Archives: 09/2013

Free Advice from Bill Kristol

Republicans who still look to Bill Kristol for political advice will find his case that “yes” is “The Right Vote” over at The Weekly Standard today. Ignore those melting phone lines, Kristol urges congressfolk: despite what your constituents are telling you, “no” on the Authorization for Use of Military Force (AUMF) in Syria is actually “the risky vote.”

If Republicans refuse authorization, Kristol argues, “the GOP can be blamed for whatever goes wrong in Syria, and elsewhere in the Middle East, over the next months and years. And plenty will go wrong.” If they don’t want the Middle East mess hung around their necks, he says, then Republican lawmakers should vote for bombing Syria—and “consider moving an authorization for the use of force against the Iranian nuclear weapons program.” See, that’s how you minimize your political risk. With double the bombing, what could possibly go wrong?     

It’s not the most persuasive bit of political analysis I’ve ever read. But, disturbingly, Kristol’s on to something in this paragraph:

A Yes vote is in fact the easy vote. It’s actually close to risk-free. After all, it’s President Obama who is seeking the authorization to use force and who will order and preside over the use of force. It’s fundamentally his policy. Lots of Democrats voted in 2002 to authorize the Iraq war. When that war ran into trouble, it was President Bush and Republicans who paid the price. If the Syria effort goes badly, the public will blame President Obama…. If it goes well, Republicans can take credit for pushing him to act decisively, and for casting a tough vote supporting him when he asked for authorization to act. 

There’s genuine insight there into the way we war now, and how Congress shirks its constitutional responsibilities. Domestically, as David Schoenbrod has observed, broad delegations of power allow Congress “to kiss both sides of the apple,” taking credit for the benefits of the legislation they pass and railing against whatever costs the executive branch imposes.

Congress plays the same “shell game” abroad. Where possible, modern Congresses have preferred to punt to the president and reserve their right to criticize him should military action go badly—to be for the war before they were against it, or vice versa, depending on which way the political winds blow. That’s how it worked in Vietnam and in Iraq—and that’s the danger with the Senate’s loosely crafted Syria AUMF. The provisions that purport to limit presidential action are too weak to stick, but if we get a wider, bloodier war, they’ll allow legislators to say: “That is not what I meant at all.” It’s TARP with Tomahawks. 

Still, there’s always the risk that the marks will see through the shell game. And at this point, Congress seems unconvinced that a “yes” vote is “close to risk free.” 

U.S. Postal Service Likely to Seek ‘Emergency’ Increase in Stamp Prices

The U.S. Postal Service is structured to subsist on the revenues it generates from the sale of its products and services. In recent years, however, USPS expenses have exceeded revenues and the government agency now finds itself effectively broke, having maxed out its $15 billion line of credit with the U.S. Treasury.   

Postal employee unions blame a 2006 law that forces the USPS to prefund retiree health benefits (a benefit that a small and declining number of private sector workers enjoy) for the government agency’s financial woes. But as a recent Congressional Research Service paper notes, the USPS would be in trouble even without the required payments: 

While [Retiree Health Benefits Fund] payments have affected the USPS’s profitability, the USPS would have run deficits each of the past four years even if the agency did not have to make RHBF payments. These non-RHBF deficits would total $14.7 billion, an amount nearly equal to the USPS’s total borrowing authority. [T]hese deficits were produced by a sharp drop in revenues. (Expenses did not fall equivalently.)

Congress has been fumbling around with postal reform legislation for a couple of years now. And as I’ve noted more times than I can count, congressional micromanagement makes it difficult for the USPS to downsize its operations to match 21st century realities. So the USPS is reportedly looking to generate more revenue through higher stamp prices. 

The USPS is limited in its ability to increase stamp prices. For “market-dominant” (the government’s amusing euphemism for “monopoly”) products, annual price increases cannot exceed inflation (as measured by the Consumer Price Index for All Urban Consumers). The USPS can, however, request a rate increase above inflation on the basis of extraordinary or exceptional circumstances from its regulator, the Postal Regulatory Commission (PRC). 

The PRC rejected such a request in 2010, but it appears that the USPS will try again. And both the Washington Post and The Hill are reporting that industries forced to use the USPS (greeting card companies, magazines, direct marketers, etc.) are none-too-pleased with the prospect of higher prices. The mailers argue that an excessive price increase to deliver their products will speed up the diversion from physical mail to electronic alternatives (and thus hurt their bottom lines). 

Don’t Wreck Relations with Russia and China over Syria

Most opponents of the Obama administration’s plan to launch missile strikes against Syria have rightly focused on the possible costs in American blood and treasure if the United States becomes entangled in that country’s civil war. There is, however, a more subtle, yet extremely worrisome, cost: the potential damage to America’s relations with other important nations, especially Russia and China.

Russian leaders have been extremely outspoken in opposing military measures against Syrian President Bashar al-Assad, especially if such actions are taken without approval from the UN Security Council, on which Russia possesses a veto power. Russian President Vladimir Putin also has warned that a U.S.-led attack on Syria could further destabilize the Middle East, proving “catastrophic” for that region and beyond. Moscow has now dispatched three naval vessels to the eastern Mediterranean to show support for Assad and warn Washington against rash action.

China has been less vocal than Russia in criticizing U.S. policy toward Syria, but Beijing is also opposed to the course that the Obama administration has adopted. The Chinese government shares Moscow’s anger at Washington’s growing tendency to bypass the UN Security Council on matters of war and peace. That is a source of discontent that has been building for a decade-and-a-half. Western (especially U.S.) policy regarding Kosovo—both the war in 1999 and the decision to bypass the Council and grant that province independence from Serbia in 2008—became a prominent source of irritation. The U.S.–led invasion of Iraq in 2003, again without Security Council approval, added to the list of Sino-Soviet diplomatic grievances against Washington and its allies. Most recently, the West’s cynical misuse of a Council resolution authorizing air strikes in Libya, supposedly to prevent Muammar Gaddafi’s forces from attacking innocent civilians, antagonized both Beijing and Moscow.

The Obama administration’s transformation of the Libya resolution into a vehicle for regime change makes Russian and Chinese officials especially suspicious that the proposed limited missile strikes to punish Assad for the use of chemical weapons will be perverted in the same fashion. And it is clear that Beijing and Moscow are tired of having Washington disregard their views and flout the interests of their countries.

U.S. leaders need to do a far better job of calculating America’s foreign policy priorities. Maintaining good relations with Russia and China outweigh any theoretical gains that might flow even from a well-executed policy regarding Syria. And the prospects of a meaningful U.S. policy “victory” in that country are midpoint between slim and none.

Conversely, we need cooperation from Moscow and Beijing on a host of important issues. Without Russia’s help, there is little chance for serious progress on nuclear issues, either reducing the bloated U.S. and Russian stockpiles of such weapons or discouraging Iran and other countries from barging into the global nuclear weapons club. China’s cooperation is even more important. Not only is China a major purchaser of U.S. government debt, which in an era of chronic budget deficits is no trivial matter, but the country is an increasingly crucial U.S. trading partner and a vital factor in the overall global economy. An angry, recalcitrant China would not be good for America’s or the world’s economic health.

China is also the most important player in efforts to discourage North Korea from engaging in reckless, destabilizing conduct. During the first half of 2013, Beijing appeared to grow weary of Pyongyang’s disruptive, provocative conduct and began to exert pressure on its obnoxious client. That pressure has been at least one factor in North Korea’s more conciliatory behavior in the past few months. But China will have little incentive to continue that course if Washington tramples on Beijing’s interests in Syria and the rest of the Middle East.

Obama administration officials must avoid policy “tunnel vision.” Pursuing a dubious strategy in Syria is bad enough, even taken in isolation. Doing so when it will likely damage U.S. relations with two major powers in the international system is dangerously myopic.

Just Because You’re Paranoid…

In less then a week–on September 11th, as it turns out–Cato is holding a book forum on Jesse Walker’s terrific new book, The United States of Paranoia: A Conspiracy Theory. 

Walker, books editor for Reason magazine, uses historian Richard Hofstadter’s famous 1964 monograph “The Paranoid Style in American Politics” as his jumping-off point. In that “flawed but fascinating essay,” Hofstadter locates political paranoia mostly on the fringes of American politics and mostly on the Right. It’s often used today to frame concerns about government abuse as so much conspiracy-mongering. Here, for example, is Alan Dershowitz invoking Hofstadter to dismiss Glenn Greenwald, who broke the story on NSA’s dragnet data-collection programs, as “the personification of the paranoid streak in American politics.” 

Walker insists, contra Hofstadter, that “the Paranoid Style Is American Politics.” From the colonial era, to the Anti-Masonic party, through sundry Red Scares, militia scares, and post-9/11 panics, Walker writes, “the fear of conspiracies has been a potent force across the political spectrum, at the center as well as the extreme.” What’s more, some of the most dangerous forms of political paranoia are “the kinds that catch on with people inside the halls of power.” This Reason magazine feature on what Walker calls “The Paranoid Center” gives a flavor of his argument. 

But there’s much more in the book, which argues that conspiracy stories can become “a form of folklore.” They tell us “something true about the anxieties and experiences of the people” captivated by them “even when [they] say nothing true about the objects of the theory itself.” As one reviewer put itThe United States of Paranoia contains “so many tasty morsels of historical marginalia that it nearly bursts with weirdness.”

We’re happy to have as our featured commentator Sam Tanenhaus, writer-at-large for the New York Times, longtime editor of the NYT Book Review (2004-13) and author of such books as Whitaker Chambers: A Biography and The Death of Conservatism. Here’s Tanenhaus on Hofstadter. 

You’d have to be nuts not to RSVP right now for what promises to be a fascinating discussion of political paranoia Left, Right, and Center. Do it here

U.S. Government Spending, 1970-2013

Downsizing Government has a new tool allowing readers to chart spending for more than 500 federal agencies with the click of a mouse. It’s pretty cool. Hopefully it will help citizens, reporters, and policymakers understand how the budget has grown to a colossal $3.5 trillion a year.

The data is sourced from the most recent federal budget and converted to 2013 constant dollars. In other words, the effect of inflation has been removed so that today’s spending can be fairly compared to spending in past years.

You can learn a lot about the government by exploring with the charting tool. Here are some things that I noticed:

  • Department of Agriculture. Spending was fairly flat for 25 years, but then soared after 2008 because of food stamp costs (Food and Nutrition Services). Regarding agriculture, subsidies from the Farm Service Agency are down, but subsidies from the Risk Management Agency are way up.
  • Department of Defense. The main components of defense spending (such as procurement) have followed a similar pattern—down in the 1970s, up in the 1980s, down in the 1990s, and up in the 2000s.
  • Department of Education. Spending has gyrated wildly over the past decade partly due to large reestimates of student loan costs (Office of Student Aid). Regarding K-12 schools (Office of Elementary and Secondary Education), subsidies soared under Bush and then under Obama with the 2009 stimulus bill.
  • Department of Energy. Subsidies (Energy Programs) soared under Carter, were cut under Reagan, and then soared again under Obama. The two other largest components of DOE spending are nuclear security and the environmental cleanup of federal nuclear sites.
  • Department of Health and Human Services. Real spending has increased nine-fold since 1970 and now tops $900 billion. Yikes.
  • Department of Homeland Security. If you are concerned about America becoming a police state, look no further than this department. Real spending has tripled over the past decade because of big-government policies such as nationalizing airport security. (The 2006 spike in the chart is post-Katrina FEMA spending).
  • Department of Housing and Urban Development. This department includes perhaps the silliest of all federal spending activities: Community Planning at $11 billion a year. The federal government has enough truly national problems to deal with that it can leave the bicycle paths and parking lots to local governments. The spending chart for Community Planning illustrates a classic case of how Reagan’s budget cuts were reversed by Bush, Clinton, Bush, and then Obama.
  • Department of Justice. Real spending has more than tripled since 1990.
  • Department of Labor. The recent spike in spending stems from unemployment insurance costs being far larger than during prior recessions.
  • Department of State. Real spending has more than tripled since 2000.
  • Department of Transportation. Is government infrastructure being starved? It doesn’t look like it to me.
  • Department of the Treasury. Chart the IRS and you will see that spending has more than quintupled since 1990. This is the huge, hidden welfare budget of refundable tax credits.
  • Department of Veterans Affairs. Spending was roughly flat for three decades until 2000, but has more than doubled since then.
  • Other. Open up the Other category with the “+” button, and you will see hundreds of federal activities you’ve probably never heard of.

The chart tool is here

Data notes are here

It’s Jury Appreciation Day!

Today is Jury Appreciation Day!  

It is a day to reflect upon the importance of our constitutional right to a jury trial and the right of jurors to vote according to their conscience in circumstances where they believe it would be unjust to convict the person on trial–even if it is clear that the person on trial broke a rule in the law books.

Why was September 5 selected to be Jury Rights Day?  Because today was the day of a historic case involving William Penn, the man who founded Pennsylvania.  Let’s remember that many people came to America to escape religious persecution in Europe.  Penn was a Quaker when the Quaker religion was illegal in England.  He was arrested after preaching to a group of Quakers–and that was no misdemeanor.  In 1670, Penn was facing the death penalty for unlawful assembly, disturbing the peace, and riot. 

It was an extraordinary trial.  Penn and his co-defendant, William Mead, were gagged during the trial for making arguments that displeased the court.  When the jury came back from deliberations and announced that they were divided–some for conviction, some for acquital, the judges ridiculed those who voted to acquit and sent them back.  When the jury remained deadlocked, the court ordered them to prison with no food till they could reach a unanimous verdict.  After two days without food, the jury returned with a “not guilty” verdict.  Outraged, the court fined the jurors and ordered their imprisonment until the fines were paid.  A higher court overturned that punishment and said a jury must resolve cases based upon their own understanding, not because of threats of punishment from the state.

Although the right to a jury trial is guaranteed by the American Constitution, it has been under a relentless attack over the years.  Most Americans are unaware that 95 percent of the cases in our criminal justice system never go to trial.  And, in the few cases that do go to trial, jurors are typically misled about their prerogative to acquit (“jury nullification”).  In November, Cato will be re-releasing an e-book, Jury Nullification: The Evolution of a Doctrine, by Clay Conrad.  Glenn Reynolds reviewed the initial publication here.

Let me take this opportunity to report on several positive developments that will help to revive the doctrine of jury nullification in American law.

First, New Hampshire enacted a law last year that is designed to revive jury nullification in that state.  More background on that here.

Second, last April, a federal district judge filed an important, 80-page scholarly ruling that acknowledges that the more modern precedents surrounding jury trial “are inconsistent with trial practices at the Founders’ time, and that these practices have eroded the Sixth Amendment jury trial right as the Framers understood that right.”  Here’s another excerpt:

The Constitution was not designed, however, to be neat and efficient, but to protect individual liberty against government despotism. That the jurors’ lack of knowledge stems at least in part from the judicial exertion of power, and that the jury’s nullification power played an important role in criminal jury trials at the Founders’ time, counsels in favor of finding this evolution unconstitutional…. Because the common-law jury at the Founders’ time was in control of the judiciary by virtue of rendering the ultimate decision in its ve rdict, and because the court at the time of the Founders told the jury that the jury was the master of the law and of the facts, the Supreme Court and the Tenth Circuit’s precedent that the trial court should not instruct the jury about nullification seems inconsistent with the Framers’ intention in adopting the Sixth Amendment jury trial right. Moreover, the requirement that the court not allow the lawyers to encourage nullification is inconsistent with the practice at the time of the Framers, as exhibited by Hamilton’s conduct in People v. Croswell. While it is messy to openly talk to the jury about jury nullification in the modern American judicial system, the Constitution, thank goodness, is not always about efficiently convicting defendants.

As a good district judge, he refrained from simply ruling the way he thought best, explaining that, as a judge, he “must adhere to the established precedent until the Supreme Court explicity reconsiders it.”

Third, do check out & spread the word about the new jury nullification video project in the works by our friends at Flex Your Rights.

Lastly, our friends at Reason have a new video up on a recent jury nullification case here.

Building Housing That Some People Can’t Afford Isn’t Racist

“Disparate impact” theory holds someone liable for discrimination for a race-neutral policy that statistically disadvantages a specific racial group — say, blacks score lower on a firefighter-promotion test than whites — even if that negative “impact” was neither foreseen nor intended. The application of this theory has been fraught with controversy, to say the least, but it comes up again and again, in contexts ranging from employment to education to voting.

While disparate impact claims have sometimes been sustained under the federal Fair Housing Act (which makes it unlawful to deny housing on the basis of race) since the 1970s, the Supreme Court has only recently agreed to decide whether these claims are lawful. Two years ago, the Court was about to hear such a case, Magner v. Gallagher, when the Justice Department, led by now-Labor Secretary Tom Perez, pressured the city of St. Paul, Minnesota to settle it. The same sort of political pressure is now being brought to bear on Mount Holly Township, New Jersey; supporters of disparate impact theory simply don’t think that it can survive legal scrutiny.

The current case involves a redevelopment plan for a blighted Mount Holly neighborhood (“the Gardens”) that would transform the neighborhood into mid-range single-family dwellings. (Thus far, the township has acquired 259 of 329 properties through various financial incentives, without yet resorting to eminent domain.) The Gardens’ residents sued, arguing that the redevelopment plan violated the FHA because a majority of them would not be able to afford the new homes.

The district court dismissed this argument, holding that the redevelopment plan affected Gardens residents equally, without regard to race, and was tied only to economic considerations. The court of appeals reversed that ruling, holding that the residents’ association had set out a case of discrimination under the theory of disparate impact because a majority of the affected residents were non-white.

Cato has now joined the Pacific Legal Foundation and four other public-interest organizations on an amicus brief arguing not only that disparate impact claims are impermissible under the text of the FHA, but that such claims force unconstitutional actions when applied to governments. Before putting race-neutral policies into effect, government agencies would have to determine whether a particular racial group would be disproportionately impacted and take steps to remedy that difference. By mandating an equality of ends — as opposed to an equality of opportunity — disparate impact liability encourages the adoption of discriminatory quota systems.