The 21st century has so far seen three great crises: the terrorist attacks of September 11, 2001, the financial collapse of 2008, and the COVID-19 pandemic—which has by itself already inflicted a greater toll in life, liberty, and prosperity than its two predecessors combined. And just as COVID has upended our daily lives, it’s transformed the political terrain, with governments at all levels exercising emergency powers rarely seen outside the context of total war.
But “panic is its own contagion,” and with so much at stake, what’s needed now is a calm, realistic assessment of the choices ahead—a guide to policies that can stem the damage while avoiding permanent transformation of American life and law. The Cato Institute intends to meet that need with the new series of policy‐focused essays we’re debuting today.
The aim of Pandemics and Policy is to address “what went wrong, what we’ve learned, and how to prepare for the next time,” providing an issue‐by‐issue roadmap out of danger and back to normalcy. As with Cato’s longstanding Handbook for Policymakers, each entry in the series begins with a list of action‐items for lawmakers; but unlike the traditional bound‐volume Handbook, Pandemics and Policy will be published serially online, starting with the 10 essays released today.
Not long after we first had the idea for this project, I went back to look at the Cato Handbook editions released after prior national emergencies. It wasn’t hard to discern a running theme: in each case, the Beltway intelligentsia issued an indictment of the American heritage of limited government. “Well before the wreckage of the World Trade Center had stopped smoldering,” Ed Crane and David Boaz observed in the first post‐9/11 Handbook, pundits and pols “were eagerly heralding the ‘fall’ of libertarianism and the ‘death’ of small‐government conservatism. September 11 had proven—had it not?—the necessity of a muscular central government with sweeping powers.” By the decade’s end, as the country struggled to recover from the worldwide financial collapse, Crane and Boaz noted the cognoscenti’s insistence “that the credit crisis means ‘the end of libertarianism’ or even more dramatically ‘the end of American capitalism.’’’
Thankfully, reports of those deaths were greatly exaggerated. But the novel Coronavirus that reached U.S. shores in early 2020 has provided a new rationale for those seeking radical change to American institutions: another serious crisis they’re determined won’t go to waste. The New York Times editorial board, for example, frames the pandemic as a Civil War/Great Depression‐scale constitutional moment that should be seized upon to uproot inequality and transform health care, housing, education, and “the balance of power between employers and workers.” For too many public intellectuals and political leaders, permanent transformation is the goal—“there are no libertarians in a pandemic,” they insist, nor should there be.
Those of us at Cato beg to differ. To be sure, a black‐swan event like a once‐in‐a‐century pandemic would present a challenge to any political philosophy. But from the massive regulatory failures that stifled test development, to archaic restrictions that slowed the health‐care sector’s response, the U.S. response to the COVID-19 pandemic has been a disaster compounded by government overreach—as Charles Silver and David Hyman put it in the piece that leads off this collection, “a master class in government failure.”
The 10 essays we’re publishing today provide a principled overview of the good, the bad, and the simply difficult policy choices presented by the spread of a deadly communicable disease. They identify errors to be avoided, such as a backlash against international trade or a dangerous enhancement of public‐health surveillance authorities; they also provide roadmaps toward a decentralized and flexible education system and an inclusive economic recovery that benefits those hit hardest by the post‐COVID contraction. In the weeks and months to come, Pandemics and Policy will treat the entire range of Cato’s policy work, providing lawmakers with an actionable guide to policies that can harness American ingenuity and foster a resilient society capable of meeting the challenges ahead.
A couple weeks ago, I blogged about “an unfortunate innovation in executive power” during the Obama administration, which I called “leverage policymaking.” In a nutshell, “leverage policymaking” entails regulatory agencies using individual transactions with large corporations—such as enforcement or licensing actions—to achieve broad policy results.
Last week, Cato published a Legal Policy Bulletin about another unfortunate innovation in executive power, but this one was pioneered by the Trump administration. I call it the “ad hoc administrative state”; below, I’ve excerpted the short paper’s executive summary:
A hallmark of the Trump administration has been its creation of significant administrative programs on the fly, based on ambiguous or implied textual authorities, and without any public input. This paper discusses four such initiatives involving almost $40 billion in benefits and dispensations from more than $400 billion in tariffs. The programs discussed in this paper were launched after summary notices amounting to a total of 28 pages in the Federal Register. Rarely, if ever, has so much administrative policy been rendered in so few words. Far from reflecting the mere execution of the law, these programs instead take on the attributes of core congressional prerogatives—namely, the power to spend public funds and regulate international commerce. To date, Congress has acquiesced to these developments. If lawmakers remain passive, future presidents will build on Trump’s template, which reflects an unfortunate innovation in executive power.
Read the whole thing here.
Social media managers cannot tolerate all speech on their platforms. They are obligated to maximize value for their shareholders. Leaving some kinds of speech on a platform would drive some users away. So social media managers establish rules intended to maximize the number of users. Managers also hire content moderators to enforce the rules. Users that get thrown off have no complaint. When they joined the platform, they agreed to the rules and to how they are enforced. End of story.
Except it’s not the end of the story. Social media managers do not seem to believe that mutual consent to rules and their application is enough to make content moderation legitimate. For present purposes, I simply accept this belief; we need not inquire into its validity. If consent is not enough, social media need other justifications for legitimacy. Some social media managers embraced a judicial model: due process would foster legitimacy. For example, Facebook instituted written rules whose enforcement could be ultimately appealed to an Oversight Board (OSB).
How might an appeals process be legitimate? The Charter, Bylaws, and Code of Conduct for OSB members mention the words “independent” or “independence” 28 times. Here are a few examples. The OSB is established by “an independent, irrevocable trust” which oversees administrative matters. The purpose of the OSB "is to protect free expression by making principled, independent decisions about important pieces of content…” OSB members are required to "exercise neutral, independent judgment and render decisions impartially.” Moreover, OSB members "must not have actual or perceived conflicts of interest that could compromise their independent judgment and decision-making.” The Bylaws say members "will exercise neutral, independent judgment and render decisions impartially.”
The adjective independent has many meanings. The most relevant here is "not subject to control by others." Many fear social media content moderation will be dependent on tech companies' financial priorities. The more successful social media are (and will be) owned by their shareholders. Their managers will have a duty to maximize value for those shareholders. What's wrong with that? Critics say profit maximizing leads social media to tolerate speech that harms others. Social media seek to engage users and keep them on a platform, thereby maximizing revenue. Critics assert, however, that some speech that harms others also engages users. Social media can protect users only by failing to maximize revenue. In this way, it is argued, privately-owned social media are thought to face a potential conflict between their obligations to their shareholders and the independence of their content moderation (including an appeals process).Read the rest of this post »
My latest legal policy bulletin, with just‐departed Cato legal associate James Knight, is up. We tackle the difference between all‐mail and absentee‐option voting, concerns about ballot integrity and ballot harvesting, and other issues that have arisen as we head into an election in uncertain times. Here’s the opening paragraph:
The ongoing pandemic has necessitated dramatic changes to nearly every aspect of American life. The ways we work, shop, eat, and socialize have been radically restructured to protect our own health and that of our communities. This November, that radical restructuring will extend to the way we vote. Changes to our voting systems to safeguard public health, such as by allowing mail‐in voting, are sorely needed, particularly if fears of another COVID-19 wave in the fall come true. At the same time, hastily switching from in‐person voting to more‐anonymized systems with which the states lack experience creates the potential for chaos, errors, and decreased electoral legitimacy in the eyes of voters. With little more than two months until the election, states must finalize decisions on what they are doing and communicate those plans to their citizens and the country as a whole.
As they say, read the whole thing.
In the cover story for the July/August issue of Cato Policy Report, Lee Drutman of the New America Foundation expounds on a theory of the causes of, and solutions to, hyperpartisan polarization, adapted from his book Two‐Party Doom Loop: The Case for Multiparty Democracy in America. In the past two to three decades, America’s two major political parties have become strongly sorted and polarized in a way that has not been seen since the Civil War. The consequences have become alarming.
It’s not just that the political marketplace is broken — it’s that the broken political marketplace is now breaking the fundamental foundations of modern liberal democracy: the rule of law and adherence to constitutional norms. In the constant jockeying for narrow elusive majorities, partisans are putting short‐term gains ahead of long‐term stability and disregarding long‐standing norms in order to win the next election and humiliate the other side. When “winning” becomes everything, and winning means dehumanizing the other side for short‐term gain, it legitimates increasingly extreme behavior on both sides.
I call this problem the “two‐party doom loop.” The idea is similar to an arms race, or any self‐reinforcing feedback loop of escalation. More aggressive actions on one side justify more aggressive actions on the other side.
This is a problem that should be especially concerning to libertarians. Not only because we perennially struggle for a seat at the table as an ideological minority within both major parties, but because escalating partisan incentives have undermined things libertarians care deeply about: constitutional limits on government power, checks and balances, liberal norms, and an aversion to the tyranny of the majority.
Rep. Justin Amash (L-MI) noted similar reasons in his decision to leave the GOP last year, writing in the Washington Post that “The two‐party system has evolved into an existential threat to American principles and institutions.”
That’s a dire warning that lovers of liberty should take seriously. But luckily, we are not without possible solutions.
The question is in some ways one of public choice, the incentives facing political actors because of systemic design and process choices. It’s also not new territory for political science, with Duverger’s law dating to the 1950s but the underlying observation long predating it. First‐past‐the‐post elections (the only kind then known to the Framers of the Constitution) tend to sort a nation’s politics into two dominant political parties, and nowhere has this effect been seen more strongly than in the United States. Alone among major liberal democracies, the United States has no members of the House of Representatives who were elected outside of the two largest parties. (The Senate has two nominal independents, but both are de facto Democrats).
Libertarians are thus well positioned to draw on an intellectual tradition that stretches from Nobel laureate James Buchanan all the way back to James Madison, who strenuously sought to craft a system of checks and balances that would tame and channel partisan incentives, including through a strong system of federalism and decentralization. Simply put: incentives matter. The rules of the game go a long way toward determining its outcome. Madison’s genius continues to serve us well, but is not beyond improving on with knowledge unavailable to him in 1787.
Our situation is not hopeless and runaway polarization is not inevitable, as much as recent years might have given that impression. There is currently a bubbling movement for electoral reform sweeping the states, which have broad authority to determine the rules of their own elections. Maine has led the way with ranked choice voting, using it for congressional elections in 2018 and applying it to a presidential race for the first time this November. But there are other possibilities. Some states already use multi‐member districts for their legislatures, which are especially well suited to many models of multipartisan electoral reform.
Since the Supreme Court’s ruling in Baker v. Carr in 1962, which struck down malapportioned districts that were once common for one or both chambers, legislative bicameralism in many states has struggled to find a purpose. With state senates effectively elected in an identical manner to their lower houses, they are no longer representing any difference of interests or incentives. One possible reform to consider would be making one house elected by a method of party list proportional representation, and thus explicitly multipartisan, and making the other chamber elected in single‐winner nonpartisan elections, as the unicameral legislature of Nebraska already is.
But that’s just one idea. The field of possible electoral reforms is rich with possibilities, many of which have long standing examples abroad we can study. The state‐level initiative and referendum process provides a key avenue to bypass established legislators entrenched within their two partisan camps. States can and should take the lead with experimentation. Perhaps in no other policy field is the label “laboratories of democracy” more apt.
By chipping away at the foundations of the doom loop at the state level, Americans might be able to find a more diverse and competitive market for political representation. And in so doing, we could find a way out of the toxic escalation of two‐party tribalism, which in the long run provides no satisfactory defense of liberty and the Constitution. The American people represent a vast diversity of values, ideologies, and interests. Their elected representatives should reflect that, including building compromise and consensus rather than engaging in a fight to the death for total control built on narrow majorities.
There is strong reason to doubt how long our constitutional traditions and institutions can survive the two‐party tug of war, which in its current unbounded incarnation is barely a generation old. We are overdue to do something about it before something breaks, potentially irrevocably. It is a testament to Madison’s vision that he not only attempted to tackle these same problems, but also provided us a workable way to correct and perfect his system, to better meet its goal of preventing the dominance of any one party or faction.
In these increasingly grim Days of Rage and COVID, you have to take your laughs where you can find them, sometimes from unusual sources. It has come to my attention that the Republican Study Committee—the nearly 150‐strong caucus of House conservatives—recently released a comprehensive national security strategy entitled, “Strengthening America & Countering Global Threats.” The “product of over 1.5 years of policy development,” this 120‐page manifesto is “a conservative, solutions‐oriented plan” that “advances the interests of the American people at home and abroad,” according to RSC Chairman Rep. Mike Johnson (R.-LA) and Rep. Joe Wilson (R.-SC).
One of those purported solutions involves constitutional war powers. The RSC report acknowledges that the congressional resolutions the president currently relies upon to wage war—the 2001 and 2002 authorizations for the use of military force (AUMFs)—are “outdated,” have been “stretched,” and therefore “some conservatives may be concerned with increasingly degraded congressional war powers.” What’s needed, the RSC says, is a new AUMF “giving the President sufficient authority to go after terrorist organizations for a definitive length of time without granting vague and indefinite war powers.” But what the House GOP brain trust has come up with would empower the president to wage war in, among other places, Peru, Sri Lanka, Japan, Spain, and—why not?—Northern Ireland. In (God help me) nearly two decades of following the war powers issue, it’s the most ridiculous proposal I’ve ever seen.
Here’s the RSC’s bright idea: replacing the 2001 and 2002 resolutions with “an AUMF that authorizes the President to engage in operations against any currently designated Foreign Terrorist Organization (FTO) that is on the Department of State’s list at the time of enactment.” Granted, it would be nice to have a fixed, public list of terrorist organizations Congress has empowered the president to target. What we’ve got instead is runaway mission creep, as successive presidents have expanded the war on terror to new theaters and new jihadist groups under the rubric of “[Al Qaeda‐] associated forces.” Along the way, they’ve been extraordinarily cagey about which groups we’re at war with and which ones we might target next. As a result, nearly two decades after 9/11, the U.S. is engaged in combat operations in some 14 countries, bombing half a dozen of them on a semi‐regular basis.
And, true enough, the State Department has a list of Foreign Terrorist Organizations that it’s maintained since the late ‘90s, following criteria outlined in the Antiterrorism and Effective Death Penalty Act of 1996. You can take a look at the FTO list here. It includes some 67 groups in 30 countries.Read the rest of this post »
It seems to be a season for endings. At the end of May, after almost 21 years, Walter Olson published his final blog post on Overlawyered, which was described by Law.com as “widely considered to be the oldest legal blog and also one of the most popular.” And now Johan Norberg has delivered his last “Dead Wrong” video essay, after some 4 years and 172 weekly episodes.
Of course, the world didn’t run out of legal absurdities or myths that needed busting. So have no fear: Olson and Norberg will continue to add to the world’s store of knowledge and understanding. Walter Olson can be read regularly here on this blog and in publications ranging from Arc Digital to the Wall Street Journal. Johan Norberg promises a new video blog series in 2021. He also has a book coming out in the fall, Open: The Story of Human Progress, and a planned public television documentary on corporate welfare in early 2021.
And don’t forget: Overlawyered’s archives are still a great place to search for news and commentary on law, litigation, free speech, workplace policy, and related topics, and “Dead Wrong” still has 172 videos posted on growth, progress, stagnation, socialism, economic fallacies, Sweden, Europe, and much more.
Watch Norberg’s sign‐off video: