Archives: January, 2012

Supreme Court Should Use Texas Redistricting Case to Reconsider Voting Rights Act

By
Ilya Shapiro

The decennial redrawing of electoral districts consistently produces extensive litigation. The most notable cases this cycle come, as they often have, from Texas.

A number of activist groups challenged the Texas legislature’s maps for state house, state senate, and congressional districts, alleging racial discrimination under Section 2 of the Voting Rights Act in a special three-judge federal district court in San Antonio. At the same time, Texas is seeking in another three-judge district court in D.C. the “preclearance” of its maps that it needs to implement them under the VRA’s Section 5.

Enacted in 1965 to combat pervasive discrimination against black voters in the South, the VRA has exceeded expectations in excising that shameful phenomenon. Its application now, however, stymies the orderly implementation of free and fair elections, particularly in jurisdictions subject not only to the general prohibition on race-based voter discrimination, but also the Section 5 preclearance requirement.

Originally conceived as a check on states where discrimination was prevalent in the 1960s, preclearance requires certain jurisdictions to obtain federal approval before changing any election laws. (The Section 5 list is bizarre: six of the eleven states of the Old Confederacy — and certain counties in three others — plus Alaska, Arizona, and some counties or townships in five other states as diverse as New Hampshire and South Dakota. Curiously, (only) three New York counties are covered, all boroughs in New York City. What is going on in the Bronx, Brooklyn, and Manhattan that is not in Queens or Staten Island?) To obtain preclearance, proposed changes may not result in “retrogression,” a reduction in minority voters’ ability to elect their “preferred” candidates.

Section 5 was originally a valuable tool in the fight against systemic disenfranchisement, but now facilitates the very discrimination it was designed to prevent. Indeed, the prohibition on retrogression effectively requires districting that assures that minority voters are the majority in a set number of districts — an inherently race-conscious mandate. The law, most recently renewed in 2006 for another 25 years, is based on deeply flawed assumptions and outdated statistical triggers, and flies in the face of the Fifteenth Amendment’s requirement that all voters be treated equally.

In any event, because the D.C. court here had not yet ruled on preclearance, the San Antonio court felt obligated to draw “interim” maps for use pending final adjudication of both the Section 2 and 5 cases. Texas filed an emergency appeal with the Supreme Court, arguing that the lower court insufficiently deferred to the Texas legislature’s maps. Now on an expedited briefing and argument schedule, Cato filed an amicus brief supporting neither side and arguing that this case demonstrates all that is wrong with the VRA as it currently exists — highlighting the tension between the VRA and the Constitution and the practical difficulties that conflict engenders for election administration.

Put simply, the VRA’s success has undermined its continuing viability; courts and legislatures struggle mightily and often fruitlessly to satisfy both the VRA’s race-based mandate and the Fifteenth Amendment’s equal treatment guarantee. We also point out that Section 5’s selective applicability precludes the establishment of nationwide districting standards, confounding lower courts and producing different, often contradictory, treatment of voting rights in different states — in large part because Sections 2 and 5 themselves conflict with each other. We note that regardless of the outcome of this litigation, it is unlikely that Texas will have fully legal electoral maps in time to administer the 2012 elections in a fair and efficient manner.

These difficulties — constitutional, statutory, and practical — disadvantage candidates, voters, legislatures, and courts, and undermine the VRA’s great legacy of vindicating the voting rights of all citizens. The Court should thus schedule this case for broader reargument on the constitutionality of the Voting Rights Act as presently conceived.

The Court will hear argument in Perry v. Perez on January 9.  See SCOTUSblog’s coverage for more on the case.

Topics: 
Government and Politics, Law and Civil Liberties

Rick Santorum v. Limited Government

By
David Boaz

With former senator Rick Santorum suddenly attracting attention in Iowa, it’s time to dig up some of our previous reporting on Santorum.

In 2006, as Santorum campaigned his way to an 18-point loss in his Senate reelection race, the New York Times reported that he…

…distributed a brochure this week as he worked a sweltering round of town hall meetings and Fourth of July parades: “Fifty Things You May Not Know About Rick Santorum.” It is filled with what he called meat and potatoes, like his work to expand colon cancer screenings for Medicare beneficiaries (No. 3), or to secure money for “America’s first ever coal to ultra-clean fuel plant” (No. 2)….

He said he wanted Pennsylvanians to think of him as a political heir to Alfonse M. D’Amato of New York, who was known as Senator Pothole for being acutely attuned to constituent needs.

So … the third-ranking Republican leader in the Senate wanted to be known as a porker, an earmarker, and Senator Pothole.

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.”

No wonder Jonathan Rauch wrote in 2005 that “America’s Anti-Reagan Isn’t Hillary Clinton. It’s Rick Santorum.” Rauch noted:

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.

Rauch concluded,

With It Takes a Family, Rick Santorum has served notice. The bold new challenge to the Goldwater-Reagan tradition in American politics comes not from the Left, but from the Right.

At least Santorum is right about one thing: sometimes the left and the right meet in the center. In this case the big-spending, intrusive, mommy-AND-daddy-state center. But he’s wrong that we’ve never had a firmly individualist society where people are “left alone, able to do whatever they want to do.”

It’s called America.

Topics: 
General, Government and Politics, Political Philosophy

The IRS Can’t Overrule the Supreme Court

By
Ilya Shapiro

Since the foundational administrative law case of Chevron v. Natural Resources Defense Council (1984), courts have given significant deference to executive agency interpretations of federal law. United States v. Home Concrete & Supply tests whether there are any meaningful limits on such deference.

The case involves a group of taxpayers who initiated a number of transactions designed to reduce their tax liability by allowing a financial entity they created, Home Concrete, to increase its tax basis and reduce its taxable gain from the sale of certain assets. In June 2003, the IRS ruled that the taxpayers’ use of Home Concrete in this way was improper and issued an adjustment to their tax return (requiring payment of back-taxes). Having missed the standard three-year limit for such actions, however, the IRS argued that the adjustment was timely under a tax-code provision that extends the statute of limitations to six years if the taxpayer “omits from gross income an amount properly includible therein which is in excess of 25 percent of the amount of gross income stated in the return.”

Despite the Supreme Court’s having long ago held otherwise, Colony v. Commissioner of Internal Revenue (1956), the IRS argues that an overstatement of basis qualifies as an omission under that tax provision. Further, during the course of this litigation, the Treasury Department issued a new regulation “clarifying” the provision in a way that supports the IRS’s argument. The IRS now argues that this new regulation is controlling and should be retroactively applied to Home Concrete’s 1999 returns.

After (mostly) winning at the district court, the IRS lost before the Fourth Circuit and asked the Supreme Court to review the case—which involves one of many similar applications of the relevant tax provisions. The Court took the case and now Cato has joined the National Federation of Independent Business on an amicus brief supporting the taxpayers, arguing that sanctioning this sort of ad hoc rule-making would undermine the rule of law and the separation of powers.

We note that “[t]he government’s position is that this regulation is due judicial deference” but the Supreme Court has “consistently held that where a statute has an unambiguous meaning, an agency’s contrary interpretation is not entitled to deference.” As Judge J. Harvie Wilkinson noted in his Fourth Circuit concurrence, “agencies are not a law unto themselves” and the government’s position in this case “seems to [be] something of an inversion of the universe and to pass the point where the beneficial application of agency expertise gives way to a lack of accountability and a risk of arbitrariness.”

In deciding Chevron, the Supreme Court surely never intended to undermine the very structure of the Republic and unleash an administrative state wholly a law unto itself.

The Supreme Court will hear United States v. Home Cincrete & Supply on January 17.

Topics: 
Government and Politics, Law and Civil Liberties, Regulatory Studies, Tax and Budget Policy

The Opportunity Costs of Bailing Out Fannie and Freddie

By
Mark A. Calabria

We’ve sunk $169 billion, and counting, into bailing out Fannie Mae and Freddie Mac.

Every economist understands the concept of opportunity costs—that is, alternatives uses for resources that we expended. Put simply, the Fannie and Freddie bailout is $169 billion that could have been used productively by the private sector to create jobs and/or wealth.  Instead it has gone to continue a corrupt and broken system.

Unfortunately many non-economists, especially some of my friends on the left, behave as if there are no opportunity costs.  Instead, when faced with the bill for such expenditures, they seem to think, ”Oh well, we’ll just tax the rich some more.”

In order to help those folks better understand the opportunity costs of the Fannie/Freddie bailout, here are some things they could have done with that money:

1. Ended poverty for a year.  There are about 9 million U.S. families in poverty.  The poverty line is approximately $14,000 a year.  For the cost of the bailout, we could have ended poverty in the United States for a whole year, with some cash to spare.

2.  Ended homelessness.  Statistics for the homeless population are all over the map, with upper figures ranging to 1.5 million people.  Using that upper bound, for the cost of the bailout we could have spent about $110,000 on each homeless person.  That buys a decent condo in most U.S. cities.

3.  Provided school breakfasts for every student for 12 years.  There are about 50 million children in public schools, pre-K thru 12th grade.  At current costs ($250 per capita annually), we could have bought them all breakfast for their entire 12 years of school.

4. Give every renter a $5,000 down-payment  If you believe the GSEs should increase homeownership, then we could have given all 35 million families that rent $5,000 toward a down-payment, rather than rescue Fannie and Freddie.

5.  Provided health care to every uninsured person for one year.  There are about 50 million people in the United States without health care insurance.  At the average health care expense of around $3,200 (about two-thirds of which go to insurance costs), the cost of the Fannie/Freddie bailout could have provided full health care for everyone uninsured.

We should keep in mind that leaving Fannie and Freddie in place guarantees another massive bailout after the next housing boom and bust.

Those who claim we cannot do without Fannie and Freddie—who claim well-off homeowners need massive subsidies—are also implicitly arguing that they place more value on those activities than any of the above policies.  While neither the bailout (much less the existence of the GSEs) nor the above activities are within the proper scope of the federal government, the alternatives above should illustrate that the bailout was a costly one.

Note:  Most of the figures above were calculated using U.S. Census Bureau data.  If some of my math is a little off, the general point still holds.

Topics: 
Finance, Banking & Monetary Policy

PBS: Premium TV for Premium Viewers

By
David Boaz

The New York Times reports today:

Around the time the first season of “Downton Abbey” had its premiere on the “Masterpiece” anthology series last January, PBS began taking a more strategic approach to programming. It has branded nights with clusters of shows about one subject — for example, the arts, science or the literary imports from “Masterpiece.” The anthology introduced younger and more male-skewing shows like “Sherlock,” a mystery series set in modern-day London that had its premiere in 2010, and a continuation of the popular British series “Upstairs, Downstairs.”

This fall, PBS embarked on a marketing blitz to promote Ken Burns’s “Prohibition” documentary miniseries, including a joint round-table discussion with Mr. Burns and the creators of HBO’s drama “Boardwalk Empire,” which takes place during the Prohibition era.

An aggressive promotional campaign helped “Downton Abbey” win six Emmy Awards, including best mini-series or movie, away from competitors on HBO and Starz.

“The thinking was that they had to up their game,” said Kliff Kuehl, president and chief executive of KCPT, a public television station in Kansas City, Mo. “That’s what we’ve evolved to — trying to give people that pay-TV moment.”

So why not let people pay for it? Why are taxpayers paying for it? Let me say that I love “Downton Abbey” and would gladly pay $10 a month for a network that broadcast it – if I weren’t already paying for it on April 15.

But maybe PBS is bringing “Downton Abbey” to people who can’t afford premium channels. Surely that’s the public-interest rationale for public broadcasting. But maybe not. The Times goes on to say that “prime-time hits like “Downton” and “Sherlock” … appeal largely to better-off viewers.” And advertisers – oops, program sponsors – know it:

Viking River Cruises has signed on as “Masterpiece’s” corporate sponsor, filling a five-year void that began when Exxon Mobil withdrew its support in 2004. Viking will send mailers to customers pegged to the “Downton Abbey” Season 2 premier. A corporate message will come on right after the show’s host, Laura Linney, introduces the program. “Our demographic is affluent baby boomers, 55-plus,” said Richard Marnell, Viking’s senior vice president of marketing. “We’d been looking for a broadcast partner that reaches that group.”

PBS: your tax dollars at work, bringing upscale drama to upscale viewers.

Topics: 
General

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