Archives: 06/2011

Driverless Nevada

In Gridlock, I argued that the next great improvement in human mobility will come not from rail transit or high-speed rail but driverless cars. Companies such as GM and Volkswagen have invested heavily in research and development of cars that can drive themselves, and I expected that they would soon begin lobbying state legislatures to change laws to allow such driverless cars on the road.

As it turned out, the lobbying was done not by an auto company but by Google, which has tested driverless cars (developed by the same Stanford University engineers who designed Volkswagen’s driverless cars) throughout the state of California. Google decided Nevada would be a good state to start legalizing driverless cars, and last week the Nevada legislature agreed.

By coincidence, Volkswagen has announced that it will soon offer semi-driverless cars for sale. The cars will include a “temporary auto pilot” that can stay within speed limits, steer within lane indicators, pass slow-moving vehicles, and avoid collisions on the highway. The cars will not be able to navigate city streets, but that will come soon.

The introduction of true driverless cars will significantly expand personal mobility because anyone—not just people over 16 who can pass a driver’s test—will be able to use them. Driverless cars will reduce congestion and improve safety. The new mobility will significantly change the way we live. And the cars will render obsolete any and all rail transit and moderate-speed rail lines now being planned or under construction long before taxpayers finish paying the heavy debts incurred to build such lines.

Court Extends Commercial Speech Protections

In an important but little-noted First Amendment case decided Thursday, Sorrell v. IMS Health Inc., the Supreme Court correctly invalidated a particular regulation of commercial speech but unfortunately left intact the general doctrine that distinguishes and privileges noncommercial speech.  Justice Kennedy authored the 6-3 decision (joined not just by the “conservatives” but also Justice Sotomayor) that struck down a Vermont law prohibiting the sale of information about doctors’ prescription histories as making viewpoint-based speech restrictions in violation of the First Amendment. 

In so ruling, the Court effectively affirmed a Second Circuit decision (involving a similar Connecticut law) I discussed previously.  Cato filed amicus briefs in both the Second Circuit and Supreme Court.

The Supreme Court first found that Vermont’s law is subject to heightened scrutiny—not simply the “intermediate” scrutiny typically applied to restrictions on commercial speech—because, on its face, it enacts content- and speaker-based burdens on protected expression.  It then rejected the two justifications for the statute the state had asserted: (1) that it is necessary to protect medical privacy, including physician confidentiality, avoidance of harassment, and the integrity of the doctor-patient relationship; and (2) that it is integral to the achievement of policy objectives—namely, improved public health and reduced healthcare costs.

That’s fine as far as it goes, but it leaves open the possibility for broader restrictions on speech, such as if a state wanted to prohibit all prescription-related speech, not just that by data-mining companies to pharmaceutical companies who would use it to tailor their marketing efforts.  Our Supreme Court brief, in contrast, argued that the Court should abandon the unworkable distinction between commercial and noncommercial speech established in the 1980 case of Central Hudson Gas & Electric v. Public Service Commission

The Central Hudson rule should be abandoned in favor of strict scrutiny of all speech restrictions because innovative and valuable commercial expression deserves full First Amendment protection.  For more on our preferred approach, see this blogpost.

Still, even as Sorrell v. IMS Health doesn’t entirely eliminate the commercial speech doctrine, the Court does make clear that information—even commercial information sold for commercial purposes—is more than a mere commodity (Vemont had likened it to beef jerky).  Commercial speech provides valuable information to the marketplace; by definition, the more such information consumers receive, the better-informed decisions they can make.

I could end my analysis there, but one amusing postscript is that the dissent, written by Justice Breyer and joined by Justices Ginsburg and Kagan, resorts to argument ad Lochneram.  That is, just as one should discount any political argument invoking Hitler and Nazis, a legal argument invoking the alleged horrors of the Lochner era (striking down regulations on economic liberty grounds) is inherently suspect.  Indeed, Justice Kennedy dismisses Breyer’s concern by noting that while the enactment of “Mr. Herbert Spencer’s Social Statics” is not at issue—alluding to Oliver Wendell Holmes’s Lochner dissent—the duly binding First Amendment is.

In any event, the battle line between the majority and dissent is clear—and it is telling that Justices Sotomayor and Kagan are on opposite sides.  (Recall that the scope of First Amendment protection was an issue in Justice Kagan’s confirmation hearings.)  If indeed Justice Breyer’s prediction that this decision “opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message,” this case may have revealed not the views of Justice Kennedy—who is strongly libertarian on speech issues—but the true First Amendment colors of President Obama’s two appointees.

Thanks to Cato legal associate Caitlyn Walsh McCarthy for her help with our briefing and this blogpost.

$1 Trillion in Phony Spending Cuts?

In the Washington Post Friday, Ezra Klein partly confirmed what I fear the Republican strategy is for the debt-limit bill—get to the $2 trillion in cuts promised through accounting gimmicks. As I have also noted, Klein says that there is about $1 trillion in budget “savings” ($1.4 trillion with interest) to be found simply in the inflated Congressional Budget Office baseline for Iraq and Afghanistan. Klein says, “I’m told that a big chunk of these savings were included in the debt-ceiling deal” that Rep. Eric Cantor (R-VA) and Sen. Jon Kyl (D-AZ) are negotiating with the Democrats.

Republican leaders have promised that spending cuts in the debt-limit deal must be at least as large as the debt-limit increase, which means $2 trillion if the debt-limit is extended to reach the end of 2012. In a Daily Caller op-ed, I noted that you can find $1 trillion in “savings” from this phony war accounting and another $1 trillion by simply pretending that non-security discretionary will stay flat over the next decade.

There is more evidence that few, if any, real spending cuts are being discussed. One clue is that the media keeps quoting Joe Biden essentially saying that it was easy to reach agreement on the first $1 trillion in cuts.

The other suspicious thing is that the media keeps floating trial balloons for specific tax hikes, but I’ve seen very few trial balloons for specific spending cuts. Friday, the Washington Post story on the debt discussions mentions all kinds of ideas for raising taxes on high earners. A few days ago, news stories revealed that negotiators were talking about changing tax bracket indexing to create annual stealth increases in income taxes. The only item I’ve seen being discussed on the spending side is trimming farm subsidies.

If Republican and Democratic lawmakers were really discussing major spending cuts, then the media would be full of stories mentioning particular changes to entitlement laws to reduce benefits and stories about abolishing programs widely regarded as wasteful, such as community development grants.

I hope I’m wrong, but this is starting to look a lot like the phony $100 billion spending cut deal from earlier this year.

Sean, Rush, Greta, Glenn, Bill: When you get Republican leaders on your shows, get them to promise that they won’t use phony baseline accounting like war costs to reach the $2 trillion in cuts. The budget and the nation desperately need real cuts and real government downsizing.

Where Is Barack Obama Now That We Need Him?

Back in the day (February 2008), a senator named Barack Obama said, “I opposed this [Iraq] war in 2002. I will bring this war to an end in 2009. It is time to bring our troops home.”

The following month, under fire from Hillary Clinton, he reiterated, ”I was opposed to this war in 2002… . I have been against it in 2002, 2003, 2004, 5, 6, 7, 8 and I will bring this war to an end in 2009. So don’t be confused.”

Indeed, in his famous “the moment when the rise of the oceans began to slow” speech on the night he clinched the Democratic nomination, he also proclaimed, “I am absolutely certain that generations from now we will be able to look back and tell our children that … this was the moment when we ended a war.”

So now the Congressional Budget Office looks at the plans of President Barack Obama and reports:

In 2010, the number of U.S. troops (active-duty, reserves, and National Guard personnel) deployed for war-related activities averaged about 215,000, CBO estimates. In the alternative scenario presented here, the number of military personnel deployed for war-related purposes would decline over a five-year period to an average of 180,000 in 2011, 130,000 in 2012, 100,000 in 2013, 65,000 in 2014, and 45,000 in 2015 and thereafter.

That would indeed be an improvement. But it just doesn’t seem like “I will bring this war to an end in 2009 [and] bring our troops home.”

(H/T [on the CBO quote, not the despairing memory of the original Obama]: Ezra Klein)

Update: In the Sunday Washington Post, David Fahrenthold found some more differences between Senator Obama and President Obama on the debt limit, judicial nominations, and war powers.

Two Votes on Libya

The House of Representatives has taken two votes on the war in Libya. In the first, the House voted 295 to 123 against authorizing the war. 70 Democrats voted or 36 percent of the caucus voted against authorization. That’s pretty impressive given that the Secretary of State made a personal appeal to her fellow partisans prior to the vote. Eight Republicans said “yes” to war in Libya, a smaller number than I would have expected. Partisanship, deficits, and elections do matter, I suppose.

On the other hand, the House also refused to cut off most funding for the war by a vote of 180-238.  Some 36 Democrats voted to cut off most funding; 144 Republicans joined them. This bill was said to be gaining strength but in the end, not nearly enough votes came over. It may be that the Obama administration will think this vote was better than expected and take heart.

Nonetheless, these votes may make a difference, even though they do not force the President to do anything in particular. A new book, After the Rubicon, by Douglas Kriner argues that Congress can affect how and how long a president pursues an unauthorized war. Specifically, congressional resistance to a war can help turn the public against a president’s policy. (Something like that happened in Somalia.) A new poll shows the war in Libya is losing public support: 46 percent of the public now disapprove of the endeavor.

Over the next few weeks, the Senate will take up the question of Libya. Will the President find a majority in that chamber to vote against the direction of public opinion?  Or will a majority of senators heed the public’s view of this unpopular, unauthorized war?

Hayek on C-SPAN, Gillespie and Welch at the Hayek Auditorium

Sunday night at 8 on C-SPAN: Brian Lamb interviews Russell Roberts and John Papola about their Hayek-Keynes rap videos.

And Thursday afternoon at 4: Nick Gillespie and Matt Welch of Reason magazine, Reason.tv, Reason.com, and the vast Reason enterprises launch their new book The Declaration of Independents: How Libertarian Politics Can Fix What’s Wrong with America at a Cato Book Forum with a multimedia presentation in the Hayek Auditorium.

“In a world where our [political] choices are limited to John Boehner and Nancy Pelosi, the survivors envy the dead,” they write. But that’s not the world they actually see. They argue that despite our stunted politics, despite national bankruptcy, despite the war on drugs, revolutionary innovators have changed our world over the past 40 years: Vaclav Havel and the Plastic People of the Universe, Herb Kelleher and Southwest Airlines, Tiger Woods and the breakdown of categories, the personalization of media, and much more. It’s just politics that is resisting freedom and choice. And now millions of voters are trying to break out of stagnant political choices. Gillespie and Welch see a “future so bright, we gotta wear shades.”

At Marginal Revolution, Tyler Cowen writes, “This is the up-to-date statement of libertarianism. Not warmed-over right-wing politics, but real, true-blooded libertarianism in the sense of loving liberty and wanting to find a new path toward human flourishing.” Come see if he’s right.

Register here.

This Week in Government Failure

Over at Downsizing the Federal Government, we focused on the following issues this past week:

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