Archives: 12/2010

It Turns Out You Can Indeed Criticize the Government

As I wrote almost exactly a year ago, my friend Mark Sigmon filed a case on behalf of the ACLU seeking to prohibit a town in North Carolina from enforcing its sign ordinance against a man who painted “Screwed by the Town of Cary” on the side of his house.  Well, yesterday, the federal district court granted the plaintiff David Bowden summary judgment and entered a permanent injunction against the town. 

The court concluded that the sign ordinance was content-based under the First Amendment because it required more than a perfunctory inquiry into the content of signs in order to determine whether the ordinance would apply.  For example, the ordinance required the town to determine whether something was a “work of art,” a “holiday message,” etc.  The court then concluded that the town’s asserted interests in aesthetics and traffic safety were not compelling, and that even if they were, the ordinance was not narrowly tailored because it would allow, for example, a huge flashing holiday sign.

The opinion in the case makes clear that governments should not be in the business of looking at the substance of speech, except in the most superficial manner – for example, to determine if something is commercial speech or not.  Because the law is not entirely clear in this area, if the Town of Cary appeals, the resulting opinion should be instructive.  Hopefully the Fourth Circuit would affirm the district court and take another step to ensure that core speech is relatively unmolested.  Especially political speech that you write on your own house.

Kudos to Mark and to the First Amendment.

Policymakers Needn’t Fear Spending Cuts

A recent study by economists Alberto Alesina, Dorian Carloni, and Giampaolo Leece looked at 19 OECD countries from 1975 to 2008 and found no evidence that “governments which quickly reduce budget deficits are systematically voted out office.” Therefore, the authors conclude that governments can “decisively” reduce deficits and be returned to office by voters.

A particularly interesting finding is that only 20 percent of the governments that reduced deficits by cutting spending were subsequently voted out of office. In contrast, 56 percent of governments that reduced deficits by increased taxes were given the boot.

The findings are good news for the large group of incoming members of Congress who promised to cut spending during the campaign.

The authors ask, “If it is the case that certain types of fiscal adjustments are not necessarily costly in terms of lost output or lost votes, why are they often delayed and politicians reluctant to implement them?”

One possible reason they suggest makes the most sense:

Certain constituencies may be able to block adjustments to continue receiving rents from government spending because they have enough political energy (time, organization, money). This is sometimes referred to as an issue of diffuse benefits and concentrated costs. For example, in some cases strikes of public-sector employees may create serious disruptions. Pensioners lobbies may be able to persuade politicians not to touch their pension systems even when future generations will suffer the costs of delayed reforms. Lobbyists for certain protected sectors use campaign contributions for continued protection.

Policymakers in Washington are surrounded by doting staffers, political operatives, and persistent lobbyists representing countless special interests. The result is an endless stream of feedback telling policymakers to SPEND! Or, as is currently more likely the case, DON’T CUT! Many politicians learn to enjoy the warm feelings (and campaign support) that come with delivering the taxpayer goods to particular interests, while those who would actually like to cut spending don’t make any friends.

The media often doesn’t help matters.

Consider how many journalists tend to portray the subject of spending cuts. They describe proposed cuts as “draconian” and modest trims as “slashing” spending. Instead of considering the cost to taxpayers of a program or the possible alternatives to government programs, journalists just think of cuts as “painful.”

One way to puncture a hole in the Beltway spending echo-chamber would be for congressional committees to spend more time listening to witnesses who don’t want more government spending. In a Cato Policy Analysis, former Yale professor James Payne surveyed 14 congressional committee hearings. He found that “in those 14 hearings, 1,014 witnesses appeared to argue in favor of programs and only 7 spoke against them, an imbalance of 145 to 1.”

There’s a lot of talk coming from House Republicans about “changing the culture” in the appropriations committee and elsewhere. A good start would be for the committees to start hearing more from the “diffuse” taxpayers footing the bill, and less from the concentrated beneficiaries. Perhaps then more policymakers will come to realize that pushing spending cuts isn’t so scary after all.

Is Congress Above the Law?

The first item on this election campaign’s Contract with America was that, if elected (as they have been), the House Republicans would require that all laws that apply to the rest of the country also apply to Congress.  We’ll see if that and the other promised reforms materialize, but it does raise yet another issue in the context of Obamacare.

As my colleague Michael Cannon pointed out to me, the new health care law kicks congressmen out of the Federal Employees Health Benefits Program.  (The current FEHB is no different from the health coverage provided by any private employer -– federal employees choose from a series of private plan options (none of which is run by the government), and receive a subsidy from the federal government acting in its role as an employer.)

My first reaction to hearing this was:  Good – if the rest of us lose our health care freedom, so should those who forced this new atrocity on us.  But apparently this result was not intended, so the Obama administration has decided to ignore that part of the law.

No joke.  Here is the Congressional Research Service report on the provisions that oust members of Congress from their health insurance.  And here is the letter in which an Obama appointee announces that the administration will ignore the law.  These two articles also provide important information.

Now, assuming that something constitutionally problematic is going on here, what can anyone do about it?  To put it in legal terms, who has standing to sue for this apparent constitutional violation?  It’s a tough row to hoe – taxpayers cannot bring suit based on generalized grievances – but off the top of my head, I can think of two possibilities: (1) members of Congress suing the president or the Department of Health and Human Services for essentially passing new law and therefore infringing on congressional prerogatives (thereby violating the separation of powers); or (2) an insurance broker or carrier who would otherwise be signing up new clients.

And there are two additional related questions:

1. Why did Congress expand Medicaid while refusing to participate in it themselves?  Obamacare expanded Medicaid to an estimated 18 million new Americans, none of whom will have a choice of private plans, instead being dumped into Medicaid, a program notorious for access problems (and which in Arizona now doesn’t cover organ transplants).  Yet all Senate Democrats voted against an amendment enrolling members of Congress in the new Medicaid program (all Republicans voted for it, except one who was absent).

2. Will members of Congress use their own salaries to pay any fines assessed because their employees have “unaffordable” health coverage?  Obamacare includes a $2,000 per worker penalty for any employer that does not provide “affordable” coverage, beginning in 2014.  Many junior staffers have incomes below 400 percent of the federal poverty level ($43,320 for a single person, or $88,200 for a family of four), and thus could be subject to the new statutory test of whether their health insurance options are “affordable.”  While it’s unclear how this particular provision will be implemented for Hill staff – due to the “significant unintended consequences” of sloppy drafting – it’s entirely possible that member offices could be assessed a $2,000 penalty for every worker needing insurance subsidies because they have no “affordable” alternative.  If that scenario happens, will the members of Congress who voted for the law pay the penalty out of their own salaries or will they rely on taxpayer funds to finance an obligation they imposed on themselves?

Rep. Jeff Flake to Appropriations

In-coming House Speaker John Boehner’s endorsement of Rep. Jeff Flake (R-AZ) for a seat on the chamber’s appropriations committee means that it’s probably a done deal. Flake is one of the few policymakers who actually lives up to the fiscal conservative label. Thus, Flake’s appointment to a committee that many members think only exists to increase spending on special interests would be welcome news.

Boehner also endorsed a suggestion from Rep. Jeff Kingston (R-GA), who has mounted a dark-horse campaign to chair the appropriations committee, to create a subcommittee focused on investigating federal programs. Flake would chair this subcommittee, and according to a release on his website, he has already lined up worthy targets like Head Start and farm subsidies.

How much success will Flake have within the committee?

The New York Times quotes Flake as boldly saying, “It has been a favor factory for years, and now it is going to become a slaughterhouse.” At the same time, Flake acknowledged to Politico that putting a few anti-spenders on appropriations isn’t going to be enough:

Flake said the conservatives that Boehner wants to get on the committee will be “marginalized” if they’re scattered throughout the panel.

“It’s not enough just to have a few going on the committee,” he said. “They could be dispersed among the subcommittees that are forgotten.”

I recently warned the House Republican leadership against serving tea party voters re-heated meatloaf by allowing old-school spenders to dominate the committees. Getting Jeff Flake on appropriations is a step in the right direction, but his appointment can’t be a token gesture. Anti-spenders like Flake will need support from their leadership to succeed because they sure won’t be making friends with the big-spending old bulls.

This Is Earmark Transparency

This morning, a database of FY 2011 earmark requests was released by Taxpayers Against Earmarks, Taxpayers for Common Sense, and my own WashingtonWatch.com. With House Republicans generally eschewing earmarks this year, members of Congress and senators still sought over 39,000 earmarks, valued at over $130 billion dollars. Learn more on the relevant pages at Taxpayers for Common Sense, Taxpayers Against Earmarks, and WashingtonWatch.com.

This is transparency. The production of organized, machine-readable data has allowed these differing groups—an advocacy organization, a spending analysis group, and a “Web 2.0” transparency site—to expand the discussion about earmarks. The data is available to any group, to the press, and to political scientists and researchers.

Earmarking is a questionable practice, and, anticipating public scrutiny, House and Senate Republicans have determined to eschew earmarks for the time being. But the earmark requests in this database are still very much “live.” They could be approved in whatever spending legislation Congress passes for the 2011 fiscal year. They also tell us how our representatives acted before they got careful about earmarks.

Earmarks are a small corner of the federal policy process, of course, but when all legislation, budgeting, spending, and regulation has become more transparent—truly transparent, Senator Durbin—the public’s oversight of Congress will be much, much better. As I noted at our December 2008 conference, “Just Give Us the Data,” progressives believe that it would validate government programs and root out corruption. (That’s fine—corruption and ongoing failure in federal programs are not preferable.) I believe that demand for government will drop. The average American family pays about $100 per day for the operation of the federal government currently. That’s a lot.

Again, you can see how this data is in use, and you can use it yourself, by visiting Taxpayers for Common Sense, Taxpayers Against Earmarks, and WashingtonWatch.com. On the latter site, you can see a map of earmarks in your state and lists of earmarks by member of Congress and representative, then vote and comment on individual earmarks.

At considerable expense and effort, these sites have done what President Obama asked Congress to do in January. If earmarking is to continue, Congress could produce earmark data as a matter of course itself: The appropriations committees could take earmark requests online and immediately publish them, rather than using the opaque exchange of letters, phone calls, and—who knows—homing pigeons.

Congress should modernize and make itself more transparent. We’re showing the way.

Overcriminalization Incentives

In my post on Brian Aitken’s plight, I discussed New Jersey’s draconian gun laws and how a law-abiding citizen can become a victim of overbroad laws. New Jersey gun laws weren’t always so bad, but overcriminalization warped them into their current unconstitutional state.

This trend is a staple of modern legislative activity. Every time a politician says that we must pass a new law to “get tough on crime” and that their pet legislation ought to be passed “for the children,” it’s a sure indicator that the rule of law is about to take another body blow. Take, for instance, the crusade against sexting that threatens to make foolish teenagers into sex offenders. Or the proposed federal cyberbullying act, which aims to turn teens into federal felons, in spite of the fact that there is no federal juvenile justice system. New Jersey gun laws jumped the shark a long time ago and haven’t looked back.

The same is true with federal “honest services” fraud. In the words of one former lawmaker who fed the overcriminalization beast only to see it turn on him:

When I served in Congress, I vigorously opposed any expansion of federal agency authority. All too often, however, I exempted the Justice Department from my efforts because I wanted to give law enforcement the power it needed to keep our country safe from dangerous individuals. After enduring a years-long investigation into crimes my wife and I did not commit, and after watching the outrageous prosecution of Kevin Ring, I have serious doubts about whether I was wise to faithfully support the Justice Department. I strongly encourage the new Congress to examine the guidance and leeway the Department gives to federal prosecutors, and to refrain from passing any new vague criminal laws which seem to invite the worst prosecutorial abuse.

This is just the tip of the iceberg. For more on overcriminalization, take a look at Tim Lynch’s book, In the Name of Justice, or Harvey Silverglate’s Three Felonies a Day.

The Private Sector Lacks What?!?

So there I was, checking e-mail this morning on my JooJoo when I came across this editorial about how the private sector lacks accountability unless the government provides it through regulation! This naturally caused me to expectorate New Coke all over over myself and my Apple III, forcing me to toss my Levi’s Type 1 jeans in the wash and hop back in the shower. (You know, that Touch of Yogurt shampoo by Clairol is really… uh… something).

Twenty minutes later I was still so preoccupied about responding to the editorial that I backed over my neighbor’s Segway as I pulled the Edsel out of the garage. Oops. Sorry Dean.

Anyway, once I got into the office I popped a couple of Ben Gay Aspirin to ease my now ferocious headache, but realized as I did so that I’d left my Colgate Kitchen Entree frozen dinner at home. Argh!

You get the idea, yes?

The fact that consumers have demands, and that they can go elsewhere if you fail to meet them, makes producers accountable. We see this in every sector of the economy. Provide a product or service that people don’t want, take away one that they do want, or charge more than they are willing to pay, and they will kick you right in the bottom line.

The result is the same in education as in other fields: the least regulated, most market-like education systems consistently outperform highly regulated state-run school systems such as we have in this country—across every measure people care about.

Regulations are an attempt, crude and usually unsuccessful, to imitate the accountability inherent in competitive markets. So as long as you allow market forces to work in education, and you allow people to allocate their own money rather than taxing it and spending it through the state, regulations are not only unnecessary they are generally counterproductive. (Milton and Rose Friedman had a good chapter on this in Free to Choose.)

Note that this is true under both personal use education tax credits (for parents’ own education costs) and scholarship donation tax credits (in which taxpayers donate to non-profit organizations that subsidize education for the poor). If a scholarship organization becomes corrupt or inefficient, taxpayers can easily redirect their donations to better-run competing organizations. The accountability is built into the system’s design. No other private school choice program has this feature, and certainly public schools do not.

There is no evidence that layering government regulations on top of this market accountability system improves outcomes, and ample evidence that heavily regulated school systems perform badly. Unless those facts change, there is good reason to fight off attempts to regulate private schools under education tax credit programs.