Archives: January, 2010

Agricultural Exceptionalism

House Agriculture Committee Chairman Colin Peterson (D, Sugarbeet Farmers) announced yesterday [$] that he would begin hearings on the 2012 Farm Bill this spring. I’m still recovering from the traumatizing 2008 Farm Bill fight, so I heard this news with some trepidation.

But wait! Put those red pens away, folks, because Chairman Peterson plans to keep on spending on agricultural programs. Heaven forbid that agriculture should take any of those “cuts” we’ve been hearing so much about :

House Agriculture Committee Chairman Collin Peterson, D-Minn., said… he is determined to write a bipartisan bill that is within the funding baseline that exists in 2012.

The funding baseline is the amount of money that the Congressional Budget Office determines would be spent on all programs in the farm bill if the same programs were to continue after 2012. CBO projects the funding levels based on spending in programs in past years.

Peterson said at least initially he expects each major farm bill section — the farm program, conservation and nutrition — to stay within its 2012 baseline.

He also specifically pledged to fight off any attempts to lower direct payments, which flow to current or past farmers of certain crops year-in-year-out, regardless of whether they still farm or not.

Some further details on his plans for the next farm bill can be found in this National Journal article [$ again, sorry] but the gist of it is that Chairman Peterson doesn’t want reformers interfering the way they did last time, even if farmers were left practically unscathed from the battle.

In a speech to the National Association of Wheat Growers and U.S. Wheat Associates, Peterson said that reformers “who don’t understand how this works … defined what reform is” in 2008. Peterson said there should be changes to the farm bill, but he ridiculed one of the reformers’ biggest goals: limitations on payments to big farmers.

The campaign to lower payment limits “is not reform. It’s an ideology,” he said. Reformers want Congress to decide what size farms should get subsidies, a notion that Peterson rejects. “We are not smart enough in government to decide what farm size is,” he said.

(Sidebar: Isn’t it cute how Chairman Peterson couches his opposition to farm payment limits in libertarianish terms about how government “isn’t smart enough.” His support for a 80+-year-old suite of government interventions suggests he is not as skeptical about government’s smarts as he indicates in this little political aside. But I digress.)

And in a charming dismissal of the importance of free trade (he’s an old-hand at dismissing international obligations in this area), Chairman Peterson offered this:

Peterson said he did not think pressures to comply with trade agreements would be too much of a problem in the farm bill because “the trade situation is dead in the water,” and negotiators realize they cannot get approval from Congress if agriculture is not satisfied. “We’ve got some power over that system,” he said.

“I am not going to turn myself into a pretzel to accommodate this latest trade agreement,” he said.

A disappointing start to the 2012 Farm Bill fight, to be sure, but my hope is not dashed. With any luck, the recent signs of voters’ disgust with Washington will translate into some extra political support for those of us working for real reform. (see examples here and here.)

Mayors Want More Federal Money

Hundreds of city leaders are in Washington for the winter meeting of the U.S. Conference of Mayors. Considering that winter weather in our nation’s capital is about as warm as Barney Frank’s personality, there’s only one reason for the mayors to meet there: grovel for more federal hand-outs.

From the New York Times:

Saying that last year’s $787 billion economic stimulus plan has failed to ease urban unemployment, the nation’s mayors are asking the federal government for a second wave of stimulus money.

If you don’t succeed the first time, apparently you should fail, fail again. Charleston’s mayor, Joseph P. Riley Jr., says that “most economists” believe more federal stimulus spending is the “only thing” that can reduce unemployment. Most Keynesian economists—such as Mark Zandi and Paul Krugman—perhaps, but the broader profession is actually divided on the issue.

The mayors are upset that they “are being deprived of the federal aid owed to them.” To be fair, they are referring to the fact that formulas used to allocate federal surface transportation funds in the stimulus bill went disproportionately to non-metro areas. But this only serves to illustrate why it’s inefficient for citizens to be taxed by the federal government only to have the money returned to state and local governments through some politicized mechanism. State and local governments should fund their own transportation needs. But mayors are all too happy to receive the “free” money from Washington than funding their spending through the more transparent method of taxing their own constituents.

It takes a tremendous amount of gall for some officials and analysts to argue that the federal government is depriving state and local governments of resources. Donald Kettl, the dean of the School of Public Policy at the University of Maryland, made such a claim in the December issue of Governing. The chart shows that federal subsidies to state and local government have been going through the roof:

Instead of wasting time and money trying to get federal taxpayers to make their political careers easier, the nation’s mayors should focus on solving their own problems, which as a Cato essay on HUD community development programs notes, are often a result of poor policies:

The reality is that no amount of federal money can overcome the local hurdles to growth in cities such as Detroit—including political corruption and destructive tax and regulatory policies. Indeed, just like international development aid, federal aid to the cities likely increases corruption and stalls much-needed local reforms.

With the federal government running huge deficits, it cannot afford to fund ineffective and often wasteful local development projects. Community development is a local concern, and only local leaders and businesses using their own funds can make sound cost-benefit decisions on projects. By providing local leaders with handouts from Washington, we simply encourage them to make irresponsible decisions. At the same time, experience has shown that federal politicians use local projects as political tools that are disconnected from sound economics.

Biased Budget Reporting

I was certainly surprised to see Barack Obama propose any sort of spending freeze. Less surprising, however, is how it’s been reported.

For reasons that I admit escape me, it is apparently a law of journalism that any budget-related act will be made to look as stingy as possible. Remember this when you read the news.

Spending increases that were planned all along aren’t considered increases at all and do not make the news. Unplanned increases, those over and above the planned ones, are reported as though only the unplanned parts were increases. Large spending increases get extra praise for boldness. Reductions in the rate of spending growth are called “spending cuts.” Real though tiny cuts are described as draconian measures. We would probably have to invent a new word, something scary with reference to the intimate anatomy, if significant, across-the-board spending cuts ever arrived. Within most of our lifetimes, this has never happened.

Today’s reporting fits the pattern perfectly. The Washington Post headline proclaims, “Obama to Propose Freeze on Government Spending.” The New York Times declares, “Obama to Seek Freeze on Some Spending to Trim Deficits.” It is, we learn, “an initiative intended to signal his seriousness about cutting the budget deficit.”

Wonderful! Or stingy! Or both!

But not, you know, accurate. The details are in the fine print, and they don’t remotely live up to the headlines. The freeze applies only to discretionary spending. It doesn’t touch military or entitlement programs, and these are the large majority of the budget. It may not even be a meaningful freeze on the discretionary portion, as my colleague Dan Mitchell points out. And it’s only down in the fifth paragraph where the Times notes that “The estimated $250 billion in savings over 10 years would be less than 3 percent of the roughly $9 trillion in additional deficits the government is expected to accumulate over that time.”

In other words, today’s news is a virtual nothing with almost no likelihood of being carried through anyway. If this is “intended to signal seriousness,” I wonder what an unserious proposal would look like. I also wonder what sort of proposals we’d get from our politicians if our media reported on budget matters without its deeply ingrained bias against fiscal discipline.

NRA Cares More about NRA Than Gun Rights, Liberty, Professional Courtesy

Yesterday the Supreme Court granted the NRA’s motion for divided argument in McDonald v. Chicago.  What this means is that Alan Gura’s 30 minutes of argument time on behalf of Chicagoland gun owners just became 20, with 10 going to former Solicitor General Paul Clement, whom the NRA hired at the last minute to pursue this motion and argument.  (Full disclosure: Alan Gura is a friend of mine, and of Cato.)

The NRA’s motion was premised on the idea that Alan had not fully presented the substantive due process argument for selective incorporation of the Second Amendment – presumably out of an outsized concern for the Privileges or Immunities Clause arguments about which I’ve previously blogged and written a law review article.  This is a highly unusual argument and is a facial slap at Alan’s abilities as an advocate.  Sadly, it’s also typical of how the NRA has behaved throughout this case and before that during the Heller litigation – sabotaging Alan at every turn and showing again and again that, even in the face of winning arguments that fully support its legal positions, the NRA prefers to seek glory for itself rather than presenting the strongest case for its purported constituency of gun owners.

Alan rightfully opposed the NRA’s motion because the group’s participation at argument adds nothing substantive to the case. No one will ever know why the motion was granted, as the Court need not (and did not) provide any reasons.  Nonetheless, it’s a safe bet that this is solely a testament to Clement’s talent and reputation (notably, the motion was not filed by any of the NRA’s other excellent attorneys, who briefed and argued their case in the lower courts and in a cert petition and brief before the Supreme Court).

I have great respect for Paul Clement, and have worked with him by filing amicus briefs in two cases he’s already argued this term, but I do take issue with his repeated suggestion that the motion’s purpose – and the reason behind its granting – was so that “all the avenues to incorporation, including the due process clause, are fully explored at the argument.”  This kind of comment – again impugning Alan’s litigation strategy – is uncalled for, and renews concerns over the NRA’s conduct.

Throughout this case, Alan has consistently and forcefully advocated for the Second Amendment’s incorporation under the Due Process Clause.  That didn’t change when his case was taken up by the Supreme Court.  The thing is that the due process arguments are not all that complex, and simply do not merit the same care and attention in the briefs as arguments based on the Constitution’s actual text and history.  A first-year law student who’s taken constitutional law – let alone a Supreme Court clerk – could write a due process incorporation argument in her sleep!  In any event, the oral argument will be driven by the justices’ questions, not by any long soliloquies by counsel.  Alan’s – and all attorneys’ – job is to be ready for anything.

If the NRA were concerned about the final outcome of the case, it would be unlikely to attack Alan’s strategy or question his preparation (an odd way to be “helpful” to one’s side).  It is not a stretch to predict that this case will be favorably decided at least in part on due process grounds, however, so what we are seeing here is likely an attempt by the NRA to position itself as responsible for such a victory – and that Alan isn’t.

Ultimately, then, the NRA is engaging here in fundraising, not liberty-promotion or ethical lawyering.

Obama’s Spending Freeze: Is It Real or Is He Copying Bush?

As reported by the Wall Street Journal, the Obama Administration will propose a three-year freeze for a portion of the budget known as “non-defense discretionary” spending. Many critics will correctly note that this is like going on a drunken binge in Vegas and then temporarily joining Alcoholics Anonymous. Others will point out that more than 80 percent of the budget has been exempted, which also is an accurate criticism. Nonetheless, even a partial freeze would be a semi-meaningful achievement.

But don’t get too excited yet. It is not clear whether the White House is proposing a genuine spending freeze, meaning “budget outlays” for these programs stay at $447 billion for three years, or a make-believe freeze that applies only to “budget authority.” This is an enormously important distinction. Budget outlays matter because they represent the actual burden of government spending. Budget authority, by contrast, is a bookkeeping measure that – at best – signals future intentions. During the profligate Bush years, for instance, apologists for the Administration tried to appease fiscal conservatives by asserting that budget authority was growing at ever-slower rates. In some cases, they were technically correct, but their arguments were deceptive because real-world spending kept climbing to record levels. And needless to say (but I’ll say it anyhow), future intentions never became reality.

Domestic discretionary spending soared from less than $350 billion to more than $600 billion during the Bush years (and rose almost another $100 billion in Obama’s first year!). If the Obama Administration proposes a genuine outlay freeze, he will be taking a genuine (albeit small) step in the right direction. If the “freeze” applies only to budget authority, however, that will be another indication we are in George W. Bush’s third term.

To attack the $1.4 trillion deficit, the White House will propose limits on discretionary spending unrelated to the military, veterans, homeland security and international affairs, according to senior administration officials. Also untouched are big entitlement programs such as Social Security and Medicare. The freeze would affect $447 billion in spending, or 17% of the total federal budget, and would likely be overtaken by growth in the untouched areas of discretionary spending. It’s designed to save $250 billion over the coming decade, compared with what would have been spent had this area been allowed to rise along with inflation. …administration officials acknowledged the freeze is directed at only a small part of overall spending, but that fiscal discipline has to start somewhere. President Obama had requested a 7.3% increase last year in the areas he now seeks to freeze.

The Case of the Missing Evidence

Last fall, the 9th Circuit Court of Appeals reinstated a lawsuit against Arizona’s K-12 scholarship donation tax credit program. Under the program, citizens can donate to non-profit organizations that help families pay for private school tuition, and in return, the donors receive a dollar-for-dollar tax cut. The 9th Circuit, ruled that the program violates the Establishment Clause of the First Amendment, because many taxpayers choose to donate to religious scholarship-granting organizations whose scholarships are only usable at religious schools. This, in the Court’s view, meant that the program unconstitutionally favored religious scholarship-seeking parents over secular ones.

Supporters of the program will soon be appealing this decision to the U.S. Supreme Court. They’re very likely to win, for a variety of reasons. Foremost among them, the Establishment Clause forbids only  governments from favoring religion, but imposes no similar limit on individual citizens. It is for this reason that charitable tax deductions can be claimed for donations to both religious and secular charities without running afoul of the First Amendment – even if taxpayers overwhelmingly choose to donate to religious charities.

In rereading the original complaint, I noticed something interesting: even if the 9th Circuit’s misconstrual of the Establishment Clause were correct, plaintiffs still wouldn’t have a case. That’s because the evidence they presented did not – and still does not – support their claim that secular parents have been at a comparative disadvantage in obtaining scholarships. To see why, read on….

The only evidence plaintiffs presented to show the claimed disadvantage of secular parents was that most of the scholarship funds have been distributed by religious organizations. That is not dispositive. To prove that secular parents were at a disadvantage in getting scholarships, plaintiffs would have to show that secular parents were being rejected by scholarship programs at a higher rate than religious parents, or that, at the very least, the share of religious-only scholarship funds was higher than the share of parents seeking religious schooling.

That, as it turns out, was not the case in the school year (1998-99) for which plaintiffs provided data, and it is not true today. In 1998-99, about 75.5 percent of private school children were in religious schools, but only 75 percent of (the very tiny amount of) scholarship funds distributed in that year were reserved for religious schooling. In 2007-08 (the most recent year for which data are available), 81.4 percent of private school students were in religious schools, but only 65 percent of the donated scholarship funds in 2008 were reserved for religious schooling.

There is thus no evidence that secular parents are any more likely to be turned away for a scholarship than are religious families, because the share of scholarship funds available for use at secular schools is now nearly twice as large as the share of children being enrolled in secular schools.

So even if plaintiffs and the 9th Circuit were right on Establishment Clause jurisprudence, which they certainly are not, the evidence still wouldn’t support their case.

For all the relevant numbers I used to reach the above conclusion (sourced from the Arizona Dept. of Revenue and the National Center for Education Statistics)  see this Excel spreadsheet file.