing Violence in Iraq,” experts will provide context for the current situation, outline obstacles facing the Iraqi government, and debate what role, if any, the United States should play. Speakers include Douglas Ollivant of the New American Foundation, who wrote on this subject earlier this month, and Harith Hasan who, with Emma Skye, commented on Iraqi politics here last year, and has also written a book on the subject.

The event begins at Noon, on Tuesday, February 12th. To learn more, and to register, click here.

Categories: Policy Institutes

Wall Street Journal on Jury Nullification

Thu, 01/23/2014 - 15:40

Tim Lynch

Today, the Wall Street Journal has an article about recent developments to revive the doctrine of jury nullification.

Here’s an excerpt:

Juries in criminal cases in the U.S. have long had the power to acquit using the nullification principle. But New Hampshire is the only state in recent years to take steps to ensure juries in the state are aware of the concept.

The New Hampshire bill is a follow-up to one the state legislature passed in 2012 that explicitly says lawyers are allowed to tell jurors about nullification. That law has led to more defense lawyers urging juries to disregard the law if they find it unfair or overly harsh, say several New Hampshire lawyers.

The action that New Hampshire has taken on nullification has raised hopes of a revival of the idea among some constitutional scholars, defense lawyers and legislators in other states who view it as a way to boost civic engagement and cut down on what they see as overly aggressive prosecutions.

“What New Hampshire is doing represents the most significant development with jury nullification in a long, long time,” said Tim Lynch, the director of the libertarian Cato Institute’s criminal-justice project. “We’re hopeful that this marks the start of a resurgence.”

Not everyone shares his enthusiasm. Nullification is an “extremely dangerous notion,” said Scott Burns, executive director of the National District Attorneys Association.

I understand ‘disagree with’ and ‘have reservations about,’ but ‘extremely dangerous’? Please. 

Remember all the discretion that resides with the government. The police officer who can opt to tell the drunk: “quiet down and go home to sleep,” instead of taking him in for disorderly conduct. The prosecutor who can opt to dismiss charges–even if another, less busy prosecutor might files those charges. Jury nullification is about allowing the jury some discretion.

Cato has the most comprehensive book on the subject. Related items here and here.

Categories: Policy Institutes

Costa Rica’s Growth Paradox

Thu, 01/23/2014 - 14:02

Juan Carlos Hidalgo

Can a country enjoy a relatively high growth rate for a quarter of a century and still be unable to reduce its poverty rate? That’s the case of my homeland, Costa Rica, which happens to have a critical presidential election on February 2.

For over 25 years Costa Rica’s growth rate has averaged 4.7 percent a year – one of the highest in Latin America – and yet the country’s poverty rate has been stuck at around 20 percent since 1994. Even worse, Costa Rica is one out of only three Latin American countries where inequality has risen since 2000.

Today, I’ve published a study looking at some of the causes. Even though Costa Rica has undergone a substantial liberalization process since the mid-eighties, the country’s economic model is still in significant ways based on a mercantilist system that is biased in favor of certain sectors of the economy at the expense of the poor. You can read the paper here.

Categories: Policy Institutes

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