Tag: legislation

A New Court Term: Big Cases, Questions About the New Justice

Today is the first Monday in October, and so is First Monday, the traditional start of the Supreme Court term.  The Court already heard one argument – in the Citizens United campaign finance case – but it had been carried over from last year, so it doesn’t really count.

In any event, continuing its trend from last term, the Court has further front-loaded its caseload – with nearly 60 arguments on its docket already.  Fortunately, unlike last year, we’ll see many blockbuster cases, including:

  • the application of the Second Amendment to state gun regulations;
  • First Amendment challenges to national park monuments and a statute criminalizing the depiction of animal cruelty;
  • an Eighth Amendment challenge to life sentences for juveniles; a potential revisiting of Miranda rights;
  • federalism concerns over legislation regarding the civil commitment of “sexually dangerous” persons;
  • a separation-of-powers dispute concerning the agency enforcing Sarbanes-Oxley;
  • judicial takings of beachfront property; and
  • notably in these times of increasing government control over the economy, the “reasonableness” of mutual fund managers’ compensation.

Cato has filed amicus briefs in many of these cases, so I will be paying extra-close attention.

Perhaps more importantly, we also have a new justice – and, as Justice White often said, a new justice makes a new Court.  While Sonia Sotomayor’s confirmation was never in any serious doubt, she faced strong criticism on issues ranging from property rights and the use of foreign law in constitutional interpretation to the Ricci firefighters case and the “wise Latina” speeches that led people to question her commitment to judicial objectivity.  Only time will tell what kind of justice Sotomayor will be now that she is unfettered from higher court precedent – and the first term is not necessarily indicative.

Key questions for the new Court’s dynamics are whether Sotomayor will challenge Justice Scalia intellectually and whether she will antagonize Justice Kennedy and thus push him to the right.  We’ve already seen her make waves at the Citizens United reargument – questioning the scope of corporations’ constitutional rights – so it could be that she will decline to follow Justice Alito’s example and jump right into the Court’s rhetorical battles.

In short, it’s the first day of school and I’m excited.

The “Read the Bill” Debate and Government Growth

There’s an interesting back-and-forth over at the Volokh Conspiracy about whether legislators should have to read the actual legislative text of bills they vote on. Most people’s intuitive reaction is: “Duh, of course!” But if you’ve ever actually spent time poring over legislative text, you know that reading the bill itself seldom leaves you with a very good sense of what it does. Legislation is typically a tangle of modifications along the lines of “Strike paragraph 2, replace the period with a semicolon, insert the word ‘reasonable’ in the following sentence…”—which is why legislators have staffers who prepare plain-English summaries of the effects of legislation. Now certainly it would be possible to render bills somewhat more readable to ordinary people. Saving paper is not a huge concern in the digital era, so there’s no good reason legislation couldn’t simply contain the full text of the statutory provisions it amended, perhaps including a side-by-side comparison highlighting the changes. Even this, however, wouldn’t necessarily be all that illuminating. I’ve got a reference book on my desk that contains the 80-or-so pages of the Foreign Intelligence Surveillance Act, and then a few hundred pages explaining what it actually means. It’s not enough to know what the verbatim text says; you need to understand how it interacts with other statutes, how key terms are defined in the law, how courts have interpreted the law’s provisions, and so on.

Legislation could be written in a somewhat more transparent way, but in light of all these complex interactions, it can’t actually be that much more transparent, for the same reason computer programs are a lot longer and more impenetrable than a plain-English description of what the program does. Achieving a result in a complex rule-based system requires a level of precision and sensitivity to how terms are used within the system that’s at odds with colloquial description. Of course, for precisely the same reason that summaries will give an ordinary person a better understanding of a law than scrutiny of the verbatim text, they also give a very incomplete understanding. An ordinary language description will tell you what a computer program is supposed to do. If you want to know whether it’s going to crash or open up a security vulnerability under certain conditions, perhaps when it interacts with other software running simultaneously, you need to have a look at the source code. Again, if you’ve spent any time digging through legislation, you know that the staff summary of a bill often glosses over many interesting little details and ambiguities you can ferret out while reading the text.

Most legislators, of course—even those with legal training—cannot possibly have the kind of expertise needed to undertake meaningful scrutiny of the details of legislative text outside a tiny number of issue areas. So does it make sense to insist that every member of Congress literally “read the bill”? Probably not. The actual text will contain important details not captured in a summary, but only an expert will really understand what those are on the basis of the text anyway. Crucially, this is not a function of needless obscurantism on the part of Congress: it is a necessary feature of legislation in a legal system as complex as ours. Which means that there’s a pretty basic tension between the value of democratic transparency and a large, complex government. Past a certain point, it’s more or less impossible for any individual legislator—let alone ordinary citizens—to really understand the vast majority of bills Congress takes up in any detailed way.

Transparent Health Care Legislating?

Will Americans get “quality time” with proposed health care legislation before it passes?

Some say no: The Senate Finance Committee recently turned back an effort to put Chairman Max Baucus’ bill online for 72 hours before the committee’s vote. The Committee is on the wrong side of history.

Transparency shifts power away from the center, so it’s favored by those out of power. It’s no wonder that Republican representative John Culberson, a member of the minority party, is putting H.R. 3400 (a significant health care bill) online for comment, using a tool called SharedBook.

Transparency won’t be a gift from government. It is something we have to take. That’s why I think the action lies in private efforts like OpenCongress, GovTrack, and (my own) WashingtonWatch.com. (Links are to sites’ H.R. 3400 pages.)

The public has a way of conforming their expectations to what’s possible, and transparent law-making is entirely possible today. Closed processes like the Senate Finance Committee’s consideration of health care legislation will not satisfy the public, and it will emerge from the committee with one strike against it irrespective of the merits.

Congress to Lift the Travel Ban to Cuba?

Bloomberg News reports today that the U.S. House may pass a bill by the end of the year lifting the almost five-decade-old ban on travel to Cuba by American citizens. The step is long overdue. According to the article:

A group of House and Senate lawmakers proposed in March ending restrictions to allow all U.S. citizens and residents to travel to Cuba. [Rep. Sam Farr, a California Democrat] said the legislation, known as the “Freedom to Travel to Cuba Act,” also has enough votes to clear the Senate, where Senator Byron Dorgan, a North Dakota Democrat, and Republican Senator Michael Enzi of Wyoming introduced the legislation.

As Rep. Farr succinctly added, “If you are a potato, you can get to Cuba very easily, but if you are a person, you can’t, and that is our problem.”

“If you are a potato, you can get to Cuba very easily,” he said. “But if you are a person, you can’t, and that is our problem.”

I rebut a lot of what Sen. Dorgan has said about free trade and globalization in my new book, Mad about Trade, but on the issue of the Cuban embargo and travel ban, Sen. Dorgan and most of his fellow Democrats are pushing in the right direction, while most Republicans still vote to maintain our failed policies. For more on why the travel ban and embargo should be lifted, read my speech at Rice University in 2005.

Here is one issue where those of use who support less government and more economic freedom really can hope for progressive change.

Bob McDonnell: The Modern Republican

This is from the Reagan administration’s deregulatory 1981 energy plan: “All Americans are involved in making energy policy. When individual choices are made with a maximum of personal understanding and a minimum of government restraints, the result is the most appropriate energy policy.”

Many modern Republicans claim devotion to Ronald Reagan’s ideas, but they often seem to forget about the “minimum of government” thing. The following points are from Republican Virginia gubernatorial candidate Bob McDonnell’s “More Energy, More Jobs” plan:

  • “McDonnell was the chief sponsor of legislation creating the Virginia Hydrogen Energy Plan.”
  • “McDonnell also supported grant programs for solar photovoltaic manufacturing, tax exemptions for solar energy and recycling property, and tax credits for solar energy equipment.”
  • “In order to protect Virginia’s citizens from the skyrocketing wholesale prices of electricity seen in other states, McDonnell brought together all the necessary stake holders to re-regulate electricity in Virginia.”
  • “Currently, Virginia is the second largest importer of electricity behind California.  This is unacceptable.”
  • “Bob McDonnell will establish Virginia as a Green Jobs Zone to incentivize companies to create quality green jobs. Qualified businesses would be eligible to receive an income tax credit equal to $500 per position created per year for the first five years.”
  • “The Virginia Alternative Fuels Revolving Fund was established to assist local governments that convert to alternative fuel systems … Bob McDonnell will expand the purpose of this fund to include infrastructure such as refueling stations, provide seed money and aggressively pursue additional grants.”
  • “Bob McDonnell will make Southwest and Southside Virginia the nation’s hub for traditional and alternative energy research and development…To assist with the attraction, building and operation of major energy facilities in Southside and Southwest Virginia, we will also support the establishment of the Center for Energy.”
  • “To help Virginia universities gain access to federal stimulus money, as Governor, Bob McDonnell will establish the Virginia Universities Clean Energy Development and Economic Stimulus Foundation.”
  • “As Governor, Bob McDonnell will leverage stimulus funding to incentivize individuals and businesses to conduct energy audits and encourage public private partnerships between small businesses and government.”

It’s true that McDonnell’s plan has some free market elements, and also that Ronald Reagan supported some wasteful energy boondoggles. However, the degree to which the modern Republican wants to micromanage and manipulate the energy industry is remarkable. McDonnell is almost setting out a Soviet five-year plan for a substantial part of the Virginia economy. For goodness sakes, he wants to treat Virginia like a separate country and try to fix the supposed problem that it is “importing” too much energy from other states!

It’s not just energy. Look at the top-down central planning ideas that McDonnell has for “creating jobs”:

  • “Expanding use of the Governor’s Opportunity Fund by roughly doubling the funding available and broadening Fund rules to allow companies that generate additional state and local tax revenue to qualify.”
  • “Appointing Lieutenant Governor Bolling to serve as “Virginia’s Chief Job Creation Officer” in the McDonnell/Bolling Administration.”
  • “Designating one Deputy Secretary of Commerce to Focus Solely on Rural Economic Development.”
  • “Providing a $1,000 tax credit per job to businesses that create 50 new jobs, or 25 new jobs in economically distressed areas.”
  • “Double the funding for the Virginia Tourism Corporation. Currently Virginia trails 14 states including West Virginia and Tennessee in tourism funding.”
  • “Increase funding for the Governor’s Motion Picture Fund by $2 million.”
  • “Providing a $1,000 tax credit per job to businesses that create 50 new jobs, or 25 new jobs in economically distressed areas.”

Again, McDonnell mixes some pro-market proposals in with these Big Government interventions. And his opponent, Creigh Deeds, is promoting his own interventionist schemes, many very similar to McDonnell’s.

In 1980, the difference between Jimmy Carter and Ronald Reagan on economic policy was clear. But today, we seem to have arrived at a point where it’s virtually impossible to tell the difference in economic platforms between a self-proclaimed conservative Republican and a liberal Democrat.

Full House to Vote on Lie of a Bill

The Student Aid and Fiscal Responsibility Act (SAFRA) is expected to head to the full House of Representatives for a vote tomorrow, and as it does there is yet another Congressional Budget Office estimate upping its expected cost. The bill that sponsor George Miller (D-CA) shamelessly says will be a taxpayer-money saver continues to be exposed as very much the opposite.

As you might recall, Miller has been touting SAFRA as legislation that would fund all kinds of new or expanded federal programs while allocating $10 billion to deficit reduction. But the CBO has never agreed with that. First, the CBO identified a likely net cost to taxpayers of about $6 billion over ten years, and that was without including any deficit reduction. Then it estimated that SAFRA would cost an additional $33 billion after accounting for lending risk. And now, CBO estimates that the cost of expanding Pell grants could be almost $11 billion greater than originally estimated. If you add all of those things together, the cost of SAFRA has flipped from a promised $10 billion savings to a $50 billion loss.

In fairness, the last estimate comes from a change in the baseline used for Pell outlays, going from March to August 2009. The increased cost estimate could very well reflect a higher-than-usual Pell expense because of the economic downturn, and the additional cost would not materialize if and when things improve. Nonetheless, this just adds to a very clear message about SAFRA: Far from relieving taxpayers, it’s going to deliver yet one more punishing blow.

Thomas Friedman’s New Math of Democracy

52237408AW011_Meet_The_PresThomas Friedman’s New York Times column today would be astonishing in its incoherence if only Friedman hadn’t long ago sapped us of our ability to be astonished by his incoherence. Like many capital-‘d’ Democrats, Friedman has soured on democracy for failing to deliver on his policy wish list.

Watching both the health care and climate/energy debates in Congress, it is hard not to draw the following conclusion: There is only one thing worse than one-party autocracy, and that is one-party democracy, which is what we have in America today.

Why does Friedman say the United States has one-party democracy? Because the Republican Party is effectively opposing the Democratic Party’s agenda! Not even kidding. Get this:

The fact is, on both the energy/climate legislation and health care legislation, only the Democrats are really playing. With a few notable exceptions, the Republican Party is standing, arms folded and saying “no.” Many of them just want President Obama to fail. Such a waste. Mr. Obama is not a socialist; he’s a centrist. But if he’s forced to depend entirely on his own party to pass legislation, he will be whipsawed by its different factions.

Only the Democrats are really playing! You might think that would mean they can do whatever they darn well please. But no! The Democrats can’t do anything! Because the other party’s opposition is so effective! So it’s exactly as if there’s just one party: nothing gets done!

My hunch is that the Times’ editors see Friedman aiming the gun at his foot, but watching a man stupid enough to actually pull the trigger is so fun they hate to intervene. That or they’re trying to explode the myth of American meritocracy.

So where were we? Oh, yes: one-party democracy is aggravating because sometimes one party can’t do what it wants because the other party gets in the way. Sooo frustrating!!! Why have democracy at all when all you end up with is a single party stymied by the other one! And so it is that Friedman comes to wax romantic about communist central planning:

One-party autocracy certainly has its drawbacks. But when it is led by a reasonably enlightened group of people, as China is today, it can also have great advantages. That one party can just impose the politically difficult but critically important policies needed to move a society forward in the 21st century. It is not an accident that China is committed to overtaking us in electric cars, solar power, energy efficiency, batteries, nuclear power and wind power.

Nikita Kruschev, the enlightened leader of a now-defunct one-party autocracy, was also committed to overtaking the United States in technology and so much more. “We will bury you” is how he put it. At the time, more than a few left-leaning American opinionmakers suspected he was right. After all, how can inefficiently squabbling democracies possibly keep pace with undivided regimes wholly devoted to scientifically centrally planning their way into the brighter, better future? And that, children, is why we speak Russian today.