Archive for December, 2009
This Week in Government Failure
Over at Downsizing Government, we focused on the following issues this week:
- Washington is accused of being “stingy” with its subsidies to state and local governments. If only it were true.
- The Federal Aviation Administration sees nothing wrong with spending taxpayer money on stone fireplaces in little-used airports.
- The Department of Energy’s new Advanced Technology Vehicles Manufacturing Loan Program offers more evidence that American capitalism is taking a corporatist turn for the worse.
- Meet the new HUD, same as the old HUD.
- Food stamp usage has been rising more dramatically than cash welfare because food stamps are simply easier to get.
Weekend Links
- How to manufacture a climate consensus: “The East Anglia emails are just the tip of the iceberg.”
- Forecast for Copenhagen: “Cloudy with a chance of nothing.”
- A tale of how far modern “constitutional law” has taken us toward the executive state.
- How the president’s policies are holding back the economy: “Right now, the best thing Washington can do for our economy is to simply stop what it has been doing.”
- Podcast: “Liberty, Tradition and Values“
Judge Dresses Down Federal Prosecutors
When we hear the phrase “witness intimidation” we’re likely to think of a gang member who is on trial or about to go on trial and, to evade justice, tries to have key witnesses change their story so the case will collapse. We hardly ever hear about cases where the prosecutors try to intimidate witnesses. But it happens. In an extraordinary proceeding this week in Santa Ana, CA, a federal judge reprimanded prosecutors for contemptible conduct toward witnesses. This story needs telling.
Here’s the gist of the case: William Ruehle was charged with criminal securities law violations. Mr. Ruehle’s defense was that his actions were always made in good faith — that he did not act with criminal intent. That’s an important aspect of the case. To take another example that most people can relate to, we all know the tax code is very complicated. People (including IRS employees) make honest mistakes about it all the time. Under the law, the government can only make a case for criminal tax evasion if it can persuade a jury that the person accused knew what the tax law required and proceeded to violate it anyway.
Crucial to Mr. Ruehle’s defense were three witnesses whom he wanted to call on his behalf at trial. They were familiar with his business dealings and would support his good faith defense. That was the plan anyway.
In preparation for trial, prosecutors embarked on an outrageous mission to “flip” or destroy the defense witnesses. One lady was fired from her job after prosecutors called her employer and spread innuendo. Prosecutors then pressured her into pleading guilty to some offense that allegedly took place seven years earlier – a very peculiar prosecution under the surrounding circumstances. And then her plea deal was contingent upon this lady changing her story to support the prosecution, not Mr. Ruehle. Taking all this in, the judge said he had ”absolutely no confidence that any portion of [this lady's] testimony was based upon her own independent recollection of events as opposed to what the government thought her recollection should be on those events.”
And that’s just one witness. It gets worse.
Obama’s Copenhagen Speech
Politico asks, “Was he convincing?”
My response:
In Copenhagen this morning, President Obama convinced only those who want to believe — of which, regrettably, there is no shortage. Notice how he began, utterly without doubt: “You would not be here unless you, like me, were convinced that this danger is real. This is not fiction, this is science.” The implicit certitude is no part of real science, of course. But then the president, like the environmental zealots cheering him in Copenhagen, is not really interested in real science. Theirs, ultimately, is a political agenda. How else to explain the corruption of science that the East Anglia Climate Research email scandal has brought to light, and the efforts, presently, to dismiss the scandal as having no bearing on the evidence of climate change? If that were so, then why these efforts, or the earlier suppression of contrary or mitigating evidence that is the heart of the scandal?
We find such an effort in this morning’s Washington Post, by one of those at the center of the scandal, Penn State’s Professor Michael E. Mann. Set aside his opening gambit — “I cannot condone some things that colleagues of mine wrote or requested” — this author of the famous, now infamous, “hockey stick” article seems not to recognize himself in Climategate. That he then goes after Sarah Palin as his critic suggests only that on a witness stand, confronted by his real critics, he’d be reduced to tears by even a mediocre lawyer. One such real critic is my colleague, climatologist Patrick J. Michaels, who documents the scandal and its implications for science in exquisite detail in this morning’s Wall Street Journal.
But to return to the president and his speech, having uncritically subscribed to the science of global warming, Mr. Obama then lays out an ambitious policy agenda for the nation. We will meet our responsibility, he says, by phasing out fossil fuel subsidies (which pale in comparison to the renewable energy subsidies that alone make them economically feasible), we will put our people to work increasing efficiency in our homes and buildings, and we will pursue “comprehensive legislation to transform to a clean energy economy.”
Mark that word “legislation,” because at the end of his speech the president said: ”America has made our choice. We have charted our course, we have made our commitments, and we will do what we say.” But we haven’t made “our choice” — cap and trade, to take just one example, has gone nowhere in the Senate — even if Obama has made “our commitments.” And that brings us to a fundamental question: Can the president, with no input from a recalcitrant Congress, commit the nation to the radical economic conversion he promises?
Environmental zealots say he can. Look at the report released last week by the Climate Law Institute’s Center for Biological Diversity, “Yes He Can: President Obama’s Power to Make an International Climate Commitment Without Waiting for Congress,” which argues that in Copenhagen Obama has all the power he needs under current law, quite apart from the will of Congress or the American people, to make a legally binding international commitment. Unfortunately, under current law, the report is right. I discuss that report and the larger constitutional implications of the modern “executive state” in this morning’s National Review Online.
There is enough ambiguity in the president’s remarks this morning to suggest that he may not be prepared to exercise the full measure of his powers. But there is also enough in play to suggest that it is not only the corruption of science but the corruption of our Constitution that is at stake.
The Global Warming Shakedown
Pat Michaels and others are working heroically to save America from global central planning for purposes of combatting global warming (or climate change, or whatever they’re calling it now). But let’s also be thankful this holiday season for our Founding Fathers, who wisely created a system based on separation of powers. If the United States had a parliamentary system, there would be no hope of derailing some of the statist schemes being discusssed in DC, even if Pat worked 24 hours a day.
The secretary of state, for instance, is issuing pronouncements about putting American tapxayers on the chopping block to help finance $100 billion per year of new “climate change” foreign aid. This money can only be squandered, however, if the House and Senate agree to do so. That’s a real possibility, of course, but at least there’s some hope that common sense will prevail since the fiscal burden of government already is far too large.
Here’s a NY Daily News report on what’s happening in Copenhagen, including worrisome signs that politicians who don’t pay for their own travel are planning to make the rest of us pay more for ours:
The U.S. is prepared to work with other countries toward a goal of jointly mobilizing $100 billion a year by 2020 to address the climate change needs of developing countries,” Secretary of State Hillary Clinton said.
…While she would not disclose how much the U.S. would be contribution to the climate fund, Clinton said there would be a fair amount contributed to the pot that would be made available in 2020. The finances will reportedly be raised partially by taxing aviation and shipping, as proposed by the European Union.
Sorry to Keep Interrupting Your Folly with the Constitution, But…
…the Constitution!
Andy Smarick at the Fordham Foundation continues to simultaneously cajole and sympathize with U.S. Secretary of Education Arne Duncan as Duncan tries to formulate some sort of discernible parameters for what the federal government should and should not do in education. Clearly, Smarick feels Duncan’s pain:
I have sympathy … because figuring out the right role for the federal government in education policy is no easy task. But I’ve been pointed and nagging because the Department needs to come up with a coherent position if it’s to sell an NCLB reauthorization plan.
Given his apparently long-standing suffering over this issue, it turns out that today is Smarick’s lucky day — I have an elixir that defines the only unshifting and unmuddled parameters of federal education policy possible: outside of Washington, DC, and federal properties like military installations, the federal government has no authority whatsoever to be involved in education! Article I, Section 8 of the Constitution makes this clear, including nothing about education among the specific powers it gives to the federal government.
And if that medicine isn’t strong enough, the 10th Amendment doubles it, reiterating that the Constitution gives the feds only specific, enumerated powers:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Unfortunately, I’ve offered this potent treatment for Smarick (and Duncan’s) painful problem before and Smarick pretty much just flushed it down the toilet. Last time, he simply ignored the overwhelming evidence I offered that federal involvement in education has been and will continue to be a bankrupting failure; declared it unrealistic to think that the feds would get out of education; and wondered aloud whether I might also want to get rid of federal entities like NASA. In other words, he completely dodged the critical question at hand: What is the proper federal role in education?
Deck the Halls with Health Care Taxes
As Congress heads toward Christmas, debating an increasingly unpopular bill that will raise federal spending and taxes, Senate leaders are beating up on anyone — like Joe Lieberman — who seems to threaten quick passage of the bill. Next week, when senators want to get home for Christmas, the pressure on recalcitrant members to give in and vote will become even stronger.
And so, kids, gather around for a Christmas story from the olden days. Back in the last century, in the year 1982, the Washington establishment decided that the gasoline tax should be raised by a nickel a gallon. Ronald Reagan, Tip O’Neill, Bob Michel, Howard Baker, Bob Dole, Dan Rostenkowski — they all wanted it. But Senators Jesse Helms, Don Nickles, and Gordon Humphrey stood in the way. They filibustered right up to the night of December 23. Finally the Senate worked its will, and the tax increase passed. Helms in particular was the subject of calumny from across the Washington establishment, politicians and media alike, both for opposing a much-needed tax increase and for cruelly delaying Christmas for the senators (while trying to preserve it for the taxpayers).
And how did the voters respond to “Senator No”? In a front-page article in the Washington Post of January 2, 1983, describing Helms’s drive home on December 23 after the grueling Senate debate, David Maraniss told the story:
Hours after his fortnight battle against the gasoline tax increase was over and lost, he was bone-tired and bleary-eyed as he drove down Interstate 95, and a few times during the five-hour trip his car lurched precariously toward the shoulder of the highway. Finally, when he reached the exit for South Hill, Va., he decided to pull over and make a pit stop at Hardee’s.
No sooner had the senior senator from North Carolina approached the counter of the fast-food establishment than a truck driver recognized his unforgettable mug. “Hey, there’s Jesse Helms,” said the trucker. Heads turned, mutters of awareness filled the room, and suddenly, spontaneously, some 15 or 20 fellow travelers were on their feet applauding.
“That,” Helms would say later, “was the first time I ever got a standing ovation at Hardee’s.” In fact, it was one of the few times he had received a warm reception anywhere during December.
He had left Washington with a few more nicknames attached to him by his enemies, and even some friends, who had been frustrated by his long, and in the end unsuccessful, attempt to talk the gasoline tax increase to death. “Scrooge,” they had called him, and the “Grinch Who Almost Stole Christmas.”
Where are the senators who will suffer the obloquy of the Washington establishment this Christmas to protect the taxpayers and earn a standing ovation outside the Beltway?
Food Stamps vs. Cash Welfare
A couple of weeks ago I discussed a New York Times report on soaring food stamp use. Yesterday, the New York Times reported that cash welfare use in New York under the federal Temporary Assistance for Needy Families program started to rise more recently. The Times calls this “something of a riddle” given that food stamp usage has been increasing throughout the recession.
But the Times solves the riddle when it acknowledges: “It is much simpler to receive food stamps than cash assistance.” The 1996 welfare reform that replaced the broken Aid for Families with Dependent Children with TANF imposed more stringent time limits and work requirements on recipients. By contrast, the 2002 farm bill expanded food stamp eligibility, increased benefits, and made it easier to claim benefits. The following chart shows the result:
A food stamp user interviewed by the Times explains:
“It used to be easier to go on cash assistance,” she said as she left a food stamp office in Brooklyn this month. “You didn’t have to go to work, you didn’t have to report every day to an office and sign in and sign out. Now, if you don’t go to those group job meetings in the mornings, they shut down your whole welfare case. So that’s why I just get food stamps.”
In the Times article on food stamps, the USDA official in charge of the program was reportedly happy that usage was up and even wanted to see continued growth. The new article quotes an advocate for government welfare programs with similar feelings on cash welfare:
“It should be considered a positive thing and a natural thing as we start to head into a 10 percent overall unemployment rate in New York,” said David R. Jones, the president and chief executive of the Community Service Society, one of the city’s oldest social services agencies for low-income people. “If unemployment rates continue to spiral upward in New York, and you didn’t see an increase in welfare, something would be seriously wrong. That would mean that we weren’t getting people on relief quickly enough.”
The Community Service Society’s website says its mission “is to identify problems which create a permanent poverty class in New York City, and to advocate the systemic changes required to eliminate such problems.” But the federal welfare system has created a permanent poverty class.
Michael Tanner got it right in his book, The Poverty of Welfare, that government officials and welfare activists have a vested interest in these programs:
Whatever the intention behind government programs, they are soon captured by special interests. The nature of government is such that programs are almost always implemented in a way to benefit those with a vested interest in them rather than to actually achieve the programs’ stated goals. Among the non-poor with a vital interest in anti-poverty programs are social workers and government employees who administer the programs. Thus, anti-poverty programs are usually more concerned with protecting the prerogatives of the bureaucracy than with fighting poverty.
Vague Laws Defy the Rule of Law
Following Enron’s downfall, the federal government charged company CEO Jeffrey Skilling with “honest services fraud” connected to the alleged manipulation of Enron’s market value (and other securities irregularities). This charge — also at issue in two other cases before the Court this term — is based on a statute which says, in its entirety: “For the purposes of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.”
Skilling was convicted, and his conviction was upheld by the Fifth Circuit. The Supreme Court agreed to review the application of the “honest services fraud” statute to Skilling (as well as the issue of potential jury bias stemming from pretrial publicity in Houston). Cato, joined by the Pacific Legal Foundation, filed an amicus brief supporting neither party, arguing simply that vague statutes such as the one at issue here offend due process.
We take no position on whether Skilling committed a crime, or even the crime at issue here (whatever that may be). Instead, we argue that the Court should clarify that the constitutional prohibition on vague laws protects sophisticated and unsophisticated defendants alike in the realm of economic regulation, as well as in criminal law. The due process requirements of fair warning and definiteness apply equally in the contexts of white collar business crimes, business torts, and civil regulations.
Vague laws involve three basic dangers: First, they may harm the innocent by failing to warn of the offense. Second, they encourage arbitrary and discriminatory enforcement because vague laws delegate enforcement and statutory interpretation to individual government officials. Third, because citizens will take extra precautions to avoid violating the law, vague laws inhibit our individual freedom.
For more on this issue, see Tim Lynch’s posts here and here, Gene Healy’s op-ed, or the related policy forum and podcast.
More Sightings of Libertarian Voters
Michael Petrilli created a stir with his Wall Street Journal op-ed, “Whole Foods Republicans,” on Monday. He noted that the American electorate includes more college graduates every year, and in 2008 the Republican nominee for president lost the college-educated vote for the first time since the 1970s. Republicans need to stop sneering at the “arugula vote” and start appealing to educated, progressive voters:
What’s needed is a full-fledged effort to cultivate “Whole Foods Republicans”—independent-minded voters who embrace a progressive lifestyle but not progressive politics….
What makes these voters potential Republicans is that, lifestyle choices aside, they view big government with great suspicion. There’s no law that someone who enjoys organic food, rides his bike to work, or wants a diverse school for his kids must also believe that the federal government should take over the health-care system or waste money on thousands of social programs with no evidence of effectiveness….
Even more important is the party’s message on divisive social issues. When some Republicans use homophobic language, express thinly disguised contempt toward immigrants, or ridicule heartfelt concerns for the environment, they affront the values of the educated class. And they lose votes they otherwise ought to win.
These voters are part of the “libertarian vote” that David Kirby and I have been exploring. Libertarian voters tend to be more educated than average (see “The Libertarian Vote,” table 11, page 17), and they can be described as “fiscally conservative and socially liberal.” It’s good to know other people are noticing them, and we hope that soon candidates and consultants will take note. For those who are still dubious, the day after the Wall Street Journal column, the Washington Post published this letter:
When I read House Minority Leader John Boehner’s Washington Forum commentary about the GOP’s thoughts on economic policy and job creation — as compared with that of the Obama administration ["A better plan for jobs," Dec. 11] — I wanted to cheer. I am concerned about America’s increase in debt and think that the health reform plan is interventionist and has no hope of reforming health care.
But I can’t cheer. Because I apparently can’t be a Republican — limited government, fiscal conservative — unless I am also willing to vote for “pure conservative” candidates a la the purity test being proposed to the Republican National Committee: pro-life, anti-gay marriage, draconian immigration policies ["A party both united and divided," front page, Nov. 30]. These are policies I refuse to support.
So, whom do I vote for next year?
Kathy Rondon, Falls Church
I don’t know if Ms. Rondon shops at Whole Foods, but she’s definitely a part of the “libertarian vote.” Republicans wondering why they lost in 2006 and 2008, and Democrats worrying about slipping poll numbers during 2009, should take a look at the libertarian slice of the electorate.
Our System of Government Exists to Prevent This Kind of Thing
The Hill‘s Congress Blog asks, “Will the Senate pass a health care reform bill before it adjourns for the year?”
I answer:
It’s not looking good – nor should it.
The Reid bill becomes less popular with each passing day. (So too does President Obama’s handling of health care.)
CBS News is reporting that Reid wants to hold a vote before Christmas because he doesn’t want senators to go home and hear from their constituents.
Reid has been systematically suppressing a complete cost estimate of his bill.
Reid’s manager’s amendment will make unknown, countless, and dramatic changes to that 2,074-page bill – and Reid wants to vote on it before anyone knows what those changes are.
Even Max Baucus admits that not a single senator understands the Reid bill.
Our federalist system, the separation of powers, our bicameral national legislature, six-year terms for Senators, staggered Senate elections, and the Senate’s procedural rules all exist precisely to prevent what Reid is trying to do: ram a sweeping piece of legislation through Congress without due consideration.
Tax Hike Commission
The Senate Homeland Security and Government Affairs Committee is holding hearings today focused on Senator Kent Conrad (D-ND) and Judd Gregg’s (R-NH) idea to set up a special Task Force to draft a deficit-reduction plan. The plan would get fast-tracked through Congress for a vote and “everything would be on the table.”
For taxpayers, this idea creates the threat of large tax increases on top of all the other tax increases being discussed in Congress. While the senators supporting a Task Force express valid concerns about the government’s exploding debt, the plan could launch a drive to impose a European-style value-added tax in America.
In theory, such a Task Force could come up with some meaty and long-overdue cuts to the federal budget. But nine of the senators co-sponsoring the Conrad-Gregg Task Force, including Conrad, voted in favor of the massive spending bill passed by the Senate on Sunday, which increased appropriations by 10 percent in a single year.
In calling for deficit reduction, Senator Conrad says that “it is no longer enough for Congress to simply talk about reform; it is time for action and leadership.” But Senator Conrad certainly hasn’t shown reform leadership on farm subsidies. So until he and his colleagues start restraining their own spending appetites, it’s safe to assume that ”everything on the table” really just means a sneaky, under-the-table tax increase.
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