Slovak Election Update

Much of the world’s media portrayed the victory of the populist socialist party in the Slovak elections as the voters’ rejection of the free market reforms pursued by the center-right government of Prime Minister Mikulas Dzurinda. Not exactly.

First, the election turnout was only 55 percent (down from 70 percent in 2002). It is true that the socialists increased their support from 13.46 percent in 2002 to 29.14 percent in 2006. But the low election turnout means that the socialists had their program endorsed by only about 14 percent of eligible voters – hardly a ringing endorsement of a return to socialism.

Second, Dzurinda’s party did better than last time. It received 15.09 percent in 2002 and 18.35 percent this year. So did its coalition partners. Christian Democrats were up from 8.25 percent to 8.31 percent and the Hungarian minority party was up from 11.16 percent to 11.68 percent.

The real shockers were the reduction in the support for the Movement for Democratic Slovakia of the former Prime Minister Vladimir Meciar, which was down from 19.5 percent to 8.79 percent, and the rise of the Slovak National Party, which was not represented in the last parliament, but managed to get 11.73 percent in this year’s election.

The communists, who got 6.32 percent in 2002, did not make it to parliament. Unfortunately, the liberals who got 8.01 percent in 2002, did not make it to parliament either.

So, what does all of this mean?

As has been predicted, the three parties of the center right can count on 65 seats in the Slovak parliament of 150. They will thus be 11 seats short of a majority. The socialists will have 50 seats, but need 76 to form a government. With their racist, homophobic and socialist policies to the left of the communist party, the Slovak National Party will have 20 seats. That leaves Meciar and his 15 seats in the role of the kingmaker.

Ironically, Meciar’s worst electoral performance coincides with a huge increase of his party’s relevance for the future of Slovakia. If he throws his weight behind the socialist leader Robert Fico, he will, once again, take the country down the wrong path. If he goes into coalition with the center-right, the continuity of the liberal reforms will be assured. (Note: The Christian Democrats stated that they will not be in government with Meciar, because of his past authoritarianism. But, they might agree to give him in a largely symbolic role of the chairman of the Slovak parliament.)

The upshot is that under the Slovak electoral system, elections don’t conclude the process of political horse-trading. They begin that process. True, Fico, the socialist leader, will get the first crack at forming a government, but that does not mean much. Both in 1998 and in 2002, it was the second largest party in parliament that formed the government. In both cases, that party was Dzurinda’s party.

One can only hope that history repeats itself.

Supreme Court Deep-Sixes Federal Wetlands Regulation

From a news bulletin I just received from the enviro trade publication Greenwire:

Supreme Court limits reach of Clean Water Act in 5-4 ruling

A divided Supreme Court ruled this morning that Clean Water Act protection of “waters of the United States” is limited to “permanent, standing or continuously flowing” water. The ruling limits protection for wetlands separated from “navigable waters” or their tributaries.

Justice Anthony M. Kennedy cast the swing vote in the 5-4 ruling in the joint case, Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers.

This is a big win for the good guys!

More here.

Thud, Part II

In an email, Stuart Butler of the Heritage Foundation took issue with my characterization of his proposal (which has now been introduced as federal legislation) to foster health policy experimentation among the states. So I thought I might elaborate. (Readers can get the particulars of the proposal in Stuart’s paper.)

The system Stuart proposes seems predisposed to increase government health care spending and to produce little or no free-market reform.

Under his proposal, states would petition Congress for the funding or flexibility to experiment with different reforms within their borders. If the past is any guide, states would be more likely to request more federal money than either deregulation or less federal money. For example, we could count on states to ask Congress to fund expansions of government programs or the creation of state-chartered “purchasing pools.” It is less likely that states would request market-based reforms, such as capping and block granting federal Medicaid spending. Proposals to expand health savings accounts or eliminate the exclusion for employer-sponsored insurance in certain states would never get off the ground, for they would run afoul of the Constitution’s requirement that “all Duties, Imposts and Excises shall be uniform throughout the United States.” (Stuart argues that “other site-specific programs involving federal tax changes, such as enterprise zones, have passed muster.” But even if we could have the feds devise different tax rules for different states, would we want them to?)

Even if some free-market reforms could get approved, they would be less likely to survive than big-government reforms. To qualify for reauthorization, reforms would have to meet “clear and measurable goals, including coverage increases and quality improvements.” Yet new government programs would always have an advantage at “increasing coverage” because the state could always claim “you’ve got Medicaid!” even if you can’t get a doctor’s appointment. Free-market reforms – by definition – do not force coverage on people. With regard to quality, government programs whose funding is in the balance could force delivery of whatever the feds label “quality” health care, even if some patients get hurt. Meanwhile, if patients’ preferences deviate from the quality measures, market-based reforms lose because markets actually try to satisfy those diverse preferences. Finally, government-expanding reforms generally bestow benefits on concentrated interests, while market-based reforms (e.g., HSAs) produce benefits that are more diffuse. Thus big-government reforms would have a leg up in the political process that sets and evaluates compliance with performance measures. In short, free-market advocates don’t exactly dominate health policy, and would not dominate this process. The proposal thus ignores the lesson of O’Sullivan’s First Law.

It’s not that this is designed to be a big-government proposal. But it is not designed to be a limited-government proposal, which makes it almost certain that it would be hijacked by the forces of big government. That is why my initial impression boiled down to: Congress creates a commission, gives more money to the states.

But hey, I might be wrong. I’d like to hear Stuart’s thoughts.

Gambling Advocacy Now Illegal in Washington State

Earlier this month, I posted about a disturbing new law in Washington State that would impose up to a five-year prison term for people who gamble online. The law’s supporters said not to worry: no one would be breaking into homes to arrest individual gamblers (though even before the law took effect, there was some evidence to the contrary). Now we find out that not only are Washington State authorities willing to go after individual gamblers, they’re using the law to go after people who merely write about gambling. A Seattle Times columnist writes:

The first casualty in the state’s war on Internet gambling is a local Web site where nobody was actually doing any gambling.

What a Bellingham man did on his site was write about online gambling. He reviewed Internet casinos. He had links to them, and ran ads by them. He fancied himself a guide to an uncharted frontier, even compiling a list of “rogue casinos” that had bilked gamblers.

All that, says the state — the ads, the linking, even the discussing — violates a new state law barring online wagering or using the Internet to transmit “gambling information.”

“It’s what the feds would call ‘aiding and abetting,’ ” says the director of the state’s gambling commission, Rick Day. “Telling people how to gamble online, where to do it, giving a link to it — that’s all obviously enabling something that is illegal.”

Uh-oh. This is starting to get a little creepy.

I’ll say. It gets worse. The state’s puritans anti-gambling cops also lashed out at the Seattle Times itself:

Gambling officials told me The Seattle Times may be afoul of the law because we print a poker how-to column, “Card Shark,” by gambler Daniel Negreanu. He sometimes tells readers to hone their skills at online casinos. And at the end of each column is a Web address, fullcontactpoker.com, where readers can comment.

If you type in that address, you whiz off to Negreanu’s digital casino based in the Antilles.

It’s a tangled Web, isn’t it? The state says we’d best do our part to untangle it.

“My suggestion to you is to remove from your paper any advice about online gambling and any links to illegal sites,” Day said.

So even this column could be illegal?

Unfortunately, columnist Danny Westneat closes the piece by arguing that the state’s law against online gambling is “legitimate;” it’s only the act of extending it to people who write about gambling, he asserts, that crosses the line. But as we’ve seen with the drug war, once you’ve given the state the power to enforce consensual crimes that take no victims, it’s only a matter of time before government makes the case that it can’t enforce those laws unless it’s given the power to encroach on other civil liberties.

More on Exclusionary Rule

I add a couple of provisos to Tim’s post below. Justice Kennedy’s concurrence makes clear there are not five votes to limit the exclusionary rule in other areas:

Today’s decision determines only that in the specific context of the knock-and-announce requirement, a violation is not sufficiently related to the later discovery of evidence to justify suppression. (emphasis added)

That being said, its true that Justice Scalia’s reasoning could be extended to other areas of the law if there is another retirement from the Court. Scalia’s arguments against exclusion are:

(1) that police discipline and public interest lawsuits are an effective deterrent to violations;

(2) that the costs of its application – letting the guilty go free on a technicality – are large;

(3) the violation is causally attenuated when the police could have discovered the evidence if they had complied with the law in a hypothetical counterfactual world.

As Prof. Tracey Maclin’s brief for Cato argues, why wouldn’t this reasoning also permit introduction of evidence in a case like United States v. Chadwick, where police had probable cause to search a 200-pound footlocker in their possession, but did not obtain a warrant before prying it open and uncovering marijuana? There’s no principled line to draw between a case like Chadwick, where police have probable cause and almost certainly could have discovered the evidence if they had complied with the warrant requirement itself, and Hudson, except stare decisis, once you accept Scalia’s policy arguments against the exclusionary rule. The implications of the decision for the warrant requirement is surely one of the most troubling aspects of the decision.

There is one ray of hope for the no-knock rule. In his concurrence, Kennedy says that a widespread pattern or practice of abusive entry is “grave cause for concern.” Translated from lawyer-ese, this underscores a threat to jurisdictions that systematically violate the no-knock requirement. That threat is class-wide Section 1983 damages under Monell v. Department of Social Services, which makes localities liable for a pattern or practice of police violations of constitutional rights. Were a majority of the Court willing to robustly police systemic knock-and-announce violations against municipalities through the vehicle of class-wide statutory damages, that might well force some systemic reform of police practices in troubled jurisdictions.

Conceivably, as a deterrent matter, this outcome might improve upon applying the exclusionary rule to enforce knock-and-announce violations. (If, after all, Hudson had come out the other way, we might have seen, as Justice Breyer notes, an expansion of “no-knock warrants” – warrants that excuse the cops, before the fact, from complying with the knock-and-announce requirement based on pre-search judicial findings of exigency.)

Of course, I’m quite skeptical that the Court will follow through on the liability threat. But that’s where civil liberties litigators need to turn next.

The Exclusionary Rule

Yesterday’s ruling in Hudson v. Michigan could prove to be a landmark Supreme Court precedent. We already knew that it was an important case involving the “knock-and-announce” principle, but, as New York Times reporter Linda Greenhouse observes today, the majority opinion is so “dismissive of the exclusionary rule as to serve as an invitation to bring a direct challenge to the rule in a future case.” 

I’m afraid that may well be right. If so, it means we are moving from an important battle, which we just lost, over the knock-and-announce doctrine, to a battle royal over the Fourth Amendment generally.

For background on the exclusionary rule, go here.