Sen. Whitehouse: Bring RICO Charges against Climate Wrongthink

Another step toward criminalizing advocacy: writing in the Washington Post, Sen. Sheldon Whitehouse (D-R.I.) urges the U.S. Department of Justice to consider filing a racketeering suit against the oil and coal industries for having promoted wrongful thinking on climate change, with the activities of “conservative policy” groups an apparent target of the investigation as well. A trial balloon, or perhaps an effort to prepare the ground for enforcement actions already afoot?

Sen. Whitehouse cites as precedent the long legal war against the tobacco industry. When the federal government took the stance that pro-tobacco advocacy could amount to a legal offense, some of us warned tobacco wouldn’t remain the only or final target. To quote what I wrote in The Rule of Lawyers:

In a drastic step, the agreement ordered the disbanding of the tobacco industry’s former voices in public debate, the Tobacco Institute and the Council for Tobacco Research (CTR), with the groups’ files to be turned over to anti-tobacco forces to pick over the once-confidential memos contained therein; furthermore, the agreement attached stringent controls to any newly formed entity that the industry might form intended to influence public discussion of tobacco. In her book on tobacco politics, Up in Smoke, University of Virginia political scientist Martha Derthick writes that these provisions were the first aspect in news reports of the settlement to catch her attention. “When did the governments in the United States get the right to abolish lobbies?” she recalls wondering. “What country am I living in?” Even widely hated interest groups had routinely been allowed to maintain vigorous lobbies and air their views freely in public debate.

By the mid-2000s, calls were being heard, especially in other countries, for making denial of climate change consensus a legally punishable offense or even a “crime against humanity,” while widely known advocate James Hansen had publicly called for show trials of fossil fuel executives. Notwithstanding the tobacco precedent, it had been widely imagined that the First Amendment to the U.S. Constitution might deter image-conscious officials from pursuing such attacks on their adversaries’ speech. But it has not deterred Sen. Whitehouse.

Law professor Jonathan Adler, by the way, has already pointed out that Sen. Whitehouse’s op-ed “relies on a study that doesn’t show what he (it) claims.” And Sen. Whitehouse, along with Sen. Barbara Boxer (D-Calif.) and Edward Markey (D-Mass.), has been investigating climate-dissent scholarship in a fishing-expedition investigation that drew a pointed rebuke from then-Cato Institute President John Allison as an “obvious attempt to chill research into and funding of public policy projects you don’t like…. you abuse your authority when you attempt to intimidate people who don’t share your political beliefs.”

P.S. Kevin Williamson notes that if the idea of criminalizing policy differences was ever something to dismiss as an unimportant fringe position, it is no longer. (cross-posted from Overlawyered)

Response to Bryan Caplan

Bryan Caplan of George Mason University posted some comments I sent him along with some questions about a recent blog post of his.  His questions are in quotes, my responses follow.  First, some background.

It’s important to separate immigration (permanent) from migration (temporary).  Much of what we think of as “immigration” is actually migration as many of them return home.  Dudley Baines (page 35) summarizes some estimates of return migration from America’s past.

Country/Region of Origin            Return Rates

Nordics                                     20%

English & Welsh                         40%

Portuguese                                30-40%

Austro-Hungarians & Poles          30-40%

Italians                                      40-50%           

 

Gould estimates a 60 percent return rate for Italians – similar to Mexican unauthorized immigrants from 1965-1985. 

There were three parts to the Immigration Reform and Control Act of 1986 that all affected both immigration and migration.  The first part was the amnesty.  The second was employer sanctions through the I-9 form that was supposed to turn off the jobs magnet.  The third was increased border security to keep them out.  For the first two questions, I assume the rest of IRCA was passed.

Nevada Enacts First Nearly Universal Education Savings Account

On Tuesday, Nevada Gov. Brian Sandoval signed into law the nation’s fifth education savings account (ESA) program, and the first to offer ESAs to all students who previously attended a public school. Earlier this year, Sandoval signed the state’s first educational choice law, a very limited scholarship tax credit. Despite their limitations, both programs greatly expand educational freedom, and will serve as much-needed pressure-release valves for the state’s overcrowding challenge.

When Nevada parents remove their child from her assigned district school, the state takes 90 percent of the statewide average basic support per pupil (about $5,100) and instead deposits it into a private, restricted-use bank account. The family can then use those funds to purchase a wide variety of educational products and services, such as textbooks, tutoring, educational therapy, online courses, and homeschool curricula, as well as private school tuition. Low-income students and students with special needs receive 100 percent of the statewide average basic support per pupil (about $5,700). Unspent funds roll over from year to year.

The eligibility requirements for ESA programs in other states are more restrictive. In Florida, Mississippi, and Tennessee, ESAs are limited to students with special needs. Arizona initially restricted ESA eligibility to students with special needs, though lawmakers have since expanded eligibility to include foster children, children of active-duty military personnel, students assigned to district schools rated D or F, gifted students, and children living in Native American reservations.

Senate Hearing on King v. Burwell This Thursday

At 2pm this Thursday, I will be testifying before the Senate Judiciary Committee’s Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts at a hearing investigating how the Internal Revenue Service developed the (illegal) “tax-credit rule” challenged in King v. Burwell. Witnesses include three Treasury and IRS officials involved in drafting the rule:

Panel I

The Honorable Mark Mazur
Assistant Secretary for Tax Policy
Department of the Treasury
(invited)

Ms. Emily McMahon
Deputy Assistant Secretary for Tax Policy
Department of the Treasury
(invited)

Ms. Cameron Arterton
Deputy Tax Legislative Counsel for Tax Policy
Department of the Treasury
(invited)

The second panel will consist of Michael Carvin (lead attorney for the plaintiffs in King v. Burwell, who argued the case before the Supreme Court), University of Iowa tax-law professor Andy Grewal (who discovered three additional ways, beyond King, that the IRS expanded eligibility for tax credits beyond clear limits imposed by the ACA), and me.

Chafee’s Fiscal Record in Rhode Island

Lincoln Chafee, former U.S. Senator and Governor of Rhode Island, will announce his presidential run this week.  Chafee’s fiscal record as governor was moderately liberal, but much more centrist than Maryland’s Martin O’Malley.

Chafee served as governor of Rhode Island from January 2011 to January 2015, first as an Independent and then as a Democrat. (He was a Republican during his time in the U.S. Senate.) During his tenure, he received a “D” and a “B” on Cato’s Fiscal Policy Report Card on America’s Governors.

State spending grew substantially while Chafee was governor. From fiscal year 2011 to fiscal year 2012, Rhode Island general fund spending grew 5.2 percent and it grew another 5.1 percent from FY2012 to FY2013, according to data from the National Association of State Budget Officers (NASBO). NASBO data shows a 17 percent during Chafee’s entire tenure. This is almost three times population growth plus inflation for the state during his tenure.

You Ought to Have a Look: Climate Change Subtleties, Hurricanes, and Chocolate Bunnies

You Ought to Have a Look is a feature from the Center for the Study of Science posted by Patrick J. Michaels and Paul C. (“Chip”) Knappenberger.  While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic.  Here we post a few of the best in recent days, along with our color commentary.

We highlight a couple of headlines this week that made us chuckle a bit, although what they portend is far from funny.

The first was from the always amusing “Energy and Environment” section of the Washington Post. Climate change beat writer Chris Mooney penned a piece headlined “The subtle — but real — relationship between global warming and extreme weather events” that was a hit-you-over-the-head piece about how human-caused global warming could be linked to various weather disasters of the past week, including the floods in Houston, the heatwave in India and hurricanes in general.

Mooney starts out, lamenting:

Last week, some people got really mad at Bill Nye the Science Guy. How come? Because he had the gall to say this on Twitter:

Billion$$ in damage in Texas & Oklahoma. Still no weather-caster may utter the phrase Climate Change.

Nye’s comments, and the reaction to them, raise a perennial issue: How do we accurately parse the relationship between climate change and extreme weather events, as they occur in real time?

It’s a particularly pressing question of late, following not only catastrophic floods in Texas and Oklahoma, but also a historic heatwave in India that has killed over 2,000 people so far, and President Obama’s recent trip to the National Hurricane Center in Miami, where he explicitly invoked the idea that global warming will make these storms worse (which also drew criticism).

As the Nye case indicates, there is still a lot of pushback whenever anyone dares to link climate change to extreme weather events. But we don’t have to be afraid to talk about this relationship. We merely have to be scrupulously accurate in doing so, and let scientists lead the way.

Maoist Shaming Tactics Spread from Shanghai to Santa Monica and Silicon Valley

Ariana Eunjung Cha reports on the newest target of public shaming in China:

Long before the Internet was invented, China’s Communist Party was already skilled in the art of public shaming.

Dissidents have been known to disappear and then reappear after having published essays of self-criticism. On state-run television, business people, celebrities and editors have appeared so regularly from behind prison bars speaking about their misdeeds that the segments were like an early take on reality TV.

Now officials are using the tactic on another group that it feels has wronged the country: smokers.

Beijing has not relied just on public humiliation. It has banned smoking in indoor public places and workplaces, complete with large fines and massive propaganda campaigns. It also plans to

take more dramatic measures by posting the names of those breaking the law three times on a Web site in order to shame them.

That may not sound like a big deal, but in Asia the reaction of online citizens to inappropriate behavior can be harsh. Among the most infamous cases is one in 2005 when a woman in South Korea who refused to clean up her dog’s waste was caught in photos that were posted online. Internet users quickly discerned her identity and she was harassed so badly that she reportedly quit her university.

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