Topic: Cato Publications

Is the Stormy Daniels Payoff an Impeachable Offense?

As you’ve no doubt heard by now, on Tuesday, Michael Cohen, President Trump’s erstwhile “fixer,” pled guilty to, among other charges, making an illegal campaign contribution in the form of a $130,000 “hush money” payment to adult film star Stormy Daniels. That payment was made, Cohen affirmed, “at the direction of a candidate for federal office”—Donald J. Trump—“for the principal purpose of influencing the election.” 

If that’s true, would Trump’s participation in that scheme rise to the level of “high Crimes and Misdemeanors”? Maybe: you can argue it both ways, so I will.

The case against the Stormy payoff as impeachable offense would characterize it as the sort of de minimis legal violation impeachment isn’t concerned with. Just as you don’t need a crime to have an impeachable offense, the commission of a crime doesn’t automatically provide grounds for impeachment. Murder is a crime and an impeachable offense—even according to Rudy Giuliani—but you wouldn’t impeach a president for, say, importing crocodile feet in opaque containers or misappropriating the likeness of “Smokey Bear,” because those offenses don’t speak to his fitness for high office.

Impeachment opponents can argue that the criminal offense alleged here depends on a contested application of the Federal Election Campaign Act. In the 2012 prosecution of John Edwards, three former FEC commissioners testified that third-party payments to Edwards’ pregnant mistress would not have been considered campaign contributions.

The president’s defenders can also—though this may be awkward for some—compare Trump’s troubles to Bill Clinton’s two decades ago: unlawful acts committed as part of a scheme to conceal a private sexual affair. Though many of them sang a different tune in the ‘90s, they can appeal to the dominant historical consensus that impeaching Clinton for that was like wheeling out the proverbial hundred-ton gun to blast a squirrel.

The case that the Stormy payoff is an impeachable offense depends on a different, but equally plausible framing. In Trump’s case, the unlawful act quite plausibly affected the outcome of the 2016 election. Cohen made the payment less than two weeks before Election Day, in what turned out to be an extraordinarily close contest. As Laurence Tribe and Joshua Matz note, the Framers repeatedly identified “corrupt acquisition of the presidency as a paradigm case for impeachment.” One of the Framers’ key concerns was the possibility of a candidate bribing the Electors—an imperfect analogy to what’s alleged in Trump’s case. But impeachment advocates might also point to our most recent impeachment case: Judge G. Thomas Porteous, removed by the Senate in 2010, in part for corrupt acquisition of his post. Article IV of the Porteous impeachment charged the judge with lying to the Senate about his past in order to secure confirmation to the federal bench, thus “depriv[ing] the United States Senate and the public of information that would have had a material impact on his confirmation.”

Jerry Ford went too far when he said that an impeachable offense is “whatever a majority of the House considers it to be at a given moment in history.” Still, the scope of the impeachment power is much broader than is commonly recognized. It covers what Hamilton described as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” As the legal scholar Frank Bowman sums up: “‘high crimes and misdemeanors’ are serious offenses that either endanger the political order or demonstrate an official’s manifest unfitness to continue in office.” That leaves ample room for argument and interpretation. Moreover, while legal analysis may be able to tell you when impeachment is permissible in a given case, it can’t tell you whether it’s a good idea.

The fact that Michael Cohen has potentially implicated Donald Trump in a felony violation of federal election law has increased the president’s chances of facing a serious impeachment effort after November. But if impeachment is about guarding the public from officials dangerously unfit to wield power, “broke the law to pay off a mistress” has to be pretty far down the list behind, say, “makes off the cuff threats of nuclear annihilation.” That any impeachment inquiry will likely spend more time parsing the intricacies of federal election law than examining the president’s public conduct is yet another reason to rue the “Overcriminalization of Impeachment.”

U.S. Maritime Sector Among the Jones Act’s Biggest Victims

Monday of this week marked the Day of the Seafarer, an occasion meant to recognize the critical role played by mariners in the global economy. American seafarers, however, increasingly find little to celebrate. A large source of their travails is the Jones Act. Signed into law 98 years ago this month, the law mandates that cargo transported between two domestic ports be carried on ships that are U.S.-built, U.S.-owned, U.S.-flagged, and U.S.-crewed.

The harm caused by this law is well documented. By reducing competition from foreign shipping options and mandating the use of domestically built ships that are vastly more expensive than those constructed elsewhere, the Jones Act has raised transportation costs and served as a de facto tax on the economy.

Too often overlooked is that the Jones Act has also presided over the decimation of the U.S. maritime sector, the very industry whose fortunes it was meant to promote (an age-old story in the annals of protectionism). The numbers speak for themselves. Since 2000 the number of oceangoing vessels of at least 1,000 tons which meet the Jones Act’s requirements has shrunk from 193 to 99. A mere three U.S. shipyards are capable of producing oceangoing vessels for commercial shipping, and one of them, the Philly Shipyard, is facing a possible shutdown. Europe, in contrast, has roughly 60 major shipyards capable of building vessels of at least 150 meters in length, while the United States has a total of seven such shipyards when those producing military vessels are included.

Both the declining number of Jones Act ships and the struggles of the shipyards that build them are in large part explained by the vastly inflated cost of ships constructed in the United States. According to the Congressional Research Service, American-built coastal and feeder ships—the types of ships commonly used in domestic sea transport—cost between $190 and $250 million, whereas similar vessels constructed in a foreign shipyard cost about $30 million.

One unsurprising consequence of such stratospheric costs is a reluctance on the part of domestic shipping firms to invest in new ships, with U.S. seafarers forced to work aboard vessels that are significantly older than those found in other countries. Excluding tankers (these vessels were subject to a requirement in the wake of the Exxon Valdez oil spill that they be double-hulled by 2015, thus encouraging the purchase of new ships and decreasing their average age), the Jones Act fleet averages 30 years of age—fully 11 years older than the average age of a ship in the merchant fleet of other developed countries. For context, the maximum economic life of a ship in the world market is typically 20 years

International comparisons of specific ship types are even more eye-opening. Jones Act containerships, for example, average more than 30 years old. The international average is 11.5. The only two bulk ships in the Jones Act fleet average 38 years old, while the international average is 8.8. General cargo ships average 34 years of age compared to an international average of 25.2.

Struggling shipyards, a dwindling fleet of old ships, and fewer jobs are now the order of the day in the maritime sector. As Mark H. Buzby, head of the U.S. Maritime Administration, testified before Congress earlier this year, “over the last few decades, the U.S. maritime industry has suffered losses as companies, ships, and jobs moved overseas.” Also addressing members of Congress, one senior union official admitted that “the pool of licensed and unlicensed mariners has shrunk to a critical level.”

This is not a new story. During Operations Desert Shield and Desert Storm, the United States was so desperate for civilian mariners to crew transport vessels that it enlisted the services of two octogenarians and one 92-year-old. Its search for ships was equally frantic, resulting in two requests to borrow a ship from the Soviet Union—and two rejections. Notably, during this conflict a much larger share of U.S. military equipment and supplies was carried by foreign-flagged vessels (26.6 percent) than U.S.-flagged commercial vessels (12.7 percent).

Supporters of the Jones Act often claim the law is vital to assure a strong merchant marine capable of answering the country’s call in times of war or national emergency. Should the Jones Act be repealed, they warn that the maritime industry will enter a dangerous downward spiral. But the record clearly shows that their nightmare scenario, in fact, describes the status quo. It’s time for this law to go, or be significantly reformed.

Toward that end the Cato Institute has unveiled its Project on Jones Act Reform, which will feature a series of policy papers exposing the fallacies and realities of this archaic law. The first of these policy analyses, The Jones Act: A Burden America Can No Longer Bear, is now available and provides an overview of the law, its history, and myriad shortcomings. More such policy analyses will follow both this year and next, along with other commentary pieces about this failed law, so be sure to check back for the latest updates. 

The “Success Sequence” - What Does It Tell Us?

One story about poverty in the United States goes like this: Poverty is simple to escape. Finish high school. Get a job, even a menial one. Do not have kids until you’re married. And if you do all these things, you’re pretty unlikely to be poor.

Conservatives like this story because it suggests that no significant social changes are needed to end poverty. On this view, poverty may even be just a personal choice. It’s largely up to you whether you follow the so-called “success sequence” or not.

Critics, though, are quick to point out that the success sequence is much easier described than followed, and that following it is much easier for some people than for others. Failing or dangerous schools offer little reason for students to remain. Getting a job is easier in some places than others, and easier for some types of people than others. In some communities, marriage partners are all too few. And avoiding having children is a lot to ask, because it’s a natural human desire to want to have them.

If the success sequence doesn’t hold up so well, what do we do about it? And what specifically libertarian steps remain to be done to fight poverty?

This month at Cato Unbound, we’re debating the usefulness of the success sequence as a tool for thinking about American poverty. Cato Senior Fellow Michael Tanner has written the lead essay, which I encourage you to read. Comments are open, and we welcome readers’ feedback. Discussion with a panel of diverse outside experts will continue through the end of the month.

Public Schooling Battles: February Dispatch

February is a short month, so March caught me by surprise. Hence the late Dispatch. But if February had 31 days, it would be like this came out on March 11. Not that bad, right? Anyway, on with the February battles, which are heavy on books, slavery lessons, and…dances.

  • Books: February saw three new book challenges: Both The Adventures of Huckleberry Finn and To Kill a Mockingbird were removed from required reading lists in Duluth, MN; Stick was removed from all classrooms and libraries below the high school level in Beaverton, OR; and The Hate U Give was pulled as an assignment in Springfield, MO. Three of these books are not newly contested territory in our public schools’ constant values and identity-based battles. Huckleberry Finn and To Kill a Mockingbird have been flashpoints for decades—and the latter, several times in the last few months—while we saw a battle over The Hate U Give in Texas in 2017.
  • Slavery illustrations: A teacher in Leander, TX, assigned students to draw pictures of themselves as slaves for homework and to “write one sentence that describes your surroundings using each of the 5 senses.” A New York City teacher made her African-American students lie down on the floor and then she stepped on their backs to try to give them a sense for how slavery felt. Needless to say these things disturbed many parents. But they aren’t the first concerning “immersion” assignments—which seem largely intended to help kids get a better feeling for historical events—we’ve tracked. In just the last few months we’ve also seen two in Georgia and one in Massachusetts.
  • Dances: Conflicts over dress codes at school dances are common—the Map has almost 10 such incidents—but in February we saw two dance-related battles that are much less familiar. Unprecedented, at least as far as the Map indicates, was a conflict in Weber, UT, over a policy prohibiting girls from saying “no” to boys who asked them to dance at a Valentine’s Day event. At issue was disempowering girls versus protecting the feelings of potentially rejected boys. The second battle was in Staten Island, New York, where the annual father-daughter dance was cancelled in an effort to end potentially discriminatory “gender-based” activities. There is only one similar dispute I could find on the Map, a 2012 conflict in Cranston, RI.

Of course there were more battles to check out, including over an offensive science project, the National Anthem, and Cool Runnings. Meanwhile, we have continued to post polls on the Battle Map Facebook page, and utterly dwarfed old voting records with a question, in the wake of the horrific Parkland, FL, school shooting, whether teachers should be able to bring guns to work. Around 5,500 people voted, with 85 percent saying “yes” in answer to “Should a teacher’s right to bear arms extend to the classroom?” 15 percent said “no.” Of course this is unscientific, but it certainly suggests that like so many things, non-negligible percentages of the population can have differing, mutually exclusive views on crucial issues. Which is, of course, why school choice is the only system of education consistent with diversity and liberty.

Public Schooling Battles: December Dispatch

Did we experience heavenly peace in public schools this December? No, but the month tends to be more peaceful than most. With schools typically out for about the latter third of the month, there’s just less time to fight. We also, though, observed something that was out-of-the-ordinary peaceful for the month: no conflicts over Christmas in schools hit our radar. The last time that happened was in 2010. Every other year going back to 2005 we catalogued at least one, and typically three or four, battles over Christmas displays, singing religious carols in concerts, or other Christmas-related flaps. (The Map, by the way, lists years going back to 2001, but we only started collecting in 2005, and any years before that are there because conflicts we found in 2005 or later originated in those years.) Is this absence of acrimony because President Trump ended the war on Christmas? It’s just as likely that he sucked up so many headlines that less reporting was directed at Yuletide tiffs, but it could also be there just weren’t any significant Christmas battles in public schools this year.

Of course, there were some battles, including a couple of trends:

  • Dress Codes: This was also a trend in November, and in December it included an Iowa district dress coding a cancer patient who wore a knit beanie after a round of chemotherapy, and a girl in Kentucky who was sent home for an exposed collarbone.
  • Teacher Language: In New York City, a teacher who is also a comedian, and whose act is about her experiences as an educator, came under fire because part of her show involved her quoting an unidentified child saying, “Yo, n—a. What’s poppin’?” Meanwhile, a Colorado teacher was placed on administrative leave for writing on the classroom whiteboard, “I want to kill children but I am a loving Christian man who never would hurt a flee (sic) so please sit down and read.” Some parents believed it was a joke and supported the teacher.

Perhaps the biggest headline-grabbing incident of the month was the firing of a teacher in Utah for, he says accidentally, allowing grade school children to see some famous nude paintings, setting off a dispute over where art ends and indecency—or age inappropriateness—begins. This does not constitute a trend—there are no similar fights over nude paintings in the Battle Map database—which is perhaps a bit of a surprise. It could be, like teaching rigorous evolution, that most art teachers skip nudes to avoid controversy. Or perhaps most art taught in schools simply never reaches that level of sophistication. Or maybe people just aren’t that uncomfortable with nude paintings.

No matter what the reason for the dearth of art vs. decency battles, our newest (unscientific) poll on the Battle Map Facebook page asks whether schools should show nude paintings or sculptures in class. (By the way, you’ll love Venus’s shirt.) Vote now! Earlier December polls found 79 percent of respondents opposing corporal punishment in schools and 21 percent supporting it; 65 percent saying public schools should “formally recognize Christmas with displays, songs, or parties” and 35 percent opposing; and 74 percent believing that 2018 will be even more contentious in public schools than was 2017.

Will that 74 percent be correct? Stay tuned!

82% Say It’s Hard to Ban Hate Speech Because People Can’t Agree What Speech Is Hateful

An overwhelming majority (82%) of Americans agree that “it would be hard to ban hate speech because people can’t agree what speech is hateful,” the Cato 2017 Free Speech and Tolerance Survey finds. Seventeen percent (17%) disagree. Majorities across partisan and demographic groups alike agree that hate speech is hard to define and thus may be hard to regulate.

Full survey results and report found here.

How Do Americans Define Hate Speech?

When presented with specific statements and ideas, Americans can’t agree on what speech is hateful, offensive, or simply a political opinion

Besides slurs and biological racism, Americans are strikingly at odds over what speech and ideas constitute hate.[1] For instance, a majority of Democrats (52%) believe saying that transgender people have a mental disorder is hate speech. Only 17% of Republicans agree. On the other hand, 42% of Republicans believe it’s hateful to say that the police are racist, while only 19% of Democrats agree.

Among all Americans, majorities agree that calling a racial minority a racial slur (61%), saying one race is genetically superior to another (57%), or calling gays and lesbians vulgar names (56%) is not just offensive, but is hate speech. Interestingly a majority do not think calling a woman a vulgar name is hateful (43%), but most would say it’s offensive (51%). Less than half believe it’s hateful to say that all white people are racist (40%), transgender people have a mental disorder (35%), America is an evil country (34%), homosexuality is a sin (28%), the police are racist (27%), or illegal immigrants should be deported (24%). Less than a fifth believe it’s hateful to say Islam is taking over Europe (18%) or that women should not fight in military combat roles (15%).

20% of College Students Say College Faculty Has Balanced Mix of Political Views

The Cato 2017 Free Speech and Tolerance Survey finds only 20% of current college and graduate students believe their college or university faculty has a balanced mix of political views. A plurality (39%) say most college and university professors are liberal, 27% believe most are politically moderate, and 12% believe most are conservative.

College Democrats Less Likely Than Republicans to Think Faculty Is Liberal

Democratic and Republican students see their college campuses very differently. A majority (59%) of Republican college students believe that most faculty members are liberal. In contrast, only 35% of Democratic college students agree most professors are liberal. Democratic students are also about twice as likely as Republican students to think their professors are moderate (32% vs. 16%) or conservative (14% vs. 9%).

Full survey results and report found here.

College Students Agree Student Body is Liberal

Current students believe that most of their campus’ student body is liberal. Fifty-percent (50%) believe that most students at their college or university are liberal, 21% believe most are moderate, 8% believe most are conservative, and 19% believe there is a balanced mix of political views.

Democratic and Republican students largely agree on the ideological composition of their campus student body.

Consequences of Campus Political Climate

These perceptions of ideological homogeneity on college campuses may explain why 72% of Republican college students say the political climate prevents them from saying things they believe because others might find them offensive. About a quarter (26%) of Republican college students feel they can share their political views.

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