Topic: General

Blueprint for an Ivory Tower Disaster

Late Monday, the Secretary of Education’s Commission on the Future of Higher Education – a group tasked with creating a “national strategy” for post-secondary schooling – released a preliminary draft of its findings and recommendations. Thankfully, it is just a draft, because almost everything it calls for – from marked increases in student aid, to more government-imposed “accountability”– would devastate American higher education.

American academia’s biggest problem is that thanks to government aid to both students and institutions it is financed largely by taxpayers rather than the students it is educating. This “third-party payer problem” has led to huge waste, as the draft report acknowledges:

In our view, affordability is directly affected by the failure of post-secondary institutions to take aggressive steps to improve institutional efficiency and productivity. That…can be traced to a system of third-party payments…that gives college and universities little incentive to control costs and find innovative ways to teach students. On the contrary, for many institutions the path to prestige involves spending more money, whether on costly laboratories or lavish student dorms, an academic arms race that often doesn’t serve the public interest.

Having apparently understood the third-party payer problem, you would think the commission would call for the obvious – eliminating government interference in higher education. You would be wrong. In fact, the report’s very first recommendation is for the nation (read: “government”) to “commit to an unprecedented effort to expand access to college by providing substantial increases in need-based aid…”

Of course, expanding student aid isn’t the report’s only recommendation. It also calls for new “Lifelong Learning Accounts” to be financed through tax incentives; federal enticements for states and higher education organizations to implement standardized testing schemes; a new “national student unit record tracking system” that would include data on almost every college student in the country; and a “national accreditation framework” that the federal government could use to impose uniformity on the ivory tower.

All of these big-government recommendations are supposed to help us compete in the global economy, which is ironic given the performances of our competitors’ very centralized systems of higher education. In the late 1990s, for instance, China’s economic planners offered huge incentives for young people to go to college. Today, roughly 60 percent of recent Chinese college graduates are struggling to find jobs. Or look at Europe: According to the Centre for European Reform, that continent’s colleges and universities “are failing to provide the intellectual and creative energy that is required to improve the continent’s poor economic performance.”

Clearly, to keep itself and the country competitive, the last thing American higher education needs is more government money or control. Unfortunately, the Secretary of Education’s Commission seems poised to recommend a lot more of both.

Alito vs. Roberts

I’m wading into the decisions this week somewhat belatedly, as I have spent the last two days, like many homeowners in the D.C. metro area, salvaging my flooded basement. 

John notes below some of the bad news leaking between the lines of Justice Breyer’s opinion in Randall v. Sorrell:  namely, Justice Breyer’s paean to the precedential status of Buckley v. Valeo, the fount of the modern First Amendment framework governing campaign finance regulation.

I’d make two addendums to John’s comments:  First, I’m less concerned than he is about Justice Alito’s vote in the case.  It’s true that Alito, like the Chief Justice and unlike Justices Kennedy, Thomas, and Scalia, joined the bulk of the Breyer opinion, including the application of Buckley to contribution limits.  John’s reading–that Alito is a foe of the First Amendment in the realm of campaign finance–may well prove to be right.  But not necessarily.   Note that Alito refuses to join the portions of Breyer’s opinion that specifically reaffirm Buckley as a matter of stare decisis, based on the fact that the parties didn’t brief Buckley’s continued validity in any serious, meaningful way.  (See page 2 of Alito’s concurrence in the Court’s attached slip opinion:  ”[O]nly once in 99 pages of briefing from respondents do the words ‘stare decisis’ appear … . Such an incomplete presentation is reason enough to refuse respondents’ invitation to reexamine Buckley.”).  That caveat gives him more than enough room to join Kennedy, Thomas, and Scalia in a later case, where the validity of Buckley–applied to either expenditures or contributions–is squarely presented on the briefs.  Indeed, Alito’s concurrence is an invitation to lawyers to attack Buckley in a future case.  He’s saying, “When you’re ready to argue, I’m ready to listen.”  This is a rather cautious approach to judging, but one that is perfectly compatible with overruling Buckley in toto in a later case.

Roberts, on the other hand, is a different matter.  He joins the portions of Breyer’s opinion that state Buckley is good law as a matter of stare decisis–the only other justice in the majority to do so–committing himself, it seems, to the kind of case-by-case “narrow tailoring” scrutiny of state contribution limits that Breyer envisions.   This is more tea leaf evidence of Roberts’ minimalist approach to judging.  While Breyer favors this approach based on his belief that the First Amendment should be used to further the “active liberty” of democratic participation in government, my guess is that Roberts is committed to the same framework based on a simple commitment to the values of precedent, fueled by his belief that courts should do as little as possible to displace democratic debate in a “complex” regulatory arena.  (The irony, of course, is that the complexity of campaign finance law is a creation of the diffident, muddled approach to First Amendment restraints on regulation of campaign expenditures and contributions pioneered by Buckley). 

The contrast suggests what may turn out to be a subtle but very important difference between Alito and Roberts.   Alito and Roberts have a cautious, conservative with a small “c” streak.  But Alito, I’m guessing, is cautious as a pragmatic, belt-and-suspenders matter, because he wants to make sure that the Court’s big decisions have the benefit of the most considered legal arguments available in their favor.  Thus, he doesn’t want to shift the legal landscape until he has the benefit of lots and lots of smart lawyerly briefs giving him a menu of the widest possible top-shelf legal thinking in favor of change.  Roberts, by contrast, is cautious out of a theoretical commitment to judicial caution for its own sake.  He simply doesn’t like it when the Court makes “big decisions” that reshape the legal landscape, especially in areas where politicians are heavily invested in the outcome.  The latter approach–if this indeed characterizes the Chief, which the evidence increasingly suggests–is far more troubling over the long run.

Breyer’s Gambit

In the Supreme Court’s ruling in Randall v. Sorrell, six justices agreed that Vermont’s campaign spending and contribution limits violated the First Amendment. That majority split, however, on what made the Vermont law invalid, resulting in what was in essence a plurality ruling.  Justices Breyer, Roberts and Alito affirmed Buckley v. Valeo’s finding that spending limits violated the First Amendment. In striking down Vermont’s contribution limits, the plurality sought to break new ground.

In the past, the Supreme Court has said contribution limits should not be so low as to prevent “effective advocacy.” In fact, the “effective advocacy” standard did not constrain legislatures; the Court approved contribution limits deferring to the legislature’s “expertise” in this matter.

Vermont’s contribution limits, however, went too far, according to Justice Breyer, because they harmed “the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders, thereby reducing democratic accountability.”

For Breyer, the First Amendment is not a constraint on state power expressed as “Congress shall make no law.” Rather, it is a means to realize the value of democratic accountability. That value requires that challengers be able to mount effective campaigns against incumbents. The government can prevent such effective campaigning through contribution limits. Hence, Vermont’s limits must be struck down.

Of course, the Constitution does not demand that Congress advance democratic accountability. But the language of the Constitution has not constrained the Court for some time. Five members of a future Court majority might well explicitly import “democratic accountability” into the First Amendment as a way of enlarging, rather than constraining, state power.

Citing Breyer’s opinion, a future Court might require taxpayers to fund campaigns as way to enable effective challenges against incumbents, thereby increasing democratic accountability. It might also cite democratic accountability as grounds for imposing draconian restrictions on groups that have “undue influence.”

People concerned about free speech welcomed the Randall v. Sorrell decision, but the plurality sought to affirm “democratic accountability” and not the idea of limited government spelled out in the First Amendment. This is not surprising. Justice Breyer is no friend of free speech in campaign finance. That Justices Roberts and Alito signed on to his opinion cannot be a good sign for the future of free speech.

Judge to Federal Prosecutors: Put Those Guns Away & Tell the Truth

In a closely watched case, a federal judge has finally called the Justice Department to account for its high-handed tactics against business firms and businesspeople that are under investigation. 

Prosecutors are increasingly using the threat of indictment to pressure firms into discharging certain employees and reneging on pre-existing company policies that would reimburse employees for attorneys’ fees associated with the business. When a CEO is convinced that some of his employees have engaged in criminal conduct, his decision is easy.  But if the CEO is unsure or is convinced of their innocence, shouldn’t he maintain a presumption of innocence and help the employees in question by honoring the company policy?  And what if prosecutors step up the pressure by leaking stories to press about the company’s “ongoing failure to cooperate with investigators”?

Here’s an excerpt from today’s NYT story:

In a strongly worded opinion, Judge Kaplan agreed with the defendants’ contention that KPMG, which was under criminal investigation, was improperly pressured to cut their legal fees.

KPMG refused to pay the defendants’ legal expenses, he wrote “because the government held the proverbial gun to its head.”

The government, he said, “has let its zeal get in the way of its judgment.”

In his ruling, the judge wrote that during negotiations with KPMG, the government violated the employees’ Fifth Amendment right to a fundamentally fair trial and their Sixth Amendment right to a lawyer.

An employer’s payment of legal fees is “very much part of American life,” he wrote, and applies to “bus drivers sued for accidents, cops sued for allegedly wrongful arrests, nurses named in malpractice cases, news reporters sued in libel cases and corporate chieftains embroiled in securities litigation.”

The right to legal fees is “as much a part of the bargain between employer and employee as salary or wages,” he wrote.

The judge also dressed down Manhattan prosecutors for being “economical with the truth” about pressuring KPMG to cut off the fees.

In his new book, Trapped, John Hasnas critiques the tactics of federal prosecutors because they so often put CEOs in catch-22 situations in which they must either act illegally or unethically.  To listen to a lecture by the author, go here.  For still more background, go here.

For Affordable Health Insurance, Cross the Delaware

My brother (whose name, no joke, is Eugene) just moved to New Jersey with his wife (Katryce) and the two cutest nieces you ever saw (Helaina and Deaven). 

New Jersey is known as health insurance hell, so I went to eHealthInsurance.com to see how much it would cost Euge to purchase a family policy in New Jersey’s highly regulated individual market.  Answer: a lot.  In fact, some of his options cost more than my mortgage.  Meanwhile, our college buddy in Doylestown (Mike) has over five times as many choices for covering his wife and two daughters in Pennsylvania’s individual market.  And the most expensive policy in PA is about the same price as the least expensive plan in NJ.  If Euge were just to move his family in with his old roommate, he could save thousands on health insurance.

…or, Congress could just tear down the senseless trade barriers that keep New Jerseyites from purchasing health insurance from Pennsylvania.

Get the full story here.

Is Bioethics an Oxymoron?

An emailer forwarded me a copy of an article in The New Republic by Ezekiel J. Emanuel, “a bioethicist and oncologist.” Emanuel argues against a recent DC Circuit Court ruling on a suit brought by a group called the Abigail Alliance. The ruling gives dying patients access to experimental drugs after they have passed some minimum safety tests but before they have been proven effective.

It would make it much harder to get people to enroll in research studies and get the data necessary to show whether a drug really was effective or not. Why should people enroll in a randomized, controlled study–where they could be put in the group receiving only conventional treatment–when they could just get their insurance to pay for whatever drug they thought was best?

…Expanded access would also rob the rest of us who may never need a cancer treatment. Individuals and society in general are struggling to pay the nation’s $150 billion-plus drug bill. And that is for medications proven to work. Now add the requirement that insurance companies pay for drugs we don’t know work, and you have a formula for financial disaster. Costs would skyrocket as we pay billions through our insurance premiums and Medicare taxes for worthless drugs.

I agree that it would be wrong to force insurance companies to cover unproven medications–otherwise, there would be no reason to stop individuals from choosing their preferred method of treatment–but the relevant alternative to these patients is not participating in randomized trials. The relevant alternative is death.

Dr. Emanuel describes his approach in a similar case:

Getting Virginia another experimental drug was not going to stop her breast cancer from growing and eventually killing her. I gently explained to her that investing all her energy chasing after another unproven drug was not going to help her and her family. Virginia was disappointed and refused to consider hospice, because she saw it as giving up. Holding her hand, I talked to her about spending time with her husband and daughters and making a videotape for her future grandchildren. We also discussed getting visiting nurses to come to her house. I saw her once more in my office. She was more accepting and found at least some of the activities meaningful. Because of her failing liver, less than three months later, she lapsed into a coma and died with her family present.

If I decide that I want to fight rather than go down graciously with a terminal illness, I will look for a doctor who is not a bioethicist. I found this article so chilling that it leaves me nearly speechless.

Jefferson Was a Great Man, But He Didn’t Write the Constitution

Quotations from respected sources, such as the Founders and Tocqueville and Churchill, are often apocryphal. George Washington apparently didn’t say, “Government is not reason, it is not eloquence – it is force! Like fire, it is a dangerous servant and a fearsome master.” Jefferson, alas, doesn’t seem to have said, “That government is best that governs least,” though he certainly believed it. A tip: If you find the quote on the Internet without any source given other than the alleged speaker, then he probably didn’t say it.

Some quotations are hard to trace, and it’s hard to prove a negative. But this month some of our national leaders have revealed that they don’t know who wrote our most basic founding documents – and neither they nor their speechwriters apparently have access to Google.

At the Southern Baptist Convention two weeks ago, Secretary of State Condoleezza Rice said, “My ancestors in Mr. Jefferson’s Constitution were three-fifths of a man.” Then yesterday Senate minority whip Dick Durbin opposed a flag-burning amendment by saying, “In fact, [flag-burning] rarely, if ever, happens. And so why are we about to change the handiwork and fine contribution to America of Thomas Jefferson?”

Wrong again. Jefferson did not write the Constitution or the Bill of Rights. He was in France during the Constitutional Convention and during the congressional debate over the Bill of Rights.

As every schoolboy knows or should know, James Madison is known as the Father of the Constitution. He also introduced the Bill of Rights into the House of Representatives in 1789. So Rice and Durbin should have referred to “Mr. Madison’s Constitution” and “the handiwork of James Madison.” Perhaps someone should send them a Madison biography or a copy of James Madison and the Future of Limited Government.