Archives: 04/2012

‘May Cause Drowsiness, Use Caution Around Machinery’

Frank Harty of the Iowa law firm Nyemaster Goode describes a new kind of employer headache arising from the Obama administration’s hardline enforcement efforts on the Americans with Disabilities Act (ADA) front:

…Common sense dictates that any medication that carries with it a warning that it “may cause drowsiness” or that the patient should “use caution” if operating machinery may pose a risk in the workplace. It is for this reason that many employers adopt a policy requiring employees to self report the use of prescription pain killers. This is especially important in potentially dangerous workplaces such as manufacturing and construction.

In a recent action that defies common sense, the Equal Employment Opportunity Commission has taken the position that such policies are unlawful under the Americans With Disabilities Act. The ADA prohibits an employer from conducting “medical inquiries” without a business reason to do so. In EEOC v. Product Fabricators, Inc., an action in federal court in Minnesota, the EEOC required a manufacturing employer to abandon its policy of encouraging employees to inform supervisors if they are under the influence of narcotic pain killers such as Vicodin. The EEOC took the position that an employer cannot ask about prescription pain killer usage unless it has “objective” evidence that an employee is impaired on the job.

This places employers in a very difficult position….

In particular, it puts employers to a choice between waiting until there is an actual accident caused by an employee’s nodding off or zoning out – thus at last providing “objective” evidence of risk – and the risk of a large judgment payable to an employee who has not yet gotten into accidents and whose lawyer will claim that there was no objective evidence to support a suspicion of impairment.

The Eighth Circuit upheld the agency’s stance earlier this year and an EEOC press release from February notes that the company agreed to pay $40,000 to settle the dispute. Harty notes that one “thing is certain: it will be employers, not the Equal Employment Opportunity Commission, who deal with the fallout from the loss of life and limb in the workplace.”

College Scholars, Mindless Borrowers?

A few days ago Rep. Virginia Foxx (R-NC), chairwoman of the House higher education subcommittee, had the audacity to say in a radio interview that she didn’t have a lot of sympathy for students who racked up $80,000 to $200,000 in college debt. Opportunists have leapt at the chance to attack her, branding her as either mean, or out of touch because what led to her discussion of college debt was retelling how she grew up poor and paid her way through school.

Now let’s be clear: Foxx wasn’t deriding bachelor’s grads holding average debt – about $25,000 for the two-thirds of students with debt – but people with big multiples of that. You know, the ones seemingly featured in every news story or congressional hearing dealing with higher education. And it is, often, very hard to sympathize with such people if you are able to track down crucial information about them such as what they’ve studied, where they’ve chosen to go to school, and what they spend their money on. This CBS News piece is a classic of the Woe-is-Huge-Student-Debtor genre, which Radley Balko and I took apart at the time of its airing.

There’s no question that the price of higher education has been rising at breathtaking rates, and profit-maximizing schools – and politicians who fuel the maximization – bear a good chunk of the blame. But is it really beyond the pale to suggest that maybe some students, who seem to accumulate debt without a care in the world until payment comes due, bear some responsibility for their predicament? Indeed, aren’t these supposed to be pretty smart people – you know, “college material” – who should at a minimum be capable of estimating costs, loan burdens, and potential earnings? Of course, but try bringing that up in the higher education cost debate. You’ll instantly become the Dean Wormer of the group, reviled for killing all the fun of poverty-crying students.

And here’s the thing: Giving the impression that students face an even greater burden than they do – which is exactly the effect of repeatedly focusing on fringe debtors – only encourages Washington politicians to pour even more money into student aid, letting schools raise prices even faster.

The vitriolic response to Rep. Foxx is exactly why so little progress is made in politics generally, and higher ed specifically. There are just some things you can’t talk about, no matter how important than may be, and if you dare bring them up you can expect anything but an honest discussion. You can  expect only cheap shots and smears.

Federal Funds for Cleaning Up Abandoned Mines

An article in the Wall Street Journal offers another example of the problem with the federal government tackling issues that should be left to the states to resolve. Congress passed a law in 1977 requiring coal companies to pay a fee that was to be used to help the states clean up abandoned mines. As is often the case, the distribution of funds to the states has been distorted by politics:

Wyoming officials figured they would get large payouts every year because their state was producing so much coal. But the money had to be “appropriated” by Congress, meaning lawmakers had to vote each year on who would receive it. That often didn’t happen, so a lot of the money sat unused, including hundreds of millions of dollars that Wyoming officials believed belonged in their state.

In 2006, as parts of the law were set to expire, Sen. Mike Enzi (R., Wyo.) won passage of a measure that allowed the money to flow as “mandatory” spending, meaning it didn’t have to be voted on by Congress each year. In addition, it allowed Wyoming, three other states and three Native American tribes to use their money, including funds not distributed in prior years, with virtually no strings attached. Those four states and three tribes were certified as having taken care of their most severe abandoned coal mine problems. Other states had to use the money more narrowly for mine problems.

The next year, the Wyoming legislature voted to spend $50 million in coal-mine funds to build a new science, technology, engineering and math building at the university. Groundbreaking for the building, to be named after Mr. Enzi, is slated to begin this year.

Federal and state officials from Wyoming argue that if their coal companies generated the fees, Wyoming should get the money. The Obama administration argues that the funds were supposed to be used for cleaning up abandoned mines, not renovating a basketball area at the University of Wyoming, which is what the state’s legislature intends to spend $10 million in federal mine cleanup money on.

Both sides have a point, but I think there’s a better, simpler solution: let Wyoming and the rest of the states with abandoned mines decide how to clean them up. Why must the fee (i.e., tax) money be laundered through Washington where it’s inevitably going to be manipulated by parochial-minded politicians? The answer is that it needn’t, but getting the politicians in Washington to part with a pot of money is like trying to take a bone from a bulldog. And for all their complaining about federal involvement in state affairs, state politicians love getting money from Washington to spend because it allows them to avoid having to directly ask their taxpayers to pony up.

See this Cato essay for more on fiscal federalism. See here for more on downsizing the Department of the Interior.

A British Socialist Opts for Private Health Care

With the possible exception of the Scottish parliamentarian George Galloway (here he is saluting Saddam Hussein), no other politician in modern-day Britain has been as staunchly socialist as the former mayor of London, Ken Livingstone (a.k.a. “Red Ken”). The bane of Lady Thatcher in the 1980s and a fan of Hugo Chavez in the 2000s, “Red Ken” has been a poster child for the British left for decades. As far as he was concerned, no taxes were too high, no government intervention in the economy too excessive. It was with some glee, therefore, that I read that Red Ken is also a bit of a tax dodger – using apparently legal but not very “lefty” ways to limit his tax exposure. But wait, there is more… Ken has recently attacked the plans of the Conservative government to make the National Health Service (NHS is a monopoly public health provider) a little less socialist. “The people of our capital city deserve top quality care and demand our health care should not be broken up, sold off or be privatized by the back door,” he wrote. Lo and behold, it turns out that Red Ken has been benefiting from private health care for some years. Even by the low standards of contemporary politics, this is an extraordinary degree of hypocrisy.

Romney’s National Security Problem

It appears some Republicans want to return to their familiar national security play book in their pursuit of the White House, accusing a Democratic president of gutting defense spending and undermining national security. An Associated Press story predicts that Mitt Romney’s presidential campaign may feature the “hawkish and often unilateral foreign policy prescriptions that guided Ronald Reagan and George W. Bush.” But the calls from Republican operatives and GOP hawks for Romney to slam Obama for cutting the military and drawing down in Afghanistan are hollow. Focusing on national security isn’t likely to score Romney any political points. To the extent that foreign policy matters in this election, Romney’s policies are both misguided, and at odds with what the American people want.

For one thing, Romney’s prescriptions for Afghanistan aren’t so different from Barack Obama; where they are different, they are politically unpopular. From yesterday’s New York Times:

For Mr. Romney, the evolving politics of the Afghan conflict suggest that he “wouldn’t get a lot of juice for making the argument to stay,” said Daniel Drezner, a professor of international politics at Tufts University. “The problem he’s got is, how he can criticize the president by adopting a policy remarkably similar to the president. He’s obviously got to criticize him, but he doesn’t have that much to work with.”

But the problem extends beyond Afghanistan. The more Romney talks about “staying the course” in an unpopular war, the more he sounds like the last GOP presidential nominee. John McCain’s campaign boast that he would rather lose an election than lose a war should haunt the party: he delivered neither a political victory for Republicans, nor a military victory in Iraq. Romney’s embrace of the Afghan quagmire could seal the GOP’s fate as the party that happily defies the wishes of the American people in order to fight costly and interminable nation-building missions in distant lands.

On defense spending, Romney’s approach has been “Fire. Ready. Aim.” He has accused Obama of short-changing the military, and pledges to spend at least 4 percent of the nation’s GDP on the Pentagon’s base budget, a promise that would bring spending to levels unprecedented since the end of World War II. Romney has yet to spell out what other spending he would cut, or what taxes he would increase, in order to make up what I estimate to be $2.5 trillion in additional spending over the next decade. Or he could just add to the deficit, as George W. Bush did. Team Obama would be smart to press Romney for clarification.

But Obama himself is to blame for misleading the public about military spending. Although he boasts of having cut $487 billion from the Pentagon’s budget over the next decade, his budget submission for FY 2013 represented only a slight decline below the previous year, and is still above the average during the Bush years. If Obama gets his way, the Pentagon’s budget would rise to near historic highs again by the end of the decade. (For more on this, see here.)

Therefore, far from believing that Obama has gone too far in cutting military spending, as Romney contends, many Americans believe that the cuts could go much deeper. That is the take away from Yochi Dreazen’s story in this week’s National Journal. Noting that we have the biggest and second-biggest air forces in the world (the Air Force and the Navy, respectively) and 11 aircraft carriers to China’s one (which isn’t exactly state-of-the-art), Dreazen quotes an exasperated T.X. Hammes, a professor at the National Defense University, and a 30-year Marine veteran, “the services keep saying that we need to be big. What’s the justification? Based on what threat? I’m just not sure I see the logic.”

A companion story at NJ by George E. Condon Jr. shows that Hammes isn’t alone. A recent Gallup poll found that 41 percent of Americans think we spend too much on the military as opposed to just 24 percent who think we don’t spend enough. It is that latter segment of the population, presumably, that Romney has locked up with his four percent promise. But it is hard to see how his stance will win over the war-weary public that isn’t anxious to repeat our Iraq and Afghanistan adventures, and that isn’t looking to boost military spending, either.

Cross-posted from the Skeptics at the National Interest.

Politico: Opponents Are Winning the Debate over ObamaCare ‘Exchanges’

Politico has a great story about how free-market groups are defeating ObamaCare Exchanges at the state level:

Conservatives like John Graham of the Pacific Research Institute have also been touring states with the platform provided by the American Legislative Exchange Council to help kill off state-based exchanges, a key piece of health reform that will help millions of people purchase insurance coverage — often with federal subsidies — starting in 2014.

“Our approach has to be absolute noncollaboration, civil disobedience — well, not civil disobedience but resistance … by whatever means,” said Graham.

Two years into the law’s implementation, conservative emissaries have contributed to impressive stats. Almost all red states are holding off on exchange legislation at least until the Supreme Court decides on the Affordable Care Act, and in most of those states, exchange-building legislation has crawled to a stop.

I have to point out three problems with the story, though. First, the Cato Institute and I are libertarian, not conservative.

Second, the article identifies Cato, ALEC, and AFP as being “funded partly by the Koch brothers.” Even though these groups have no direct or indirect financial interest in this issue, and even though Cato currently receives no funding from the Kochs, and even though Cato is currently fighting a hostile takeover attempt by the Kochs, I guess that’s a fair categorization. What isn’t fair is how the article fails to disclose that Leavitt Partners has a direct financial interest in this issue: Leavitt is getting paid by states to help implement Exchanges. (See “Health Exchanges: A New Gold Mine,” Politico, June 27, 2011.) It would have been nice if the article mentioned that all the moneyed interests – including health insurance carriers and many Chambers of Commerce – are on the pro-Exchange side. But it at least should have mentioned Leavitt’s financial interest.

Third, I’m not sure what basis there is for saying “most legal experts think” the federal government can offer tax credits and subsidies in federal Exchanges. My co-author Jonathan Adler and I have been following that debate closely. Only a handful of scholars have even commented on the issue, and they are fairly evenly split. If I’m unaware of others who have weighed in, I’d like to hear about them.

Ed Gillespie, Flip Flopper

In the March/April issue of Foreign Policy magazine, Republican strategists Karl Rove and Ed Gillespie opened an article titled “How to Beat Obama” with this paragraph:

In an American election focused on a lousy economy and high unemployment, conventional wisdom holds that foreign policy is one of Barack Obama’s few strong suits. But the president is strikingly vulnerable in this area. The Republican who leads the GOP ticket can attack him on what Obama mistakenly thinks is his major strength by translating the center-right critique of his foreign policy into campaign themes and action. Here’s how to beat him.

There are two basic themes here: 1) that the conventional wisdom that foreign policy isn’t a big issue in this election is wrong, and 2) that foreign policy can and should be a winning issue for the GOP candidate. They go on to outline how [Mitt Romney] should try to make foreign policy an issue. Then, oddly, the article circles back around to this paragraph:

Absent a major international crisis, this election will be largely about jobs, spending, health care, and energy. Voters do, however, want a president who leads on the world stage and a commander in chief who projects strength, not weakness.

Now one of Romney’s foreign policy advisers is going on offense, saying that Obama’s approach to strategy could be characterized as a game of “Mother, may I?

So–should the GOP try to make foreign policy an issue or not? The idea that foreign policy can be a winning issue for Romney was interesting to me, and I criticized the Rove/Gillespie article here (with Rob Farley) and here in a podcast. So I was intrigued when Chris Wallace asked Gillespie on Fox News Sunday, “In one paragraph, two or three sentences, what’s the choice for voters?” Here’s Gillespie’s response:

The choice for voters is if we are going to have a dynamic pro-growth economy based on free enterprise, that creates jobs, that lifts people out of poverty, that provides upward mobility for someone like my father who was an immigrant, who came to this country and was able to become a small business owner, versus a government-centered society – one that requires, you know, to meet mandates and comply with regulations and fill out forms and seek waivers, and try to get your subsidies, where people in Washington, D.C. are making decisions about how people their spend money, as oppose to free enterprise and personal religious freedom and personal freedom that has made this country great and has helped to create more jobs than anything, any government we’ve ever seen.

Not a word about foreign policy. It will be interesting to see if Rove and Gillespie prevail on Romney and get him to try to make foreign policy an issue. Beyond inchoate laments about Obama not understanding American exceptionalism, not “leading” and nonspecific rhetoric like that, I’m betting they won’t.