Archives: 02/2008

What Newt Gingrich Can Teach Nancy Pelosi about Protecting Civil Liberties

I’ve got a new article in Reason taking the Democrats to task for their tepid defense of civil liberties. I suggest they take their cue from that noted civil libertarian Newt Gingrich, who in 1996 resisted President Clinton’s demands for expanded wiretapping powers:

Bush’s predecessor was also an ardent supporter of increased wiretapping authority. For example, on July 29, 1996, Bill Clinton unveiled a proposal to expand government surveillance by permitting the use of “roving wiretaps.” The nation was still reeling from terrorist attacks on the Atlanta Olympics and American barracks in Saudi Arabia, and many suspected that the explosion of TWA Flight 800 was also the work of terrorists. Clinton argued that these tragedies highlighted the need for legislative changes, and he pressed Congress to act before its August recess.

But Congress had a bipartisan tradition of its own to defend. As they had done since Watergate, Congressional leaders raised concerns about civil liberties. Then-Speaker Newt Gingrich said he was willing to consider changes to the law, but vowed to do so “in a methodical way that preserves our freedoms.” Senate Majority Leader Trent Lott vowed that Congress would not “rush to a final judgment” before going on vacation. In the end, the 104th Congress finished its term without giving President Clinton the wiretapping authority he sought.

Today’s Democratic Congress has been far less protective of Americans’ privacy rights. Last August, in a virtual repeat of the events of 1996, Bush demanded that Congress approve expanded wiretapping powers before going on vacation. This time, Congressional leaders showed few qualms about “rushing to judgment.” Indeed, both houses of Congress approved the White House’s preferred legislation with minimal changes within three days of its introduction.

Meanwhile, it seems to be Opposite Day over at the Heritage Foundation, as they chide U.S. senators who want to “include measures in an otherwise bipartisan reform of FISA that would punish US companies that helped US intelligence agencies.” Of course, these senators’ proposals wouldn’t punish anyone; they would merely remove provisions that excuse companies for breaking laws that are already on the books. The companies will only be punished if they broke the law.

Heritage says that these companies “cooperated with government requests to ignore possible technical violations of FISA’s outdated provisions.” That’s a lot of adjectives for one sentence, but it doesn’t change the fact that breaking the law — even a “technical,” “outdated” law — is illegal. I find it surprising that Heritage scholars, who are normally strong champions of the “rule of law” would enthusiastically push the theory that following the law is optional or that the president — who takes an oath to “take care that the laws be faithfully executed” — has the power to authorize other people to break the law on his behalf. He doesn’t, and it would set a dangerous precedent to let those who relied on such assurances off the hook for breaking the law.

Better Late Than Never

I was getting a little concerned about the portentous silence from the administration in response to the U.S. sugar industry’s proposal to manage trade in sugar between the United States and Mexico (more here and here). Like toddlers in another room, silence often means trouble when it comes to the government: they must be up to something.

A swift, clear rejection of the proposal might have instilled more confidence, but today’s statement by Secretary of Agriculture Ed Schafer and United States Trade Representative Susan Schwab rejecting the proposal was welcome all the same. The positive part:

[T]he Administration cannot support recent sugar policy recommendations and will oppose efforts to implement them through legislation.

And the ominous:

We believe we have the tools and the cooperative relationships with the Government of Mexico to ensure the further smooth integration of our sweetener markets.

The use of the phrases “cooperative relationships” and “smooth integration” are not encouraging.

Airport Security Technology Stuck in the Pipeline

The Washington Post has a story today on the slow pace of progress in airport security technology. We would see faster development of better, more consumer-friendly security technology if the airlines were entirely responsible for it. Here’s a glimpse of what I said about this in an written debate hosted by Reason magazine a few years ago:

Airlines should be given clear responsibility for their own security and clear liability should they fail. Under these conditions, airlines would provide security, along with the best mix of privacy, savings, and convenience, in the best possible way. Because of federal involvement, air transportation is likely less safe today than it would be if responsibility were unequivocally with the airlines.

Would Telco Immunity Be Unconstitutional?

Via EFF, a fascinating article on the possible constitutional issues raised by the push to give telecom companies retroactive immunity for illegal surveillance. Anthony Sebok points out that the courts have historically held that plaintiffs in tort suits have a constitutionally-protected property interest that the court cannot wipe away without compensation. I’m not a constitutional lawyer, so I won’t venture an opinion on whether his argument is right or not. But I think it does remind us of an important fact: the plaintiffs in these lawsuits are real people whose rights have allegedly been violated by these companies.

The FISA debate raises a lot of interesting policy questions about the appropriate relationships among the government, the courts, and the telecom industry. But while those questions are important, we shouldn’t lose sight of the fact that this debate is also about a contractual relationship between those telecom companies and millions of ordinary customers. Customers had a reasonable expectation that those companies would not share their private data with third parties unless doing so was legally required. It appears that certain large telecom companies may have violated that trust. If so, it seems to me that the customers should have their day in court.

Big-Gov Bush and America’s Ivory Tower

Today the House of Representatives is debating a terrible bill to reauthorize the Higher Education Act (HEA), the primary federal law governing America’s ivory tower. The legislation would, among other things, force states to keep up their higher ed spending to get federal money, forgive loans for people in myriad “public service” jobs, and interfere with private student loan markets.

The good news in all of this could be that the Bush administration opposes the measure. But then we see why that isn’t a silver lining: As Secretary of Education Margaret Spellings makes clear in an op-ed in today’s Politico, the administration dislikes the law because it would prohibit the Department of Education from forcing standards and testing requirements on the nation’s diverse colleges and universities. In other words, it would prevent Spellings from imposing No Child Left Behind on the Ivy League.

It’s the overall tragedy of the Bush administration in microcosm. Sure, they’re fighting the Democrats, but to get more government interference, not less. And this push is extra sad because No Child Left Behind has, if anything, made matters worse in K-12 education, and in trying to blame higher ed for our problems Spellings herself actually hints that government-dominated elementary and secondary schooling is our real crippler:

They “get” where the U.S. is lagging behind, and they know the culprits: rising tuition costs, a burgeoning debt load and the fact that only half of all minorities get out of high school on time [italics added] and fewer than half of all adults have a college certificate or degree, when 90 percent of the fastest-growing jobs in America require post-secondary education.

No matter how much Spellings and Bush inveigh against it for being “unaccountable,” in very stark contrast to K-12 schooling American higher education is the envy of the world, and it got that way precisely because it is not very accountable to government. Rather than answering to a central authority and teaching what politicians think best, our colleges and universities are autonomous, our students are able to choose the schools that are right for them, and competition and innovation are unleashed.

Of course, there are significant problems with America’s ivory tower, such as rampant tuition inflation and great inefficiency driven by government subsidies, but they are actually minor in comparison to the troubles in countries with centralized higher ed. But rather than fix the problems we do have, unfortunately, the Bush administration wants to give us new ones that are much, much worse.

Mr. Regnery’s Advice to John McCain

In today’s Wall Street Journal (Feb 7), Alfred S. Regnery opines as follows (with my comments) on “How McCain Can Convince the Right”:

1. “Take a firm no-new-taxes pledge. Mr. McCain … needs to promise that he won’t increase Social Security taxes – especially by lifting the earnings cap – or increase hidden taxes in regulatory schemes, and that he will try to eliminate the death tax.”

That seems to be asking too much in some respects and too little in others. Regnery is suggesting that McCain do nothing to improve the tax system (as though it’s perfect as is) other than to try to do something he cannot possibly accomplish with this congress. The best defense is a good offense. That doesn’t mean taxing less, in terms of lost loot, but taxing smarter.

McCain’s top economist told me that McCain favors taxing estates (after a large exemption) at the same rate as long-term capital gains. If so, he should not be shy about that – it’s a great idea. That would be much more effective than tilting at windmills until 2011, when the estate tax comes back in full force.

Lifting the earnings cap is indeed a huge threat, adding about 10 percentage points to marginal rates for everyone earning more than $100,000. Expiration of the 2003 tax rates would add another 5 points to that. That would bring the top tax rate to 50%, not to mention state taxes and surtaxes Congressional Democrats have proposed to pay for more health insurance subsidies and easing the alternative minimum tax.

If Democrats want to raise the Social Security tax rate to pay for rising benefits, let them have the courage to propose that. In terms of potential damage to the economy, that would be better than tapping general revenues – which means switching from a flat-rate payroll tax that exempts income from savings to a progressive income tax that applies higher tax rates to both labor and capital.

2. “Get specific on spending. Mr. McCain talks a lot about pork barrel projects, earmarks and the need to get spending under control, but so does everybody. He needs to release a bold, Reaganesque proposal with specific reductions he would pursue as president, what programs he will try to eliminate, and how he will attempt to control a spendthrift Congress… .By getting specific, Mr. McCain would endear himself to a lot of fiscal conservatives.”

Absolutely right. And McCain would also endear himself to a lot of libertarians. It would be risky for Republicans to ignore how much money Ron Paul has pulled up from the grass roots, not to mention votes. That is not just because of Dr. Paul’s good looks and charming wit.

3. “Pick a fight with the press.” That’s bad advice. Let others start any fights. That rule also happens to be good foreign policy, as Ron Paul has observed.

4. “Pick a conservative running mate early. Mr. McCain needs a young vice president with stellar conservative credentials so that conservatives can know that an acceptable successor is being trained and waiting in the wings.”

The giant elephant in this room, the one polite people are not supposed to mention, is that McCain is a cancer survivor and no spring chicken. He is unlikely to serve a second term, and incumbent Vice Presidents have often won the next race. All voters will take his V.P. choice far more seriously than usual.

Regnery likes Gov. Mark Sanford of South Carolina, but national voters don’t know him and there is little time for an introduction. One name they are belatedly beginning to know very well is Mitt Romney. He came close enough in key places like California to have earned the V.P. nod if he’ll take it. In the campaign, I’d send Mitt on tour to focus on economics, where he’s more comfortable than McCain, but ask him to downplay that “competitiveness with China” stuff.

Romney has a few good ideas McCain could borrow, particularly exempting working seniors from the payroll tax. I have minimized the combined income and payroll tax by deliberately minimizing work and salary. But encouraging premature retirement ends up costing the Treasury a lot of income tax revenue, and deprives the economy of skilled labor.

5. “Conservatives … will never forgive him for what they perceive as his abuse of the First Amendment in McCain-Feingold, for his stand on immigration, and for his initial opposition to the Bush tax cuts.”

Regnery is right about McCain-Feingold, for reasons George Will explains better than anybody. But that fight can go on in the legislature and the courts, regardless of who is president. McCain’s positions on immigration and the 2001 tax law are not something that can so easily be dismissed by referring to some checklist of conservative orthodoxy (e.g., must we call a Catholic socialist a “conservative” if he or she wants to allow states to make abortion a crime?).

The American right is diverse, not monolithic or unchanging. In the 1970s I was on the masthead of the magazine Regnery now edits, The American Spectator, as well as those of National Review and Reason. Human Events ran my syndicated column in recent years. Yet that doesn’t mean I feel obligated to agree with Rush Limbaugh on every single topic, or that a Republican candidate has to measure up to some somewhat arbitrary standard of purity. If he’s good on A, B and C, but not so good on X, Y and Z, voters have to think clearly about how to set their own priorities among those issues. Since the president has no authority over “social issues,” and conservatives should fear granting such authority, such choices will often put more weight on good economics, without which costly military spending could soon prove highly problematic.

On complex topics like immigration and taxes, reasonable people can disagree and sometimes they should.

The U.S. labor force is getting old and growing slowly, which is just one reason I think McCain and George W. Bush were both right that we need many more temporary work visas to provide a legal alternative to illegal residence. Nearly half the illegal residents do not sneak across the southern border but arrive here legally by the millions as tourists, students and business travelers.

I was no enthusiast for the 2001 tax bill (although not because the measures threatened Iraq funding or were too kind to the rich). In a Wall Street Journal article on May 30, 2001 I wrote that “the primary objective of the $1.35 trillion cut … seems to have been to maximize revenue loss rather than to minimize tax distortions and disincentives.” I noted that only 31% of the estimated static revenue loss from original Bush tax bill was devoted to reducing the four highest marginal tax rates. Cutting all of the top four rates combined risked less revenue loss than the foolish gesture of reducing the lowest tax rate to 10% from 15% on the first few thousand. Not everything in that bill made sense, even after the worst glitches were fixed in 2003, and no tax law is ever perfect or permanent (least of all one that was designed to self-destruct in 2010).

Mr. Regnery ends by saying “John McCain needs conservatives more than conservatives need John McCain.” That sounds right.

Musical Chairs

How much will Russia change when Vladimir Putin hands over the presidency to Dmitry Medvedev in the spring?  Putin’s chosen successor has suggested in campaign speeches this month that his regime will be different. Medvedev has eschewed the anti-Western rhetoric of his boss and promised to crack down on corruption. He has even made nice noises about non-government organizations. Putin, of course, imposed tough restrictions on NGOs, especially those of foreign origin or funded by foreign sources, a policy he adopted after seeing the crucial role NGOs played in the Orange Revolution in neighboring Ukraine.

Last month, two government officials appeared to break ranks with Putin’s Kremlin and called for a change in the country’s strident foreign policy. Finance Minister Alexei Kudrin, the deputy prime minister in charge of economic policy, told an investment conference in Moscow that the government “should adjust [its] foreign policy goals in the nearest future to guarantee stable investment.” His comment was supported by Anatoly Chubais, head of state utility Unified Energy System.

So, will there be a Moscow Spring after the foregone presidential election puts Medvedev in the Kremlin?

Cato’s Andrei Illarionov warned recently that Putinism will not end with Putin relinquishing the presidency. “I don’t think so, because we are talking about the policy and philosophy of aggression against Russian people, against Russia’s neighbors, against other countries in the world,” he told the BBC’s Hard Talk program.  “It does not and should not be attributed to one particular person. This is the philosophy and ideology of a group of people, of the Corporation, of the organizations that exist in the country for a long period of time, almost for a century.”

And news out of Russia suggests that the “Corporation” – constituted predominantly by former state security officials and others linked to the so-called “power ministries” – is tightening its grip on Russia business, government agencies and the media with a host of new appointments and nominations to company boards being announced. For example, Igor Sechin, the deputy chief of staff at the Kremlin, has been nominated for the board of Rosneft, the massive state oil company. Viktor Zubkov, the prime minister, has been nominated for the board of Gazprom, and he is likely to become the next chairman of the natural gas business when Medvedev relinquishes the post on becoming the Russian President.

The list goes on and the flurry of appointments is reminiscent of the early days of Putin’s presidency when the neo-KGB state started to form. Medvedev may not come from a KGB background but the state security men will be all around him with their hands on key levers of power. Even if he is independent minded, how can he withstand the interests of the security services and of his likely Prime Minister, one Vladimir Putin?