Tag: democracy

Cato Study: Heretofore Unreported ObamaCare ‘Bug’ Puts IPAB Completely beyond Congress’ Reach

Today, the Cato Institute releases a new study by Diane Cohen and me titled, “The Independent Payment Advisory Board: PPACA’s Anti-Constitutional and Authoritarian Super-Legislature.” Cohen is a senior attorney at the Goldwater Institute and lead counsel in the Coons v. Geithner lawsuit challenging IPAB and other aspects of the Patient Protection and Affordable Care Act of 2010, a.k.a. ObamaCare.

From the executive summary:

When the unelected government officials on this board submit a legislative proposal to Congress, it automatically becomes law: PPACA requires the Secretary of Health and Human Services to implement it. Blocking an IPAB “proposal” requires at a minimum that the House and the Senate and the president agree on a substitute. The Board’s edicts therefore can become law without congressional action, congressional approval, meaningful congressional oversight, or being subject to a presidential veto. Citizens will have no power to challenge IPAB’s edicts in court.

Worse, PPACA forbids Congress from repealing IPAB outside of a seven-month window in the year 2017, and even then requires a three-fifths majority in both chambers…

IPAB’s unelected members will have effectively unfettered power to impose taxes and ration care for all Americans, whether the government pays their medical bills or not. In some circumstances, just one political party or even one individual would have full command of IPAB’s lawmaking powers. IPAB truly is independent, but in the worst sense of the word. It wields power independent of Congress, independent of the president, independent of the judiciary, and independent of the will of the people.

The creation of IPAB is an admission that the federal government’s efforts to plan America’s health care sector have failed. It is proof of the axiom that government control of the economy threatens democracy.

Importantly, this study reveals a heretofore unreported feature that makes this super-legislature even more authoritarian and unconstitutional:

[I]f Congress misses that repeal window, PPACA prohibits Congress from ever altering an IPAB “proposal.”

You read that right.

The Congressional Research Service and others have reported that even if Congress fails to repeal this super-legislature in 2017, Congress will still be able to use the weak tools that ObamaCare allows for restraining IPAB. Unfortunately, that interpretation rests on a misreading of a crucial part of the law. These experts thought they saw the word “or” where the statute actually says “and.”

How much difference can one little conjunction make?

Under the statute as written, if Congress fails to repeal IPAB in 2017, then as of 2020 Congress will have absolutely zero ability to block or amend the laws that IPAB writes, and zero power to affect the Secretary’s implementation of those laws. IPAB will become a permanent super-legislature, with the Secretary as its executive. And if the president fails to appoint any IPAB members, the Secretary will unilaterally wield all of IPAB’s legislative and executive powers, including the power to appropriate funds for her own department. It’s completely nutty, yet completely consistent with the desire of ObamaCare’s authors to protect IPAB from congressional interference.

It’s also completely consistent with Friedrich Hayek’s prediction that government planning of the economy paves the way for authoritarianism.

Pushing Ukraine Back to the Soviet Union?

Ukraine scored a historic upset in their first Euro 2012 soccer match yesterday, creating a rare celebratory and unifying atmosphere in the country. There had been little good news out of the Ukraine leading up to its co-hosting—with Poland—of the continent’s major soccer championship. Despite achieving independence two decades ago, Ukraine’s political development remains stunted. Ironically, European governments risk pushing Kiev away while attempting to promote democracy there. Such as by Berlin’s threat to block a new political and trade agreement between Ukraine and the European Union.

There’s not a lot to choose from among Ukraine’s leading politicians. However, President Viktor Yanukovich appears to be misusing his power to punish rival Yulia Tymoshenko for political revenge.

In response, German Chancellor Angela Merkel said that her nation would boycott the 2012 European Championships. Last month German Foreign Minister Guido Westerwelle also threatened to kill Kiev’s Association Agreement and the Common Economic Space Treaty with the EU. Ukraine is a member of the Eastern Partnership initiative, created three years ago by Brussels.

Ukraine is not the only troubled member of the EP:  Armenia, Azerbaijan, Belarus, Georgia, and Moldova all have serious human rights issues. However, Nicu Popescu of the European Council on Foreign Relations explained that while Ukraine is not the worst offender among the group, it “is the biggest source of disappointment and bad news.” As a result, warned Jana Kobzova, also at the Council, “More and more EU states are asking why should we want the Ukraine closer to the EU when its political system is increasingly incompatible with the values the EU preaches?”

It’s a fair question, but the alternative is Kiev slipping closer to orbit around Russia. Yanukovich originally was viewed as Moscow’s candidate, since he represented Russophone speakers. However, in office he put his nation first. He has refused to join Russia’s Customs Union (which also includes Belarus and Kazakhstan) and turn over control of Ukraine’s natural gas to Moscow. But because of resistance in Brussels, Yanukovich last month declared a “strategic pause” in Ukraine’s relations with the EU. In fact, Foreign Minister Konstantin Grishenko said his nation would no longer seek full EU membership.

Germany and the other EU members should moderate their ambitions. None of the Eastern Partnership members were on the fast-track to EU membership. The systems were too different and the geographic distances were too great. Even before Kiev disappointed its European friends people were talking of a 20-year accession process. And enlargement fatigue had not yet afflicted Brussels, with disappointment over the performance of Bulgaria and Romania, resistance to Turkey’s membership, and reluctance to quickly include the rest of the Balkans.

Instead of viewing Ukraine as a candidate member to be transformed, the Europeans should treat Ukraine as an errant friend to be reformed. Closer ties should be developed, allowing more criticism to be delivered with greater effect. The association agreement between the EU and Kiev obviously is important economically to Ukraine. It also may be the best vehicle to help pull Kiev back to a more democratic course.

Cross-posted from the Skeptics at the National Interest.

Democracy EXPOSED!

I found a release put out by the American Legislative Exchange Council today a little too meek. So let’s talk about the debate around ALEC, a group I’ve been involved with as a volunteer advisor since before I joined Cato. (The Communications and Technology Task Force used to be called “Telecommunications and Information Technology,” but that didn’t work well in our acronym-happy world.) ALEC is under seige because of alleged ties between its backing of “Stand Your Ground” laws and the Trayvon Martin case, in which a young black man was killed by a neighborhood watch officer of…uncertain ethnic background.

Tim Lynch and Walter Olson have made us aware that the Martin tragedy does not actually implicate Stand Your Ground. Tim has also made us aware of a case in which Stand Your Ground is implicated, that of an elderly Detroit man who shot and killed an 18-year-old entering his home armed with a handgun at 1:30 a.m.

There’s no question, as Tim said, that Zimmerman’s taking of Trayvon Martin’s life warrants intense scrutiny. (The very latest: Prosecutors intend to charge Zimmerman.) While that plays out, Cato will address self-defense law and gun rights at an event entitled “’Stand Your Ground’ Laws: Self-Defense or License to Kill?” on April 23rd, which I encourage you to attend or watch.

But ALEC is an odd target for scrutiny of the quality it’s getting. ALEC describes itself as dedicated to “the Jeffersonian principles of free markets, limited government, federalism, and individual liberty.” Toward this end it “enlist[s] state legislators from all parties and members of the private sector who share ALEC’s mission.”

Anti-ALEC site ALECExposed.org characterizes things differently:

Through the corporate-funded American Legislative Exchange Council, global corporations and state politicians vote behind closed doors to try to rewrite state laws that govern your rights. These so-called “model bills” reach into almost every area of American life and often directly benefit huge corporations. In ALEC’s own words, corporations have “a VOICE and a VOTE” on specific changes to the law that are then proposed in your state. DO YOU?

It’s very exciting stuff—the idea that people would organize themselves to affect the public policies of their states and nation.

The latter characterization of ALEC doesn’t square very well with the Trayvon Martin case, though. The ALECExposed site itself emphasizes that the National Rifle Association works through ALEC to promote and defend Stand Your Ground and other gun rights and self-defense laws. The NRA is a corporation, yes, but it’s an issue advocacy organization. It’s no more the huge or global corporation ALECExposed aims at than the Center for Media and Democracy, hosts of ALECExposed.

The point is made, though: Corporations are trying to influence our public policy! And they are working closely with state legislators to do it!

The horror.

I’ve looked, and there is no NCSLExposed.org. (Domain available!) The National Conference of State Legislatures is a similar group to ALEC: larger, center-left, and government-funded. In 2010, $10 million of NCSL’s $16.8 million general fund came from state legislatures. Most of the remainder comes from grants from federal agencies such as the federal Departments of Health and Human Services, Education, Energy, and Transportation, and from private foundations.

Here, let me re-phrase that:

Through the government-funded National Conference of State Legislatures, governments and foundations try to rewrite state laws that govern your rights. Their efforts reach into almost every area of American life and often directly benefit huge governments and corporations. In NCSL’s own words, it is an advocate for the interests of state governments before Congress and federal agencies. IS IT AN ADVOCATE FOR YOU?

I’ve done my best to make NCSL sound malign, though it’s not. Neither is ALEC malign. I agree with some of what both organizations do, and I disagree with some of what both organizations do.

And I suppose that reveals the trouble with the trouble with ALEC. It is a highly selective attack on one organization that has the peculiar quality of advancing the aims of the business sector, of libertarians, and conservatives. A larger organization that advances the aims of the government sector enjoys no attention in current debate. The hundreds of other organizations that advance the aims of various other sectors—unions, for example—not a peep. Even though RIGHT NOW unions are trying to influence public policy in ways they believe will help workers!

The First Amendment’s protections for freedom of speech, association, and petition of the government have in their background a vision for how our political society should work. Anybody should get to say anything they want, and anybody should organize however they want to advocate for the governing policies they want.

The opponents of ALEC’s positions should advocate the substantive polices they prefer, and they are certainly within their rights to do it in whatever way they prefer. Politics never runs out of ways to disappoint, though, and as a person who tries to deal with the substance of issues, working across partisan and ideological lines, I am amazed at and disappointed by the incoherence of the attack on ALEC.

And I am also disturbed by its anti-democratic and anti-speech quality. The implication I take from the attack on ALEC is that some groups, representing some interests, should not be able to participate in making our nation’s and states’ public policies.

There is one ray of light in all this: NCSL is featuring its concerns with REAL ID, the national ID law, on its homepage. And ALECExposed has a posted a buffoonishly marked-up version of ALEC’s 2007 resolution against REAL ID. NCSL would evidently back the implementation of a national ID if Congress were to fund it. Given its principles, ALEC would not.

Even this debate may help inform the public.

Chávez’s Electoral Fraud Cushion

The onslaught against Henrique Capriles Radonsky by Venezuelan state-run media has begun after his decisive victory in Sunday’s presidential primary. Capriles is now the nominee of the opposition coalition and he will face Hugo Chávez in October’s presidential election. As the Wall Street Journal reports, the vicious attacks against Capriles include, among other things, insinuations that he was a homosexual and that he is a Zionist agent.

This election will not be a fair one. Not only does Chávez control most of the Venezuelan media, but his government is also dramatically increasing spending on popular social programs. About 8.5 million Venezuelans already receive some kind of permanent income or assistance from the government (4 million of them are public employees). The Chávez regime threatens and intimidates those who receive government handouts and dare to support the opposition. Moreover, since voting is electronic in Venezuela, many people fear—perhaps with good reason—that their votes aren’t secret. The government tacitly encourages these perceptions.

But that’s not the end of the story. Chávez also controls Venezuela’s National Electoral Council. Due to the inability of the opposition to monitor every voting station in the country, the stated results of the vote may not be accurate. The Electoral Council usually takes longer than is necessary to tabulate voting results from electronic systems, which has raised concerns of fraudulent activity.

A main concern is the electoral registry, as documented by Gustavo Coronel in a Cato study back in 2006. Coronel wrote that an independent analysis of the electoral registry found many irregularities:

such as the existence of 39,000 voters over one hundred years old. This is a number equal to that of the same age group in the United States, where the population is 10 times greater. Of these 39,000 people, 17,000 were born in the 19th century, and one is 175 years old and still working! Nineteen thousand voters were born the same day and year in the state of Zulia. There are thousands of people sharing the same address.

So on top of the support of his followers (some enthusiastic, others intimidated), which fluctuates around 45 percent of the population, Chávez can also rely on a margin of error due to electoral fraud if he doesn’t get enough votes for his reelection. I’ve talked to some Venezuelans who say this margin can be as high as eight percentage points. That is, if the election is decided by less than that (very likely the case), Chávez can doctor the results in his favor.

The opposition promises to have people in every single voting station in the country watching the vote. The National Electoral Council will probably bar international observers from monitoring the election. This sets up the potential for conflicting results from the opposition and the National Electoral council. What would happen next is anyone’s guess.

Egypt’s Arab Spring, One Year Later

As many expected, Islamist parties will form a dominant majority in Egypt’s first freely elected parliament. The Islamists are here to stay and fear-mongering over their rise is unproductive, since Egyptians will judge for themselves whether Islamists are delivering on their promises. Moreover, understanding the dynamics that brought religious parties to power should be the real goal, and will ultimately prove more useful to those engaging this nascent democracy.

The Freedom and Justice Party (FJP), the political arm of Egypt’s underground religious fraternity, the Muslim Brotherhood, won almost half the seats in parliament. The al-Nour Party and the Islamist Alliance, a coalition of puritanical Salafist parties more conservative than the Brotherhood, came in second with 25 percent of the vote. Combined, Islamists have taken about two-thirds of the seats in the new assembly. If placed on a generic right-left political spectrum, Salafis and other arch-conservatives would be on the far right, socialists and non-Islamists would be on the far left, and the liberal and moderate nationalist parties like al-Wafd would fall somewhere in the middle alongside the right-of-center Muslim Brotherhood. The movement advocates the system of a ceremonial president overseeing foreign policy and a prime minister in control of domestic affairs. It decided not to field a candidate for the presidency.

Egyptians in general and the Muslim Brotherhood in particular prefer stability and economic growth to waging jihad. On the one hand the Brotherhood vows to never recognize Israel, on the other its deputy chairman recently claimed, “We have announced clearly that we as Egyptians will abide by the commitments made by the Egyptian government…They are all linked to institutions and not individuals.” On war, renowned French social scientist Olivier Roy explains that Egypt’s religious parties are constrained by democratic mechanisms that hold the people’s legitimacy:

The “Islamic” electorate in Egypt today is not revolutionary; it is conservative. It wants order. It wants leaders who will kick-start the economy and affirm conventional religious values, but it is not ready for the great adventure of a caliphate or an Islamic republic. And the Muslim Brotherhood knows this.

Elements of the 1978 Camp David Accords are in dispute, but such changes will not lead ineluctably to war. The more interesting questions about the rise of Egypt’s Islamists lie in the domestic arena: Will the Brotherhood make good pluralists? Will religious liberty be deemed apostasy or an individual human right? Will a body of Islamic scholars be established to arbitrate Sharia law? Part of the problem is that the Brotherhood members talk a good game about the principles of “liberty and equalityand economic freedom, but they are also smooth political operators. They have repeatedly down-played their popularity to avoid frightening Egypt’s liberals and foreign observers. In fact, knowing that Turkey—not Iran—is the republican system that many in Egypt want to emulate, the Brotherhood ran a campaign claiming that their party was the Turkish model. It’s not. Al-Wasat, a Turkish-style Brotherhood-offshoot, is “the most moderate on the Islamist spectrum,” observes my friend and former colleague Omar Hossino, who studies Egypt and hails from Syria.  Al-Wasat got 2% (9 seats) of the vote.

So, what’s next?

Despite the gathering clouds of conservatism, shifting alliances within Egypt will broaden the culture of political debate. In this respect, contrary to received opinion, the Brotherhood loathes what it considers the destructive excesses of individualism and the oppressive forces of secularism. Post-modern political correctness should not inhibit us from addressing that thorny issue. It matters tremendously. Alongside the military the winners in Egypt’s parliament will help write the country’s new constitution. To pass it needs a two-thirds vote in parliament, which the FJP could have if it formed a coalition with al-Nour. Recently, however, the ultra-conservative Salafis who vilify secularism have reached out to liberal parties to form a minority coalition against what they see as the Brotherhood’s near monopoly on power. As academics Philpott, Shah, and Toft argue here:

The choice facing Arab Spring nations at this point isn’t one between religion and secular government. It’s a choice between democracy that includes all parties — religious and secular—and a regime that imposes a rigid and exclusive secularism.

That distinction is important. In his in-depth historical survey, The Society of the Muslim Brothers, the late academic Richard P. Mitchell writes that although early adherents to the Brotherhood believed their ruler must be “knowledgeable in Muslim jurisprudence, just, pious, and virtuous,” they also believed that “‘The nation,’ ‘the people’, in fact, are the source of all the ruler’s authority: ‘The nation alone is the source of power; bowing to its will is a religious obligation.”

If, in fact, Egypt’s Islamists believe in the “social contract,” in which rulers are the chosen agents of the people, the concern among many in the West that Egypt’s Islamists are inherently incompatible with democracy misses the point. Democracy in an Egyptian context will undoubtedly produce something different; for religious movements like the Brotherhood their primary political focus is the maintenance of Islam. After generations of being oppressed under secular tyrannies, the Brotherhood’s strong defense of Islam through civic activism has resonated with the majority of Egyptians.

Egypt’s revolution is still a work in progress, and thus far, it has not been pretty. A Muslim reformation could be the wave of the future. But while austere interpretations of Islamist doctrine are at odds with Western liberal democratic principles, such contradictions are precisely what Egyptians must sort out. Breathing down their collective neck and attempting to shape their political destiny harms their ability to resolve such incompatibilities on their own terms.

As I wrote a while back, admittedly on a slightly different topic:

Western policymakers, in their attempt to export liberal democracy, also run the risk of establishing a frame of social and political expectation and thereby making the dynamics most necessary for social change inflexible and ethnocentric. Because foreign-led efforts implicitly deprive local people of their ability to deal with social conflicts on their own, there is an argument to be made that societies grow more attached to that which they have sacrificed through arduous struggle.

Cross-posted from the Skeptics at the National Interest.

Hillary Clinton Heads to Burma

On Wednesday, Secretary of State Hillary Clinton travels to the isolated nation of Burma, officially known as Myanmar, in an attempt to spur the reform process. “After years of darkness, we’ve seen flickers of progress,” said President Barack Obama of the troubled country. By visiting Burma Secretary Clinton can test the new government’s willingness to do more.

Of course, the Clinton initiative may fail. But the main argument for the policy change is not that it is certain to work, but that the alternative has failed. Isolating Burma has achieved nothing.

Burma long has been one of the most tragic of nations. The military regime brutally suppressed the democracy movement led by Nobel laureate Aung San Suu Kyi. Even more deadly has been the half-century long battle with ethnic groups like the Karen, which have sought autonomy in the east.

The United States and Europe responded with sanctions, but to no avail. China took advantage to secure a position of political influence and economic dominance. The military regime continued to live up to its reputation for brutality and corruption.

Now there are “flickers of progress,” as the president suggested. A badly flawed election last year; a new, nominally civilian government; the release of a few political prisoners; liberty for Ms. Suu Kyi, who also has been meeting with government ministers; and a slight break between Burma and its chief patron, Beijing.

Individually these are but small changes, and the Burmese military has previously offered tantalizing reforms only to reverse course, intensifying its brutal suppression of any opposition. However, the combination of many small steps offers hope that something more real may be happening this time. Even Suu Kyi has expressed optimism, and is preparing to reenter politics—legally.

Equally important is the increasing evidence that Burma wants to balance the influence of its imperious neighbor China. For all of the worries in America about Beijing’s growing clout around the world, the People’s Republic of China is finding out—just as the United States discovered years ago—that friends can be expensive to buy and often don’t stay bought.

Engaging Burma could encourage that state to continue on a more independent course—separate from China. The regime isn’t likely to dump its patron, but any distance between the two would be progress. The PRC’s churlish reaction to the Clinton initiative suggests that Beijing is concerned.

An adjustment in U.S. policy toward Burma was sorely needed. Isolation resulted in few positive outcomes. For the most part Asian nations, even America’s friends, ignored U.S. and European sanctions. The regime did not fall; Suu Kyi was not freed; democracy did not come; the ethnic groups did not enjoy peace. The generals simply tightened their grip.

Although this policy failure long has been obvious, no one wanted to “reward” the Burmese regime by dropping economic penalties. This left U.S. policy stuck in a political cul-de-sac. Sanctions were ineffective, doing nothing to advance human rights. But they could not be changed for the sake of appearance.

Nascent reform in Burma now offers Washington an opportunity to shift course. No one should get their hopes up. The regime may intend to only adopt a few reforms as window-dressing to win Western aid. Even if the commitment to change is real, the road to a better life for the Burmese people remains long and hard.

Nevertheless, for the first time in years there truly are “flickers of progress” in Burma. The administration is right to try to turn these flickers into something more. A desperately poor and oppressed people deserve a better life.

Cross-posted from the Skeptics at the National Interest.

Wednesday Links

  • Next up for marriage equality: Perry v. Schwarzenegger. Please join us at 12:00 p.m. Eastern today as co-counsels for the plaintiffs Theodore Olson and John Boies join Center for American Progress president John Podesta and Cato chairman Robert A. Levy for a panel discussion on marriage equality, exploring legal and moral questions dating back to the landmark 1967 Loving v. Virginia decision that ended state bans on interracial marriage. If you cannot join us here at Cato, please tune in to watch a live stream of the event.
  • “Republicans have an opportunity for a much more important debate, which will frame the election campaign next year.”
  • In President Obama’s next speech, Cato director of foreign policy studies Christopher Preble hopes “that the president reaffirms the importance of peaceful regime change from within, not American-sponsored regime change from without.”
  • What will former Massachusetts governor Mitt Romney’s next position on health care be?
  • Like cleanliness next to godliness, so is democracy next to tyranny.
  • The U.S. hit the debt limit–what’s next?