Archives: 06/2011

That’s Not Healthy: Even Krugman Admits Medicare Is a Lousy Program

From today’s health care news:

  • Paul Krugman gets Medicare vouchers all wrong, but at least he begins with the premise that Medicare is a lousy program.
  • The invaluable web site HealthNewsReview.org dings the World Health Organization for announcing that cell phones may cause cancer without simultaneously releasing the evidence on which they base that conclusion.
  • Ryan Lizza thinks RomneyCare’s health insurance Exchange is a “deregulated online marketplace.”

Government Control of Language and Other Protocols

It might be tempting to laugh at France’s ban on words like “Facebook” and Twitter” in the media. France’s Conseil Supérieur de l’Audiovisuel recently ruled that specific references to these sites (in stories not about them) would violate a 1992 law banning “secret” advertising. The council was created in 1989 to ensure fairness in French audiovisual communications, such as in allocation of television time to political candidates, and to protect children from some types of programming.

Sure, laugh at the French. But not for too long. The United States has similarly busy-bodied regulators, who, for example, have primly regulated such advertising themselves. American regulators carefully oversee non-secret advertising, too. Our government nannies equal the French in usurping parents’ decisions about children’s access to media. And the Federal Communications Commission endlessly plays footsie with speech regulation.

In the United States, banning words seems too blatant an affront to our First Amendment, but the United States has a fairly lively “English only” movement. Somehow, regulating an entire communications protocol doesn’t have the same censorious stink.

So it is that our Federal Communications Commission asserts a right to regulate the delivery of Internet service. The protocols on which the Internet runs are communications protocols, remember. Withdraw private control of them and you’ve got a more thoroughgoing and insidious form of speech control: it may look like speech rights remain with the people, but government controls the medium over which the speech travels.

The government has sought to control protocols in the past and will continue to do so in the future. The “crypto wars,” in which government tried to control secure communications protocols, merely presage struggles of the future. Perhaps the next battle will be over BitCoin, an online currency that is resistant to surveillance and confiscation. In BitCoin, communications and value transfer are melded together. To protect us from the scourge of illegal drugs and the recently manufactured crime of “money laundering,” governments will almost certainly seek to bar us from trading with one another and transferring our wealth securely and privately.

So laugh at France. But don’t laugh too hard. Leave the smugness to them.

Unanimous Supreme Court Vindicates Market-Based Fees for Civil Rights Claims

It hasn’t happened that much under my watch, but it’s gratifying when the Supreme Court overwhelmingly endorses Cato’s position in a given case.  Not a 5-4 split dependent on what Justice Kennedy had for breakfast or some narrow “win” that doesn’t reach the issues we care most about, but a solid across-the-board victory for our first principles.

But such was the case in Justice Kagan’s (!) opinion for a unanimous Court in Fox v. Vice, in which Cato filed a brief last December that I discussed here:

Private lawsuits challenging government violation of civil rights are notoriously difficult and expensive to bring and win. To address such impediments to the vindication of civil rights, Congress passed a law that, among other things, awards attorneys’ fees to the prevailing parties in certain cases. As noted by the House Judiciary Committee, this was necessary because “a vast majority of the victims of civil rights violations cannot afford legal counsel, they are unable to present their cases to the courts …. [the law at issue, 42 U.S.C. § 1988] is designed to give such persons effective access to the judicial process.” Congress thus harnessed market principles, creating an economic incentive for citizens to vindicate their civil rights directly rather than relying exclusively on enforcement actions by the federal government itself.

In the case of Fox v. Vice, however, the Fifth Circuit ruled that an unsuccessful result on a threshold or procedural matter relating to part of a lawsuit could justify a court order requiring the plaintiff to pay all of the defendants’ attorney’s fees — even those expended to address other, meritorious claims. Such a rule departs from the market-oriented legal structure Congress designed and, if allowed to stand, would significantly harm the ability of plaintiffs to bring private civil rights claims.

Today the Supreme Court essentially agreed 9-0 with our view that (1) the Fifth Circuit’s decision imposes prohibitive costs on civil rights enforcement of civil rights; (2) by prematurely deeming a suit frivolous and ordering the plaintiff to pay the defendant’s fees, the lower court imposed penalties that would shut down legitimate lawsuits midstream; and (3) the Court should not permit fee awards in situations where a plaintiff dismisses a federal claim in order to secure a remand of related state-law claims to state court, contrary to the law’s purpose here.

In short, when a plaintiff’s lawsuit is for both frivolous and non-frivolous claims, a court may grant reasonable fees but only for the costs that a defendant would not have incurred but for the frivolous claims – so no fee awards even for work that goes towards both frivolous and non-frivolous claims.  You can read the opinion here

Thanks to our pro bono counsel at WilmerHale and to the organizations who joined us on our brief: the Liberty Institute, the Independence Law Center, the Institute for Justice, and the James Madison Center for Free Speech.

Obama’s Spending and Palin’s Stumbling

At the Britannica Blog I note Sarah Palin’s misstatement about President Obama’s record on the national debt, and then ask whether that’s the real problem:

Sarah Palin and Michelle Bachmann have both said in recent days that, as Palin put it, ”Look at the debt that has been accumulated in the last two years. It’s more debt under this president than all those other presidents combined.” And they’ve both been rapped by journalistic fact-checkers….

So what’s the real problem here? Is it Bachmann’s and Palin’s exaggeration of Obama’s record on deficits and debt? Or is it President Obama’s unsustainable spending?

Diamond Down

Today Nobel Prize-winning economist Peter Diamond announced he is withdrawing his nomination to the board of governors of the Federal Reserve System. 

Professor Diamond, in the pages of New York Times, blames the opposition to his nomination on both partisan politics and what he sees as a misunderstanding of the relationship between unemployment and monetary policy.  Mr. Diamond, however, is the one with a fundamental misunderstanding.  We all know unemployment is an important issue and needs to be addressed.  The question is whether it can be addressed with loose monetary policy.  Mr. Diamond apparently believes it can.  There are many who believe it cannot.  If all our labor market problems could be solved with loose money, then we’d already be at full employment.  In case Mr. Diamond didn’t notice, we aren’t.  We also have gone down this path too many times before. The belief in a long-run trade-off between unemployment and inflation has the been source of considerable economic harm.

It is interesting that Mr. Diamond does not address the legal obstacles to his nomination.  The foremost is that there can only be one board member from the same Fed district at any one time.  As Mr. Diamond notes he has been at MIT “since 1966” and not living in Chicago, as the White House claims.  Whatever his academic qualifications, by law he is prohibited from serving on the Fed Board.  If congressional Democrats don’t like the law, they can try to change it, but we should not just ignore it.  Such only breeds a contempt for the law and a belief that the laws only apply to the masses and not the elite. 

So to answer Mr. Diamond’s compaint that ” Nobel isn’t enough,” I would answer: Exactly. A Nobel does not place one above the law.  Sorry, Professor, you’re going to have to live with the same rules that apply to the rest of us.

Broken Windows All Over

It reminds us of the need to repeat, and repeat, and repeat the same messages.  Tornadoes, diseases, and wars are not good for “the economy.”  They may be good for hardware stores, doctors, and military contractors, but not for the rest of us.  Still, the New York Times couldn’t help but tell us on the front page that “Reconstruction Lifts Economy After Disasters.”

Frederic Bastiat exploded the fallacy long ago.  Here’s a modern (and shorter) retelling:

Congress Debates the Libya War

Better late than never.

The House of Representatives today debated two different resolutions purportedly aimed at forcing the Obama administration to comply with its statutory and constitutional obligations to secure formal authorization for the ongoing military campaign in Libya.

I say “purportedly” because it seems quite clear that the real intent of House Speaker John Boehner’s resolution was to lure away a sufficient number of Republicans who otherwise would have been inclined to vote for Rep. Dennis Kucinich’s (D-OH) measure. Whereas the Kucinich resolution would have compelled the Obama administration to withdraw from all military operations in Libya within the next 15 days, Boehner’s resolution bars the administration from deploying ground troops, but allows current operations to continue.  The resolution stipulates that the administration must explain what the U.S. military is actually doing, and calls on the president to justify his decision to launch the campaign without first obtaining congressional approval.  Massachusetts Democrat Jim McGovern suggested that a strongly worded press release would have the same effect. Others noted that similar language has already been written into the defense authorization passed late last week.

Boehner’s gambit worked, for now. His resolution carried, with overwhelming GOP support. The House failed to adopt the Kucinich measure, although more Republicans than Democrats voted for the bill.  The detailed vote totals for both measures signal a growing willingness on the part of even many Republicans to question the country’s many wars.

Indeed, many were prepared to go beyond merely voting for the measure; about a dozen House Republicans (including resolution co-sponsor Dan Burton of Indiana) spoke out in favor of the Kucinich resolution. Many of these House members seemed quite eager to reassert their authority and to defend the principle of legislative control over the war power, even if that meant allying with one of the most liberal members of Congress.

At one level, it shouldn’t surprise that a number of Republicans voted for the Kucinich resolution. The war is unpopular with the American people, and their elected representatives are reflecting that sentiment. A number of speakers this morning made this point explicitly. But leaving public opinion aside, and conceding that the constitutional question has been practically rendered moot by the parade of presidents and Congresses who have summarily ignored its clear intent, there are ample opportunities for questioning the Libya war on strategic grounds, and not many solid arguments that prove the war to be serving a vital national interest.

The least compelling argument in support of the Libya intervention, in my mind, is the one offered up by Defense Secretary Robert Gates earlier this week, and repeated several times  in the floor debate this morning: we need to stay in Libya, not because it is in our national interest to do so (it isn’t), and not because the Libyan civil war poses a clear and present danger to U.S. security (it doesn’t); rather, we are waging a war in Libya because our allies want us to. To leave them holding the bag, as Rep. Mike Rogers (R-MI) explained this morning, would betray a sacred trust. Boehner echoed those sentiments, warning against a vote for the Kucinich resolution because our NATO allies have stood by us in Afghanistan, and we owe it to them to do the same in Libya.

I discussed why this rationale is particularly flimsy over at TNI’s The Skeptics earlier today, and it is featured in a just-released Cato video. As the ever-quotable Ben Friedman explains, “we should have allies for war, not wars for allies.” Meanwhile, Justin Logan notes the absurdity of U.S. taxpayers borrowing money from China to buy precision-guided munitions for Europeans to drop on Libya. If that sounds like a Rube Goldberg foreign policy, it is.