Get Your Laws off My Body … of Constitutional Rights

One of the underappreciated costs of Roe v. Wade is its potentially radioactive effect on other rights.  Exhibit A:  The debate over the federal Partial Birth Abortion Act, whose constitutionality the Supreme Court will consider tomorrow during oral argument in Gonzales v. Carhart

The Act, passed in 2003, attempts to do what the Supreme Court told the Nebraska legislature it couldn’t do in Stenberg v. Carhart:  ban partial birth abortion without providing any exception for the health of the mother.  Why does Congress think it can tread where Nebraska couldn’t?  Because Congress, unlike the Nebraska legislature, inserted legislative findings in its version of the act, and those findings state that partial birth abortion is never “medically necessary” to a woman’s health.  The Solicitor General, in turn, contends that those findings deserve deference.

Now, I’m no fan of Roe or partial birth abortion.  But the case is about more than abortion:  If the Supreme Court owes Congress blanket deference when it determines facts that affect the scope of a Court-declared constitutional right, then the ever-shrinking power of the Supreme Court to “say what the law is” has shrunk to a disturbingly low ebb.

The costs for other judicially protected rights, if the Court took up the SG’s suggestion, are unnerving.  Imagine, say, that Congress finds that affirmative action in schools of higher education that sponsor ROTC is necessary to promote an effective multicultural military.  Should that trigger a compelling interest exception to strict racial neutrality?  Or imagine that Congress finds that affirmative action in higher education is needed not for another 25 years, as Justice O’Connor hypothesized in Grutter v. Bollinger, but another 30 or 40?  Or that Congress finds that EPA-sanctioned eminent domain in dense urban residential areas constitutes a “public use” under the Takings Clause when exercised in favor of environmentally conscious developers who commit to redevelop the land to create more green space?

If, as many conservatives hope, the Court in Carhart declares that Congress can determine facts that affect the scope of a right, all of those arguments will be far more plausible, as a matter of precedent, than they are today, a point Cato makes in its heterodox amicus brief supporting the pro-choice side in Carhart.

This danger underscores one of the toxic costs of Roe:  When the Court is unable to overturn Roe, but nonetheless holds the case in relatively low esteem, the temptation is strong to give Congress more and more power to nibble at its edges.  Once Congress is granted the power to nibble at one set of rights, all other rights are suddenly less secure.

Here’s one way the Court might avoid this danger, while simultaneously avoiding entrenching Roe in our law:

1.  Reject deference to Congress’s legislative findings because Congress deserves no special deference in an area where states are the primary regulators of medical practice by tradition and constitutional structure. 

2.  Reaffirm that Casey requires intermediate, not strict, scrutiny of infringements on the “fundamental right” to abortion, while reserving the merits of the Roe line for a later case.

3.  Note, finally, that while Congress’s findings are insufficient to overcome women’s liberty interests under the intermediate scrutiny test, state legislation is a different matter.  Were a state to pass a version of the bill passed by Congress, containing similar findings, the Court would be willing to consider granting them the deference denied Congress.  

By underscoring that strict scrutiny doesn’t apply to abortion regulations, this argument would avoid further erosion of the principle that legislatures deserve no deference when they find facts relevant to the scope of rights protected by strict scrutiny.  By giving states, not Congress, deference when they enact partial birth abortion bans accompanied by appropriate findings, the Court would return some modicum of power over abortion regulation to the states, where this power belongs.  (Of course, the Court could go even farther:  by declaring the Act beyond Congress’s enumerated power to regulate commerce–but, given that argument hasn’t been made and Raich gave up the ghost on this set of arguments–that’s simply not on the table.)

The most likely proponent of such an argument, alas, is the ever-unpredictable Justice Kennedy, a Roe fan who dissented in Stenberg based on the proposition that states deserve leeway to manage the medical trade-offs of abortions, short of an outright ban.  Unfortunately, Kennedy is also the author of the Turner I and Turner II cases, which establish that deference is owed, at a minimum, to Congress’s predictive fact-finding in areas that implicate First Amendment rights subject to intermediate scrutiny.  And that, sports fans, makes Carhart the most hair-raising case of this Supreme Court term.

Gannett to Use Peer Production

News outlets are fascinated with the news business, so quite a few stories have been flying around the last few days about the Gannett newspaper chain’s decision to use citizen journalists.

Writes the Washington Post, for example:

Gannett is attempting to grab some of the Internet mojo of blogs, community e-mail groups and other ground-up news sources to bring back readers and fundamentally change the idea of what newspapers have been for more than a century… . 

The most intriguing aspect of Gannett’s plan is the inclusion of non-journalists in the process, drawing on specific expertise that many journalists do not have. In a test at Gannett’s newspaper in Fort Myers, Fla., the News-Press, from readers such as retired engineers, accountants and other experts was solicited to examine documents and determine why it cost so much to connect new homes to water and sewer lines. The newspaper compiled the data and wrote a number of reader-assisted articles. As a result, fees were cut and an official resigned.

It’s all quite reminiscent of Friedrich Hayek’s articulation of how the price system turns local knowledge into a useful form and thus better organizes human action than any centrally planned system.

The blogosphere (writ large) can and often does surface relevant knowledge better than any group of reporters, no matter how smart or dedicated. Gannett is wise to recognize this and incorporate superior local knowledge-gathering into its business model.

Direct Democracy

Aside from voting for “Congress critters,” Americans in many states today have a chance to directly control government fiscal policy.

They will be voting on whether to approve $80 billlion in government bonds in states and cities across the country, including a huge bond package in California endorsed by Governor Arnold Schwarzenegger. Voters usually approve about two-thirds of proposed bonds, but hopefully they will be more skeptical this year given their generally foul mood toward politicians and government. 

In addition, voters have a chance to approve new budget limits on spendthrift politicians in Maine, Nebraska, and Oregon. Most states already have detailed restrictions on their budgets such as balanced budget requirements. This year’s proposals would impose limits on annual increases in taxes and spending, similar to the successful TABOR limit in Colorado. Such limits recognize the fact that politicians love to spend, but they often lack the discipline to make the needed tough trade-offs in budgeting priorities. 

Here [.pdf] is a useful summary of ballot measures across the country, both fiscal and nonfiscal.

Legal Process Is Good Business

I’ve written here a couple of times about how government access to data threatens many new and forthcoming business models.

TechDirt, a favorite tech-business blog, writes today about some ISPs’ perceived lack of cooperation with law enforcement.  That ‘lack of cooperation’ is asking for a warrant before revealing customer data.  “But requiring a warrant is a check against abuse; without them it’s hard for ISPs to judge the legitimacy and seriousness of a request. By valuing privacy, they better serve their customers, and ensure that law enforcement is only pursuing cases within the scope of the law.”

Very nice to see a business-oriented blog showing how privacy protection nests with commercial interests and good government.

Forget the Election … Education Tax Credits Will Save the Republic and Bring World Peace!

Let’s face it : everyone is sick of election prognosticating and there’s nothing left to say in any case (until the results come in and politicians and pundits begin to spin again).  So let’s turn to wonky school reform spats that just won’t die!

Sara Mead at Edpresso just doesn’t buy that education tax credits are the best thing going in education reform, so we’ll have to get more detailed.

She cannily (given that we’re libertarians here) attacks tax credits on rational choice/econ grounds, arguing that dollar-for-dollar tax credits will reduce the “cost to the donor and his or her incentive to hold scholarship foundations accountable.”  This is certainly true compared with someone in a system without tax credits that has to make the decision to pay twice for education – their incentives to hold the school accountable are large due to the significant additional investment. 

But her analysis overlooks many important factors. Most importantly, it fails to compare incentives in a tax credit system to those of the relevant alternative – our current government-run school system. 

There are many costs and incentives beyond fiscal ones.  A business that donates money to a Scholarship Granting Organization, it is true, reallocates money from the government to a non-profit, and therefore does not incur any additional monetary cost in this very simplified scenario.  That does not mean there are no costs to the company.  They must identify SGOs to which they wish to donate and comply with the required paperwork to do so.  This cost may be offset by community good will and publicity (or added to by criticism from school choice critics).  In addition, they have a long-term interest in the performance of both the SGO and children and schools they fund because their company name is now associated with them.  Donating to SGOs that fund failing schools will provide no community goodwill and is likely to draw criticism.

Another reason why businesses participate in scholarship donation programs is because they recognize that many students are emerging from our K-12 public schools unprepared to succeed in work or higher education. In addition to its civic benefits, ensuring that children are better educated directly benefits the donor businesses themselves. Better educated students mean a stronger labor force from which businesses can recruit new employees. Those businesses would thus have an incentive to direct their money to the best-managed SGOs.   

Businesses using donation tax credits have very significant interests in holding SGOs and schools accountable for educating children, interests that would easily justify the costs of choosing and donating to SGOs. 

Individual donors face the same costs of donating, and will be invested with personal incentives to make sure that they are not wasting their money and the time they have devoted to the process on SGOs and schools that fail.

Again, the reason an individual would make a donation under an SGO program is that that individual is dissatisfied with the quality of education on offer in the public schools.  Donors with that sort of motivation are hardly likely to pick SGOs at random.  Furthermore, just as the media now cover the school beat, so too would they cover SGOs, so the cost to donors of finding out about SGO operations would be low – they’d just have to pick up the paper.

It may be true that the choices of what one can do with a tax credit are severely limited compared to the universe of unrestricted choices.  But the donor will still face a choice between many SGOs, individual children, and sending the money to the state for it to disburse for her.  The donor is still making a decision regarding how to spend her money – it is simply a restricted choice set.  But the donor will still have an incentive to hold organizations accountable for results, and will have an easier time responding to information.  A donor can easily send next year’s tax credit to another SGO. 

Sara compares these incentives to hold schools accountable with donations made without the benefit of a tax credit.  Certainly, in the latter case, the incentive is large because the cost to the donor is large.  But a cost can be too large, and in this case it is – otherwise we would be awash in private scholarships.  People must currently pay twice to help the disadvantaged – once through state taxes and then again through donations.  It’s no surprise that many do not do both, even when the state misspends their tax dollars.  Education tax credits reduce the costs but not the incentives to help the disadvantaged, thereby ensuring that more of the disadvantaged will be helped.

The appropriate comparison is not with the incentives of donors who cannot claim tax credits.  The appropriate comparison is with the incentives and ability to hold schools accountable under the current system versus other proposed systems.   Sara recognizes this, but doesn’t consider the strength of the incentives within the current or proposed government-run systems (emphasis in the original):

More significantly, Adam’s point here acknowledges that the people who fund schools have a clear interest in holding those schools accountable. Guess what–when we’re talking about education that’s supported from public coffers, then the people funding the schools are all of us taxpayers, and we all have an interest in holding schools accountable for serving the public good.

Taxpayers may have an interest, but not the ability to hold schools accountable. Just try withholding your taxes when you don’t like the local schools.  I don’t think the police will be impressed with your explanation.

One of the most difficult problems in government is accountability.  There is a reason that even farmers who don’t need it continue to get subsidies, that sugar prices here are absurdly high, that the tax code is cluttered with special breaks, and that earmarks for pet projects have exploded.  All of these things are funded by “all of us taxpayers,” and we certainly “all have an interest” in holding our Congress accountable for serving the public good and not running up a deficit.  But the costs are diffuse and small to any single taxpayer, while the benefits are large and concentrated among organized groups. 

The key differences between a true system of school choice and a government run system are that individual taxpayers fund students in a system of choice, and the government funds schools in the current system.  The ability and incentives to hold schools accountable in such a system are almost non-existent, and it shows.  The costs are diffuse, and therefore not readily apparent, and the benefits are concentrated among the education establishment, which uses the political system to its advantage.  

In order for taxpayers to hold the schools accountable, they must unite on a single issue area and work together through a difficult political system for very definite goals.  Needless to say this does not happen.  It is too difficult, and the costs and potential gain are too diffuse (and non-selective) to overcome collective action problems.  Even in a charter system, this would hold true.  And even within a student-based/attached funding or voucher system, the government would fund students, meaning that costs and responsibility would still be diffuse and therefore the incentives and ability for taxpayers to hold schools accountable would be low. 

A tax credit system creates the most powerful system of incentives to hold schools accountable because individual taxpayers fund students.  Parents have the ability and incentive to hold schools accountable by going elsewhere with ease, because the money follows their child.  And taxpayers have the ability and incentive to hold schools and SGOs accountable because they know where their money is going and can take it to other schools or SGOs with ease. 

An education tax credit system relies on the incentives, knowledge, and actions of thousands of parents and taxpayers, ensuring that the interests of individual parents, families, communities, and the diverse public at large are met.  This system makes schools accountable to the largest number of stakeholders possible, and provides the most effective means of holding schools accountable to each stakeholder: exit. 

This is true public accountability.  And this system truly serves the public good by ensuring a basic education for all citizens – an education that respects the diversity of the public to which that good is provided. 

Sara proclaims that she supports choice in education, and that she doesn’t “care if you want to send your kid to a Montessori school, a single-sex school, a military school, a religious school, or a billingual Esperanto immersion school.”  Wonderful news, I say!

 “But,” Sara says, “I do care, as a taxpayer, that schools using my tax money meet basic health and safety standards, don’t discriminate, and teach kids sufficient math and verbal/literacy skills to contribute to the economy and have a decent shot in life. That’s why we need both parent choice and public accountability. And it’s why education tax credits just don’t cut it.” 

First, any educational facility would be required to meet basic health and safety standards under existing laws.  Tax credits don’t magically eliminate all previously passed regulations.    Second, all tax credit programs and proposals with which I am familiar already prohibit discrimination on the grounds of race and national origin.  Third, I can’t imagine how tax credits could result in lower basic math and verbal skills than those our current system is producing – but, even such an unfounded concern can be resolved with ease by requiring participating students to take some kind of basic achievement test, which current programs and proposals all do, and which most private schools do currently as well (however, it’s an unnecessary measure in any case – just look at all of the information on colleges).

There must be other, legitimate issues if Sara’s concern for the “public accountability” of education tax credits is to be taken seriously.  If these are the only problems Sara has with an education tax credit system, then she should unite with us behind ETCs!

Schumer-Bloomberg on Sarbanes-Oxley

Apparently I am not alone in the skepticism I expressed last week concerning an oped by Sen. Chuck Schumer (D-NY) and New York City mayor Michael Bloomberg, in which the duo decries the ill effects of regulation and frivolous lawsuits on New York’s financial services sector.  Four of the five letters to the editor in today’s Wall Street Journal expressed incredulity that these two pols could possibly expect to be taken seriously on the subject, given their otherwise steadfast support for government intrusion into our lives. 

I don’t know the newspaper business, but I have an inkling the WSJ ran their piece not so much for the good ideas it contained, but because it knew that the juxtaposition of those ideas with that by-line would elicit a spankfest from its readership that would lend itself to today’s title of the Letters to the Editor section: ”Schumer and Bloomberg Are For Less Regulation? Is This a Joke? (sorry, subscription required).

There was one letter, however, that actually defends Sarbanes-Oxley and the huge regulatory burdens imposed upon financial services firms operating in New York because it “gives our New York financial market a distinct competitive advantage [relative to London].”  Come again?  Yes, this letter argues that, ”while it is quite true that there are more regulatory bodies and higher fines in New York than overseas, that is only a temporary situation.”  The author argues not that those U.S. regulations will be relaxed, but that the regulatory burden on firms operating in the London market will be just as heavy in the future, and that New York firms are lucky to have a head start on the learning curve.

To put this all in context, the author of the pro-regulation letter is a vice president at Orchestria Corporation (a New York company), which is an entity that “helps companies achieve compliance and good governance through electronic communication control.”  Orchestria is in the business of helping it’s customers “to efficiently manage the burden of regulation and ensure compliance.”  In other words, Orchestria (and probably hundreds of companies like it) is the Frankenstein of Sarbanes-Oxley.  Although people like Schumer and Bloomberg are recognizing rhetorically the damage caused by regulatory overkill, righting the ship will be more difficult than just publishing an oped.

Sarbanes-Oxley has created a whole new industry that benefits from the status quo.  I wonder if they know any politicians who would enjoy their financial support.

Ponnuru Misses the Point

In his cover story for the new issue of National Review, “Conservatives on the Couch” (not yet available online), Ramesh Ponnuru devotes considerable ink to debunking the recent Cato study by David Boaz and David Kirby on “The Libertarian Vote.” I think he misses the point.

Here’s Ramesh:

David Boaz and David Kirby … have recently made an ambitious attempt to claim that libertarians are the swing voters at the center of American politics. Their chief evidence: The 15 percent of voters whom they identify as broadly “libertarian” gave Bush 72 percent of their votes in 2000 and only 59 percent in 2004….

They seem unaware that their data tell more against than for their thesis. The electorate as a whole swung toward Bush during those years: He increased his percentage of the overall vote from 48 to 51. Libertarians swung one way; the remaining 85 percent of the electorate swung the other way, and swung far enough to overwhelm the libertarians. Could it be that the same actions that alienated libertarians won Bush the support of these other voters? Well, yes, it could.

For those keeping score at home, here’s how my card reads: Ramesh, 1; Straw Man, 0!

Ramesh does a fine job of marshaling evidence in support of the utterly obvious. Of course libertarians aren’t the kingmakers of American politics. Of course it’s possible to ignore particular libertarian concerns and profit electorally. If those things weren’t true, much of American history would be inexplicable.

As I read it anyway, “The Libertarian Vote” makes more modest claims than those Ramesh seeks to refute. And Ramesh’s critique leaves those modest but important claims intact.

The fact is we don’t know why libertarian support for Bush declined between 2000 and 2004. Was it the war? Big spending? Social issues? The overall stink of incompetence? Or some or all of the above? We just don’t know.

We therefore don’t know what overlap there is between the issues that underlay reduced libertarian support and those that underlay increased overall support. It’s possible that an alternative-universe Bush administration could have taken positions that maintained or increased libertarian support while increasing support from other quarters as well – thus producing an even bigger victory in 2004 than the one that occurred here (which was pretty anemic for an incumbent with an expanding economy).

Here’s what we do know after reading “The Libertarian Vote.” The group of broadly libertarian, “economically conservative but socially liberal” voters makes up around 15 percent of the population. Historically, these voters have strongly favored Republicans, but their level of support fluctuates and has been trending down of late.

And what does that mean? It means that Democrats might be able to capitalize on those recent trends if they made any concerted effort at all to appeal to libertarians. And by so capitalizing, they might be able to change the outcome of close elections.

And if Democrats started winning by attracting libertarians who used to vote GOP – as it appears they have begun doing in Western states, according to Ryan Sager – libertarians could actually end up as a bona fide swing constituency, actively courted by both sides. And wouldn’t that be fun?

We’re not there yet. Right now, the libertarian vote is only a potentially important swing constituency. It has come into play for reasons we don’t understand well. But it’s big enough, and volatile enough, that it could lend decisive aid to either party that courts it.

Ramesh’s message seems to be that small-government types are unpopular nerds who should content themselves with being allowed to run with the social-conservative cool kids. (Yeah, I know that sounds funny – the conservative cool kids, I mean, not the libertarian nerds.)

I say libertarians can do better than that. And the data in “The Libertarian Vote” show that isn’t just an idle fantasy.