TESTIMONY of

Dr. Edward L. Hudgins,
Director, Regulatory Studies, Cato Institute

before the

Committee on Government Reform,
Subcommittee on the Census,
United States House of Representatives

Testimony on the Census

July 20, 2000

I am Dr. Edward Hudgins, director of regulatory studies at the Cato Institute, which never, ever accepts money from the government. I want to commend the committee for holding these very important hearings and to thank you for the opportunity to speak on the Census Bureau's proposed annual rolling sample, known as the American Community Survey. There are serious questions concerning the validity of the sample, as well as whether such a sample would be a legally valid basis on which to allocate federal funds or pursue other federal aims. But I want to raise the more fundamental issue: should the federal government be asking the questions currently contained in the census?

I have written on this subject as well as done many radio and television interviews, and received numerous emails and phone calls of concern. I report to you today a sentiment that I believe is shared by millions of Americans. The lack of proper decorum in its expression here is aimed not at the individual members of Congress in attendance today but rather at the system as a whole. An accurate summary of that sentiment, of which I have heard many variations, would be: "Most of the census questions are none of your damned business. We hire you to protect our lives, liberties, and property, not, I repeat, not to butt into our affairs. Stop your meddling and stick to your jobs."

Let me now return to the proper decorum and explain this position by answering four questions.

First, what does the census suggest about America's civic order?

Census Bureau director Kenneth Prewitt said it was each person's "civic duty" to fill out the 2000 census form; indeed, that the census was "the nation's first major civics ceremony of the new century." But a surer sign of civic health was the public uproar over the census and the refusal of millions of Americans to answer many of its very personal questions.

The Constitution states in Article I, Section 2, that

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers. . . . The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.

It is clear that the Constitution authorizes the federal government to "enumerate" persons in order to apportion congressional representatives among the states. That implies that the government need know only how many individuals reside at a given residence, which is the question on the first page of the census, which is addressed to "Resident." It was once the case that black slaves were counted as only three-fifths of a person. But the Civil War amendments to the Constitution fortunately eliminated the need for that question. Thus race, as well as gender and other factors, are irrelevant to the federal government.

But the 53 questions in the long form ask us about matters that have nothing remotely to do with apportioning electoral votes. We are asked for a detailed breakdown of our income (#31-32). We are asked about how we get to work (#23), when we leave and how long our trips take (#24). We are asked detailed questions about our employment (#25-30). We are asked the infamous question about how many toilets we have (#39). And we are asked how much we pay annually for electricity, gas, water, sewers, oil, coal, kerosene, and wood (#45).

The first civics lesson of the census is that privacy is of little concern to political elites; our personal business is their business.

The second lesson is proclaimed loudly by the Census Bureau. The information is necessary so political elites can redistribute wealth and limit liberty according to their vision of a "good" society. We are told on the cover of the census form that filling it out "helps your community get what it needs." On the long form, at the top of each section to be filled out by various household members, we are given several messages. These include:

"Census information helps your community get financial assistance for roads, hospitals, schools and more." [These used to be local and state government functions and, if Congress still adhered to the Constitution, still would be.]

"Information about children helps your community plan for child care, education, and recreation." [This reflects the collectivist "it takes a village" ideology that any free man or woman would throw back in your faces. I would think that families not burdened by high taxes and regulations would best plan for the upbringing of their children.]

"Knowing about age, race, and sex helps your community better meet the needs of everyone." [What kind of vapid generalization is this? How is my age, race, or sex my community's, read, the government's, business? One can only imagine the nefarious uses to which the government will put that information.]

"Your answers help your community plan for the future." [I'll plan my own future, thank you.]

"Housing information helps your community plan for police and fire protection." [These are other local government functions performed best without interference from Washington.]

Census Bureau TV commercials also revealed the assumption that Americans are not citizens of a civil society but subjects to be cared for by political elites. These commercials showed crowded schools with promises of more education funds and a waitress forced to take her child to work with promises of money for daycare.

What is the lesson of the Census Bureau's promotion campaign? The crystal-clear message is that to control us political elites must know us. Without census data to justify their policies, political elites would have a difficult time deceiving the public about the need for those policies and actually directing the lives of citizens and their civic institutions.

Of course, 50 years ago the federal government took only about 5 percent of the average family's income, compared withy 25 percent today, so families had more control over their expenditures and less need to ransom back their own income from Washington by filling out census forms. Also in the past the federal government did not dominate public policy and eat up most of the tax base. Thus state and local governments had more freedom to raise funds to service the needs of the people without conforming to federal guidelines and strings attached in order to obtain money.

An indication of how political elites view most Americans is found in question 17, which asks whether we have difficulty "learning, remembering, concentrating? Dressing, bathing or getting around inside the home? Going outside the home alone to shop or visit a doctor's office? Working at a job or business?" The third lesson is that political elites see us as helpless victims who cannot tie our shoes or wipe our noses without their federal programs. In the therapeutic state, they will take care of us and limit our liberties for our own good.

The above question reflects the same kind of attempt at deception found in the Americans with Disabilities Act (ADA). That act ten years ago stated that there were 44 million Americans with disabilities. But in fact the number of Americans who are legally blind, deaf or confined to wheelchairs, those traditionally thought of as handicapped, was about 4 million. The extremely broad definition of "disabled" in that act allowed political elites to inflate the numbers of individuals so classified, actually ill-serving those with real disabilities. The result has been well over 100,000 invalid lawsuits claiming discrimination and has cost innocent enterprises millions of dollars in legal bills.

The data collected from census question 17 will be used to argue for even more unsound public policy such as the ADA.

The fourth lesson is that political elites are obsessed with race. Questions 5, 6 and 10 ask about our race and ethnic origin, give us a long list of choices (11 for Asians) and allow us to mix and match. Those collectivists do not view us by the content of our character but, literally, by the color of our skin or some accident of birth. It is instructive that we are asked what race do we "consider" ourselves to be (it's not what we are but what we "feel" we are). This puts off until some future date the need for Nuremberg-type laws defining races and mandatory DNA tests.

The fifth civics lesson of the census is that families, churches, and other private, civil institutions are to be made subordinate to and enlisted to aid political elites. The Census Bureau has enlisted 90,000 "community partners" to prod and pester the rest of us to fess up to the feds. That bureau has enlisted schools to send children home to harangue their parents and clergy to urge their congregations to bare their souls to bureaucrats. But should not the 340,000 churches, synagogues, and mosques in this country concern themselves with the souls and moral character of their parishioners instead of helping the government to rob Peter to pay Paul?

A second question to ask concerning the census is, Why are individuals so upset about the questions this year? After all, there were not that many more questions in the 2000 census than in 1990 one.

The first reason is that the information and communications revolution, and especially the Internet, has made individuals much more sensitive about their privacy. Individuals more and more appreciate the potential and real problems of private personal or financial information being made available to others.

I want to note some good news concerning privacy in the private sector. As more individuals become sensitive about privacy, more web sites are posting privacy policies. Further, new software and companies allow individuals to shield their identities when they are online and even to place orders without revealing their credit card numbers. This could lead to a market for information. If businesses or web sites find it too difficult to collect marketing information on individuals, they could be forced to "purchase" the information, for example, by offering customers discounts.

But the second major reason that individuals are sensitive about their privacy is that over the past decade they have seen an unprecedented increase in government meddling into their lives. Let's consider just a few examples.

•The Census Bureau has not only asked citizens inappropriate questions. It also has instructed its agents to engage in truly disturbing behavior that even many census takers resist. When someone is not home to answer questions or refuses to answer, census takers can ask neighbors what they know about the absent or closed-mouthed folks next door. There are also reports of census takers asking for and being given access to housing applications and records of apartment tenants from rental offices. This is not census taking; it's spying.

•In 1998 the FDIC proposed that bank tellers ask customers about any "suspiciously large" deposits or withdrawals. Banks would have to report to the FDIC not only such transactions but also such appropriate customer responses as "It's none of your damn business." (This regulation has been put on hold, but banking officials seem poised to push ahead with the policy in any case.)

•The U.S. Postal Service promulgated regulations in March, 1999, for commercial mail receiving agencies (CMRAs), such as Mail Boxes Etc., that required customers to supply two forms of identification, a home address, and phone number that would be kept on file by the CMRA and the local post office. Originally that information from customers using their boxes for business purposes was to be made available to anyone for the asking, for example, stalkers or abusive men tracking down ex-wives or girlfriends. (The "release to everyone" regulation was changed to "release only to government officials," an important but by no means completely satisfactory change.)

•The administration's misnamed medical privacy regulations, proposed in November, 1999, would eliminate the need for the government to acquire individuals' permission to use or distribute their medical records. I observe that on the list of those to whom the government can give out that information are undergraduates doing research. (They are not old enough to drink but they are old enough to violate our privacy.)

•One of the administration's proposals for a unique health identifier would require a DNA sample from every American. (For those of you who want to understand the implications of such a move, see the movie Gattaca.) Even the alternatives would, in effect, bar Americans from acquiring health care in their own country if they do not provide government officials with whatever personal information they request.

•The Kidcare program allows schools to offer health care services to children. But these are not the traditional programs to make certain that kids get shots for measles and other diseases. The program allows health care workers to inquire into children's home lives and psychological well-being. This potentially allows quacks spouting the latest psycho-babble to act against parents who offer an "unhealthy" home situation for kids.

•Health care workers going into a home to administer services paid for by Medicare are being required to record information not only about the patient's physical health but about the patient's mental health as well. Is the patient moody? Does the patient flirt with the nurse? This kind of subjective information could be used to commit to mental institutions elderly individuals who do not have politically correct attitudes.

•The bill S.486, which was passed by the Senate, and H.R. 2987, now before the House, would allow federal agents to enter a home, take "intangible" items, for example, make photocopies of diaries or other papers, and copy computer hard drives, but would not require the agents to notify the citizen that his or her home had been searched, or to provide an inventory of intangible items taken.

There have also been reports in recent years of government bureaucrats examining the tax returns and medical records of celebrities. The Clinton administration was caught with 1,000 FBI files on political opponents in the White House. We are also told by former Clinton adviser Dick Morris that candidate Clinton in 1992 spent $100,000 in federal campaign funds to hire private detectives to investigate the personal backgrounds of women who had had relationships with Bill Clinton. This information was to be used to intimidate, smear, and discredit those women.

I could go on with many other examples but there can be no doubt at all of the clear pattern here, that the federal government has embarked on the most massive invasion of privacy in the country's history. Many Americans see that pattern and thus, understandably, are reluctant to hand over to an intrusive government the information requested on the census.

A third question is, What problems result or might result from collecting information on the census beyond that needed to allocate electoral votes?

The above examples suggest many of the possible abuses of such information. But let me review a number of specific issues. First, consider an example of how that information currently can be misused. The Justice Department will accuse, for example, an entrepreneur who employs 45 percent of a certain minority in his facility of racial discrimination. As a basis the government will claim that even though the proportion of that minority in the entrepreneur's city might be only 25 percent, in his neighborhood or local area, the proportion is 65 percent. Such cases are based on the manipulation of census data. Such data, of course, do not necessarily indicate cases of actual racial discrimination. They usually represent attempts by predatory bureaucrats to make their reputation by harming the innocent.

Second, I will also raise several possible problems with the American Community Survey. Currently, the census long form is sent to about one in six households, that is, cost to 20 million households. If the Survey samples, say, 2 million households per year, then the same number of households will be burdened by intrusive questions as is now the case. Further, this rolling survey could be a problematic criterion on which to base federal government expenditures and actions. Let us say, for example, that New York City is sampled in 2002 but Indianapolis not until 2008. If federal funds in 2009 are passed out on the basis of population, how will the populations of the two cities be calculated? Will the population of New York City be extrapolated to a projected 2008 figure? Sometimes population changes are not steady. Would it be better to take the population in some base year when both cities were sampled, say, the obvious year of 2000? That solution too would be imperfect. But would it be fairer than counts taken at different times?

A third problem with extensive census questions, whether in the current long form or proposed survey, is that many seem calculated to provide free marketing data for corporations, with the federal government's footing the bill and the American people, who are free to tell private pollsters to mind their own business, forced to answer to government agents acting as agents for businesses. Former labor secretary Robert Reich was correct to denounce corporate pork. The census is a primary example of such a handout. Businesses are welcome to conduct whatever surveys they wish, but not at the public's expense. As I mentioned earlier, concerns for privacy are producing a market for information in the private sector. The census undermines that market.

The fourth question is, What should be done?

The obvious answer is that the federal government should eliminate most of the questions on the census, retaining only those few, maybe only one, necessary to exercise the constitutional mandate to enumerate the population every decade for the purpose of assigning electoral votes.

It is clear that the census for the most part no longer serves a constitutional purpose. Census information now serves more the needs of political elites who, to control us, must have detailed information about us. We have seen the strong resistance of the citizens of this country to the census. Several lawsuits have been filed challenging its intrusive questions.

The current census is a damning indictment of the current political regime. Contrast the regime embodied in the census form with the civil society envisioned by the Constitution. Individuals should have the right to live in peace, as they see fit, to share their lives with family and friends, and to open their hearts to whom they choose. The challenges of life should be met in vibrant civil institutions. Individuals should be equal before the law, regardless of race, religion or ethnic origin. And the role of government officials should be limited to protecting the lives, liberties and property of individuals, not meddling in our affairs and managing our lives as means to maintain their positions of power and privilege.

Perhaps a proper response to the census and the regime it seeks to strengthen is found in Homer's Odyssey. Odysseus and his crew were held in the cave of the savage Cyclops who "knew nought of justice or of law." To escape, Odysseus blinds the monster. It is sad when citizens think of their own government as a dangerous creature that might devour them. Congress can begin to restore respect for the government by showing the proper respect for the citizens. It could start by eliminating the questions on the census that are not necessary for apportioning electoral votes and leave the private affairs of the citizens as just that, private.