Archive for June, 2011
The NYT‘s Weak Defense of Homeland Security Grants
Last week, the House passed a homeland security appropriations bill slashing funding for grants to states and localities. The New York Times has now noticed and unleashed an indignant editorial:
House Republicans talk tough on terrorism. So we can find no explanation — other than irresponsibility — for their vote to slash financing for eight antiterrorist programs. Unless the Senate repairs the damage, New York City and other high-risk localities will find it far harder to protect mass transit, ports and other potential targets.
The programs received $2.5 billion last year in separate allocations. The House has cut that back to a single block grant of $752 million, an extraordinary two-thirds reduction. The results for high-risk areas would be so damaging — with port and mass transit security financing likely cut by more than half — that the chairman of the House Homeland Security Committee, Peter King of New York, voted against the bill as “an invitation to an attack.”
Only a few months ago, Times editorials accused King of trying to “hype” and “stoke” fear of homegrown Muslim terrorism. It’s sort of touching to see them get behind his fearmongering when the beneficiaries are local firefighters, police, and other local interests.
But the editorial has trouble worse than hypocrisy. For starters, it’s light on facts. Its accounting seems to omit over $320 million in funds for local firefighters that a floor amendment put in the bill. It also fails to mention that the bill eliminates a formula that ensures that homeland security funds are distributed to every state. Because it means that counterterrorism spending is highest per-capita in rural areas where the threat from terrorism is lowest, homeland security watchers have long attacked that minimum funding provision. So while this bill would indeed cut homeland security funds going to New York, it would also mean that New York gets more of the remaining funds.
A Case that ‘Should Never Have Been Prosecuted’
One of last month’s notable legal stories drew surprisingly little attention in the general press. In Maryland, U.S. District Court Judge Roger Titus ordered the acquittal of Lauren Stevens, a former in-house lawyer for drugmaker GlaxoSmithKline, who had been charged with obstructing a federal investigation. In strong language, Judge Titus said Stevens “should never have been prosecuted” and that allowing the case to go forward to a jury “would be a miscarriage of justice.” [White Collar Crime Prof, Main Justice, FDA Law Blog ("stunning... Black Tuesday for the government")].
The prosecution was part of a wider trend in which the federal government has been more aggressively asserting civil and even criminal claims against lawyers and company employees who resist government charges and investigations. The danger, of course, is that with their own careers, fortunes, and liberty on the line, defense and organizational lawyers and employees will be scared out of taking even legitimate positions the feds may find displeasing.
The Stevens case arose after the Food and Drug Administration investigated GSK’s marketing of the drug Wellbutrin. Lawyers, responding on behalf of the drugmaker, failed to furnish all the information the FDA considered itself entitled to, and federal prosecutors from the U.S. Department of Justice proceeded to “forage through confidential files” (as the judge later put it) in search of some sort of criminality to pin on Stevens, the team’s leader.
In her defense, Stevens said she had at all times relied in good faith on information provided her by company employees and had consulted and followed other lawyers’ advice on doubtful issues. Not good enough: the feds proceeded to charge her with six counts, including making false statements, obstructing justice, and concealing documents.
The flimsiness of the DOJ’s case appears to have disturbed Judge Titus, a law-and-order-oriented jurist who had never ordered a bench acquittal in his seven years as a federal judge. The confidential documents on Stevens’s work, he wrote, “show a studied, thoughtful analysis of an extremely broad request” from the FDA and were based on “good faith,” not an attempt to assist a client in fraud.
After the stunning dismissal, the U.S. Department of Justice was quite unapologetic, a top official suggesting that its prosecutors intended to do nothing differently in future. And unfortunately, there are few incentives for them to learn any lessons.
Especially when it comes to defendants like Fortune 500 in-house counsel, the pressure and the risks of facing off against the federal government are so great that many or most will take a plea bargain, deferred-prosecution agreement, or some other kind of deal rather than resist the onslaught, even if they believe themselves to have done nothing wrong. Lauren Stevens and her colleagues stood up and fought back — for which they deserve our respect and even our gratitude.
Sen. Rand Paul on a ‘Conservative Constitutional Foreign Policy’
I had the good fortune of attending a speech by Sen. Rand Paul earlier this week in which the senator from Kentucky made the case for a “conservative constitutional foreign policy.” His office has recently posted the text of his remarks, and it is worth a closer look.
Senator Paul tweaked President Obama for disagreeing with Senator Obama when it comes to the war power, a point that I highlighted here a few weeks ago.
But Paul’s remarks went well beyond the Libyan war. He explained that he was trying to stake out a middle ground between the extreme of intervening militarily everywhere, all the time, and nowhere, none of the time.
What I’m talking about here has a relatively recent example: Ronald Reagan.
[...]
Reagan’s foreign policy was one in which we were somewhere, some of the time, in which the missions were clear and defined, and there was no prolonged military conflict — and this all took place during the Cold War….
Reagan’s policy was much less interventionist than the presidents of both parties who came right before him and after him. And Reagan’s foreign policy was certainly more restrained than that of our current president.
I’d argue that a more restrained foreign policy is the true conservative foreign policy, as it includes two basic tenets of true conservatism: respect for the Constitution, and fiscal discipline.
The whole speech can be found here.
‘Repetition of Constitutional Error Does Not Produce Constitutional Truth’
While we await the big Supreme Court decisions that will come down in the next few weeks, some of the smaller decisions can provide interesting moments. In Sykes v. United States, issued Thursday, the Court interprets the meaning of the “residual clause” of the Armed Career Criminal Act (ACCA). This is the fourth time in four years that the Court has tried to clarify the ACCA, specifically the terms “violent felony” and “serious” drug crime. As Justice Scalia sarcastically says in his scathing dissent, “We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.” This time, the issue was whether Indiana’s crime of “felony vehicle flight” qualifies as a “violent felony.”
The ACCA shouldn’t even exist. Like most federal criminal laws, the ACCA is blatantly unconstitutional. But when Members of Congress want to appear “tough on crime” in order to please constituents, they’re unlikely to let a little thing like the Constitution stand in the way.
While federal criminal statutes are likely here to stay, we can still demand that the laws be clear. Vague laws are more than just annoying, they’re unconstitutional. Unfortunately, a majority of the Court will uphold intentionally vague drafting that gives inadequate notice to citizens as to what is prohibited. Cato Adjunct Scholar Tim Sandefur has more to say about vague laws here.
Last term, in Skilling v. United States, the Court held that a long-abused statute was unconstitutionally vague. Cato filed an amicus brief on behalf of Jeff Skilling, the former Enron CEO, that highlighted the abuses that result from vague prohibitions such as “depriving someone of honest services.” But, as Cato Adjunct Scholar Harvey Silverglate (who has written an entire book on the problems with vague statutes) and Monica Shah explained in the last edition of the Cato Supreme Court Review, the Court did not go nearly far enough in Skilling. Rather than disposing entirely of a vague statute, they rewrote it, holding that the term “honest services” is limited to “core” cases of bribery and kickbacks. Justice Scalia concurred in Skilling, agreeing with the majority that Skilling’s conviction should be reversed. Scalia wrote separately, however, to criticize the majority’s attempt to salvage the statute by re-writing it.
In Sykes, Scalia dissented, continuing his principled opposition to vague criminal statutes. He wrote: “Four times is enough. We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness…Repetition of constitutional error does not produce constitutional truth.”
Of course, with Justice Scalia, he always has more choice lines:
The residual-clause series will be endless, and we will be doing ad hoc application of ACCA to the vast variety of state criminal offenses until the cows come home.
That does not violate the Constitution. What does violate the Constitution is approving the enforcement of a sentencing statute that does not “give a person of ordinarily intelligence fair notice” of its reach, and that permits, indeed invites, arbitrary enforcement. The Court’s ever-evolving interpretation of the residual clause will keep defendants and judges guessing for years to come. The reality is that the phrase “otherwise involves conduct that presents a serious potential risk of physical injury to another” does not clearly define the crimes that will subject defendants to the greatly increased ACCA penalties. It is not the job of this Court to impose a clarity which the text itself does not honestly contain. And even if that were our job, the further reality is that we have by now demonstrated our inability to accomplish the task.
In his conclusion, Justice Scalia has some excellent observations about the relationship between vague laws and the increasing problem of the over-criminalization of federal law:
We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step—indeed, I think it would be highly responsible—to limit ACCA to the named violent crimes.
As for Scalia’s amazing quote that is the title of this post, can anyone figure out how to turn it into a personalized license plate?
For More Information on Chicken Coop Design, Please Visit: WeAreHungryFoxes.Com
Earlier this week I was asked to comment on a new study of an old preschool program. The program in question is one of three well known (but geographically limited and now defunct) programs that have been found to have had lasting positive effects on participants. From their results, the authors concluded that the “impacts which endured [from the Chicago Parent Center program] provide a strong foundation for the investment in and promotion of early childhood learning.” By “investment” they seem to mean either state or federal government spending on pre-K programs.
Here’s the thing: yet another study of one of the few isolated programs already known to have had a lasting impact does nothing to support large-scale government pre-K programs. That’s because we have mountains of very good research that the signature federal pre-K program, Head Start, has been a failure despite nearly half a century of effort and hundreds of billions of dollars in spending. Even the Department of Health and Human Service’s own top-flight, large sample, nationally representative, randomized experimental study revealed that its impact doesn’t even endure beyond the first grade.
Kudos to the reporter for being open to this cold splash of reality. But here’s where the title of this blog post comes in… when it ran the story, the website of U.S. News and World Report adds the following postscript:
More information
For more information on early childhood education, visit the National Education Association.
Gee, I wonder if a national teacher labor union would support the massive expansion of federal funding for… teaching labor? Does USNews.com really not know how ridiculous this makes them look?
This Week in Government Failure
Over at Downsizing the Federal Government, we focused on the following issues this week:
- If we are ever to get our budgetary house in order by limiting the size and scope of government, central planning bureaucracies like the Economic Development Administration have to (finally) go.
- Firefighting is a purely local concern and should be funded by those who benefit from a local fire department’s services — not federal taxpayers.
- House Republicans say that they will not support a debt increase unless the Democrats agree to equal-sized spending cuts. The crucial question is: Will the proposed budget savings be real cuts or smoke-and-mirrors “cuts”?
- The U.S. Postal Service’s problems: the response thus far from Congress couldn’t be more typical: a combination of apathy, ignorance, and a desire to avoid making difficult decisions by kicking the can down the road.
- The Department of Labor has been added to the website.
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Defending Anonymous Speech
For some time now, the U.S. Supreme Court has placed little weight on the value of anonymous speech, especially in the campaign finance context. True, in McIntyre v. Ohio Elections Commission (1995), the Court struck down a state law prohibiting distributing anonymous campaign literature. But from Buckley v. Valeo (1976) onward, the Court has looked favorably on disclosure of campaign spending. Even Citizens United saw only one justice, Clarence Thomas, speak out in favor of anonymous speech.
Long-time First Amendment advocate Nat Hentoff raises some questions about limiting anonymous speech in this video. He praises Justice Thomas and recalls the importance of anonymous speech during the founding era.
Gates to NATO: Man Up!
My title above can’t really top the one DOD Buzz gave its summary of Defense Secretary Robert Gates’s comments to NATO ministers yesterday.
Here is the passage from Gates’s speech that is getting the most attention:
The blunt reality is that there will be dwindling appetite and patience in the U.S. Congress … to expend increasingly precious funds on behalf of nations that are apparently unwilling to devote the necessary resources or make the necessary changes to be serious and capable partners in their own defense.
The gist of his comments were quite clear: the NATO allies must do more, spend more, and take their security responsibilities more seriously.
A parade of U.S. presidents, dozens of secretaries of defense and state, and countless lower-level officials have begged, pleaded, cajoled, threatened, and whined about our NATO allies’ unwillingness to spend more on defense. Gates’s remarks yesterday fit this pattern, and isn’t all that different from a speech that he gave last year. So his comments shouldn’t come as a surprise.
What is surprising, to me at least, is the fact that apparently none of these people have ever read any of the scholarly literature on the economic theory of alliances. If they have read it, they obviously don’t understand it. This research, as Justin Logan explained, conclusively shows that weak countries have a very powerful incentive to free-ride when one very large partner in an alliance spends far more. I also wrote about this in my book.
Happy Birthday Nat Hentoff
Happy Birthday to my friend and Cato senior fellow Nat Hentoff. He’s 86, but he continues to crank out columns and books on everything from censorship, torture, and the Fourth Amendment’s ban on unreasonable searches, to his passionate love of jazz.
He sat down for a taped interview last month where he offered his views on current threats to free speech and his personal encounters with John Yoo and, way back in the 1950s, with Che Guevara.
Check out his books here.
On Government Spending and Job Creation
The standard Keynesian policy proposal for a weak economy is to have the government spend more money, and run deficits to do so. Clearly much of current government spending is being financed by borrowing. So current conditions are not subject to the New Deal critique that it was mostly paid for by taxes, as during the Great Depression. Current federal expenditures have increased about 41% since the housing market peaked in 2006. Has all this government spending generated many jobs? While keeping in mind that correlation is not the same as causality, it is interesting that the trend in government spending and total non-farm employees mirror one another, but not in the way you’d like. The more the government has spent, the more people have lost their jobs. The simple correlation between government spending and jobs has been a negative 0.9. Also worth noting is that both the decline in jobs and increase in government spending began well before the financial crisis of Sept 2008. In fact, almost 2 million jobs were lost between the beginning of the recession in Dec 2007 and the financial crisis in Sept 2008. Again, I won’t pretend this proves anything, however, it does suggest to me that continued massive government spending is not going to turn around the job market.
When Che Guevara Met Nat Hentoff
In the new video below, renowned civil libertarian and Cato senior fellow Nat Hentoff talks about his meeting with Che Guevara when Hentoff wrote for the Village Voice. (See it also here with Spanish subtitles.) El Che is romanticized by college kids and those on the left as a champion of the oppressed, but he was in fact a main architect of Cuban totalitarianism, a cold-blooded murderer whose defining characteristic was sheer intolerance of those with differing views. The best essay on Che, “The Killing Machine,” was written by Alvaro Vargas Llosa for the New Republic some years ago.
It is hard to imagine a symbol in popular culture in which the represented ideal is more far apart from the historical reality than in the case with Che. Surely that gap helps explain Che’s appeal among people all over the world with little knowledge of Latin America. Four years ago on a visit to Hong Kong’s Legislative Council I saw pro-democracy activist and Council member Leung Kwok-hung, a.k.a. “Long Hair,” wearing a Che Guevara T-shirt on the floor of the chamber. (Hong Kong is not yet a democracy and its Legislative Council is quite limited in its powers; in practice, the city is ruled by the communists in Beijing, which has ironically upheld the city’s free-market model and rule of law tradition inherited from the British.) Does Long Hair not know that Che despised democracy?
In his classic book, The Latin Americans, the late Venezuelan intellectual Carlos Rangel explained how outsiders, especially Europeans, have since their earliest contact with Latin America idealized the place, projecting their fantasies and frustrations, and promoting ideas there that they themselves would not find acceptable on their own turf. Thus the early inhabitants of the region were “noble savages” despoiled and degraded by the Europeans; the noble savages later evolved into the good revolutionaries, those authentic Latin Americans who fight for everything that is good and reject the imposition of all forms of oppression. Simplistic and wrong, but effective. So it is even in Latin America, where, as Rangel explains, that storyline has served political leaders well as they justify the imposition of any number of restrictions on freedom, from tariffs to censorship. Che’s image still abounds in the region. (For an excellent and eminently relevant video in Spanish of Rangel speaking in Caracas in 1980 about the central problems with Venezuela, see here.)
Incidentally, another Cato scholar had close ties to Che. The rebel was a cousin to well-known Argentine libertarian and adjunct scholar Alberto Benegas Lynch (Che’s complete last name was Guevara Lynch). In this article in Spanish, Alberto discusses his cousin Che.
The Aid’s the Thing
The following is cross-posted from the National Journal’s Education Experts blog. This week’s topic: Whether new ”gainful employment” regulations for higher education are too little, too much, or just right:
I agree largely with Steve Peha — our policies and mindsets have made “college” synonymous with “job training,” and that has led to huge inefficiencies. But there is an even deeper problem: government aid, both to students and schools.
The most aggressive opponents of for-profit schooling to have posted thus far appear to agree that taxpayer-funded student aid is what for-profit institutions are after. No doubt the critics are, for the most part, right. But there is another side to this equation: The aid also enables students to choose proprietary schools, choices many aid recipients likely would not have made had they been using only their own money, or money they borrowed from people who willing lent it to them. So aid helps enrich proprietary schools, but it also hugely degrades the incentives of students to economize or fully scrutinize the choices before them.
College is a two-way street, and student aid has fueled out-of-control traffic going in both directions
But it gets worse. What has been perpetually ignored by far too many people who’ve been involved in the assault of for-profit institutions is that all sectors of higher education get massive subsidies, and all are performing very poorly.
Public colleges get huge subsidies directly from state and local governments, yet still saddle students — and aid-supplying taxpayers — with big bills. And how do they perform? Only about 55 percent of students at four-year public colleges finish their degrees within six years, while only about 21 percent — one-fifth! — of community college students complete their programs within 150 percent of expected time. And yes, there is a lot that these figures do not capture, but there is no way to look at these outcomes of public schools as anything other than atrocious.
And nonprofit private institutions? They get big tax benefits by virtue of being putatively nonprofit, and often accumulate major wealth as a result. But their six-year grad rates? Only 64 percent.
Once again, the root problem is that massive government subsidies induce students to spend far more — and think about their priorities far less — than they would were they using their own dough, or money someone voluntarily gave them. Moreover, all of our higher ed subsidies enable colleges to raise prices with near impunity, and expend cash on all sorts of things that make them hugely inefficient.
In light of all this, “gainful employment” is clearly no solution to our higher ed troubles. It is, at best, an over-hyped distraction.
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