At Forbes, Daniel Fisher asks a former federal official whether a thread connects the failed white-collar prosecutions of the onetime presidential candidate and the baseball great. Yes, as a matter of fact, there might: “Jurors could be sending a message to Washington they don’t like the awesome firepower of the Justice Dept. brought to bear on borderline cases without an obvious victim.”

Libertarians have often complained about the selective and hostile portrayal of business in Hollywood movies. A couple of little-known Hollywood movies that offer a different view are going to be on television this week.

The 1960 film “Cash McCall,” starring James Garner as an early “corporate raider,” was voted “Best Libertarian Picture” at the 1994 First International Libertarian Film Festival. Take that as you will. But arguably it does show, as the late lamented Miss Liberty website said, “a talented investor who overcomes envy and anti-success prejudice.” And it’s on TCM Saturday night at midnight.

USA Network meanwhile, is broadcasting “Taking Woodstock” 22 hours early, at 2 a.m. Saturday (i.e., very late Friday night). I wrote about that movie for Liberty magazine in 2010 (not online):

The movie Taking Woodstock, directed by Ang Lee, led me to the book of the same name by Elliot Tiber. I knew of Woodstock as a hippie happening a bit before my time. What I found interesting about the movie and the book was the portrayal of the Woodstock Festival, “Three Days of Peace and Music,” as an impressive entrepreneurial venture.

In 1969 Tiber was a 33-year-old gay designer living in Manhattan, while spending his weekends trying to save his parents’ rundown Catskills motel. One weekend he read that some concert promoters had been denied a permit in Wallkill, N.Y. He came up with the crazy idea of inviting them to hold the festival on his parents’ property. Lo and behold, they showed up to check it out. Taking the lead was 24-year-old Michael Lang, who went on to become a prominent concert promoter and producer.

The Tiber (actually Teichberg) property wasn’t suitable, but Elliot drove Lang and his team down the road to Max Yasgur’s nearby farm. At least that’s Tiber’s story; other sources say he exaggerates his role. He did play a key role, however, in that he had a permit to hold an annual music festival, which up until then had involved a few local bands.

There’s a wonderful scene, better in the movie than in the book, when Lang and Yasgur negotiate a price for the use of the farm. We see it dawning on Yasgur that this is a big deal. We see Elliot panicking that the deal will fall through, and that without the festival business his parents will lose their motel. And we see Lang’s assistant reassuring Elliot that both parties want to make a deal, so they’ll find an acceptable price, which indeed they do.

And then, with 30 days to transform a dairy farm into a place for tens of thousands of people to show up for a 3‑day festival, Tiber describes (and Lee shows) a whirlwind of activity. “Within a couple of hours, the phone company had a small army of trucks and tech people on the grounds, installing the banks of telephones that Lang and his people needed.” Helicopters, limousines, and motorcycles come and go. A few hundred people are erecting scaffolding, stage sets, speakers, and toilets. The motel keepers are trying to find rooms and food for the workers and the early arrivals. The local bank is eagerly providing door-to-door service for the mountains of cash flowing into bucolic White Lake, N.Y.

Meanwhile, there are a few locals who don’t like the whole idea. In Tiber’s telling, they don’t like Jews, queers, outsiders, or hippies. Maybe they just didn’t like a quiet village being overrun with thousands of outsiders. In any case they had a few tools available to them. A dozen kinds of inspectors swarmed around the Teichbergs’ motel. The town council threatened to pull the permit. Tiber writes, “Why is it that the stupidest people alive become politicians? I asked myself.” At the raucous council meeting Lang offered the town a gift of $25,000 ($150,000 in today’s dollars), and most of the crowd got quiet. Max Yasgur stood and pointed out that “he owned his farm and had a right to lease it as he pleased.” That didn’t stop the opposition, but in the end the concert happened.

The psychedelic posters and language about peace and love – and on the other side, the conservative fulminations about filthy hippies (see John Nolte’s movie review at BigHol​ly​wood​.com – can obscure the fact that Woodstock was always intended as a profit-making venture. That was the goal of Lang and his partners, and it was also the intention of Tiber, Yasgur, and those of their neighbors who saw the concert as an opportunity and not a nightmare. The festival did rescue the Teichberg finances. It ended up being a free concert, however, which caused problems for Lang and his team. Eventually, though, they profited from the albums and the hit documentary Woodstock.…

Tiber writes, “One of the great benefits of Woodstock—a benefit that, to my knowledge, has never been written about—was its sexual diversity.” But I think the fact that there were gay awakenings at Woodstock — and three-ways and strapping ex-Marines in sequined dresses — would surprise people less than the realization that Woodstock was a for-profit venture that involved a lot of entrepreneurship, hard-nosed negotiation, organization, and hard work. Taking Woodstock (the book, but better yet the movie) is a great story of sex, drugs, rock-and-roll, and capitalism.

Those of a different political persuasion may prefer TCM’s Dalton Trumbo extravaganza tonight.

Reports circulated yesterday that President Obama had reached an agreement with House speaker John Boehner (R‑OH) and Sen. Joseph Lieberman (I‑CT) to not only sustain the DC school voucher program for another few years but to eliminate the legislative cap on student enrollment—theoretically allowing it to grow without limit. Based the program’s performance to date, this would dramatically improve the graduation rate city-wide, likely boost performance academically, and save hundreds of millions of dollars from the bloated DC K12 budget.

But I didn’t write about it, because I didn’t believe it. Sure enough, later in the day, Secretary of Education Arne Duncan offered a clarification. Far from allowing unlimited growth in the program, the president only intended to allow another 85 students to participate—and still opposes the program in principle.

There is simply no way—no way—that President Obama could support an unlimited expansion in this successful, fantastically cost-effective education program. If he did, he would demoralize the most powerful force within the Democratic Party, the teachers’ unions, in the run-up to this fall’s election. Clearly he has no intention of doing that, given his recent advocacy of using federal dollars to grow the public school workforce (despite the fact that public school employment has already grown 11 times faster than enrollment over the past four decades).

We have a president who, for political reasons, cannot throw his full support behind the only federal education program in the nation’s history that is constitutional, successful, and cost-effective.

It is becoming apparent even to members of the party that gave us ObamaCare that helping to implement the law by establishing a health insurance Exchange is a bad deal for states. Yesterday, NewHamp​shire​Watch​dog​.org reported:

Governor Lynch blocks Health Insurance Exchange for NH

(CONCORD) Governor John Lynch [D] this morning signed legislation blocking implementation of a health insurance exchange in New Hampshire. The Obama Administration has been urging states to set up exchanges under the Patient Protection and Affordable Care Act, known as ObamaCare.

Lynch has supported setting up a New Hampshire exchange, including the proposal in his State of the State address in February. Senate legislation setting up an exchange, SB 163, won Committee approval in January before stalling on the Senate floor. Opponents argued that a state-run exchange would put New Hampshire taxpayers on the hook for the costs of administering much of the federal health care law, while giving the state little flexibility from federal mandates.

Representative Andrew Manuse (R‑Derry) introduced HB 1297 to prevent state officials from setting up an exchange without legislative approval. Josiah Bartlett Center President Charlie Arlinghaus led the charge for the bill, arguing that if federal officials wanted to set up a New Hampshire insurance exchange, they could pay for it themselves. (The Josiah Bartlett Center for Public Policy is the parent organization of New Hampshire Watchdog.)

Under the new law, state health and insurance officials may share information with their federal counterparts but may not take any steps to implement a state-controlled insurance marketplace.

Governor Lynch’s office did not respond to requests for comment on HB 1297.

On Sunday, Defense News published a good article by Kate Brannen that looks into Mitt Romney’s plans for military spending. This is not the first examination of Romney’s lofty campaign promise to spend at least four percent of GDP on the Pentagon’s base budget. Since October 2011, when I first crunched the numbers on his plan, others have followed with their own estimates.

In my first analysis, his plan totaled $2.046 trillion above projected defense budgets based on CBO totals from FY 2012 to FY 2021. That total does not include war costs, nor does it take into account the possibility of military action toward Iran, which Romney has made clear is on the table, with or without Congressional approval. My number one question at the time—beyond the fact that GDP is not the proper guide for military spending—was: Where is this money going to come from?

In April, I recalculated Romney’s gimmick, adjusting my numbers with the help of my colleague Charles Zakaib, based on the Obama administration’s latest 10-year projections. We presented the data in the graph below:

The conclusion: Romney’s four percent gimmick would now necessitate $2.58 trillion in additional military spending above the new baseline. I tried to put this in context:

Romney’s Four Percent Gimmick would result in taxpayers spending more than twice as much on the Pentagon as in 2000 (111 percent higher, to be precise), and 45 percent more than in 1985, the height of the Reagan buildup. Over the next ten years, Romney’s annual spending (in constant dollars) for the Pentagon would average 64 percent higher than annual post-Cold War budgets (1990–2012), and 42 percent more than the average during the Reagan era (1981–1989).

Does Romney genuinely believe we have enemies that approach the Soviet Union’s might, let alone ones that are 42 percent more threatening? We would be wise to question his judgment if so.

Back in the realm of the reality, further cuts to military spending are fast approaching as sequestration looms. The debate in Washington is now largely focused on how much to cut from the defense budget and in what manner. This is consistent with what the majority of Americans favor and has sidelined those arguing for ever-greater military spending. And yet Mitt Romney remains committed to his Four Percent idea. In this instance, Romney should embrace his supposed conservatism and leave the spendthrift gimmicks to the opposition.

Much more in the podcast below:

Remember the supposed gender gap on the U.S. Supreme Court? When the Court’s three female justices sided with plaintiffs in the sex discrimination case of Wal-Mart v. Dukes, we heard quite a bit about how their dissent supposedly represented women’s point of view (albeit joined by male Stephen Breyer). Some of us objected that to the extent the three justices do tend to cohere as a bloc, it has less to do with their gender than with their general ideological stance: as the Court’s most reliably liberal members, Justices Ruth Ginsburg, Sonia Sotomayor, and Elena Kagan can be expected to be somewhat more sympathetic to plaintiffs in a discrimination case, whether that case hinges on sex or, say, national origin or disability. Yet in a column about a different case, Coleman v. Maryland Court of Appeals, Linda Greenhouse of the New York Times specifically rebukes those who imagine an outcome like this “simply maps onto the court’s ordinary ideological alignments.”

Today the court released its opinion in the Confrontation Clause case of Williams v. Illinois, raising the question of whether a criminal defendant has a Due Process right to cross-examine DNA technicians whose findings contributed to his conviction. In this case the three female justices were in dissent, joined by Justice Antonin Scalia (who not infrequently joins his liberal colleagues on matters relating to criminal due process). The other five justices voted to sustain the conviction, though Clarence Thomas adopted his own rationale in a concurrence.

As it happens, Williams was accused of rape, and the female justices (plus Scalia) were therefore the ones more concerned about the niceties of due process toward one in his position. If one adopted the ludicrous “which side are you on?” approach of so much pop commentary on the Court, one might find this a real puzzler: why would the Court’s men be more sensitive to the need to keep rapists behind bars?

That’s ridiculous, of course, but only a couple of notches more ridiculous than attributing the Wal-Mart result to the Justices’ genders. For the rest of us, it remains true that the best way to understand and predict jurists’ votes on tough cases is to consult their philosophy on legal questions, not which restroom they happen to use.

Today, the Supreme Court decided Christopher v. SmithKline Beecham Corp. The case concerns whether the Department of Labor can change a 70-year old regulation essentially on a whim. Cato joined the Washington Legal Foundation in a brief that urged the Court to affirm the Ninth Circuit’s holding that administrative agencies are not allowed to enact massive regulatory changes without sufficient notice. Today, the Supreme Court did just that.

For over 70 years, the Department of Labor (DOL) has exempted “outside salesmen” from overtime-pay requirements. Such traveling salesmen typically do not punch a clock and often put in more than 40 hours per week. The pharmaceutical industry uses traveling pharmaceutical sales representatives (PSRs) to demonstrate to doctors the benefits of various prescription medications. While these PSRs do not make direct sales, the DOL has long regarded the PSRs as “outside salesmen” who do not qualify for overtime pay. In 2009, however, the DOL filed an amicus brief in a Second Circuit case announcing they had changed the classification—for the first time, PSRs would not be exempt from overtime-pay requirements. The move was unexpected, to say the least. There are currently approximately 90,000 PSRs in the country, and such a significant rule change threatened to alter the pharmaceutical industry’s entire way of doing business.

But the high costs are only a small part of the problem. In our brief, we argued that allowing administrative agencies to promulgate a major rule changes in amicus briefs as part of a litigation strategy would give them even more arbitrary power than they already have. Courts already give agencies so-called Auer deference in interpreting their own regulations, but this would be taking that deference too far. Justice Samuel A. Alito, writing for five justices (Scalia, Thomas, Kennedy, and Chief Justice Roberts), agreed:

In this case, there are strong reasons for withholding the deference that Auer generally requires. Petitioners invoke the DOL’s interpretation of ambiguous regulations to impose potentially massive liability on respondent for conduct that occurred well before that interpretation was announced. To defer to the agency’s interpretation in this circumstance would seriously undermine the principle that agencies should provide regulated parties “fair warning of the conduct [a regulation] prohibits or requires.” … Indeed, it would result in precisely the kind of “unfair surprise” against which our cases have long warned…Our practice of deferring to an agency’s interpretation of its own ambiguous regulations undoubtedly has important advantages, but this practice also creates a risk that agencies will promulgate vague and open-ended regulations that they can later interpret as they see fit, thereby “frustrat[ing] the notice and predictability purposes of rulemaking.” Talk America, Inc. v. Michigan Bell Telephone Co., 564U. S. ___, ___ (2011) (SCALIA, J., concurring)

The citation to Justice Scalia’s opinion in Talk America is interesting because in it Scalia expresses well-founded doubt that Auer should still be the law:

[W]hen an agency promulgates an imprecise rule, it leaves to itself the implementation of that rule, and thus the initial determination of the rule’s mean­ing. And though the adoption of a rule is an exercise of the executive rather than the legislative power, a properly adopted rule has fully the effect of law. It seems contrary to fundamental principles of separation of powers to per­mit the person who promulgates a law to interpret it as well. “When the legislative and executive powers are united in the same person, or in the same body of magis­trates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact ty­rannical laws, to execute them in a tyrannical manner.” Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151–152 (O. Piest ed., T. Nugent transl. 1949).

Deferring to an agency’s interpretation of a statute does not encourage Congress, out of a desire to expand its power, to enact vague statutes; the vagueness effectively cedes power to the executive. By contrast, deferring to an agency’s interpretation of its own rule encourages the agency to enact vague rules which give it the power, in future adjudications, to do what it pleases. This frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.

Although SmithKline Beechum Corp. does not overturn Auer, it shows that Auer deference rests on a shaky footing with the current Court. Perhaps we’ll see an end to this unduly deferential standard in the near future.