Certifiably Misleading

The FISA “compromise” I alluded to earlier today has now been released. I haven’t yet had time to analyze the text of the bill, but one thing that’s clear from the accompanying summary is that the immunity provisions are as bad as civil libertarians feared. Here’s Steny Hoyer’s summary of the “improvements” to the immunity language:

This new standard [for granting immunity] provides for meaningful review by the District Courts, where the cases are currently pending, of whether companies received written directives from the government requesting post‐9/11 assistance.

It seems to me that this misses the point rather badly. Under our system of government, searches are conducted pursuant to warrants or other court orders. This is an important check on the executive branch’s surveillance powers because it ensures an independent magistrate will review any surveillance activity and block those that aren’t conducted pursuant to the law.

To treat a “written directive from the government” as a substitute for a court order is to abandon this fundamental principle. Once we accept the premise that the executive branch can “authorize” surveillance without judicial oversight, the standard of review for analyzing the resulting “written directives” is entirely beside the point. I don’t care if the Bush administration wrote letters to telecom companies “certifying” that participation in the warrantless spying programs was legal. That’s not how the law works. These are large companies with plenty of lawyers on staff who know this area of law as well as anyone in the executive branch. They could and should have done what Qwest’s former CEO says he did and told the Bush administration to come back when they had a relevant FISA warrant.

It’s a safe bet that no matter what “standard of review” is chosen, the courts will find that the companies did, indeed, act pursuant to a “certification” from the executive branch. Therefore, directing the courts to dismiss the lawsuits if the companies can produce such a “certification” is functionally no different from no-questions-asked immunity. It will mean no real consequences for breaking the law, and no real incentive for companies to be more careful about following the law in the future.

Foreign Policy without Foreign Policy Theory

In a post seemingly designed to enrage academic realists, Atlantic Monthly blogger Ross Douthat says the war in Iraq tells us nothing about theories of foreign policy:

The chief lessons of the war have to do with issues of prudence and practicality, and more specifically with the question of when the costs of war, in lives and treasure, are worth the risk involved and the gains that might be won. Put another way, I don’t think the lessons of Iraq necessarily discredit liberal internationalism, or realism, or neoconservatism, or any of the many theories of U.S. engagement with the world that were invoked to justify support for the war.

The trouble here is that efforts to weigh the costs of war inevitably involve theories of how the world works. As my Professor Steve Van Evera likes to point out, foreign policy makers can use good or bad theories to guide their actions, but if they attempt the slightest foresight, they cannot have none. In other words, there is no such thing as foreign policy without foreign policy theory.

Beyond that, the idea that the war tells us nothing about the relative merits of realism and the brand of idealism we call neoconservatism is just silly.

Neoconservatives weighed the costs and benefits of the war using their theory of how the world works – how democracy spreads, how states react to conquest, the efficacy of military force in social transformation, and so on. Realists weighed the costs and benefits differently because realism contains competing ideas about how the world works. Realists were right; neoconservatives were wrong.

Liberal internationalists, I’d submit, were confused about the war because their school of thought is largely another brand of idealism – one that substitutes the question of whether a war involves what they want, which is multilateral cooperation, for more probing questions about whether it is wise.

Democrats Determined to Capitulate on Warrantless Spying

In February, the House Democrats won a key victory in their struggle with the Bush administration over amending FISA. Republicans had tried to stampede House Democrats into supporting the Senate’s bad spying bill by sending the bill to the House at the last minute and blocking a temporary extension of the Protect America Act that would have given the House time to have a full debate about the Senate legislation. An exasperated House leadership decided to call the president’s bluff and let the Protect American Act expire. As I wrote at the time, this was the right decision on the merits; the Protect America Act eviscerated judicial oversight of domestic spying activities, and its expiration would leave the president with ample spying authority. Indeed, the president said as much in 2001, saying that the Patriot Act’s revisions to FISA “ ‘recognize the realities and dangers posed by the modern terrorist.”

To be sure, some adjustments to FISA would be beneficial, and the House has twice passed FISA reforms that make the necessary changes. These bills have been stopped by presidential veto threats.

February’s lapsing of the Protect America Act was a victory for Americans’ civil liberties. It was also a political victory for the Democratic party. Once House Democrats began staking out a clear, pro-civil-liberties position and backing up their words with actions, press coverage became a lot more favorable. Whereas earlier press coverage had described Democrats being “outmaneuvered” by Republicans and facing “enduring challenge” on the FISA issue, the coverage began to change once they began standing up to the president. Suddenly, the Democrats were “standing up to President Bush’s fear mongering.” Newspapers reporters began talking to experts (including yours truly) who pointed out that the lapsing of the PAA would have little impact on the Bush administration’s ability to spy on terrorists. It turns out that politicians who speak and act with conviction get better press coverage than those who repeatedly capitulate to their political opponents.

So the House Democrats’ apparent desire to capitulate now leaves me scratching my head. If press accounts of the impending “compromise” are accurate, the president and lawbreaking telecom companies will get essentially everything they’ve asked for. Rather than ordering the courts to dismiss spying lawsuits, the courts will instead be ordered to dismiss the lawsuits if the president asks them to. That’s not much of a difference.

House Democrats won February’s FISA showdown, and they passed a solid FISA bill in March. They ought to stick to the sensible position they’ve held for the last nine months: yes to judicial oversight of domestic spying, no to retroactive immunity for lawbreaking telecom companies.

Suburban Opposition to Choice and the Money Misperception

Andrew Coulson has a great response to a recent “Best of the Web” column by WSJ’s James Taranto, which notes that there is widespread and self-interested opposition to vouchers from wealthier parents and homeowners.

I just wanted to add a bit about two things Taranto suggests are a major concern limiting school choice success; property values and taxes. He’s wrong on property values, but correct about taxes.

Coulson notes that the property value effects of choice are not as predictable as many political elites think, and that might help explain one interesting finding from my doctoral research.

In a large-scale survey of close to 2,900 respondents, I found that property value concerns were a negligible consideration in regard to school choice. In fact, around 40 percent of respondents think that property values will increase with school choice. Most of the rest think choice would have no impact at all on property values. And even high-income respondents without school-aged children believe, by 30 percent to 16 percent, that the adoption of school choice policy will increase property values in their area. 

Property values, in other words, do not seem to be an important drag on support for school choice. Coulson points to what does seem to be the major concern for higher-income suburbanites; cost.

Most people think that school choice will increase academic achievement and have other beneficial effects. But most people also believe, incorrectly, that choice will substantially increase costs. And why wouldn’t they? What new government program promising substantial improvements in anything ever cost taxpayers less?

Regression analyses reveal that cost concerns are the biggest drag on support. It should therefore come as no surprise that exposing respondents to an argument for school choice that emphasizes the cost savings was the most effective in increasing support for school choice.

If we want to make inroads with those who are skeptical of school choice, we need to do more to educate them on the fiscal benefits of choice.

Supreme Court Stands Up for Free Speech in California

Today, by a vote of 7-2, the Supreme Court overturned a California statute that prohibited employers from speaking out on issues relating to unions and labor policy.  The restriction even applied to the payment of salaries, speaking about unions to employees working on state contracts, and meeting with employees on state property to discuss union-related issues.  The statute, passed after intense lobbying by the AFL-CIO, applied to any employers who received over $10,000 in state program funds – including everything from MediCal reimbursements to payments for building roads and schools.  The only significant exceptions all relate to employer speech favoring union activity.

Cato filed a brief supporting the petitioners in this case – the Chamber of Commerce and a group of small business owners – to argue that 1) the case should be decided on labor law grounds because the National Labor Relations Act (NLRA) clearly prohibits state regulations of this kind; but 2) if the Supreme Court reached the First Amendment issue that the Ninth Circuit took it upon itself to decide (and decide erroneously), the statute should be struck down because it imposes an unconstitutional condition on the receipt of state funds and burdens private speech in an area unrelated to the programs for which the funds are given.  In the end, the Supreme Court correctly decided the case on NLRA preemption grounds – that California intruded on an area that is properly left to Congress’s authority –  noting its own 1976 determination that Congress had left unionization activities to be “controlled by the free play of market forces.”  As Justice Stevens aptly stated, California’s statute acted to regulate within “a zone protected and reserved for market freedom” and thus had to be struck down.

John McCain’s SimCity Energy Plan

For those of you not in the cultural “know,” Sim-City is a long-standing series of computer games which asks the player to essentially play the role of a Stalinist super-planner. What to build, where to build, and how people are to relate to all those buildings in your custom-designed city is up to you, the all-knowing, all-powerful uber-planner.

It’s all good fun in the privacy of your own home (I guess), but is this the sort of game we want the next President to play? I’m going to go out on a limb and say no. John McCain, however, seems to disagree.

Consider, for instance, John McCain’s call earlier this week for the United States to build 45 new nuclear power plants by 2030 and another 55 sometime after that. The first question that comes to mind is, why 45? Did the McCain brain trust engage in some high level economic computer modeling to discover that the optimum number of new nuclear power plants is not 42, 47, or some other number … but the nice, round number of 45? I’m going to guess that they did not. I’m going to surrender to my cynical alter-ego and posit that, if one were to ask the question, “Sen. McCain, how exactly did you come to the determination that the economically optimal number of new nuclear power plants is 45 new facilities over the next 22 years?” the answer you would get would likely be totally incomprehensible.

There are two ways we can go on energy policy. We can leave the decisions about what to build and when to build to market actors (disciplined as they are by hard costs and incentivized as they are by the pursuit of profit), or we can leave that task to political uber-planners who are not disciplined by either but are disciplined by campaign contributions, polling data, and periodic popularity contests. Call me a crazy ideologue, but I suspect that the economy would prove more efficient with the former rather than the latter approach.

Note: The reason we hear politicians like John McCain talk so much about the need for the federal government to promote nuclear power is because investors in the private sector take one look at the economics and run screaming for the hills. Investment banks tell utilities who want to borrow money to build these things that not one red cent will be coming their way unless and until the federal taxpayer guarrantees that the entire loan will be repaid in case of default. If nuclear power were such a good economic bet, those taxpayer guarantees would not be necessary.

NYT Feigns Concern over Cost Overruns in Massachusetts Health Plan

Today’s New York Times ran my response to the Grey Lady’s recent editorial on the Massachusetts health plan:

Your editorial lauds the Massachusetts health care reforms as “off to a good start” and “heartening.” The editorial addresses the reforms’ higher-than-projected costs thus:

“The shortfall occurred mostly because the state underestimated the number of uninsured residents and how fast low-income people would sign up for subsidized coverage. It is a warning to other states to keep projections realistic.”

I’m sorry, but if states can low-ball the cost of reforms to get them enacted, and still get praised by the paper of record, that’s exactly what they’ll do. Some “warning.”