October 12, 2017 2:29PM

Licensing the Press: A Bad Idea Whose Time Has Come Again?

Yesterday, the President tweeted:

He then followed up with this:

It is true that the U.S. Supreme Court has long upheld the awarding or withholding of broadcasting licenses by the Federal Communications Commission (FCC). In 1968, Richard Nixon thought the networks were hostile to his bid for the presidency. After his narrow victory, the Nixon administration contrived a plan to indirectly sanction the speech of the networks, as I noted in my Cato Policy Analysis on the Fairness Doctrine:

In December, after the [1968] election, Clay T. Whitehead, the head of the White House Office of Telecommunications Policy, delivered a speech in Indianapolis proposing changes in the Communications Act of 1934. When their licenses were up for renewal, local stations would be required to demonstrate that they were “substantially attuned to the needs and interests of the community” and had offered a reasonable opportunity for the “presentation of conflicting views on controversial issues.” Local station managers and network officials would be held responsible for “all programming, including the programs that come from the network.” Those who did not correct imbalances or bias in network political coverage would be “held fully accountable at license renewal time.” The policy would have bite. If a station could not demonstrate meaningful service to all elements of its community, the license should be taken away by the FCC. Along with that threat came two offers: the license period for stations would be extended, and challenges to license renewal would become harder to sustain.

The Nixon administration argued that the government should make the network news monopoly offer various viewpoints. They invoked that now defunct Fairness Doctrine, which required a balance of views on public issues from broadcast license‐​holders. The media struck back:

A Washington Post editorial captures the spirit of the harsh response that met Whitehead’s speech: “the administration is endangering not simply the independence of network news organizations, but the fundamental liberties of the citizens of this country as well.”…Robert G. Fichtenberg, chairman of the freedom of information committee of the American Society of Newspaper Editors, called the proposed licensing standards “one of the most ominous attacks yet on the people’s right to a free flow of information and views.”

The Nixon administration began to back off. In March 1973, they introduced legislation that would extend the term of a broadcasting license from three to five years. The other proposals mentioned at the start of Nixon’s first term “were not included in the proposed legislation nor were they mentioned again by the administration.”

More recently, in 2004, seventeen U.S. Senators bullied the Sinclair Broadcasting Group out of showing a documentary harshly critical of presidential candidate John Kerry. In this case, the media lost: Sinclair backed down for fear of its affiliates losing their licenses. The Kerry documentary went unseen.

President Trump’s tweets promise unconstitutional attacks on freedom of speech and of the press. Not for the first time, the tweets show illiberal passions dominating a man whose job demands rationality, discipline, and a respect for fundamental law. Absent those, President Trump might consider Richard Nixon’s failure to bring the press to heel. Perhaps prudence might serve as a substitute for absent virtues. 

October 11, 2017 1:39PM

Impeachment for “Impulsive, Ignorant Incompetence”?

In Sunday’s episode of “Reality-Show Presidency,” we found out what happens when the president and the chairman of the Senate Foreign Relations Committee “stop being polite… and start getting real.” After President Trump blasted him in a series of tweets early Sunday, Sen. Bob Corker (R-TN) shot back:

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Senator Corker is hardly the only highly placed Republican to express grave doubts about Trump’s stability and competence. Daniel Drezner has assembled a list—now at 115 items and counting—of news stories in which the president’s own aides or political allies talk about him as if he’s a “toddler.”  But since Corker’s not running for reelection, he felt free to go on the record: Trump “concerns me,” Corker said in an interview later that day, “he would have to concern anyone who cares about our nation.” His recklessness and lack of emotional discipline could, Corker said, put us “on the path to World War III.”

In Corker’s account, it’s an open secret that our 45th president is a walking constitutional crisis. Is there a constitutional remedy?

The conventional wisdom says no: we have impeachment if the president turns out to be a crook, and the 25th Amendment if he falls into a coma—but for anything in between “felon” and “vegetable,” tough luck. When he introduced his article of impeachment against President Trump this summer, Rep. Brad Sherman (D-CA) explained that he’d focused on obstruction of justice because, sadly, “the Constitution does not provide for the removal of a President for impulsive, ignorant incompetence.”  

But when it comes to “the most powerful office in the world,” impulsive, ignorant incompetence can be as damaging as willful criminality. Did the Framers really leave us defenseless against it?

Actually, no: impeachment’s structure, purpose, and history suggest a remedy broad enough to protect the body politic from federal officers whose lack of stability and competence might cause serious harm. Contrary to the conventional wisdom, there’s no constitutional barrier to impeaching a president whose public conduct makes reasonable people worry about his access to nuclear weapons.

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October 11, 2017 10:28AM

The Hydra‐​Headed Drug Business

divWith television cameras rolling and Attorney General Jeff Sessions on hand in San Diego, the Coast Guard announced late last month that it had set a new record for cocaine seizures at sea—more than 455,000 pounds through September 11, topping last year’s record.  

At last we've turned the corner in the war on drugs. Right? 

Don’t bet on it. When Americans read about ever-larger drug busts, or when we watch television shows about drug enforcement, we get the impres­sion that drug enforcement agents are clever and innovative, always staying one step ahead of the sinister pushers. But in reality the drug distributors are the innovative ones—because they have a financial incentive to be. 

That’s why we keep reading the same story. 

In 2015 the Coast Guard announced the largest submarine drug bust ever, $181 million worth of cocaine. 

In 2001 a Coast Guard crew seized more than 13 tons of cocaine in what authorities called “the largest cocaine seizure in U.S. maritime history.” 

Back in 1998 Attorney General Janet Reno and Treasury Secretary Robert E. Rubin announced more than 100 indictments and the seizure of some $150 million from Mexican banks, representing a successful conclusion to "the largest, most comprehensive drug money launde­ring case in history."

Indeed, it seems that not a week goes by without a report of  “one of the biggest drug busts in Utah's history,” “Brooklyn's biggest drug bust in history,” “one of the biggest drug busts in New York City history,” "the largest drug bust ever in the United States outside of Florida," or—drum roll, please—"the largest drug bust in history." Visit CBSNews.com for pictures of “17 massive drug busts.”

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October 10, 2017 3:22PM

Some Promising Anti‐​SLAPP Legislation

Ohio Sen. Matt Huffman ® has introduced anti‐​SLAPP legislation, titled the Ohio Citizen Participation Act, which includes novel protections of anonymous internet speech. If approved by the legislature, it will stand as a new gold standard for anti‐​SLAPP laws.

SLAPP suits, or Strategic Lawsuits Against Public Participation, refer to a category of vexatious libel or defamation lawsuits intended to chill unwanted speech by subjecting speakers to arduous and costly legal battles. In most cases, plaintiffs have little chance of succeeding on the merits of their claims, and instead hope to force a settlement or deter future criticism by using the legal process as a punishment in and of itself. In response to the censorious threat posed by these suits, twenty eight states, the District of Columbia, and Guam, have passed anti‐​SLAPP legislation.

Anti‐​SLAPP laws provide defendants with an expedited dismissal process, allowing them to forestall the often expensive and lengthy discovery process, and introduce extrinsic evidence demonstrating that the speech in question falls under the aegis of the anti‐​SLAPP statute. While not all statements protected by the First Amendment are shielded by anti‐​SLAPP laws, most are, and the protections guaranteed by the Citizen Participation Act are particularly expansive. After the introduction of the defendant’s evidence, the burden shifts to the accuser, who must provide admissible evidence that the defendants speech is unprotected, and his suit is likely to prevail. If the plaintiff succeeds, the suit continues as usual, if not, it is dismissed, and attorney’s fees are awarded to the defendant. In the absence of this expedited process, the authors of constitutionally protected statements routinely face years‐​long legal battles and attendant financial ruin before receiving merely pyric vindication. 

The establishment of these protections alone would be a great boon to the residents of Ohio, however, the Citizens Participation Act goes further in its protection of their liberties. Unlike other anti‐​SLAPP bills, it protects the privacy of anonymous and pseudonymous speakers by requiring ISPs to notify their customers of any unmasking requests, and allowing speakers to contest attempts to piece their veil of anonymity. Furthermore, when anonymous internet speakers are sued for alleged defamation or libel, they may take advantage of the expedited dismissal process without revealing their identities.

These provisions allow those in vulnerable or sensitive positions to fully exercise their First Amendment rights without fear of censure or reprisal. While anonymous speech has long played an important role in the American public discourse, the internet has simultaneously strengthened and weakened the ability of citizens to speak anonymously. It has all but eliminated the financial barriers to anonymous speech, however, internet communication relies on a group of private intermediaries who have little incentive to weather lawsuits to protect the anonymity of their users. The Ohio Citizen Participation Act ably remedies this situation by providing statutory basis for the contestation of unmasking requests, shielding both the speech and the anonymity of 21st century Silence Dogoods.

October 10, 2017 1:29PM

Tax Reform Goals

The Trump administration and congressional Republicans are refining their tax reform plan and ramping up their marketing efforts. It is a good plan so far, but comments by some GOP leaders suggest that reforms may veer off‐​course as more details emerge.

To keep policymakers focused on true reform, the table below summarizes five tax reform goals and the policy changes needed to achieve each.

Tax reform is sometimes portrayed as a balancing act with various goals in conflict. But the table indicates the opposite. By adopting a lower, flatter rate structure and a more neutral tax base, policymakers would further multiple objectives at once: growth, simplification, fairness, and the strengthening of support for limited government.

Tax Reform Goals

Goal  Policy Change Comments
1) Economic Growth Low flat rate. 

Neutral Base.
Lower, flatter tax‐​rate structures cause much less damage because distortions rise with the square of marginal tax rates. Also, higher earners respond more strongly in their working, investing, and avoidance activities than do lower earners. Eliminating deductions, credits, and other breaks would create a more neutral tax base that allowed resources to flow to the highest‐​valued uses. Reforms should also reduce the income‐​tax bias against saving and investment.
2) Simplification Low flat rate. 

Neutral Base. 
A simpler rate structure and more uniform base without narrow breaks would reduce costs of tax administration, compliance, and enforcement, and it would make economic decisionmaking easier.
3) Fairness Low Flat Rate. 

Neutral Base. 
People differ on their views about fairness, but one approach would be for everyone to pay tax at the same rate above a large exemption amount. Fairness also means that the government does not micromanage society with deductions and credits that favor some people over others.
4) Limited Government Low Flat Rate. 

Neutral Base Visibility. 
Taxes that are simple, visible, and spread equally best convey the large cost of government to voters. H. L. Mencken said, “Democracy is the theory that the common people know what they want, and deserve to get it good and hard.” Pressure groups are always demanding higher government spending, but that needs to be countered by taxes that common people feel good and hard.
5) Starve the Beast Slash Revenues.  Slashing revenues is a dubious way to shrink the government because deficits have not induced policymakers to cut spending. That said, tax reforms should aim for a revenue loss in official scoring to grease the skids for passage and to compensate for scoring methods that undervalue the dynamic benefits of reform.

For more on …

Principles of tax reform, here.

Advantages of consumption‐​based taxes, here.

Reforms to boost saving, here.

Reforming the corporate tax, here.

International tax competition, here.

October 9, 2017 2:07PM

Travel Ban Is Based on Executive Whim, Not Objective Criteria

President Trump’s travel ban proclamation states that the Department of Homeland Security (DHS) developed a global baseline for visa vetting that all governments must meet before their nationals can travel to the United States. The proclamation states that the president then applied DHS’s baseline to all countries and then restricted travel to all those that failed them. This explanation is untrue.

DHS created nine baseline criteria grouped into three categories (see the Appendix for a detailed explanation of each one). Here they are:

  • Category 1: Identity management: 1) Use of electronic passports embedded with data; 2) Reports lost and stolen passports; 3) Makes available upon request identity‐​related information.
  • Category 2: National security information: 4) Makes available terrorist and criminal information upon request; 5) Provides identity document exemplars; 6) Allows U.S. government’s receipt of information about passengers and crew traveling to the U.S.
  • Category 3: Risk indicators: 7) Is a known or potential terrorist safe haven; 8) Is a participant in the Visa Waiver Program that meets all of its requirements; and 9) Regularly fails to receive its nationals subject to final orders of removal from the U.S.

The proclamation states that the president then applied the DHS baseline to every country and banned all those — and only those — that fail its criteria. This never happened.

Despite statements to the contrary, the proclamation admits that the president did not ban all countries that failed the requirements and did ban others that met them. It applies higher‐​than‐​the‐​baseline criteria to the countries on the list, but never applies those more stringent criteria to other countries that remained off the list. The president’s proclamation also applies mitigating factors to avoid banning every failing country but then didn’t apply those new mitigating factors to the other banned countries. Even when applying all of these additional criteria, no set of failed or met factors can explain the proclamation’s choices of which countries to ban. The travel ban simply lacks an objective grounding.

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October 9, 2017 12:48PM

Seven of the Many Problems with Trump’s Immigration Principles

The White House released a list of immigration priorities for Congress yesterday. These ideas would render a broken immigration system even more dysfunctional, and the president’s team justifies these expensive and unnecessary proposals with distortions and falsehoods. President Trump may never have reviewed them, so we should not necessarily view these ideas as set in stone, but they do demonstrate how far certain members of the administration are willing to go to undermine the growing bipartisan consensus on allowing young undocumented immigrants to stay.

Here are some problems with the priorities:

1) Not a single pro-immigrant plank: When the White House first announced that it would put together this list, it explicitly tied it to a deal with the Democrats on DACA. Yet these new principles fail to mention anything about DACA or the Dreamers, despite President Trump’s public endorsement of legalization for them and his personal efforts to obtain a deal on the issue. Legislative DACA—which is the only humane outcome for people who are Americans in every sense that matters—would increase tax revenue, grow the economy, and lower enforcement costs. Beyond DACA, the proposals also will not fix any of the infuriating and irrational aspects of America’s legal immigration system. Indeed, it will make them all worse.

2) An expensive ugly border wall: President Trump’s top priority is the “construction of a wall along the southern border of the United States.” This gigantic expenditure of taxpayer dollars will do little, if anything, to secure the already secure border. More importantly, while the proposal will not make Mexico pay for it, it would make legal immigrants pay for it through taxes on immigration applications. Beyond being exceptionally unfair, these new taxes—which the proposal erroneously calls “processing fees”—will make legal immigration and tourism more expensive, reducing foreign investments, expenditures, and work in the United States, all of which would harm the U.S. economy.

3) Criminalizing nonviolent civil offenses: The priorities would create a new misdemeanor offense for overstaying a visa. Immigration fraud is already a crime. This would criminalize the technical violation, regardless of the reason. It would also create new criminal penalties for filing “baseless” asylum applications and increase penalties for those who recross the border after a deportation.

Bills containing these ideas are already moving through Congress. They would gut much of the progress America has made on criminal justice reform over the last decade, finally decreasing the federal and state prison populations for the first time in decades. Immigration offenses already make up half of all federal criminal arrests. At any particular time, the federal government has 23,000 immigrants incarcerated for immigration offenses. The priorities would also allow state and local governments to pass their own enforcement laws, which—if they included criminal penalties under state law—would vastly expand America’s capacity to pointlessly lock up immigrants for these offenses. This idea could be what the drug war once was to America’s over-incarceration problem.

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