Archive for October, 2010
Privacy and the Common Good
Jim Harper’s post Monday, responding to communitarian Amitai Etzioni on “strip search” scanners at airports, gives me an opportunity to mount one of my hobbyhorses.
My beef with Etzioni’s conclusory argument isn’t just that, as Jim observes, he purports to “weigh” the individual right to privacy against the common good (here in the guise of “security”) without any real analysis of the magnitudes on both sides. It’s that his framing is fundamentally backwards. The importance of privacy is, to a great extent, a function of its collective dimension—a point to which you’d think a communitarian theorist who’s written an entire book on privacy would be more keenly attuned. If I may indulge in a little self-quotation:
[W]hen we talk about our First Amendment right to free speech, we understand it has a certain dual character: That there’s an individual right grounded in the equal dignity of free citizens that’s violated whenever I’m prohibited from expressing my views. But also a common or collective good that is an important structural precondition of democracy. As a citizen subject to democratic laws, I have a vested interest in the freedom of political discourse whether or not I personally want to [engage in]–or even listen to–controversial speech. Looking at the incredible scope of documented intelligence abuses from the ’60s and ’70s, we can add that I have an interest in knowing whether government officials are trying to silence or intimidate inconvenient journalists, activists, or even legislators. Censorship and arrest are blunt tactics I can see and protest; blackmail or a calculated leak that brings public disgrace are not so obvious. As legal scholar Bill Stuntz has argued, the Founders understood the structural value of the Fourth Amendment as a complement to the First, because it is very hard to make it a crime to pray the wrong way or to discuss radical politics if the police can’t arbitrarily see what people are doing or writing in their homes.
I’m actually somewhat sympathetic to the notion that the individual harms that result from strip scanners are relatively slight, especially when passengers can opt for a pat down instead. In the worst case scenario, some unscrupulous TSA employee might find a way to save and circulate some of these blurry quasi-nude images, the embarrassment potential of which is likely to be mitigated by the fact that the x-ray view doesn’t really show an identifiable face.
I’m much more concerned about the social effect of making such machines commonplace—of creating a general norm that people who wish to engage in routine travel must expect to expose themselves in this way. As Michel Foucault famously observed, surveillance is not merely the passive gathering of information; it exerts a “disciplinary” power, creating what he called “docile bodies.” The airport becomes a schoolhouse whose lesson is that not even the most intimate spaces escape the gaze of authority.
Betsy Markey: Misinformed or Misleading?
On NPR stations this morning, the “Power Breakfast” segment from Capitol News Connection profiled Rep. Betsy Markey (D-CO), who is fighting hard to keep her seat this year. The reporter noted:
She’s a Blue Dog, one of those fiscally conservative Democrats who frequently complicate things for Party leaders by insisting on spending offsets and the like.
A claim slightly complicated by the reporter’s earlier noting that Markey voted for the $787 billion stimulus bill, the health care overhaul, and cap-and-trade. How exactly does that make her a Blue Dog fiscal conservative? Oh, and in her first year she got a score of 19 percent on tax and spending issues from the National Taxpayers Union. The search for an actual Blue Dog goes on.
But I was really struck by this line about the massive stimulus bill:
MARKEY: [E]very economist from the far left to the far right was saying the government needs to step in because there was absolutely no private sector investment.
This is of course not true. Hundreds of economists went on record against the stimulus bill. The Cato Institute’s full-page ad with their names appeared in all the nation’s major newspapers. It is hard to imagine that Representative Markey missed it. If she wasn’t much on reading newspaper ads, lots of economists wrote op-eds and blog posts opposing the stimulus. If she didn’t read op-eds or blogs either, the ad and the economists were featured on dozens of television programs.
And so we come to the question in this post’s headline: Could Rep. Betsy Markey really be so misinformed that she actually believed that “every economist” supported a massive increase in spending and debt on top of TARP and the other bailouts?
This Week in Government Failure
Over at Downsizing Government, we focused on the following issues this week:
- Could the results of the November elections be a nail in the Obama administration’s high-speed rail coffin? Let’s hope.
- The U.S. Postal Service can’t afford its unions.
- A new study finds that federal and state governments have wasted billions of dollars on subsidies for students who didn’t make it past their first year in college.
- The Obama administration’s plan to fix Head Start with some bureaucratic tinkering is not “almost enough to restore a person’s faith in the federal government.”
- Now is a good time to get rid of farm subsidies.
Note: Chris Edwards will be discussing Downsizing Government on Fox News’ Special Report With Bret Baier on Monday @ 6:00 PM EST.
Andrew Cuomo and the Gunmaker Litigation
There are many reasons to be glum about the impending coronation of dynastic heir Andrew Cuomo, now leading in the New York governor’s race against a GOP opponent (Carl Paladino) who at first polled decently but has since stumbled. Some fret about the Democrat’s reputation for political hardball: former governor Eliot Spitzer (Eliot Spitzer!) last month called Cuomo the “dirtiest, nastiest political player out there,” which is like being called overdressed by Lady Gaga. Others find Cuomo too much of a camera-chaser as attorney general in Albany, and almost everyone is queasy over his role (as Clinton-era housing secretary) in encouraging risk-taking by federally backed Fannie Mae and Freddie Mac, leading by direct steps to today’s ongoing mortgage crisis. (For background, see Wayne Barrett’s famous 2008 Village Voice article.)
I have a different reason for cringing at the idea that voters would ever elevate Andrew Cuomo to higher office, and it’s also based on memories of his tenure as housing secretary. Not the Fannie-Freddie-subprime end of it, although I concede that in a strictly economic sense those were the most damaging things he did. No, what I find permanently hard to forgive is the way Cuomo threw himself into the role of chief national cheerleader for the municipal anti-gun litigation of the 1990s and early 2000s.
Because that litigation mostly fizzled out, it is now only half remembered and doesn’t much feature in Cuomo profiles. At the time, though, it was a close-fought battle and a big story. More than 30 cities and counties sued firearms makers, alleging that courts should hold them financially responsible for the costs of urban shootings. The cry was to make guns the “next tobacco,” following the successful litigation campaign against tobacco companies that extracted hundreds of billions of dollars for the benefit of state coffers (and private lawyers).
Of course there are enormous differences between the tobacco and gun businesses. One is that while major tobacco makers had billion-dollar revenue streams to share as part of a settlement, most gunmakers are smallish enterprises, often family-owned. And this in fact was a conscious element of the strategy for the lawyers who promoted the suits: because gunmakers were too thinly capitalized to withstand the costs of years of legal defense, it was thought they’d fold their hands and yield to “gun control through litigation” (explicitly couched as an end run against a then-Republican Congress resistant to gun control proposals). Smith and Wesson actually did yield to a settlement on this rationale, which soon collapsed following a public outcry from gun owners and others outraged by the use of extortive litigation to achieve gun control objectives. The gamble having failed, the suits eventually reached judges and were generally thrown out, but not before imposing huge and uncompensated costs on many small companies that had violated no laws. Some were bankrupted.
Mindful of traditional tenets of legal ethics that forbid lawyers from using the cost of legal process as a bludgeon, most backers of the suits prudently refrained from any hint that imposing unsustainable legal costs was part of the plan. One exception was Cuomo, who warned gunmakers that unless they cooperated, they’d suffer “death by a thousand cuts.” And another was then-New-York-AG Spitzer, who reportedly warned an executive of holdout Glock: “If you do not sign, your bankruptcy lawyers will be knocking at your door.”
I think Spitzer and Cuomo deserve each other, really. What I can’t figure out is why the good citizens of New York would want either of them.
Free Speech Means More Equal Speech
You might have gotten the impression that spending by outside groups in the current election cycle will fund a “giant bullhorn” for Republican candidates in the current election cycle while Democrats and liberals will have to whisper.
Yet the Rothenberg Political Report finds:
Throughout the election cycle, the National Republican Congressional Committee trailed the Democratic Congressional Campaign Committee in available money by at least a 2-to-1 ratio.
A detailed story in the Wall Street Journal summarizes “the Democratic Party and candidates had raised a total of $1.25 billion so far for the election. The comparable GOP figure is $1.1 billion.”
The Democrats enjoy, in other words, a $150 million dollar advantage, if we look only at party fundraising.
Now consider the outside groups:
In total, outside conservative groups—such as the U.S. Chamber of Commerce, American Action Network and American Crossroads—could spend more than $300 million on TV advertisements, campaign mailings and other efforts to elect Republicans to Congress this year. Outside Democratic groups, by contrast, plan to spend about $100 million on those activities.
But don’t forget the labor unions:
The largest labor unions say they will spend $200 million combined, but most of their focus will be on rallying union voters.
I conclude that the outside GOP groups will raise almost exactly as much as outside Democratic groups and the labor unions combined. The Democratic Party, however, will still enjoy a significant fundraising advantage over the Republican Party.
The Republican outside groups thus tend to level what would have been, absent their activities, a very unequal playing field in 2010.
I am not certain whether this closing of what would have been a huge Democratic fundraising advantage has anything to do with all of the complaints about “secret groups undermining democracy.” What do you think?
Libertarianism at the Britannica
I have an interview up at the Britannica blog on libertarianism. Or, as they put it, an interview on libertarianism and abortion, same-sex marriage, and the Tea Party. Multiple questions, to be sure.
I responded this way to a question on the inevitable inequalities of capitalism:
Inequalities in wealth are inevitable in all economic systems. In fact, the Economic Freedom of the World report finds that the share of national income going to the poorest 10 percent of the population is remarkably stable no matter what the degree of economic freedom in the country (see exhibit 1.9). What does vary is the absolute income of the poorest 10 percent, which is much higher in countries with more freedom (exhibit 1.10). Socialist states had and have huge hidden inequalities of wealth. Differences in access to privileges were staggering—special stores, hospitals, dachas and so on for party members that ordinary people could not enter, access to international travel and literature, etc. And all that in regimes that were officially dedicated to equality, in which inequality was “forbidden.” If inequality is inevitable, it’s better to have a system that gives people incentives to invent, innovate, and produce more goods and services for the whole society.
And my most controversial line:
There’s no libertarian pope, so I hesitate to excommunicate people for not being “true libertarians.”
Can You Name the Greatest President of the Past 100 Years?
It’s tempting to say that Ronald Reagan was the best U.S. president of the past century, and I’ve certainly demonstrated my man-crush on the Gipper. But there is some real competition. I had the pleasure yesterday of hearing Amity Shlaes of the Council on Foreign Relations make the case for Calvin Coolidge at the Mont Pelerin Society Meeting in Australia.
I dug around online and found an article Amity wrote for Forbes that highlights some of the attributes of “Silent Cal” that she mentioned in her speech. As you can see, she makes a persuasive case.
… the Coolidge style of government, which included much refraining, took great strength and yielded superior results. …Coolidge and Mellon tightened and pulled [income tax rates] multiple times, eventually getting the top rate down to 25%, a level that hasn’t been seen since. Mellon argued that lower rates could actually bring in greater revenues because they removed disincentives to work. Government, he said, should operate like a railroad, charging a price for freight that “the traffic will bear.” Coolidge’s commitment to low taxes came from his concept of property rights. He viewed heavy taxation as the legalization of expropriation. “I want taxes to be less, that the people may have more,” he once said. In fact, Coolidge disapproved of any government intervention that eroded the bond of the contract. …More than once Coolidge vetoed what would later be called farm allotment–the government purchase of commodities to reduce supply and drive up prices. …Today our government has moved so far from Coolidge’s tenets that it’s difficult to imagine such policies being emulated.
But if you don’t want to believe Amity, here’s Coolidge in his own words. This video is historically significant since it is the first film (with sound) of an American President. The real value, however, is in the words that are being said.
Hooray for Fordham — Oooh, Wait
On many, many occasions I have taken the Fordham Institute to task for its big-government conservatism. Well, for about 90 percent of my time reading the latest from Fordham president Chester Finn, I was preparing to celebrate a conversion story of timeless proportions. It seemed Finn had finally gotten it, as he railed against the myriad failures of Washington and the foolishness of looking to government to solve our problems. I thought Finn had finally grasped that life and society are far too complicated for any puppet master of group or puppet masters to micromanage. I thought, at last, he’d fully appreciated the huge problem of concentrated benefits and diffuse costs, which give special interests so much power. I thought maybe he’d read that copy of Government Failure: A Primer in Public Choice I’d sent to Fordham VP Michael Petrilli a few years ago.
And then I read Finn’s concluding paragraphs:
Even modest-seeming promises don’t get kept. Arne Duncan sensibly wants us to focus on turning around the lowest-performing 5 percent of U.S. schools. Seems far more doable than NCLB’s labeling more than half our schools as needing surgery. Yet who really believes that the Education Department’s program of School Improvement Grants will yield this result? Nobody from Washington is flying out to turn around individual schools—as if any of them knew how—yet practically nobody outside the Beltway has a clue how to do it, either. Another dashed hope and unkept promise? Another issue for the Tea Party? Part of the reason for the (idiotic) calls to eliminate the Education Department altogether?
Government, in short, finds it difficult to fulfill its current responsibilities, coordinate its various parts, and honor its core obligations, many of which are vital just to keep us healthy, safe, and alive. How many more things should it try to do? Are not more promises by government a formula for failure and disappointment? A boost to libertarians who would have government cease and desist from just about everything? What if we just settled for scrambled eggs that don’t make us ill?
So let me get this straight: In light of constant, failed, bankrupting federal overreaching. In light of seemingly non-stop federal power-grabbing. In light of the Constitution’s very clear limits on federal authority that proscribe federal meddling in education – but, as most libertarians will tell you, rightly empower Washington to do some things – it is libertarians whom Finn implies are a bit crazy, and it is calling for elimination of the Department of Education that he concludes is “idiotic”?
Unfortunately — and amazingly — you read that right.
Good Time to End Farm Subsidies
The Wall Street Journal reports that the agricultural sector is recovering nicely from the recent recession while the rest of the private sector continues to struggle. The counter-cyclical nature of some farm subsidy programs means that the taxpayer bill for the year could be cut in half to only about $12 billion.
From the article:
For many crops, prices are climbing even as big harvests pile up, a rare combination. Farmland values are up while those for some other kinds of real estate languish. Debt on the farm is manageable. Incomes are rising.
And trade, of which many Americans are growing wary, is for agriculture a boon. Asia’s economic vigor and appetites make the farm sector’s reliance on exports—once thought a vulnerability in some quarters—a plus today.
“The farm economy is coming out of the recession far faster than the general economy,” said Don Carson, a senior analyst.
The WSJ article also notes that farmers will still receive direct payments of about $5 billion for basically just being farmers. This subsidy is particularly insulting to taxpayers as the program was created in 1996 to help wean farmers off of subsidies. Instead, these “temporary” payments were turned into a permanent hand-out in 2002.
Better news for taxpayers would be the abolition of farm subsidies. While they obviously remain popular with the beneficiaries and their patrons in Washington, the general public seems to be increasingly aware that the subsidies amount to little more than legalized theft.
Obamacare Suffers Another Legal Blow
Yes, Speaker Pelosi, the constitutional concerns people have with the health care legislation you rammed through Congress despite overwhelmingly negative public opinion are serious. The Florida court’s ruling, denying the government’s motion to dismiss the challenge to the new health care law brought by 20 states and the National Federation of Independent Business, mirrors the one we saw in July in Virginia’s separate lawsuit. These have been the most thoroughly briefed and argued lawsuits, so these significant and lengthy opinions conclusively establish that the constitutional concerns raised by the individual mandate and other provisions are serious. Nobody can ever again suggest with a straight face that the legal claims are frivolous or mere political gamesmanship.
And that should come as no surprise to those who have been following the litigation because the new law is unprecedented — quite literally, without legal precedent — both in its regulatory scope and its expansion of federal authority. Never before have courts had to consider such a breathtaking assertion of raw federal power — not even during the height of the New Deal. “While the novel and unprecedented nature of the individual mandate does not automatically render it unconstitutional,” Judge Vinson observed, “there is perhaps a presumption that it is.”
This means at the very least that “the plaintiffs have most definitely stated a plausible claim with respect to this cause of action.”
Just so — and the deliberate consideration that these district courts are giving to these serious constitutional arguments (unlike the Michigan judge’s perfunctory treatment last week) indicates that the probability that the Supreme Court will ultimately strike down the individual mandate continues to increase.
“… this only applies to big business …”
The union- and trial-lawyer-backed Paycheck Fairness Act, which would greatly expand the scope of lawsuits against private employers alleging gender pay inequality, has run into considerable resistance in Congress. The Bangor Daily News, for example, notes that middle-of-the-road Maine Sens. Olympia Snowe and Susan Collins, known for their willingness to support some Democratic initiatives, have criticized the PFA as “broad,” “unprecedented,” and costly to employers (Snowe) and as likely to “impose excessive litigation on the small-business community” (Collins).
Democratic Rep. Chellie Pingree (D-Maine), on the other hand, is impatient with all such objections:
“If there is litigation in the future, that is minor compared to making sure that people get fair pay for the work that they do,” Pingree said. “It is also important to say that this only applies to big business, this does not apply to the sandwich shop around the corner.”
What do you think she means by “only applies to big business” and not “the sandwich shop around the corner”? Keith Smith at ShopFloor checked out the language of the bill, which by its own terms would affect employers subject to the federal Fair Labor Standards Act of 1938. Does the FLSA apply “only … to big business”? No; according to the U.S. Department of Labor, it covers “almost every employee working in the United States.” To begin with, the law covers all employers that have two or more employees and do at least $500,000 a year in business. But that’s just the start, as Smith explains:
Even if a business meets these thresholds, the only employees who would not be covered by the FLSA would be the ones who do not produce goods for interstate commerce, or closely-related process or occupation directly essential to such production, who are not involved in domestic service and are not engaged in interstate commerce. So that means if an employee makes a phone call to another state, sends mail to another state, travels to other states or even processes credit card transaction [he or she] is engaged in “interstate commerce”.
It sounds as if Rep. Pingree has a distinctive, not to say eccentric, understanding of what constitutes “only … big business”.
Advocates of Regulation Are to Charlie Brown as Washington, D.C., Is to Lucy
This morning on WNYC in New York City, I debated Josh Silver of the pro-Internet-regulation group Free Press. It was a healthy exchange of views, except for a few barbs and innuendos thrown by Silver, who is obviously frustrated by his group’s lack of progress in seeking a “government takeover of the Internet.” (He wanted to debate in simple, ideological terms like that, so I indulge here.)
What was most interesting to me was how unsophisticated Silver is with respect to government and regulation. Take a look at his plea:
What we’re asking for—what we need are regulatory agencies that are not captured by industry and that actually act on behalf of the American public. And that’s what they were created to do. The FCC—1934, with the advent of radio—was created to make sure that the public interest was protected. And what we’ve seen is industry capture of regulatory agencies has made those agencies fail again and again and again.
And the only thing that’s gonna work is if the Obama administration and the FCC stand up and say, “No more business as usual. We are going to protect net neutrality. We’re going to protect competition, and make sure there’s choices for consumers. And we’re going to end the status quo in Washington that has really broken our entire political system.”
The Obama administration and the FCC did stand up and say “no more business as usual,” but that’s what politicians do to seduce voters. Then, once in power, they go about business as usual. Lucy always yanks away the football, Charlie Brown.
Silver is not alone in having these sweet, sad “good government” sentiments. Many of my interlocutors, with whom I often share outcome goals, believe strongly in achieving those goals by remaking governmental and political systems so that they finally “work.” They believe so strongly in this approach that they seem to think it’s just around the corner—if only we prohibit some speech here, some petitioning of the government there. Y’know, “take the money out of politics.”
Hopefully this fantasy will never come true, because it requires reversing fundamental rights such as free speech in all its instantiations—a handover of power from people to the government and elites that run it.
In the absence of that perfected, all-powerful government—thank heavens—we must organize the society’s resources using the best machine we’ve got for discovering consumers’ interests and delivering on them: an unhampered marketplace, now energized and enhanced by the Internet.
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