Archives: January, 2012

Open Government Research—-or Maybe Private Ordering

By
Jim Harper

I came across an interesting information policy scuffle yesterday. It’s worth knowing about in general, and I’ll share my liberconoclastic view of things below.

Congressman Darrell Issa (R-CA) has introduced a bill called the Research Works Act. The consensus is that it’s meant to keep government-funded research from being published for free. This would keep the publication of that research going through scholarly and scientific journals, neatly maintaining profits for an industry that society might not need while restricting public access to research the U.S. taxpayer paid for. (I have my doubts that the language of the bill actually successfully does that, but that’s inconsequential.)

Here’s a good opponent-side article on the bill. The Association of American Publishers likes the bill.

On a discussion list, Jonathan Band articulated how the business of government-funded research works. It’s helpful to know if you haven’t focused on this area before:

  1. Federal and state governments, directly or indirectly, pay salaries of researchers.
  2. Federal government awards grants for specific research projects. Average NIH grant is around $500,000.
  3. Researcher performs the research and writes a draft article about it.
  4. Researcher submits the draft article to publisher.
  5. Publisher requires the researcher to transfer the copyright in the draft article (for free) before it will touch the draft.
  6. Publisher emails the draft article to other researchers in the field.
  7. These “peers” review the article for free as part of their contribution to the field. (As noted in step 1, their salaries are paid by government.)
  8. The researcher revises the draft in response to the peers’ comments.
  9. Publisher does copy editing and publishes article. Publishers acknowledge that their costs per article are under $5,000.
  10. Publisher sells subscriptions to research libraries, which ultimately are largely government funded.

“In other words,” Band concludes, “the public invests $500,000 in the creation of the article, and the publisher invests under $5,000. Yet, the publisher recoups all the profits from the sale of the article. Profit margins for STM publishers exceed 40%.”

I’m inclined to share these concerns. It appears to be a classic example of regulatory controls—in this case, on information—creating supra-normal rents for a particular business sector.

My conclusion is a little different, though. You see, to me, what Band describes is a situation where researchers—who nobody is paying their own money to hire—are doing research that nobody is paying their own money to produce, which results in journal articles that nobody is paying their own money to read. Privatized profit from government-funded research is as anathema to me as the next open government advocate, but I would solve the problem by letting private ordering decide where research dollars go.

Is this a retrograde argument against research? Who could possibly be against research? Publicly funded research is like nutritious vegetables for a healthy modern society!

Well, I’m against researchers, research, and research results that nobody pays their own money for because it’s demanded by political actors responding to political cues. I would rather have research dollars meted out through private ordering, because then research dollars would go to where they’re most likely to produce the scientific and intellectual gains society actually wants.

Tradeoffs are ineluctable: Money spent on government research takes away from private research, or from other priorities such as reducing debt, or reducing taxes so I can spend my money on things like donating to charity or to the impoverished individual of my choice.

Topics: 
Telecom, Internet & Information Policy

EEOC: Hiring Only High School Grads May Violate ADA

By
Walter Olson

You may have taken time off from work last month, but the federal Equal Employment Opportunity Commission (EEOC) was quite busy. As the Bureau of National Affairs and the Washington Times report, it posted to its website an informal advisory letter that has been getting a lot of businesspeople’s attention. To quote the BNA:

“[I]f an employer adopts a high school diploma requirement for a job, and that requirement ‘screens out’ an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of ‘disability,’ the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma,” EEOC said.

Further, to satisfy the ADA, the employer must show that a job applicant with a disability cannot perform the job’s essential functions with or without a reasonable accommodation, even if he or she does not meet a standard that is job-related and consistent with business necessity, the commission added.

Employers require high school diplomas as prerequisites for many jobs. Yet if the matter gets to court, it can be quite expensive and cumbersome for them to establish that such a screen is “job related and consistent with business necessity” — necessity being of course a legal term of art.

Some suggest the policy is not all that new or special since the EEOC has long taken the position that diploma requirements must be “job related and consistent with business necessity” if they serve to screen out members of minority groups less likely to have graduated from high school. But diploma requirements aren’t actually challenged very often on racial-impact grounds, perhaps because correlations between ethnicity and high school graduation rates are shifting and contingent. The new wrinkle this time — that the protected group are the learning-disabled themselves — makes a big difference. The diploma’s very purpose, after all, is to signal that its holder has achieved a level of proficiency that some with severe learning disability will find forever out of their reach.

“If I were hiring a janitor,” notes columnist Amy Alkon, “I’d need that janitor to be able to read the back of bottles of chemicals.” But it’s growing ever clearer that the point of the game is to attack employers precisely for wanting to hire candidates of ability.

Topics: 
Law and Civil Liberties, Regulatory Studies

Iran’s Bluster and Weakness

By
Benjamin H. Friedman

Iran this week punctuated 10 days of naval exercises in the Strait of Hormuz and threats to close it with a warning to U.S. Navy ships to stay out of the Persian Gulf, which requires passage through the strait. The tough talk may have temporarily juiced oil prices, but it failed to impress militarily. Recent news reports have cited U.S. military officials, defense analysts, and even an anonymous Iranian official arguing that Iran likely lacks the will and ability to block shipping in the strait. That argument isn’t new: Iran’s economy depends on shipments through the strait, and the U.S. Navy can keep it open, if need be. What’s more, the Iranians might be deterred by the fear that a skirmish over the strait would give U.S. or Israeli leaders an excuse to attack their nuclear facilities.

The obviousness of Iran’s bluster suggests its weakness. Empty threats generally show desperation, not security. And Iran’s weakness is not confined to water. Though Iran is more populous and wealthier than most of its neighbors, its military isn’t equipped for conquest. Like other militaries in its region, Iran’s suffers from coup-proofing, the practice of designing a military more to prevent coups than to fight rival states. Economic problems and limited weapons-import options have also undermined its ability to modernize its military, while its rivals buy American arms.

Here’s how Eugene Gholz and Daryl Press summarize Iran’s conventional military capability:

Iran … lacks the equipment and training for major offensive ground operations. Its land forces, comprising two separate armies (the Artesh and the Islamic Revolutionary Guard Corps), are structured to prevent coups and to wage irregular warfare, not to conquer neighbors. Tehran’s air force is antiquated, and its navy is suited for harassment missions, not large amphibious operations across the Gulf. Furthermore, a successful invasion is not enough to monopolize a neighbor’s oil resources; a protracted occupation would be required. But the idea of a sustainable and protracted Persian Shi’a occupation of any Gulf Arab society—even a Shi’a-majority one like Bahrain—is far-fetched.

Despite Iran’s weakness, most U.S. political rhetoric—and more importantly, most U.S. policy—treat it as a potential regional hegemon that imperils U.S. interests. Pundits eager to bash President Obama for belatedly allowing U.S. troops to leave Iraq say it will facilitate Iran’s regional dominance. The secretary of defense, who says the war in Iraq was worth fighting, wants to station 40,000 troops in the region to keep Iran from meddling there. Even opponents of bombing Iran to prevent it from building nuclear weapons regularly opine on how to “contain” it, as if that required great effort.

Some will object to this characterization of Iran’s capabilities, claiming that asymmetric threats—missiles, the ability to harass shipping, and nasty friends on retainer in nearby states—let it punch above its military weight. But from the American perspective—a far-off power with a few discrete interests in the region—these are complications, not major problems. Our self-induced ignorance about Iran’s limited military capabilities obscures the fact that we can defend those interests against even a nuclear Iran at far lower cost than we now expend. We could do so from the sea.

The United States has two basic interests in the region. The first is to prevent oil price spikes large enough to cause economic trouble.  Although it’s not clear that an oil price shock would greatly damage the U.S. economy, we don’t want to chance it. That is why it makes sense to tell Iran that we will forcibly keep the strait open.

Iranian nuclear weapons would merely complicate our efforts to do so. For safety, both naval ships clearing mines there and tankers would want Iranian shores cleared of anti-ship cruise missiles and their radars, although doing so is probably not necessary to keep strait cargo moving. The possibility of nuclear escalation makes attacking those shore-based targets tougher. But the risk of escalation is mostly Iran’s. By attacking U.S. ships, Iran would risk annihilation or a disarming first strike. Given that, it is hard to see how nuclear weapons make closing the strait easier.

The second U.S. goal in the region is to prevent any state from gathering enough oil wealth to extort us or build a military big enough to menace us. The vastness of our military advantage over any combination of Middle Eastern states makes that fairly easy to prevent. The difficulty of Iran credibly threatening to stop exporting the chief source of its wealth makes the problem even smaller. Indeed, the odds of Iran becoming an oil super-state by conquest are so low that we probably do not need to guarantee any nearby state’s security to prevent it. For example, if Iran swallowed and magically pacified Iraq, the resulting state, while a bad thing, would create little obvious danger for American safety or commerce. Still, if we did defend Iraq’s borders, carrier-based air power along with Iraqi ground forces would probably suffice to stop Iranian columns at the border. The same goes for Kuwait and Saudi Arabia.

Because threats of nuclear attack better serve defensive goals, an Iran armed with nukes would not meaningfully change this calculus. Iran’s neighbors would not surrender their land just because Iran has nuclear weapons, if history is any guide. And U.S. guarantees of retaliatory strikes could back them up, if necessary. Nukes might embolden Iran to take chances that a state worried about invasion would not. But the difficulty of subduing a nationalistic country of 75 million people already deters our invasion.

The current contretemps with Iran is no reason for “maintaining our military presence and capabilities in the broader Middle East,” as the secretary of defense would have it. Removing U.S. forces from Iran’s flanks might strengthen the hand of the Iranian minority opposed to building nuclear weapons, though it is doubtful that alone would be enough to let them win the debate anytime soon. But even if Iran does build nuclear weapons, we can defend our limited interests in the region from off-shore.

Cross-posted from the the Skeptics at the National Interest.

Topics: 
Foreign Policy and National Security

Obamacare at the Supreme Court: Can the Individual Mandate Be Severed?

By
Ilya Shapiro

The Obamacare litigation has arrived on the big stage: the Supreme Court. The first opportunity for those opposing the legislation to weigh in comes on the issue that will be the last one the Court considers, “severability.” That is, if the individual mandate is struck down as unconstitutional, what (if any) of the rest of the law must fall with it?

On one hand, even in the absence of a severability clause, the Court should avoid striking down an entire law when only one small part is declared unconstitutional, particularly if the remainder of the law is unrelated to the defective bit (imagine an omnibus spending bill). On the other, the Court cannot go provision-by-provision and execute some sort of judicial line-item veto (creating a new law completely unrecognizable from what Congress enacted).

Many think that the rules in this area are unclear, but the analysis boils down to two questions:

  1. Can the remainder “fully operate as law”?
  2. Would Congress have passed the remainder?

In our brief, joined by the Texas Public Policy Foundation and co-authored by Prof. Richard Epstein, we examine these questions with a focus on Titles I and II of the law, which contain all the key provisions relating to Obamacare’s fundamental transformation of the national health care system: the requirement that insurers cover people with preexisting conditions (“guaranteed issue”), the requirement that premiums be assessed by a “community rating” formula, the creation of state insurance exchanges, Medicaid expansion, premium supports, etc.

Put simply, knocking out the individual mandate renders this whole package inoperable; the brave new health care world would not work as a matter of basic economic principle. As policy experiments in various states have proven, without an individual mandate, guaranteed-issue and community-rating provisions foster a “death spiral” because healthy people wait until they get sick or injured before buying under-priced insurance that they cannot then be refused, causing premiums to increase and costs to explode. The individual mandate is thus so interwoven with other crucial provisions that it cannot be excised without destroying the entire Obamacare structure.

Appreciating this mechanism, the government has conceded that guaranteed-issue and community-rating are indeed inextricably tied to the individual mandate—it has to, given its constitutional claim that the mandate is a necessary means of implementing a lawful regulation of interstate commerce. But a close analysis of the law reveals that the interoperability goes much further. And Congress knew this; there is no way it would have otherwise passed this law.

Thus, to aid the plaintiffs’ arguments regarding broader non-severability, our brief shows that the individual mandate is so central to the overall legislation that if it falls, those key Titles I and II must go with it.

The Court will consider the severability question for 90 minutes on March 28, the last of the three consecutive days it hears oral argument in the Obamacare cases.

Topics: 
Government and Politics, Health Care, Law and Civil Liberties

A Decade of No Child Left Behind

By
Caleb O. Brown

Ten years later, it’s clear that the No Child Left Behind law is a failure. Instead of driving better academic performance of K-12 students, NCLB has cost many billions of dollars with no discernible positive impact on student achievement. Worse, the law has laid some of the groundwork necessary for the adoption of national standards, another step toward a fed-approved and standardized K-12 curriculum, an outcome many of the law’s former proponents explicitly oppose.

Neal McCluskey argues in this new video that the only reasonable (and Constitutional) course for the feds now is to simply bow out of K-12 education completely.

Topics: 
Education and Child Policy

Michael Gerson Just Can’t Get Enough of Libertarianism

By
David Boaz

Poor Michael Gerson. The former speechwriter for George W. Bush writes about libertarianism more than any other major columnist. And yet, after at least six years of attacks, he still can’t grasp the concept. Take today’s column defending Rick Santorum against “anti-government activists.” I pointed out his error in calling libertarians “anti-government” in 2010:

Libertarians are not against all government. We are precisely “advocates of limited government.” Perhaps to the man who wrote the speeches in which a Republican president advocated a trillion dollars of new spending, the largest expansion of entitlements in 40 years, federal takeovers of education and marriage, presidential power to arrest and incarcerate American citizens without access to a lawyer or a judge, and two endless “nation-building” enterprises, the distinction between “limited government” and “anti-government” is hard to see. But it is real and important.

This time he includes me as his example of an “anti-government activist” and purports to quote my objection to Santorum:

David Boaz of the Cato Institute cites evidence implicating him in shocking ideological crimes, such as “promotion of prison ministries” and wanting to “expand colon cancer screenings for Medicare beneficiaries.”

The first quotation there is from Jonathan Rauch’s review of Santorum’s book, It Takes a Family, and the second is from a New York Times article on Santorum’s campaign brochure listing all the pork he’d brought home to Pennsylvanians. As for Rauch’s list of Santorum’s ideas for an activist federal government, here’s what I quoted:

In his book he comments, seemingly with a shrug, “Some will reject what I have to say as a kind of ‘Big Government’ conservatism.”

They sure will. A list of the government interventions that Santorum endorses includes national service, promotion of prison ministries, “individual development accounts,” publicly financed trust funds for children, community-investment incentives, strengthened obscenity enforcement, covenant marriage, assorted tax breaks, economic literacy programs in “every school in America” (his italics), and more. Lots more.

Out of that list Gerson picks “promotion of prison ministries” as a dismissal of my concerns. Some readers might well think that government sponsorship of Christianity in prisons is problematic enough. But others might think that you don’t have to be “anti-government” to oppose the three new government transfer programs that immediately follow the reference to prison ministries.

More importantly, though, Gerson ignores my main criticism of Santorum. In 749 words rebutting the libertarian criticism of Santorum, Gerson never actually names it. Here’s the core point that Gerson didn’t deign to address:

Santorum had already dismissed limited government in theory. Promoting his book, he told NPR in 2006:

One of the criticisms I make is to what I refer to as more of a libertarianish right. You know, the left has gone so far left and the right in some respects has gone so far right that they touch each other. They come around in the circle. This whole idea of personal autonomy, well I don’t think most conservatives hold that point of view. Some do. They have this idea that people should be left alone, be able to do whatever they want to do, government should keep our taxes down and keep our regulations low, that we shouldn’t get involved in the bedroom, we shouldn’t get involved in cultural issues. You know, people should do whatever they want. Well, that is not how traditional conservatives view the world and I think most conservatives understand that individuals can’t go it alone. That there is no such society that I am aware of, where we’ve had radical individualism and that it succeeds as a culture.

He declared himself against individualism, against libertarianism, against “this whole idea of personal autonomy, … this idea that people should be left alone.” And in this 2005 TV interview, you can hear these classic hits: “This is the mantra of the left: I have a right to do what I want to do” and “We have a whole culture that is focused on immediate gratification and the pursuit of happiness … and it is harming America.”

Does Gerson think that that is a good statement of American conservatism? Is that what he thinks the Republican party should stand for? If so, I invite him to say so — as Santorum does — instead of using a column in one of the nation’s most important newspapers to attack straw men.

At least he does understand that libertarianism is not conservatism but rather “is actually a species of classical liberalism, not conservatism — more directly traceable to John Stuart Mill than Edmund Burke or Alexis de Tocqueville. ” Also traceable to the American Founders and the Declaration of Independence. And he’ll find three selections from Tocqueville in The Libertarian Reader.

Gerson writes, “Oppressive, overreaching government undermines these value-shaping institutions.” And then he goes on to endorse social engineering in the tax code, the war on drugs, bans on “obscenity,” government transfers to charities and businesses, and by implication all the programs that Rauch noted in Santorum’s book.

So maybe the most important line in Gerson’s essay is the headline:

Rick Santorum and the return of compassionate conservatism

He’s saying that if you liked the Bush administration, you’ll like Santorum. But those of us who didn’t like, as I noted above, a trillion dollars of new spending, the largest expansion of entitlements in 40 years, federal takeovers of education and marriage, presidential power to arrest and incarcerate American citizens without access to a lawyer or a judge, and two endless “nation-building” enterprises will not want to repeat the experience.

Rick Santorum has declared himself against  “this whole idea of personal autonomy, … this idea that people should be left alone,” this fundamental American idea of the pursuit of happiness. What do conservatives not get about that?

Topics: 
Government and Politics

FDR and Executive Order 9066

By
Tim Lynch

Gordon Hirabayashi died on January 2, at age 93.

The Washington Post obituary notes that the  federal government put him in a prison during the 1940s. President Franklin Roosevelt issued many decrees, but the one that would lead to Hirabayashi’s imprisonment, Executive Order 9066, said that thousands of Americans residing on the West Coast had to leave their jobs and homes and promptly report to certain prison camps (“relocation centers”).  The feds said actual proof of wrongdoing was unnecessary.

Hirabayashi refused to go along with the program, so he was prosecuted for disobeying the president and jailed. The courts rejected his argument that FDR had exceeded the powers of his office.  In an interview in 1985, Hirabayashi looked back on his ordeal and said, “My citizenship didn’t protect me one bit.  Our Constitution was reduced to a scrap of paper.”

Even though there are written safeguards concerning due process, habeas corpus, and jury trial, presidents will sometimes assert the power to override all that. FDR did it. George W. Bush did it. And Barack Obama wants to reserve the option to do it.

On January 17, Cato will be hosting a book forum about FDR’s war policies and civil liberties.

For related Cato scholarship, go here and here.

Topics: 
Law and Civil Liberties

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