201109

September 23, 2011 11:47AM

Eyes Wide Shut to Trade Policies That Would Encourage Domestic Investment and Hiring

The Congressional Joint Economic Committee held a hearing this week entitled "Manufacturing in the USA: How U.S. Trade Policy Offshores Jobs." The intended purpose of the hearing was to examine how foreign unfair trade practices encourage the offshoring of U.S. manufacturing. Thankfully, not all witnesses stayed within the contours of that presumption.

I say "thankfully" because the incessant focus of politicians on fixing the policies and practices of foreign governments, as though they were the primary impediments to U.S. business success at home and abroad, is a diversion that should no longer be tolerated. It gives the appearance that our elected officials are earnestly seeking appropriate solutions, while further obscuring the real solutions. Meanwhile, it protects incumbents from having to make substantive, consequential choices.

I’ve written lately (in this policy paper and in this op-ed) about how U.S. trade policy undermines the competitiveness of U.S. firms and chases some producers offshore. But I find some of the greatest impediments to U.S. firms’ success to be homegrown, domestic policies that place unnecessary restrictions and burdens on U.S. firms trying to compete in a global economy.

I elaborated on those points in written testimony submitted to the committee, the introduction of which follows:

Too many U.S. policymakers, from Capitol Hill to the various executive branch agencies in Washington, tend to focus on foreign policies and foreign barriers when considering how best to improve the competitive prospects for U.S. firms. The presumption is that the major impediments to the success of U.S. firms are foreign born. Closed foreign markets, complex laws and regulations, overt flaunting of the trade rules, subtle protectionism, and unfair trade are the primary culprits that subvert the success of U.S. firms, discourage investment and hiring, and encourage offshoring of production. Indeed, that is the premise of today's hearing, as inferred from its description on the Committee's website.

But that premise is myopic and, frankly, irresponsible. It reinforces arguments for nonsensical policies, such as preserving our own barriers to trade and investment, which are nothing more than costs to U.S. businesses and families. Policies that raise the cost of doing business in the United States---such as our tariff regime and the trade remedies duties that the U.S. government imposes on broad swaths of industrial inputs---encourage manufacturers to at least consider moving operations abroad, where those materials are available at better prices.

Governments are competing for business investment and talent, which both tend to flow to jurisdictions where the rule of law is clear and abided; where there is greater certainty to the business and political climate; where the specter of asset expropriation is negligible; where physical and administrative infrastructure is in good shape; where the local work force is productive; where there are limited physical, political, and administrative frictions. This global competition in policy is a positive development. But we are kidding ourselves if we think that the United States is somehow immune from this dynamic and does not have to compete and earn its share with good policies. The decisions made now with respect to our policies on immigration, education, energy, trade, entitlements, taxes, and the role of government in managing the economy will determine the health, competitiveness, and relative significance of the U.S. economy in the decades ahead.

September 23, 2011 11:20AM

Obama’s Double‐​Secret Violation of the Constitution

Though few people outside of the Tea Party---especially politicians---have the guts to say it, federal education control like the No Child Left Behind Act is blatantly unconstitutional. Authority over education is not among the federal government's enumerated powers, and laws like the NCLB---which truly is a wreck driven by what self-interested politicians thought sounded good---also go far beyond the 14th Amendment's charge to prohibit discrimination by state and local governments. 

But not satisfied to just have Washington fully ensconced in classrooms, this morning the Obama administration officially went to double-secret violation of the Constitution, adding a brazen dumping of the separation of powers to federal education policy.

This second layer of Constitution-contempt comes in the form of the administration telling states that they can get waivers from the No Child Left Behind Act---which the NCLB allows---but requiring that they adopt administration-approved policies to do so. That second part the NCLB does not allow, meaning the president has decided to rewrite the law all by himself---including strong-arming states to adopt "college and career ready standards," another step toward federal curriculum standards---even though the Constitution is crystal clear: "All legislative Powers herein granted shall be vested in a Congress of the United States." 

In response to this, will we finally hear the Constitution loudly, constantly, and honestly invoked and defended by members of Congress, especially those in the GOP who don't have the obstacle of having to defend "their" president? We sure as heck should, but don't count on it: If they start really defending the Constitution now, think of all the violations they've happily perpetrated that someone might notice. No, better to keep up the double-secret evasion and complain on other grounds, like President Obama is being too "political." Because no one in Congress---or anywhere else---would ever act based on political motives, such as concluding that "Constitution, shmonstitution, we can't push to get the Feds completely out of education because people would think we are mean." 

No, political thinking like that would never happen.

September 23, 2011 6:00AM

Congress on Transparency: ‘Needs Improvement’

"Needs improvement" is the understated theme of a Capitol Hill briefing this morning entitled "Publication Practices for Transparent Government: Rating the Congress." (Live-streamed starting at 9:00 am. If timely, check it out---the video will come up before too long also---and join the conversation on Twitter at the #RateCongress hashtag.)

Congress needs to improve its data publication practices if it's going to be the transparent legislature that it should be.

How did we arrive at this conclusion? We're doing more than stating the obvious.

A Cato Briefing Paper released today entitled "Publication Practices for Transparent Government" goes through some technically challenging but essential concepts in data publication: authoritative sourcing, availability, machine-discoverability, and machine-readability. Together, these practices will allow computers to automatically generate the myriad stories that the data Congress produces have to tell. Following these practices will allow many different users to put the data to hundreds of new uses in government oversight.

At the event, we're releasing informal grades that rate how each of the major parts of the legislative process are published as data. To produce the grades, we constructed a "data model" of formal federal legislative processes (HTML version, Word version).

Data modeling is pretty arcane stuff, but in this model we reduced everything to "entities," each having various "properties." The entities and their properties describe the logical relationships of things in the real world, like members of Congress, votes, bills, and so on. We also loosely defined several "markup types" guiding how documents that come out of the legislative process should be structured and published.

Then we compared the publication practices in the briefing paper to the "entities" in the model. Are data about the key entities in the legislative process well published? That's what we graded on, with a little commentary pointing toward what is good and bad in current publication practices. The grades are listed on this report card, which you can use to cut to the chase, but the real story is in the assessment below.

Are we stating the obvious? Yes. But a little humility and grace is in order. This stuff is tough sledding. The data model isn't the last word, and there are things happening in varied places on and around Capitol Hill to improve matters. Several pieces of the legislative process nobody has ever talked about publishing as data before, so we forgive the fact that this isn't already being done. If things haven't improved in another year, then you might start to see a little more piquant commentary.

Without further ado, here is the full listing of Congress' transparency grades. As far as data publication for transparency, Congress needs improvement.

Publication Practices for Transparent Government: Rating the Congress

 

How well can the Internet access data about Congress’ work? In consultation with transparency experts, the Cato Institute’s director of information policy studies, Jim Harper, rated how Congress publishes key legislative data in terms of authoritative sourcing, availability, machine-discoverability, and machine-readability.These criteria envision a world where there is one authoritative source for each category of information. Unfortunately, today’s congressional data are published by a lot of sources that have grown up haphazardly. There might even be some sources we don’t know about. Future grades will undoubtedly reflect improvements in what researchers, reporters, websites, and the public at large can see and use, aided by their computers.

House and Senate Membership: B+

How does the public find out about who holds office in the House of Representatives and Senate? A couple of ways.

The Biographical Directory of the United States Congress is a compendium of information about all present and former members of the United States Congress (as well as the Continental Congress), including delegates and resident commissioners. The "Bioguide” website is a great resource for searching out historical information.

But there’s no sign that it’s Congress’ repository of record, and it’s little known by users, giving it low authority marks. Bioguide scores highly on availability—we know of no problems with up-time or completeness (though it could use quicker updating when new members are elected).

Bioguide isn’t structured for discoverability. Most people haven’t seen it, because search engines aren’t finding it. Bioguide does a good thing in terms of machine-readability, though. It assigns a unique ID to each of the people in its database. This is the first, basic step in machine-readability, and the Bioguide ID should probably be the standard for machine-identification of elected officials wherever they are referred to in data. Unfortunately, the biographical content in Bioguide is not machine-readable.

The other ways of learning about House and Senate membership are nothing if not ad hoc. The lists of members that appear on the House and Senate websites are adequate for some purposes. They’re authoritative, available, and discoverable due to their prime location on the top-level House and Senate domains. But the HTML presentation on the House side does not break out key information in ways useful for computers. The Senate includes a link to an XML representation that is machine readable. Good job, Senate.

The rest of the information flows to the public via congressmembers’ individual websites. These are non-authoritative websites that search engine spidering combines to use as a record of the Congress’s membership. They are available and discoverable, again because of that prime house.gov and senate.gov real estate. But they only reveal data about the membership of Congress incidentally to communicating the press releases, photos, and announcements that representatives want to have online.

So far there is no authoritative, really well-published source of information about House and Senate membership, but the variety of sources that exist combine to give Congress a pretty good grade on publishing information about who represents Americans in Washington, D.C.

Committees and Subcommittees: C

If you want to find out about the committees to which Congress delegates much of its work, and the subcommittees to which the work gets further distributed, you might have to form a commit— … a search party.

The Senate has committee names and URLs prominently available on its main website, and the House does too. But that would just be the starting point for researching what all these committees do and who serves on them. For that, you’d go to individual committee websites, each one different from the others.

With the data scattered about this way, the Internet can’t really see it. The Senate has a little known machine-readable listing of its membership and their assignments. More prominence, data such as subcommittees and jurisdiction, and use of a recognized set of standard identifiers would take this resource a long way.

Without a recognized place to go to get data about committees, this area suffers from lacking authority. To the extent there are data, availability is not a problem, but machine-discoverability suffers for having each committee publish distinctly, in formats like HTML, who their members are, who their leaders are, and what their jurisdiction is.

Until committee data are centrally published using standard identifiers (for both committees and their members), machine-readability will be very low. The Internet makes sense of congressional committees as best it can, but a whole lot of organizing and centralizing—with a definitive, always-current, and machine-readable record of committees, their memberships, and their jurisdictions—would create a lot of clarity in this area with a minimum of effort.

Meetings of House, Senate, and Committees---Senate: B+ / House: D+

When the House, the Senate, committees, and subcommittees have their meetings, the business of Congress is being done. Can the public learn easily about what meetings are happening, when, and what they are about? It depends on which side of the Capitol you’re on.

The Senate is pretty good about publishing notices of committee meetings. In addition to a webpage with meeting notices on it, it publishes an XML page with lots of good features, like distinct codes for each committee. (If only we knew whose codes they were, and if only they could be used consistently throughout legislative data….) If a particular bill is under consideration in a Senate committee meeting, this is a way for the public to learn about it. This is authoritative, it’s available, it’s machine-discoverable, and it’s got some machine-readable features. That means any website, researcher, or reporter can quickly use these data to generate more—and more useful—information about Congress.

The House doesn’t have anything similar. To learn about meetings of its committees, you might have to scroll through page after page of committee announcements or calendars. The House can catch up with the Senate in this area, and we are aware that they are working on it. This area is ripe for rapid improvement.

Meeting Records: C-

There is lots of work to do before meeting records can be called transparent. We have one thing, the Congressional Record. It is the authoritative record of what transpires on the House and Senate floors, but nothing similar reveals the content of committee meetings. Those meeting records are produced after much delay—sometimes an incredibly long delay—by the committees themselves. These records are obscure, not being published in ways that make things easy for computers to find and to comprehend.

The Congressional Record also doesn’t have the machine-discoverable publication or machine-readable structure that it could and should. Giving unique, consistent IDs in the Record to members of Congress, to bills, and other regular subjects of this publication would go a long way to improving it. The same would improve transcripts of committee meetings.

Another form of meeting record exists: videos. These have yet to be standardized, organized, and published in a reliable and uniform way, though the HouseLive site is a significant step in the right direction. Real-time flagging of members and key subjects of debate in the video stream would be a great improvement in transparency. Setting video and video meta-data standards for use by both Houses of Congress, by committees, and by subcommittees would improve things dramatically.

Committee Reports: D+

Committee reports are important parts of the legislative process, documenting the findings and recommendations that committees report to the full House and Senate. They do see publication on the most authoritative resource for committee reports, the Library of Congress’s THOMAS system. They are technically machine discoverable, but without good semantic information embedded in them, committee reports are barely visible to the Internet.

Rather than publication in HTML and PDF, committee reports should be published with the full array of signals that reveal what bills, statutes, and agencies they deal with, as well as authorizations and appropriations, so that the Internet can discover and make use of these documents.

Bills: A-

Bills are a “pretty-good-news” story in legislative transparency. Most are promptly published. It would be better, of course, if they were all immediately published at the moment they were introduced, and if both the House and Senate published last-minute, omnibus bills before debating and voting on them.

A small gap in authority exists around bills: people look to the Library of Congress rather than Congress or the Government Printing Office, which are better authorities for bill content, but this has not caused any problems. Once published, bill information remains available, which is good.

Publication of bills in HTML on the THOMAS site makes them reasonably machine-discoverable. Witness the fact that searching for a bill will often turn up the version at that source.

Where bills could improve some is machine-readability. Some information such as sponsorship and U.S. code references is present in the bills that are published in XML, and nearly all bills are now published in XML, which is great. Much more information should be published machine-readably in bills, though, such as references to agencies and programs, to states or localities, and so on, referred to using standard identifiers.

With the work that the THOMAS system does to gather information in one place, bill data are good. This is relative to other, less-well-published data, though. There is yet room for improvement.

Amendments---House and Senate: C / Committees: I

Amendments are not the good-news story that bills are. With a few exceptions, amendments are hard to track in any systematic way. When it comes to the House and Senate floors, amendment text is often available, but the authoritative source is different if you want to see the text (GPO) and the status (THOMAS) of an amendment. It is very hard to see how amendments affect the bills they would change.

In committees, the story is quite a bit worse. Committee amendments are almost completely opaque. There is almost no publication of amendments at all—certainly not amendments that have been withdrawn or defeated. Some major revisions in process are due if committee amendments are going to see the light of day as they should.

Motions: I

When the House, the Senate, or a committee is going to take some kind of action, it does so on the basis of a motion. If the public is going to have insight into the decisions Congress makes, it should have access to the motions on which Congress acts.

But motions are something of a black hole. Many of them can be found in the Congressional Record, but it really takes a human who understands procedure reading the Congressional Record to find them. That’s not modern transparency.

Motions can be articulated as data. There are distinct types of motions. Congress can publish which meeting a motion occurs in, when the motion occurs, what the proposition is, what the object of the motion is, and so on. Along with decisions, motions are key elements of the legislative process. They can and should be published as data.

Decisions: I

When a motion is pending, a body such as the House, the Senate, or a committee will make a decision on it, often using votes. These decisions are crucial moments in the legislative process, which should be published as data. Like motions, these are not yet published usefully. Decisions made in the House or Senate are published in text form as part of the Congressional Record, but they are not published as data, so they remain opaque to the Internet.

Votes: A-

Voting puts members of Congress on record about where they stand. And happily, vote information is in pretty good shape. Each chamber publishes data about votes, meaning authority is well handled. Vote data are available and timely.

Both sides could sorely use an index that lists all votes, though, along with an indication of the last time the vote was modified (i.e., if corrections to the original data have been posted). But both the House and Senate produce vote information in XML, which is useful for computers and the Internet. Both houses also use unique identifiers for their members, though they’re not so good at indicating who those unique IDs refer to. (The House does not have a list-of-people database, and the Senate uses lis_member_ids rather than Bioguide IDs.) Overall, though, voting data are pretty well handled.

Communications (Inter- and Intra-Branch): I

The messages sent among the House, Senate, and Executive Branch are essential parts of the legislative process, but they do not see publication. Putting these communications online—including unique identifiers, the sending and receiving body, any meeting that produced the communication, the text of the communication, and key subjects such as bills—would complete the picture that is available to the public.

September 23, 2011 5:33AM

Questioning the Drone Wars

The Washington Post reported Tuesday that we are building more unmanned aerial vehicle bases around the Horn of Africa and Yemen to strike al Qaeda militants.

For a critical take on drone strikes in both places, read what I wrote here in July. I discuss the danger of conflating all jihadist militants with those bent on attacking us. Here’s the bit on Somalia.

Since our recent drone strike in Somalia on leaders of the al-Shabab insurgent group, the administration has claimed that Shabab’s leaders are plotting terrorism against American or western targets. The only evidence given for this assertion is vague claims of Shabab’s ties to Yemeni militants and its claim of responsibility for a 2010 terrorist bombing in Uganda. But that bombing came because Ugandan troops are in the African Union force fighting al-Shabab. While reprehensible, the attack does not show a desire to terrorize Americans.

At the risk of sounding quaint, Congress should make the administration substantiate its claims that Shabab is targeting Americans before we bomb them further. We have enough insurgents to fight these days outside Somalia.

I also questioned the Bush administration's claims about the Shabaab-al Qaeda nexus here in 2008.

Prior links and several al Qaeda guys in the mix, while worrying, do not mean that organization is going to attack Americans, and is therefore one we should target.

Mixing a “war on terrorism” with the promiscuous designation of Islamic insurgent organizations as terrorists is a recipe for spending the next century tied up in other people’s civil wars. There’s a self-fulfilling aspect to this policy. Declaring war on insurgents may cause them to attack Americans or ally with those who do. There’s evidence that this dynamic is already occurring in Somalia.

Last month, I wrote a post for the National Interest about drone strikes in Pakistan, arguing that no one really knows how well they work. That uncertainty, combined with secrecy, is, I argue, good reason to oppose them. The principle applies elsewhere. Our leaders should have to work harder to make war.

Finally, globe-trotting reporter David Axe criticized U.S. policy toward Somalia in a 2009 Cato Policy Analysis, arguing for a more hands-off approach.

September 23, 2011 5:29AM

What Is Judicial Activism?

Nearly a year ago, I had an engaging debate at Berkeley Law School regarding "judicial activism."  Of course, as I clarified, the phrase is really just an epithet hurled by someone to describe a legal ruling with which he disagrees. The whole argument about whether a certain judge is "activist," "restrained," or anything else is irrelevant: fidelity to the Constitution should be the sole evaluative criterion---and point of debate---regardless of whether that means striking down a law or upholding it, deferring to the legislature or not.

As I said during this debate (which was against a young law professor named Fred Smith),

The purveyors of conventional punditry all miss the larger point.  The role of the judiciary in terms of constitutional interpretation is to fully interpret and apply the Constitution, period.  So, if that means upholding a law, fine.  If that means striking it down, fine.  Activism is doing something that is not supposed to be the judicial role or not being faithful to the Constitution, which is no small task in part because of the doctrinal mess the Supreme Court has made.  Again, whether a particular statute stands or falls is of no moment.  Fidelity to the founding document should be the touchstone, not a circular debate over the virtues of judicial restraint or---as John Roberts put it at his confirmation hearing---modesty: just calling balls and strikes, just being in a kind of modest judicial role.  Again, where you stand on those sorts of debates depends on where you sit.

I can quote this debate because a transcript has been published in the Federalist Society's journal, Engage.  The current volume has plenty of other interesting articles, including some authored by various Cato-affiliated or -friendly folks.

September 22, 2011 4:20PM

Cato Conference: Ending the Global War on Drugs

On Tuesday, November 15, Cato will be hosting a day-long drug policy conference on Ending the Global War on Drugs. This issue, which has always been a crucial part of libertarian thought, has picked up wider support in recent decades. More and more people are realizing two fundamental truths about the war on drugs: 1) that the government has no place in deciding what you are or are not allowed to put in your body, and 2) that, even if it did, the costs associated with prohibition are, well, prohibitively high.

One of these costs, the effect that drug prohibition has had on South America and Mexico, will be highlighted at the November conference. Fernando Henrique Cardoso, the former President of Brazil, Luis Alberto Lacalle Pou, the Speaker of the House of Deputies in Uruguay, and Jorge Castañeda, former Minister of Foreign Affairs in Mexico, will all be on hand to discuss the effects of prohibition in their home countries.

The conference also features Glenn Greenwald, prominent Salon blogger and civil libertarian, as well as the author of one of our most-cited white papers, Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies. It should be a fantastic event. For those who may still be on the fence about ending drug prohibition, I advise taking a look at LearnLiberty’s excellent new video featuring Dr. Stephen Davies:

September 22, 2011 10:42AM

Rating Congress on Transparency

Tomorrow morning, I'll be officially releasing a paper entitled "Publication Practices for Transparent Government" at a Hill briefing entitled "Publication Practices for Transparent Government: Rating the Congress."

If you're a smart and savvy Internet user, you probably noticed that the paper is there at the first link above, unofficially released just for you. This qualifies you to read it and get some of the fascinating and different technical aspects of transparency.

This is all a teaser for our release tomorrow of "grades" on how Congress is doing with publishing data about the essential parts of its legislative work. For that, you'll have to attend the event or watch it live-streamed (here, commencing at 9:00 Eastern with remarks from House Oversight and Government Reform Committee Chairman Darrell Issa (R-CA)).

If you like transparency—and chances are you do—you can help spur discussion tomorrow (or even today) using the hashtag #RateCongress, along with, of course, #transparency. (Don't know what a hashtag is? Well, here's a little help.)

Despite good faith efforts on the part of the Obama administration and congressional leaders, government transparency hasn't flourished as it could the last few years. The paper, event, and "report card" are intended to spur progress on that front.

Transparency is interesting not only technically and administratively, but ideologically. Libertarians and conservatives believe it will expose waste and corruption, fomenting downward pressure on the size and scope of government. Liberals and progressives believe transparency will expose waste and corruption, validating many government programs and roles.

I say let's get on with exposing waste and corruption, so we can find out what happens next!