Overcriminalization is a significant problem in the United States, particularly federal overcriminalization. There are a variety of reasons for this, but one is that federal prosecutors consistently stretch laws to encompass conduct that the law was never meant to cover. Normal people who committed minor infractions will often find themselves facing long prison sentences that are entirely disproportionate to the wrongness of the act. Such is the case in an upcoming Supreme Court case, Yates v. United States.
While commercial fishing in the Gulf of Mexico, John Yates had his catch inspected by the Florida Fish and Wildlife Commission for whether it complied with size restrictions. Finding some undersized fish, officials cited him for a civil violation and he was ordered to bring the undersized fish back to the docks. Instead, he threw them overboard. While he probably knew he would face a fine, what he could not have foreseen was his subsequent criminal prosecution under the Sarbanes-Oxley Act three-years later.
Sarbanes-Oxley was enacted in the wake of the Enron financial scandal and cover-up. It includes a document shredding provision, Section 1519, that punishes those who knowingly destroy or conceal “any record, document, or tangible object” in order to impede an investigation. To Mr. Yates’s surprise, he was convicted of violating Section 1519 and sentenced to 30 days in prison and three years of supervised release. On appeal, the Eleventh Circuit upheld his conviction by narrowly focusing on the dictionary definition of “tangible object.”
Now, on appeal to the Supreme Court, Mr. Yates asks the Court to overturn his conviction on the ground that he did not have fair notice that the destruction of fish would fall under Section 1519. We agree. In an amicus brief supporting Mr. Yates, Cato argues that well-established canons of statutory construction—that is, the rules that guide judges in interpreting statutes—do not allow Section 1519 to be reasonably interpreted to apply to fish. Those canons teach us that a word in a statute, such as “tangible,” should be given more precise content based on its surrounding words, and that it should only be applied objects similar to the precise words preceding it. In short, the other words in the statute, such as “record” and “document,” modify the term “tangible object” to include things like hard drives and diskettes, not fish.
Moreover, an all-encompassing reading of “tangible object” would render the words “record” and “document” unnecessary. Additionally, the broader context of the Sarbanes-Oxley Act illuminates the meaning of “tangible object.” The Act focuses on financial fraud in the context of companies, not destroying fish. Thus, the words “tangible object” should be read differently in Sarbanes-Oxley than they would be in, say, the Federal Rules of Criminal Procedure. If the term “tangible object” is read as broadly as the Eleventh Circuit’s interpretation, it could potentially criminalize an unfathomable range of activities. As such, it would not provide adequate notice to those who may violate the law. Individuals have a right to fair notice of what conduct is proscribed by the law so they may plan their actions accordingly. Legislatures, not courts, should define criminal activity.
Read Cato’s brief here.
Michael F. Cannon
At a forum sponsored by Khosla Ventures, Google co-founders Sergey Brin and Larry Page discussed the burden of health care regulations in the United States. When asked, “Can you imagine Google becoming a health company?”, Brin responded:
Health is just so heavily regulated, it’s just a painful business to be in. It’s just not necessarily how I want to spend my time. Even though we do have some health projects, and we’ll be doing that to a certain extent. But I think the regulatory burden in the U.S. is so high that I think it would dissuade a lot of entrepreneurs.
I am really excited about the possibility of data also to improve health. But I think that’s what Sergey’s saying. It’s so heavily regulated, it’s a difficult area…I do worry, you know, we kind of regulate ourselves out of some really great possibilities.
But surely, the United States does not have government-run health care.
The discussion begins at about 29:00.Fireside chat with Google co-founders, Larry Page and Sergey Brin with Vinod Khosla
Michael F. Cannon
The latest bit of chatter about a someday-forthcoming ruling from the D.C. Circuit in Halbig v. Burwell is the banter between myself and Washington & Lee University law professor Timothy Jost. (For a quick primer on the Halbig cases, click here. For a comprehensive reference guide to the cases, click here.) Or as my email traffic has described it, “The subtle repartee between Michael Cannon and Tim Jost continues.” And, “What a summer! Argentina vs. Germany, Cannon vs. Jost. What’s next?“
Jost explains that while the Supreme Court’s ruling against the government in Hobby Lobby will not have much of an impact on the Patient Protection and Affordable Care Act, “a number of ACA lawsuits percolating up through the courts could be much more destructive. The theory of these suits seems to be that the drafters of the ACA planted a secret bomb in the heart of the statute.” Jost, along with a federal judge he quotes approvingly, thinks it’s “preposterous” that Congress would have intended to give states the power to block the expansion of health-insurance coverage that’s supposed to happen through the PPACA’s health-insurance “exchanges.”
Never mind that Congress did exactly that with the other coverage expansion – the Medicaid expansion – in the very same bill. Or that Congress has allowed states to block the entire Medicaid program for the past 49 years. Or that that’s how Jost himself proposed Congress could set up the bill’s health insurance Exchanges. Or that in 2009, both Republicans and Democrats introduced legislation that would have conditioned health-insurance subsidies on states establishing Exchanges. Or that, in particular, the other leading bill advanced by Senate Democrats in 2009 also gave states the power to block Exchange subsidies. Or that that’s what Jost admits the plain language of the PPACA “clearly” says.
Forget all that. Following the clear, consistent, uncontradicted language of the statute, which is completely consistent with the law’s legislative history, would be preposterous. Why? Because if the courts implement the law as Congress intended, then not even ObamaCare’s supporters would like how ObamaCare works.
The technical arguments against the Export-Import Bank are provided in this excellent summary by Veronique de Rugy. However, one argument against Ex-Im and other business subsidies is not stressed enough in policy debates: subsidies weaken the businesses that receive them.
Subsidies change the behavior of recipients. Just like individual welfare reduces work incentives, corporate welfare dulls business competitiveness. Subsidies give companies a crutch, an incentive not to improve efficiency or to innovate, as I noted here.
Yesterday, I looked at Chapter 1 of Burton and Anita Folsom’s new book, Uncle Sam Can’t Count, which examines federal fur trading boondoggles of 1795-1822.
Now let’s look at Chapter 2, which focuses on the steamboat industry of the 19th century. The historical lesson is clear: subsidies make companies weak, inefficient, and resistant to innovation.
Here is a thumbnail sketch of the Folsoms’ steamboat story:
- In 1806 New York gives Robert Fulton a legal monopoly on steamboat travel in the state. Breaking this misguided law, a young Cornelius Vanderbilt launches a competitive service in 1817.
- The U.S. Supreme Court strikes down the New York law in 1824. The effect is to usher in an era of steamboat innovation and falling prices for consumers.
- Vanderbilt launches many new steamboat routes whenever he sees an opportunity to drive down prices.
- With subsidies from the British government, Samuel Cunard launches a steamship service from England to North America in 1840. In response, Edward Collins successfully lobbies Congress to give him subsidies to challenge Cunard on the Atlantic route. With this unfortunate precedent, Congress proceeds to hand out subsidies to steamship firms on other routes.
- By the 1850s, Congress is providing Collins a huge annual subsidy of $858,000. Irked by the subsidies and Collins’ inefficient service, Vanderbilt builds a better and faster ship and launches his own Atlantic service.
- In 1856 two of Collins’ inferior ships sink, killing almost 500 people. Collins builds a new ship, but it is so shoddy that it is scrapped after only two trips.
- Congress finally realizes that the aid to Collins is damaging, as it has spawned an inferior and mismanaged business. Congress cuts off the subsidies in 1858. Without subsidies, Collins’ steamship company collapses.
- Vanderbilt also out-competes subsidized steamship companies on the East Coast-to-West Coast route through Central America.
- In England, an unsubsidized competitor to Cunard—the Inman Line—is launched and begins out-competing and out-innovating the subsidized incumbent.
- The subsidized Cunard and Collins aim their services at the high-end luxury market. The more efficient and unsubsidized Vanderbilt and Inman focus on driving down prices for people with more moderate incomes.
- Government subsidies “actually retarded progress because Cunard and Collins both used their monopolies to stifle innovation and delay technological changes in steamship construction.”
Government subsidies have similar negative effects today, whether it is subsidies to energy companies, aid to farm businesses, or the Ex-Im program.
The difference is that in the 19th century Congress eventually cut off subsidies when the damage became clear, as it did with steamship subsidies in 1858 and fur trading subsidies in 1822. Maybe I’m overlooking something, but I can’t think of a business subsidy program terminated by Congress in recent years, or even in recent decades.
Low-income residents of the Twin Cities can rest easy, as planners at the Metropolitan Council, the area’s regional planning agency, are proposing a regional transit equity plan. According to the Metropolitan Council’s press release, this equity plan consists of:
- Building 75 bus shelters and rebuilding 75 existing shelters “in areas of racially concentrated poverty”; and
- “Strengthen[ing] the transit service framework serving racially concentrated areas of poverty” by building bus-rapid transit and light-rail lines to the region’s wealthy suburbs.
Bus shelters for the poor, light rail for the rich: that sounds equitable! Of course, the poor will be allowed to ride those light-rail trains (for example, if they travel to the suburbs to work as servants), just as the well-to-do will be allowed to use the bus shelters. But for the most part, the light rail is for the middle class.
As with most American urban areas, Twin Cities poverty is concentrated in the core cities. Minneapolis and St. Paul have less than a quarter of the region’s population but more than half of the poor and more than 60 percent of the poor blacks. On average, 23 percent of residents of Minneapolis and St. Paul are in poverty, compared with just 7 percent of their suburbs.
The Twin Cities’ first light-rail line–the blue line on the above map–went to Bloomington, where less than 10 percent of people are considered poor. The next light-rail line, the green line east of “the Interchange” in downtown Minneapolis, connected Minneapolis and St. Paul, but it goes from downtown to downtown through the University of Minnesota and a neighborhood that planners hope to convert into a mixed-use, New Urban community complete with creative-class yuppies, fancy restaurants, and organic supermarkets.
The next line to be built–the green line west of Minneapolis–would go to Eden Prairie, with 9 percent poverty and mean per capita incomes that are eight times the $6,000-per-person poverty threshold for a family of four. Census data indicate that 1,100 poor blacks live in Eden Prairie compared with 48,000 in Minneapolis and St. Paul.
After that will be lines to Lakeland and Lakeville, which have 4 percent poverty rates, mean per capita incomes six times the poverty threshold, and just 340 poor blacks. All the other proposed lines on the map go to suburbs with low poverty rates and high incomes.
Perhaps the only one that comes close to serving many low-income people is the proposed line going northwest from Minneapolis to an area unnamed on the map but which is actually Brooklyn Park. Brooklyn Park’s poverty rate is 11.5 percent including 3,200 poor blacks–more than any other suburb that would be served by the proposed rail or BRT lines but less than 7 percent as many as live in Minneapolis and St. Paul.
According to the 2012 American Community Survey, 13 percent of Twin Cities commuters whose incomes are below the poverty level take transit to work, while 61 percent drive alone and 14 percent carpool. Only 3 percent of Twin Cities workers live in households with no cars, and 39 percent of those drive to work (most of them driving alone, presumably in borrowed cars) compared with 37 percent taking transit. Transit clearly isn’t working for low-income people today, and it’s hard to see how a few bus shelters plus trains to the suburbs will help.
Many if not most Twin Cities suburbs are already served by express buses that are probably faster than the light-rail lines the council wants to build. On the other hand, inner-city neighborhoods tend to be served by local buses that stop frequently and therefore have low average speeds.
Let’s say bus service to the suburbs averages 20 mph and light rail can increase this average to 24 mph. By comparison, bus service in inner cities averages 10 mph and improvements can increase this to 12 mph. Which would save people the most time? Increasing speeds from 20 to 24 mph would cut one-half minute off the time it takes to go one mile, but increasing speeds from 10 to 12 mph would cut a full minute off the time to go a mile. What this means is that, to really improve transit service, transit agencies should concentrate on increasing the speeds of their slowest transit services, not ones that are already fast. That usually means inner-city buses, not suburban lines.
If the Metropolitan Council truly wanted to help low-income people, it would concentrate on improving bus service rather than building light-rail to the suburbs. But the council is apparently more interested in getting federal funds for rail transit than helping the poor. By calling this “transit equity,” it hopes that no one notices how inequitable it actually is.
Christopher A. Preble
Cato hosted a discussion of The Kennan Diaries today. Editor Frank Costigliola read the following entry, from June 1944, which George Kennan wrote during a three-day stop in Baghdad, on his way to Moscow. I can’t help but hear echoes of Colin Powell’s infamous pottery barn warning, and other cautionary notes that went unheeded in the weeks and months before the invasion of Iraq in 2003. And, as further evidence that we haven’t learned the right lessons from Iraq, there are still those wishing that we had never left Iraq, or that we should go back in. They might ponder these words from a man who knew little about Iraq, but who knew his own country all too well.
[The Iraqi] people has now come just enough into contact with Western life so that its upper class has a thirst for many things which can be obtained only in the West. Suspicious and resentful of the British, they would be glad to obtain these things from us…
If we give them these things, we can perhaps enjoy a momentary favor on the part of those interested in receiving them. But to the extent that we give them,…we acquire, whether we wish it or not, responsibility for the actions of the Iraqis. If they then begin to do things which are not in our interests, which affect the world situation in ways unfavorable to our security,…we then have ourselves at least in part to blame, and it is up to us to take the appropriate measures.
Are we willing to bear this responsibility? I know, and every realistic American knows, that we are not. Our Government is technically incapable of conceiving and promulgating a long-term consistent policy toward areas remote from its own territory….
Those few Americans who remember something of the pioneer life of their own country will find it hard to view the deserts of Iraq without a pang of interest and excitement at the possibilities for reclamation and economic development. If trees once grew here, could they not grow again? If rains once fell, could they not again be attracted from the inexhaustible resources of nature? Could not climate be altered, disease eradicated?
If they are seeking an escape from reality, such Americans may even pursue these dreams and enter upon the long and stony road which could lead to their fruition. But if they are willing to recall the sad state of soil conservation in their own country, the vast amount of social improvement to be accomplished at home, and the inevitable limitations on the efficacy of our type of democracy in the field of foreign affairs–then they will restrain their excitement at the silent, expectant possibilities of the Iraqi desert, and will return, like disappointed but dutiful children, to the sad deficiencies and problems of their native land.
Over at Cato’s Police Misconduct web site, we have identified the worst case for the month of June. Police officer Ronald Harris tried to rob a woman at the Memphis International Airport. This was an extraordinary theft. Harris was trying to steal a bag from an employee of St. Jude Children’s Hospital who was, in turn, delivering the bag to a family. The bag was a gift from the Make-A-Wish Foundation—the organization that grants wishes to terminally ill children. The bag held several St. Jude t-shirts and a $1500 credit card for the family to use for travel. Harris followed the St. Jude employee into the airport and then struck a member of the family who tried to stop him from stealing their wish away. Harris has been suspended pending an investigation and faces a long list of charges. Police misconduct is never good, but plotting to steal the wish from a terminally ill child and their family is just really low.
Full story here.
Peter Van Doren
Yesterday the New York attorney general reached a deal with the company Uber to cap its “surge” pricing during emergencies. The company, which uses an app to summon cars via a user’s smartphone, uses an algorithm that increases prices during periods of high demand, including emergencies and bad weather, to encourage more of its drivers to work. The agreement was reached in accordance with the City of New York’s law against price gouging, passed in 1979.
Was the agreement a good idea? In the cover story of the Spring 2011 issue of Regulation, Texas Tech researcher Michael Giberson examines the role of high prices and the resistance to them during emergencies.
Many people object to high prices during emergencies. The use of high prices by Uber after Hurricane Sandy prompted a Time writer to describe Uber’s pricing as “economically sound, ethically dubious.” Michael Sandel, professor of government at Harvard, is quoted in the Regulation article saying “A society in which people exploit their neighbors for financial gain in times of crisis is not a good society… . By punishing greedy behavior rather than rewarding it, society affirms the civic virtue of shared sacrifice for the common good.”
In response, Giberson argues “If it is admitted that giving merchants the freedom to pick their own prices does a better job than alternative ways of getting goods and services to where they are needed, then interference with that pricing freedom … harms precisely those persons who have been already harmed by the disaster, a result that suggests neither shared sacrifice nor promotion of a common good.” In addition, he argues it is unfair to “place a particularized obligation to sacrifice on a discrete segment of society, namely merchants. Addressing the particular hardships faced by the poor during emergencies is a task better left to government agencies or charities.”
Price gouging laws are an attempt to deny the economic realities of emergency situations. Price gouging laws reduce the incentives to provide needed goods and services in areas affected by emergencies and disasters. The cap on Uber’s surge pricing may make its customers happy now, but they may not be so happy when they wait hours for an Uber during the next blizzard, thunder storm, or other disaster. The writer concluded that “Price gouging might, at least in theory, help shrink lines and reduce shortages. But I think most people would rather wait in line than have someone make a windfall profit off their desperation.” With this agreement we will conduct the experiment to test his theory.
Anyone who thinks that Washington waste is something new should examine the history of the Bureau of Indian Affairs (BIA). This essay discusses the mismanagement, corruption, and failures of the BIA since it was created in 1824.
As early as 1828, Indian expert H. R. Schoolcraft concluded: “The derangements in the fiscal affairs of the Indian department are in the extreme. One would think that appropriations had been handled with a pitchfork … there is a screw loose in the public machinery somewhere.”
By the 1860s and 1870s, New York Times editorials were railing against the “dishonesty which pervades the whole Bureau,” and arguing that “the condition of the Indian service is simply shameful.”
In their recent book, Uncle Sam Can’t Count, Burton and Anita Folsom describe the failure of a major Indian policy even before 1824. Here is the basic story:
• Unhappy that British fur traders were out-competing American traders, Congress appropriated $50,000 in 1795 to create frontier posts stocked with American goods to trade with the Indians for furs.
• These government-run fur “factories” were supposed to earn a return, but they “were so poorly run that many Indians held them in contempt and refused to trade there.” Congress had to heavily subsidize the system to keep it operating.
• Rather than respond to the market demands of the Indians, as private traders did, the official running the government system, Thomas McKenney, tried to push products on the Indians that he thought they ought to have.
• The government set up its trading posts at substantial distances from Indians. By contrast, private fur trader John Jacob Astor had his agents build close relationships with Indians, and he made trading easy for the tribes.
• Astor instituted pay for performance, while the government paid its fur bureaucrats fixed salaries.
• Astor watched international fur markets closely and adjusted his operations and marketing accordingly. The government ignored markets, and simply dumped furs in Washington for auction.
• Thomas McKenney was embarrassed by the government’s falling market share and the huge success of Astor. So, in 1818, McKenney began lobbying Congress to ban private fur traders. When that attempt at monopolization failed, McKenney lobbied to impose large fees on private traders and to boost taxpayer subsidies for the government system.
• Despite a new fee on private traders in 1820, the government system was falling apart because of plunging sales. An official report exposed the huge inefficiencies of the government system, and Congress finally voted to end it in 1822.
Long before Solyndra and the Export-Import Bank, politicians should have learned some basic lessons about why Washington ought to stay out of business. Unfortunately, each new generation of politicians are tempted to believe that enlightened federal planners can run the economy better than businesspeople and markets. Rather than wasting hundreds of thousands of dollars as it did two centuries ago, Congress blows billions of dollars today on new versions of its fur-trading folly.
Every country wants a national airline, and every city wants a glitzy convention center to bring those free-spending conventioneers to town. But the economic analysis doesn’t hold up well in either case. A new book on convention centers should be required reading for any city council thinking of investing the taxpayers’ hard-earned money in another white elephant. This report by Don Bauder in the San Diego Reader is worth quoting at length:
Would you take advice from a gaggle of consultants whose forecasts in the past two decades have been off by 50 percent?
Of course you wouldn’t. But all around the U.S., politicians, civic planners, and particularly business executives have been following the advice of self-professed experts who invariably tell clients to build a convention center or expand an existing one.
A remarkable new book, Convention Center Follies: Politics, Power, and Public Investment in American Cities, published by the University of Pennsylvania Press, tells the amazing story of how one American city after another builds into a massive glut of convention-center space, even though the industry itself warns its centers that the resultant price-slashing will worsen current woes.
The author is Heywood Sanders, the nation’s ranking expert on convention centers, who warned of the billowing glut in a seminal study for the Brookings Institution back in 2005. In this new, heavily footnoted, 514-page book, Sanders, a professor of public administration at the University of Texas/San Antonio, exhaustively examines consultants’ forecasts in more than 50 cities.
Nashville was told its new center would result in 466,950 hotel room nights; it’s getting around 267,000 — “a little better than half [what was projected],” says Sanders in an interview. Philadelphia isn’t garnering even half the business that was promised.
“Getting half the business [that was projected] is about the norm,” says Sanders. “The actual performance is a fraction of what it is supposed to be.”
Yet, in city after city — including San Diego — self-appointed civic leaders listen to and act on these faulty forecasts. In almost all cases, mainstream media and politicians swallow the predictions whole without checking the consultants’ miserable track records….
How can convention centers get away with such legerdemain? Those in the know shut up, and the press, politicians, and public have neither the time nor the expertise to follow the prestidigitation.
How do the consultants get away with being 50 percent wrong most of the time? In my opinion — not Sanders’s — consultants in many fields are paid to provide answers that the people paying the consultants’ bills want to hear. And the people paying those bills are the business community — using taxpayers’ money, of course.
The worst news: “These expansions will keep happening,” as long as “you have a mayor who says it is free,” says Sanders.
The federal government has taken over ever larger swaths of American life, most recently health care. ObamaCare demonstrates that as state dictates expand, religious liberties recede.
The Supreme Court’s ruling in Burwell v. Hobby Lobby was extremely narrow but also extremely important. Religious liberty is the first freedom and must be protected from government.
The Founders chose not to create a church-based government. Previous experiments had turned out tragically for both human liberty and religious faith.
Religion’s relationship to politics has become more important as politics has swallowed more of American life. In 1789, the new national government was minuscule. Moreover, in America’s early days, there was a shared Biblical worldview, if not faith, and a common belief in the value of civil religion.
However, that world has disappeared. Today there is little government does not do, pushing ever more aspects of life into the public square. Equally important, Americans have increasingly divergent views of the transcendent. The First Amendment simultaneously guarantees individuals the right to practice and denies government the right to impose. There may be no more tortured area of federal jurisprudence.
But no doctrine appears to adequately take into account the steady expansion of government. I argue in my new column on Forbes online: “Since the state not just touches but controls far more of society, it threatens to marginalize religion by creating what Richard John Neuhaus called the ‘naked public square.’ A new approach is necessary to implement the Founders’ vision, protect the spiritual liberty of all, and encourage political peace.”
The prohibition against government promotion of sectarian faith or particular churches should be absolute. Doing so would be the most unfair, divisive, and contrary to the principles of a free society.
There should be strong protection from even unintentional infringement of religious practice. In general, the government’s default position should be to respect liberty. A serious infringement should require a compelling interest as justification. Unfortunately, bitter confrontations have increased as government has expanded its role. As with the Washington’s contraceptives mandate.
Prudential balancing should determine cases in the expanded public square. In many instances government involvement—providing services, funding programs, and owning property—can be seen either as establishing religion or protecting free exercise.
As government moves beyond its core functions, it increasingly threatens Americans’ spiritual beliefs. Today states and especially the national government intrude in education, health care, charity, employment, social services, job training, and more. Government prohibitions become, in effect, bans on private expression.
Of course, allowing manifestations of faith after the state is involved also may challenge those of no faith or different faiths. Sufficient space is required for all people. Setting religious parameters for the public square requires careful balancing—and considering how much government is necessary.
Lawmakers should minimize state involvement to reduce the need for winner-take-all political decisions. For instance, government should reduce barriers to private schools and home schooling, which allow people to follow their faith without infringing the beliefs of others.
Where government is providing money, such as for social services, religious organizations should be able to participate like secular agencies. At the same time, decisions should be transferred from lawmakers to taxpayers. For instance, privatizing schools while providing financial support to poor families would reduce conflict over moral education. Allowing people to take larger tax deductions or credits for charity is better than sending taxpayer funds to social service agencies.
The Hobby Lobby decision was second best. The best way to prevent misuse of the state by clerics and misuse of religion by politicians is to keep government small. Until then, Americans will be forced to increasingly call upon the First Amendment and legislation like Religious Freedom Restoration Act, upon which Hobby Lobby as decided, to protect their religious liberty.
North Korea has imprisoned one American since 2012 and announced its intention to try two other U.S. citizens recently arrested for “perpetrating hostile acts.” Having no diplomatic relations with the Democratic People’s Republic of Korea, the Obama administration cannot even inquire as to the prisoners’ welfare. The U.S. should open official ties with the DPRK.
Recognition confirms geopolitical reality rather than validates government policy. Nevertheless, politics long has dominated diplomacy surrounding the Korean peninsula.
Washington and Pyongyang never recognized each other. South Korea and Japan also do not have relations with the North. Throughout the Cold War the Soviet Union and People’s Republic of China did not deal with the Republic of Korea.
But after the end of the Cold War Russia and then China recognized the South. In contrast, two decades later the allied powers still have not formally acknowledged North Korea’s existence.
After all, the North is building nuclear weapons, developing long-range missiles, conducting a confrontational foreign policy, and violating human rights. But this bill of particulars also largely applied to the Soviet Union, with which Washington maintained official ties throughout the Cold War, and the PRC, with which the Nixon administration opened relations.
Refusing to talk with Moscow would have been grossly irresponsible because the two nations confronted each other militarily around the globe. Worse, as I point out in my new article on National Interest online: “The lack of any diplomatic channel between America and the PRC during the Korean War may have expanded that conflict. Beijing had no effective means to warn against the U.S. advance to the Yalu.”
While Pyongyang is not a global power, its activities affect America. Which means there is much for the United States and North Korea to talk about.
Negotiations obviously don’t guarantee results. Both multilateral and bilateral discussions have occurred outside of official diplomatic channels. Most of the deals ingloriously collapsed.
However, the lesson is not that ongoing relations are valueless, but that big agreements are unlikely, whatever the negotiating framework. For instance, Pyongyang is unlikely to give up its existing nuclear arsenal. Nevertheless, secondary but still important objectives may be achievable.
First, treating Pyongyang as a diplomatic equal would meet one of the DPRK’s longstanding demands. Second, sitting down with North Korea might help moderate the regime’s natural paranoia. Third, more regular discussions would help American officials better understand the Kim regime. Fourth, routine contacts would allow talks to develop informally over time.
Of course, Washington might find itself disappointed on all counts. But even a negative result would be an important lesson for America, and even more so for China, which has pressed Washington to engage North Korea.
No doubt, critics would complain that initiating diplomatic ties was a “reward” for the North. However, as the world’s dominant power, America could afford to make such a faux concession.
Moreover, opening a small mission would be less embarrassing than having to periodically send Bill Clinton or Dennis Rodman to the North to rescue jailed Americans. And simply having a small window into North Korean society would be useful.
Now is a propitious moment for Washington to move. The DPRK remains heavily dependent on China, which evidently makes the former uncomfortable. With PRC-ROK relations improving—President Xi Jinping recently visited Seoul—the North has been looking elsewhere. It is talking to Tokyo and rebuilding ties with Russia.
Washington should offer North Korea another alternative. Critical issues divide the two nations, of course, but they do not prevent diplomatic footsie. Present policy obviously is not working. Why not try something else?
The Obama administration should offer to talk with North Korea. Doing so might change nothing, but that would be no worse than the status quo and the results just might surprise.
Andrew J. Coulson
Education secretary Arne Duncan has just announced the Obama administration’s latest initiative to improve educational quality for low-income and minority students: pressure states to measure the distribution of “quality” teachers across districts; and then to make that distribution more uniform. The emphasis is on the pursuit of equity rather excellence. In fact, a state could make a massive leap forward on this scale by simply randomizing the assignment of public school teachers to schools. And if it turned out that some districts were badly managed and actually had a consistently negative effect, over time, on the performance of their teachers, well then the randomized teacher assignment process could be repeated every school year—or even every half-year!
But is a uniform distribution of today’s “quality” teachers really the best we can do for low-income and minority students (or, for that matter, everyone else)? Would they be better off today if Arne Duncan’s and Barack Obama’s equity focus had driven, say, the telelphone industry over the last century? Back around 1900, most telephones were hand-cranked, and not everyone had one. Would the poor, minorities, and others be better off today if we had achieved and maintained a perfectly equitable distribution of hand-crank phones?
The alternative, of course, is what we do have: a vigorously competitive phone market that has given rise to cell phones and then smart phones containing super-computers, global positioning satellite receivers, wireless networking, etc. But of course only rich whites have cell phones and smart phones, right? Not according to Pew Research. Based on 2013 data,
92% of African Americans own a cell phone, and 56% own a smartphone… blacks and whites are equally likely to own a cell phone of some kind, and also have identical rates of smartphone ownership.
In fact, Pew’s comparable smart-phone ownership figure for whites is 53%, but the difference is not statistically significant. With regard to income, Pew finds a 9 point difference in smartphone ownership between those making < $30,000 and those making between $30,000 and $49,999. Most of that difference seems to be accounted for by age, however. Among 18-24 year olds, 77% of those making < $30,000 own a smartphone vs. 81% for those making $30,000 to $74,999.
So pretty much everyone who wants one now has a cell phone which is rather more functional than the old hand cranked variety, and the majority of young people, at all income levels, even have smartphones. That’s a relatively high level of equity, coupled with excellence. Brought to you, again, by a competitive industry. Could the federal government’s Lifeline (a.k.a., “ObamaPhone”) phone subsidy programs be helping out? Certainly, to some extent. Though it’s far from true that every low-income American’s cell phone is paid for by Uncle Sam.
Ironically, many of the people who staunchly support subsidized access to the cell phone marketplace are dead set against programs that subsidize access to the educational marketplace. They’d much rather just redistribute teachers within our hand-crank-era public school systems, sentencing everyone—rich and poor alike—to more generations of academic stagnation. We can do better. We can encourage the same dynamism, choice, and entrepreneurship in education that have driven the fantastic progress in every other field, and we can ensure universal access to the educational marketplace via state-level education tax credit programs.
The Pew Research Center recently issued a major study of political ideology in America, based on 10,000 interviews early this year. That’s far bigger than most polls, so it allows more detailed examination of diverse political opinions. Indeed, the study is titled “Beyond Red vs. Blue: The Political Typology.” And yet, disappointingly, it continues to try to place Americans into red and blue boxes: different groups are characterized as “consistently” liberal or conservative, or as groups that “don’t hold consistently liberal or consistently conservative views.” There’s no suggestion that there might be consistent views other than contemporary liberalism and conservatism.
Take the interesting discussion of the “Young Outsiders” group:
Young Outsiders lean Republican but do not have a strong allegiance to the Republican Party; in fact they tend to dislike both political parties. On many issues, from their support for environmental regulation to their liberal views on social issues, they diverge from traditional GOP orthodoxy. Yet in their support for limited government, Young Outsiders are firmly in the Republicans’ camp….
Young Outsiders share Republicans’ deep opposition to increased government spending on social programs. About three-quarters of Young Outsiders (76%) say the government can’t afford to spend more to help the needy.
However, the Young Outsiders’ generational imprint on issues like homosexuality, diversity and the environment make the Republican Party an uncomfortable fit. In views of societal acceptance of homosexuality, for instance, Young Outsiders have more liberal views than the public overall, and are much more liberal than Republicans….
The Young Outsiders today are very different, as they share the GOP base’s deep skepticism of government programs, but favor a more limited foreign policy, and hold decidedly liberal social views.
As I read this, I keep thinking there’s a word at the tip of my tongue … wait a minute … Oh, I know: The Young Outsiders hold libertarian views. Was that so hard?
Indeed, they’re not so different from the voters that David Kirby and I identified eight years ago in “The Libertarian Vote”: 14 to 15 percent of the electorate, fiscally conservative, socially liberal, likely but not certain to vote Republican in most elections. Yet in the complete 185-page report, the Pew researchers never associate the word “libertarian” with the Young Outsiders.
Perhaps surprisingly, on page 101, they do identify a different group, the Business Conservatives, as somewhat libertarian:
Business Conservatives are traditional small-government Republicans. Overwhelming percentages think that government is almost always wasteful and it does too much better left to businesses and individuals….
Business Conservatives are more likely than other typology groups to identify as “libertarians,” though just 27% say that term describes them well. Their political values and attitudes do reflect a libertarian philosophy in some respects, though there are important differences as well….
Business Conservatives are not liberal on most social issues, but they are more progressive than Steadfast Conservatives. For instance, while nearly half of Business Conservatives (49%) oppose same-sex marriage, 58% say homosexuality should be accepted rather than discouraged.
That seems a somewhat less libertarian profile than the Young Outsiders, though it would be interesting to know how many Young Outsiders accept the description “libertarian.” (In a question asking “Which of these describes you well?” with “Video or computer gamer, Outdoor person, Libertarian, Religious person, and Focused on health and fitness” as the presumably non-exclusive options.)
One strange thing about Pew’s ongoing “Political Typology” series is its mutability. Every few years the center does another huge survey and classifies Americans by ideology. But the classifications keep shifting. In 2005 you could see a few libertarian voters in the “Enterprisers” category, and other groups included Upbeats and Disaffecteds. In 2011 the Libertarians got their own category and were characterized as independents, not Republicans. Now the libertarians are invisible again, but can be ferreted out in one of the Republican groups. Either Americans wander all over the map, or Pew researchers just like a little variety.
Washington Post reporter Dan Balz made good use of the Pew poll to explore the meaning of “the political center.” He correctly points out that “the fact that people who may be classified as part of the political middle aren’t necessarily in the middle of the electorate and doesn’t mean they really are moderate in their views.” And he quotes Gary Jacobson, a political science professor at the University of California at San Diego, on the political middle: “It does not form a potentially coherent coalition around which some political entrepreneur might build a centrist party.” All true, partly because people may be “in the middle” between the parties because they’re fiscally conservative and socially liberal (libertarian-leaning) or because they’re fiscally liberal and socially conservative (populist or authoritarian-leaning).
Balz adopts Pew’s language about “consistent views”: “People who didn’t fall into the polarized extremes sometimes hold views similar to those who are. They’re just not consistent about it.” But maybe they are consistent. Maybe some of the Young Outsiders and Business Conservatives think government coercion tends to be a bad way to handle both personal and economic matters. And maybe some other voters generally trust government more than individuals to manage both economic and social issues. Those aren’t inconsistent views. Indeed, one might argue that it’s the liberals and conservatives – who favor freedom in some areas of life but not others – who are the inconsistent ones.
David Kirby and I have written several studies and numerous shorter pieces on the often-overlooked libertarian voters. Much of that material is collected in the ebook The Libertarian Vote: Swing Voters, Tea Parties, and the Fiscally Conservative, Socially Liberal Center. More recently Kirby wrote about the rising libertarian strength in the Republican Party in this blog post, which might profitably be read in conjunction with Pew’s analysis of Business Conservatives and Young Outsiders.
By the way, based on Pew’s actual questions, which you can answer for yourself, it’s a wonder anyone comes out on the libertarian side. It is, as Matt Welch described an earlier iteration, “a festival of hoo-larious false choices.” But that’s common in polls by political scientists, which typically include a series of questions along the lines of “If people are poor, (a) the government should give them money, or (b) they should quietly accept their fate.”
House Speaker John Boehner (R-Ohio) has announced his intention to sue President Obama for “failure to faithfully follow the nation’s laws” by taking extra-legal executive actions in some areas and failing to execute the laws in other areas such as immigration, judicial appointments, health care, foreign affairs, and so on.
One area where he’s failing to execute the law is Social Security. For instance, the President and his leadership have repeatedly failed to publish on time the Annual Report of the Social Security Trustees, the yearly description of the program’s finances and future outlook. The legal deadline for its publication is April 1. We’re now more than three months past that deadline and there’s no indication that it will appear soon.
Social Security’s trustees include the secretaries of the Treasury, Labor, and Health and Human Services, and the (currently acting) commissioner of the program. There are also two public trustees, nominated by the President and confirmed by the Senate. (Of those last two, at least one must be from the opposing political party.)
It’s well known that Social Security benefits comprise the largest share of income for a majority of the program’s beneficiaries—incomes that they could not do without. So the Trustees’ Report is a crucial document. The information it contains is important to millions of stakeholders—retirees, disability beneficiaries and applicants, financial planners, workers nearing retirement, and others.
Policymakers need to know this information so they can make timely decisions intended to ensure that the program remains on a sound financial footing. For example, the 2013 Report (which didn’t appear until the end of May) estimated that the Disability Insurance (DI) Trust Fund will be exhausted and the program will be unable to pay full benefits at some point in 2016. Not much time remains for lawmakers to consider and enact sensible reforms to DI—and the clock is ticking.
No doubt, there could be valid reasons for publication delays. New information about the program’s financial status may not become available in a timely manner, and the development of new estimates using updated technical methods may take longer than anticipated. However, there are professional cadres of actuaries and economists dedicated to completing this task. They should, more often than not, anticipate such issues, and instances of publication delay should be the exception rather than the rule.
The table below notes the report’s publication dates during the Bill Clinton, George W. Bush, and Obama (to date) presidencies. It shows that the Obama administration has always been consistently and exceptionally late in issuing the report. In only one of the last six instances has Obama’s designees managed to get the report out within one month after the statutory deadline. In contrast, George W. Bush’s administration released five of its eight annual reports on time and always released the report within a month of the deadline; Bill Clinton released three of his eight reports on time and usually managed to issue the report within a month of the deadline. President Obama’s consistently tardy publication record is difficult to attribute to extenuating circumstances.Annual Report of the Social Security Trustees: Publication Date History Year Publication: Day and Date Timely/Late President 2014 ? Late Barack Obama 2013 Friday, May 31, 2013 Late Barack Obama 2012 Monday, April 23, 2012 Late* Barack Obama 2011 Friday, May 13, 2011 Late Barack Obama 2010 Thursday, August 05, 2010 Late Barack Obama 2009 Tuesday, May 12, 2009 Late Barack Obama 2008 Tuesday, March 25, 2008 Timely George W. Bush 2007 Monday, April 23, 2007 Late* George W. Bush 2006 Monday, May 01, 2006 Late* George W. Bush 2005 Wednesday, March 23, 2005 Timely George W. Bush 2004 Tuesday, March 23, 2004 Timely George W. Bush 2003 Monday, March 17, 2003 Timely George W. Bush 2002 Tuesday, April 09, 2002 Late* George W. Bush 2001 Monday, March 19, 2001 Timely George W. Bush 2000 Thursday, March 30, 2000 Timely Bill Clinton 1999 Tuesday, March 30, 1999 Timely Bill Clinton 1998 Tuesday, April 28, 1998 Late* Bill Clinton 1997 Thursday, April 24, 1997 Late* Bill Clinton 1996 Wednesday, June 05, 1996 Late Bill Clinton 1995 Monday, April 03, 1995** Timely Bill Clinton 1994 Monday, April 11, 1994 Late* Bill Clinton 1993 Wednesday, April 06, 1993 Late* Bill Clinton * Report published within 1 month after the legal deadline of April 1st. **April 1st was a Saturday.
There are other instances of slippage by the Social Security Administration in executing the program’s laws faithfully. For instance, two members of the House Subcommittee on Energy Policy, Health Care and Entitlements—Reps. James Lankford (R-Okla.) and Jackie Spier (D-Calif.)—recently issued a stern letter to Social Security’s acting commissioner, Caroline Colvin, charging the agency with consistently failing to “confront the problems of rapidly rising disability rolls” and “abdicating its responsibility to protect the truly disabled and taxpayers from out-of-control ALJs (Administrative Law Judges) who refuse to follow the law.”
Such failures are symptomatic of a failing presidency. Multiply the likelihood of poor compliance with the law across all government departments—you be the judge on whether that’s happening—and President Obama’s historic low poll ratings (currently in the low 40s) seem surprisingly high. It brings to mind an important sound-bite from the 2008 presidential campaign: Hillary Clinton’s question about who would be more competent to answer a 3 AM phone call on a policy emergency. The White House phones must be ringing constantly, like church-bells.
Michael F. Cannon
A panel of the U.S. Court of Appeals for the D.C. Circuit, which is often referred to as the second-highest court in the land, is expected to rule any day now on Halbig v. Burwell, a legal challenge that “may actually crush,” “kill,” and “wreck” the Patient Protection and Affordable Care Act, a.k.a. Obamacare.
The tax-law journal Tax Notes has chosen the law-journal article that got Halbig and similar cases rolling – Jonathan H. Adler and Michael F. Cannon, Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA, Health Matrix: Journal of Law-Medicine 23, No. 1 (2013): 119-195 – as one of “the 10 law most noteworthy law review articles on employee benefits and executive compensation issues published in 2013 that a broad audience of employee benefits professionals would find relevant and worthy of attention.” Tax Notes calls the Adler-Cannon article “innovative and thought provoking” and one that “practitioners should have read” in 2013.
A June 24 article in the Washington Post looked at sea level rise in North Carolina. Unfortunately, the article followed a common template of portraying a battle of science vs. conservative politics and environmentalism vs. capitalism. But as I noted here about water and drought in the West, liberals and libertarians can agree on the benefits of cutting anti-environmental subsidies.
My Washington Post letter on Friday pointed to the newspaper’s omission of the government subsidy angle:
There is disagreement about rising sea levels on the North Carolina coast, but there is one reform that all policymakers should support: ending subsidies that promote building in high-risk places. For decades, the National Flood Insurance Program has allowed people on the sea coasts to buy insurance with premiums less than half the market level, and the program does not cut off people even after multiple floods. Meanwhile, the Army Corps of Engineers continually rebuilds beaches, thus encouraging development in areas that nature is trying to reclaim. Ending this wave of subsidies would be sound fiscal and environmental policy.
Polish Ambassador Ryszard Schnepf has a tough job: making nice with American officials after his boss in Warsaw, Foreign Minister Radoslaw Sikorski, indiscreetly denounced Poland’s alliance with America as “worthless.” The ambassador responded to my earlier article and made a convincing case that Poles and Americans are friends. He had less success in explaining why Washington should extend a security guarantee to Warsaw, putting U.S. citizens at risk in any the war that might result.
NATO is a military alliance. But as I point out in my latest article in National Interest online, “in the aftermath of the Cold War American policymakers treated the organization like a venerable social club. When a bunch of old friends showed up after the Iron Curtain collapsed, the decent course seemed to be to invite them to join.”
Notably absent from the discussion at the time was consideration of the most important characteristic of military alliances: a willingness to go to war. In the euphoria of the moment that possibility was simply assumed away.
However, Vladimir Putin’s Crimean adventure set off fevered demands from NATO’s newer members for the alliance to return to its old purpose. Polish officials, including Minister Sikorski, have been particularly insistent that the U.S. put its full military faith and credit on the line for Poland.
The advantage of this approach for Poland is obvious. But the benefits for America are not. “Friendship and mutual trust,” cited by Ambassador Schnepf, are not the same as strategic interest.
There’s a wonderful history, of course, with such celebrated figures as “Kosciuszko and Pulaski who aided Washington in the American Revolution,” noted the ambassador. But the memory is no justification for Washington going head-to-head with a nuclear power, if necessary, more than two centuries later.
More recently Polish personnel have served “responding to the challenges faced by the global community, such as humanitarian disasters or terrorist threats.” Presumably Warsaw took those stands to serve the “global community,” and not as a pay-off for an American defense guarantee.
If Poland did act for more self-interested reasons, the U.S. got by far the worse deal. Warsaw provided marginal aid in wars that America should not have fought. In exchange Washington is supposed to prepare for global war with Russia.
Yet the Polish government seems to assume a sense of entitlement. Minister Sikorski and his colleagues insist on concrete “reassurance.” At the same time, Poland won’t sacrifice to build up its own military.
Ambassador Schnepf proudly announced that “Polish authorities pledged to spend 2% of GDP on defense expenditures, thus being one of very few Alliance members to reach this NATO benchmark.” That’s not much of a standard, however.
Despite enjoying rapid economic growth, Warsaw has made no extra effort to improve its defenses as a “front-line state.” Instead of doing more, Poles want America to do the job for them, by establishing a military tripwire at their border.
Which leaves the ambassador to argue, who cares about strategic importance? Washington should guarantee Poland’s security because the Poles are nice people. Of course, it’s always easier to be generous with other people’s lives and money, especially on your own people’s behalf.
Moreover, there are lots of nice people in the world. But that’s no reason to turn Washington into the guardian for them all. The U.S. should maintain alliances only when doing so makes Americans safer. Backing Poland against Russia does not.
There is much to appreciate about Polish-American ties over the years, even centuries. So, too, should Americans sympathize with the fact that Poland is located in a bad neighborhood.
However, neither point is an argument for defending Poland. The promise to go to war should be limited to cases where the American people have fundamental, even vital interests at stake.
Defenders of the status quo in education have long used lawsuits to protect themselves from competition and force state legislatures to increase funding. Lately, rather than merely play legal defense, some education reformers have turned to the courts to push reform. In some cases, the long-term prospects of positive reform through litigation are slim, even when the court’s ruling is favorable.
However, one lawsuit currently making its way through the court system has the potential to remove a major obstacle to reform: compulsory union dues. In 19 states, would-be government school teachers are forced either to join the teachers union or to remain a non-member but pays dues anyway—sometimes more than $1,000 per year.
The unions contend that these compulsory dues are necessary to overcome the free rider problem (non-union members may benefit from the collectively-bargained wages and benefits without contributing to the union), but plaintiffs in Friedrichs v. California Teachers Association point out that numerous organizations engage in activities (e.g. – lobbying) that benefit members and non-members alike without giving such organizations the right to coerce non-members to pay. That’s especially true when the individuals who supposedly benefit actually disagree with the position of the organization. Indeed, the plaintiffs argue that the compulsory dues violate their First Amendment rights because collective bargaining is inherently political:
Current federal law allows union workers to opt out of the political portion of union dues — for California teachers that usually amounts to between 30 and 40 percent of the total dues automatically taken from their salaries each year — but in closed-shop states such as California, workers cannot opt out of the rest of the dues, predominantly designated for collective bargaining. However, the plaintiffs argue that collective bargaining is inherently political, involving such debated issues as school vouchers and teacher tenure.
“Since my first years of teaching, I’ve been bothered by the fact that a large portion of my mandatory dues goes to pay for political endeavors of a union whose political positions have nothing to do with my job and have nothing to do with improving education for me, for my students, or for their parents,” Friedrichs tells me. “In fact, often these policies have negative effects.”
The legal justification for compulsory union dues rests primarily on a 1977 U.S. Supreme Court decision, Abood v. Detroit Board of Education. But as Andy Smarick noted last week, the recent majority opinion in Harris v. Quinn displayed a willingness to revisit and perhaps overturn Abood:
The Abood Court’s analysis is questionable on several grounds. Some of these were noted or apparent at or before the time of the decision, but several have become more evident and troubling in the years since then.
Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector. In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector.
Justice Alito also wrote that “preventing nonmembers from freeriding on the union’s efforts” is a rationale “generally insufficient to overcome First Amendment objections.”
The Friedrichs case, resting as it does on a First Amendment objection based on the premise the collective bargaining in the public sector is inherently political, appears to match perfectly the majority’s objections to Abood in Harris. It very well may spell the end of compulsory public sector union dues.
If you have a free ten minutes over the weekend, your time will be well spent watching Cato’s spanking-new interview with the best-selling author of The Rational Optimist, Matt Ridley. In it, Ridley, who is also a member of the Advisory Board of HumanProgress.org, argues that humanity’s impact on the environment need not be catastrophic. This is partly because there is a strong relationship between economic growth and a greener planet. I am going to reiterate that fact - acknowledged by no lesser authority than the IPCC - because everyone should know it: the richer we become, the lesser our impact on the environment will be. Since economic freedom and growth are correlated (i.e.: more economic freedom means higher growth), economic freedom encourages a higher quality of life and a healthier environment. Gloomy predictions about the future of the planet are based on unrealistic assumptions that are unlikely to happen. The current scare, in other words, may be just like the doomsday scenarios from the past that have never materialized. Watch the video here:
And if you have another few minutes, check out HumanProgress.org, Cato’s newest website. It is a data-heavy site that presents reputable, third-party data and a host of analytical tools. Use it to discover what Matt Ridley spoke about: the state of humanity is improving, and fast!