Archives: 04/2012

Democracy EXPOSED!

I found a release put out by the American Legislative Exchange Council today a little too meek. So let’s talk about the debate around ALEC, a group I’ve been involved with as a volunteer advisor since before I joined Cato. (The Communications and Technology Task Force used to be called “Telecommunications and Information Technology,” but that didn’t work well in our acronym-happy world.) ALEC is under seige because of alleged ties between its backing of “Stand Your Ground” laws and the Trayvon Martin case, in which a young black man was killed by a neighborhood watch officer of…uncertain ethnic background.

Tim Lynch and Walter Olson have made us aware that the Martin tragedy does not actually implicate Stand Your Ground. Tim has also made us aware of a case in which Stand Your Ground is implicated, that of an elderly Detroit man who shot and killed an 18-year-old entering his home armed with a handgun at 1:30 a.m.

There’s no question, as Tim said, that Zimmerman’s taking of Trayvon Martin’s life warrants intense scrutiny. (The very latest: Prosecutors intend to charge Zimmerman.) While that plays out, Cato will address self-defense law and gun rights at an event entitled “’Stand Your Ground’ Laws: Self-Defense or License to Kill?” on April 23rd, which I encourage you to attend or watch.

But ALEC is an odd target for scrutiny of the quality it’s getting. ALEC describes itself as dedicated to “the Jeffersonian principles of free markets, limited government, federalism, and individual liberty.” Toward this end it “enlist[s] state legislators from all parties and members of the private sector who share ALEC’s mission.”

Anti-ALEC site characterizes things differently:

Through the corporate-funded American Legislative Exchange Council, global corporations and state politicians vote behind closed doors to try to rewrite state laws that govern your rights. These so-called “model bills” reach into almost every area of American life and often directly benefit huge corporations. In ALEC’s own words, corporations have “a VOICE and a VOTE” on specific changes to the law that are then proposed in your state. DO YOU?

It’s very exciting stuff—the idea that people would organize themselves to affect the public policies of their states and nation.

The latter characterization of ALEC doesn’t square very well with the Trayvon Martin case, though. The ALECExposed site itself emphasizes that the National Rifle Association works through ALEC to promote and defend Stand Your Ground and other gun rights and self-defense laws. The NRA is a corporation, yes, but it’s an issue advocacy organization. It’s no more the huge or global corporation ALECExposed aims at than the Center for Media and Democracy, hosts of ALECExposed.

The point is made, though: Corporations are trying to influence our public policy! And they are working closely with state legislators to do it!

The horror.

I’ve looked, and there is no (Domain available!) The National Conference of State Legislatures is a similar group to ALEC: larger, center-left, and government-funded. In 2010, $10 million of NCSL’s $16.8 million general fund came from state legislatures. Most of the remainder comes from grants from federal agencies such as the federal Departments of Health and Human Services, Education, Energy, and Transportation, and from private foundations.

Here, let me re-phrase that:

Through the government-funded National Conference of State Legislatures, governments and foundations try to rewrite state laws that govern your rights. Their efforts reach into almost every area of American life and often directly benefit huge governments and corporations. In NCSL’s own words, it is an advocate for the interests of state governments before Congress and federal agencies. IS IT AN ADVOCATE FOR YOU?

I’ve done my best to make NCSL sound malign, though it’s not. Neither is ALEC malign. I agree with some of what both organizations do, and I disagree with some of what both organizations do.

And I suppose that reveals the trouble with the trouble with ALEC. It is a highly selective attack on one organization that has the peculiar quality of advancing the aims of the business sector, of libertarians, and conservatives. A larger organization that advances the aims of the government sector enjoys no attention in current debate. The hundreds of other organizations that advance the aims of various other sectors—unions, for example—not a peep. Even though RIGHT NOW unions are trying to influence public policy in ways they believe will help workers!

The First Amendment’s protections for freedom of speech, association, and petition of the government have in their background a vision for how our political society should work. Anybody should get to say anything they want, and anybody should organize however they want to advocate for the governing policies they want.

The opponents of ALEC’s positions should advocate the substantive polices they prefer, and they are certainly within their rights to do it in whatever way they prefer. Politics never runs out of ways to disappoint, though, and as a person who tries to deal with the substance of issues, working across partisan and ideological lines, I am amazed at and disappointed by the incoherence of the attack on ALEC.

And I am also disturbed by its anti-democratic and anti-speech quality. The implication I take from the attack on ALEC is that some groups, representing some interests, should not be able to participate in making our nation’s and states’ public policies.

There is one ray of light in all this: NCSL is featuring its concerns with REAL ID, the national ID law, on its homepage. And ALECExposed has a posted a buffoonishly marked-up version of ALEC’s 2007 resolution against REAL ID. NCSL would evidently back the implementation of a national ID if Congress were to fund it. Given its principles, ALEC would not.

Even this debate may help inform the public.

Stand Your Ground: Law and Evidence

One objection that has been raised repeatedly against the “Stand Your Ground” laws is that gun owners can kill a person and then all we have is the shooter’s side of the story!  The police will then have nothing to go on and so people are going to easily get away with murder. It seems to me that that objection just plays on the average person’s ignorance of the criminal law and how it works in practice.

Here’s an item about a killing from today’s Washington Post.  A jury must decide whether a stabbing was self-defense or manslaughter.  Excerpt:

Did a District woman stab her ex-boyfriend to death because he refused to roll over and share the bed? Or was the woman, who had allegedly been abused by the man before, fearful for her life and protecting herself?

That’s what a jury will have to decide in a trial that began Tuesday in D.C. Superior Court. Patricia A. Cave, 50, is charged with voluntary manslaughter while armed in the June 2 death of Lamont Warren, 36.

Prosecutors plan to use Cave’s words against her. After Cave was arrested, she told detectives in a videotaped interview — a portion of which was played for the seven-man, seven-woman jury — that when Warren visited her on the night he was killed, she allowed him to sleep in her bed while she smoked, drank and watched television in the living room.

When she returned to her bed, she told the detectives, she found Warren sprawled on top of her covers. “I said, ‘Can you get on the couch or just scoot over?’ ”

Cave said Warren refused to roll over and began berating her. Then, she said, he grabbed her by the throat and choked her. Cave said she reached for a knife on her nightstand, the two started wrestling and the knife plunged into Warren’s chest.

Although Warren was able to seek assistance from a neighbor in a nearby apartment, there’s no indication that we got his “side of the story.” All we have is Cave’s account! Why isn’t this case receiving more attention?!  Maybe because it is receiving the level of attention it deserves–local crime trial, metro section.

In this previous post, I argue that the Stand Your Ground (SYG) laws apply to a limited set of situations–home invasions and cases where a person is under attack.  In those situations, should we be surprised by the dearth of witnesses? No, because criminals choose the time, place, and victim–and they often choose to strike when the victim is alone and the police are not on the scene. So is it sensible to repeal Stand Your Ground laws, designed to help the innocent, because of evidentiary problems brought about by the criminal attackers? I don’t think so.  Critics of the SYG law need to come up with a better argument than that because the evidence problem they point to is not unique to the SYG law.  True, detectives and prosecutors like cases that have videotapes and great witnesses who saw the whole thing, but that rarely happens and they deal with it by introducing other evidence to support their case for a criminal conviction in situations where a self-defense claim is contrived.

This paper has lots of examples of ordinary people using guns to defend themselves in a variety of circumstances.  Related item here.

Overblown on Homegrown? Conference Friday at Cato

After the September 11 attacks, various terrorist experts warned that sleeper cells hiding the United Sates or hyper-competent terrorists abroad were poised to strike. Those predictions, happily, proved wrong. Before we could celebrate our safety, however, a new terrorist menace emerged: homegrown violent extremists. Thanks to a raft of arrests of American born jihadist attackers, plus a couple real attacks of that kind, we seem to be experiencing a homegrown terrorism boom. Congress has held hearings. The Department of Homeland Security is encouraging local authorities to be on the lookout and named a new lead person on CVE (counter violent extremism) matters and a new Counterterrorism Advisory Board to coordinate his activities. Various policing initiatives aim to find homegrown terrorists, including those ubiquitous announcements where recorded officials remind us to be vigilant and report the unusual.

Internationally, the new fear is that the virtual decapitation of al Qaeda central in Pakistan has allowed the jihadist threat to the west to metastasize, as it mingles with various regional groups. The al Qaeda affiliates in Yemen, Somalia, Northern Africa and even Nigeria, are, according to this theory, coordinating with each other and threatening the west by training and radicalizing terrorist operatives, as the old al Qaeda once did in Afghanistan. So U.S. military actions, including drone strikes and training local forces, are needed to defeat these groups.

Friday morning, Cato is hosting a brief conference, consisting of two panels, that will critically examine these assumptions. Risa Brooks, John Mueller and Brian Jenkins (calling in from California) will look at the local terrorist threat in the United States. They will ask how this set of terrorists compares to past domestic terrorist threats, whether homegrown terrorist attacks are actually up—some say otherwise—and, if they are, whether that increase is largely a result of FBI sting operations where the bulk of motivation and expertise to conduct the attack comes from federal agents or informants. The world is, after all, full of impressible idiots capable of being talked into a variety of violent acts. It may be that any increase in the incidence of homegrown terrorist plots is a product of our increased efforts to find it. The panelist may also ask whether the exhortations to be vigilant against domestic terrorists are, thanks to false leads and distraction, more trouble than they are worth.

On the second panel, Glenn Carle, Mitchell Silber and Michael Kenney will look at what has become the global al Qaeda, asking whether it is withering due to weak popular support, whether there is any center directing the cells and affiliates, and how interested these various insurgent jihadist groups are in putting aside their local struggle and attacking western targets. The panel will also consider whether the absence of command and hierarchy in the al Qaeda movement breeds incompetence and makes unlikely the technologically sophisticated terrorism—like the biological or nuclear attacks—that we’ve been told to expect.

There is still time to sign up for Friday’s event. It will also be streamed live online.

NPR, Obama, and the Misleading ‘Buffett Rule’

NPR says that President Obama will propose that millionaires pay income taxes “at the same rates as average working Americans.” On the 9:00 a.m. hourly news.)

That would be good news for most millionaires:

To be sure, NPR’s longer stories on Obama and the “Buffett rule” are more precise, as in Tuesday’s story that said the proposed law “would require anyone making a million dollars a year or more to pay at least 30 percent in taxes.” Even there, though, the sentence went on to say “- about twice what some millionaires pay now.” And as the charts above show, that’s quite misleading. The Congressional Budget Office reported in 2010,

The overall federal tax system is progressive—that is, average tax rates generally rise with income. Households in the bottom quintile (fifth) of the income distribution paid 4 percent of their income in federal taxes, while the middle quintile paid 14 percent, and the highest quintile paid 25 percent. Average rates continued to rise within the top quintile, with the top 1 percent facing an average rate of close to 30 percent.

Simplicity, Please

Today, L. Gordon Crovitz penned “Complexity Is Bad for Your Health” in the Wall Street Journal.  It is a most edifying article about the difficulties facing the Supreme Court as it tries to figure out what the concoction termed “ObamaCare” is all about.  Justices – from Breyer to Scalia – have made it clear that the only thing that is “clear” is that Congress and the White House paid a visit to Rube Goldberg before they passed the Patient Protection and Affordable Care Act Law in 2010.

Most of what passes for “getting something done” in Washington, D.C. usually amounts to making things so complex that no one – not even the authors – can grasp the nettle.  But, that’s the objective of complexity – to conceal the truth, to deceive.

A Primer on ‘Judicial Activism’

In his recent preemptive attack on the Supreme Court, President Obama invoked what he took to be the conservative critique of “judicial activism”:

I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this [the Court’s possibly overturning the Affordable Care Act] is a good example. And I’m pretty confident that this court will recognize that and not take that step.

Those were the least problematic of the president’s Rose Garden remarks, because they rang true in large part. Over the years, many conservatives have indeed criticized the courts—and the Supreme Court in particular—along just those lines. But it’s also true that the debate has changed over that period. To shed some light on such changes, and how the president got it wrong, ultimately, it’s worth a brief look at the underlying issues. (See here for a more thorough discussion.)

In brief, the complaint about judicial activism emerged from what many conservatives saw as the “rights revolution” that was brought about by the Warren and Burger Courts, starting in the 1950s. The most prominent case, of course, was 1954’s Brown v. Board of Education, but other decisions involving criminal law and procedure, school prayer, and, ultimately, abortion, to mention just a few subjects, all played into the conception of the Court as just another political branch, making up the law as it went along. And there was some truth to that, but only some, because the devil was in the details, especially the details of the Fourteenth Amendment on which so many of the Court’s decisions rested. Thus, many of those decisions overturned state laws, raising not only rights questions but questions about federalism as well.

With the onset of the Reagan administration, however, and the advent of the Rehnquist Court in 1986, the conservative critique moved to center stage. In the hands of Attorney General Edwin Meese, Judge Robert Bork, and many others, it became a call not simply for “judicial restraint” but for “originalism”—for applying the law as understood by those who drafted or ratified it. That was an important shift, because the focus was now more squarely on the law itself, not more narrowly on the behavior of judges.

But that shift helped to bring out a split that had been growing on the Right. Back in the 1970s a few of us had reservations about the very “rights revolution” thesis. After all, America was conceived in the name of natural rights, so why were conservatives, in their critique of judicial activism, so hostile to such rights—and, of special importance, so deferential to the state and federal legislatures whose acts so often violated them? To be sure, the conservative critique of the Warren and Burger Court’s was often on the mark, but not always. Moreover, weren’t those conservatives, professing to be opponents of big government, ignoring the fact that it was the political branches—during the Progressive Era, the New Deal, and the Great Society—that had given us big government?

And so, as the focus shifted to the substantive law during the 1980s, those of us on the libertarian Right kept pressing conservatives, as in Cato’s 1984 conference on “Economic Liberties and the Judiciary,” to recognize that the political vision on which their critique of the courts rested was fundamentally flawed. Nowhere was that more evident than in Judge Bork’s contention—his “Madisonian dilemma”—that our first principle as a nation is that in wide areas majorities are entitled to rule simply because they are majorities, while our second principle is that in some areas individuals are entitled to be free from majority rule. As I wrote in the Wall Street Journal early in 1991, that gets Madison exactly backwards. Madison held that our first principle is that in wide areas individuals are entitled to be free because they are born free, while our second principle is that in some areas majorities may rule because we have authorized them to. That is Madison’s vision: it gets the presumptions and the burdens of proof in the right order.

Later that same year, Randy Barnett and I each addressed a Bill of Rights Bicentennial showcase program at the convention of the American Bar Association, speaking on “The Forgotten Ninth and Tenth Amendments.” In so doing, we drew together both the rights (the Ninth Amendment) and the powers (the Tenth Amendment) sides of the Constitution and, in the process, tied them to both the Declaration of Independence and the Fourteenth Amendment, the amendment that in time would “complete” the Constitution by at last incorporating in it the grand principles of the Declaration.

Thus did the issues come to be joined on the Right, with help from many others, to be sure, both before and after. And the debate that has ensued—at Cato, the Institute for Justice, the Heritage Foundation, the Federalist Society and elsewhere, including in the courts—has slowly changed the conservative critique. No longer is the focus simply on “activism” or “deference”—the unstated assumption being that a court must have an extremely compelling reason before it overturns a “democratic decision.” That is the mindset that came from the New Deal’s “constitutional revolution” following Franklin Roosevelt’s infamous Court-packing threat, which enabled the massive government that conservatives today want to roll back. It’s the mindset that conservatives bought into a generation later as they sought to preserve state autonomy—and, too often, state tyranny. But neither it nor the conservative reaction to it was faithful to our first principles, as reflected in the amended Constitution. In a word, conservatives have come to recognize that there is all the difference in the world between judicial activism and an active judiciary, bound by oath to holding Congress to its enumerated powers and all officials, federal and state, to respecting our rights, enumerated and unenumerated alike.

And so we return to the president’s effort to rest his case on the conservative critique of judicial activism. Because that critique has largely evolved toward a more sophisticated, substantive understanding of our constitutional order, Obama can no longer hold a mirror before conservatives, charge them with inconsistency, and rely on their earlier arguments for his own anticipatory critique of the Court.

We’re now back to first principles and to a debate about what they are, which is where the debate should always have been. Roosevelt, after whom Obama fashions himself, read the Constitution as empowering government in ways that had been largely rejected for 150 years. That’s why those on Obama’s side invariably begin their arguments with “Since the New Deal,” as if that were a source of legitimacy. It isn’t. The Constitution was written in 1787, not 1937. As amended, it is the sole source of whatever legitimacy the government has, and it is the duty of the courts to determine what that law is, in the execution of which they must be actively engaged.

How Naysayers See the World Trade Organization

Public Citizen’s Lori Wallach is no fan of the World Trade Organization.  But her mischaracerizations of how that body operates require correcting. Wallach published this piece on April 9 on the Huffington Post blog under the title, “WTO Orders U.S. to Dump Landmark Obama Youth Anti-Smoking Law.” Here are some excerpts followed by commentary.

Behind closed doors in Geneva, a World Trade Organization (WTO) tribunal issued a final ruling ordering the U.S. to dump a landmark 2009 youth anti-smoking law.

However, this is what the last paragraph of the WTO Appellate Body report actually says:

The Appellate Body [the highest “court” in the WTO] recommends that the DSB [WTO Dispute Settlement Body] request the United States to bring its measure, found in this Report, and in the Panel Report [the Panel is the equivalent of a lower court] as modified by this Report, to be inconsistent with the TBT Agreement [Technical Barriers to Trade], into conformity with its obligations under that Agreement. (My emphasis.)

The decision – just like U.S. court decisions are made – was made behind closed doors in the sense that the judges probably evaluated the merits of the claims against the texts of the agreements in the comfort of their own offices with their doors closed. The Appellate Body report, though, which includes the rationale for each decision in the report, is available right here, to the public. Likewise, the original Panel report is available here, as is plenty of other relevant information.

Contrary to the characterization that Wallach and other anti-globalistas have been trying to paint for years, the WTO is not some faceless bureaucracy issuing edicts that run roughshod over national sovereignty and local laws. The WTO has no special power to compel any member state to do anything.  Contrary to Wallach’s claim that a WTO “Tribunal” (sounds like a military junta, no?) “ordered” the United States to “dump” a “landmark” anti-smoking law, the WTO Appellate Body merely requested (see above) that the United States bring a specific clause of the law into conformity with U.S. treaty obligations.  WTO Panels and the AB only recommend or request.

A WTO dispute panel in this case and, subsequently, the Appellate Body, found that the law’s prohibition on sales of certain cigarettes – namely, clove-flavored – but not on others – namely, menthol-flavored – constitutes a violation of the principle of “national treatment,” which is a bedrock principle of the multilateral trading system that asserts that foreign producers must be afforded the same standards and rules as domestic producers.

Wallach continues:

[The] U.S. law was designed to reduce teen smoking by banning “starter flavorings,” since tobacco firms had begun marketing flavors like cola, chocolate, strawberry and clove. The 2009 law forced U.S. firms to cease sales of these products, whether imported or domestically produced (my emphasis).

U.S. firms may have begun marketing cola, chocolate, and strawberry cigarettes, but clove cigarettes, like menthol cigarettes, had been a fixture among U.S. tobacco products since the 1930’s. The WTO did not rule that the United States cannot have an anti-smoking law – only that that law was not being applied evenhandedly to domestic as well as foreign companies. By banning clove cigarettes, which have been sourced principally from Indonesia over the years, but not menthol cigarettes, which are produced primarily in the United States, the U.S. law discriminates against producers from another country – namely, Indonesia.


The WTO’s ruling against banning the sale of flavored cigarettes isn’t the only example of its attack on consumer protection and health laws. The U.S. has filed WTO appeals on two other U.S. consumer laws – U.S. country-of-origin meat labels and the U.S. dolphin-safe tuna label – both were slammed by lower WTO tribunals in the past six months.

Of course, the WTO did not rule against banning the sale of flavored cigarettes. The law could be made WTO compliant by extending the ban to include menthol, in which case it might be more defensible as a measure to protect youth health. Or the law can be changed so that both clove and menthol cigarettes are not banned.

The bottom line is that there are many ways to pursue public health and safety and consumer protection that don’t, coincidentally, punish foreign firms to the benefit of domestic ones (which is the narrow area of concern to the WTO). In the dolphin-tuna and the country of origin cases, mentioned, there are better, WTO-compliant ways to achieve the implicit public policy objectives.

But, as Wallach sees it:

[I]n short order we could see the WTO hating on Flipper, feeding us mystery meat and getting our kids addicted to smoking.

This might be good marketing for Public Citizen and its anti-trade agenda, but it doesn’t advance public understanding of the issues.