Archives: July, 2008

Massachusetts Opts to Keep Digging

Yesterday, I blogged about Ezra Klein’s claim that universal coverage would help contain health care spending.  Klein writes:

This is, at least in the abstract, the political logic of focusing on access first: Expanding access creates pressures that force the system to figure out how to control costs.

That’s what I quoted yesterday.  Here are Klein’s next two sentences, about how his theory is unfolding in Massachusetts, which has implemented what the Boston Globe calls a “near-universal health insurance law”:

There’s evidence this is beginning to happen in Massachusetts. The legislature is beginning to consider cost-control measures.

Oh, are they?

Today, the Boston Globe reports that the Commonwealth of Massachusetts requires consumers to buy so many different types of insurance benefits that it increases premiums by about 6 percent.  So how is the legislature grappling with the problem of already expensive premiums that are growing faster than inflation?  According to the Globe:

State lawmakers are now considering proposals that could require employers to add more benefits, including expanded mental healthcare coverage.

Wow.  I don’t think we can afford much more of this cost containment.

HT: David Hogberg.

The Power to Consult about War?

“In no part of the Constitution is more wisdom to be found,” James Madison wrote in 1793, “than in that clause which asks the president to give Congress a courtesy call whenever he’s picked a new country to invade.”  Well, no, that’s not actually what he said.  It went more like this:

In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man.

How to check that temptation?  In 1973, Congress tried the War Powers Resolution, a deeply flawed piece of legislation that has never so much as inconvenienced a president bent on war.  Former Secretaries of State Jim Baker and Warren Christopher – and a bipartisan panel of DC bigwigs – have a new answer: semi-mandatory consultation with Congress backed up by a dread “resolution of disapproval” (that the president can veto!).  Somehow I don’t think this is going to work.   

I haven’t had a chance to read the full report yet, but judging from the coverage and the op-ed Baker and Christopher penned for yesterday’s Times, the Commission’s proposal seems like an exercise in High Broderism.  For some serious attempts at putting teeth in the War Powers Resolution, check here and here

However, as I explain in the Cult of the Presidency, I’m skeptical that any of these megastatute solutions are going to work.  Because no Congress can truly bind a future Congress and no statute can force the courts to resolve separation of powers fights they’d rather duck, such legislative solutions tend to be about as effective as a dieter’s note on the refrigerator.  Unless and until ordinary voters demand that Congress stand and be counted on issues of war and peace–and defund unauthorized wars–we’ll continue as before.  Hey, maybe we are the change we’ve been waiting on.

Bias, Bias, Everywhere

Jay Greene and Eduwonkette—an anonymous education blogger whom Greene thinks is married to Eduwonk but I suspect is the original Wonkette’s kindergarten teacher—are having a tiff about the supposed superiority of peer-reviewed papers over think-tank reports. Unfortunately, Eduwonkette trots out the old saw that you can’t trust think tank reports because most think tanks have “stated ideological” agendas.

This ignore-the-report-because-of-the-messenger thing is getting pretty tiresome. Greene’s colleague Greg Forster has dealt with the phenomenon before, as has Cato’s Andrew Coulson and former AEI president Christopher DeMuth—but it’ll probably never go away. People will always dismiss the work of those who are upfront about their convictions in favor of those who are supposedly “objective.” But this is too often a sad excuse to ignore the merits of what the intellectually transparent have to say, and worse, it puts on blinders to the reality that all people are to some degree self-interested and, hence, biased.

In a stroke of serendipity, it just so happens that Inside Higher Ed reported yesterday on a new study finding that peer-reviewed research is often fraught with citation errors; so much for the assumption that “peer review” is synonymous with “quality.” Making matters worse, Inside Higher Ed notes, these errors are heaped on top of the “well-documented” presence of bias in academic research that emphasizes evidence supporting authors’ points of view, that includes citations intended to curry favor with influential colleagues, or that plays down contrary evidence:

Like any self-enclosed, loosely policed network, citations are far from perfect. It’s well documented, for example, that researchers tend to cite papers that support their conclusions and downplay or ignore work that calls them into question. Scholars also have ambitions and reputations, so it’s not surprising to hear that they might weave in a few citations to articles written by colleagues they’re trying to impress — or fail to cite work by competitors. Maybe they overlook research written in other languages, or aren’t familiar with relevant work in a related but different field, or spelled an author’s name wrong, or listed the wrong journal.

All of these shortcomings are reviewed and discussed in an article published this year in the management science journal Interfaces along with the critical responses to it.

As it turns out, scholars have already done some work quantifying problem citations, divided into two categories, “incorrect references” and “quotation errors.” The authors of the paper, J. Scott Armstrong of the University of Pennsylvania’s Wharton School and Malcolm Wright of the Ehrenberg-Bass Institute at the University of South Australia, Adelaide, write of the former type, “This problem has been extensively studied in the health literature … 31 percent of the references in public health journals contained errors, and three percent of these were so severe that the referenced material could not be located.”

In the end, all research must be seriously scrutinized, and this will only be done when we accept that everyone has biases and we take every report, paper, or pronouncement with a healthy grain of salt.

Will Bush Fool Us Twice?

Today the Senate is expected to vote on changes to the FISA law. President Bush wants immunity for the telecoms because that will take the matter away from those pesky courts–which keep declaring his initiatives to be contrary to law. The Dems claim that we get sensible and desirable FISA rules in return for the telecom immunity deal. Just assume for a moment that that is true, what assurance do we have that such rules will not be bypassed with one of those fine print signing statements?

Reporter and author Charlie Savage:

Early on in the administration, Cheney arranged it so that all legislation that was going to be headed toward the president’s desk to be signed would be routed through the vice president’s office, allowing David Addington to take part in the bill-vetting process. Normally signing statements would be crafted by the Office of Legal Counsel, the White House Counsel’s office, the Office of Management and Budget. The vice president’s office was added to that mix, and this became another vehicle for the expression of these very strong views of executive power, this very aggressive conception of what it is that is beyond Congress’ ability to regulate when it comes to the executive branch.

Recall that after Congress tried to write new laws concerning interrogation practices run amok, Bush seemed to relent, but then quietly inserted a signing statement that essentially said he would interpret this new law in a way that would be consistent with his power as command-in-chief of the armed forces, which seemed to reduce the new law to nothing but words on paper. Will Bush fool everyone again?

For more on signing statements, go here.

Plainly Unreasonable

Hans Bader links to a prior post purporting to show how the immunity provisions of the FISA bill will “end a legal double standard that discriminates against the telephone companies.” In particular:

It’s worth noting that the federal officials who created a surveillance program already enjoy “qualified immunity” against having to pay damages, even if a court later declares the program illegal, unless their belief that it was legal was plainly unreasonable. (They can still be ordered by a court to stop operating the program, but they can’t be ordered to pay damages if the defense of qualified immunity applies). But private companies, unlike government officials, do not enjoy such “qualified immunity” against damages, exposing them to potentially huge liabilities and attorneys fees. That is odd, since the government should be subject to a tougher standard of liability than private companies, not the other way around.

There are two problems with this. First, the “qualified immunity” standard Bader discusses is not the standard that the “compromise” FISA legislation would establish. Rather, the legislation would require judges to dismiss the lawsuits if the defendants can produce a piece of paper from the government stating that the program was legal. Since we already know that the companies have such pieces of paper, that imposes no real restriction at all.

More importantly, the theory that warrantless wiretapping is legal was “plainly unreasonable.” Don’t listen to me, listen to Judge Vaughn Walker, a Republican appointee, who wrote in 2006: “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.”

The FISA Bill: A Paper Tiger

The Washington Post has a defense of the FISA bill that shows a breathtaking level of naivete. Consider this sentence, for example:

The measure requires an individualized, court-approved warrant to conduct surveillance targeted at Americans’ communications with those overseas and – in an expansion of existing FISA protections – at Americans abroad.

It’s true that the bill contains language nominally prohibiting surveillance “targeted at” a particular American. If the NSA wants to spy specifically on Tim Lee in St. Louis, it will need to get an individualized FISA warrant to do so. But what the Post fails to mention is that while an individual warrant would be required to intercept just my communications, no warrant would be required to intercept all international calls by St. Louis residents. As long as no particular St. Louisans were the “target” of the surveillance, and as long as foreign intelligence was “a significant purpose” of this surveillance program—an easy standard to meet—nothing would prevent the government from also using the information intercepted for a variety of other purposes, such as catching people engaged in tax evasion or online gambling.

Moreover, precisely because of the lack of judicial oversight of such dragnet surveillance programs, it’s not clear that the prohibition on “targeting” Americans will have any teeth. Here’s what’s likely to happen: the NSA will develop a variety of sophisticated software algorithms to scan all the traffic intercepted for various patterns of interest to the NSA and other federal agencies. The NSA could conceivably use hundreds of different filters that single out particular communications based on a variety of criteria—keywords, unusual patterns of calls or emails, communications with current suspects, and so forth. The judge reviewing the “certification” for such a program would be required to wade through hundreds of pages of documentation describing what the software did—probably written in dense, technical language and then translated into lawyer-speak. I’ve got a computer science degree, and I doubt I could tell whether the algorithms so described “targets” Americans; certainly no 70-year-old judge is going to be able to do so.

It’s also important to remember that both the NSA and the FBI have a long history of evading laws they find inconvenient, and to using the results for unsavory purposes. From the 1930s until at least the 1970s, federal agencies repeatedly used illegal wiretaps and break-ins to spy on journalists, political activists, civil rights leaders, elected officials, actors, and other prominent individuals. They assembled files on thousands of Americans that included information about their sexual orientation, sexual dalliances, political opinions, and other potentially embarrassing information. The information collected was used for blackmail, intimidation, titilation, and to manipulate the political process. We have no evidence that the NSA or FBI are currently doing any of these things, but it would be naive to assume that it won’t happen in the future.That means that the judicial procedures for verifying that the rules are being followed are at least as important the rules themselves. A “no targeting” rule is worthless unless it comes with effective procedures for enforcing that rule. When Congress crafts surveillance law, it should assume that the government will try to skirt the rules, and include enforcement mechanisms that are hard to circumvent. Two crucial mechanisms in the original FISA legislation were the requirement for individualized warrants, and the requirement that telecom companies only participate in surveillance programs in response to a court order. Together, these requirements ensured that wiretapping activities got prompt and thorough scrutiny from a judge.

The legislation the Senate is on the verge of passing undermines both of these safeguards, replacing individualized warrants with broad “certifications” and allowing the government to issue “directives” directly to telecom companies without court involvement. Together these provisions make it trivially easy for government officials to evade proper oversight, either by submitting “certifications” that are so complex that no judge can understand them, or by simply issuing “directives” to telecom companies and then dragging out the judicial review process until the desired information has been collected.

The bottom line is that while the new FISA legislation nominally requires judicial oversight, it will be trivially easy for future government officials to evade. The bill may nominally require “individualized, court-approved warrant to conduct surveillance targeted at Americans’ communications with those overseas,” but it won’t be a meaningful constraint on government officials who wish to skirt the law in the future. And given the long history of law-breaking by government officials in the past, it’s a matter of when, not if, such abuses occur again.

A Central Banker with a Sense of Humor

The world’s worst central banker, Gideon Gono of Zimbabwe, gets a hearty chuckle out of the hyperinflation that has destroyed his country’s economy:

Of all the world’s central bankers, Zimbabwe’s gets the biggest – or at least the longest – salary. Mr. Gono won’t say how much he earns exactly as head of the Reserve Bank of Zimbabwe but does claim to have “more digits” on his pay slip that any of his peers. He earns trillions of Zimbabwe dollars. It now takes more than 16 billion of these to buy a single U.S. dollar. U.S. Federal Reserve Chairman Ben Bernanke earns only six figures, $191,300.

Ha, ha. Maybe he should be more direct and simply take credit for producing the world’s highest inflation. That’s something to be remembered for.