Tag: Heritage Foundation

‘Counterfeit Comfort’

Steve Chapman on sex offender registries:

Most convicted sex offenders do not go on to be arrested for new sex offenses, and more than 90 percent of child victims are assaulted not by strangers but by relatives or other people they know.

Sex offender registries may cause parents to focus on the remote peril while ignoring the more pertinent one. And, as in the examples cited earlier, they can inflict harsh punishment that departs from common sense and does nothing for public safety.

Shielding citizens from vicious predators is unquestionably one of the central functions of any sound government. Megan’s Laws were enacted in the sensible pursuit of that goal. What they offer in practice, though, is counterfeit comfort.

Read the whole thing.  Lenore Skenazy has more thoughts about this here.

The Heritage Foundation is not only making the case for registries, but is making the case for federal intervention in this area.   Wrong.  Like education, crime-fighting is a subject the feds should stay out of.  See the Tenth Amendment (pdf).

No, Paul Ryan Really Doesn’t Cut Pentagon Spending

Last week I expressed my disappointment with Paul Ryan’s budget plan, specifically about his unwillingness to cut military spending. Some people think that he does cut spending through his acceptance of Secretary Gates’s $78 in “cuts.” (see, for example, Sen. John Sununu; Sen. Joseph Lieberman, AEI’s Gary Schmitt and Tom Donnelly; and the Heritage Foundation’s Baker Spring).

So either I am wrong, or they are. Let me try to set the record straight.

First, all of Ryan’s other savings – savings which I support – were projected either against the Obama administration’s FY 2012 budget or against the current budget baseline. For example, according to Ryan’s own “Key Facts” his plan “Cuts $6.2 trillion in government spending over the next decade compared to the President’s budget, and $5.8 trillion relative to the current-policy baseline.” With respect to military spending, however, Ryan’s plan basically follows the Obama/Gates budget, proposing to spend a staggering $670.9 billion in FY 2012. The Obama administration’s DoD budget request for FY 2012 – including the Pentagon’s base budget plus overseas contingency operations (OCO) – totals $670.9 billion as well.  Of course, that total leaves out national defense spending tucked away in other departments (including nuclear weapons spending in the Department of Energy). Total national defense spending in FY 2012 will top $700 billion. I stand by my earlier assertion that the Pentagon’s budget escapes from Ryan’s budget axe “essentially unscathed.”

Ryan and others claim that military spending has already been cut, hence the decision to embrace this portion of the president’s budget. Sen. Lieberman explained to Bloomberg news, “To a certain extent, Secretary Gates has enabled us at least temporarily to take defense off the table because he has initiated his own round of defense cuts.”

“To a certain extent” is doing a lot of work in that statement. In fact, Gates and Obama do not cut military spending.

First, they don’t claim to do so. These supposed cuts are only “cuts” in Washington-speak. The Pentagon’s base budget under both the Ryan and Obama plans will increase 1 percent in real, inflation-adjusted terms. See the table below, recreated by my colleague Charles Zakaib from the official DoD budget request.

Second, Ryan claims that Gates’s “exhaustive review of the Pentagon’s budget” identified $178 billion in savings. It does nothing of the sort. By Ryan’s own admission, taxpayers will see only $78 billion of these; the other $100 billion are to be “reinvested” elsewhere in the Pentagon. (They’re always “investments” when you’re spending the taxpayers’ money, even when Republicans do it.)

So we’re really talking about $78 billion toward deficit reduction over the next five years, or approximately 2.6 percent of the Pentagon’s base budget (excluding the wars) over that same period. With all due respect, that isn’t a bold plan for reducing the crushing burden of spending and debt; that’s a rounding error.

What’s more, it is highly unlikely that these savings will materialize. Many of these efficiencies involve consolidation of commands – something that Congress has already balked at – and unspecified savings that are relatively easy to identify, but extremely difficult to implement.

But if, by some miracle, Robert Gates’s successor(s) manage to get them passed by Congress, those savings won’t actually be dedicated to deficit reduction: they will be completely devoured by spending on the wars. This is the greatest sham of all. Charles Knight at the Project on Defense Alternatives (and a key contributor to the Sustainable Defense Task Force, of which I was also a member) explains:

For several years now White House budget projections have included a “placeholder for outyear overseas contingency operations” most of which are accounted for by the wars in Iraq and Afghanistan. This placeholder number has been and remains $50 billion. Every year actual OCO (overseas contingency operations) spending turns out to be several times that number. FY11′s OCO is $159 billion and FY12′s is $118 billion.

Adjusting for the effect of the new OCO for FY12, the $68 billion budgeted above the placeholder of $50 billion eats up most of the $78 billion in Pentagon cuts that Secretary Gates offered up in January to fiscal responsibility….The remaining $8 billion (and much more) will go to the war budgets when reality collides with placeholder projections.

On 14 February Pentagon Comptroller Hale confirmed that the $50 billion placeholders for FY13 and beyond was the “best we can do.” Others make an attempt to be more realistic. The high tech industry association called Tech America annually projects DoD budgets for ten years out. In their 2010 projection they estimate that OCO spending will be $102 billion in FY13, $69 billion in FY14 and $57 billion in FY15. When we subtract the $50 billion placeholder for each of those years and total the remainder we find that the Pentagon is likely to spend $78 billion more in the years FY13 through FY15 than in the White House budget projections.

I hope that I’m proved wrong. I hope that the wars in Iraq and Afghanistan are brought to a close. I hope that the Congress gets serious about tackling Pentagon waste, and stops treating the military budget as an elaborate jobs program. I hope that our brave men and women in uniform get the hardware, equipment, and training that they need, and that Americans get the “defense budget” that they deserve. But if past history is any guide, the Pentagon’s budget will continue to climb, other countries around the world will continue to free ride on Uncle Sam’s largesse, and U.S. taxpayers will be left to foot the bill.

The Heritage Foundation on the Patriot Act

If you wonder why House Republicans were so keen on ramming through an extension of the Patriot Act without hearings or debate, take a gander at the Heritage Foundation’s blog post and Web memo on the topic. I want to run through the latter in some detail, because I think it’s telling just how poorly the case against reform stands up to scrutiny in the rare instances when the law’s defenders feel obliged to make an argument more sustained than “Boo! Terrorists!” 

Here’s how they begin:

With at least 36 known plots foiled since 9/11, the United States continues to face a serious threat of terrorism. As such, national security investigators continue to need these authorities to track down terror leads and dismantle plots before the public is in any danger. These three amendments—which have been extensively modified over the years by Congress and now include significant new safeguards, including substantial court oversight—are vital to this success.

I’ve debated co-author Jena McNeil Baker on Patriot a few times, and she invariably leads off with a running tally of foiled terror plots. I’m not sure exactly which cases make her current list, but in the past she’s cited yahoos like the Lackawanna Six, who don’t appear to have had any actual plot to dismantle, and since our last exchange the FBI has augmented the count via its innovative strategy of planning terror attacks for itself to foil.

But let’s all agree the terror threat is real and serious even without this sort of inflation. What evidence do the authors have that any of the three expiring authorities were “vital” in any of those cases? There just isn’t any. Even if it were true, the authors would have no basis in the public record for the assertion. The evidence we do have, however, suggests just the opposite. Lone Wolf has never been used, so it certainly wasn’t vital. FISA roving authority has been granted an average of 22 times per year since Patriot, and in many of those cases, investigators found they didn’t end up needing to use it. And none of the reports I can recall reading on apprehended wannabe-terrorists suggested that they were practicing sophisticated countersurveillance tactics. The Office of the Inspector General couldn’t find any major case developments attributable to 215 business record orders, which also don’t seem to be used that frequently.

If one of the sunsetting powers had played an important role in disrupting a concrete plot or attack, though, you’d think Justice Department officials would have every incentive to say so loudly and unambiguously, even if they couldn’t get into operational specifics. While these facts are suggestive, of course, I can’t say with certainty that the two powers that have actually been used definitely didn’t play a vital role in any of those (let’s be generous) 36 cases. It would be more convenient if I could say so, but I’m at something of a disadvantage here: In the absence of evidence, I lack the panache needed to make whatever sweeping assertions would help my position. I can only say that all the evidence we do have cuts against that bold claim.

We move to roving wiretaps, which we’re told are a “garden variety” surveillance tool used “routinely” in criminal investigations. The authors seem to be operating with highly idiosyncratic definitions of those terms: In 2009, there were 2,376 wiretap warrants issued for criminal investigations, of which 16 were roving. But routine or not, pretty much everyone in fact agrees that roving authority should be available for intelligence investigations. Astonishingly, the Heritage memo never even mentions the actual issue civil libertarians have with this provision: that unlike the parallel criminal authority, it permits roving warrants that don’t name an individual target. So the authors spend five paragraphs mounting an irrelevant defense of a power nobody contests in principle, but never informs their readers about the real point of controversy, let alone argue for the asymmetry.

Next, business record orders. The blog post summarizing the Web memo confusingly claims that there was no FISA authority to compel the production of records before Patriot, which isn’t true. There just had to be some factual basis (not even “probable cause”) for thinking the records belonged to a terrorist or foreign agent. Oddly, while the Heritage memo does reference Patriot’s expansion of the types of records that could be obtained, it fails to mention the elimination of this key requirement—which, again, is precisely the change to which critics have objected. We’re also told that heightened standards apply to demands for records that “might have the slightest relation to freedom of speech and expression,” which is ridiculous. Library and bookstore records get a bit more protection because librarians raised an admirable fuss about this provision, but there’s no similar protection for records of people’s online reading habits, which have at least as much bearing on modern speech and expression as someone’s library borrowing. There’s the usual analogy between this authority and prosecutorial or grand jury subpoenas, but (perhaps you’re noticing a pattern here) the big, glaring difference between them is not even mentioned: Those processes are ultimately public, and that publicity serves as the strongest practical check on prosecutors who might be tempted to sweep too broadly, while giving third-party record holders a far stronger incentive to challenge improper requests on behalf of their customers.

By the time we get to Lone Wolf, it feels like they’re not even trying anymore:

While the FBI has confirmed that this section has never actually been used, it needs to be available if the situation arises where a lone individual may seek to do harm to the United States.

Why can’t they use the same criminal authority they’re forced to rely on when a lone individual who’s a citizen seeks to do harm to the United States? Why are the extraordinary breadth and secrecy of FISA surveillance, designed for dealing with state-sponsored espionage agencies and global terror networks, necessary when the adversary is some guy acting alone? Crickets.

Finally, we get these two howlers in the conclusion:

Little evidence has ever been proffered to demonstrate any PATRIOT Act misuse…. The act has been narrowed and refined continuously, contributing to the fact that no single provision of the PATRIOT Act has ever been found unconstitutional.

Now, as it happens, both of those claims are pretty clearly false. Federal courts have, in fact, found the gag provisions of the National Security Letter statutes to be unconstitutional—though the court opted to impose its own set of requirements rather than voiding the statutes outright. As for misuse, I’ll defer to the Inspector General of the Department of Justice, who characterized the FBI misuse of that authority uncovered by his office as “widespread and serious.”

But these are, in any event, absurd standards. Covert surveillance whose targets are never informed about it turns out to be rather difficult to challenge in court—harder still when the government can assert a state secrecy privilege that prevents courts from reaching the merits of the challenges that do arise. The identification of rule violations mostly relies on self-policing by intelligence agencies—which report plenty, though they often take their sweet time about it. More importantly, if the intended use of these authorities is to allow the government to siphon up vast amounts of information about thousands of mostly innocent Americans, and retain that information forever in massive classified databases, focus on “misuse” is something of a red herring. The “correct” use is too intrusive.

So this is what the best case for Patriot reauthorization without reform looks like, apparently: bold assertions offered without supporting evidence, and a persistent refusal to engage the actual objections raised by critics. No wonder they’re so anxious to bypass a debate.

Trade Adjustment Assistance Set to Expire?

James Sherk of the Heritage Foundation has an excellent report out today on Trade Adjustment Assistance, and why Congress should allow the program to expire. Without action, it is set to do so on February 12 [$].

Trade Adjustment Assistance is a collection of programs that have been with us since the mid-1970s. The programs provide taxpayer-funded benefits to workers (and firms, and farmers, and entire “communities”) who are harmed – e.g., by losing their job – from import competition. The main program is the Trade Adjustment Assistance for Workers program, administered by the Department of Labor and the subject of a paper I wrote in 2007

It pains me to say that my 2007 call for its abolishment was instead followed in 2009 by an expansion of the program as part of the ‘stimulus’ package. Some of the extra goodies included allowing government workers access to the benefits, extending TAA to service workers (previously the program was applicable only to manufacturing workers) and weakening the link between trade and job losses (i.e., by removing the requirement that the job loss had to be linked to increased imports following a trade liberalization agreement).

Sherk gives a thorough critique of the program in his report, which I encourage you to read in full, but to my mind the important factors are:

First, very few unemployed people are in their unfortunate predicament because of import competition (you heard it here first, folks!). Why should we discriminate between workers based on the cause of their unemployment?

Second, it costs a bundle, an estimated $2.4 billion in 2011 according to the Department of Labor. Research, including the government’s own studies, has shown the program is poor value for money, even by government standards.

Third, and this is where I put on my free trader hat, TAA was originally sold as a way to get those who are harmed from import competition – or, to put it more accurately, those who have become accustomed to artificially created demand for their services by government intervention and taxing consumers – to go along with trade liberalization. But as recent events have shown, that “deal with the mob” has well and truly broken down. Even though TAA was expanded almost two years ago, Democrats are only now making tentative noises about passing the trade agreement with Colombia (nothing on Panama), and the administration agreed to promote the agreement with South Korea only after renegotiation and “improvement.”

TAA – along with much of current Federal activity – belongs at the state level, where local people can decide which benefits unemployed workers (of all stripes) should receive given state resources and priorities, and how best to deliver them.

Obamacare and the Drug War

I wrote an op-ed for National Review (Online) last week showing how conservative exploitation of the Supreme Court’s broad misreading of the Commerce Clause to reach intrastate medical marijuana facilitated liberal exploitation of the same to create the individual mandate in Obamacare.

A principled stand on the limits of federal power does not begin and end with health care. The Commerce Clause is a double-edged sword: Conservatives cannot wield it in the drug war without making it a useful tool for advancing progressive visions of federal power.

I’m happy to see Barton Hinkle, winner of the 2008 Bastiat Prize for Journalism, pick up on my writing and drive the point home in today’s Richmond Times-Dispatch:

So far, many conservatives outraged over Obamacare do not seem to have reconsidered their enthusiasm for national drug prohibition. Whether they do so could provide a good indication as to whether they’re standing up for a principle — or merely against the president.

Hinkle points to a recent Heritage Foundation paper opposing Prop. 19, California’s referendum on marijuana legalization. The Commerce Clause makes a prominent appearance:

In 2006, the Supreme Court held in Gonzales vs. Raich that the Commerce Clause confers on Congress the authority to ban the use of marijuana, even when a state approves it for “medical purposes” and it is produced in small quantities for personal consumption. Many legal scholars criticize the Court’s extremely broad reading of the Commerce Clause as inconsistent with its original meaning, but the Court’s decision nonetheless stands.

Yes, the decision “nonetheless stands.” That doesn’t make it right. Several prominent conservative drug warriors signed on to an amicus brief in Raich endorsing an expansive use of the Commerce Clause. Copy, paste, and replace the word “marijuana” with “health insurance,” and you just wrote a Department of Justice brief for any of the suits defending Obamacare across the nation.

Or, for a good laugh, go read former Oklahoma congressman Ernest Istook, now working for Heritage, who frames the health care debate as “Obamacare vs. Limited Government.” As he puts it: “Straining to find a constitutional basis for mandating that everyone must buy health insurance, Obama’s lawyers resorted to the all-purpose Interstate Commerce Clause.” Istook signed on to the drug warrior brief in Raich.

There’s no good reason for this inconsistency. State attorneys general from both sides of the aisle opposed the federal intrusion in Raich. Deep red Alabama, Mississippi, and Louisiana touted their drug warrior prowess but argued against an overly broad Commerce Clause reading on federalism grounds. True blue California, Maryland, and Washington argued that the Controlled Substances Act did not bar states from regulating intrastate markets.

I make many of these points in a Cato Podcast, Conservatives, Obamacare, and the Commerce Clause. For some more Cato work on the drug war, check out how Portugal decriminalized drugs without the social ills that conservatives forecast, and how ending the war on drugs would save billions annually.

What Spending Should the GOP Cut?

Congratulations to the wave of Republicans who successfully ran on promises to tackle rising government debt and cut the hugely bloated federal budget. On the campaign trail, most candidates were not very specific about how they would cut the budget, but when they come to Washington they will be looking for good reform targets.

Newcomers to Congress can find a wealth of budget-cutting ideas in recent plans by various D.C. think tanks:

Cato’s website, www.downsizinggovernment.org, also provides a treasure trove of spending cuts, and I will be publishing a detailed budget-reform plan in coming days. 

Some of the above budget plans include tax increases, but voters gave a resounding message yesterday that they want Congress to focus on cutting spending, not raising taxes.

Out of the starting gate next year, fiscal reformers in Congress should push for an across-the-board cut to discretionary spending for the rest of the current fiscal year. One approach would be for House leaders to propose a continuing resolution that extends spending at last year’s levels, less some substantial percentage cut applied to every program.

For the upcoming fiscal year of 2012, reformers need to carefully target some major program cuts and eliminations. The president and the Democrats in the Senate will likely resist proposed cuts, but the point is to further the national debate that has begun about the proper size and scope of the federal government.

Some initial targets for GOP reformers, with rough annual savings, could include: community development subsidies ($15 billion), public housing subsidies ($9 billion), urban transit subsidies ($9 billion), and foreign development aid ($18 billion). On the entitlement side, initial cuts could include raising the retirement age for Social Security and introducing progressive price indexing to reduce the growth rate of future benefits.

We will not get federal spending under control unless we begin a national discussion about specific cuts. And we won’t get that discussion unless enough members of Congress start pushing for specific cuts. Ronald Reagan was able to make substantial cuts to state grants in the early 1980s because policymakers had discussed such reforms throughout the 1970s. Republicans in the mid-1990s were able to reform welfare because of the extended debate on the issue that preceded it.

The electorate wants spending cuts, and they will support the policymakers who take the lead on cuts if they are pursued in a forthright and serious-minded manner.

Heritage and Prop. 19

Over at the Huffington Post,  I scrutinize a recent Legal Memorandum published by the Heritage Foundation on the Prop. 19 ballot initiative.

Here is an excerpt:

The Heritage memorandum claims that if Prop 19 were approved, it would conflict with the federal criminal statute, the Controlled Substances Act and thus “invite litigation that would almost certainly result in [Prop 19] being struck down” as unconstitutional. This legal claim is dead wrong. While it is true that the supremacy clause of the Constitution makes it clear that federal law will override a conflicting state law, that clause simply has no application here. The federal law on marijuana remains in force, but that does not mean that a state government is under any obligation to assist the feds. As the Supreme Court noted in New York v. United States (1992), the state governments are neither “regional offices nor administrative agencies” of the federal government. Let’s take another example. Suppose Congress were to criminalize, say, cotton candy–would California be in violation of the Constitution because its police agents are not now empowered to arrest people producing and possessing cotton candy? No. Nor could Congress compel the California legislature to move against cotton candy producers and consumers. Here again is the Supreme Court: “Even where Congress has the authority to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.” (New York v. United States, 505 U.S. 144, 166 (1992)). Prop 19 is consistent with the constitutional principle of federalism.

For additional Cato scholarship on drug policy, go here and here.