Archives: May, 2011

State Officials Needn’t Heed Feds’ Threats

Federal officials blitzed Texas this week to fight a bill pending in Austin that would control TSA groping of air travelers in that state, reports Forbes’ “Not-So-Private Parts” blogger Kashmir Hill.

Federal government officials descended on the Capitol to hand out a letter … from the Texas U.S. Attorney letting senators know that if they passed the bill, the TSA would probably have to cancel all flights out of Texas. As much as they love their state, the idea of shutting down airports and trapping people in Texas was scary enough to get legislators to reconsider their support for the groping bill…

The federal government’s threat to shut down air travel is serious, but empty. As we’ve seen time and again with the REAL ID Act, the federal government does not have the political will to attack passenger air travel in the name of increasing surveillance and intrusion.

In fact, earlier this year, the Department of Homeland Security didn’t even bother to threaten any repurcussions for states before it once again pushed back a May 2011 (false) deadline for REAL ID compliance. (Previous instances noted here and here.) The REAL ID Act allows the federal government to refuse licenses and ID cards from non-complying states at airport checkpoints, but it’s just not going to happen.

The DHS announcement notes $175 million in spending on REAL ID so far. That waste continues to accrue so long as Congress appropriates money for the national ID program, which will never be implemented.

While we’re on the subject of empty threats from federal officials—and do see Julian Sanchez’s post hitting the same subject—it has been more than four years since then-Secretary of Homeland Security Michael Chertoff said about the REAL ID Act:

If we don’t get it done now, someone is going to be sitting around in three or four years explaining to the next 9/11 Commission why we didn’t do it.

Secretary Chertoff was wrong—factually wrong on the imminence and nature of the terror threat, and ethically wrong to tout terror threats in an attempt to defeat the will of our free people.

With our stubborn insistence on freedom, the American people and state leaders have done a better job of assessing the threat environment than the Secretary of Homeland Security. As I said when I testified on this topic to the Pennsylvania legislature, state leaders should continue to recognize that they are as equipped, if not better equipped, than federal officials to judge what is right for their people. Counterterrorism and airport security are not an exception to that, though federal imperiousness in these areas remains at a high.

Don’t Cut Red Tape, Shut Down the Factory

In the Wall Street Journal today, Cass Sunstein—the administrator of the Office of Information and Regulatory Affairs and erstwhile Harvard Law School professor—wants us to know what he and the Obama Administration are up to. In an op-ed that seems more like an advertisement (“the Office of Information and Regulatory Affairs, accept no substitute!”), Sunstein describes the “unprecedented government-wide review of regulations already on the books so that we can improve or remove those that are out-of-date, unnecessary, excessively burdensome or in conflict with other rules.”

Sunstein discusses OSHA eliminating “1.9 million annual hours of redundant reporting burdens on employers,” the Department of Health and Human Services “reconsidering burdensome regulatory requirements, including paperwork burdens, now placed on hospitals and doctors to ask whether those requirements actually benefit patients,” and the Department of the Interior “reviewing cumbersome, outdated regulations under the Endangered Species Act to clarify and expedite procedures for approval of conservation agreements.”

Also on the chopping block are “regulations that require the use of outdated technologies” and a regulation that defines milk as “oil” and subjects it “to costly rules designed to prevent oil spills.” Lost in the discussion are the obvious questions: how did these admittedly useless and burdensome regulations ever get adopted in the first place? What sort of backward organization would require 1.9 million hours of redundant reporting? Has anyone in the EPA ever cleaned up spilled milk before? What’s to keep all this from happening again?

“Cutting government waste” is the mantra for those politicians who regard certain government programs as sacred cows. President Obama hopes to pay for a sizeable part of his health care overhaul by eliminating “waste, fraud, and abuse” in Medicare. Speaking at Cato yesterday, former Minnesota governor Tim Pawlenty said he wouldn’t cut defense spending, but he would try to make defense “more efficient.”

These sacred cows, however, have a severe eating disorder. The binge and purge cycle that politicians occasionally put them through does nothing to eliminate the underlying disease. Governmental agencies are inherently inefficient and wasteful because they have few reasons not to be. Searching out government waste is a chimerical mission that should raise fundamental questions about the nature of government, not about whether milk is oil.

More Fifth Column than Fourth Estate

Citing new Census figures, the New York Times claims that “public school districts spent an average of $10,499 per student on elementary and secondary education in the 2009 fiscal year.” But according to the most recent issue of the Digest of Education Statistics, expenditures haven’t been that low for over a decade. In the last year reported, 2007-08, total expenditures per pupil in average daily attendance were already $12,922 (in 2008-09 dollars). Adjusting for inflation, that’s about $13,500 in today’s dollars. (Looking at spending per student enrolled, rather than per student actually taught, lowers the total figure, but not by that much).

So what gives? How can the Times claim that public school “spending” is $3,000 lower than it actually is?

They simply exclude a huge swath of expenditures in the number that they call “spending,” without telling readers they have done so. Specifically, they ignore spending on things like… buildings. Correct me if I’m wrong, but I don’t think American public schools have returned to Plato’s practice of holding lessons in an olive grove. Until they do, they will use buildings. Buildings cost money. They aren’t erected, for free and fully furnished, from the mind of Zeus.

Not only does this arbitrary and unjustifiable exclusion of capital expenditures from the reported “spending” figures wildly mislead the public about what schools are really costing them, it also misleads the public about the trends in spending. As my colleague Adam Schaeffer reveals in the chart below, spending on physical facilities has increased at a far faster rate than other expenditures (remember those Taj Mahal schools?). So by channeling David Blaine and making capital spending disappear, the Times also misrepresents real spending growth. In so doing, they undermine the public’s and lawmakers’ ability to make sound policy decisions regarding education. If the Times prominently corrects this glaring error I will be utterly shocked.

Manufactured Panic over Patriot Act

To judge by the hysterical statements issuing from elected officials—not to mention the breathless press coverage—you’d think the three little-used Patriot Act provisions set to expire unless reauthorized today are like the doomsday timer from the TV show Lost: Fail just once to keep pushing the reset button and some unspecified catastrophe is sure to result!  Under the headline “Patriot Act Battle Could Hinder Investigators,” the New York Times quotes an alarmed anonymous official calling it “unprecedented” and warning that “no one could predict what the consequences of a temporary lapse might be.” The Washington Post agrees with the need for reform, but editorializes that “[at] this late hour, it is most important to ensure that the provisions do not lapse.” The Hill uncritically quotes Senate leaders’ assertion that any lapse “would cause a major disruption to the ability of law enforcement officials to fight terrorism.”

This is not just wrong, it is rolling-on-the-floor-laughing ridiculous. A lapse of these provisions for a few days—or a few weeks—would have no significant effect. First, they’re all covered by a grandfather clause.  And contrary to what the New York Times implies, that doesn’t just mean that orders or warrants already issued under these authorities remain in effect.  Rather, as the Congressional Research Service explains (using the sunset deadline from prior to a short-term extension):

The grandfather clauses authorize the continued effect of the amendments with respect to investigations that began, or potential offenses that took place, before the provision’s sunset date.108 Thus, for example, if an individual were engaged in international terrorism on the sunset date of February 28, 2011, he would still be considered a “lone wolf” for FISA court orders sought after the provision has
expired. Similarly, if an individual is engaged in international terrorism on that date, he may be the target of a roving wiretap under FISA even after authority for new roving wiretaps has expired.

Got that? Every investigation already in progress at the time of sunset gets to keep using the old powers. Every new investigation where the illegal conduct in question began before the sunset date gets to keep using the old powers. Over the span of a few days or weeks, that’s going to cover almost every actual investigation. For the tiny number that don’t fall into those categories, if there are any at all in the space of a short lapse, investigators will be “limited” to relying on every other incredibly broad tool in the Foreign Intelligence Surveillance Act arsenal—with, of course, the option to use plain old criminal investigative authorities as well.

But even without the grandfather clause it’s unlikely a short-term lapse would have much effect, because these powers are just not used all that frequently.  Lone Wolf has never been used—so to be worried about this, you’d have to believe that in the span of the lapse, we’ll need it for the first time ever, and for some unfathonable reason unable to investigate effectively using ordinary criminal wiretaps. The business records provision—which would not totally expire but revert to a more limited form—is used about 40 time per year on average (though last year’s 96 uses set a new record), and was not used at all for the first few years after the passage of the Patriot Act. Somehow in the immediate aftermath of the 9/11 attacks, when you’d think the urgency would be greatest, this supposedly critical tool did not seem so critical: Indeed, Justice Department officials quite explicitly directed agents to start using it only because they worried that they had to demonstrate to Congress that they “needed” it. Here, too, there are always slightly more limited alternatives under criminal investigative authorities—not to mention the vastly more popular National Secuirty Letters—if records must be obtained.  Roving wiretaps have been used 22 times per year on average, meaning they constitute something like 1 or 2 percent of FISA wiretap orders each year. Roving orders allow investigators to follow a target to new phone lines or Internet accounts without returning to the court for authority, but typically at least begin with the set of facilities the target is known to be using at the time the order is issued, so even when it’s granted the roving authority is unlikely to actually come into play immediately.

So why are so many people who ought to know better pretending that even a single day without these handful of Patriot Act authorities would somehow crack the seventh seal? Because—as the previous administration learned all too well—it’s easy to get what you want from people who are terrified, from people who believe that some looming emergency has deprived them of the luxury to stop, think, debate, and consider alternatives. And if, inconveniently, there are no real emergencies at hand, it turns out that it’s surprisingly easy to manufacture one.

Pawlenty Understands Incentives, Except When It Comes to Defense

Former Minnesota governor Tim Pawlenty’s brief visit to Cato yesterday elicited some snide commentary in the blogosphere, especially this piece by the Huffington Post’s Jon Ward. Ward notes how the just-declared presidential candidate has been pretty adept at annoying audiences with his answers to questions. This one rankled the questioner, and a number of others in the auditorium.

I’m not one who is going to stand before you and say we should cut the defense budget.

[…]

I’m not for shrinking America’s presence in the world. I’m for making sure that America remains the world leader, not becoming second or third or fourth in the list.

One can sort of forgive a governor for not knowing much about foreign policy, although governors who aspire to be president should probably know that the U.S. government could cut military spending in half and still spend more than our next two potential rivals, combined.

The average governor, however, should know that people don’t feel obligated to pay for things that you are willing to give them for free. And Pawlenty does understand this when it comes to domestic spending. Check out his comments about the difference between a cash bar and an open bar at a wedding reception, via the Daily Caller:

If people have the impression that things are free, and they get to consume it endlessly, and the provider has the only incentive to provide on volume, and the myth or the lie is created that the bill goes somewhere else and that a third party pays for it, that is a system that I can tell you is doomed to failure and inefficiency. And that’s much of our government, unfortunately.

But the same principle applies in military spending. Our European and East Asian allies are consumers of the security provided by the U.S. military, and all Americans are the third party payers. As my colleague Ben Friedman likes to say, we agree to defend our allies, and they agree to let us. We shouldn’t blame them for under-providing for their own defense; it’s our fault for agreeing to do it for them.

Cato President and Founder Ed Crane’s quick take on Pawlenty’s view on defense military spending is worth repeating:

There is a difference between military spending and defense spending. The Constitution provides for a military to defend the U.S—not to democratize the world. One would hope that presidential candidates would consider America’s commitments overseas very seriously before endorsing those commitments.

Cato scholars have been out in front for years making the case for a principled, constitutional view of “defense” that does not include defending others who can and should defend themselves. If we adopted a strategy of restraint, we could responsibly make significant cuts in military spending, deliver the savings to American taxpayers, and remain the safest and most secure country on the planet. Yesterday, Tim Pawlenty took the opposite tack. He argued that the U.S. military should continue to serve as the world’s policeman/armed social worker, allow other countries to free ride, and require U.S. taxpayers to foot the bill.

Although that might be popular elsewhere in Washington, I can’t imagine it will sell in Cedar Rapids, Iowa, or Manchester, New Hampshire.

NATO: Theater of the Absurd

I don’t know what the right word is here, but there is something remarkable about the fact that the United States is currently borrowing money from China to buy precision-guided munitions to give to the Europeans to drop on Libya, isn’t there?

At AEI on Tuesday, Defense Secretary Robert Gates responded to a question about removing U.S. troops from Europe by saying that bringing them back home and having to build facilities to base them here actually would be about a wash, money-wise. That’s probably correct, but the real question is why we shouldn’t bring them home and disband their units. On that logic, Gates remarked that Europe “is one of the places where an American presence has a significant impact on our allies, on our friends, and on everybody for that matter.”

He’s right. It does have a significant impact on our allies: it encourages European countries to let their defenses atrophy to the point where they aren’t even capable of beating up on a third-rate military like Libya’s without our help. The irony here is that this phenomenon is something Gates has whined about previously. But until an American defense policymaker can put two and two together and figure out that if we defend Europe, Europeans won’t, we’re going to be stuck in this ridiculous feedback loop.

Race to the Cradle

Yesterday, Education Secretary Arne Duncan and Health and Human Services Secretary Kathleen Sebelius announced how $700 million in new Race to the Top money will be employed: $200 million to get close-loser states in the last RTTT to once again jump through hoops and grovel before their federal overloards, and $500 million for a new “early-learning” obedience contest.

The first part of this is irksome in large part because many congressional GOP members – the people who are supposed to be reining in unconstitutional, out-of-control federal adventuring – voted for the continuing resolution containing this expansion of the simultaneously worthless but dictatorial Race to the Top. The potential rewards for winning states are much smaller than the first go-round – $10 million to $50 million, versus $20 million to $700 million – so the bribery might be less powerful. But it is unconstitutional, politically charged bribery nonetheless, and it most certainly did not need to happen. No one, as far as I know, was clamoring for it, except maybe for a few people in the Obama adminsitration.

More troubling, though, is the expansion – and new focus – of RTTT into pre-kindergarten education. Apparently, Race to the Top has proven so effective in elementary and secondary education – of course, it hasn’t proven anything – that it’s clearly time to drill down even closer to the cradle. And drill it will. While the regs for the program haven’t been written yet, the legislation that created the thing stipulates that to win money states must:

  • Increase the number and percentage of low-income and disadvantaged infants, toddlers, and preschoolers who are enrolled in high-quality early learning programs;
  • Design and implement an integrated system of high-quality early learning programs and services; and
  • Ensure that any use of assessments is consistent with the recommendations of the National Research Council’s reports on early childhood.

If this isn’t a recipe for ultimate federal control of pre-K, I don’t know what is (other than an effort involving even more taxpayer dough). I mean, having the Feds define “high quality” through regulation? Mandates for states to create “integrated” pre-K systems? Dictating parameters for assessing success? What next? Babysitter-in-Chief Obama himself administering the milk and cookies – er, fat-free milk and broccoli – at snack time?

That this new RTTT exists – and made it through a GOP-majority House – sure isn’t a good sign for things to come, either in education or beyond.