Cato has always been a faithful advocate for a robust freedom of speech. As such, we are proud this week to participate in Free Speech Week, a celebration of the freedom so important they put it first in the Bill of Rights.
As part of this week’s ongoing celebration of free speech, we will be posting highlights from Cato’s recent work to support freedom of speech in its various forms, whether through legal advocacy, media appearances, or other public outreach.
Today’s highlight focuses on an event held here at Cato last week, in which author Jonathan Rauch discussed his recently re-released and expanded book Kindly Inquisitors. In the book, Rauch, an openly-gay advocate for gay marriage, argues that government suppression of discriminatory language and “hate speech” does more harm to gays and minorities than it helps. Rauch’s book, originally published in 1993, contributes a number of valuable insights to the dialogue on free speech and the consequences of curtailing it to protect certain groups.
Rauch was joined by Greg Lukianoff of the Foundation for Individual Rights in Education, Brian Moulton of the Human Rights Campaign & Cato’s John Samples. Please check out the video below:
For more information on Free Speech Week and to learn how you can help celebrate free speech, check out www.FreeSpeechWeek.org.
On October 16, the Republican Liberty Caucus announced its endorsement of South Carolina Senator Lee Bright to replace US Senator Lindsey Graham in the upcoming 2014 election. Here is video of the press conference on the steps of the South Carolina State House in Columbia.
Michael F. Cannon
In a new blog post over at Forbes, I encourage opponents to save the knives for Obamacare and focus on four strategies for defunding the law:
- Stop Medicaid expansion in the states.
- Get states, employers, and citizens to challenge the IRS’s illegal ObamaCare taxes.
- Educate states about how to block the IRS’s illegal taxes legislatively.
- Urge House investigators to subpoena all materials related to the IRS’s illegal taxes.
The real loss for fiscal conservatives this week was not that Obamacare wasn’t defunded or that there were no entitlement cuts in the deal that reopened the government. Fiscal conservatives in Congress face entrenched opposition on those issues, and so to make gains they will need to launch repeated forays. Those goals are a work in progress.
Instead, the bigger concern is that the Republicans caved in on renegotiating the discretionary spending levels set by the 2011 Budget Control Act and sequester. Everyone is hailing a “return to normal order” in Congress, but that means a return to the normal process of hiking discretionary spending every year.
The deal to reopen the government called for a conference committee to iron out differences in the House and Senate budget plans. The usual starting point for such committees is to split the difference on spending levels down the middle. The Senate budget puts 2014 discretionary spending at $1.058 trillion, while the House budget puts it at $967 billion, which is the sequester level.
Republican leaders have already indicated that they want to bust the sequester by at least $20 billion this year to make way for more defense spending. But with this deal, the Republicans are opening themselves up to spending perhaps $1.013 trillion in 2014, which is halfway between the House and Senate levels.
So the difference between sticking to the sequester—which is current law—and scraping current law with a new deal could be, say, $46 billion just this year. That higher spending level would raise the base for every future year, thus possibly costing taxpayers another half a trillion dollars over the next decade.
The Chicago Tribune says with this week’s deal is good news because “Washington’s focus now is on our national debt.” That may be wishful thinking. I fear that the focus of leaders in both parties has now turned to how much more spending they can get away with by junking the budget limits set in current law.
Attention in Washington remains focused on the government shutdown. But a far more important issue confronts America: rising chocolate prices. When will the government address this terrifying global crisis?
Cocoa trees have been cultivated for thousands of years. The early Mesoamericans, including the Aztecs and Mayans, turned the beans into cocoa solids, liquid, and butter. These peoples offered cocoa beans as gifts for the gods and using cocoa drinks in sacred ceremonies.
The Europeans became acquainted with chocolate after the Spanish conquistadors came and conquered. The Europeans sent cocoa beans and added sugar and milk.
Hard chocolate finally arrived in the 18th century, apparently first in Italy. But it was the Industrial Revolution that delivered chocolate to the rest of us. A German company created the first chocolate bar in 1839. Is there another invention that benefited mankind so greatly?
But perhaps the most important innovation was yet to come. In 1867 a Swiss chocolatier, recently removed from candle-making added milk. And then America’s Milton Hershey created a mass market with cheap chocolate bars.
For all of the genius of Thomas Jefferson, he failed to capture this aspect of humanity. What is “life, liberty, and the pursuit of happiness” without chocolate?
Truly access to chocolate is a vital national, even global interest.
Now that access is threatened. The cost of one kilogram of chocolate has hit $12.25, up 45 percent in 2007, the highest ever. It turns out cocoa beans are in short supply.
Even America’s weak recovery has sparked a consumer return to the chocolate market, with consumption rising for the first time since the economic and financial crashes of 2008. The problem is worldwide. In Europe the cost of making a milk chocolate bar is up 31 percent. In Asia chocolate prices are up 30 to 40 percent this year. “Most of our customers are not happy about it” said Richard Lee of Singapore-based Aalst Chocolate. Neither am I.
As I point out in my latest Forbes online column:
This is a crisis. A real crisis. No nonsense about world peace, international poverty, income inequality, environmental degradation, runaway inflation, overwhelming debt, or other minor problems. Chocolate is going to cost more!
This will be bad enough for casual consumers. It is far worse for chocolate addicts. After all, chocoholics can’t help themselves.
It’s time for the government to act. After all, for what do we have the government if not to act in a crisis like this? Vital national interests are at stake.
First, we need a Department of Chocolate. Second, we need to create a new welfare program to ensure that everyone has access to chocolate.
Third, we need price controls on chocolate. Why should greedy profiteers be able to take advantage of helpless chocoholics? We have a RIGHT to reasonably-priced chocolate.
Fourth, we need price supports for cocoa production. So what if that creates a surplus, like for cheese? It is impossible to have too much chocolate.
Fifth, we need to guarantee access to foreign cocoa. Some 70 percent of cocoa is produced in West Africa; 43 percent comes from Ivory Coast alone. Forget access to foreign oil and the Persian Gulf. We remain hopelessly dependent on foreign sources of cocoa.
Sixth, we need a new federal chocolate “czar” to coordinate a truly effective federal chocolate policy.
Indeed, neoconservatives long have suggested that Uncle Sam concoct some new grand crusade as a means of promoting national greatness. How about guaranteed chocolate for all? A world-beating American chocolate industry? Promoting a new advanced chocolate civilization?
America’s political leaders are being laughed at around the world. But for the wrong reasons. Their worst political crime is failing to deal with the looming chocolate crisis. If they fail to act, future generations will never forgive them.
Nathan Worley and three friends hold a weekly political discussion group in their hometown of Sarasota, Florida. In 2010, a ballot initiative for a proposed amendment to the Florida constitution prompted the group to pull together $600 and exercise their First Amendment rights. They soon found, however, that doing so wasn’t going to be quite so easy.
Under Florida’s campaign finance law, it’s illegal for two or more people to join together and spend more than $500 supporting or opposing a state ballot issue. Instead, the state forces even small groups like Worley’s to register and speak through a political committee, which is then subject to a vast catalog of vague, inscrutable regulations that are enforced by thousands of dollars in fines. To speak publicly about the ballot issue, Worley’s informal coterie would have to hire a specialized lawyer and accountant and include “disclosures” in their planned radio ads that would take up about 20 percent of the airtime.
Instead of remaining silent like most small groups do when faced with this type of prohibitive regime, the Worley crew joined with the Institute for Justice to challenge Florida’s laws and vindicate their right to free political speech in federal court. Despite the obvious speech-chilling effect of the regulations, however, the lower courts failed to rigorously scrutinize Florida’s laws. The U.S. Court of Appeals for the Eleventh Circuit in particular abdicated its judicial role in two ways.
First, instead of applying “strict scrutiny,” the court chose the more deferential “exacting” scrutiny, based on the notion that so-called “disclosure” requirements like Florida’s don’t prevent people from speaking. Second, the court hardly even applied the “exacting” standard — deciding, on its own, to all but ignore the facts of the case by analyzing it as a challenge to the entire campaign-finance regime rather than simply as-applied to small groups like Worley’s.
In light of the Eleventh Circuit’s refusal to meaningfully scrutinize Florida’s speech-restrictive laws, Worley and IJ have petitioned the Supreme Court to hear their case. Cato and the Center for Competitive Politics have filed a brief supporting that petition because rulings like the lower courts’ here demonstrate a clear need for the Supreme Court to clarify the correct standards to apply when evaluating campaign finance regimes like Florida’s.
Courts shouldn’t be able to get by without judging just because a state calls its speech regulation “disclosure,” or because the courts decide on their own to recharecterize the case as a “facial” challenge. A Supreme Court hearing would put needed pressure on the federal judiciary to actually scrutinize these types of speech regulations and hopefully prevent them from continuing to silence small groups with little funding — because even little platoons of politically interested citizens have First Amendment rights.
The Supreme Court will decide later this fall whether to hear Worley v. Florida Secretary of State.
This blogpost was co-authored by Cato legal associate Julio Colomba.
My friend Steve Teles, a political scientist at Johns Hopkins, has an interesting new article in National Affairs entitled “Kludgeocracy in America.” His subject is the American political system’s unfortunate tendency in recent years to generate public policies marred by bewildering, dysfunctional complexity. Statutory page counts serve to illustrate the point: consider the Godzilla and Megalon of recent policy kludges, the Affordable Care Act (906 pages) and Dodd-Frank (849 pages).
Steve identifies many institutional factors that lead to Rube-Goldbergism – in particular, the multiplicity of veto points created by our basic constitutional design (presidential system, bicameral legislature, federalism) and augmented by more recent innovations (increasing use of multiple committee referrals and the Senate filibuster). “Every veto point functions more like a toll booth,” he writes, “with the toll-taker able to extract a price in exchange for his willingness to allow legislation to keep moving.”
But Steve also points the finger at American political culture. Specifically, the ambivalence of public opinion about the proper size and scope of government – captured by the oft-repeated and well-documented adage that Americans are ideological conservatives and operational liberals – drives policymaking in circuitous directions. “The easiest way to satisfy both halves of the American political mind,” according to Steve, “is to create programs that hide the hand of government, whether it is through tax preferences, regulation, or litigation, rather than operating through the more transparent means of direct taxing and spending.”
Steve argues that the rise of “kludgeocracy” is a blight that both progressives and libertarians have a shared interest in resisting. “We have arrived at a form of government,” he contends, “with no ideological justification whatsoever.”
I’ll leave my progressive friends to noodle this out for themselves, but I believe that the dynamic Steve writes about does have important implications for supporters of limited government. The sad truth – sad, that is, for people like me – is that small-government rhetoric is much more popular than actual small-government policies. American public opinion, I’m sorry to say, is pretty comfortable with big government; it’s just not very comfortable with how comfortable it is. Check out, for example, the General Social Survey data on support for government spending: the only unambiguously unpopular government programs are space exploration and foreign aid. Yet while large majorities support big spending in one specific area after another, only a tiny minority ever think government overall isn’t big enough, and today a healthy majority think it’s too big and powerful.
What to make of these conflicting attitudes toward government? Maybe a Freudian metaphor might be useful: libertarianism serves as America’s superego while progressivism supplies the ego and id. When Americans are asked if they want more government ice cream, they usually say yes. But asked if they like being morbidly obese, they generally say no. The big problem for supporters of small government: the spirit may be willing, but the flesh is mighty weak.
That problem has been exacerbated by the strategy pursued by political right’s small-government faction over the past generation. The priorities of that faction may fairly be described as, in descending order, (1) reducing or resisting increases in tax rates, (2) reducing or resisting increases in government spending, and (3) reducing or resisting increases in regulations and tax preferences. Alas, that ranking of priorities ends up enabling the electorate’s worst instincts. More transparent spending programs are shunned in favor of more obscure tax breaks and regulatory schemes, while spending now and taxing later are sold as “starve the beast” fiscal discipline. The public feeds its ravenous appetite for government while the true extent of its gluttony is conveniently hidden from view.
One can imagine a very different approach. Instead of pandering to the public, how about forcing it to face up to its bingeing? This approach would insist on public goals being pursued on budget to the maximum extent possible, and would further insist that every new spending program be accompanied by a tax increase to pay for it. In this scenario, issues are framed so as to put America’s libertarian conscience directly on the spot. OK America, you say you want government to do more about X? Well, are you willing to put your money where your mouth is by creating an explicit new spending program and raising the taxes needed to pay for it? Such a strategy, more or less the polar opposite of the reigning one, would at least render Leviathan more visible – and, in doing so, might just make it easier to contain.
FOR IMMEDIATE RELEASE: October 16, 2013
CONTACT: Daniel Encarnacion at 843-410-8868 or email@example.com
Republican Liberty Caucus Endorses Lee Bright for US Senate
CHARLESTON, SC — The Republican Liberty Caucus today announced its endorsement of Sen. Lee Bright (R-Spartanburg, SC) for US Senate in the seat currently held by US Senator Lindsey Graham (R-South Carolina). This marks the first significant national endorsement in this particular race.
“Sen. Lee Bright is a friend of liberty who knows the issues that South Carolinians care about. As businessman who understands all too well the difficult economic times, Lee Bright stands for economic liberty,” said RLC-SC Chairman Scott Pearson. “As a man of faith, he stands for religious liberty; and as a man of great personal character, he stands for personal liberty. Unlike the incumbent, he brings a principled message of individual freedom that will unify, rather than divide, the Republican majority.”
The Republican Liberty Caucus endorses candidates dedicated to the principles of limited government, individual liberty and free markets. In the case of Senator Bright, he has a stellar record in the South Carolina Senate advocating for government reform, respecting the tenth amendment, significant spending cuts and protecting the rights of gun owners.
“Incumbent Senator Lindsey Graham represents everything that is wrong with both the Republican Party and Washington DC, and the outcome of the South Carolina Senate race will be a major factor in determining the future of both,” said RLC National Chairman Matt Nye. “As a proven, principled advocate of individual rights, limited government and free enterprise, Lee Bright offers the citizens of South Carolina a true alternative to the status quo. Bright possesses both the skills and world view we need to turn Washington, and the country, around.”
Lee Bright has represented Spartanburg in the South Carolina Senate since 2008. A lifelong South Carolinian, he resides in Roebuck with his wife, Amy and two children, Kaylee and Kendyl.
The Republican Liberty Caucus is a nationwide grassroots organization founded in 1991 that promotes individual liberty, limited government, and free market economics within the Republican Party. You can find more information about the Republican Liberty Caucus at www.rlc.org and the Republican Liberty Caucus of South Carolina at www.rlcsc.org.
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The federal government has been subsidizing so-called clean coal for decades, and the hand-outs have resulted in one bipartisan boondoggle after another.
Under Presidents Jimmy Carter and Ronald Reagan, for example, the government pumped $2 billion into the Synthetic Fuels Corporation, which supported efforts to convert coal into a gas fuel. The SFC collapsed in the mid-1980s in a spasm of gross mismanagement, conflicts of interest, and changing market conditions.
Unfortunately, the government never seems to learn any lessons from the silliness of its energy subsidies. The latest installment of the long-running clean coal scam was highlighted by the Wall Street Journal yesterday:
For decades, the federal government has touted a bright future for nonpolluting power plants fueled by coal. But in this rural corner of eastern Mississippi, the reality of so-called clean coal isn’t pretty.
Mississippi Power Co.’s Kemper County plant here, meant to showcase technology for generating clean electricity from low-quality coal, ranks as one of the most expensive U.S. fossil-fuel projects ever—at $4.7 billion and rising. Mississippi Power’s 186,000 customers, who live in one of the poorest regions of the country, are reeling at double-digit rate increases. And even Mississippi Power’s parent, Atlanta-based Southern Co., has said Kemper shouldn’t be used as a nationwide model.
One of just three clean-coal plants moving ahead in the U.S., Kemper has been such a calamity for Southern that the power industry and Wall Street analysts say other utilities aren’t likely to take on similar projects, even though the federal government plans to offer financial incentives.
Southern recently took $990 million in charges for cost overruns approaching $2 billion.
Through various subsidies, the federal government had committed nearly $700 million for the Mississippi Power plant, though part of that was the $133 million that the utility will forfeit because of delays.
Kemper’s cost, previously projected at around $2.9 billion, soon began to soar. Southern recently estimated the price tag at $4.7 billion.
For more on clean coal and energy subsidies, see Downsizing Government.
Schools work very hard to curb drunk driving, so when a sober student offers to drive an inebriated friend home from a party rather than let her attempt to drive home herself, no doubt any school would hold her up as worthy of emulation, right? Wrong, sadly, at least at North Andover High School in Massachusetts:
Two weeks ago, Erin [Cox] received a call from a friend at a party who was too drunk to drive. Erin drove to Boxford after work to pick up her friend. Moments after she arrived, the cops arrived too and busted several kids for underage possession of alcohol.
A North Andover High School honor student, Erin was cleared by police, who agreed she had not been drinking and was not in possession of alcohol. But Andover High told Erin she was in violation of the district’s zero tolerance policy against alcohol and drug use. In the middle of her senior year, Erin was demoted from captain of the volleyball team and told she would be suspended from playing for five games.
One of the central purposes of education is to teach students to consider the consequences of their actions. In this sense, Cox and her friend demonstrated greater wisdom than school officials. While the students clearly considered the potentially lethal consequences of attempting to drive drunk, school officials apparently haven’t considered how their “zero tolerance” policy might discourage sobers students from aiding inebriated colleagues in the future. As Alexander Abad-Santos notes at the Atlantic, “Cox did not break any laws; she did not drink, did not party — yet was still punished by the school. By reprimanding Cox, North Andover High is likely sending out a confusing and contradictory message to teens about drinking, designated drivers, and asking for help.” The Cox family lawyer agrees:
“If a kid asks for help from a friend, you don’t want that kid to say ‘I’m sorry I can’t help you. I might end up in trouble at school,’” said attorney Wendy Murphy, who is trying to help the Cox family get the school’s decision reversed.
These “zero tolerance” policies are too often applied with zero logic. They encourage bureaucrats to harshly punish students without considering extenuating circumstances, the student’s intent, or even common sense. They are the reason we see schools that suspend 6-year-olds for eating a breakfast pastry into the shape of a gun or innocently using a camping tool to eat lunch, expel a student for taking Tylenol, suspend a student for wearing rosary beads (potentially a “gang symbol”) in memory of her grandmother, and even pressure a hearing-impaired 3-year-old named “Hunter” into changing the way he signs his name because it resembles a gun. Sadly, there are dozens of other examples. It’s long past time that schools abandon “zero tolerance” in favor of a more reasonable and proportional approach.
This is from a recent speech by Senator Ron Wyden (D-OR):
Today, the Internet represents the shipping lane of 21st Century goods and services. It is reshaping global commerce just like social media is reshaping societies. But right now the trade rules don’t neatly apply to the digital economy, despite the growing number of protectionist barriers popping up. The most recent WTO rules were written before the Internet.
It’s time for the digital economy to be within the Winners Circle by keeping data flows open and ensuring that foreign markets aren’t more legally hazardous than the U.S.
This is an important point. With regard to international trade in goods, the impact of the Internet has been significant, but only within certain limits. With the exception of goods for which electronic versions have been developed, you still need to make the goods at a factory and ship them around the world.
With services, by contrast, the Internet revolution has been greater. A number of services that used to be difficult to trade internationally at all are now tradable with the click of a mouse. To use an example I’ve written about recently, online higher education services are taking off. Someday soon it may be just as convenient for a Washingtonian to get a degree from Melbourne University in Australia as it is to do so from Georgetown.
One problem, though, as Senator Wyden points out, is that many of our international trade rules were written in the pre-Internet era. This became apparent during the WTO dispute over online gambling. The rules could barely fit with this new industry.
Starting with the GATT in 1947, countries around the world made a good deal of progress in reducing barriers to trade in goods. There is now a great opportunity to do the same with trade in online services. Rather than getting distracted with issues such as international intellectual property protections or labor standards, it may be more productive to update trade agreements to account for digital trade, through some kind of Internet Round of trade talks.
Trade talks seem bogged down these days. In part, in my view, that is because they’ve lost focus on the core issues related to free trade. Promoting free trade in Internet services might be a good way to get things back on track.
Daniel J. Mitchell
Partisans can argue whether Clinton actually deserves the credit for these good results, but I’m just happy we got better policy. Heck, Clinton was a lot more akin to Reagan that Obama, as this Michael Ramirez cartoon suggests.
Most recently, he even made some constructive comments about corporate taxation and fiscal sovereignty.
Here are the relevant excerpts from a report in the Irish Examiner.
It is up to the US government to reform the country’s corporate tax system because the international trend is moving to the Irish model of low corporate rate with the burden on consumption taxes, said the former US president Bill Clinton. Moreover, …he said. “Ireland has the right to set whatever taxes you want.” …The international average is now 23% but the US tax rate has not changed. “…We need to reform our corporate tax rate, not to the same level as Ireland but it needs to come down.”
Kudos to Clinton for saying America’s corporate tax rate “needs to come down,” though you could say that’s the understatement of the year. The United States has the highest corporate tax rate among the 30-plus nations in the industrialized world. And we rank even worse—94th out of 100 countries according to a couple of German economists—when you look at details of how corporate income is calculated.
And I applaud anyone who supports the right of low-tax nations to have competitive tax policy. This is a real issue in Europe. I noted back in 2010 that, “The European Commission originally wanted to require a minimum corporate tax rate of 45 percent. And as recently as 1992, there were an effort to require a minimum corporate tax rate of 30 percent.” And the pressure remains today, with Germany wanting to coerce Ireland into hiking its corporate rate and the OECD pushing to undermine Ireland’s corporate tax system.
All that being said—and before anyone accuses me of having a man-crush on Bill and/or of being delusional—let me now issue some very important caveats.
When Clinton says we should increase “the burden on consumption taxes,” that almost surely means he would like to see a value-added tax.
This would be a terrible idea, even if at first the revenue was used to finance a lower corporate tax rate. Simply stated, it would just be a matter of time before the politicians figured out how to use the VAT as a money machine to finance bigger government.
Indeed, it’s no coincidence that the welfare state in Europe exploded in the late 1960s/early 1970s, which was also the time when the VAT was being implemented. And it’s also worth noting that VAT rates in recent years have jumped significantly in both Europe and Japan.
Moreover, Clinton’s position on fiscal sovereignty has been very weak in the past. It was during his tenure, after all, that the OECD—with active support from the Clinton Treasury Department—launched its “harmful tax competition” attack against so-called tax havens.
In other words, he still has a long way to go if he wants to become an Adjunct Fellow at the Cato Institute.
P.S. Just in case anyone want to claim that the 1993 Clinton tax hike deserves credit for any of the good things that happened in the 1990s, look at this evidence before embarrassing yourself.
P.P.S. There’s very little reason to think that Hillary Clinton would be another Bill Clinton.
At 1:00 p.m. this afternoon, in Schuette v. Coalition to Defend Affirmative Action, the Supreme Court will begin hearing oral argument on a simple question: may states ban racial discrimination in their public colleges and universities? Given that the U.S. Constitution, for 145 years, has said that “No state shall deny to any person within its jurisdiction the equal protection of the laws,” one would think that an easy question to answer. But such is our convoluted equal-protection law today that last November the entire Sixth Circuit Court of Appeals decided, 8-7, that 58 percent of Michigan’s voters violated the Constitution when in 2006 they passed Proposition 2, amending the state’s constitution by prohibiting, among other things, discrimination by race in public higher education.
To understand why Prop. 2 was thought necessary in the first place, given the 14th Amendment’s equal protection guarantee, we have to consider the Supreme Court’s 2003 decision in Grutter v. Bollinger. There the Court held, 5-4, that public universities may take race into consideration in their admissions decisions in order to promote “diversity” – at least as long as they consider race among other factors and don’t do so too explicitly. In that case the University of Michigan’s law school passed the test. In a companion case, Gratz v. Bollinger, the college failed because its discrimination was too blatant. Wanting no part of that social engineering scheme, Michigan’s voters passed Prop. 2.
What, then, was the Sixth Circuit’s reasoning (which generated five dissenting opinions from all seven dissenting judges)? Prop. 2, the majority said, disproportionately burdens minorities by requiring them not simply to appeal to admissions officers for special consideration – as those seeking, say, legacy preferences might – but to overturn a state constitutional amendment. Citing “political structure” precedents, which Cato’s brief before the High Court shows to be irrelevant in this case, the court below held that Prop. 2 “placed special burdens on the ability of minority groups to achieve beneficial legislation.” As my colleague Ilya Shapiro contends below, that argument is not likely to wash with the Supreme Court, not least because California’s Prop. 209, which prohibits racial preferences in that state’s public higher education, has been upheld by several courts, including the notoriously liberal Ninth Circuit Court of Appeals.
There are a couple of deeper issues at play here, however, that ought at least to be mentioned. First, why is it that legacy preferences, say, get a free pass while racial preferences do not? Our history of racial discrimination explains that only in part. The question leads, however, to another: on what grounds may public institutions discriminate—or give preferences, which comes to the same thing? Government, after all, belongs to all of us. As a matter of first principle, therefore, it should be able to discriminate only on grounds that are narrowly tailored to serve the function of the public institution at issue—here, perhaps, academic merit.
I say “perhaps” because, in truth, this is a question that arises with every public institution, not only those involving higher education, and at the end of the day, because such institutions belong to all of us, it is not easy to answer the question of why some applicants should be admitted to a public university while others are excluded. The second, still deeper question, then, is why, given the discrimination that is inherent in higher education—”legitimate” or not—do we have public institutions of higher education. The dirty little secret here, after all, is that these institutions amount to massive wealth transfers from the ordinarily less well off to the better off and better connected parts of society, a point economists have long noted and one that Justice Clarence Thomas explored at some length in his Grutter dissent. I’ve discussed these issues more fully here and here.
The Republican Liberty Caucus will be live streaming our first press conference from Greenville, South Carolina where we make a special announcement about the US Senate race. With announcements all across the state, you can also join us in person where US Senate Candidate Lee Bright will speak with voters and the press.
CHECK BACK AT 9AM ON OCTOBER 16TH FOR LIVE VIDEO
Join us in the:
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Today the Supreme Court hears argument in the Schuette case, regarding the constitutionality of Michigan voters’ decision to ban racial discrimination and preferences in public university admissions (the equivalent bans for public employment and contracting haven’t been legally challenged). In no conceivable world can the Equal Protection Clause – the constitutional provision that bans racial discrimination – prohibit a state law that bans racial discrimination. The Supreme Court should and almost certainly reverse the lower court’s ridiculous judgment to the contrary, and will likely do so with a great degree of unanimity on the “political structure” aspect of the case.
Coinciding with that oral argument, Cato is getting involved in a lower-court case called EEOC v. Kaplan Higher Education Corp. Here’s the situation: Following several incidents of employee theft, Kaplan University did what any reasonable employer might do in similar circumstances: it instituted heightened screening procedures for new hires. This process included credit checks to filter out potential employees at greater risk of committing theft. These checks made no mention of any applicant’s race and Kaplan didn’t collect any race information from applicants, thus making the hiring process both race-neutral and race-ignorant. Nevertheless, the Equal Employment Opportunity Commission, which itself uses credit checks in hiring decisions, sued Kaplan under Title VII of the Civil Rights Act, claiming that the use of credit checks has an unlawfully disparate impact on African American applicants.
Because Kaplan doesn’t keep racial data for applicants, the EEOC had to come up with its own data to prove its case. The agency thus created a team of “race raters,” a group of seemingly random people who sorted Kaplan’s job applicants into racial categories based only on the applicant’s name and DMV photo. (You can’t make this stuff up!) Because of the unscientific and unreliable nature of this data, the EEOC was soundly rebuffed in the federal district court in Ohio where it brought its case.
Now before the U.S. Court of Appeals for the Sixth Circuit, the EEOC is continuing its awkward crusade against employers’ use of credit checks. Cato, joining the Pacific Legal Foundation, the Center for Equal Opportunity, the Competitive Enterprise Institute, and Project 21, has filed a brief supporting Kaplan and arguing that the EEOC’s use of “race raters” and its incautious application of disparate-impact theory violate the Fifth Amendment’s equal protection guarantee.
Classifying people into racial categories based on their name and physical features is a demeaning violation of the Constitution’s mandate that individuals be treated as individuals and not reduced to mere members of a racial class. We also argue that the EEOC’s irresponsible use of disparate-impact theory to attack reasonable business practices contradicts the spirit of equal protection by forcing employers to consider race for all of their business-related decisions in order to avoid bureaucratic entanglement.
Sen. Dianne Feinstein (D-CA) has an op-ed in the Wall Street Journal ($) defending the NSA’s bulk call records database as a “vital” counterterrorism tool. While this wouldn’t make the program legal even if true, it also seems clear that the secret Foreign Intelligence Surveillance Court (FISC) has relied, rather uncritically, on the government’s assertions of “necessity” to draw the strained conclusion that every American’s phone records are “relevant” to FBI counterterrorism investigations. It’s thus worth pointing out how extraordinarily weak the case for the program’s utility really is. Feinstein begins by recycling the claim that if only the NSA program had existed in 2001, the 9/11 hijackers could have been identified and halted before carrying out their catastrophic attack:
Intelligence officials knew about an al Qaeda safe house in Yemen with ties to [hijacker Khalid] al-Mihdhar as well as the safe house’s telephone number, but they had no way of knowing if anyone inside the U.S. was in contact with that phone number in Yemen. Only after 9/11 did we learn that al-Mihdhar, while living in San Diego, had called the safe house.
In congressional testimony in June, FBI Director Bob Mueller said that if intelligence officials had had the NSA’s searchable database of U.S. telephone-call records before 9/11, they would have been able to connect the number to al-Mihdhar and produce actionable intelligence on participants of the developing plot. NSA Director Keith Alexander testified before Congress in October that if the call-records program had existed before 9/11, there is a “very high” likelihood that we would have detected the impending attack that killed 3,000 Americans.
The most obvious problem with this argument is that the court order we’ve seen for phone records explicitly demands two distinct categories of records, for calls “(i) between the United States and abroad, or (ii) wholly within the United States, including local telephone calls.” The first category might have helped identify calls to or from a known safehouse in Yemen, but the latter, much larger category rather obviously would not. This is simply an attempt to exploit the tragedy of 9/11 to deflect criticism of massive domestic surveillance that would not have been any use in preventing that attack.
Nor is it clear that even an international bulk phone records database would have been necessary, when NSA could have obtained targeted orders for records of calls between the United States and specific suspect numbers. As ProPublica’s Justin Elliot pointed out when this argument first surfaced back in June, the 9/11 Commission found that the government missed many opportunities to identify al-Midhar, for reasons having more to do with the intelligence community’s internal dysfunction than any lack of raw data. Several experts told ProPublica that NSA had both the technical and legal capability to track the numbers in contact with an actively monitored phone line. Even if they did not in this case, for some obscure technical reason, it is wildly implausible that there was no way to create that capability without indiscriminately vacuuming up American call records.
Feinstein then repeats the widely-debunked talking point that the NSA’s call database has helped disrupt dozens of “terror events”:
Working in combination, the call-records database and other NSA programs have aided efforts by U.S. intelligence agencies to disrupt terrorism in the U.S. approximately a dozen times in recent years, according to the NSA. This summer, the agency disclosed that 54 terrorist events have been interrupted—including plots stopped and arrests made for support to terrorism. Thirteen events were in the U.S. homeland and nine involved U.S. persons or facilities overseas. Twenty-five were in Europe, five in Africa and 11 in Asia.
The key phrase here is “and other NSA programs”: As several of Feinstein’s colleagues on the Intelligence Committee pointed out back in June, the call records program played “little or no role” in disrupting those “events”—it was the “other programs” that did the heavy lifting. One could just as easily say that tarot readings—in combination with other programs—helped disrupt terrorism.
Those “terror events” aren’t actually planned attacks, by the way. One of the few “events” that has been publicly disclosed was… an effort to wire money to the Somalian terror group al-Shabaab. In another case, the NSA tried to take credit for foiling a plot to bomb the New York Stock Exchange… a plot that, on closer examination, turned out not to be real.
So how many of these 54 “terror events”—including money transfers—was the call records program actually involved in investigating? About a dozen. And under pressure from Sen. Patrick Leahy (D-VT) at a recent hearing, NSA Director Keith Alexander was forced to admit that in only one or perhaps two cases did the phone log database provide any important unique leads. Even that may be a stretch: As former FBI Director Robert Mueller acknowledged in a 2009 affidavit to the FISC, NSA tips from the call database sometimes yield information “that the FBI inevitably would have discovered via other investigative techniques.” If the NSA database helps them make those discoveries a bit more quickly, there’s surely value to that—but it’s hard to believe it’s value commensurate with the scale of the intrusion on the privacy of innocent citizens. One might argue the tradeoff is worthwhile if the NSA program is halting dozens of attacks—but it seems an awfully high price to pay if the main benefit is helping the FBI find people wiring money to Shabaab a little sooner than they otherwise would.
It is worth noting that the intelligence community made similar claims about the critical value of a bulk collection program for e-mail metadata, as Sen. Ron Wyden (D-OR) explained in his keynote speech at last week’s Cato conference on NSA surveillance. Only after years of pressure from Wyden and a few skeptical colleagues did the agency admit the program wasn’t particularly useful after all: It was shut down in 2011.
Perhaps because the evidence for any affirmative intelligence value is so weak, intelligence officials have lately fallen back on a new argument, also echoed by Feinstein: the “peace of mind” argument. According to this Kafkaesque line of reasoning, even if the call records program fails to detect terrorists, it’s valuable in reassuring the government that Americans aren’t up to anything. In other words, the program is a vital counterterrorism tool because the vast majority of citizens swept up in the dragnet are innocent. Do you feel safer yet?
A Wall Street Journal story today begins “America’s road to recovery may face a costly detour due to a fraying transportation network. One in nine of the country’s 607,380 bridges are structurally deficient …”
Newspapers have been full of such infrastructure stories in recent years. Pro-spending lobby groups such as ASCE have certainly pumped-up public concerns. America’s highways are becoming more congested, and we should have a discussion about how to finance needed expansions in capacity.
But the popular “crumbling bridges” theme is a bit of a scam. Federal Highway Administration (FHWA) data does show that one in nine bridges are structurally deficient. However, the WSJ doesn’t tell its readers that the share of bridges that are deficient has been steadily declining for two decades, as the chart below reveals.
In 2012, 66,749 of the nation’s 607,380 bridges were structurally deficient, which is 11 percent, or one in nine, as the WSJ reports. But that’s down from 124,072 out of 572,629 bridges, or 22 percent in 1992, according to FHWA.
The general thrust of the WSJ story is correct that having an efficient transportation system aids economic growth. But falling down bridges isn’t the central problem, and hiking gas taxes and boosting federal spending isn’t the solution. Instead, we can spur growth and improve the efficiency of America’s infrastructure by moving as much of it as we can to the private sector.
Despite the fears expressed in news stories, federal worker furloughs do not seem to have caused major economic disruptions. While the National Parks were closed, most government workers that provide useful services to citizens are at the state and local level, not the federal level.
Thus one advantage of our system of federalism is that budget battles at the national level do not shut down most government services that citizens actually use, such as police, fire, and the schools. Indeed, the ongoing political dysfunction at the federal level should be a warning to avoid any further centralization of American government in Washington.
At most, about 800,000 federal workers were furloughed, but that figure is small compared to the 16 million workers in state and local governments. The federal government spends far more than all state/local governments combined, but it has less than one-quarter of the number of workers. When you exclude the uniformed military, there are just one-eighth the number of federal workers as state/local workers.
Outside of the military, the federal government is mainly just a giant cash transfer machine, vacuuming up taxpayer earnings and redistributing them to individuals, businesses, nonprofit groups, and state/local governments though more than 2,000 subsidy programs.
There are two charts below. The first chart shows that state/local government employment has soared since 1950. The second chart shows that federal civilian employment has been comparatively flat.
State/local bureaucracies have grown partly in order to handle the flood of cash and paperwork from the rising number of federal aid-to-state programs. The partial federal shutdown has threatened to turn off the cash spigot to some of these programs, but my view is that the more federal aid programs that we can terminate, the more that we will unhook local activities from future budget chaos in D.C.
(Data notes: Federal “civilian” employment includes nonuniformed Pentagon workers, but it excludes postal workers. The data are from NIPA Table 6.5. and measured in full-time equivalents).
At the end of its last term in June, the Supreme Court announced its decision in Fisher v. University of Texas at Austin. In that case, Abigail Fisher challenged the University of Texas’s use of racial preferences in its admissions policy as a violation of the Fourteenth Amendment’s equal protection clause. When Fisher applied to UT-Austin, the school accepted the top 10 percent of students from all in-state high schools (since lowered to 8 percent), then fills its remaining spots by considering a mix of factors, including a preference for individuals of some (but not all) racial minorities.
When the case originally came to the U.S. Court of Appeals for the Fifth Circuit, the court granted wide deference to UT-Austin and its claim that the racial preferences were justified by what the Supreme Court held — in a 2003 case out of the University of Michigan called Grutter v. Bollinger — to be a compelling government interest: educational diversity. The Supreme Court took Fisher’s appeal, and Cato filed an amicus brief supporting her, arguing that the policy didn’t pass strict scrutiny because the university failed to establish (and the lower court failed to require) the “strong basis in evidence” necessary to justify race-conscious measures and to enable a reviewing court to apply any meaningful level of review.
In a 7-1 opinion, the Court agreed, holding that the Fifth Circuit had not correctly applied strict scrutiny when it deferred to the university as to whether its race-conscious measures were necessary and narrowly tailored. While the Court didn’t reconsider Grutter or the continuing validity of “educational diversity” as a compelling state interest, it did remand the case to the Fifth Circuit with instructions to apply actual strict scrutiny to the university’s use of racial classifications.
Back before the Fifth Circuit, Cato has once again filed a brief supporting Fisher. We argue that the strong-basis-in-evidence requirement is necessary for several reasons: to enable courts to independently review the use of race, to smoke out illegitimate and arbitrary uses of race, to enable the proper tailoring of valid uses of race, to limit racial stigma, and to provide greater transparency and accountability. These reasons are all especially important in the context of diversity in education.
We then point out how UT-Austin has failed to meet its factual burden. It hasn’t established a factual basis to explain its conception of diversity (What will the use of race provide?); the necessity of its racial classifications (Why are there no race-neutral means available?); nor the reasoning behind the extent of its preferences (Why do only some racial classes receive preferences?). Because UT-Austin has failed so miserably to meet its factual burden, it’s clear that its admissions program is precisely what the strong-basis-in-evidence requirement is meant to eliminate: an arbitrary and amorphous use of racial classifications and a violation of the constitutional guarantee that every one of us, student or not, be treated as an individual with full legal equality.
The Fifth Circuit will hear argument in Fisher later this fall.
Supreme Court Justice Antonin Scalia’s recent interview with New York magazine has gotten a lot of attention, but for the wrong reasons. Many reactions center on his “shocking” revelation that he believes in the existence of the Devil. (Does it take a secular Jew to point out that this standard Catholic doctrine should be no more shocking than the belief that there’s a hell in addition to a heaven?) Better-informed observers will note with surprise the acerbic jurist’s repudiation of his “fainthearted originalism.” Nowadays, he said, he tries to be a “stouthearted” originalist, one who is willing to “take the bitter with the sweet.”
That approach to interpreting the Constitution would be a refreshing break with Scalia’s past, for his is not the track record of a consistent originalist. Yes, the good justice has been faithful and true to the original understanding of the Constitution’s terms in many cases – standing firm against Obamacare’s audacious expansion of federal power in NFIB v. Sebelius, for instance. Yet his heart was much less stout in the 2010 case of McDonald v. Chicago, which extended the right to keep and bear arms to the states. In that case, Scalia fell back on the Fourteenth Amendment’s Due Process Clause – and the very doctrine of “substantive due process” on which he has himself heaped such scorn – to “incorporate” the Second Amendment against the states.
A real originalist would have taken Justice Clarence Thomas’s tack, resurrecting the long-neglected Privileges or Immunities Clause. That Clause was widely understood at the time of the Fourteenth Amendment’s ratification in 1868 to empower the federal government to stop states from violating the rights of recently freed slaves, and by extension of all Americans. Yet in the Slaughterhouse Cases of 1873, the Supreme Court ruled that the Clause didn’t restrict states’ police powers, but instead implicated only the rights attendant to U.S. (as opposed to state) citizenship.
That ruling, which unfortunately was never overturned, prompted later courts to resort clumsily to the questionable substantive due process doctrine to secure individual rights against the states. (To be sure, there has to be some substance to the Due Process – kangaroo courts don’t satisfy constitutional requirements – but that wasn’t the provision intended to secure natural rights.) By reviving the Privileges and Immunities Clause, the Court could have put those rights on a much sounder textual footing and return federal constitutional law in this area to its original meaning. Instead, Scalia took the easy way out and “acquiesced” in a 140-year-old precedent “as much as I think it’s wrong” (quotes from the McDonald oral argument). The mind boggles.
Justice Scalia has written, “It is no easy task to wean the public, the professoriate, and (especially) the judiciary away from [living constitutionalism,] a seductive and judge-empowering philosophy.” If his jurisprudence is any indication, however, getting originalism’s loudest champions to adhere to it consistently seems to be no easier.