Topic: Political Philosophy

Unequal Justice?

There it was, emblazoned across the front page of the Washington Post, a headline made especially disturbing by its publication on July 4:

Justice Is Unequal for Parents Who Host Teen Drinking Parties

What did it mean, I wondered. Poor parents go to jail, rich parents walk? The law is enforced in black neighborhoods, winked at in white suburbs?

Not exactly. In fact, the Post reported,

In Virginia and the District, parents who host such parties can be charged with contributing to the delinquency of a minor, a misdemeanor that can carry jail time. In Maryland, hosting an underage drinking party is punished with a civil penalty, payable with a fine, even for multiple offenses.

So it’s not a story about unequal justice, just about different jurisdictions with different laws. But the Post sees it differently:

The stark contrast in punishments is just one inconsistency in a patchwork of conflicting legal practices and public attitudes about underage drinking parties.

“Inconsistency.” “Patchwork.” “Conflicting legal practices.” This is ridiculous. Move along, folks, nothing to see here. On the Fourth of July, let’s pause to remember: The United States is a federal republic, not a unitary centralized state. Different states and even different cities and counties have different laws.

One of the benefits of a decentralized republic is that laws can reflect people’s different values and attitudes. Decentralism also allows states and counties to be “laboratories of democracy.” If voters in Maryland and the District of Columbia read about how Virginia sentences parents to 27 months in jail for serving alcohol to teenagers after taking away their car keys — and they think that sounds like a good idea — then they can change their own laws. Or if Virginia voters notice that Maryland has a slightly lower highway fatality rate, then they might decide to change their laws.

States in our federal republic have different laws about lots of things, certainly including alcohol since the repeal of national Prohibition. I grew up in a dry county in Kentucky — no legal sales of alcohol of any kind — but neighboring counties were wet. The old joke was that Bourbon County was dry while Christian County was wet, but that seems not to be true any more. First cousins can marry in some states but not in others. The rules used to vary on interracial marriage until the Supreme Court stepped in and banned laws against it. In the past couple of years we have begun to experience different state laws on same-sex marriage.

Some people seem to want all laws to be uniform across this vast nation, from California to the New York Island, from the redwood forest to the Gulf stream waters, from sea to shining sea. They use their power in Congress to impose national speed limits, national environmental rules, national school testing laws, national marijuana bans, and so on. But the beauty of America is that we have resisted many of those pressures, and there are still real differences in the laws of San Francisco and San Antonio; Manhattan, New York, and Manhattan, Kansas; Wyoming and Wyomissing, Pennsylvania.

The laws are even different in Virginia and nearby Maryland. That does not mean that justice is unequal.

Happy Birthday, America—and Thanks for Having Me

This will be my first July 4th holiday in Washington, DC. Last year I was in New York City with my family, celebrating my 30th birthday (yes, I’m a bicentennial baby). So I am looking forward to seeing how the nation’s capital celebrates Independence Day.

As a recent arrival, I know that my experience of Independence Day is necessarily limited. But the ideals upon which America was based and which we celebrate tomorrow are common to many around the world, no matter where they call home. The American dream–to make a better life for yourself and to pursue whatever brand of happiness to which you aspire–is the human dream. As David Boaz notes in his podcast (mp3) today, the line of people at the immigration centers of American embassies is larger than the line of picketers outside, no matter how harsh the criticisms of the rest of the world can seem.

The government and the country are not the same thing. So for all those who have taken offense at a foreigner criticising U.S. farm and trade policy over the last year, please know that I will be celebrating a wonderful country tomorrow, along with all of you.

Cato@Liberty: Safe For Children

Libertarians are often associated with such out-of-the-mainstream activities as drugs, gambling, prostitution, etc., because out-of-the-mainstream activities are the very things that intolerant mainstream types try to stamp out via coercion.

But according to the web site mingle2.com, the Cato@Liberty blog you’re reading right now would be rated PG by the motion picture industry.  Evidently, the words “drugs” and “torture” kept us from getting that coveted G-rating. 

Good god, have we gone mainstream?

Heritage — Unhealthy

In his post on the differences over energy policy between the (conservative) Heritage Foundation and the (libertarian) Cato Institute, Jerry Taylor mentions that the two Washington think tanks also have differences regarding health care. For those who are curious, here’s where I see the biggest differences between Cato scholars and Heritage scholars on health policy:

The Heritage Foundation’s health policy team generally supports having the government force people to buy health insurance. Cato scholars generally do not. A couple of weeks ago, Heritage’s director of health policy studies Bob Moffit wrote in the San Diego Union-Tribune:

[M]y Heritage Foundation colleagues and I support the “personal responsibility principle.” It’s a simple idea: All adults have a responsibility to buy their own health insurance, pay their own health care bills, and not shift those costs to others….

People who can reasonably afford it have a responsibility to buy health insurance to protect themselves and their families against the financial devastation of catastrophic illness….

People who do not wish to buy health insurance for whatever reason should be free to do so. But, in exchange, they must demonstrate in some tangible way that they are really going to pay their own hospital bills. 

My Cato colleagues and I generally differ, for a number of reasons: such “individual mandates” are impractical, ineffective, and expand government power beyond its legitimate scope. Government should and does require people to pay their debts, meaning that patients already are legally responsible for their medical bills. The Heritage “personal responsibility principle,” on the other hand, would hold a Christian Scientist responsible for debts that he will never incur.

In addition, Heritage scholars embrace the idea that government should pursue “universal coverage.” Meanwhile, I do things like start the Anti-Universal Coverage Club (whose membership is growing).

There are many areas where Cato and Heritage scholars agree. I personally respect every member of their health policy team. Why, just yesterday Cato hosted Heritage’s Ed Haislmaier at a forum where we released a study critical of the Heritage-backed Massachusetts health plan. 

Where we disagree, we criticize. But I consider such criticism a form of praise. The only reason we bother to criticize is because what Heritage scholars say matters.  A lot.

This Cato-Heritage disagreement over health care goes back more than a decade. It contributes to the free-market movement’s lack of direction on health care reform. The movement cannot move on in a unified manner until that disagreement is resolved.

Announcing the Anti-Universal Coverage Club

Inspired by National Review’s recent editorial and Andrew Sullivan’s embrace of same (as well as by Greg Mankiw), I have decided it would be fun and educational to keep tally of those who reject the idea that federal or state governments should strive to provide every American with health insurance.  Call it the Anti-Universal Coverage Club.

Here are the guiding principles of the Anti-Universal Coverage Club:

  1. Health policy should focus on making health care of ever-increasing quality available to an ever-increasing number of people.
  2. To achieve “universal coverage” would require either having the government provide health insurance to everyone or forcing everyone to buy it.  Government provision is undesirable, because government does a poor job of improving quality or efficiency.  Forcing people to get insurance would lead to a worse health-care system for everyone, because it would necessitate so much more government intervention.
  3. In a free country, people should have the right to refuse health insurance.
  4. If governments must subsidize those who cannot afford medical care, they should be free to experiment with different types of subsidies (cash, vouchers, insurance, public clinics & hospitals, uncompensated care payments, etc.) and tax exemptions, rather than be forced by a policy of “universal coverage” to subsidize people via “insurance.”

If you’d like to join the Anti-Universal Coverage Club, let me know by posting something to your own blog, or by emailing me mcannon [at] cato [dot] org (here).  Feel free to forward items from other like-minded individuals.

I predict that neither the American Medical Association, nor the Federation of American Hospitals, nor America’s Health Insurance Plans will join the Anti-Universal Coverage Club.

Government Makes Things Worse, Not Better

In this column, John Stossel eviscerates David Brooks, the ostensibly conservative columnist for the New York Times. Brooks has argued for big new government initiatives to boost human capital. Stossel correctly explains, though, that Brooks wants to expand failed government programs when the right approach is to move in the other direction:

David Brooks is a bright guy, so I wonder how he can blame the free market for failing in this way. He continues, “Despite all the incentives, 30 percent of kids drop out of high school and the college graduation rate has been flat for a generation.” Excuse me, but why is that the market’s fault? Government dominates education in America. K-12 education is a coercive, often rigidly unionized government virtual monopoly that fights every attempt to experiment with free-market competition. Brooks writes that Hamiltonians like him “think government should help people get the tools they need to compete.” But when has government ever been good at that? He claims the state can “increase the quality of human capital” by, for example, providing “Quality preschool [to] help young children from … disorganized homes. … ” Really? What is the chance that it would be “quality” preschool if government runs it? Even the acclaimed Head Start has not been shown to have any lasting effect on academic performance. …When I asked Brooks why a government that performed as ineptly as FEMA did after Hurricane Katrina will be better at running preschools, he said, “Some lives are so screwed up, it’s hard to make them worse.” Government coercion almost always makes things worse. It discourages individual effort, and sucks capital away from more productive uses. …America became an economic power despite, not because of, Hamiltonian intervention. Hong Kong and much of East Asia went from abject poverty to affluence in a few decades not because their governments gave people “tools they need to compete” – they didn’t – but because they exercised limited powers.

Enough is Enough

Three years ago the U.S. Supreme Court handed down McConnell v. FEC, a decision that upheld McCain-Feingold’s restrictions on political speech. The future seemed bleak for any limits on government regulation of speech and association.

But things are looking up. Today the Supreme Court handed down its decision in Federal Election Commission v. Wisconsin Right to Life.

McCain-Feingold made it a federal crime for any corporation to broadcast, 30 to 60 days before an election, any communication that mentions a federal candidate for elected office and is aimed relevant voters.  Wisconsin Right to Life (WRTL) is an ideological corporation that accepted funding from other corporations. Its members wanted to run ads in 2004 urging citizens of their state to contact its two senators and urge them to oppose a filibuster of judicial nominees. Sen. Russ Feingold, one of the senators and a co-author of the law in question, was running for re-election. Wisconsin Right to Life’s advertising plans thus constituted a federal crime. At least, they were a crime if the relevant part of McCain-Feingold was constitutional as applied to WRTL. In fact, McCain-Feingold was constitutionally invalid in this case and probably many others.

To understand why requires a quick summary of campaign finance law. Congress long ago prohibited contributions to candidates from the general treasuries of corporations and labor unions. But corporations could fund ads commenting on the issues of the day. However, if those ads directly advocated the election or defeat of a candidate, they became an attempt to circumvent the ban on corporate contributions and thus a federal crime. In Buckley v. Valeo, the Court said such “express advocacy” contained words like “elect” and “defeat.” If an ad did not use the words, it was not express advocacy and hence, not subject to campaign finance regulation.

In the 1990s some businesses and labor unions started funding advertising that met the legal standards for issue advocacy. The ads were legal and often highly critical of vulnerable members of Congress in the run up to an election. McCain-Feingold made such speech illegal. It said corporations could not fund ads that mentioned a candidate for federal office with 30 to 60 days of an election. The McConnell Court went along arguing that the ads in question were the “functional equivalent of express advocacy.” In the WRTL decision, the author of the majority opinion, Justice Roberts, has contracted rather than expanded the scope of government regulation. He has done so by redefining the meaning of express advocacy: “a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” The WRTL ad seemed to a reasonable person to be attempt at grassroots organizing. Hence, WRTL wins.

But this standard implicates more than this case. Many of the ads in the 1990s that were the target of McCain-Feingold might have been free of regulation under this standard. Reasonable people could have believed that the ads were attempts to persuade voters to contact their representatives. The political space free of government regulation seems to have expanded. Indeed, it seems possible that many fewer ads will be judged the “functional equivalent of express advocacy” in the future.

So, the good guys won one at last. “Enough is enough,” as Justice Roberts writes in considering efforts to further expand government control of politics.

But still there is reason to worry. The majority did not declare the relevant part of McCain-Feingold unconstitutional. Justice Alito did suggest a willingness to hear constitutional challenges to the McConnell decision (and hence, to McCain-Feingold). Justice Roberts also set out some criteria for the “express advocacy” that are fairly broad. An ad that mentions “an election, candidacy, political party, or challenger; or [that takes] a position on a candidate’s character, qualifications, or fitness for office” could become express advocacy depending on future judgments by the Court and perhaps, by the Federal Election Commission.

An important battle has been won. The war continues.