Topic: Regulatory Studies

The Water Bed Effect in Drug Prohibition

If you lie down on a water bed, the amount of water does not change; it just moves elsewhere.

A similar phenomenon occurs with drug prohibition; targeting one drug reduces its use, but that displaced demand shows up somewhere else.

According to a new WaPo story, this is exactly what has occurred over the past ten years with respect to prescription opiates and heroin. As enforcement cracked down on Oxycontin and similar medications, demand shifted to heroin. And since purity information is noisy for an illicit good, heroin deaths increased noticeably.

Prohibition advocates will presumably respond with calls for greater enforcement against both prescription opiates and heroin, but the right response is the opposite. While opiate use carries risks, opiate prohibition makes these worse. Higher prices caused by prohibition, for example, encourage users to inject to get a big bang for the buck.  But then prohibition-induced restriction of clean syringes fosters needle-sharing, spreading HIV.

The right test for policy is never whether some good or activity is “risky,” but whether government intervention reduces those risks, and at what costs.  Drug prohibition fails this test.

When Tolerance Becomes Intolerance

Individual liberty took another hit with Arizona Gov. Jan Brewer’s veto of legislation enhancing protection for people’s religious principles while doing business. Gov. Brewer suggests that if you hang out a shingle you should leave your deepest beliefs at home. 

The issue in Arizona was not a lack of tolerance by those in business. There is no dearth of firms across the state willing to serve gays.

Instead, the question was tolerance for those in business. Should you be expected to abandon your conscience the moment you step into the commercial world? 

Indeed, why would a gay couple insist that a Christian opposed to gay marriage photograph their wedding or prepare their cake? There’s no need to force those with unfashionable views to affirm what they reject. 

ObamaCare’s contraception mandate has a similar effect—and almost certainly received vigorous support on the left for precisely this reason.  As I pointed out in the American Spectator online:

the point was always state-mandated intolerance rather than health care. The objective was to force Catholics, mostly, and the few fundamentalist Protestants who hold similar theological views, to pay for what they oppose. In fact, there is no better way to humiliate those you dislike. It is pure and unadulterated intolerance, the ultimate Washington triumph: Make those you despise pay for what they despise.

Leaving people largely left alone to manage their own lives should be what a free society is all about. Of course, those who are on the receiving end of social disapproval understandably don’t like the result. But no one has a “right” to be served by any particular person. Forcing someone into servitude is infinitely worse than simply finding someone else to do the job. 

The right response is to change social attitudes. My friend Sheldon Richman at the Future of Freedom Foundation pointed to the use of “boycotts, publicity, and ostracism” to penalize those who refuse service. Such activism is why gay marriage has gone from a policy wish to dominant law in just a few years. 

Unfortunately, throughout history newly empowered minorities often learn the wrong lesson. Rather than create barriers to new state injustices, some people use law for their own advantage. Hence state persecution of the New Mexico wedding photographer who felt she could not promote gay ceremonies which she believed to be wrong.

End the Drug War: The American People are Not the Enemy

Drug use is bad. Arresting people for using drugs is worse. With the states of Colorado and Washington leading the way, the federal government should drop criminal penalties against those who produce, sell, and consume drugs.

The so-called Drug War has been a violent, often deadly, assault on the American people. There’s no obvious moral reason to demonize the use of mind-altering substances which are widely used around the globe. Obviously, drugs can be abused, but so can almost anything else. 

Some people still may abhor drug use as a matter of personal moral principle, but the criminal law should focus on inter-personal morality, that is, behavior which directly affects others. Basing criminal strictures on intra-personal morality essentially puts government into the business of soul-molding, a task for which it has demonstrated little aptitude. 

Moreover, whatever one’s moral sensibilities, drug prohibition has allowed extremely high use while yielding all of the counterproductive impacts of criminalization. The direct enforcement costs run more than $40 billion a year and affect every level of government. Forgone tax revenue is even greater. Attempting to suppress an enduring and profitable trade also has corrupted virtually every institution it has touched—police, prosecution, judiciary, Drug Enforcement Agency, and even military. 

As I point out in my article for the Intercollegiate Studies Institute,

Perhaps the most perverse impact of the Drug War has been to injure and kill users.  Far from protecting people from themselves, prohibition actually makes drug use more dangerous.  For instance, actor Philip Seymour Hoffman chose to use heroin, but he could never be certain as to its quality, purity, and potency.

Threatening addicts with jail also makes them less likely to seek assistance. The drug war encourages needle-sharing by IV drug users. Congressional lawmakers fight to keep marijuana off-limits to the ill.

In Defense of Truthiness

If you only read one Cato brief this Supreme Court term, it should be this one.

Believe it or not, it’s illegal in Ohio to lie about politicians, for politicians to lie about other politicians, or for politicians to lie about themselves. That is, it violates an election law—this isn’t anything related to slander or libel, which has higher standards of proof for public figures—to make “false statements” in campaign-related contexts.

During the 2010 House Elections, a pro-life advocacy group called the Susan B. Anthony List (SBA List), published ads in Ohio claiming that then-Rep. Steven Driehaus, who was running for re-election, had voted to fund abortions with federal money (because he had voted for Obamacare). Rather than contesting the truth of these claims in the court of public opinion, Driehaus filed a complaint with the Ohio Election Commission (OEC) under a state law that makes it a crime to “disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false.”

While the complaint was ultimately dropped, the SBA List took Driehaus and the OEC to federal court, seeking to have this law declared unconstitutional and thus enable advocacy groups to have more freedom going forward. The case has now reached the Supreme Court.

Joined by legendary satirist (and Cato’s H.L. Mencken Research Fellow) P.J. O’Rourke, our brief supports the SBA List and reminds the Court of the important role that “truthiness”—facts you feel you in heart, not in your head—plays in American politics, and the importance of satire and spin more broadly. We ask the Court a simple yet profound question: Doesn’t the First Amendment’s guarantee of free speech protect one man’s truth even if it happens to be another man’s lie? And who’s to judge—and on what scale—when a statement slides “too far” into the realm of falsehood?

However well intentioned Ohio legislators may have been, laws that criminalize “false” speech don’t replace truthiness and snark with high-minded ideas and “just the facts.” Instead, they chill speech, replacing the sort of vigorous political dialogue that’s at the core of the democratic process with silence. The Supreme Court of all institutions should understand that just because a statement isn’t fully true, that doesn’t mean it doesn’t have its place in public discourse. Moreover, pundits and satirists are much-better placed to evaluate and send-up half-truths than government agencies.

The Supreme Court will hear argument in Susan B. Anthony List v. Driehaus on April 22.

Obama Administration Rips Off Middle Class and Threatens Elephants

As I’ve written before, the Obama administration plans to effectively ban the sale of all ivory in America, even if purchased or inherited legally years ago. If you can’t prove its age, you can be arrested and have your property confiscated—unless you are well-connected and exempted.

Elephants are being killed for their ivory. Activists unable to protect the animals now are targeting Americans who followed the law in buying and selling legal old ivory objects. 

But as I point out my latest piece in the American Spectator:

advocates of banning antique sales seem more interested in punishing people who bought and sold ivory legally because they bought and sold ivory, not because doing so would prevent poaching.  It is an exercise in moral vanity and political posturing, not practical conservation.

Some ban proponents complain of the difficulty of distinguishing between new and old ivory. Actually, European carving disappeared decades ago. Asian carving continues, but old and new differ in character, subject, wear, age, coloring, quality, and more. 

Nor do collectors of and dealers in antiques seek out poached ivory. Punishing people who followed the law and invested in legal objects might make a few extremists feel good, but won’t save a single elephant today.

Ivory entered America legally until 1989. Antiques with proper certification could be imported after that. But in mid-February the administration announced that if you had followed the law, it planned to render your collection or inventory essentially valueless.

The new guidance from the U.S. Fish and Wildlife Service indicated that most every auctioneer, collector, and dealer—and anyone else who has purchased or received something made of ivory—better hire a lawyer before selling their ivory possessions. 

The prospective rules are biased against average folks. If you represent the non-profit cultural establishment, you’ll get around the rules.

Point one, no “commercial” imports even of antiques will be allowed. However, the rules apparently will exempt “museum and educational specimens.” According to the administration’s reasoning, non-profit institutions will have a unique right to continue driving elephants to extinction.

Point two, exports are banned, except antiques in what the government calls “exceptional circumstances.” But “certain noncommercial items” will be allowed, so people with friends in government likely will be able to hurdle any new burdens in a single bound. Everyone else better hire a lawyer or lobbyist.

Political Poster Week Continues: “Safety First”

Art Deco prohibition poster, traffic "Safety First"

Countless gorgeous posters, many of them French, promote the consumption of alcohol, but few achieve high style while arguing the Prohibitionist cause. Anti-saloon campaigners were better known for sketches of sentimentally drawn children, drunks in gutters, and pinstriped tycoons in top hats raking in bucks from the liquor traffic (imagery that reminds us of the close affinity between that and other Progressive-era anti-business movements). 

So where’d this Art Deco gem come from? It’s not immediately clear. It would be easy to mistake it for a simple traffic-safety poster, until you notice that as the vehicles whiz past each other in their Futurist way, the red diagonal that keeps them separate is labeled “PROHIBITION.” My online quest for its origins came up blank: among the few clues is the artist signature “LEW” at lower left, which also appears on this almost equally striking poster for the anti-alcohol cause. The latter poster includes the phrase “Outlawed or Legalized,” and the use of “z” rather than “s” in “Legalized” suggests American rather than British origin. 

In retrospect, of course, we know the traffic-safety message was to prove far more effective as an impetus to legal restriction of alcohol than most of the others. It would seem strange today for public officials to lecture us against enjoying a glass of Merlot based on moral disapproval or concern for our family responsibilities, but few flinch when the police chief of Austin proposes criminalizing driving on a meager 0.05 blood alcohol, with a Texas state senator explaining: “Some people shouldn’t be driving after one drink.”

Proposed IRS Rulemaking Would Chill Public Advocacy

Tomorrow ends the comment period for a proposed IRS rule that would change the way groups from the Sierra Club to the NRA advocate on behalf of their members. By defining “candidate-related political activity” as the rule has, election time could compel these groups to scrub their websites and Twitter feeds of almost any mention of political candidates.
 
On March 4, join us for an event exploring the proposed rule. And you can learn more by listening to today’s Cato Daily Podcast with Allen Dickerson, legal director of the Center for Competitive Politics.

You can always subscribe to the podcast here.