201103

March 28, 2011 9:45AM

Geraldine Ferraro, a Milepost in Social Change

At the Britannica Blog I reflect on the death of Geraldine Ferraro and the dramatic changes in women’s role in political and social life in a surprisingly short time:

In the 1960s and 1970s feminism swept the field, overwhelming all opposition.

And if you don’t know who was the first woman in American history to win an electoral vote, or the first woman elected to the U.S. Senate who did not follow her father or husband into politics, read the whole thing.

March 28, 2011 8:08AM

Another Day in the Life of the IRS

A previous post of mine at International Liberty addressed the debate over whether Republicans should trim the IRS's budget. The following case study should convince everyone that the answer is a resounding yes.

First, some background from a Joe Nocera column in the New York Times. The federal government made a rather troubling decision a few years ago to investigate, prosecute, and ultimately imprison a random home-loan borrower named Charlie Engle for the crime of mortgage fraud.

Mr. Engle is far from blameless in this saga, but I noted in another post that it was rather odd that the government would target a nobody while letting all the big fish swim away. This episode certainly paints a picture of a government that has one set of rules for ordinary people, but an entirely different set of rules for the political elite and those who make big campaign contributions to that ruling class.

But I also noted that I'm not a lawyer or legal expert and was unsure about the degree to which the big players actually broke laws, or whether they simply made stupid business decisions (often encouraged by bad government policy).

The most upsetting part of the story, though, is how the government wound up targeting Mr. Engle. It turns out that an IRS agent, Robert Norlander, must have been competing for the IRS's Bully-of-the-Year Award because here are some of the things he did:

Read the rest of this post »
March 28, 2011 7:50AM

The First Amendment Protects All Speech

Vermont passed a law prohibiting the exchange of a variety of socially important information. Most notably, the law outlaws the transfer of doctors’ prescription history to facilitate drug companies’ one‐​on‐​one marketing — a practice known as “detailing” — because it believes detailing drives up brand‐​name drug sales and, in turn, health care costs. The state knew that the First Amendment prevented it from banning detailing itself, so it made the practice more difficult indirectly.


Yet data collection and transfer are protected speech — think academic research, or the phone book — and government efforts to regulate this type of speech also runs afoul of the First Amendment. See, e.g., Solveig Singleton, Cato Policy Analysis No. 295, “Privacy as Censorship: A Skeptical View of Proposals to Regulate Privacy in the Private Sector” (January 22, 1998). The First Circuit had earlier upheld a similar New Hampshire law, somehow finding that the statute regulates conduct rather than speech and that, in any event, the judiciary should defer to the legislative branch’s judgment.


When the Supreme Court declined to review that case (which cert petition Cato supported), Cato joined the Pacific Legal Foundation and a number of individuals on a brief asking the Second Circuit to split with its First Circuit brethren and reject this dangerous narrowing of protection for free expression. The Second Circuit did just that and ruled that statutes restricting commercial speech about prescription drug‐​related data gathering are unconstitutional. The court emphasized that the First Amendment protects “[e]ven dry information, devoid of advocacy, political relevance, or artistic expression.”


Vermont filed a petition asking the Supreme Court to review the case, which its adversaries supported in order to more quickly resolve the circuit split. Cato, again joining PLF, filed a brief supporting the respondents, two companies that collect and sell health information and analysis. Our brief argues that the Second Circuit should be affirmed and the Court should abandon the unworkable distinction between commercial and noncommercial speech set out in a 1980 case called Central Hudson Gas & Electric v. Public Service Commission. Specifically, the Central Hudson approach to commercial speech veers into viewpoint discrimination and should be abandoned in favor of strict scrutiny because innovative and valuable commercial expression deserves full First Amendment protection.


The Supreme Court will hear argument in this new case out of Vermont, Sorrell v. IMS Health, on April 26. Thanks to legal associate Caitlyn McCarthy for her help with Cato’s brief and this blog post.

March 27, 2011 3:29PM

What Are Republicans Thinking?!?

I posted recently at International Liberty about the stunning political incompetence of Republican Senators, who reportedly are willing to give Obama an increase in the debt limit in exchange for a vote (yes, just a vote) on a balanced budget amendment.


As I explained, there is no way they can get the necessary two‐​thirds support to approve an amendment, so why trade a meaningless and symbolic vote on a BBA for meaningful and real approval of more borrowing authority for Obama? My analogy yesterday was that this was like trading an all‐​star baseball player for a utility infielder in the minor leagues.


I did acknowledge that forcing a vote on a BBA was a worthwhile endeavor, but said that the GOP has that power anyhow, so why trade away something valuable to get something you already can get for free?


Little did I realize that Republicans already did force a vote on the balanced budget amendment. Less than one month ago, on March 2, Senator Lee of Utah got a vote on a “Sense of the Senate” resolution in favor of a balanced budget amendment. Senator Lee’s resolution received 58 votes, which is nice, but an actual amendment would need a two‐​thirds supermajority, so this test vote demonstrated that there is no way to approve an amendment this year.


I’m glad Senator Lee proposed his resolution. I’m glad Senators were forced to go on the record.


But I’m mystified, flabbergasted, and stunned that Republicans apparently are willing to give Obama a bigger debt limit in exchange for something they already got.


Returning to our baseball analogy, this would be like the Yankees giving Derek Jeter to the Red Sox in exchange for a player they already have, such as Alex Rodriguez. I imagine New York sportswriters would be dumbfounded by such stupidity and would rip the team’s management to shreds. So that gives you an idea of how I feel about what’s happening in Washington.


As I noted in my earlier post, I’ll soon write about the fiscal reforms fiscal conservatives should demand in exchange for a higher debt limit.

March 25, 2011 8:31PM

“To Declare [Kinetic Military Action]”

Recently, I've been blogging over at the Washington Examiner's lively "Beltway Confidential" site, mostly on the subject of congressional war powers and President Obama's Libyan adventure. Today's post, "Obama Makes 'Kinetic Military Action' on the English Language" has a little fun with the administration's wordgames and the legal rationales behind them. Other posts and a column on the subject are here, here, and here.

Today also brings a pair of columns--in the Wall Street Journal and the Washington Post, respectively--from conservative luminaries defending the notion that Obama has the constitutional power to bomb Libya without congressional authorization. Yoo, the legal architect of George W. Bush's Terror Presidency, chides Tea Party Republicans like Jason Chaffetz of Utah and Justin Amash of Michigan for questioning Obama's authority to launch a nondefensive war:

Their praiseworthy opposition to the growth of federal powers at home misleads them to resist Washington's indispensable role abroad. They mistakenly read the 18th-century constitutional text through a modern lens—for example, understanding "declare war" to mean "start war." When the Constitution was written, a declaration of war served diplomatic notice about a change in legal relations between nations. It had little to do with launching hostilities. In the century before the Constitution, for example, Great Britain fought numerous major conflicts but declared war only once beforehand.

Similarly, in the Post, David B. Rivkin, Jr., and Lee A. Casey write:

As commander in chief, the president has the authority to determine when and how U.S. forces are used.... When the Constitution was adopted, the power to “declare war” was not equivalent to permitting the use of military force.

The president certainly can't derive the authority to bomb Libya from the commander-in-chief clause. As Hamilton explained in Federalist 69, that provision merely indicates that the president is the "first General and admiral" of US military forces. Important as they are, generals and admirals don't get to decide whether and with whom we go to war.

It's more common for presidentialists to combine a broad reading of Article II, sec. 1's "executive Power" with an exceptionally narrow interpretation of Article I, sec. 8's congressional power "to declare War," to conclude that the president can start wars, leaving it up to Congress to make it official if they so choose.

One problem with that view is that virtually no one from the Founding Generation seems to have understood the clause in that way. For example, James Wilson told the Pennsylvania ratifying convention that ‘‘this system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power in declaring war is vested in the legislature at large.’’ Pierce Butler, like Wilson, had been a delegate to the Philadelphia Convention, and--to the dismay of some delegates--had actually argued for vesting the power to go to war in the president. Yet during the ratification debates, Butler assured the South Carolina legislature that the proposed constitution prevented the president from starting wars: ‘‘Some gentlemen [i.e., Butler himself] were inclined to give this power to the President; but it was objected to, as throwing into his hands the influence of a monarch, having an opportunity of involving his country in a war whenever he wished to promote her destruction.’’

Read the rest of this post »
March 25, 2011 4:47PM

The Economy Tanked but, Hey, Wealth Inequality Declined

I just read through a new report from the Federal Reserve, “Surveying the Aftermath of the Storm: Changes in Family Finances from 2007 to 2009,” on how the Great Recession of 2007–2009 impacted the balance sheets of American households. The short and unsurprising answer is: very negatively. The average net worth of U.S. households fell by nearly 20 percent between 2007 and 2009.


A less intuitive finding was that the more wealthy households took a bigger hit, not just in dollars but in percentage of wealth. As the survey put it, there were “progressively larger decreases at the higher percentiles” of net wealth.


The survey also found progressively larger declines in income during the recession. The higher a household’s income in 2007, the steeper the decline on average by 2009. As the survey put it:

On the whole, events of the 2007-09 period tended to have an equalizing effect on income, although most of the changes in income were relatively modest. All the measures of income change presented here suggest that income increased for families with income below the 2007 median and income fell for families with income near or above the 2007 median.

The reason for the decline in inequality during the downturn isn’t all that mysterious, I suppose. Households with higher net worth tend to have more invested in stocks and real estate, which both took a big hit. And, as the report explained, their income is more dependent on capital gains, and farm, business, and self‐​employment income, which all fluctuate more with the business cycle.


Still, it is kind of jarring to see that even during a recession, income rose for families in the lower half of the income spectrum and fell for those in the top half. The curse of “rising inequality” and the rich getting richer at the supposed expense of the poor was temporarily suspended from 2007 to 2009, but at the cost of the deepest downturn since the Great Depression.


If forced to choose between a deep recession and rising inequality, I would gladly accept the latter.

March 25, 2011 4:23PM

This Week in Government Failure

Over at Downsizing the Federal Government, we focused on the following issues this week:

  • Sen. Rand Paul introduces a practical, common sense budget that recognizes that the federal government’s growth has become unsustainable, and thus a threat to our economic well‐​being and future living standards.
  • According to the Congressional Budget Office, the president’s latest budget proposal would once again leave “our people” with a “mountain of debt.”
  • It would be nice if the latest example of FAA bungling woke Congress up to the idea of privatizing our nation’s air traffic control system.
  • Instead of tinkering with federal welfare programs, let’s have a public discussion and debate over the fundamental justness and desirability of letting Washington dictate how to meet the needs of the less fortunate.
  • Electric vehicle subsidies: The Obama administration apparently believes that it possesses the unique foresight to optimally plan the economy.

Follow Downsizing the Federal Government on Twitter (@DownsizeTheFeds) and connect with us on Facebook.