Archives: 03/2015

A Win for Educational Choice in Mississippi

Mississippi is poised to become the third state, behind Arizona and Florida, to enact an education savings account (ESA) law. Yesterday, the Mississippi Senate voted to concur with the state House’s version of the bill, which would provide ESAs for students with special needs to cover numerous education expenses, including private school tuition and fees, tutoring, textbooks, educational therapy, assistive technology, and higher education expenses. Gov. Phil Bryant has indicated that he will sign the legislation.

The Friedman Foundation for Educational Choice provides a useful breakdown of the ESA legislation. While about 63,000 Magnolia State students would be eligible for an ESA next year, “this opportunity is limited to 500 students in year one, with an additional 500 students added to the program each year during a ‘pilot’ period of five years.”

The state will fund the ESAs at $6,500 annually in the form of reimbursements for eligible expenses. The reimbursement model may make it difficult for lower-income families to participate—something policymakers should monitor and address if necessary. Arizona provides ESA parents with restricted-use debit cards that allow parents to conveniently access ESA funds while minimizing the potential for fraud.

In a 2013 survey, parents of students with special needs in Arizona overwhelmingly reported being satisfied with the education they purchased for their children with ESAs. ESAs empower parents to completely customize their child’s education based on his or her unique learning needs. As Lindsey Burke of the Heritage Foundation and I explained in a recent article:

Parents can also save unused funds from year to year and roll the funds into a college savings account. These two features of ESAs—the ability of parents to completely customize their child’s education and save for future educational expenses—make them distinct from and improvements upon traditional school vouchers. ESAs empower parents with the ability to maximize the value their children get from their education services. And because they control how and when the money is spent, parents also have a greater incentive to control costs.

Whether or not 2015 ends up being the Year of Educational Choice, Mississippi has taken an important step toward educational freedom.

Confused about the Middle East? So Is the United States

Since the Arab Spring, many Middle Eastern countries have fallen into political chaos like dominoes. This week’s explosion of conflict in Yemen is just the most recent example. Though many of these conflicts are based on local grievances, they are being exacerbated by the involvement of the region’s larger states, and by the United States.

America’s leaders denounce intervention by unfriendly states like Iran. Yet the United States ignores or even enables such actions by U.S. allies like Saudi Arabia. In doing so, America is simply contributing to the mess in the Middle East. Washington should back off and refuse to get more deeply involved in further Middle Eastern conflicts.

Yemen’s conflict is nothing new; the Houthi rebels have been active in Yemen for more than a decade, and captured the capital in January, forcing President Hadi to flee south. This week, as the rebels finally reached the southern city of Aden, Hadi fled, and apparently appealed to Saudi Arabia for help in combatting the Iranian-backed insurgency.

Yesterday evening, that help arrived in the form of a massive Saudi air campaign and a reported 150,000 troops. The Saudi efforts are supported by a number of other GCC and Arab states, as well as U.S. logistical and intelligence support.

But like everything in the Middle East today, this conflict isn’t as clear cut as it seems. The Houthis are indeed aligned with Iran, and probably receive monetary support. But they also represent a sizeable fraction of the Yemeni population, and many of their policies – such as opposition to U.S. drone strikes in Yemen – are widely popular. Even more confusing, the Houthis are also adamantly opposed to Al Qaeda, and have spent substantial time and resources fighting AQAP fighters inside Yemen.

This conflict fits with a broader pattern of post-Arab Spring clashes in the Middle East, conflicts which are complex and local in nature, but which are treated as simply proxy wars or sectarian conflicts. The fear that Iran might make gains in Syria, in Iraq, in Libya and elsewhere drives Saudi Arabia and other Gulf states to respond militarily, increasing tensions and conflict.

The U.S. response to this complex reality has been to reflexively back traditional U.S. allies. But in doing so, American policy has become confused, contradictory and overleveraged. We’re working towards similar goals as Iran inside Iraq, opposing them in Syria and Yemen, all while trying to reach a nuclear deal before the March 31st deadline. How this mess of policy contradictions is supposed to produce viable results is anybody’s guess.

Yemen has a long history of instability, and any military solution to the crisis will likely fail to produce a long-term solution; it will just paper over the problem. It’s not even clear whether the reinstallation of the Hadi government would be best for U.S. interests: though a Houthi government is unlikely to allow U.S. drone strikes against al Qaeda, they might prove more effective at fighting the group than the government has.

America should stop reflexively backing traditional U.S. allies in the region, and refrain from deeper involvement in these conflicts. Instead, we should think more clearly about when (and whether) the United States should be involved in Middle Eastern conflicts, and about how such actions fit our overall strategic goals. Because one thing is certain: further U.S. intervention in the Middle East would be an exceedingly bad choice.   

Reg A+: Only a Partial Win for Small Business Capital Access

Tuesday, the SEC approved final rules for so-called Reg A+, a new and revitalized version of the Regulation A exemption, created by the JOBS Act of 2012.  While the new rules remove barriers for issuers seeking a raise near the top of the $50 million cap, they fail to remove the greatest barrier – state registration – for the smaller issuers, effectively leaving them out in the cold. 

Reg A has been essentially unusable for years.  The exemption allows a company to sell securities to the public without full registration, provided the issuer raises no more than $5 million and provided the offering complies with all applicable state securities (“blue sky”) laws.  Because of the low $5 million cap and, more importantly, the heavy burden of complying with at least two regulatory regimes – federal and one or more states – this exemption has become almost entirely obsolete.  Hoping to make a new, workable version, Title IV of the JOBS Act directs the SEC to create an additional class of securities under the exemption.  In addition to raising the cap to at least $50 million, Title IV left the door open for state preemption.

Surprising no one, the state regulators objected.  Although Reg A had languished for years even as small business clamored for better capital access, the North American Securities Administrators Association (NASAA), a group representing state regulators, only very recently announced it had “solved” the Reg A problem.  NASAA’s solution is a program of coordinated review whereby participating states agree to use uniform review standards and a streamlined filing process.  While this process may be a little less cumbersome, it still requires that the issuer complete two separate filings, under two separate regulatory regimes.  For the small companies likely to use Reg A, that is an expensive undertaking.  Moreover, NASAA has insisted that state-level review is important for investor protection, but it’s unclear what additional protection the state regulators provide.  NASAA President William Beatty has argued that small, local offerings require local regulators.  But, as Mr. Beatty himself has said, Reg A offerings that involve local issuers typically involve local investors who are familiar with the issuer.  Also, to the extent there is a benefit from review by a local regulator, that benefit would seem to be lost under coordinated review.  It’s also unclear how any one state regulator is “local” to a company doing a multi-state offering.

In the end, the SEC split the baby.  Reg A+, the Commission announced, will have a two-tier structure.  Offerings under Tier 1 may raise up to $20 million and will be subject to blue sky laws.  Offerings under Tier 2 may raise up to $50 million and will not be subject to blue sky laws.  Tier 2 offerings will have additional requirements not applicable to Tier 1 offerings, however, such as a cap on the amount a non-accredited investor may invest (10% of income or assets), periodic filing requirements (annual, semi-annual, and current event), and the obligation to file audited financials.  Given the expense and demands of blue sky compliance, it’s unlikely many issuers will use Tier 1.  That means that companies seeking less than $20 million will either choose a Tier 2 raise or, more likely, find that the new Reg A+ is as unusuable as the old one.  

Spring Regulation Issue: Oil, Obamacare and Tech Innovation

This week, Cato released the Spring issue of Regulation.

The cover article, by economist Pierre Lemieux, argues that the recent oil price decline is at least partly the result of increased supply from the extraction of shale oil.  The increased supply allows the economy to produce more goods. This benefits some people, if not all of them.  Thus, contrary to some commentary in the press, cheaper oil prices cannot harm the economy as a whole.

A related article examines the dramatic increase in crude oil transported by trains and whether additional safety regulation of tank car design should be enacted.  Economist Feler Bose argues that companies have an incentive to reduce accidents to reduce insurance rates.  Thus less-obvious ways to prevent accidents, like better track maintenance, may be more cost-effective and undertaken voluntarily to reduce insurance costs.

The issue has three articles on health policy.  Cal State Northridge professor Shirley Svorny describes how state medical licensure boards do very little to discipline doctors who cause medical errors.  Instead, medical quality is created by the private decisions of individual hospitals to grant privileges to doctors to treat patients and the decisions of specialty boards, such as those that govern cardiology, to certify members as qualified.  A second article concludes that the regulation of electronic cigarettes is likely, even though the evidence for adverse health effects is thin, because a powerful coalition of existing cigarette companies and anti-smoking activists would benefit. A third article examines questionable legal maneuvering by states to implement aspects of the Affordable Care Act (Obamacare).

Finally, two articles describe the regulation of emerging technologies. The first, by Oxford’s Pythagoras Petratos, examines nanotechnology and argues that both the Food and Drug Administration and the Environmental Protection Agency are ill-suited to regulate this complex technology. This bureaucratic burden could slow nanotech innovation in the United States. The second article, by Henry Miller of the Hoover Institution, describes the regulation of so-called “biosimilar” drugs.  Biosimilars are “generic” versions of patented biologic drugs, which are produced by living cells through genetic engineering rather than the chemical reactions used to produce traditional patented and generic prescription drugs.  He concludes that clinical trials will be necessary to prove biosimilarity and thus “biosimilar” drugs will not be cheap like traditional generic drugs.

Young v. UPS : Bias Plaintiffs Win at the Supreme Court

As I’ve had occasion to note in this space, pundits regularly complain that the current Supreme Court is somehow throttling job-bias lawsuits out of some concern for employers’ rights. However, the Court’s recent rulings on employment discrimination law in fact tend toward the cautious and centrist, and the caseload of discrimination claims filed with the Equal Employment Opportunity Commission (EEOC) remains near its all-time highs. (Thus the New York Times complained in 2013 that a Court decision four years previously had made it hopeless to file age-bias claims, omitting to mention that lawyers filed more such cases after the decision than before.)

Today’s decision in Young v. United Parcel Service, on the scope of pregnancy discrimination and accommodation law, will be hailed reflexively in some quarters on a which-side-are-you-on basis, since the pregnant employee won. Few non-lawyers are likely to stick around for its dry details, in which Justice Stephen Breyer laid out a balancing test mushy enough in its liberalism to win over Chief Justice Roberts and even Justice Alito. (Readers interested in such matters as McDonnell-Douglas burden-shifting and the selection of similarly situated co-worker “comparators” should follow up at the specialty employment-law blogs.) The practical impact of the case is also somewhat limited by Congress’s having further liberalized pregnancy accommodation law in plaintiffs’ favor after the events being sued over. 

Will the TPP Strengthen U.S. Foreign Relations?

The Obama administration wants us to believe that even while the Trans-Pacific Partnership is shaping the global economy in favor of U.S. interests, it is also furthering U.S. foreign policy by strengthening alliances and containing China’s influence in the Asia-Pacific region. 

Alan Beattie of the Financial Times has written a scathing rebuttal to this line of argument:

This is an appealing fall-back for those who don’t like the deal’s content, but is at best one of the weaker arguments in favour. Whether or not agreements help strategic alliances, the intrusive and one-sided nature of pacts negotiated with the US can arouse resentment as well as cooperation.

The participation of countries in the TPP has less to do with enthusiasm for importing the US economic model than a grudging acceptance that yet more tribute has to be paid in order to retain access to the US market. Negotiating a trade deal with the US is not a particularly pleasant business, and nor is it becoming happier over time. You are essentially presented with a US model agreement that contains a decreasing proportion of actual free trade and an increasing proportion of intellectual property protection, and invited to sign.

It’s not clear that a country’s affection for the US will increase after being required to rewrite its patent and copyright law every few years on a model dictated by, respectively, the Pharmaceutical Research and Manufacturers of America and the Recording Industry Association of America. The US itself does not offer much liberalisation. It is highly unlikely to substantially dismantle its agricultural subsidy and protection regime to allow Australian and New Zealand farmers abundant access to its dairy market or stop its rice subsidies disadvantaging Vietnamese rice exports in world markets. America’s trading partners are thus on a permanent treadmill of enforced policy change in order to keep their trade access to the US.

Congress’s Archaic Information Practices

There have been more than 2,700 bills introduced so far in the current Congress. That’s more than 30 bills per day, every day this year, weekends included. Ordinary Americans have a hard time keeping up, of course. Congress does, too.

The controversy around the anti-sex-trafficking bill in the Senate last week illustrates this well. Debate around the formerly non-controversial bill fell into disarray when Democrats discovered language in the bill that would apply the Hyde Amendment to fines collected and disbursed by the government. (The Hyde Amendment bars government spending on abortion. Democrats argue that it has only applied in the past to appropriated funds, not disbursement of fines.)

How is it that it took until late March for Democrats to discover controversial language in a bill that was introduced in January?

Well, Congress is awash in archaic practices. For one, bills are written in “cut and bite” style—change this line, change that word, change another—rather than in a form that lays out what the law would look like if the bill were passed. That makes bills unreadable—a situation Rep. Justin Amash (R-MI) has sought to remedy.