Archive for February, 2011
Patriot Reauthorization Vote Fails… Now What?
First, the good news: Last night, civil libertarians had a rare excuse to pop champagne when an effort to fast-track a one-year reauthorization of three controversial Patriot Act provisions–set to expire at the end of the month–failed in the House of Representatives. As Slate‘s Dave Weigel notes, the vote had been seen as such a sure thing that Politico headlined its story on the pending vote “Congress set to pass Patriot Act extension.” Around this time last year, a similar extension won House approval by a lopsided 315-97 vote.
Now the reality check: The large majority of representatives also voted for reauthorization last night: 277 for, 148 against. The vote failed only because GOP leadership had sought to ram the bill through under a “suspension of the rules”–a streamlined process generally used for the most uncontroversial bills, limiting debate and barring the introduction of amendments–which required a two-thirds majority for passage. Given last week’s developments in the Senate, it’s still a near certainty that the expiring provisions will be extended again before the end of the month. In fact, there’s a Rules Committee meeting today to get the bill back on the House floor. Also, while the defection of 26 Republicans who voted against reauthorization is the first real pushback against leadership we’ve seen since the GOP took the House, some of the talk that’s circulated about a Tea Party backlash against the surveillance state seems premature. As Weigel notes, just eight of the 26 Republican “no” votes were incoming freshmen, and many representatives prominently associated with the Tea Party were on the other side. Some of the resistance seems to have been generated by the fast-track approach, as there haven’t been any hearings or mark-ups on Patriot legislation.
That said, the tide does seem to be shifting somewhat. The failure of the fast-track vote means that we may see the reauthorization introduced under rules that would allow amendments aimed at remedying the civil liberties problems with the three expiring provisions, or with the still more controversial Patriot expansion of National Security Letter authority, which under current law does not expire. For those just tuning in, the sunsetting Patriot provisions are:
Lone Wolf
So-called “lone wolf” authority allows non-citizens in the U.S. who are suspected of involvement in terrorist activities to be monitored under the broad powers afforded by the Foreign Intelligence Surveillance Act (FISA), even if they are not connected to any overseas terror group or other “foreign power.” It was passed after FBI claimed the absence of “lone wolf” authority stymied efforts to monitor the infamous “20th 9/11 Hijacker”–but a bipartisan Senate report found that this failure was actually the result of a series of gross errors by the FBI, not any gap in government surveillance powers. Moreover, Lone Wolf blurs the traditional–and constitutionally significant–distinction between foreign intelligence, where the executive enjoys greater latitude, and domestic national security investigations. The way the statute is written, Lone Wolf authority is only available in circumstances where investigators would already be able to obtain a criminal terrorism wiretap. Given of the sweeping nature of FISA surveillance, that more narrow criminal surveillance authority should be employed when the special needs imposed by the involvement of a “foreign power” are not present.
Google under Siege in the Corporate State
“Google is under siege in Washington like never before,” Politico reports.
In an interview with POLITICO, a Google spokesman argued that a cabal of antitrust lawyers, lobbyists and public relations firms is conspiring against the Internet search giant. The mastermind? Google says it’s Microsoft.
Maybe it’s irony, or maybe it’s payback.
In the 1990s, Microsoft was the tech industry wunderkind that got too big for its britches — and Google CEO Eric Schmidt, then an executive at Sun Microsystems and later Novell, helped knock the software titan down a peg by providing evidence in the government’s antitrust case against it. . . .
But there are also increasing calls from some Silicon Valley competitors and Washington-based public interest groups for the Justice Department to launch a sweeping antitrust probe of Google. The European Union and the state of Texas have reviews under way.
Google says its rivals are fueling the attacks.
You could have read it here first. In the November-December 2010 issue (pdf) of Cato Policy Report, Adam Thierer wrote, “The high-tech policy scene within the Beltway has become a cesspool of backstabbing politics, hypocritical policy positions, shameful PR tactics, and bloated lobbying budgets.” The telcos, the broadcasters, the wireless industry, the entertainment industry — they all want the federal government to crush their competitors. And, he said, “Everybody — and I do mean everybody — wants Google dead, right now. Google currently serves as the Great Satan in this drama — taking over the role Microsoft filled a decade ago — as just about everyone views it with a combination of envy and enmity.” But then:
Of course, in a sense, Google had it coming. The company has been the biggest cheerleader in the push to impose “Net neutrality” regulation on the Internet’s physical infrastructure providers, which would let the FCC toss property rights out the window and regulate broadband networks to their heart’s content.
Meanwhile, along with Skype and others, Google wants the FCC to impose “openness” mandates on wireless networks that would allow the agency to dictate terms of service. It’s no surprise, then, that the cable, telco, and wireless crowd are firing back and now hinting we need “search neutrality” to constrain the search giant’s growing market power. File it under “mutually assured destruction” for the Information Age.
Google had it coming in another sense, having joined the decade-long effort by myriad Silicon Valley actors to hobble Microsoft through incessant antitrust harassment.Google has hammered Microsoft in countless legal and political proceedings here and abroad.
Thierer also noted that you could have predicted all this by reading Cato publications a decade earlier, such as Cypress semiconductor CEO T. J. Rodgers’s 2000 manifesto, “Why Silicon Valley Should Not Normalize Relations with Washington, D.C.” (pdf). Or indeed Milton Friedman’s 1999 speech on “The Business Community’s Suicidal Impulse“: “You will rue the day when you called in the government. From now on the computer industry, which has been very fortunate in that it has been relatively free of government intrusion, will experience a continuous increase in government regulation.”
You (could have) read it here first.
Trade Adjustment Assistance Bill Pulled
In the face of a likely loss, the House Republican leadership pulled a trade bill from consideration late yesterday afternoon rather than face yet another embarrassing defeat. CQ has the details [$].
The bill would have reauthorized the Andean Trade Preference Act, which gives specific tariff reductions on certain products from Andean countries, for a further six months. Hardly the sort of significant trade liberalization that would justify passing the other part of the bill — a $2.4 billion per year extention of the Trade Adjustment Assistance program, about which I blogged on Friday. Stay tuned, because unfortunately I doubt we’ve heard the last of this program.
OMB Director Lew on the New Budget
President Obama will release his budget blueprint for fiscal 2012 next week. If an op-ed penned by his budget director, Jacob Lew, in Sunday’s New York Times is any indication, the administration intends to continue fiddling while the government’s finances burn.
The title of the piece, “The Easy Cuts Are Behind Us,” is a real head-scratcher. Lew’s “easy cuts” are an apparent reference to the $20 billion in savings the president proposed in his previous budgets. Considering that the president proposed total spending of $3.8 trillion last year, $20 billion in gross cuts was an insignificant gesture to say the least. In reality, the Bush administration passed the spending baton to the Obama administration two years ago and it promptly sprinted off like Usain Bolt.
Lew says:
In a little over a week, President Obama will send Congress his budget for the 2012 fiscal year. The budget is not just a collection of numbers, but an expression of our values and aspirations.
Perhaps the current budgetary state of affairs is an expression of the administration’s values and aspirations. But while an unhealthy number of Americans have become accustomed to living at the expense of their neighbor via the government, which the budget does reflect, there is growing popular recognition that saddling future generations with back-breaking debt is morally bankrupt.
Lew says:
As the president said in his State of the Union address, now that the country is back from the brink of a potential economic collapse, our goal is to win the future by out-educating, out-building and out-innovating our rivals so that we can return to robust economic and job growth. But to make room for the investments we need to foster growth, we have to cut what we cannot afford. We have to reduce the burden placed on our economy by years of deficits and debt.
This zero-sum take on the global economy is ignorant. Economic growth in “rival” countries creates opportunities for economic growth in the United States and vice-versa. My trade colleagues can better cover this ground, but the idea that our government needs to export more debt in order to out-anything is preposterous. The U.S. already out-spends its “rivals” on education and what do we have to show for it?
If the administration is concerned with our economic competitiveness, it should be looking to restrain the federal government’s heavy-hand in the economy. The federal government alone now sucks up a quarter of the country’s economic output. More government “investments” for building fancy trains might provide Joe Biden with lots of ribbon-cutting photo-ops, but such gross misallocations of taxpayer resources are not a recipe for “robust economic and job growth.”
Lew says:
We cannot win the future, expand the economy and spur job creation if we are saddled with increasingly growing deficits. That is why the president’s budget is a comprehensive and responsible plan that will put us on a path toward fiscal sustainability in the next few years — a down payment toward tackling our challenges in the long term.
According to Lew, the administration plans to do this by freezing non-security discretionary spending for five years. But several paragraphs later he acknowledges that “Discretionary spending not related to security represents just a little more than one-tenth of the entire federal budget, so cutting solely in this area will never be enough to address our long-term fiscal challenges.”
Does Lew give even a hint as to how the administration plans to “address our long-term fiscal challenges”? Nope.
In the intervening paragraphs Lew does give us a taste of the “deeper cuts” that the president will propose next week. One cut would be $300 million, or 7.5 percent, in the Community Development Block Grant program, which funds critical federal concerns like funding facade renovations for a wine bar in Connecticut and expanding a brewery in Michigan.
The Community Service Block Grant program (change one word and, voilà, a new program) would be cut in half to save a whopping $350 million. Lew says this cut was not easy for the president because “These are the kinds of programs that President Obama worked with when he was a community organizer.”
The Great Lakes Restoration Initiative would get chopped by 25 percent, or $125 million, which Lew calls “another difficult cut.” If that’s a “difficult” cut, one can only wonder what Lew would call the cuts needed to actually “address our long-term fiscal challenges.”
After punting on the long-term fiscal challenges and pretending that the relatively insignificant cuts the administration will propose represent “tough choices,” Lew begins his wrap up by warning against cutting spending:
We must take care to avoid indiscriminate cuts in areas critical to long-term growth like education, innovation and infrastructure — cuts that would stifle the economy just as it begins to recover.
The country cannot afford business as usual. And it certainly can’t afford business as has been conducted by this administration. Unfortunately, while the exact details of the president’s latest budget proposal remain to be seen, Lew’s op-ed indicates that this tiger isn’t about to change his stripes.
Slasher Stories
In Hollywood, there is a genre called “slasher movies.” In the media, there is a genre of “slasher stories” on state government budgets. A piece in the WaPo today is classic:
Democratic and Republican governors alike are sounding similar themes, as they slash once sacrosanct programs…In California, Gov. Jerry Brown (D) has proposed closing a $25 billion budget gap by…slashing funding for higher education…Sen. Dean A. Rhoads, the chamber’s senior Republican, said Nevada should be raising taxes as well as slashing programs.
Wow, it sounds brutal doesn’t it? For a different perspective on state budgets, see my testimony last week to the Senate Budget Committee.
GAO Confirms: It Did Nothing Wrong, and It’s None of Your Business
Today, the Government Accountability Office (GAO) confirmed what we already knew it would confirm: According to its own investigation, errors were made in producing a report highly damaging to for-profit colleges, but no one had any bad intentions and the report still stands. Well, the significantly revised report – the one much more favorable to for-profits schools that got almost no attention because GAO sneaked it out — still stands. And please, don’t try to hold the GAO accountable yourself: The GAO’s press release states that the report on its internal investigation will not be publicly released.
Now, it’s quite possible that the GAO investigation on for-profit colleges really was on the up-and-up and there truly isn’t anything to see here. But given the very basic things that the GAO, um, overlooked in its initial report — not to mention the fact that the GAO works for the public – it’s simply not acceptable to tell the public that it’s none of its beeswax what the GAO’s internal investigation found. And really, why should anyone be satisfied with a government agency declaring itself its own judge and jury?
Miranda Ain’t Broke
The Federalist Society has a podcast up, Miranda & Terror Suspects, debating whether terrorism suspects should be given Miranda warnings. University of Utah law professors Paul Cassell and Amos Guiora debate the issue, and Richard D. Klingler of Sidley Austin LLP moderates. Cassell provides a slideshow to go with the audio file.
Listening to the podcast, I’m struck at how so many of the concerns cited by Cassell are already dealt with by existing case law. The Quarles case created a “public safety” exception to Miranda that allows officers to ask questions without giving Miranda warnings when there is an ongoing threat to public safety. In Quarles, a revolver hidden in a supermarket was enough to create the exception.
As I wrote at Townhall.com in August, the “public safety” exception has already been applied broadly in the terrorism context in United States v. Khalil:
In 1997, NYPD officers raided an apartment where two men had constructed pipe bombs and planned to detonate them on a subway or bus terminal. During the raid, the police shot and wounded the bomb maker as he lunged for a black bag containing the explosives.
After bomb technicians discovered that a switch on one of the pipe bombs had been flipped, officers questioned the wounded bomb maker about the number of bombs, how many switches had to be flipped to set them off, whether there was a timer, what wires to cut to disarm them, and whether they were intended as suicide devices. The Court of Appeals for the Second Circuit let all of the answers come into evidence via the public safety exception.
The public safety exception is settled law and has been ruled on by every federal circuit and over half the states, allowing police to deal with all manner of emergencies. Courts have allowed questions about the existence or location of guns, bombs, assault or kidnapping victims still in danger, accomplices and their identities, and plans for future crimes.
Add to this the fact that statements given before Miranda warnings are still admissible to impeach a suspect who changes his story when he gets to court, and that physical evidence obtained without Miranda warnings remains admissible.
So, here’s a practical proposal: the above list ought to be distributed to counterterrorism task forces across the nation. Instead of spending time and energy on a measure that is out of Congress’ power, have government lawyers create a pamphlet to educate the local, state and federal officers who will capture tomorrow’s aspiring terrorist. Boil down the law to bullet points and put it on a business card so that they have it on hand when the next emergency unfolds. That’s a tool first responders can use.
Sunlight Before Signing—Graphed and Analyzed
I reported here a couple of weeks ago that at the mid-point of his term President Obama had narrowly exceeded 50% compliance with his Sunlight Before Signing pledge. Now it’s time to do some more analysis of how he has implemented his promise to post bills Congress sends him online for five days before signing them.
In a post late last year, I graphed the president’s improvement over time. His first year in office was dismal, but things got quite a bit better in the second year.
We can now graph the entire first half of the term, which confirms that improvement. (Click graphs for full-size images.) Compliance could easily have been better in December, but the graph shows 100% success in the first twenty days of January, which brings us to the exact mid-point of the term.
Now, 87 of the bills signed into law during the last Congress renamed a post office or other federal facility, and a couple dozen more were purely ceremonial or perfunctory. (Congress has a strange fixation on coins.) These matter quite a bit less than the bills that have a significant effect on government policy, and many passed at the end of the year. This raises the question: Do these ”gimmes” inflate the president’s success rate?
So I cast around for some way to adjust the graph to reflect the ”importance” of legislation. This might show us that the trivial bills get tanned and rested in sunlight, while the important ones are hustled through in the dark of night—fat and pale.
I thought of two potential proxies for importance: the attention Congress paid bills on their way through, and the number of pages in bills.
Told Ya Toyota
Readers of Cato at Liberty knew all about this last July, and now the Obama Department of Transportation is confirming it publicly:
The Obama administration’s investigation into Toyota safety problems has found no electronic flaws to account for reports of sudden, unintentional acceleration and other safety problems. …
“We enlisted the best and brightest engineers to study Toyota’s electronics systems and the verdict is in. There is no electronic-based cause for unintended acceleration in Toyotas,” Transportation Secretary Ray LaHood said in a statement.
If, as retiring NHTSA official George Person charged last July, DoT officials dragged their heels in making public the exculpatory findings, there were very real costs to the economy. Not only did lawsuits proliferate which one hopes are now on their way to sputtering out, but Toyota (as Reuters reports) “was the only major automaker in the United States to report a drop in sales last year” even though the Japanese-owned automaker has ramped up costly dealer and sales incentives. Did it make a difference that the federal government has taken a proprietor’s interest in major Toyota competitors GM and Chrysler, or that a former trial lawyer lobbyist heads the National Highway Traffic Safety Administration? Those questions might be worth a hearing at the newly reconstituted House Energy and Commerce Committee.
Gun Owners in the District of Columbia
The Washington Post has an interesting article about what has happened in the city since the Supreme Court declared the city’s gun ban unconstitutional in the landmark Heller decision in 2008. Basically, hundreds of residents have registered thousands of firearms. More than 2 years have passed and the predicted mayhem is not here. DC Mayor Fenty called the court ruling an “outrage” and said the ban was necessary to stop residents from intentionally or accidentally killing one another. Paul Helmke of the Brady Campaign says the debate over the ban is not over yet. Several more years of data gathering will be necessary. And so the debate rolls on!
For more on this subject, check out the Cato book on the Heller case, Gun Control on Trial by Brian Doherty. Still more here, here, and here.
Patriot Act Extension Runs Into Conservative Opposition
Reports the Los Angeles Times:
A House GOP push to permanently extend expiring provisions of the Patriot Act is running into opposition from conservative and “tea party”-inspired lawmakers wary of the law’s reach into private affairs.
Congress has made a practice of kicking the Patriot Act can down the road, but it could be that the new crop of legislators isn’t inclined to go along.
Julian Sanchez has blogged here about the complexities of this government surveillance law. His podcast on the topic, released yesterday, is titled “The Patriot Act Sneaks to Renewal.” Maybe it can’t sneak through after all…
Supreme Court Takes Up Butterfly Effect
As Congress debates cap-and-trade, new fuel standards, and subsidies for “green” companies, some still feel that political solutions to global warming are not moving fast enough. In the present case, American Electric Power Co. v. Connecticut, eight states and New York City sued several public utilities (including the federal Tennessee Valley Authority), alleging that their carbon dioxide emissions contribute to global warming.
This is the third major lawsuit to push global warming into the courts (another being Comer v. Murphy Oil USA, in which Cato also filed a brief). All of these suits try to use the common law doctrine of nuisance—which, for example, lets you sue your neighbor if his contaminated water flows onto your land and kills your lawn—to attack carbon emitters. None of them had gotten very far until the Second Circuit vacated a lower-court ruling and allowed the claims here to proceed.
But the judiciary was not meant to be the sole method for resolving grievances with the government—even if everything looks like a nail to lawyers who only have a hammer. After all, there are two other co-equal branches, the legislative and executive, which are constitutionally committed to unique roles in our system of separation of powers. The doctrine of “standing” exists in part to ensure that the judiciary is not used to solve issues that properly belong to those other branches. Toward this end, the Constitution allows courts to hear only actual “cases or controversies” that can feasibly be resolved by a court.
Cato thus filed a brief supporting the defendant utilities’ successful request for Supreme Court review, and has now filed another brief supporting their position before the Court. Cato’s latest brief first argues that no judicial solution is possible here because the chain of causation between the defendants’ carbon emissions and the alleged harm caused by global warming is so attenuated that it resembles the famed “butterfly effect.” Just as butterflies should not be sued for causing tsunamis, a handful of utility companies in the Northeastern United States should not be sued for the complex (and disputed) harms of global warming.
Second, we contend that, even if the plaintiffs can demonstrate causation, it is unconstitutional for courts to make nuanced policy decisions that should be left to the legislature—and this is true regardless of the science of global warming. Just as it’s improper for a legislature to pass a statute punishing a particular person (bill of attainder), it’s beyond courts’ constitutional authority—under the “political question doctrine”—to determine wide-ranging policies in which numerous considerations must be weighed in anything but an adversarial litigation process.
If a court were to adjudicate the claims here and issue an order dictating emissions standards, two things will happen: 1) the elected branches will be encouraged to abdicate to the courts their responsibilities for addressing complex and controversial policy issues, and 2) an already difficult situation would become nearly intractable as regulatory agencies and legislative actors butt heads with court orders issued across the country in quickly multiplying global warming cases. These inevitable outcomes are precisely why the standing and political question doctrines exist.
Dissatisfaction with the decisions and pace of government does not give someone the right to sue over anything. Or, as Chief Justice Marshall once said, “If the judicial power extended to every question under the laws of the United States . . . [t]he division of power [among the branches of government] could exist no longer, and the other departments would be swallowed up by the judiciary.”
The Supreme Court will hear arguments in American Electric Power Co. v. Connecticut on April 19.
Special thanks to Trevor Burrus, who contributed to this post.
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