Government and Politics

December 3, 2020 4:12PM

The Framers Wisely Left Election Practice Decentralized

A remarkable thing about election law in America is how decentralized it is. It relies on obscure local officials such as county canvassing boards, along with armies of community volunteers. Even within a single state, as recent litigation has made us aware, counties need not follow uniform practices on such questions as which voting machines to use, or whether to contact voters and invite them to re‐​do a legally defective ballot they may have sent in.

Centralizers and systemizers might call this a patchwork quilt. What it also is, as I’ve long argued, is a source of deep resilience. Part of this is practical: with dozens of voting systems in use, if a newly introduced machine is overly subject to breakdown, at least it isn’t causing havoc everywhere at once. If some states adopt a bad or inefficient practice (as by discouraging the processing of mailed ballots before Election Day, which slowed counts in states like Michigan and Pennsylvania) they can profit from the example of states like Florida that have implemented more efficient methods after their own costly experience.

Far more important, it prevents a power from being centralized that would be dangerously tempting to demagogues and authoritarians.“We are so lucky that elections have never been federalized,” I told Reason’s Eric Boehm last month. “No one in Washington can give orders to fire local election board officials.”

I hadn’t seen it when I spoke, but economist Steve Landsburg had recently written a superb opinion piece in the Wall Street Journal making this point better than I had:

Imagine a future presidential election in which the incumbent refuses to concede and enlists the full power of the federal government to overturn the apparent democratic outcome.

Now imagine that the election in question is actually run by a federal agency or by some nationwide quasigovernmental authority charged with collecting and aggregating the results from all 50 states.

I don’t know about you, but I might worry a bit about the pressure that could be brought to bear on that single authority.

Landsburg goes on to make another highly relevant point. Reform‐​minded centralizers, often well‐​intentioned, routinely propose rationalizing American election practice in ways that would centralize control over key pressure points such as certification of results. This is a danger, for example, in many schemes to replace the Electoral College with direct popular vote.

To be sure, the Constitution does give Congress a power, which it has used with restraint, to prescribe uniform rules, as by naming Election Day and providing for the mechanics of receiving the Electoral College outcome. And it’s also true that constitutional principles such as the prohibition of infringement of the right to vote on account of race can result in some serious oversight. Still, the general rule today is that across a wide range of procedural matters, each state is free to set its own course.

And that looks like a good bet given the experience of the past four weeks. We should hesitate before going down the road – to quote Landsburg’s phrase – “of centralizing the power to decide who will yield power.”

December 1, 2020 4:23PM

Greenhouse Gases and the California Waiver Again

General Motors recently announced that it is terminating its participation in the Trump administration’s lawsuit to deny California the ability to set more stringent Corporate Average Fuel Economy (CAFE) standards. As I have discussed before, CAFE standards, which were originally devised to reduce fuel use during the oil shocks of the 1970s, have been repurposed as climate change (CO2) emissions controls. But the standards are an inefficient method to reduce CO2 emissions.

Last year, the Trump administration froze future CAFE standards at 2020 levels and denied California’s request to set higher fuel economy standards than the federal government. California and 22 other states filed a lawsuit challenging the Trump administration’s denial of the waiver from the more lax federal standard. General Motors, Toyota, and Fiat Chrysler joined the lawsuit on the side of the administration while Ford, Honda, BMW, Volkswagen, and Volvo agreed to follow California’s more stringent standard. General Motors’ decision to stop participation in the lawsuit increases the likelihood that the ultimate result for the country will be California’s standard of 51 mpg rather than the Trump 40 mpg.

This ongoing saga and its portrayal in the media illustrate a deficiency of much environmental journalism. Environmental journalists write about these disputes as if there is a good side and a bad side. The bad side opposes more stringent environmental regulation and the good side supports them.

Why don’t journalists ever ask what the optimal amount of environmental protection would be and how we would achieve it? Their black and white view of environmental regulations ignores the legitimate debate over what level of environmental protection is appropriate and what regulatory tools offer the most cost‐​effective way to accomplish those goals.

For example, economic analysis of the original Obama CAFE standard of 54.5 mpg concluded that it would reduce emissions as much as a carbon tax of $27 a ton (27 cents per gallon) but cost six times as much. Additional analysis of the Obama proposal also has concluded that it is regressive. So why do journalists praise a policy proposal that is the equivalent of a revenue‐​neutral federal carbon tax of $162 a ton ($1.62 per gallon) with a rebate of the revenue to those with above‐​median family income?

November 23, 2020 3:59PM

Will Biden Turn the Education Department over to the Teachers Unions?

President‐​elect Biden is rumored to be considering a teachers union head to be his secretary of education. Since the Education Department was essentially created by the National Education Association, this is basically just confirming their control. It’s understandable that Biden would promise to name a teacher for this post. After all, who knows education better than teachers? It no doubt sounds good to voters. But imagine a candidate promising to name a defense contractor as secretary of defense, an oil company CEO as secretary of energy, or a real estate developer as HUD secretary. For each of those the candidate could plausibly raise the same argument, that few others would know more about the subject. But there would be a lot more public skepticism about naming a provider of the service to run the federal department in those cases.

We didn’t always have a federal Department of Education, of course. It only goes back to 1979. Education was historically a matter for local communities, with increasing state‐​level involvement over the years. What happened in 1979? As the Oxford University historian Gareth Davies explains,

[President Jimmy] Carter would not have fought for the bill, and most likely would not even have endorsed it, had it not been for the unprecedented influence that the National Education Association enjoyed within his White House. In earlier years, education client groups had come to enjoy great influence within Congress, the judiciary, and the federal bureaucracy. Now, it seemed, the most important single such group had gained considerable influence within the White House, too.

Those changes were a result of the transformation of the NEA from a carefully bipartisan professional association to a politically active labor union, and in particular its heavy involvement in the 1976 Democratic presidential primaries.

Not everyone supported the establishment of the federal department, even on the Democratic side of the aisle. The American Federation of Teachers, fearing that the department would be controlled by its rival, the NEA, organized opponents. Sen. Daniel Patrick Moynihan, who was close to AFT leader Albert Shanker, led Senate opposition and called Carter’s bill “a backroom deal born out of squalid politics.”

The New York Times editorialized, “The supporters of a separate department [of education] speak vaguely of the need for a federal policy on education. We believe that they misunderstand the nature of American education, which is characterized by diversity. The legitimate centers of gravity are, and ought to remain, in the educational authorities of the states and the local communities.”

Many such critics warned that a secretary of education would turn into a national minister of education. Rep. John Erlenborn (R-IL), for instance, wrote, “There would be interference in textbook choices, curricula, staffing, salaries, the make‐​up of student bodies, building designs, and all other irritants that the government has invented to harass the population. These decisions which are now made in the local school or school district will slowly but surely be transferred to Washington.”

Such concerns were not limited to Republicans. Rep. Patricia Schroeder (D‐​Colo.) predicted, “No matter what anyone says, the Department of Education will not just write checks to local school boards. They will meddle in everything. I do not want that.” David W. Breneman and Noel Epstein wrote in the Washington Post, “Establishing a cabinet‐​level department is a back‐​door way of creating a national education policy.” And Richard W. Lyman, president of Stanford University, testified before Congress that “the two‐​hundred‐​year‐​old absence of a Department of Education is not the result of simple failure during all that time. On the contrary, it derives from the conviction that we do not want the kinds of educational systems that such arrangements produce.” A Washington Post editorial raised the fear that “by sheer bureaucratic momentum, [a department of education] would inevitably erode local and state control over public schools.” Another Post editorial reminded us, “Education remains a primary function of the states and localities, which is surely one reason this country has not had a national ministry of education as part of its political tradition. We think it is a tradition worth holding on to.”

The critics failed, of course. Congress and President Carter created a federal Department of Education. And over the past 40 years, what have been the results? Neal McCluskey wrote in the Cato Handbook for Policymakers:

To assess learning in the modern era, the most consistent, national measure we have is the National Assessment of Educational Progress (NAEP) Long‐​Term Trend Assessment. The assessment is a federal test given to a nationally representative sample of students — but without stakes attached and, thus, insulated against “gaming” — which has remained largely consistent since the 1970s. What does it show? Looking at 17‐​year‐​olds over the decades, achievement is almost completely flat, even though — as Figure 47.1 shows — the inflation‐​adjusted expenditure on the average student’s education has nearly tripled. That trend has been largely echoed by SAT scores; after controlling for numerous variables including self‐​selection of test takers, we see that those scores have also stagnated.

How about learning? Well, Neal offers this chart, which ought to be the starting point for any discussion of schools and school funding:

Change in NAEP Long‐​Term Trend Results (17‐​Year‐​Olds) vs. Change in Total Spending for a Child’s K–12 Education, in 2014 dollars, by Graduation Year, 1970–2012


Spending on schools has risen steadily. Test scores have been flat. And indeed the federal government has gradually extended its intervention in local schools. As far back as 1994 the Government Accountability Office estimated that although the federal government provided less than 10 percent of K–12 education financing, federal regulations caused more than 40 percent of the administrative burden felt by state education agencies. Such burdens and strings have only increased, in areas from curriculum to bathroom access, most recently under both the Obama and Trump administrations.

Education is not mentioned in the Constitution of the United States, and for good reason. The Founders wanted most aspects of life managed by those who were closest to them, either by state or local government or by families, businesses, and other elements of civil society. Certainly they saw no role for the federal government in education. Once upon a time, not so very many years ago, Congress understood that. The History of the Formation of the Union under the Constitution, published by the United States Constitution Sesquicentennial Commission, under the direction of the president, the vice president, and the Speaker of the House in 1943, contained this exchange in a section titled ‘‘Questions and Answers Pertaining to the Constitution’’:

Q. Where, in the Constitution, is there mention of education?

A. There is none; education is a matter reserved for the states.

The greatest service Congress and the Biden administration could perform for American education would be to rekindle the original understanding of the delegated, enumerated, and thus limited powers of the federal government and to return control and financing of education to states, localities, and families. Failing that, the administration should stop imposing new burdens and controls on 15,000 local school districts.

November 20, 2020 4:21PM

Voting Machine Conspiracy Theories Harm U.S. Cybersecurity

Last week, I wrote about a crackpot conspiracy theory making the rounds: The allegation that voting machines or tabulation software produced by Dominion Voting Systems had somehow been “hacked” or “rigged” to alter the outcome of the presidential election. At the time, I worried I might be giving undue attention to an outlandish claim that—given how thin and easily debunked was the “evidence” for it—would surely fade away on its own. Apparently, I need not have worried. Since then, the Dominion Theory has not only led to the firing of Chris Krebs, the well‐​respected head of the Department of Homeland Security’s cybersecurity agency, but featured in a press conference held by Trump attorney Sidney Powell, who made it the centerpiece of a wildly implausible case that Donald Trump had won the presidency by a “landslide” and been deprived of victory by massive and systematic vote fraud. According to Powell’s increasingly byzantine version of the theory:

“The Dominion Voting Systems, the Smartmatic technology software, and the software that goes in other computerized voting systems here as well, not just Dominion, were created in Venezuela at the direction of Hugo Chavez to make sure he never lost an election after one constitutional referendum came out the way he did not want it to come out.”

None of this is true. Dominion and Smartmatic are separate companies, and indeed competitors; the tenuous connection between them is that Dominion once purchased assets from a firm that had been owned and sold off by Smartmatic years earlier. Smartmatic is an American company, though its founders are Venezuelan, and its software was not used in any of the swing states currently under scrutiny. (It has provided software used in Venezuelan elections, but the company itself has called out electoral fraud there.) Powell’s claim appears to be little more than an effort to insinuate guilt by (very indirect) association with an authoritarian regime. 

The other supposed “evidence” for chicanery linked to Dominion is equally shoddy. Election‐​night tabulation errors in Michigan—detected and corrected almost instantly—were speculatively attributed to Dominion software by online conspiracy theorists, but local election officials have since explained that they were the result of human errors, not computers misbehaving. Claims amplified by Trump that millions of votes had been “deleted” in Pennsylvania were unequivocally refuted by state officials. Trump appears to have picked up the notion from a report on the One America News Network, which got the idea from a blog post citing data from the polling firm Edison Research—though Edison itself had produced no such report

Evidence against the theory is overwhelming, and has only become stronger in the week since my original post. Georgia recently completed a manual recount of paper ballots, supervised by the Republican secretary of state, and found no sign of any significant tabulation errors. (The states electronic voting machines generate voter‐​verifiable paper records, and in most battleground states the in‐​person votes that would have used such voting machines favored Trump, with Biden having the advantage in hand‐​marked mail ballots.) In an open letter, 59 of the country’s most prominent election security experts said they’d found no evidence of systemic fraud—cyber or otherwise. 

None of this, alas, was enough to save Chris Krebs, until recently director of the Cybersecurity and Infrastructure Security Agency within the Department of Homeland Security. For the sin of issuing a statement that the agency had found no evidence of voting systems being compromised, Krebs was summarily terminated by tweet, with Trump declaring the agency’s expert analysis “highly inaccurate.” 

Since the evidence‐​free Dominion theory is unlikely to persuade any court, Krebs’ dismissal may be its most damaging consequence, at least in the short term. This is not merely because Krebs was widely respected and viewed as highly competent, but because the firing sends a clear signal to all government employees: if your own analysis contradicts the president’s claims about vote fraud, you shouldn’t expect to remain employed for long. This undermines CISA’s core mission, which includes assisting and coordinating with states which may lack the federal government’s capabilities when it comes to monitoring and detecting sophisticated cyber‐​threats. Now the specter of political interference hangs over any warnings the agency may provide in the future. The agency may now hesitate to provide state officials—and the general public—with reassurances about the integrity of local elections, while warnings about actual threats may be viewed with suspicion given Trump’s clear desire to find evidence of fraud. Nor is the harm limited to CISA. The Intelligence Community at large is on notice: produce reporting at odds with the president’s public claims, and you place your career at risk. 

This is particularly poisonous because it distorts what’s known as the “intelligence cycle”: the process by which agencies gather intelligence, analyze it, disseminate reporting, and then use that information to allocate resources and prioritize the next round of intelligence collection. Any distorting effect on what is reported—either because employees feel obliged to emphasize information that confirms what the president wants to hear or suppress information that contradicts his presuppositions—risks creating a feedback loop, infecting the next round of planning and intelligence collection, and diverting resources and energy away from genuine threats and toward spurious ones. We should hope the president‐​elect has the wisdom to avoid such potentially toxic interference. 

November 18, 2020 3:28PM

Governor of Vermont, Phil Scott

Vermont voters have created a unique situation in the state. People often associate it with the land of Bernie Sanders. It has higher taxes, larger government, and less freedom. Yet Vermont is headed by a Republican governor who favors restrained budgets, low taxes, and leans moderate or libertarian on social policy.

Phil Scott was just re‐​elected governor of Vermont by an impressive 69 to 28 percent margin, even though the state went for Biden over Trump 66 to 31.

Scott came to the governor’s office after serving as a state senator and Vermont’s lieutenant governor. His fiscal views probably formed during his days as a small business owner before that. He is also an active race car driver


During his time in office, Scott has battled the state’s Democratic legislature over tax and spending restraint, and he does not hesitate to veto big‐​government bills. For example, the governor vetoed property tax increases to fund schools, proposing instead to cut school bureaucracy as a money saving move. General fund spending rose at an annual average rate of just 2.4 percent between 2017 and 2020, and Scott has focused on trimming fat from state agencies.

Protecting his citizens from unnecessary tax increases in 2018, the governor signed a bill to conform to federal changes in the income tax base while cutting state income tax rates across the board. That same year he signed a bill to legalize recreational marijuana possession, and in 2020, he allowed a bill legalizing pot sales to become law without his signature.

As a fiscal conservative in Vermont, Phil Scott is outnumbered and does not win every battle. In 2020, the legislature vetoed his attempts to defend the economy against the legislature’s proposals for carbon regulations and carbon taxes. But he is used to strong g‐​forces on the race track, and as he battles strong g‐​forces in the state capital, voters seem to have his back.

The majority‐​democrat state legislature has also overridden Scott’s veto of a bill that would create a damaging minimum wage hike in 2020. According to Scott, “Despite S.23’s good intentions, the reality is there are too many unintended consequences and we cannot grow the economy or make Vermont more affordable by arbitrarily forcing wage increases. I believe this legislation would end up hurting the very people it aims to help.”

Scott also vetoed bills that would impose a costly paid‐​leave scheme funded by a new wage tax. In a 2020 veto message, he said, “Vermonters have made it clear they don’t want, nor can they afford, new broad‐​based taxes. We cannot continue to make the state less affordable for working Vermonters and more difficult for employers to employ them—even for well‐​intentioned programs like this one.”

After his impressive reelection this year, it will be interesting to watch this fiscally conservative governor continue to take on his state’s liberal legislature. And as other states like California similarly elect left‐​leaning politicians to federal offices while rejecting their ideas about higher taxes and bigger government at the state level, it appears many electorates once thought of as purely Democrat may actually be libertarian.

November 13, 2020 5:30PM

No, The Presidential Election Was Not Rigged by Hacked Voting Machines

Donald Trump’s crusade to manufacture doubts about the outcome of the presidential election reached a new low on Thursday, when the president shifted from making vague, evidence‐​free assertions of massive and systematic vote fraud to promoting a specific and frankly bonkers conspiracy theory—disseminated in ALL CAPS to the president’s 89 million Twitter followers—alleging that software developed by Dominion Voting Systems had “DELETED 2.7 MILLION TRUMP VOTES NATIONWIDE” and that “221,000 PENNSYLVANIA VOTES” had been “SWITCHED FROM PRESIDENT TRUMP TO BIDEN.”

This is embarrassing nonsense of the sort one expects to see on fringe message boards, not emanating from the White House. Its roots, as The New York Times explains in a detailed debunking, appear to lie in a handful of election‐​night tabulation errors in Michigan and Georgia, some of which occurred in counties using Dominion software. Those mistakes were rapidly identified and corrected, and ultimately found to be the result of human error, not defects in the software itself. Yet that was enough to launch a flurry of speculation about digital chicanery by online conspiracy theorists, which has now apparently made its way to the White House.

With press, election officials, and Dominion Voting itself all refuting the wildest version of the conspiracy theory, George Washington University law professor Jonathan Turley sought to salvage a more respectable‐​sounding variant on Fox News. He claimed a short‐​lived election night tabulation error in Michigan had somehow shown that Dominion software was “vulnerable to human error,” and should therefore be subject to added scrutiny because it was “rather ubiquitous.” While this might sound superficially more reasonable than shrieking about “stolen” votes, it is still a non‐​sequitur. As Shiawassee County election clerk Abby Bowen had explained to FactCheck​.org a week earlier, the error was the result of “a typo in the initial report that went out to the Bureau of Elections,” one that was noticed and rectified almost immediately. There was no reason to link it to Dominion software—or indeed any voting machine software. As host Steve Doocy quickly interjected, five counties in Michigan and Georgia had problems. And the Dominion software was used in two of the counties and in every instance, largely it was human error, a problem, but the software did not affect the vote counts.” The only reason to mention the errors and Dominion in the same breath was the spurious connection that online conspiracy theorists had made, now laundered for mass consumption on a news network by a supposedly reputable academic.

A variety of purported links between Dominion and Democrats, which began circulating in an effort to bolster the theory, have similarly been refuted by the Associated Press. Meanwhile, a joint statement from (among others) the heads of the Department of Homeland Security’s CyberSecurity Infrastructure Agency and the National Association of State Election Directors, presumably better situated to assess this sort of thing than random theorists on the Internet, reported “no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.”

One reason this is not a particularly good conspiracy theory—beyond the reasons the Times and the AP lay out and the CSIA assessment—is that Pennsylvania recently required all its voting machines to use or generate voter‐​verifiable paper records, which can be used for both the state’s routine audits of electronic tallies and, if necessary, a full manual recount. That makes it vanishingly unlikely an electronic vote‐​rigging scheme on the scale Trump alleges—with tens or hundreds of thousands of votes changed—could succeed. An attempt to modify so many paper records would inevitably be detected by voters on election day. If the paper records were accurate but the digital count interfered with, the errors would need to either be distributed across so many machines that it would be detected in routine statistical audits, or generate such enormous anomalies on a small number of machines that they would send up unmistakable signal flares demanding scrutiny. It would, in short, be a scheme so manifestly doomed to failure and so guaranteed to be detected that nobody sophisticated enough to attempt it could regard it as a viable strategy.

It should go without saying that disseminating spurious accusations of vote fraud without evidence is in itself a civic harm: To the extent such stuff is believed, it encourages either helpless resignation from political engagement or desperate resort to extralegal action. But in this instance there’s an added harm of undermining the serious and vital efforts of legitimate security researchers to identify potential vulnerabilities in electronic voting systems and address or mitigate them. Crying wolf about imaginary cyberattacks makes it more likely that the public and elected officials will tune‐​out when real vulnerabilities are identified. And ignoring all the hard work undertaken in many states to secure voting systems muddies public perception of how well different states’ political institutions have performed on this front. If voters are fooled by such claims, they may believe it’s necessary to squander resources hardening election infrastructure that is already secure, or to replace software or public officials who have in fact performed well. States that have done less adequate work securing their voting systems, meanwhile, may get an unearned reprieve from the perception that problems lie elsewhere.

When the President of the United States irresponsibly amplifies unfounded conspiracy theories, the stature of his office guarantees that many citizens will, at least initially, give these claims a weight they do not merit. That’s corrosive of democracy and civic trust, but also, in this case, of good cybersecurity policy.

Editor’s Note: This post was updated to clarify details of Jonathan Turley’s Fox News appearance.

November 12, 2020 5:07PM

Government Worker Retirement Benefits

The Wall Street Journal ran a news piece the other day on government workers entitled “Tighter Municipal Budgets Shrink Retiree Health Benefits.” The piece was sympathetic to the plight of state and local workers and opened with “America’s retired workers are getting squeezed on their health care.”

Apparently, some state and local governments are trimming retirement health benefits. The reforms are needed because many governments have not pre‐​funded the benefits, which is an irresponsible practice I examined here.

What the Journal does not tell readers is that state and local government workers have some of the nation’s best retirement benefits. Most private‐​sector workers do not receive any retirement health benefits, let alone the generous packages received by government workers. As taxpayers, private‐​sector workers are the ones paying for generous government benefits.

Federal Medicare benefits kick in at age 65. But many government workers retire years earlier, and they continue receiving employer‐​based benefits to fill the void. Journal readers may wonder why they are supposed to feel sorry for workers taking a benefit trim for a type of benefit that they may not receive at all.

The chart shows data from the Bureau of Labor Statistics (pp. 339, 523). In 2020, 68 percent of state and local government workers were covered by retirement health benefits when under age 65, compared to just 13 percent of private‐​sector workers. Most government jobs are “management, profession, and related,” so the chart also shows the BLS data for this category.

Many Journal news pieces imply that government spending restraint is bad. I commented on prior pieces here, here and here. I’d like to see more balance.


Note: the BLS says, “Employee benefits in state and local government should not be directly compared to private industry.” The agency cautions that the types of jobs in the public and private sectors differ. I don’t agree with the BLS’s blanket statement, but their point should be kept in mind. For this reason, I included the figures for “management, professional, and related” to show that even in similar sorts of jobs, there is a large difference in benefit coverage. The BLS data show that 11.1 million of 19.4 million state/​local jobs were “management, professional, and related.”