Topic: Regulatory Studies

Keep Moving, There’s Still Nothing to See Here

In dribs and drabs the plot thickens in the quiet little saga surrounding the GAO’s brutal and broken August report on for-profit colleges. The latest development is the near-silent transformation of the GAO office that produced the knee-capping report that was later quietly reissued with lots of new, for-profit-exonerating material.

I say “near-silent transformation” because word about it somehow got to the Coalition for Educational Success, a career college advocacy group.  Yesterday, CES issued a press release on the matter, and this morning I contacted GAO’s public affairs office about it. To the GAO’s credit, their public affairs folks quickly sent me a copy of a memo announcing the end of the Forensic Audits and Special Investigations (FSI) team. Sadly, it was clear that there would be no public announcement of the change, which is utterly consistent with the behind-your-back way GAO has handled every development in this story. Well, every development save the very public release of the original, fatally flawed report.

Especially concerning is the following passage in the memo, which suggests that the for-profit college report provided the ultimate impetus for giving the FSI a new identity. This despite the FSI having done investigations in numerous other areas:

Since the Forensic Audits and Special Investigations team was formed in 2005 the team’s body of work has resulted in numerous accomplishments and benefits to the Congress and the public. To ensure good work continues and to bring greater management attention to the group and more seamlessly integrate its work with GAO’s program teams as well as the audit and investigative sides of the unit, today I am announcing several changes. These enhancements will also ensure greater attention to the issues that led to the need to produce the errata to the for-profit schools report and by the subsequent inspection.

So why does the group need “greater management attention”? And what exactly are “the issues that led to the need to produce the errata” to the August report?

As a member of the public it sure would be nice to know the answers to these questions, especially since these are the guys who are supposed to be holding the rest of the federal government ”accountable.” For proprietary schools’ employees and investors — the people who were most hurt by the dubious August report — these are thing they absolutely should know. But the GAO insists on telling us that nothing major went wrong while refusing to share information we’d need to confirm that. It’s not only totally unsatisfactory, it only makes you even more suspicious.

Cato’s First Brief in a Patent Case — On Constitutional Grounds

Recognizing an opportunity to make quick and easy money, private attorneys have been suing companies under the False Marking Statute, 35 U.S.C. § 292.  This law allows any person to sue to enforce a federal criminal statute that prohibits anyone from labeling an unpatented product with a patent number or to advertise a product with a patent number that is not actually patented. 

The penalty for violating this law is $500 per offense, which has been interpreted to mean each and every product falsely marked.  For instance, if a business is charged with falsely marking 100,000 products, it could be liable for $50 million.  Private attorneys suing under this statute seek massive amounts in damages and then try to settle with the defendant for a fraction of that cost (still a large amount of money).  Companies often settle even if the case against them has little merit because they do not want to risk such a massive amount in damages.

The longtime toy manufacturer Wham-O, however, successfully defended such a lawsuit in court, provoking the plaintiffs’ lawyers to appeal to the Federal Circuit (the only appellate court below the Supreme Court that can hear patent cases).  Cato, along with my colleague, Walter Olson — who has studied these patent marking cases — filed an amicus brief supporting Wham-O on constitutional grounds.  We argue that the False Marking Statute fails to give the executive branch, through the attorney general, control over the enforcement actions brought at its behest.  By allowing any person to sue and then receive half of the damages, the law abrogates the executive power to enforce the law and places it in the exclusive hands of the private attorney. 

There is clear precedent for this argument:  In the 1988 case of Morrison v. Olson, the Supreme Court upheld the independent counsel statute because it gave the attorney general “sufficient control” over the counsel’s hiring, firing, and investigative scope.  Other courts have held that for a private person to prosecute what is called a “qui tam” action under the False Claims Act — essentially stepping into the shoes of the government — the government must maintain “sufficient control” over the litigation.  The False Marking Statute does not provide sufficient control, or any control, and therefore violates Article II’s “Take Care Clause,” the font of the executive branch’s enforcement duties.

Ultimately, the separation of powers, the foundation for the governmental structure created by the Framers, ensures that laws are enforced by someone accountable to the people, the Executive. The False Marking Statute divests the president of this authority, so the Federal Circuit should strike it down as violating the Constitution’s separation-of-powers structure.

The Federal Circuit will hear FLFMC, LCC v. Wham-O, Inc. this spring.

Pressuring Toyota into an Overcautious Recall

With the news that Toyota has agreed to extend its floor mat and gas pedal recall to another 2.1 million vehicles, mostly SUVs, certain press outlets may slip back into the tone of coverage (Toyota in crisis! Safety mysteries still unresolved!) so prevalent last year before the scare was deflated. Some perspective:

  • As you learned if you read all the way down to paragraph 14 of the hyperventilating L.A. Times report – and never learned at all from some other reports – the National Highway Traffic Safety Administration (NHTSA) is now closing its investigation of alleged sudden acceleration problems in Toyotas. That’s a huge win for the Japanese automaker and the real news of the day.
  • NHTSA insisted, however – presumably as its price for stamping the case as closed – that Toyota expand its recall as happened yesterday.
  • Toyota’s stock went up on the news, not down, suggesting that in investors’ view the price was well worth paying for the automaker to rid itself of the regulatory entanglement.
  • Floor mat jams that obstruct proper operation of the brake and gas pedal are an exceedingly, even freakishly rare cause of unintended acceleration accidents. While they do seem to have been a factor in one much-publicized crash, they have nothing to do with the vast majority of unintended acceleration episodes, which as we now know (or knew all along) arise from drivers’ hitting the wrong pedal by mistake.
  • To the extent floor mat jams are a real safety worry, the main way to avoid them is to not throw extra mats in, and watch out for mats that aren’t intended for the make/model, may be prone to slip around, or both. The New York Daily News spoke to a Toyota manager in Brooklyn: “The biggest problem is people put in an extra mat, and that’s been the real issue,” said Michael Ianelli. “They’re not supposed to put in a second mat.” Much of the recall seems to be aimed at engineering around the problem of careless user maintenance.
  • Murmurings are already being heard that similarly designed Toyota vehicles sold in other parts of the world aren’t subject to the recall – another hint the company may be trying more to keep NHTSA happy than address what it views as a major safety issue.

Millions of dollars will now be spent with very dubious safety benefits. But at least a federal agency will be able to boast that it “did something.”

Snooki Tax Creates Jobs!

The IRS says it needs 1,054 more staffers – at a cost of more than $359 million in fiscal 2012 alone – just to watch over the initial implementation of Obamacare.  And this is before the individual mandate kicks in, the non-compliance with which the IRS is also supposed to police (which by itself doesn’t make the non-compliance penalty, let alone the mandate, a tax – for those of you following the constitutional taxing power arguments).

Among this new IRS battalion will be 81 people assigned to “Snooki tax” enforcement, making sure that tanning salons pay a new 10 percent excise tax.  Their cost: $11.5 million.  (And again for you constitutional taxing power fans: the Snooki tax, because it’s an excise – a tax on a transaction or activity or enjoyment of a privilege – is an actual tax, so no constitutional defects here whatever the wisdom of this policy might be.) 

So don’t let anyone say that Obamacare is “job-killing.”  Clearly the solution to all our unemployment problems is to create all sorts of new taxes and then hire everyone in the country to enforce them against everyone else.  (Also, we should block out the sun to create jobs for candlemakers, which policy would of course go hand in hand with outlawing incandescent light bulbs.)

H/T: Josh Blackman

Why Ryan-Rivlin Beats ObamaCare on Costs — and Spending

Washington Post blogger Ezra Klein asks of Rep. Paul Ryan’s (R-Wisc.) Medicare voucher proposal (co-authored with former Congressional Budget Office director Alice Rivlin):

Why are the cost savings in his bill possible, while the cost savings in the Affordable Care Act aren’t?…when it comes to the ACA, Ryan firmly believes that seniors will quickly and successfully force Congress to reverse any reforms that degrade their Medicare experience. That’s a fair enough concern, of course. What’s confusing is why it isn’t doubly devastating when applied to Ryan-Rivlin.

Set aside that Klein violates Cannon’s First Rule of Economic Literacy: Never say costs when you mean spending.  And that he uses the word “affordable” to describe ObamaCare.

There are two reasons why the Medicare spending restraints in the Ryan-Rivlin proposal are more likely to hold than those in ObamaCare.

First, ObamaCare’s restraints amount to nothing more than ratcheting down the price controls that traditional Medicare uses to pay health care providers.  Structuring Medicare subsidies in this way – setting the prices that Medicare pays specific providers – makes it very difficult to lower those prices, because the system itself creates huge incentives for providers to organize and lobby to undo those restraints.  As I explain more fully in this op-ed from September 2010, Medicare vouchers would change that lobbying game by reducing the incentives for provider groups to expend resources in the pursuit of higher Medicare spending.  That gives the Ryan-Rivlin restraints a much better shot at surviving.  (Seriously, it’s a pretty cool feature.)

Second, Klein predicts a backlash against Medicare vouchers because he says it amounts to “giving seniors less money to purchase more expensive private insurance.”  The notion that Medicare is less costly than private insurance is pure, uninformed nonsense.  Medicare and a “public option” are attractive to the Left precisely because such programs hide the full cost of their operations from enrollees and taxpayers.  It is a virtue of vouchers that they would reveal to Medicare enrollees the actual prices of the coverage and services they demand, because that information will spur enrollees to be more cost-conscious when selecting a health plan and consuming medical services.  That, in turn, will force insurers and providers to compete on the basis of cost to a degree never before seen in this nation, competition that will generate the sort of cost-saving innovations that Jim Capretta discusses here.

Both of these reasons boil down to the truism that nobody spends other people’s money as carefully as they spend their own.  We’ll make a lot of progress in this country when the Left realizes how much damage they’ve done by ignoring that truism.

Fixing the Economy Demands More Than a Stroll across Lafayette Park

President Obama’s visit with the Chamber of Commerce this week has infuriated the anti-business Left.  But short of expropriation and nationalization, what doesn’t? 

Robert Reich and NPR and the scribes at the Huffington Post just don’t get it.  Their man may be in the White House, but business holds the keys to the kingdom.  Whether the president’s priority is job creation or reelection, nothing matters more than sustained economic growth. And without business having confidence that policy in the United States will become more hospitable and predictable, investment and job creation will remain tepid.

The president doesn’t have nearly the leverage assumed in the delusions of groups like Public Citizen, which wrote: “What America needs is not olive branches to giant corporations but controls over the companies that sank the economy.”  Back here in reality, businesses have options.  Many can choose to produce and operate in other countries, where the economic environment may be more favorable.  In that regard, globalization has produced a veritable Galt’s Gulch, which serves as an important check on bad economic policy.  Governments are now competing with each other to attract the financial, physical, and human capital necessary to nourish high value-added, innovation-driven, 21st century economies.  Gratuitously punitive anti-business policies will only chase away the companies that the president exhorts to invest and hire.

According to a survey of 13,000 business executives worldwide, conducted by the World Economic Forum, 52 countries have less burdensome regulations than the United States.  Add to that the fact that the United States has the highest corporate tax rate among all OECD countries and it becomes less mysterious why U.S. businesses shift more operations abroad.

As I wrote in a December 2009 Cato paper:

Governments are competing for investment and talent, which both tend to flow to jurisdictions where the rule of law is clear and abided; where there is greater certainty to the business and political climate; where the specter of asset expropriation is negligible; where physical and administrative infrastructure is in good shape; where the local work force is productive; where there are limited physical, political, and administrative frictions.

This global competition in policy is a positive development.  But we are kidding ourselves if we think that we don’t have to compete and earn our share with good policies.  The decisions we make now with respect to our policies on immigration, education, energy, trade, entitlements, taxes, and the role of government in managing the economy will determine the health, competitiveness, and relative significance of the U.S. economy in the decades ahead.

The president is beginning to get it – though grudgingly.  He acknowledges the burdens of excessive and superfluous regulations and bureaucracy (remember his SOTU story about the jurisdictions entangled in the salmon’s journey from salt water to fresh water to the smoker?).  The president has hinted that he would like to see the corporate tax rate lowered.  He knows that businesses have options to invest, produce, and hire abroad—and that oftentimes U.S. policy chases them there.  But, so far, rather than push policies to encourage domestic investment, production, and hiring, the president has done the opposite, while demonizing businesses that follow the incentives to go abroad.

The president’s position during his exchange at the Chamber of Commerce was that he has made concessions to business by moving toward the center on tax and trade policy, and that now it is time for business to show good faith by investing and hiring.  But Obama’s small steps toward the center come after two years of sprinting to the left on economic policy.  After ObamaCare, Dodd-Frank, taxpayer bailouts, unorthodox and legally-questionable bankruptcy procedures, subsidies for select industries, Buy American and other regulations governing how and with whom “stimulus” dollars could be spent, and the administration’s tightening embrace of industrial policy, businesses want a more quiet, less intrusive, less antagonistic, predictable policy environment before they will feel comfortable playing the role Obama wants them to play.

Until that happens, the president shouldn’t expect torrents of investment and hiring from the business community.

Google under Siege in the Corporate State

“Google is under siege in Washington like never before,” Politico reports.

In an interview with POLITICO, a Google spokesman argued that a cabal of antitrust lawyers, lobbyists and public relations firms is conspiring against the Internet search giant. The mastermind? Google says it’s Microsoft.

Maybe it’s irony, or maybe it’s payback.

In the 1990s, Microsoft was the tech industry wunderkind that got too big for its britches — and Google CEO Eric Schmidt, then an executive at Sun Microsystems and later Novell, helped knock the software titan down a peg by providing evidence in the government’s antitrust case against it… .

But there are also increasing calls from some Silicon Valley competitors and Washington-based public interest groups for the Justice Department to launch a sweeping antitrust probe of Google. The European Union and the state of Texas have reviews under way.

Google says its rivals are fueling the attacks.

You could have read it here first. In the November-December 2010 issue (pdf) of Cato Policy Report, Adam Thierer wrote, “The high-tech policy scene within the Beltway has become a cesspool of backstabbing politics, hypocritical policy positions, shameful PR tactics, and bloated lobbying budgets.” The telcos, the broadcasters, the wireless industry, the entertainment industry – they all want the federal government to crush their competitors. And, he said, “Everybody — and I do mean everybody — wants Google dead, right now. Google currently serves as the Great Satan in this drama — taking over the role Microsoft filled a decade ago — as just about everyone views it with a combination of envy and enmity.” But then:

Of course, in a sense, Google had it coming. The company has been the biggest cheerleader in the push to impose “Net neutrality” regulation on the Internet’s physical infrastructure providers, which would let the FCC toss property rights out the window and regulate broadband networks to their heart’s content.

Meanwhile, along with Skype and others, Google wants the FCC to impose “openness” mandates on wireless networks that would allow the agency to dictate terms of service. It’s no surprise, then, that the cable, telco, and wireless crowd are firing back and now hinting we need “search neutrality” to constrain the search giant’s growing market power. File it under “mutually assured destruction” for the Information Age.

Google had it coming in another sense, having joined the decade-long effort by myriad Silicon Valley actors to hobble Microsoft through incessant antitrust harassment.Google has hammered Microsoft in countless legal and political proceedings here and abroad.

Thierer also noted that you could have predicted all this by reading Cato publications a decade earlier, such as Cypress semiconductor CEO T. J. Rodgers’s 2000 manifesto, “Why Silicon Valley Should Not Normalize Relations with Washington, D.C.” (pdf). Or indeed Milton Friedman’s 1999 speech on “The Business Community’s Suicidal Impulse”: “You will rue the day when you called in the government. From now on the computer industry, which has been very fortunate in that it has been relatively free of government intrusion, will experience a continuous increase in government regulation.”

You (could have) read it here first.