Archive for June, 2010
Recusal Rules Impact Environmental (and Other) Litigation
Two weeks ago I blogged about the dismissal of the Katrina-related global warming case because half the judges on the Fifth Circuit were recused for having financial interests in the energy companies and utilities (which the plaintiffs chose specifically to gain recusals but mis-timed their strategy). Well, now it seems that many judges on the Gulf Coast are recusing themselves from the nascent (and future) oil spill suits, again because they own shares of BP, Transocean, and the other companies involved. Indeed, over half the federal district judges in the affected states — Texas, Louisiana, Mississippi, Alabama, and Florida — will not be participating in these cases, leading to calls to appoint judges from elsewhere in the country to handle them.
That’s ridiculous! Owning a few hundred or thousand dollars worth of shares of stock is not enough to change the way a judge will behave, particularly when the public knows which judge owns which stock. If we cannot agree that such purported “conflicts” don’t really show an appearance of impropriety — if we really doubt the integrity of our judiciary to such an extent — then we might as well throw out the ethics rules, throw up our hands, and declare the country ungovernable. (I’m reminded of the Carrie Underwood song, “Jesus Take the Wheel.”)
Moreover, the financial conflict rules are murky. As this AP story discusses, ”a judge does not have to step aside if the investments are part of a mutual fund over which they have no management control. Mere ties to companies or entities in the same industry, no matter how extensive, also don’t require disqualification.” So here we’re valuing form over substance.
Look, maybe this is just a pet peeve of mine – it’s not an ideological issue one way or the other — but I think you just have to apply the “reasonable skeptic” standard. Every judge is human and has his various biases. It’s one thing to recuse if counsel for one of the parties is the judge’s spouse or child, or if half the judge’s wealth is invested in one of the parties. But dinky little “abundance of caution” recusals cost the justice system more in administrative hassle, sunk attorney fees, and other wastes of time and money than they benefit it in increased integrity.
As for the oil spill litigation, the U.S. Judicial Panel on Multidistrict Litigation — which looks at complex cases on similar issues brought in disparate venues — meets July 29 in Boise, Idaho (of all places), to hear arguments on consolidation. In light of the aforementioned recusals, the Louisiana cases may well be sent to Alabama, Mississippi, or South Florida — or a federal courthouse near you!
Another Government Employee Bailout
President Obama is proposing giving the states another $50 billion. However, this would amount to another bailout for state and local government employees and their unions. The president claims that more deficit spending is necessary to sustain the nascent economic recovery. But the only thing the money would sustain is the excessive wages and benefits government employees enjoy at the expense of the private sector.
According to the Bureau of Labor Statistics, the average state and local government employee receives 45 percent more in total compensation per hour worked than the average private-sector employee. Perhaps we should cut generous government wages and benefits rather than putting the federal government further into debt?
Total compensation for state and local workers is more than $1.1 trillion a years. So loosely speaking we could simply cut compensation by less than five percent for state and local governments to save the $50 billion they are in need of.
Of more fundamental concern is the continued relegation of the states to being administrative outposts of the federal government. The employment of firefighters, teachers, and police officers is an issue for the states to be concerned with. However, so long as the federal government continues to overstep its constitutional bounds, the states will have little incentive to tackle issues like excessive employee compensation. State and local policymakers can avoid the hassle of taking on the government employee unions by cashing Uncle Sam’s checks instead.
As the following chart shows, federal aid to state and local governments has almost doubled in real terms over the past decade:
It’s not a coincidence that the states find themselves in a fiscal bind. The increasing dependency on the federal government has contributed to the states’ dereliction of duty when it comes to keeping their fiscal houses in order. As this essay argues, reviving fiscal federalism is critical to getting governments at all levels in the United States to clean up their fiscal messes.
The Principle behind Campaign Finance Regulation
Democratic House leaders apparently have reached a compromise that may bring the DISCLOSE Act to a vote. The National Rifle Association, a group that enjoys some support from House Democrats, objected to the bill’s disclosure provisions. DISCLOSE’s authors have now agreed to exempt “organizations that have more than 1 million members, have been in existence for more than 10 years, have members in all 50 states, and raise 15 percent or less of their funds from corporations.” The National Rifle Association qualifies for the exemption. But you knew that.
I wonder what principle of campaign finance regulation justifies this exemption? Earlier the authors of DISCLOSE said the American people deserve to know who is trying to influence elections. Now it would seem that voters only need information about relatively small, young, geographically-confined organizations that receive more than 15 percent of their money from corporations.
There is no principle at stake here. The NRA had enough support to stop the DISCLOSE Act. House leaders had to compromise by cutting the NRA a deal, a special exemption from the proposed law. The deal does show, if nothing else, that House Democrats are really worried about new money entering the fall campaign. They are willing to go a long way — even as far as helping the NRA — to make sure other speech funded by businesses and groups is not heard.
Finally, imagine you are a member of a group not exempted from DISCLOSE. You have been treated unequally by Congress. The courts have said Congress can treat you unequally if they show that this exemption for the NRA has a rational relationship to an important government purpose. How does exempting older, bigger, more widespread groups with less than fifteen percent corporate funding help Americans cast an informed vote? Put another way, if the NRA deserves an exemption, doesn’t everyone?
ObamaCare Regs Will Increase Premiums, Reduce Wages, Force Americans to Change Coverage
Today, the Obama administration issued new health insurance regulations as part of its effort to implement ObamaCare. According to The New York Times:
the rules appear to fall short of the sweeping commitments President Obama made while trying to reassure the public in the fight over health legislation.
One of those commitments was that people who are satisfied with their health insurance will be able to keep their existing health plans. Of course, there is a tension between that goal and ObamaCare’s goal of requiring every American to purchase a minimum amount of health insurance coverage.
The new regulations explain how the government will interpret ObamaCare’s “grandfather” clause, which allows some health plans to continue as they exist today. If an insurer makes too many changes to its health plan, or if an employer or individual purchaser selects a different health plan, then the consumer loses the protection of ObamaCare’s grandfather clause. The consumer must then purchase the full array of coverage that ObamaCare requires, which can increase premiums significantly.
How many Americans will lose this protection? Again, The Times:
About half of employer-sponsored health plans will see such changes by the end of 2013, the administration says in an economic analysis of the rules.
What are some of the ways that consumers can lose this protection?
If, for example, an employer is paying 60 percent of the cost of family coverage, it would run afoul of the rules if it cut its share to 50 percent.
An employer would also lose its exempt status if it increased co-payments for doctor’s visits to $45, from $30 — a 50 percent increase — while medical inflation was 8 percent…
An insurer loses its special protection…if, for example, it requires patients to pay 25 percent of the bill for surgery, rather than the 20 percent charged in the past…
If [insurers] want to retain their grandfathered status, they cannot reduce any annual dollar limit that was in place on March 23.
The upshot of these regulations is this: Health premiums, which were going to keep rising anyway, will rise even higher as a result of ObamaCare. If employers or consumers try to cope with those rising premiums by paring back the amount of coverage they purchase, they lose their “grandfather” protections, and ObamaCare forces them to purchase even more coverage. Damned if you do, damned if you don’t.
The requirement that employers sustain their “contribution” to the cost of health benefits, meanwhile, will hide ObamaCare’s effect on health insurance premiums. Health economists agree, almost universally, that the “employer contribution” is a fiction; employers merely deduct from the employee’s overall compensation package whatever they pay toward health benefits. In other words, the employee pays for her health benefits, not the employer. Forcing employers to maintain their current “contribution” essentially requires them to hide much of ObamaCare’s cost in the form of lower wages, which workers are less likely to associate with the law than rising premiums.
Mandatory Minimum Sentencing
The U.S. Sentencing Commission is taking another look at mandatory minimum sentencing and Cato adjunct scholar, Erik Luna, offered his thoughts [pdf] to Commission members, along with other experts.
The ACLU’s Jay Rorty blogged about what he said and witnessed at the hearing:
I told the commission the story of an ACLU client, Hamedah Hasan, who received a life sentence for a first-time, nonviolent drug offense under the most extenuating circumstances: she came to stay with her cousin in order to flee a physically abusive relationship, and the cousin roped her into running errands for his drug conspiracy. Despite her previously clean record, her sentencing judge found his hands tied by a combination of mandatory minimums for crack cocaine and the then-mandatory sentencing guidelines based on those minimums. Hamedah’s sentence has since been reduced from life to 27 years, but she still has 10 years left to go. Hamedah has three daughters and one granddaughter. She gave birth to her youngest child in prison, and because of the ripple effect of this sentencing structure, Hamedah’s children and grandchildren are growing up without her. The judge has publicly urged that her sentence be commuted (reduced) and the ACLU filed a petition three months ago asking President Obama to do so.
Another tragic story recounted today was that of Weldon Angelos, who was facing a sentence of 6-9 years for dealing marijuana — until the government added three gun charges carrying increasingly harsh minimums that the law requires to be “stacked,” that is, to be added on top of one another. Even though he never fired the gun or threatened anyone, the fact Weldon had the gun with him on several occasions was enough to increase his sentence to 55 years, in spite of his judge’s firm conviction that the sentence was unfairly severe. Listening to stories like this made me wonder how Congress could have let this state of affairs persist for so long and whether they will ever be serious about changing it.
For more information, go to the FAMM (Families Against Mandatory Minimums) web site.
Update: Woman sentenced to life imprisonment for kissing a 13-year old boy and placing his hand on her breast.
How to Cut Military Spending
Several months ago, I co-authored an op-ed in Politico with Heather Hurlburt of the National Security Network calling on the White House and Congress to include the Pentagon’s budget in any deficit reduction package.
because our national security rests on our economic health as well as on the strength of our military, a liberal and a libertarian can agree that the Pentagon should no longer get a pass.
That op-ed caught the attention of Congressman Barney Frank. He formed the Sustainable Defense Task Force, an ad hoc advisory panel to assemble a list of possible reductions in military spending that would not undermine essential U.S. security.
Last Friday, the task force presented its findings at a press conference at the Capitol. You can read the full report here [.pdf].
Ben Friedman and I collaborated on the portion of the report that makes the case for a new grand strategy of restraint that would allow for substantial cuts in military spending. Our op-ed in this morning’s Los Angeles Times focuses on one key theme: we spend too much because the U.S. military does too much.
A few excerpts:
The Cold War is over. While we were defending our allies in Europe and Asia, they got wealthy. The new status quo is that we offer them perpetual security subsidies — and risk being drawn into wars that do not serve our security interests.
[...]
By avoiding the occupation of failing states and shedding commitments to defend healthy ones, we could plan for far fewer wars, allowing cuts in force structure, manpower, procurement spending and operational costs. The resulting force would be more elite, less strained and far less expensive.
[...]
Our deficit problem is an opportunity to surrender the pretension that we are the world’s indispensable nation, preventing instability, shaping the international system and guiding history. We should be content to settle for being the big kid on the block that looks out for itself and occasionally helps friends in a bad spot. That approach would take advantage of the security we have, and save money we don’t.
As Cong. Frank explained at the press conference, if cutting defense was easy, we would have done it by now. Defense is a core function of government — any government. That might explain why conservatives, and even some libertarians, are more resistant to Pentagon spending cuts than they are to cuts at the Departments of Agriculture, Commerce, Energy, Education (etc.).
Yet much of what Washington does today isn’t defense, which means that the Pentagon’s budget shouldn’t escape scrutiny. The notion that we should close the budget deficit while leaving the military’s share off the table is untenable.
For one thing, it is a key driver of the enormous growth in government spending over the past decade; inflation-adjusted “national defense” outlays (including the costs of the wars in Iraq and Afghanistan) have grown by 86 percent since 1998.
What’s more, the phrase “national defense” is a misnomer, at worse, misleading, at best. We should ask “Defend whose nation?” Most of what Americans spend on our military today is focused on defending other countries that should defend themselves. Once that reality sinks in — and I think it has already — it shouldn’t be that hard to focus the public’s attention on what we spend on our military, and what we get in return.
For the sake of our fiscal health as well as our physical security, we can and should make responsible reductions in military spending. By drawing down the size of our military, reducing our global footprint, and adopting a more restrained grand strategy, we can achieve a sustainable level of military spending that keeps America safe and strong for a very long time to come.
Massachusetts Treasurer on ObamaCare: ‘We Should Stop It’
Massachusetts Treasurer Tim Cahill, who is running for governor as an independent, claims that former governor Mitt Romney’s 2006 health care law “has created a huge hole in our budget,” and has this to say about ObamaCare:
If the federal plan is the Massachusetts plan writ large, then we should stop it, because we’re going to be in the same place four or five years down the road.
Indeed, ObamaCare is the Massachusetts plan writ large.
Repeal the bill.
America’s Alliances: Frayed, but not Disappearing
National Journal‘s Paul Starobin asks at the National Security Experts blog “Are America’s Alliances Fraying?” Starobin notes that two normally reliable allies, Brazil and NATO member Turkey opposed an additional round of sanctions against Iran. Meanwhile, President Obama has failed to persuade Europeans to provide large numbers of troops to Afghanistan. “Is the ability of Washington to assemble coalitions on behalf of its global objectives starting to ebb?” Starobin asks. “Are our alliances fraying — and if so, why? Does this trend have to do with our flailing economy, with inept diplomacy, or with some other set of factors?”
Excerpts from my response:
It is hardly newsworthy when one of America’s allies bucks Uncle Sam. It has become an almost daily occurrence.
[...]
But just because the United States has had difficulty keeping its allies in line doesn’t mean that it can’t assemble a coalition to deal with common challenges. It all depends on whether the parties agree on the nature and severity of the threat, and on the best means for mitigating it. In this context, the multinational naval task force operating off the Horn of Africa has had great success beating back piracy in the region. The countries that choose to participate agree that piracy poses a threat to their commercial interests, and are willing to band together in a loose coalition — and not as part of a formal, permanent alliance — in order to deal with the challenge. Their contributions are generally consistent with their interests; the benefits seen as in line with the costs.
Alliances are no different, or, at least, they shouldn’t be. Alliances are supposed to be sustained by interests. (British Foreign Secretary Lord Palmerston’s observation that “nations have no permanent friends or allies, they only have permanent interests” has been repeated so many times that it has become cliched). And yet, the United States has maintained its commitment to NATO, South Korea and Japan in recent months, even as it is obvious that the parties do not share common interests. The alliances have become an end in and of themselves, instead of the means to an end.
[...]
When she presented the Obama administration’s national security strategy late last month, Secretary of State Hillary Clinton declared that NATO was one of several global commitments that was “embedded in the DNA of American foreign policy.”
Hardly. While a bipartisan consensus in Washington is enamored of Europe’s dependence upon the United States, most Americans tire of defending our wealthy European allies who are eminently capable of defending themselves. The resentment has only grown as these same allies have shown precious little enthusiasm for supporting the United States in its hour of need in Afghanistan.
[...]
We have created a class of wealthy and secure allies who lack the capability, but most importantly the will, to act on their own behalf, let alone in the service of the world’s policeman.
Read the full response here.
Rep. Bob Etheridge Assaults Student
Video of Rep. Bob Etheridge (D-N.C.) assaulting a student who asked him if he supports the Obama agenda. (HT Radley Balko)
Gov. Bob McDonnell Needs to Lead on the Budget and Education
Gov. McDonnell just signed a bill that will give a tax credit to the film industry. They will shell out up to $2.5 million to movie-makers in the first year and up to $5 million thereafter. Proponents say it might save money. Unfortunately, the evidence from other states suggests it will lose money.
At a time of economic turmoil and budget problems, the Governor wants to lose money by giving a tax credit to the film industry. It’s even refundable, which in normal-talk means the state will send a check to a film executive even if he doesn’t owe any taxes; that’s a straight BAILOUT, not a tax credit. The last thing Virginia needs is another corporate bailout.
What is wrong with our Commonwealth? And what in the world is Governor McDonnell thinking?
There is one tax credit that has consistently proven to save money and increase achievement in public schools: education tax credits.
Florida recently expanded its successful education tax credit program to $140 million with the support of 42 percent of Democrats and almost every Republican. The program was found by the government to save $1.49 for every dollar invested in the credits. And the official academic researcher for the program just found that it significantly increases public school performance.
Strangely, education tax credits are not on the Governor’s agenda. Why?
Why is a Governor who had the good sense to appoint a true education reformer, Gerard Robinson, as the Secretary of Education not out front leading the movement for effective, efficient investment in education?
Look to Pennsylvania, to Georgia, Iowa, Rhode Island, Illinois, Arizona, any of the nine states supporting twelve education tax credit programs to see the new, bipartisan wave of education reform. A toothless Virginia charter school law will do nothing to improve education or save money. And the constitution won’t allow a strong charter law.
We need to save money, not waste it on another corporate bailout. We need to increase achievement.
We need leadership, Governor. We need education tax credits in Virginia. Now.
If Only We Could Be More Like Djibouti, Haiti, and Afghanistan
When it comes to paid maternity leave, the United States is in the postpartum dark ages.
One hundred and seventy-seven nations — including Djibouti, Haiti and Afghanistan — have laws on the books requiring that all women, and in some cases men, receive both income and job-protected time off after the birth of a child.
DWI Convictions Due to Faulty Breathalyzer Calibration
From the Washington Post:
Nearly 400 people were convicted of driving while intoxicated in the District since fall 2008 based on inaccurate results from breath test machines, and half of them went to jail, city officials said Wednesday.
D.C. Attorney General Peter Nickles said the machines were improperly adjusted by city police. The jailed defendants generally served at least five days, he said…
The District’s badly calibrated equipment would show a driver’s blood-alcohol content to be about 20 percent higher than it actually was, Nickles said. All 10 of the breath test machines used by District police were wrong, he said. The problem occurred when the officer in charge of maintaining the machines improperly set the baseline alcohol concentration levels, Nickles said.
This is the same jurisdiction where a woman who had a single glass of wine with dinner and a Blood Alcohol Concentration (BAC) of .03 was arrested for being under the influence in 2005. The national standard for a DWI arrest is .08, and anyone testing below .05 is presumed not to be intoxicated. The District of Columbia’s standard for arrest was anything above .01 if the officer deemed the driver intoxicated. Public outcry over the strict policy, particularly in a town built on tourism, prompted the D.C. Council to temporarily amend the law. The D.C. Police website still says that police can charge DUI (Driving Under the Influence, not Driving While Intoxicated) for a BAC of .07 or lower.
There is good reason to question the foundation of DWI laws and enforcement. Radley Balko makes the case that the federal push for reducing the national DWI BAC standard from .10 to .08 achieved little for public safety in Back Door to Prohibition: The New War on Social Drinking. Even Mothers Against Drunk Driving (MADD) founder Candy Lightner regrets the no-tolerance direction her organization has taken: “[MADD has] become far more neo-prohibitionist than I had ever wanted or envisioned… I didn’t start MADD to deal with alcohol. I started MADD to deal with the issue of drunk driving.”
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