Raising Big Money to Fight Big Money?

In the latest of many enthusiastic National Public Radio reports on Professor Lawrence Lessig and his efforts to remove money from politics, Lessig outlines big plans:

In 2016, we want to raise a substantially larger amount of money - could be 200 million, could be 800 million - so that we can win a Congress committed to fundamental reform in the way campaigns are funded.

Well, if spending $800 million in billionaires’ contributions to “win a Congress” won’t knock out big money, what will?

But even if he does raise this kind of money, Lessig might find himself disappointed. You can’t always get what you want, even if you’ve got a lot of money to throw around. From John Connally’s “$13 million delegate” in 1980 to Ross Perot’s $65 million campaign in 1992 to Meg Whitman, Linda McMahon, and Jeff Greene in 2010, the candidates with the most money sometimes fail badly. Or take the billion dollars that Republican groups planned to spend in 2012 to take back the Senate and the White House. 

Given the consistently low priority Americans have placed on “campaign finance reform” for decades and up to the present – the lowest priority in this 2012 Pew poll, save for global warming – even $800 million may not be enough to sway the voters.

John Samples has raised many questions about the advisability of campaign spending restrictions in articles such as this one.

Second Verse, Same as the First

Twitter fight!

Yesterday morning, a line in a New York Times article by Nick Confessore offered me the opportunity for mirthful needling that turned into a full-blown, impossibly brief exchange of views on Twitter.

The article was on Harvard Law Professor Lawrence Lessig’s plan to elect candidates who are committed to his version of campaign finance reform. It quoted Lessig saying, “Inside-the-Beltway people don’t think this issue matters, they don’t think voters vote on the basis of this issue, and they advise their politicians not to talk about it.”

So I tweeted: “I don’t think this issue matters.” Then I tweeted: “Voters don’t vote on the basis of this issue.” (I didn’t bother with the rest because I don’t advise politicians.)

I’m inside the beltway! I’m a people! How could I not?!

Responding to another NYT reporter’s question, I touted my own work as “speech-friendly reform,” linking to our upcoming event on congressional Wikipedia editing. Just think of the prospects if legislative staff—some of the foremost experts about the bills in Congress—contributed information about notable bills to Wikipedia for the public to peruse ahead of congressional debates.

Professor Lessig took the crumb of bait, asking me “how is more speech not speech friendly #Escapethe1990s.” (I still don’t know what the hashtag means.) Assuming he was still working on public/taxpayer funded campaigns—I’m not a follower of Lessig’s in the Twitter sense or any other—I tweeted about the wrong of forcing people to pay to money to support speech with which they disagree.

Lessig’s plan is not detailed on the website of his “Mayday PAC,” which only offers gauzy promises of “fundamental reform.” After some back and forth, I learned that Lessig’s reform plan is not direct public funding, in which taxpayer money goes from the Treasury to campaigns, but indirect. He would rebate $50 in taxes in the form of a “democracy voucher.” The taxpayer could give the voucher to any candidate who pledges only to take such vouchers, it could go to the political party of the taxpayer, or “if an independent, back to this public funding system.”

Tonight, “Penn & Teller: Fool Us”

Cato Mencken Fellows Penn Jillette and Teller launch a new hour-long show, “Penn & Teller: Fool Us,” tonight at 8 p.m. on the CW television network. Here’s an enthusiastic review from Slashfilm:

Magician duo Penn & Teller are finally set to bring one of my favorite UK TV series, Penn & Teller: Fool Us, to broadcast in the States….

One of my favorite UK television television series was a show called Penn & Teller: Fool Us. It was basically a competition series where the world’s best magicians would perform in hopes of fooling Penn & Teller. After the performance, the magic duo would try to vaguely explain how the trick was done (without fully exposing the magic). If they were fooled, the magicians would get a gig as their starting act in Vegas.

Each show would also have Penn & Teller do a trick or two for the television audience. I’m a magic geek and this is probably one of my favorite magic series to ever air. I’ve shown it to a lot of non-magic geek friends, and they all ended up loving it. 

Until 8 p.m., you can listen to Cato’s podcast with Penn Jillette recorded in 2011.

Are Public Schools Safer Than Private Schools?

There is no clearer sign that foes of educational choice have lost the battle of ideas than the Daytona Beach News-Journal’s desperate attempt to smear Florida’s choice law.

Annie Martin’s front-page story in the Sunday edition of the News-Journal contains numerous inaccuracies about Florida’s scholarship tax credit law, which helps tens of thousands of low-income kids attend the school that’s best for them. For example, Martin claims in the second paragraph that the scholarship law “diverted $1.3 billion from state coffers,” which is irresponsibly misleading given that the Florida legislature’s nonpartisan Office of Program Policy Analysis and Government Accountability found that the law saves $1.44 for every $1 in reduced tax revenue. She also repeatedly refers to “publicly-funded” scholarships, though the U.S. Supreme Court ruled that the scholarships consist private funding.

But Martin’s most shameful attack on the educational choice law is her insinuation that children at Florida’s private schools are less safe than children at government-run schools, based solely on a recent case of a private school teacher caught with child pornography:

Yet, the South Daytona school isn’t subject to the same public records laws as the public schools. Although the FBI said fifth-grade teacher Matthew Graziotti had thousands of sexually explicit images of children on his home computer, the school did not have to make his personnel file public.

But is it reasonable to expect private organizations to make their employee files public, even if they receive public funding? Mark Tress, the superintendent of the private school where Graziotti had worked, argues that it is not:

The public records law no more applies to private schools than it does to The News-Journal itself. Hundreds, perhaps thousands, of private businesses receive money from the state and from school districts for services rendered and are not subject to the law. In this case, we are gratefully cooperating with law enforcement officials and have handed over, among numerous school records, the teacher’s personnel file. It sheds no new light.

After briefly noting that private school teachers must go through the same background checks as government school teachers, Martin ominously quotes a professor from the University of North Florida:

Aside from the initial background check for private school teachers, parents generally must trust their private school is exercising due diligence when deciding who to hire, said Luke Cornelius, an associate professor of higher education administration at the University of North Florida.

“Unfortunately, it does create a situation of ‘buyer beware,’” said Cornelius, who also is an attorney. “I think a lot of parents assume private schools, especially a religious one, is an inherently safe place.”

But because they’re not required to be as transparent as the public schools, parents at private schools are “going on faith,” he added. 

DACA Did Not Cause the Surge in Unaccompanied Children

In June, 2012 the Obama Administration announced that it had authored a memo deferring the deportation of unauthorized immigrant childhood arrivals in the United States, a program known as deferred action for childhood arrivals (DACA).  The memo directed then Secretary of the Department of Homeland Security to practice prosecutorial discretion toward a small number of unauthorized immigrants who fulfilled a specific set of characteristics.  In essence, some unauthorized immigrants who had come to the United States as children were able to legally stay and work–at least temporarily. 

Did DACA Cause the UAC Surge?

Some politicians contend that DACA is primarily responsible for the surge in unaccompanied child (UAC) migrants across the border in recent years.  A recent House Appropriations Committee one-pager stated that, “The dire situation on our Southern border has been exacerbated by the President’s current immigration policies.”  Proponents of this theory argue that DACA sent a message to Central Americans that if they came as children then the U.S. government would legalize them, thus giving a large incentive for them to come in the first place.  Few facts of the unaccompanied children (UAC) surge are consistent with the theory that DACA caused the surge.

First, the surge in UAC began long before the June 15, 2012 announcement of DACA.  It is true that DACA had been discussed in late May 2012 but the surge was underway by that time.  From October 2011 through March 2012, there was a 93 percent increase in UAC apprehensions over the same period in Fiscal Year 2011.  Texas Governor Rick Perry warned President Obama about the rapid increase in UAC at the border in early May 2012 – more than a full month before DACA was announced.  In early June 2012, Mexico was detaining twice as many Central American children as in 2011.  The surge in unaccompanied children (UAC) began before DACA was announced.

Second, the children coming now are not legally able to apply for DACA.  A recipient of DACA has to have resided in the United States continuously from June 15, 2007 to June 15, 2012, a requirement that excludes the unaccompanied children coming now.   

Third, if DACA was such an incentive for UAC to come from Central America, why are so few Nicaraguan children coming?  They would benefit in the same way as unaccompanied children from El Salvdaor, Honduras, and Guatemala.  The lack of Nicaraguans points to other causes of the surge.

The timing, legal exclusion of the UAC from DACA, and lack of Nicaraguans indicate that DACA was not a primary cause of the surge.  Of the 404 UAC interviewed by the United Nations High Commissioner for Refugees since 2011, only 9 mentioned that U.S. laws influenced their decision to come to the United States.  Other American laws could have influenced the unaccompanied children to come but DACA is not the main culprit.           

Details on DACA

The DACA beneficiaries, at the time of the memo, would have to fulfill all of these requirements to have their deportations deferred:

  • Under the age of 31,
  • Arrived to the United States before reaching their 16th birthday,
  • Entered the United States without inspection or overstayed a visa prior to June 15, 2012,
  • Continuously resided in the United States from June 15, 2007 to the time of the memo,
  • Physically present in the United States on June 15, 2012, as well as at the time of requesting deferred action from United States Citizenship and Immigration Services (USCIS),
  • Been in school at the time of application, or have already graduated or obtained a certificate of completion from high school, or have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the U.S. Coast Guard or the U.S. Armed Forces
  • Not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Beneficiaries of DACA were also allowed to apply for employment authorization according to the Code of Federal Regulations.  There is a debate amongst legal scholars over whether the administration’s grant of deferred action was legal.  Those who argue that DACA was illegal contend that the President overstepped his constitutional authority to defer the deportation of some unauthorized immigrants.  Those who argue that DACA was legal point to the general power of the Secretary of the Department of Homeland Security to defer enforcement action.  They argue that the Supreme Court has ruled that decisions to initiate or terminate enforcement proceedings fall within the authority of the Executive – an enforcement power used since the early 1970s.  Here is more of their argument.  This disagreement has not been settled.     

By the end of September, 2013, 580,000 requests for DACA were accepted by the U.S. government and 514,800, or 89 percent, were approved.  Seventy-six percent of the requests came from Mexicans.  Twenty-nine percent of the requests were filed from California, 16 percent from Texas, and 6 percent from Illinois.

Budget Smackdown: Krugman vs. Portman and Epstein

In a recent column, Paul Krugman dismissed concerns about the federal debt as a “false alarm,” a “disaster that wasn’t,” and an “imaginary budget and debt crisis.”

Krugman thinks that new CBO projections don’t look too bad. He says, “debt in 2039 — a quarter-century from now! — is projected to be no higher, as a percentage of G.D.P., than the debt America had at the end of World War II.” He concludes that “we don’t have a debt crisis, and never did.”

Gene Epstein of Barron’s looked at CBO’s numbers and Krugman’s claims. He noted that Krugman only looked at CBO’s “baseline” projection, which shows federal debt held by the public rising from 74 percent of GDP today to 106 percent by 2039. Unlike Krugman, I find that increase alarming, especially because there is little political will right now to reverse course and bring down the debt—unlike after World War II.

Also, as I charted here, World War II debt was stunningly high, so I don’t know why Krugman would take comfort in the government becoming that indebted once again. The chart shows that aside from WWII, federal debt has never been anywhere near as high as it is now.

D.C. Circuit Rules that Obamacare Is a “Tax” but Not a “Bill for Raising Revenue”

The D.C. Circuit Court of Appeals today tossed out the latest constitutional challenge to Obamacare, which argues that if the individual mandate is a “tax,” as the Supreme Court said it is, it’s still unconstitutional because it did not originate in the House of Representatives, as the Constitution requires. I argued the case on behalf of entrepreneur Matt Sissel in May.

Today’s decision, written by Judge Judith Rogers and joined by Judges Cornelia Pillard and Robert Wilkins, holds that while the mandate may be a “tax,” it isn’t a “bill for raising revenue,” and is therefore exempt from the Origination Clause.

What’s the difference between a tax and a bill for raising revenue? Some court decisions have held that there are things that may appear to be taxes but are actually only penalties designed to enforce other kinds of laws. For example, in a 1943 case called Rodgers v. United States, the court of appeals said that a tax that was imposed on people for growing more wheat than the government allowed (that’s the same wheat law that was at issue in the infamous Wickard v. Filburn) wasn’t really a tax, but just an enforcement penalty or a fine. Such penalties aren’t “bills for raising revenue,” so they don’t have to start in the House.

The problem with that line of argument is that in NFIB v. Sebelius, the Supreme Court said that the individual mandate, whatever else it might be, is not a penalty or a fine. That’s just why Chief Justice Roberts concluded that it was a tax! And that means that no such exemption should apply.