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Individual Liberty, Free Markets, and Peace
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Is Religious Liberty an “Exception” to Government Rule?

Tue, 03/25/2014 - 16:08

Roger Pilon

In a free society, employers would be at liberty to offer their employees group health insurance, if they wished, and to offer whatever coverage they wished to offer. In the Supreme Court today, however, so basic a premise barely surfaced during oral argument in Sebelius v. Hobby Lobby, the Obamacare “contraceptive mandate” case. Rather, Justices Sotomayor, Kagan, and Ginsburg, clearly supporting the mandate, pressed Hobby Lobby’s attorney Paul Clement as to whether an “exception” should be provided for religious employers who are otherwise required by regulation to offer contraceptive coverage, and whether such an exception could be limited or instead would have no principled bounds. By contrast, Chief Justice Roberts, Justice Kennedy, and even Justice Breyer were at pains to show how such a religious “accommodation” could in fact be limited.

Thus have we come to a point at which religious liberty is recognized, if it is, as an exception to the general rule that government may require us to act as it dictates—and we have to be careful not to extend that accommodation too far lest it gobble up the rule.

That’s a remarkable inversion of First Principles: government first, liberty second, as a limited exception. True, we don’t allow the religious, in the name of religious liberty, to proselytize by the sword. And we don’t because that “exception” is perfectly consistent with a general rule in favor of liberty and against forced association—as in murder. Here, however, religious employers are asking simply to be free from a rule that would otherwise restrict their liberty or require forced association, a rule that would force them to choose between not offering their employees insurance, and paying the Obamacare penalty for so choosing, and offering their employees coverage that offends the employers’ religious beliefs. And it’s no answer to say that, absent the mandate, the employees’ liberty is restricted. They’re at perfect liberty to obtain contraceptives, but not free to force their employer to provide them.

In other words, if you start with freedom of association, then it’s association that must be justified, by mutual consent, not individual liberty. But if “we’re all in this together”—as President Obama so often says and as Obamacare so clearly manifests—then liberty has to be treated as an “exception,” an “accommodation,” carved out from that general rule. For more on this see here and here.

Categories: Policy Institutes

Dumping the Core? Washington Still Owns the Hoosiers

Tue, 03/25/2014 - 15:55

Neal McCluskey

From an immediate political perspective, it’s great news: Yesterday, Gov. Mike Pence (R) signed legislation making Indiana the first state to officially drop the Common Core. (Four states never adopted it.) Now other states don’t have to be the first to say “sayonara, Core,” and anti-Core forces appear to have real political potency. But the change may well be superficial: While the new law officially dumps the standards called “Common Core,” Hoosiers are still taking curricular orders – and quite possibly the Core by another name – from the federal government.

Here is the operative part of the legislation:

Before July 1, 2014, the state board shall adopt Indiana college and career readiness educational standards, voiding the previously adopted set of educational standards. The educational standards must do the following:(1)Meet national and international benchmarks for college and career readiness standards and be aligned with postsecondary educational expectations.(2) Use the highest standards in the United States.(3) Comply with federal standards to receive a flexibility waiver under 20 U.S.C. 7861, as in effect on January 1, 2014

Unless I’m totally bleary eyed, there are two giant red flags billowing in the wind here.

The first is that points 1 and 2 call for meeting or beating some kind of national benchmark, and point 1 calls for hitting international benchmarks. To my knowledge, the only standards-producing group claiming to hit international benchmarks is the Common Core, and the Core is the only existing national benchmark. (The National Assessment of Educational Progress, to my knowledge, does not claim to offer “standards.”) At the very least, if the goal isn’t to de facto stick with the Core – as some standards writers claim is happening – these points raise two mammoth questions: Who will determine if new Hoosier standards meet international and national benchmarks, and who will decide if they are “the highest standards in the United States”?

Unfortunately, point 3 likely gives the answer to these questions: the federal government – more specifically, the U.S. Secretary of Education – will decide whether Indiana’s new standards cut the mustard. As NCLB waiver regulations currently stand, Indiana really only has two ways to meet the “college- and career-ready standards” provision: Either adopt the Common Core – or some set of standards the Secretary is willing to say are so close to the Core they are “common to a significant number of States” – or have a state college system declare the state’s standards college- and career-ready. And I don’t see the latter anywhere in the new law.

It is possible I am missing something – legislation, regulation, and unilateral waiver decisions can often be very opaque – but from what the statute seems to say, Indiana may be giving up the Core in name only. And even if it really can distance itself from the Core, Indiana doesn’t at all appear to be telling Washington, “we’ll run our own education system, thank you very much!”

There is one upside to this: It illustrates once again the great power of federal NCLB waivers, a power Core supporters continue to disingenuously pretend does not exist.

Categories: Policy Institutes

Is There No Alternative to Forcing People to Violate Their Religious Beliefs?

Tue, 03/25/2014 - 12:54

Ilya Shapiro

On a day full of bluster both in and outside the Supreme Court, Hobby Lobby and it’s super-lawyer Paul Clement had the better of the argument over Obamacare’s contraceptive mandate. While Solicitor General Don Verrilli gamely pressed the plight of the “third-parties” who would lose out if the challengers get an exemption – employees whose contraceptives wouldn’t be paid by their employer – there didn’t seem to be a majority on the Court who saw it that way. Justice after justice probed such issues as whether the government’s interest here was really that compelling given all the exemptions it had already granted (to small employers, religious nonprofits, and grandfathered plans) and whether there was no other way to achieve the same goal. And those are probably the points on which this case will ultimately turn: (1) the contraceptive mandate was not one of the Obamacare requirements that became mandatory as of January 1 (or whenever the administration stops illegally delaying them), and (2) the government could’ve ensured the provision of the contraceptive mandates a different way (e.g., new tax credits or existing public health programs). Despite the parade of horribles invoked by Justice Sotomayor regarding religious objections to blood transfusions and vaccines, at least five justices seemed to recognize that religious-liberty claims are meant to be adjudicated on a case-by-case basis – maybe six given Breyer’s lukewarm and infrequent interjections.

The government fared even worse on its position that for-profit corporations can’t assert religious-exercise interests in the first place. Even Justice Kagan recognized that under certain circumstances, for-profit enterprises may engage in religious activity. While Cato’s amicus brief argued that this “standing” issue is purely academic anyway – the individual corporate owners feel the mandate/fines regardless of who is exercising religion or bringing lawsuits – I count seven votes for getting past this threshold issue.

As I left the argument, I had a bit of spring in my step, even as the snowstorm that greeted me lacked any spring whatsoever. The Court is likely to stop this callous, arbitrary, and needless bending of the will of a small religious minority to the federal grindstone. But alas that’s just this case; the more that the government expands and takes over areas properly left to civil society, the more clashes of conscience will result. Today it’s religious belief, tomorrow something else, but all these liberty-destroying mandates come with the collectivized territory.

Categories: Policy Institutes

Peter Schuck at Cato Thursday

Tue, 03/25/2014 - 11:42

Walter Olson

On Thursday Cato will welcome Peter Schuck, professor emeritus of law at Yale, to discuss his new book “Why Government Fails So Often, And How It Can Do Better,” with Arnold Kling commenting. (I’ll be moderating). Today Peter Berkowitz reviews the book at Real Clear Politics. An excerpt: 

…the belief—which public polls show is shared by a majority of Americans—that the federal government wastes great quantities of taxpayer money and frequently fails to fulfill its promises is confirmed by reams of social science research. … Schuck, professor emeritus of law at Yale University, demonstrates that the problem goes to the core of big government. … Combining an exhaustive review of the scholarly literature in political science and law with detailed case studies, Schuck concludes that government’s failures “are not just random, occasional, or partisan; they are large, recurrent, and systemic.”

They derive from what Schuck—following the writings of political scientists John DiIulio and the late James Q. Wilson—characterizes as the replacement of the Old System of American governance by the New System. …The New System abandoned questions of constitutional limits and legitimacy in favor of the assumption that government possesses unlimited power to do what representatives deem beneficial to society….   Schuck shows that the structural sources of our sprawling federal government’s endemic policy failures are numerous—and explainable.  

For more, follow the link. You can register for the lunch here, or watch live at cato.org/live.  

 

 

Categories: Policy Institutes

Russians And Ukrainians Battle Over Crimea: The Tragic Perils of Nationalism

Tue, 03/25/2014 - 11:29

Doug Bandow

No good end to the Crimean crisis is likely.  Moscow seized territory historically part of Russia and won’t retreat.  Ukraine won’t accept Moscow’s land grab. 

The West can’t ignore flagrant aggression and is headed toward a “cool war” with Russia.  Crimeans unwilling to shift allegiance will have to leave their homes.  Such are the perils of nationalism, which remains sadly popular today.

Russia has officially absorbed Crimea.  The veneer of legality doesn’t disguise Moscow’s act of war.  A majority of the territory’s people may have wanted to leave, but a referendum framed by Russian advocates and conducted under Russian military occupation was certain to yield the result desired by Vladimir Putin, not Crimea’s citizens. 

Kiev is no more interested in the desires of Crimea’s people.  The West proclaimed itself shocked at Moscow’s move, even though the former routinely intervenes militarily for its own ends. 

While the Russian government deserves to be punished for its bad behavior, there is no chance it will reverse course.  The U.S. and Europeans are heading toward extended confrontation with Russia. 

The biggest losers are Crimeans who prefer Ukraine’s inefficient and corrupt, but still functioning—at least until the violent overthrow of the elected government—democracy to Putin’s wealthier but increasingly authoritarian wannabe empire.  Even some ethnic Russians might have preferred to deal with Moscow from afar. 

There is no right answer to the controversy.  Ukraine only had formal legal title to Crimea because in 1954 Soviet Communist Party General Secretary Nikita Khrushchev, who ran Ukraine before ascending to the summit of power in Moscow, transferred control of the territory from Russia to Ukraine.  At the time, no one imagined the Soviet Union dissolving.

But in 1992 Ukraine fled the collapsing Communist superstate with Crimea in tow.  Last month violent street protests shifted control in Kiev from Russophiles in eastern Ukraine to nationalists in western Ukraine. 

That angered the former and sparked a violent response from the Kremlin.  Putin’s conduct, though deplorable, was understandable.  As Henry Kissinger once said, even paranoids have enemies.

As I pointed out in my new column on Forbes online:

Since the end of the Cold War the West has pursued its version of the notorious Brezhnev Doctrine:  What’s mine is mine and what’s yours is negotiable.  The U.S. and Europe advanced NATO to Russia’s borders, poured money into Ukraine to promote pro-Western candidates, pressed Kiev to choose between Russia and the European Union, and pushed friendly politicians toward power after the ejection of Russia-friendly Yanukovich.

Yet none of this would have mattered if the majority of Crimeans had clearly wanted to switch allegiance and Putin had waited for them to act.  In general, people should be able to freely decide their political destinies.

However, even a voluntary transfer along ethnic lines would raise larger concerns.  In principle, there is nothing wrong with wanting to live with others who share family, traditional, historical, and cultural ties.  But setting up a government in the same way turns the state into a vehicle for ethnic aggrandizement rather than liberty advancement. 

Moreover, once ethnic division begins, the process usually leaves newly dissatisfied ethnic minorities, who have an equal right to demand ethnically-based states.  Indeed, the Versailles Treaty allowed friends of the winners, like the Czechs and Poles, to create ethnic-based states incorporating multiple minorities from the losers, particularly Germany.  The latter demanded similar self-determination, with Adolf Hitler’s backing. 

Of course, Putin is not Hitler and authoritarian Russia is not Nazi Germany.  Nevertheless, Moscow’s resort to nationalism has revived a tragically misguided approach to international affairs. 

From America’s standpoint whose flag flies over Crimea today is irrelevant.  But the revival of nationalism backed by military intervention sets an ominous precedent.  The allies still are reaping the whirlwind from the nationalist winds sown by the Versailles Treaty nearly a century ago.

 

Categories: Policy Institutes

Cutting the Tie Between Education and Housing

Tue, 03/25/2014 - 09:00

Jason Bedrick

We already have a market in education: the real estate market. Controlling for other factors, houses in districts with higher-performing government schools are more expensive than those in areas with lower-performing schools. In 2012, the Brookings Institution issued a report finding that in “the 100 largest metropolitan areas, housing costs an average of 2.4 times as much, or nearly $11,000 more per year, near a high-scoring public school than near a low-scoring public school.” The report also found that “the average low-income student attends a school that scores at the 42nd percentile on state exams, while the average middle/high-income student attends a school that scores at the 61st percentile on state exams.”

Essentially, access to a quality education depends on one’s parents’ ability to purchase a relatively more expensive house in an area with a good school. That this is a horribly unjust policy for low-income children is obvious and oft-discussed, but what’s often overlooked is that the negative consequences also extend to middle-income families.

With quality education tied to housing, middle-income parents who desire the best for their children must seek out housing in areas with better government schools or scrape together money for private school tuition. Unfortunately, as a new Brookings report reveals, this too-often means purchasing a home that is just barely within a family’s financial means, creating a situation where millions of middle-income families live “hand-to-mouth” with very low levels of liquid savings though they have considerable non-liquid assets. The Atlantic’s Matthew O’Brien explains:

This shouldn’t be too much of a mystery. Imagine a couple that’s getting ready to have kids, and wants to buy a house near good schools. Well, that’s expensive. As Elizabeth Warren and Amelia Tyagi pointed out in The Two Income Trap, buying a house in a school district you can’t really afford is one of the biggest causes of bankruptcies. Couples can only afford the mortgage with both their salaries, so they’ll get in trouble if either of them loses their job. 

But even if everything goes right, they’ll still be cash-poor for a long time. They’ll probably have to use most of their savings on the down payment, and use a big part of their income on the mortgage payments. In other words, the wealthy hand-to-mouth are parents overextending themselves to get their kids into the best schools possible in our de facto private system.

As O’Brien notes, a system of school choice would sever the ties between housing and education, which is a policy that could keep “many people from becoming cash-poor and wealthy—a precarious thing—in the first place.” School choice also provides a passport out of poverty for those students whose parents could not afford an expensive house at all.

Categories: Policy Institutes

The Wall Street Journal on Halbig v. Sebelius

Tue, 03/25/2014 - 08:08

Michael F. Cannon

Today, the U.S. Court of Appeals for the D.C. Circuit will hear oral arguments in Halbig v. Sebelius, one of four cases that Jonathan Adler and I helped spur with our 2013 Health Matrix article, “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA.” Critics call Halbig the most significant existential threat to the Affordable Care Act.” In anticipation of the hearing, the Wall Street Journal wrote a lengthy editorial explaining the issues. Excerpts:

Halbig v. Sebelius involves no great questions of constitutional interpretation. The plaintiffs are merely asking the judges to tell the Administration to faithfully execute the plain language of the statute that Congress passed and President Obama signed.

The Affordable Care Act—at least the version that passed in 2010—instructed the states to establish insurance exchanges, and if they didn’t the Health and Human Services Department was authorized to build federal exchanges. The law says that subsidies will be available only to people who enroll “through an Exchange established by the State.” The question in Halbig is whether these taxpayer subsidies can be distributed through the federal exchanges, as the Administration insists…

In 2012, HHS and the Internal Revenue Service arrogated to themselves the power to rewrite the law and published a regulation simply decreeing that subsidies would be available through the federal exchanges too. The IRS devoted only a single paragraph to its deviation from the statute, even though the “established by a State” language appears nine times in the law’s text. The rule claims that an exchange established on behalf of a state is a “federally established state-established exchange,” as if HHS is the 51st state.

Careful spadework into ObamaCare’s legislative history by Case Western Reserve law professor Jonathan Adler and Michael Cannon of the Cato Institute has demonstrated that this jackalope rule-making was contrary to Congress’s intent…

Mr. Obama has conceded that “obviously we didn’t do a good enough job in terms of how we crafted the law.” The right and only lawful way to repair ObamaCare is through another act of Congress. In Halbig, the judiciary can remind the Obama Administration of this basic constitutional truth.

Jonathan Adler critiques the Halbig district court’s ruling in favor of the IRS here.

Find lots of commentary by me on the Halbig cases at DarwinsFool.com.

This reference guide contains all the information you could want about these cases – and more.

Categories: Policy Institutes

Privatizing the Royal Mail

Mon, 03/24/2014 - 17:55

Chris Edwards

Britain privatized its Royal Mail in 2013, proceeding with an initial public offering of shares that raised about $2.7 billion. The government pursued the reform because the company faced falling mail volume, and it needed to reduce costs and increase innovation. Similar issues face the U.S. Postal Service.

The Financial Times has named the reformer leading the privatized Royal Mail its “Person of the Year.” Below is an excerpt about Moya Greene from FT’s story. I have two questions: i) Why don’t we get reforms or reformers like this in Washington? ii) Why are American leaders so comparatively timid in embracing market-based reforms?

Ask anyone who knows Moya Greene, the Canadian chief executive who last year steered Royal Mail, the UK’s 500-year-old postal service, into the private sector, and the same phrases come up. “She’s relentless, a force of nature, a tough lady,” says one admirer.

It took a determined personality to get this behemoth, with £9bn of revenues and 150,000 staff, into a healthy enough state to be floated on the London Stock Exchange, where it went straight into the FTSE 100 index. The goal of privatising Royal Mail had defeated governments for 40 years.

Greene, 59, has been Royal Mail’s chief executive for almost four years, the first woman and first non-Briton to run it since Henry VIII established a “master of the posts” in 1512. Her previous role heading Canada’s postal service – and as a civil servant overseeing the privatisation of that country’s railway and deregulation of its airline and ports systems – gave her the necessary blend of industrial and political experience.

With this British privatization—and past ones—people have quibbled with some of the details. But, all in all, privatization in Britain has been hugely successful. Prime Minister Cameron should be applauded for having the guts to build on the privatization reform legacy of Thatcher, Major, and Blair.

Meanwhile on this side of the pond, Republican Darrell Issa is having trouble getting his own nominally conservative party to accept even small changes to the broken government postal system. Perhaps he could kick-start reforms by inviting Moya Greene to give testimony to his high-profile committee.

For more on postal privatization, see here.   

Categories: Policy Institutes

Beware of the Kremlin’s Propaganda

Mon, 03/24/2014 - 15:00

Dalibor Rohac

Since the beginning of the turmoil in Ukraine, some have attributed a large part of the blame for the crisis to the European Union and the United States, whose meddling allegedly brought down the President Viktor Yanukovych.

While, as a general rule, the foreign policy of the EU and the US deserve to be criticized on various grounds, it should not be forgotten that other actors are present on the world’s geopolitical scene as well – some of them quite malevolent. The idea that the eclectic, bottom-up movement that fueled the revolution in Kyiv was somehow orchestrated by the United States (and/or by the notoriously unimaginative bureaucrats in Brussels) is grotesque – as is the notion that Russia’s invasion of Crimea is a response to genuine secessionist desires of the citizens of South-Eastern Ukraine.

In short, one needs to be careful to avoid the trap of falling for the propaganda spread by Russia’s current regime, as Alexander McCobin and Eglė Markevičiūtė, both from Students for Liberty, argue here:

It’s much too simplistic to solely condemn the United States for any kind of geopolitical instability in the world. Non-interventionists who sympathize with Russia by condoning Crimea’s secession and blaming the West for the Ukrainian crisis fail to see the larger picture. Putin’s government is one of the least free in the world and is clearly the aggressor in Crimea, as it was even beforehand with its support of the Yanukovych regime that shot and tortured its own citizens on the streets of Kyiv.

[…]

Some libertarians’ Kremlin-style speculation about pro-western Maidan’s meddling in Crimea’s affairs is very similar to what Putin’s soft-power apparatus has been trying to sell in Eastern Europe and CIS countries for at least 15 years. Speaking of the Crimean secession being democratically legitimate is intellectually dishonest given that the referendum was essentially passed at gunpoint with no legitimate choice for the region to remain in Ukraine’s sovereign power.

Categories: Policy Institutes

Politico: Private Schooling a Threat to Science Education and Freedom of Conscience

Mon, 03/24/2014 - 14:17

Andrew J. Coulson

In a lengthy piece released this morning, Politico asserts that publicly-funded private school choice programs are teaching creationism around the country and implies that public schools do not do likewise. It then quotes several sources as worrying about the impact that private school choice programs will have on science instruction, and as fretting that their money is being used to promote ideas they strongly disagree with. There are two serious problems with this story.

First, citing the work of activist Zach Kopplin, Politico states that “over three hundred” private schools participating in school choice programs are teaching creationism. Kopplin’s figures have been tabulated by the Friedman Foundation which reports that he identifies 305 creationist schools operating in 10 school choice programs. Those programs are served by a total of 3,084 private schools, so just under 10 percent appear to be creationist.

That may seem like a lot, particularly when you consider that, according to Politico, “Decades of litigation have established that public schools cannot teach creationism or intelligent design.” But that characterization is inaccurate. Public schools cannot constitutionally teach these things, but that doesn’t mean it never happens. In a nationwide poll of public school biology teachers, 21 percent “agree[d] with at least one statement concerning creationism or ID as a valid scientific approach.” What’s more, 14 percent of public school biology teachers both agreed with creationism and/or ID and actually taught about them in class. Though some of these teachers may stop short of endorsing these ideas to their students, it is naive to imagine that all are so self-disciplined.

So a core premise of the Politico story, that private school choice programs represent an unprecedented threat to biology instruction, is simply false. Nor should that come as a surprise. Public schools enroll 90 percent of American students and have done so for generations. And yet, the share of American adults who say that humans evolved as a result of purely natural processes is just 15 percent. Those of us who fear weak and mistaken science instruction should arguably be more concerned with our $600 billion / year public school system than with a relative handful of private schools.

The second problem with the Politico story is that it denies a crucial distinction among different types of education policies: some make use of public money, while others do not. Under voucher and “education savings account” programs as well as traditional public schooling, all taxpayers are required to fund types of instruction they may violate their most deeply felt convictions. As noted above, both private school choice programs and public schools have teachers who believe in creationism and teach about it to their students. It is entirely natural that more secular, science-oriented taxpayers would object to this—as does one of the sources cited by Politico.

But education tax credit programs avoid this problem, because they do not rely on public funds. The most common type of education tax credit is called a “scholarship donation” credit. Under these programs, donors who give to a non-profit tuition-subsidy organization receive a credit to cover some or all of their donation, and the organization then distributes their money to families who wish to send their children to private schools. There are two critical features to these programs. First, they are voluntary. If you don’t want to support the private school choices of needy families, you simply keep paying your taxes as you always did and your money goes to the traditional public school system as it always did. Second, if you do choose to participate, you select the scholarship organization that receives your funds, and you can choose one that comports with your own convictions. While some scholarship organizations specialize in serving families of particular faiths, many others do not. So both religious and secular families can find scholarships, and both religious and secular donors can find organizations to help them.

How important are these features? They were the deciding factors used by the U.S. Supreme Court when it rejected a challenge to Arizona’s scholarship donation tax credit program. Plaintiffs had alleged that the program forced them to support religion because, they claimed, it relied on public money. The court explained that “that is incorrect.” The justices went on to explain that since the plaintiffs did not participate in the program, none of their money had gone to religious education. Just last week I shared a pair of video links in which I talked about this issue in more detail.

The Supreme Court decision finding that donations made under education tax credit programs are not government money seems to have escaped the Politico writer, who incorrectly characterizes these donations as public funds on several occasions. They are not. And because they are private funds, voluntarily given, they free taxpayers from the conviction-violating compulsion that besets them under all publicly-funded school systems. Those who value freedom of conscience should thus prefer education tax credits to both public schooling and to vouchers or education savings accounts. Perhaps someday, civil libertarians on the left will come to understand that.

Categories: Policy Institutes

Family Moving to Colorado for Access to Medical Marijuana

Mon, 03/24/2014 - 12:07

Tim Lynch

More information here and here.

Categories: Policy Institutes

Toyota Stumbles Into a Dark Legal Alley...

Mon, 03/24/2014 - 09:52

Walter Olson

…and the U.S. Department of Justice emerges whistling with $1.2 billion. I explain how it happened in a Wall Street Journal opinion piece today (more: Overlawyered). Toyota’s cars are very safe indeed, and “sudden acceleration” was a concoction of media-fueled panic, as the government’s own safety engineers have confirmed. But now the company is being punished not just for alleged data-reporting and compliance infractions unlikely to have caused any genuine material risk to the public, but also for defending itself and its products at Congressional hearings and in the arena of public opinion. DoJ’s demagogic press release cites, among the instances of supposed fraud for which Toyota is now being punished by the gigantic forfeiture, such standard exercises in bland crisis communication as, “The safety of our owners and the public is our utmost concern and Toyota has and will continue to thoroughly investigate and take appropriate measures to address any defect trends that are identified.” 

A couple of other points I didn’t have room for in the WSJ piece: Toyota is settling the government’s trumped-up single charge of mail fraud by way of a so-called Deferred Prosecution Agreement, or DPA, and its terms really must be seen to be believed. “Toyota understands and agrees that the exercise of the Office’s discretion under this Agreement is unreviewable by any court,” appears on clause 14 on page 6, with “Office” referring to the office of the U.S. Attorney for the Southern District of New York, currently Preet Bharara. And if you are expecting even the tiniest squeak from anyone at Toyota in contradiction to the government line, even around the coffee machine at the local dealership, consider clause 13, which states: that Toyota “agrees that it shall not, through its attorneys, agents, or employees, make any statement, in litigation or otherwise, contradicting the Statement of Facts or its representations in this Agreement.” If DoJ catches wind of any such statement it can revoke the agreement not to prosecute, without of course having to give back the billion dollars. “The decision as to whether any such contradictory statement shall be imputed to Toyota for the purpose of determining whether Toyota has violated this agreement shall be within the sole discretion of the Office.” 

When people talk about federal prosecutors having become a law unto themselves, this is the sort of thing they mean.

Categories: Policy Institutes

Why Don't Public Schools Give Parents What They Want?

Sat, 03/22/2014 - 16:06

David Boaz

The Washington Post reports today that it’s “harder to describe” the mission of one of the magnet schools in Arlington County, Virginia: Arlington Traditional School. Not that hard, if you just read the quotes from the principal and parents:

“Our emphasis is on basic education,” Principal Holly Hawthorne said….

“The word ‘traditional’ implies a cachet to us,” said Craig Montesano, a lobbyist for the shipping industry who visited Arlington Traditional with his wife. To him, the word conjures ancient Rome and Greece and the promise that his daughter will be “grounded in the learning that has come down through the ages in Western civilization.”

Some parents say the selective nature and more disciplined culture remind them of private school. 

And it seems to work:

The federal government has twice named Arlington Traditional a National Blue Ribbon School for its academic performance. And its students routinely outscore district averages on the Standards of Learning tests.

And parents like it:

Last spring, 298 families applied for 72 slots.

So why doesn’t the Arlington County School Board expand it, or build more such schools around the county to accommodate all the parents who want their children to get this exotic thing called “traditional” or “back to basics” education? Maybe they just didn’t realize until today – or last spring – how popular it is? Well, as it happens, I live in Arlington, and I recall that the Washington Post has been reporting on the popularity of Arlington Traditional School since the late 1970s. Parents used to camp out overnight to get their children into the school until they created a lottery system. Through the Nexis service, I found some of the stories I recalled. Most of these articles are not online. 

Here’s what the Post reported in September 1982 when the school, then called Page Traditional School, was three years old: 

For Arlington school board member Margaret A. Bocek and her husband, the first day of school this year began late Monday night when they and 40 other parents camped out on the lawn of the county’s Page Traditional School to ensure that their 3-year-old children could attend there on opening day, 1984…. 

In the last three years, such parent stakeouts have become commonplace at Page, a public alternative school that stresses a traditional format of self-contained classrooms, regular homework and strict standards for behavior and appearance. Page parents have been lobbying recently for expanding the program to the eighth grade and for expansion of the school’s program to other schools.

And here’s a report from September 1985:

This year, the line began to form at 10 a.m. on Labor Day, 23 hours before Page Traditional School in Arlington would begin accepting applications for the kindergarten class of 1987.

By the time Principal Frank Miller arrived at 9 a.m. the next day, about 80 parents were waiting on the lawn – more than triple the 25 slots that would be available in the school’s one kindergarten class.

Seven years after its much-heralded establishment as a back-to-basics, structured alternative to the open-classroom schools popular in the mid-1970s, Page is a cause of both enthusiasm and consternation in Arlington.

Each September, eager parents camp out on the lawn at 1501 N. Lincoln St. to put the names of their 3-year-olds on the kindergarten waiting list.

December 1991:

In an effort to stop overnight campouts by parents eager to register their children at Arlington’s three popular alternative schools, county school officials have proposed dropping the first-come, first-served admissions policy in favor of a random drawing.

An October 1999 headline:

School’s Excellence Is in Demand

Now you’ll notice that the 1991 story mentions three “popular alternative schools,” and indeed the other two, Drew Elementary and H-B Woodlawn Secondary, offer a very different alternative, a more informal, individualized style of education reflecting the “alternative” ideas of the 1960s and 1970s. The Post referred in 2004 to Woodlawn’s “quirky, counterculture ways.” In November 1991 the Post reported that “Last weekend, dozens of parents camped in front of H-B Woodlawn to register their children for the 70 sixth-grade slots.”

In 2012 the Arlington school board did vote to expand Arlington Traditional School by 12 classrooms. But why did it take so long? And why not open more “back to basics” schools, and also more “counterculture” schools, if that’s what parents want?

I wrote about that years ago in a book I edited, Liberating Schools: Education in the Inner City.   

In the marketplace, competition keeps businesses on their toes.  They get constant feedback from satisfied and dissatisfied customers. Firms that serve customers well prosper and expand. Firms that don’t respond to the message they get from customers go out of business. Like all government institutions, the public schools lack that feedback and those incentives.

No principal or teacher will get a raise for attracting more students to his or her school. A successful manager in a private business gets a raise, or gets hired away for a bigger salary. A successful entrepreneur expands his or her store or opens a branch. Can one imagine a public school choice system allowing a successful principal to open another school across town and run both of them? 

If Virginia were even a little bit tolerant of charter schools, or if Virginia allowed real private school choice, parent groups or entrepreneurs could organize to deliver the kinds of schools – from traditional to counterculture – that families want. But in a bureaucratic monopoly, the local paper can run thirty years of stories about parents desperate to get their children into particular types of schools, and the central planners can ignore them. 

Categories: Policy Institutes

The Federal Spying Budget

Fri, 03/21/2014 - 15:59

Chris Edwards

The latest revelations regarding the NSA’s bulk data collection illustrate the vastness of the government’s spying apparatus. That vastness costs taxpayers a lot of money.

The cost of the federal spy budget used to be secret, which was a bizarre thing for a government that is supposed to be of the people, by the people, and for the people. But in recent years, policymakers have taken a step toward transparency and released figures on total intelligence spending.

The federal spy budget consists of spending on the National Intelligence Program (NIP) and the Military Intelligence Program (MIP). The Federation of American Scientists has summarized the data. In 2013 the NIP and MIP cost $68 billion. (For 2015, the administration is requesting $46 billion for the NIP and $13 billion for the MIP.)

Even by Washington standards, $68 billion is a lot of money. The chart shows that the spy budget is two-thirds as large as the $96 billion Americans spend on state and local policing activities. And the spy budget is far larger than spending on state and local fire activities ($42 billion), the NASA budget ($17 billion), and the National Park Service budget ($3 billion). (Police and fire data are for 2011; NASA and Park Service data are for 2013.)

What do the NIP and MIP spend so much money on? I assume it’s mainly the wages and benefits of their skilled workers, plus lots of spending on computers, drones, and other technology.

In an analysis of the spy budget (or “black budget”) last year, the Washington Post found that the NIP and MIP spanned 16 agencies and had 107,000 employees. The largest agency is the CIA with a $15 billion budget and 22,000 employees. Further details are here and here.

I don’t think we know what share of the total $68 billion goes toward worker wages and benefits. Let’s take a wild guess and say that the average compensation of intelligence workers is $200,000. If we apply that figure to the workforce of 107,000, we get a total compensation cost of $21 billion. But that’s less than one-third of the total spy budget. So it appears that the great bulk of the spy budget goes toward procuring goods and services from contractors.

The good news is that the spy budget has come down from a peak in 2010. Further cuts would have the beneficial effect of forcing agencies to better prioritize and hopefully cut some of their excessive data collection activities and most intrusive programs. In many areas of the federal budget, spending and civil liberties can be inversely related. Cato analysts have proposed reducing the spy budget by one-quarter in conjunction with an array of other federal spending cuts.

Categories: Policy Institutes

The Silver Lining in the Florida School Choice Expansion Loss

Fri, 03/21/2014 - 13:29

Jason Bedrick

Supporters of the Florida Tax-Credit Scholarship (FTS) program are understandably disappointed that the state senate abandoned legislation to expand the program on Thursday. The FTS assists low-income families that want to enroll their children in private schools by offering tax credits to donors of nonprofit scholarship organizations. This year, the state’s only active scholarship organization, Step Up For Students, was able to aid more than 60,000 students but there were not enough funds to aid the more than 30,000 additional applicants. The proposed expansion would have provided enough funds to aid about 6,000 more students. The bill’s withdrawal therefore leaves 6,000 students without the funds they need to attend the school of their choice.

However, the disappointment should be tempered by a large measure of relief. While the legislation contained several praiseworthy changes and eliminated some red tape (including a requirement that would-be scholarship recipients spend a year in a government-run school first), legislative negotiations threatened to add a poison pill that would have severely affected school autonomy and parental choice.

The FTS currently mandates that all participating schools administer a nationally norm-referenced test. Nevertheless, Florida Senate President Don Gaetz insisted that the FTC expansion bill include a provision requiring that scholarship students take the Florida Comprehensive Assessment Test (FCAT), which is soon to be replaced by a Common Core-aligned assessment.

While the existing mandate is unnecessary because private schools are already directly accountable to parents, it still allows schools and parents some measure of flexibility in deciding how best to measure performance. By contrast, the proposed state testing mandate would have forced all schools into a uniform testing regime. Since tests dictate what is taught, when, and how, this mandate would have induced conformity at the expense of diversity and innovation. As explained in the open letter on choice and accountability that the Cato Institute recently issued along with the Heritage Foundation, Friedman Foundation for Educational Choice, and others, such mandates undermine the central purpose of educational choice:

Educational choice has also been repeatedly shown to produce far higher levels of parental satisfaction than does centrally planned schooling. That’s because choice empowers parents to find the best education for their children, and test scores are not their only consideration. Research shows that many parents care more about safety and discipline, graduation and college acceptance rates, and moral values.

Dictating uniform standards and tests threatens those other valued features by redirecting educators’ focus from serving families to catering to bureaucrats. It also contributes to a culture of “teaching to the test” that has already resulted in several large-scale public-school cheating scandals.

Children are not interchangeable widgets that can be beneficially fed through their education on the same conveyor belt. Even within a single family, children often learn different subjects at different speeds. Myriad new options are arising in response to that reality that allow students to learn at their own pace in every subject, helping all to fulfill their individual potential — the very antithesis of uniform government mandates.

Fortunately, the FTS already contains an “escalator” provision that allows it to grow over time, albeit not as quickly as it would have under the expansion bill. Hopefully, Florida legislators will take a second look at some of the important reforms that would have expanded access to the program. Meanwhile, other states that are considering scholarship tax credit legislation should learn from Florida’s experience. Design matters.

Categories: Policy Institutes

Frank Underwood Wants a Subsidy

Fri, 03/21/2014 - 12:23

David Boaz

House of Cards is a Netflix television series about a powerful, manipulative politician who gets what he wants with little regard for the public good. Here’s an example:

“House of Cards” star Kevin Spacey is booked to appear in Annapolis on Friday night as the fate of a tax credit that has benefited the production of his Netflix series hangs in the balance.

Gerard E. Evans, an Annapolis-based lobbyist for the show, has invited the entire Maryland General Assembly to a local wine bar to meet the two-time Academy Award winner who plays the scheming Vice President Frank Underwood in the series. An invitation describes the event as “an evening of Annapolis, D.C. and Hollywood.”…

The visit is scheduled just a few days after the Senate voted to increase the amount the state can spend next year, to $18.5 million, on a tax credit that rewards movie and television production companies that choose to film in Maryland. “House of Cards” has been the biggest beneficiary in recent years.

The House of Delegates has yet to act on the bill, with about two and a half weeks remaining in this year’s 90-day legislative session in Maryland. Evans said he has been encouraged by recent meetings with House Speaker Michael E. Busch (D-Anne Arundel) and other key delegates.

A few weeks before the second season of “House of Cards” debuted online, the show’s production company sent letters to Busch and Gov. Martin O’Malley (D) making clear they could film elsewhere if the debate over the tax credit didn’t end well.

It’s hard to imagine a better example of rent-seeking, crony capitalism, and conspiracy between the rich, the famous, and the powerful against the unorganized taxpayers. A perfect House of Cards story.

The Tax Foundation has been covering film tax credits in general and the House of Cards saga in particular. The Mackinac Center has been campaigning against Michigan’s film tax credits, and Gov. Rick Snyder has tried to rein in the program. But it’s hard to beat Frank Underwood.

 

Categories: Policy Institutes

RIP Tonie Nathan, the First Woman to Receive an Electoral Vote

Fri, 03/21/2014 - 09:03

David Boaz

Theodora (Tonie) Nathan, the 1972 Libertarian Party vice presidential nominee who became the first woman in American history to receive an electoral vote, died Thursday at 91.

Tonie Nathan was a radio-television producer in Eugene, Ore., when she attended the first presidential nominating convention of the Libertarian Party in 1972. She was selected to run for vice president with presidential candidate and philosophy professor John Hospers. Although the ticket received only 3,671 official votes, Virginia elector Roger L. MacBride chose to vote for Hospers and Nathan rather than Nixon and Agnew, thus making Nathan the first woman in American history to receive an electoral vote. MacBride, an author and former legislator, had been elected on the Republican slate. As I wrote in Liberty magazine when he died in 1995, “MacBride became a ‘faithless elector’—faithless to Nixon and Agnew, anyway, but faithful to the constitutional principles Rose [Wilder] Lane had instilled in him.”

Brian Doherty, author of Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement, writes:

It is a shame that her historical status for the advancement of woman’s role in what had been entirely a man’s world has been little noted or long remembered, mostly I suspect because the Libertarian Party is not much respected by institutional feminism (though it should be).

Nathan was also the first Jewish person to receive an electoral vote.

After her vice-presidential run, she ran for office as a Libertarian candidate during the 1970s through the 1990s for numerous offices, vigorously though never successfully. In the 1980 U.S. Senate election in Oregon, Nathan participated in three statewide television debates with incumbebt Bob Packwood (R) and then–state senator Ted Kulongoski (D). She served as national vice-chair of the Libertarian Party, and at the 2012 Libertarian National Convention she announced former New Mexico governor Gary Johnson as the presidential nominee. She founded the Association of Libertarian Feminists in 1973 and served as its chair.

Note: Premiering tonight on Showtime is a new documentary about Geraldine Ferraro, the 1984 Democratic vice presidential nominee, whom many people would likely identify as the first woman to receive an electoral vote.

Categories: Policy Institutes

Conspiring to Be Civil

Fri, 03/21/2014 - 08:32

Andrew J. Coulson

A few days ago, a reporter asked me to comment on a conference video in which I appeared. The event was four or five years ago, but the Florida teachers’ union must have just discovered the video and apparently was circulating it to the media. Couched as a smoking gun, it was purported to reveal school choice advocates’ “true intentions.” But the media, apart from some left-leaning Florida bloggers, seem to have concluded it was wasn’t newsworthy (not enough hand-wringing or maniacal laughter, I suppose).

That’s really too bad, because upon rewatching the clips that the union selected, I’m really pleased to have attention drawn to them. Several deal with the strongest argument that can be leveled at government-funded school choice: that, like state-run schools, it can force taxpayers to pay for the promotion of ideas that violate their convictions, leading to social conflict.

Here’s my take on how to address that problem:

And here’s how I responded to the claim that violating taxpayers’ freedom of conscience isn’t a big deal:

 

Categories: Policy Institutes

Litt on Warrants for Searching American Communications: Either Misleading or Terrifying

Thu, 03/20/2014 - 18:08

Julian Sanchez

At a hearing Wednesday, members of the Privacy & Civil Liberties Oversight Board asked intelligence official Robert Litt a crucial question: If the sweeping general warrants authorized by the FISA Amendments Act are only supposed to be used for “targeting” foreigners for surveillance, shouldn’t a judicial warrant be necessary before NSA can intentionally dig through its massive database of intercepts for Americans’ communications? Otherwise, after all, such “backdoor searches”—currently allowed under NSA guidelines—seem a dangerous loophole that enables an end-run around the rules that would require court approval to directly target an American’s communications for interception.

Litt’s answer was either extremely misleading or extremely disturbing. He told the oversight board that the number of annual queries to the intercept database was “considerably larger” than the few hundred analysts currently run against NSA’s vast archive of telephony metadata records.  That would make the “operational burden” of a warrant requirement utterly impractical, Litt asserted, and that the Foreign Intelligence Surveillance Court  “would be extremely unhappy if they were required to approve every such query.”

Now, it’s possible that Litt was talking about the total number of queries analysts run against the database of intercepted communications as they sift through it for nuggets of foreign intelligence.  No doubt that number is very large indeed. But it’s also utterly irrelevant to the question PCLOB was asking. Nobody, after all, is suggesting that a warrant be required for every query of NSA’s databases—including queries for topical keywords or “selectors” associated with known foreign intelligence targets.  The question, rather, was whether a warrant should be required for the subset of those queries involving the name or e-mail address of a particular U.S. person—the very query terms that the government would be forbidden from using as selectors to task interception without first obtaining a particularized, probable cause warrant.  If Litt was answering that question by alluding to the total number of queries, then his answer had little bearing on what the PCLOB was trying to discover, and would vastly overstate the practical burden of such a requirement—seriously misleading overseers about the feasibility of a proposed civil liberties safeguard. Litt ought to correct the record if that is what he meant.

What would be hugely more disturbing, however, is if Litt really was giving an answer pertinent to the question he was asked.  In that case, he would be representing that NSA runs “considerably more” than a few hundred annual queries for the names and e-mail addresses of specific U.S. persons, against a database of private communications gathered via general warrants—an authority justified on the premise that it is “targeted” exclusively at non-Americans located outside the United States. That would suggest that the blanket surveillance authority created by §702 of the FISA Amendments Act is precisely what civil libertarians feared: A Trojan Horse mechanism for spying on Americans using the pretext of “foreign targeting.”

In short, either added safeguards on NSA’s use of the §702 database are far more feasible than Litt led the PCLOB to believe, or the authority is being used in a way that circumvents constitutional and statutory protections for Americans’ communications on a chilling scale. Litt should clarify which it is—and then Congress should hasten to reform §702 accordingly.

Categories: Policy Institutes

Death Of An Honest Taxman

Thu, 03/20/2014 - 15:25

Walter Olson

The New York Times notes the death at age 100 in Atlanta of Randolph Thrower, “a Republican lawyer who headed the IRS under President Richard M. Nixon from 1969 to 1971 before losing his job for resisting White House efforts to punish its enemies through tax audits.” When White House staffers began pressuring Mr. Thrower to apply hostile tax scrutiny to the Administration’s critics, including journalists and Senators, he assumed President Nixon had no knowledge of what was happening and requested a meeting with the chief executive so as to warn him. Instead he was summarily fired, with the White House putting out the story that Thrower had departed “for personal reasons.”

In White House tapes and memos released in later years, Nixon described the situation differently. “May I simply reiterate for the record that I wish Randolph Thrower, commissioner of the Internal Revenue Service, removed at the earliest feasible opportunity,” he wrote on Jan. 21, 1971, five days before the White House announced that Mr. Thrower was stepping down.

That May, as the administration continued to look for a successor to Mr. Thrower, Nixon made clear what kind of IRS commissioner he wanted. “I want to be sure he is a ruthless son of a bitch,” he was recorded as saying, “that he will do what he is told, that every income tax return I want to see I see” and “that he will go after our enemies and not go after our friends.”

It’s a good thing Nixon isn’t in power any more.

Categories: Policy Institutes

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