Topic: Law and Civil Liberties

Supreme Court to EPA: Hurry Up and Wait?

Lots of news outlets have been describing the Supreme Court’s opinion in Massachusetts v. EPA along the following lines: “Supreme Court says global warming is bad; tells EPA to fix the problem.”

Is that right? Not really.

In fact, if you read between the lines of the majority’s decision, its not clear that it will alter EPA policy one jot or tittle.

“Regulation,” under the Clean Air Act, can take a number of forms: It can take the form of declaring aspirational emission standards. Or it can take more draconian forms, such as looming technology mandates and imminent implementation deadlines, backed by tough civil and criminal penalties.

Even assuming that, after the Court’s decision yesterday, the EPA has to “regulate” in the sense of promulgating some GHG emission standards, the Court’s decision leaves the EPA with ample room to argue that it can defer deciding when and how to implement those standards in light of the potentially high and uncertain costs of implementation.

Its true, of course, that some parts of the Clean Air Act prohibit the EPA from undertaking this sort of cost-benefit analysis. The parts of the CAA governing auto emission standards are, however, different. There, the EPA retains considerable discretion weigh costs and-benefits—particularly when it comes to the “when” and “how” of implementing emission controls. For example, as Justice Stevens notes, section 202(a)(2) of the CAA gives the EPA broad discretion to delay implementation of pollution controls to the extent that “the Administrator finds necessary to permit the development and application of the requisite [pollution control] technology, giving appropriate consideration to the cost of compliance within such period.” Put in plain English, that means that if the “costs” of developing effective pollution-reducing technologies are very large, and the pay off of this R&D is in the far-distant future, the CAA doesn’t require the EPA to implement its standards right away.

The Court’s opinion also reaffirms the great deference owed to the EPA’s decision not to enforce any standards that it might promulgate. In the words of Justice Stevens yesterday, an “agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities.” Given the breadth of discretion granted the agency to defer implementation under provisions like section 202(a)(2), and the costs and uncertainties associated with implementation, that deference may give the EPA very substantial room to defer—perhaps for a very long time—implementation of a federal GHG enforcement regime, freeing the EPA to deal with more immediate and pressing environmental problems.

Nor is analysis of the EPA’s leeway to delay implementation much different if, as some assume, the Court’s decision means that GHG emissions are also “pollutants” under CAA provisions dealing with “national ambient air quality standards.” True, in Whitman v. American Trucking Association, the Court held that the EPA must set NAAQS without regard to the costs of implementation. But in his concurrence in that case, Justice Breyer suggested that even CAA requirements governing national ambient air quality standards permit some modified cost-benefit analysis. He emphasized, for example, that when setting NAAQS, the EPA doesn’t have to eliminate “any health risk, however slight, at any economic cost, however great.” It is only required to eliminate “unacceptable” risks, defined as those that the public is not willing to tolerate at any cost.

New American car emissions count for only 6% of worldwide carbon dioxide emissions. Eliminating these emissions wouldn’t necessarily reverse global warming or even appreciably slow it—particularly given the dynamic nature of emissions in developing countries. Thus, its far from evident that the added global warming risks created by new American car emissions are “unacceptable” in the sense suggested by Justice Breyer.  On the face of the record, its also far from clear that the risks posed by other GHG-omitting sources in the U.S., such as stationary sources, are any more publicly “unacceptable” in the sense meant by Breyer, given uncertainty about the payoff of unilateral American remediation and given the cost and current feasibility of GHG control technology.

Ultimately, then, the key flaw with the EPA’s decision may not have been the outcome of that decision, or even the overarching reasons given by the EPA for its decision. The fatal flaw may have been only the conclusory nature of the reasons given by the EPA for its decision. For example, the EPA said that it wouldn’t act now because effective GHG-reducing technologies weren’t feasible at present and wouldn’t be feasible in the near future. But the EPA didn’t make any effort to quantify, or otherwise support with evidence, that feasibility assessment. Instead, it offered its conclusions as facts that courts must accept at face value—something five justices weren’t willing to do. But if the EPA can supplement its feasibility conclusions with at least some evidence, it may be able to pull at least one or two justices—most likely Breyer or Kennedy–into the dissenters’ orbit.

(This post is cross-posted at ScotusBlog).

A Reply to Ornstein and Corrado

The fifth anniversary of the Bipartisan Campaign Reform Act (also known as BCRA or McCain-Feingold) has arrived, and two of its defenders, Norman Ornstein and Anthony Corrado, took to the pages of The Washington Post yesterday to counter “a widespread view that BCRA did not work, that campaign reform has been a failure.”

They argue that McCain-Feingold has led to “the spectacular resurgence of political parties.” But the political parties were not in decline prior to 2002. They had been reviving since at least the mid-1990s, in part because of the resources that came from party soft money. Ornstein and Corrado say many people thought BCRA would hurt the parties. But, they say, that did not happen. Evidence? “In the two elections held before BCRA, the national parties raised a total of $2.1 billion, nearly half of it in unregulated ‘soft money’…In the two elections since, the parties raised exactly the same amount, but all in ‘hard money.’”

Notice the trick here. Ornstein and Corrado are comparing party fundraising in 2006 to party fundraising in 2002. They show that under BCRA in 2006 the parties raised as much hard money as they did soft and hard money in 2002. But that’s not what we want to know! We want to know whether the parties raised as much or more money in 2006 under BCRA as they would have in 2006 without BCRA. If they did, BCRA didn’t have much effect on fundraising.

As it happens, total party soft money fundraising doubled from mid-term election to mid-term election from 1992 onward. In 2006, the parties would have raised an additional $500 million in party soft money if BCRA had not passed. To be sure, some of the soft money that would have been raised turned up as hard money contributions to the parties in 2006 or as contributions to 527 groups. Even taking those into account, I suspect the parties would have raised  at least tens of millions of dollars more in 2006 if BCRA had not banned soft money fundraising. So it is not accurate to say that “our parties are richer.”  

According to Ornstein and Corrado, BCRA also made the parties “stronger at the grassroots,” citing party building and get-out-the-vote efforts. Yet in 2004 it was 527 groups (whose funding is not covered by BCRA) who supported the organizations that got out the Democratic vote in battleground states. By law, the 527 efforts could not be coordinated with the parties. As a result, the multi-million dollar contributions by George Soros and others did nothing to build up the Democratic party. In fact, many observers think the disjunction between the 527 get-out-the-vote effort and the Democratic party organization hampered Sen. Kerry’s presidential bid. As for party building, Howard Dean, the current head of the Democratic party, wanted to build up his party in 2006 even in states where Democrats had done poorly in the past. Dean’s party building effort came up short for lack of money. Had the Democrats been able to raise soft money, they would have had enough to both fight the 2006 election and build up their party across the board.

Ornstein and Corrado credit BCRA for a purported rise in small donors to the parties. By cutting off soft money, they imply, BCRA forced the parties to find small donors. They ignore two other factors. The Internet cut the cost of finding contributions and of making contributions. Meanwhile, the Iraq war and rising party competition mobilized donors and voters who otherwise might have stayed on the sidelines.

Our authors then confront the question of incumbent protection, an argument they associate with Newt Gingrich. They note that 22 House incumbents and 6 Senate incumbents lost in 2006. Ornstein and Corrado do not note that all 28 of those losing incumbents were Republican which might suggest a national wave of unhappiness directed at GOP candidates. BCRA did not offer enough incumbent protection for those 28 former members of Congress. But that does not prove that the Democratic wave of 2006 might not have been stronger in the absence of BCRA. As I argued earlier, their leaders believe the Democrats left 15 to 20 House seats on the table in 2006. Without BCRA, they would have had more party soft money to have pursued those 15 to 20 seats. Campaign finance regulations protect incumbents in more ways than one.

The effects on Democratic candidates and the Democratic party are important. 90 percent of congressional Democrats voted for BCRA. They believed the law would help Democratic candidates and their party. If we are honest, that partisan outcome was a leading, if not the primary, purpose of BCRA. (If you doubt that, ask the congressional Republicans of 2002: 80 percent of them voted against BCRA). So the question lingers: if Democrats ended up with less money and fewer House seats with BCRA than without it, was the law a success for Democrats in Congress and in the nation at large?

Ornstein and Corrado try hard to deflect this question. They identify opposition to BCRA with Republicans, conservative activists, and ideologues. Their Democratic readers are supposed to think, as they always have thought: Ick! Who wants to agree with stupid and evil people like that! Especially about money in politics. 

But that rhetorical gambit, like much of campaign finance “reform,” has grown stale. It’s not just the opponents of liberalism who are having doubts about Sen. McCain and his handiwork. I am certain that the smart, tough people who run Democratic congressional campaigns know BCRA cost the party seats. An important left-leaning expert on campaign finance has raised questions about the failures of the law. He also reports that the foundations that gave over $100 million to lobby for BCRA are wondering why they did so. That’s a lot of money for so little in return.

Not surprisingly, Ornstein and Corrado omit other consequences of BCRA. The law prohibited broadcast advertising within sixty days of a general election for a motion picture criticizing the current president of the United States. It also prohibited advertising within that time frame urging citizens to contact their representatives in Washington (if those representatives were running for re-election). We have no idea how much political speech was suppressed by BCRA’s ban on some issue ads.

BCRA’s prohibitions also fostered money moving to 527 groups followed by a regulatory push to eliminate such groups. If 527 groups are done away with, money may well go to nonprofit groups which will be followed by efforts to tightly control the political activities of such groups. BCRA has brought under state control a larger part of private political activity than ever before; it has also fomented a regulatory push that may yet deeply invade what’s left of private financing of political struggle.

The authors also omit BCRA’s failure to live up to the promises made by its supporters on the floor of the U.S. Senate. (I document these goals in the first chapter of The Fallacy of Campaign Finance Reform). BCRA did not restore public confidence in government, largely because campaign finance regulations have nothing to do with trust in government. It did not prevent corruption among several Republican members of Congress (and perhaps, one Democrat).

Ornstein and Corrado suggest the law reduced the number of negative ads. But that’s pure speculation. Judging by the complaints of the “reform community,” campaigns remain as negative as ever. Of course, negative advertising is good for American democracy, and in any case, advocates always said campaign finance regulations concerned money and not the content of speech. If BCRA really sought to improve the content of speech, doesn’t that mean the law violated the First Amendment from the start?

BCRA has had three other results, each hopeful in its own way.  

BCRA has had random political effects. People on the left, who generally support such restrictions on money in politics, discovered they too could be “reformed.” This discovery may reduce support for future restrictions on speech.

The law also fostered a successful bipartisan coalition against campaign finance regulation when BCRA’s defenders tried to regulate and restrict political speech on the Internet. Perhaps the Internet will remain a speech zone free of campaign finance regulation.

The law also appears to be a major obstacle to Sen. John McCain’s quest for the Republican presidential nomination. Perhaps in the future ambitious politicians will consider the electoral costs of supporting restrictions on speech. Emerging presidential candidate Fred Thompson, who voted for BCRA now says: “I wonder if we shouldn’t just take off the limits and have full disclosure with harsh penalties for not reporting everything on the Internet immediately.”

Neither misleading numbers nor rhetorical gambits can change the reality that BCRA has failed its supporters and the nation. Perhaps a new start with money and politics, one more mindful of the First Amendment, is in order.

April Fool’s Dud

Over the weekend, I put an April Fool’s Day post up on Tech Liberation Front, indicating a security breach in the NAPHSIS EVVE system.  It was almost instantaneously debunked by a commenter.  Thank you so much, blogosphere … .  The post was intended to illustrate some issues with identification-based security and the REAL ID Act.

The National Association for Public Health Statistics and Information Systems has developed and implemented the Electronic Verification of Vital Events system to allow immediate confirmation of the information on a birth certificate presented by an applicant to a government office anywhere in the nation irrespective of the place or date of issuance.

That sounds neat, but it is being incorporated into the REAL ID national ID system apparently without regard to the security issues involved. If we are going to use driver’s licenses for security purposes, each link in the chain of issuance is then a potential vulnerability.

What if the NAPHSIS EVVE system and others like it were compromised and made to confirm the issuance of birth certificates that didn’t actually exist? We could have untold numbers of licenses issued based on fraud. The system we have now, which provides a modicum of security, could collapse as fraudulently acquired driver’s licenses proliferate.

Two weeks ago, at the meeting of the Department of Homeland Security’s Data Privacy and Integrity Advisory Committee, I asked Stewart Baker, Assistant Secretary for Policy at DHS, what counter-measures might be employed by attackers on the REAL ID national ID system. He said, “We have done some thinking about that …” I’m not sure our confidence should be inspired.

Every weakness in the system should be explored carefully. I summarized some of them in Appendix A of my testimony at the Homeland Security and Governmental Affairs Committee last week.

Heartland Insurgency

On Tuesday, it was Nebraska senators Chuck Hagel (R) and Ben Nelson (D) who provided the winning margin for a Senate bill to begin a phased withdrawal of troops from Iraq.

Today it’s five-term congressman Lee Terry (R-Neb.) deciding that Attorney General Alberto Gonzales should resign.

Pretty soon, the neocons are going to be calling for an invasion of Nebraska.

‘Security Is the New Freedom’

That’s what David Brooks declares in yesterday’s New York Times. In the column, he argues (yet again) that limited-government conservatism is dead, and that what should take its place is an orientation that focuses less on “negative liberty (How can I get the government off my back) and more [on] positive liberty (Can I choose how to live my life).” We also learn from Brooks that since “The ‘security leads to freedom’ paradigm is a fundamental principle of child psychology,” it must be the right way to look at man’s relationship to the state.

Since Brooks cites Tyler Cowen’s contribution to Cato Unbound, now’s as good a time as any to carp about that essay. I can’t agree with Professor Cowen that the libertarianism of the future ought to share the Left’s focus on ‘positive’ liberties and make its peace with big government. The 21st century libertarianism he’d like to see, a doctrine that seems to view principled distrust of government as an anachronism, isn’t libertarianism at all. It’s modern liberalism with a greater appreciation for markets — Thomas Friedman without the mixed metaphors. If modern liberalism moves in that direction, the world will be better off, and if libertarians can help encourage that transition, we should.

Yet I don’t understand why the continuing resilience of the welfare state constitutes an “intellectual crisis” for libertarianism. An ideology is in intellectual crisis, it seems to me, when certain of its core tenets turn out to be wrong. That people still like the idea of free stuff from government doesn’t count unless libertarianism has been in crisis from its inception.

In any event, my guess is that any political prediction that Cowen, I, or any other aspiring Hari Seldon might choose to make will, in a matter of decades, look as quaint as one of those 1950s magazine pieces on our Jetsons-style future. Given the difficulty of predicting the future, we might do better to focus on what’s true instead of what we believe to be politically possible.

If the welfare state impedes human flourishing, if the drug war is an abomination, if the New Deal constitutional revolution was an intellectual fraud from top to bottom, then libertarians ought to say those things. Because they’re true. Because they’re not said often enough. And because describing the world accurately is the first step towards changing it.

What sort of changes are possible? Who knows? But even if you think the best we can hope for is a less-awful welfare state, don’t underestimate the clarifying effect of bold, uncompromising ideas. Such ideas can help make positive, incremental reforms possible. The welfare reform we got in 1996 — generally a good thing — looks more like Robert Rector’s program than Charles Murray’s “end welfare” thought experiment in Losing Ground. But would we have gotten that sort of reform if Murray had decided that imagining a world without welfare wasn’t worth the effort?

One of the most wonderful things about Brian Doherty’s history of libertarianism is how little the ideology’s founding mothers and fathers cared about what sort of bills might plausibly get out of committee. There’s no denying that 20th century libertarianism had elements of apocalyptic pessimism. But it’s hard to miss the equally broad streak of insane optimism. To stand in the middle of the Century of the State and proclaim a vision of a world unshackled, a world governed by the rule of “anything that’s peaceful,” that is, a world hardly governed at all — what could be bolder or more hopeful? The Audacity of Hope!

Sure, Hayek and Friedman were willing to accept aspects of the modern welfare state. But it’s only when divorced from historical context that they look like Moderates for Capitalism. In the (sparkly) teeth of New Frontier liberalism, Capitalism and Freedom proclaims that Kennedy’s inaugural address — “ask not what your country…” — was founded on a worldview unworthy of free men in a free society. It was, for its time, a radical book.

Writing in 1949, Hayek had an effective rejoinder to the idea that classical liberals ought to limit their aspirations to what’s currently politically possible:

We need intellectual leaders who are willing to work for an ideal, however small may be the prospects of its early realization. They must be men who are willing to stick to principles and to fight for their full realization, however remote. The practical compromises they must leave to the politicians. Free trade and freedom of opportunity are ideals which still may arouse the imaginations of large numbers, but a mere “reasonable freedom of trade” or a mere “relaxation of controls” is neither intellectually respectable nor likely to inspire any enthusiasm.

The main lesson which the true liberal must learn from the success of the socialists is that it was their courage to be Utopian which gained them the support of the intellectuals and therefore an influence on public opinion which is daily making possible what only recently seemed utterly remote. Those who have concerned themselves exclusively with what seemed practicable in the existing state of opinion have constantly found that even this had rapidly become politically impossible as the result of changes in a public opinion which they have done nothing to guide.

I’ll stop the Braveheart speech there. But just one more observation: Brooks’ (and Cowen’s?) notion that the modern world has outgrown the Liberty vs. Power paradigm is bizarre. Barring some miraculous change in human nature and the nature of government, that paradigm’s as enduringly relevant as anything gets in politics. There’s a reason “Skepticism about Power” is the section that opens David Boaz’s Libertarian Reader. That heuristic flows from observable truths about man’s nature and the state’s. Distrust of government lies at the heart of libertarianism and at the heart of the American experiment. Liberty’s future depends on rekindling it.

Another Loss for the Online Gambling Nannies

I have yet to digest the official ruling (for the most committed trade nerds, it’s available here), but the United States has been dealt yet another blow in its dispute with Antigua and Barbuda over Internet gambling.

According to a World Trade Organization report released to the public today, the United States has not complied with the rulings and recommendations of a previous panel’s verdict that the United States’ ban on online gambling services was in violation of its commitments to the WTO (more here). Translation: the United States has not made any changes to its restrictions on gambling over the Internet that would make its laws WTO-consistent.

The United States will probably appeal this latest ruling, but if it loses that appeal and continues to refuse to change its laws, then the state of Antigua and Barbuda could retaliate to recover the damage that it claims has accrued to its online gambling industry as a result of the U.S. ban. Retaliation usually involves placing tariffs on the goods of the offending country, in this case the United States. (That is, of course, an economically insane way of “punishing” the violator, but I digress.)

Radley Balko is hoping that Antigua and Barbuda will instead choose to kick the United States where it hurts, and suspend its obligations to protect the intellectual property rights of American companies.

DC Gun Laws

Eugene Volokh has thoughts on what constitutes a violation of the DC law regarding firearms possession.  Today’s Washington Post says police and lawyers are unsure about what is legal and what is illegal–at least with respect to members of Congress and their staff. The DC police say Senators may have guns in their offices, but it would be a crime for the members to carry or transport a handgun from their residence to their office.  To get around that bizarre reading of the law, one lawyer suggests that Senators have a DC police cruiser transport their weapons to and from their offices.  Good grief. 

Everyone seems to agree that Senator Webb’s staffer, Phillip Thompson, meant no harm.  Given that, shouldn’t Thompson invoke his constitutional right to a trial by jury?  I wish he would, but that is not likely to happen.  Prosecutors can extort guilty pleas from people like Thompson by using plea-bargaining tactics (pdf).  DC prosecutors will give Thompson an offer he can’t refuse: waive your right to a trial and plead guilty and you’ll get probation.  If Thompson says he’d like to have a jury trial, prosecutors will warn him that if he goes that route, the city will throw the book at him and add a criminal “count” for every single bullet (“unregistered ammunition”) that was in his possession.  Not many people are willing to risk years in prison by taking a case to a jury.  

Bottom line: A crazy quilt of laws and extorted guilty pleas.