Archives: 09/2010

John Stossel, the ADA, and the Art of Selective Outrage

On September 3 John Stossel’s Fox Business show took an unsparing look at the seldom-criticized Americans with Disabilities Act on its 20th anniversary (I was a guest commentator during part of the show, including this segment.) Now the American Association of Persons with Disabilities has reacted with outrage and urged its constituents to fire off protest letters to Stossel, to Fox, and also to me since my criticisms of the law were featured on the show.

But it didn’t play fair. In a related syndicated column, after recounting some of the abuses and excesses associated with ADA litigation – including settlement mills that file assembly-line suits against Main Street businesses and Equal Employment Opportunity Commission demands that alcoholics in rehab be put back on safety-sensitive jobs – Stossel says prolonged litigation over such matters means “more money for the parasites”. Harsh words, perhaps, but in context he’s clearly referring to those who profit from ADA litigation, and in particular opportunistic lawyers.

Now observe how the AAPD edits his words. By cutting most of what precedes “more money for the parasites,” it encourages readers to assume that Stossel is somehow referring to disabled persons themselves as parasites. And in case readers don’t pick up on that implication, AAPD makes it explicit: Stossel, it charges, “sees people with disabilities as manipulative parasites.” For the past day, disabled persons have been dashing off furious emails to Stossel (and cc’ing them to me) on variations of the theme, “How dare you call me a parasite!?”

But that’s not what he said. And AAPD owes both its readers and Stossel an apology for pretending otherwise. There’s nothing wrong with having a public debate over the ADA, but wouldn’t it be more constructive to respond to what Stossel actually did argue?

Cops on Camera

The past six months have given us a number of police excesses caught on camera. Police officers savagely beat University of Maryland student John McKenna and filed false felony assault charges against him. Video of the event set the record straight. Prosecutors dropped the charges against McKenna, and four officers have been suspended and are facing state and federal investigations.

The McKenna case showed the value of video as an honest witness. Yet Maryland police officers continue to make the claim that the state wiretapping law forbids recording in public. I discuss this issue in a new Cato video, Cops on Camera, along with attorney Clark Neily of the Institute for Justice and Cato adjunct scholar Radley Balko.

We are hosting an event next Wednesday, September 22, on the right of citizens to record on-duty police, and the prosecutor in the high-profile Maryland wiretapping case against Anthony Graber will be on the panel. Registration available here.

On Changing Strategy in Afghanistan

I have a post responding to some of the critics of the recent Afghanistan Study Group report (in which I participated) over at at the National Interest.  A snip is below:

I am forced to conclude that neither [Joshua] Foust nor [Andrew] Exum understands what strategy is. It is not, pace Foust, induced by piling up mounds of granular operational and tactical detail and then seeing what one can shape out of the pile. Instead, those engaged in strategy must attempt to discern and state clearly the interests at stake (in this case those the United States has in Afghanistan or the region more broadly) and then to attempt to connect the complex chain of ends, ways, and means in order to explain how best to pursue those interests. I thought the report was fairly clear on the task force’s views on America’s interests and in proposing to bring America’s exertions better into line with its interests. Thoughtful critiques would engage either on the grounds that the authors have misconstrued (a) America’s interests, (b) how best to pursue them, or (c) both.

But for the life of me I cannot find evidence that either Foust or Exum recognizes strategic thought. Both appear to believe that they are engaging in it by picking nits with various aspects of the report’s analysis, but none of their critiques of the smaller claims does anything to knock down the report’s conclusion: that America has limited interests in Afghanistan; that those interests are actually reasonably easy to achieve; and that our current efforts there are at best wasteful and at worst counterproductive…

If you have interest, give it a read.  Bernard Finel has more here.

Is the Fourth Amendment Really About ‘Privacy’?

Back in June, the American Civil Liberties Union launched a new Web hub called Spy Files, which promises to be an invaluable resource for those of us who make a point of watching the watchers. Probably the most interesting document available on the site at launch was a thorough state by state survey of law enforcement surveillance of protected political and religious association over the past decade. They rounded up a truly disturbing number of instances, spanning 33 states, just from press reports, of undercover officers infiltrating anti-war groups and mosques without obvious grounds to suspect wrongdoing. In the aggregate, as the report itself notes, the effect is eerily reminiscent of the FBI’s infamous COINTELPRO operation, which targeted groups deemed “subversive” in the 1960s and 70s.

Following the exposure of COINTELPRO and a spate of related intelligence scandals uncovered by Senate investigations during the 70s, the latitude of federal investigators to covertly infiltrate domestic groups was somewhat constrained by Executive Order 12333, signed by President Reagan in 1981. But state and local law enforcement often have a relatively free hand, because under the modern understanding of the Fourth Amendment, the Constitution is concerned only government actions that violate a “reasonable expectation of privacy,” which courts have generally understood as limited to the exposure of what was previously secret. When we entrust sensitive records to third parties—be they banks, Internet Service Providers, or other members of our churches or political organizations—we “assume the risk” that they will reveal the information to the government, according to the courts’ logic, and so waive our expectation of privacy.

Legal scholars have long been critical of the reasoning behind this “third party doctrine,” in particular the “assumption of risk” argument, but traditionally they’ve accepted the basic frame that the Fourth Amendment should fundamentally be understood as concerned with protecting “privacy”—though the term itself does not appear in the Constitution—and argued that the court has interpreted the concept too narrowly. Yet a growing number of investigative techniques—from GPS location tracking to DNA analysis—allow the government to conduct an intuitively troubling degree of monitoring, potentially on a vast scale, by targeting information that is at least in some sense “public.”

One way of dealing with this within the current paradigm is to seek to draw more nuanced distinctions between dimensions of privacy, which was the approach I took in a recent post on long-term GPS monitoring. Along similar lines, one might try to argue, say, that people reasonably expect their genetic profiles to remain private even if such a profile could in principle be extrapolated from residual DNA on a fork “abandoned” in a public restaurant. The key move here is to argue that “publicity” is not transitive: Private (and so protected) facts may be extrapolated from the aggregation of individually public events or from high-tech analysis of public objects or information. As I argued in the previous post, Kyllo v. U.S. can be read to support this principle.

Several fascinating recent papers, however, have instead argued that the root of the trouble with current Fourth Amendment doctrine is the very idea that the prohibition on “unreasonable searches” must be viewed primarily through the lens of privacy. If we consider public surveillance camera networks, or some recent cases involving “dragnet” location tracking by law enforcement, I think we find that whatever intuitive unease we feel about the methods employed has less to do with a sense that the individual “right to privacy” of any particular person has been violated than with concerns about the government monitoring the citizenry as a whole in these ways. In his new paper “Fourth Amendment Pragmatism,” Daniel Solove therefore argues for a radical remedy: We should dispense entirely with an analysis that treats the violation of a “reasonable expectation of privacy”  as the sine qua non of a Fourth Amendment “search,” and instead “regulate whenever government information gathering creates problems of reasonable significance.”

Solove’s critique of the current approach is quite cogent: The “action” in Fourth Amendment jurisprudence, so to speak, overwhelmingly surrounds the threshold question of whether a particular investigative technique counts as a Fourth Amendment “search,” and though the standard is supposed to be that “reasonable expectation of privacy,” the Court’s rulings on what falls within that ambit don’t match up terribly well with people’s actual expectations as revealed by the  limited empirical data we have. We end up with a largely binary system of regulation where (with a few exceptions) techniques classified as “searches” require the same full-blown probable cause warrant necessary to search a home—though the primary remedy for violations of the warrant requirement is the “exclusionary rule” prohibiting the introduction of improperly obtained evidence at criminal trial, which is not always the primary concern. Everything that doesn’t count as a “search,” on the other hand, is left wholly unregulated, at least by the federal Constitution—leaving our privacy in those contexts at the tender mercies of the Congress and state courts. As Solove argues, it would make more sense for the scope of the Fourth Amendment to be interpreted substantially more broadly, with the understanding that not every search rises to the level of requiring a full probable cause warrant to pass muster as “reasonable.”

Yet Solove’s proposed standard—”regulate whenever government information gathering creates problems of reasonable significance”—does not seem like much of a standard at all, and indeed, does not seem especially “pragmatic,” in at least a couple of ways. First, whatever the theoretically best interpretive strategy might be, it seems awfully unrealistic to expect the courts to simply jettison half a century of Fourth Amendment precedent wholesale. Nor, if we think predictability is an important component of the “rule of law,” would such a radical move be obviously desirable—though we could imagine a gradual transition to something closer to Solove’s approach via a series of narrower incremental rulings. Second, this doesn’t give lower courts much guidance when it comes town to decide cases involving particular sets of facts, either with respect to the scope question or the remedy question; it seems like an invitation to a national crazy-quilt of inconsistent judicial legislation. To understand what Solove means by “problems of reasonable significance,” we have to turn to his brilliant and nuanced “Taxonomy of Privacy,” which makes perceptive and subtle distinctions between a dizzying array different types of privacy harms. Nuance is certainly a scholarly virtue, but it’s at best a mixed blessing in legal rules. Solove’s schema is so sophisticated and complex that it seems bound to yield a wildly unpredictable series of ad hoc decisions based on a judge’s idiosyncratic sense of how to “balance” a welter of incommensurable values. Solove anticipates this objection, but his reply—that Fourth Amendment jurisprudence is already a farrago largely unmoored from the text of the Constitution, so this wouldn’t be any worse—is not exactly reassuring.

An alternative approach—more firmly anchored in the text of the Fourth Amendment, and yielding something more closely resembling a genuine standard—is offered by Yale’s Jed Rubenfeld in his article “The End of Privacy,” which I wrote about last year. Rubenfeld’s Big Idea is that we have ignored the crucial role of “security” in the Fourth Amendment. We’re now accustomed to arguments over the “tradeoff” between the competing values of “security” and the “privacy” protected by the Fourth Amendment, but by its own terms, the Fourth Amendment stipulates that “the right of the people to be secure…against unreasonable searches and seizures, shall not be violated.” We tend to read this, in effect, as simply saying that the right against unreasonable searches and seizures shall not be violated—so that the words “people” and “secure” don’t end up doing any real work. But as Rubenfeld notes, “security” was actually a significant legal concept in the minds of the Framers—something free people enjoyed by contrast with the insecurity generated by arbitrary and discretionary government power. Returning to the question of informants, consider the type of insecurity experienced by East Germans under the Stasi, as illustrated in the magnificent film The Lives of Others. The effect of that kind of total surveillance state was not limited to those who were actually being informed upon or wiretapped, because the terrifying reality was that you could never be sure. Any call might be recorded; any friend or colleague or lover might actually be on the payroll of the secret police. This knowledge could wreak havoc on interpersonal intimacy and chill potential dissent even for those whose individual privacy was never actually invaded.

To think of the Fourth Amendment this way—as not exclusively about privacy, but about “the right of the people to be secure”—is necessarily to take a more architectural view of its protections. But Rubenfeld offers something closer to an applicable test: Rather than asking whether an individual reasonable expectation of privacy has been violated, we ask whether people would remain secure in their liberties if a particular search method were pervasive. If it would not, we ask what restrictions—such as requiring a probable cause warrant or “specific and articulable facts”—would sufficiently narrow the method’s application so as to leave reasonable citizens secure.

Rubenfeld’s approach, to be sure, is not without its own problems. But as technology increasingly enables mass, population-level monitoring by government, often making use of information that is not absolutely secret and private (because, for instance, it has been turned over to an array of commercial entities, even if no one business has all the information) it may be necessary to move beyond a view of the Fourth Amendment as strictly concerned with an individual privacy right. My right to privacy, after all, is something that can be infringed by any old person—not merely by the government. On the currently dominant view, then, the government violates privacy (and the Fourth Amendment) just in case it performs actions that would be privacy violations if conducted by anyone. Yet the Framers had good reason to be particularly concerned with the social implications of government information gathering. Those concerns had less to do with “privacy” as such than with the structural balance between personal autonomy and state control—considerations that could stand to loom much larger in our thinking about the Fourth Amendment.

The ‘Tea Party’ Smear

One sign of the tea party movement’s success is that the term “tea party” is becoming an all-purpose smear term for any more-or-less right-wing person or activity that the writer doesn’t like. In fact, I think “Tea Party” is replacing “neocon” as an all-purpose word for “the people I hate.”

Take a look at this article, teased on the cover of Newsweek as “France’s Tea Party” and online as “What a Tea Party Looks Like in Europe.” When I saw the cover on the newsstand, I thought, “A tax revolt in France? Cool! And about time!” But what is the article actually about? It’s about the National Front party of Jean-Marie Le Pen, who

for decades has played on the inchoate fears, xenophobia, knee-jerk racism, and ill-disguised anti-Semitism of many of his supporters.

Is that Newsweek’s view of the “tea party”? The article went on to explain that at 82 Le Pen is yielding party leadership to his daughter, who is “a passionate advocate of its core message: strong French nationalism, relentless Euro-skepticism, and a lot of hard-nosed talk about fighting crime and immigration.” And lest that you think that such culturally conservative and unsavory attitudes simply go hand in hand with a belief in lower taxes and smaller government, the authors point out that

she’s also a big believer in the state’s ability and obligation to help its people. “We feel the state should have the means to intervene,” she says. “We are very attached to public services à la française as a way to limit the inequalities among regions and among the French,” including “access for all to the same level of health care.”

That combination of nativism and welfare statism seems very different from the mission of the tea party movement. The Tea Party Patriots website, the closest thing to a central focus for tea party activists, lists their values as “Fiscal Responsibility, Limited Government, Free Market.”  In fact, I note that writers Tracy McNicoll, Christopher Dickey, and Barbie Nadeau never use the term “tea party” in the body of the article. So maybe we should only blame Newsweek’s headline writers and front-page editor.

In another example, the Guardian newspaper of London wrote sensationally about “Lobbyists behind the rightwing Tea Party group in the US” arriving in London for “an event organised by the UK’s controversial Taxpayers’ Alliance.” (Why is it controversial? Apparently because it agitates for lower taxes.) These groups, it is said, have “close links to the billionaire brothers David and Charles Koch” and “have lobbied … to maintain tax breaks for the rich” – and for everyone else, a point that author Phillip Inman inadvertently omitted. And, contrary to the article, Cato didn’t sponsor a taxpayers’ conference in London; we cosponsored the venerable European Resource Bank, a networking conference for free-market think tanks across Europe.

Inman writes, “The Cato Institute, which promotes its views on Fox News and other rightwing media, is one of the Tea Party’s main backers.” That’s sort of true, except for the point that our scholars have appeared more often on CNBC than on Fox. And that we don’t back any political or grass-roots movements, though many of our scholars have written generous – and sometimes more cautious – articles about the tea party movement.

My colleague Aaron Powell suggests that that many left-liberals, including many journalists, have a Manichean worldview that posits a fundamental conflict between corporations and government. And so if you dislike corporations, you perforce stand on the side of government. And when it’s energy corporations, like the Kochs, then anything they touch becomes The Enemy. And “Tea Party” is now, to some people, the generic name for The Enemy.

For more sensible views of the tea party movement from journalists, see this John Judis article that I praised before and a new analysis from Jonathan Rauch in National Journal.

What If Cuccinelli Had Sent that Letter to Planned Parenthood?

The following analogy may help to explain why everyone should be troubled by HHS Secretary Kathleen Sebelius’ efforts to intimidate insurance companies who say unflattering things about ObamaCare.

Last month, Virginia Attorney General Ken Cuccinelli (R), issued an opinion that state regulatory boards already have the authority to impose additional regulations on abortion clinics.  Critics pounced, claiming that the measure could shut down 17 of the state’s 21 clinics. What if Cuccinelli responded with a letter threatening to investigate clinics that “misinform” the public about the costs of such regulation?

Keynes Was Wrong on Stimulus, but the Keynesians Are Wrong on Just about Everything

Dana Milbank of the Washington Post wrote this weekend that critics of Keynesianism are somewhat akin to those who believe the earth is flat. He specifically cites the presumably malignant influence of the Cato Institute.

Keynes was right, and in this case it’s probably for the better: Keynes didn’t live to see the Republicans of 2010 portray him as some sort of Marxist revolutionary. …These men get their economic firepower from conservative think tanks such as the Cato Institute… What’s with the hate for Maynard? Perhaps these Republicans don’t realize that some of their tax-cut proposals are as “Keynesian” as Obama’s program. There’s a fierce dispute about how best to respond to the economic crisis – Tax cuts? Deficit spending? Monetary intervention? – but the argument is largely premised on the Keynesian view that government should somehow boost demand in a recession. …With so much of Keynesian theory universally embraced, Republican denunciation of him has a flat-earth feel to it. …There is an alternative to such “Keynesian experiments,” however. The government could do nothing, and let the human misery continue. By rejecting the “Keynesian playbook,” this is what Republicans are really proposing.

Milbank makes some good points, particularly when noting the hypocrisy of Republicans. Bush’s 2001 tax cuts were largely Keynesian in their design, which is one of the reasons why the economy was sluggish until the supply-side tax cuts were implemented in 2003. Bush pushed through another Keynesian package in 2008, and many GOPers on Capitol Hill often erroneously use Keynesian logic even when talking about good policies such as lower marginal tax rates.

But the thrust of Milbank’s column is wrong. He is wrong in claiming that Keynesian economics works, and he is wrong is claming that it is the only option. Regarding the first point, there is no successful example of Keynesian economics. It didn’t work for Hoover and Roosevelt in the 1930s. It didn’t work for Japan in the 1990s. It didn’t work for Bush in 2001 or 2008, and it didn’t work for Obama. The reason, as explained in this video, is that Keynesian economics seeks to transform saving into consumption. But a recession or depression exists when national income is falling. Shifting how some of that income is used does not solve the problem.

This is why free market policies are the best response to an economic downturn. Lower marginal tax rates. Reductions in the burden of government spending. Eliminating needless regulations and red tape. Getting rid of trade barriers. These are the policies that work when the economy is weak. But they’re also desirable policies when the economy is strong. In other words, there is no magic formula for dealing with a downturn. But there are policies that improve the economy’s performance, regardless of short-term economic conditions. Equally important, supporters of economic liberalization also point out that misguided government policies (especially bad monetary policy by the Federal Reserve) almost always are responsible for downturns. And wouldn’t it be better to adopt reforms that prevent downturns rather than engage in futile stimulus schemes once downturns begin?

None of this means that Keynes was a bad economist. Indeed, it’s very important to draw a distinction between Keynes, who was wrong on a couple of things, and today’s Keynesians, who are wrong about almost everything. Keynes, for instance, was an early proponent of the Laffer Curve, writing that, “Nor should the argument seem strange that taxation may be so high as to defeat its object, and that, given sufficient time to gather the fruits, a reduction of taxation will run a better chance than an increase of balancing the budget.”

Keynes also seemed to understand the importance of limiting the size of government. He wrote that, “25 percent taxation is about the limit of what is easily borne.” It’s not clear whether he was referring to marginal tax rates or the tax burden as a share of economic output, but in either case it obviously implies an upper limit to the size of government (especially since he did not believe in permanent deficits).

If modern Keynesians had the same insights, government policy today would not be nearly as destructive.