Archives: 05/2015

North Carolina Forfeiture Case Reveals Limits of Executive Reform, Government Defensiveness

In March, we detailed reforms announced by Attorney General Eric Holder to federal asset forfeitures under the Bank Secrecy Act’s “structuring” law.  Those changes mirror an earlier policy shift by the Internal Revenue Service.  Unfortunately for some, those changes were not made retroactive, meaning people whose property was seized before the announcements in a way that would violate the new policies did not automatically have their property returned.

Lyndon McLellan, the owner of a North Carolina convenience store, has not been charged with a crime.  He has, however, had his entire business account totaling $107,702.66, seized by the federal government.  As Mr. McLellan attempts to recover his money, he is now being represented by the Institute for Justice, which issued this release:

“This case demonstrates that the federal government’s recent reforms are riddled with loopholes and exceptions and fundamentally fail to protect Americans’ basic rights,” said Institute for Justice Attorney Robert Everett Johnson, who represents Lyndon. “No American should have his property taken by the government without first being convicted of a crime.”

In February 2015, during a hearing before the U.S. House of Representatives Ways & Means Oversight Subcommittee, North Carolina Congressman George Holding told IRS Commissioner John Koskinen that he had reviewed Lyndon’s case—without specifically naming it—and that there was no allegation of the kind of illegal activity required by the IRS’s new policy. The IRS Commissioner responded, “If that case exists, then it’s not following the policy.”

The government’s response to the notoriety Mr. McLellan’s case has received was nothing short of threatening.  After the hearing, Assistant U.S. Attorney Steven West wrote to Mr. McLellan’s attorney:

Whoever made [the case file] public may serve their own interest but will not help this particular case. Your client needs to resolve this or litigate it. But publicity about it doesn’t help. It just ratchets up feelings in the agency. My offer is to return 50% of the money. 

What “feelings in the agency” could possibly be “ratchet[ed] up” by highlighting a case in which the owner is accused of no wrongdoing while both the Department of Justice and the Internal Revenue Service have announced reforms to prevent these seizures from occurring?

Perhaps the government is sensitive to the avalanche of negative press that civil asset forfeiture has received over the past several years (thanks to the tireless efforts of organizations like the Institute for Justice and the ACLU).  Perhaps the government feels that the game is nearly up, after dozens of publicized cases of civil asset forfeiture abuse.

Cases like this show that the executive branch, now under a new Attorney General who has her own controversial civil forfeiture history, cannot be trusted to stay its own hand.  State and federal legislators must take the initiative, as some already have, if this abusive practice is going to end.

Tokyo’s New Military Guidelines Leave U.S. Defending Japan

When Prime Minister Shinzo Abe visited Washington he brought plans for a more expansive international role for his country. But the military burden of defending Japan will continue to fall disproportionately on America.

As occupying power, the U.S. imposed the “peace constitution” on Tokyo, with Article Nine banning possession of a military. As the Cold War developed, however, Washington recognized that a rearmed Japan could play an important security role.

However, Japan’s governments hid between the amendment to cap military outlays and limit the Self-Defense Forces’ role, ensuring American protection. That approach also suited Tokyo’s neighbors, which had suffered under Imperial Japan’s brutal occupation.

In recent years Japanese sentiment has shifted toward a more vigorous role out of fear of North Korea and China. This changing environment generated new bilateral defense “guidelines.”

Yet the focus is Japanese, not American security. In essence, the new standards affirm what should have been obvious all along—Japan will help America defend Japan. In contrast, there is nothing about Tokyo supporting U.S. defense other than as part of “cooperation for regional and global peace and security.”

This approach was evident in the Prime Minister Abe’s speech to Congress, when he emphasized that Tokyo’s responsibility is to “fortify the U.S.-Japan alliance.” He said Japan would “take yet more responsibility for the peace and stability in the world,” but as examples mostly cited humanitarian and peace-keeping operations.

Worse, Japan’s military outlays were essentially flat over the last decade while Washington, and more ominously for Japan, the People’s Republic of China, dramatically increased military expenditures. The U.S. is expected to fill the widening gap.

Obviously Tokyo sees its job is non-combat, relatively costless and riskless social work which will enhance Tokyo’s international reputation. Even Tokyo’s potential new “security” duties appear designed to avoid combat—cyber warfare, reconnaissance, mine-sweeping, logistics.

As I point out in Forbes, “Washington’s job is to do anything bloody or messy. That is, deter and fight wars with other militaries, a task which the prime minister ignored. Indeed, the U.S. is expected to do even more to defend Japan, deploying new military equipment, for instance.”

While America has an obvious interest in Japan’s continued independence, no one imagines a Chinese attempt to conquer Tokyo. Rather, the most likely trigger for conflict today is the Senkaku Islands, a half dozen valueless pieces of rock. Abe so far has preferred confrontation to compromise—a stance reinforced by Washington’s guarantee.

Abe’s historical revisionism further inflames regional tensions. Abe addressed the historical controversy in his speech to Congress but more remains to be done.

U.S. officials appear to have forgotten the purpose of alliances. Abe was eloquent in stating why Japan enjoyed being allied with America. It isn’t evident what the U.S. receives in return.

After World War II the U.S. sensibly shielded allied states from totalitarian assault as they recovered. That policy succeeded decades ago. Now Washington should cede responsibility for defending its populous and prosperous allies.

America should remain a watchful and wary friend, prepared to act from afar against potentially hostile hegemonic threats. In the meantime Washington should let other states manage day-to-day disputes and controversies.

The U.S. should not tell Tokyo what to do. Rather, Washington should explain what it will not do. No promise of war on Japan’s behalf, no forward military deployment, no guarantee for Japanese commerce at sea, no Pentagon backing for contested territorial claims.

This would force the Japanese people to debate their security needs, set priorities, and pay the cost. Moreover, Tokyo would have added incentive to improve its relationships with neighboring states.

After 70 years the U.S. should stop playing globocop, especially in regions where powerful, democratic friends such as Japan can do so much more to defend themselves and their neighborhoods. This would be the best way to enhance security and stability not only of the Asia-Pacific but also of America, which is Washington’s highest responsibility.

We Should Be Wary of Federal Body Camera Funds

Last week, the Department of Justice (DOJ) announced a $20 million police body camera pilot funding scheme to assist law enforcement agencies in developing body camera programs. In the wake of the killings of Michael Brown, Walter Scott, and Freddie Gray there has been renewed debate on police accountability. Unsurprisingly, body cameras feature heavily in this debate. Yet, despite the benefits of police body cameras, we ought to be wary of federal top-down body camera funding programs, which have been supported across the political spectrum.

The $20 million program is part of a three-year $75 million police body camera initiative, which was announced by the Obama administration shortly after the news that Darren Wilson, the officer who shot and killed Michael Brown in Ferguson, Missouri, would not be indicted. It is undoubtedly the case that if Wilson had been wearing a body camera that there would be fewer questions about the events leading up to and including his killing of Brown. And, while there are questions about the extent to which police body cameras prompt some “civilizing effect” on police, the footage certainly provides welcome additional evidence in investigations relating to police misconduct, thereby improving transparency and accountability.

Failing Aviation Administration (FAA)

The federal government operates the air traffic control (ATC) system as an old-fashioned bureaucracy, even though ATC is a high-tech business. It’s as if the government took over Apple Computer and tried to design breakthrough products. The government would surely screw it up, which is the situation today with ATC run by the Federal Aviation Administration (FAA).

The Washington Post reports:

A day after the Federal Aviation Administration celebrated the latest success in its $40 billion modernization of the air-traffic control system, the agency was hit Friday by the most scathing criticism to date for the pace of its efforts.

The FAA has frustrated Congress and been subject to frequent critical reports as it struggles to roll out the massive and complex system called NextGen, but the thorough condemnation in a study released Friday by the National Academies was unprecedented.

Mincing no words, the panel of 10 academic experts brought together by the academy’s National Research Council (NRC) said the FAA was not delivering the system that had been promised and should “reset expectations” about what it is delivering to the public and the airlines that use the system.

The “success” the WaPo initially refers to is a component of NextGen that was four years behind schedule and millions of dollars over-budget. That is success for government work I suppose.

The NRC’s findings come on the heels of other critical reports and years of FAA failings. The failings have become so routine—and the potential benefits of improved ATC so large— that even moderate politicians, corporate heads, and bureaucratic insiders now support major reforms:

“We will never get there on the current path,” Rep. Bill Shuster (R-Pa.), chairman of the House Transportation Committee, said two months ago at a roundtable discussion on Capitol Hill. “We’ve spent $6 billion on NextGen, but the airlines have seen few benefits.”

American Airlines chief executive Doug Parker added, “FAA’s modernization efforts have been plagued with delays.”

And David Grizzle, former head of the FAA’s air-traffic control division, said taking that division out of FAA hands “is the only means to create a stable” future for the development of NextGen.

The reform we need is ATC privatization. Following the leads of Canada and Britain, we should move the entire ATC system to a private and self-supporting nonprofit corporation. The corporation would cover its costs by generating revenues from customers—the airlines—which would make it more responsible for delivering results.

Here is an interesting finding from the NRC report:  “Airlines are not motivated to spend money on equipment and training for NextGen.” Apparently, the airlines do not trust the government to do its part, and so progress gets stalled because companies cannot be sure their investments will pay off. So an advantage of privatization would be to create a more trustworthy ATC partner for the users of the system.

ATC privatization should be an opportunity for Democrats and Republicans to forge a bipartisan legislative success. In Canada, the successful ATC privatization was enacted by a Liberal government and supported by the subsequent Conservative government. So let’s use the Canadian system as a model, and move ahead with ATC reform and modernization.

E-Verify in the States

Many state legislatures are proposing to expand E-Verify – a federal government-run electronic system that allows or forces employers to check the identity of new hires against a government database.  In a perfect world, E-Verify tells employers whether the new employee can legally be hired.  In our world, E-Verify is a notoriously error-prone and unreliable system.

E-Verify mandates vary considerably across states.  Currently, Alabama, Arizona, Mississippi and South Carolina have across the board mandates for all employers.  The state governments of Georgia, Utah, and North Carolina force all businesses with at least 10, 15, and 25 employees, respectively, to use E-Verify.  Florida, Indiana, Missouri, Nebraska, Oklahoma, Pennsylvania and Texas mandate-Verify for public employees and state contractors, while Idaho and Virginia mandate E-Verify for public employees. The remaining states either have no state-wide mandates or, in the case of California, limit how E-Verify can be used by employers.

Despite E-Verify’s wide use in the states and problems, some state legislatures are considering forcing it on every employer within their respective states. 

In late April, the North Carolina’s House of Representatives passed a bill (HB 318) 80-39 to lower the threshold for mandated E-Verify to businesses with five or more employees.  HB 318 is now moving on to the North Carolina Senate where it could pass.  Nevada’s AB 172 originally included an E-Verify mandate that the bill’s author removed during the amendment process. Nebraska’s LB611 would have mandated E-Verify for all employers in the state.  LB611 has since stalled since a hostile hearing over in February.

E-Verify imposes a large economic cost on American workers and employers, does little to halt unlawful immigration because it fails to turn off the “jobs magnet,” and is an expansionary threat to American liberties.  Those harms are great while the benefits are uncertain – at best.  At a minimum, state legislatures should thoroughly examine the costs and supposed benefits of E-Verify before expanding or enacting mandates.

Scott Platton helped to write this blog post.

Raise the Wage Act Is More Rhetoric than Reality

When U.S Congressman Robert C. “Bobby” Scott (D-VA) and U.S. Senator Patty Murray (D-WA) introduced the Raise the Wage Act on April 30, they promised that their bill would “raise wages for nearly 38 million American workers.” Their bill would also phase out the subminimum tipped wage and index the minimum wage to median wage growth.

With rhetorical flourish, Sen. Murray said, “Raising the minimum wage to $12 by 2020 is a key component to helping more families make ends meet, expanding economic security, and growing our economy from the middle out, not the top down.”

The fact sheet that accompanied the bill claims that passing the Raise the Wage Act would reduce poverty and benefit low-wage workers, especially minorities. Indeed, it is taken as given that the Act “would give 37 percent of African American workers a raise”—by the mere stroke of a legislative pen. It is also assumed that “putting more money into the pockets of low-wage workers stimulates consumer demand and strengthens the economy for all Americans.”

The reality is that whenever wages are artificially pushed above competitive market levels jobs will be destroyed, unemployment will increase for lower-skilled workers, and those effects will be stronger in the long run than in the short run.  The least productive workers will be harmed the most as employers substitute new techniques that require fewer low-skilled workers.  There will be less full-time employment for those workers and their benefits will be cut over time.  That is the logic of the market price system.

Those Gruelling U.S. Tax Rates: A Global Perspective

The Tax Foundation released its inaugural “International Tax Competitiveness Index” (ITCI) on September 15th, 2014. The United States was ranked an abysmal 32nd out of the 34 OECD member countries for the year 2014. (See accompanying Table 1.) The European welfare states such as Norway, Sweden and Denmark, with their large social welfare systems, still managed to have less burdensome tax systems on local businesses than the U.S. The U.S. is even ranked below Italy, the country that has had such a pervasive problem with tax evasion that the head of its Agency of Revenue (roughly equivalent to the Internal Revenue Service in the United States) recently joked that Italians don’t pay taxes because they were Catholic and hence were used to “gaining absolution.” In fact, according to the ranking, only France and Portugal have the dubious honor of operating less competitive tax systems than the United States.

The ITCI measures “the extent to which a country’s tax system adheres to two important principles of tax policy: competitiveness and neutrality.” The competitiveness of a tax system can be measured by the overall tax rates faced by domestic businesses operating within the country. In the words of the Tax Foundation, when tax rates are too high, it “drives investment elsewhere, leading to slower economic growth.” Tax competitiveness is measured from 40 different variables across five different categories: consumption taxes, individual taxes, corporate income taxes, property taxes, and the treatment of foreign earnings. Tax neutrality, the other principle taken into account when composing the ITCI, refers to a “tax code that seeks to raise the most revenue with the fewest economic distortions.” This would mean that tax systems are fair and equally targeted towards all firms and industries, with no tax breaks for any specific business activity. A neutral tax system would also limit the rate of – amongst others – capital gains and dividends taxes, all of which encourage consumption at the expense of savings and investment. 

Even the two countries that have less competitive tax regimes than the U.S. – France and Portugal – have lower corporate tax rates than the U.S., at 34.4% and 31.5%, respectively. The U.S. corporate rate on average across states, on the other hand, is at 39.1%. This is the highest rate in the OECD, which has an average corporate tax rate of 24.8% across the 34 member countries. According to a report by KPMG, if the United Arab Emirates’ severance tax on oil companies was ignored, the U.S. average corporate tax rate would be the world’s highest.