Topic: Government and Politics

Amash Note on Impeachment

On May 18, in the first of three long Twitter threads, Rep. Justin Amash (R-MI) announced his conclusion that “President Trump has engaged in impeachable conduct.” That tweetstorm unleashed a… different kind of storm from his fellow Republicans. The self-styled House Freedom Caucus voted unanimously to condemn Amash, an irate Michigan state rep. announced he’d challenge the congressman in the GOP primary, and, of course, there was President Trump, fuming that Amash is “a total lightweight” and “a loser who sadly plays right into our opponents hands!”  

About the only GOP officeholder with anything nice to say was Sen. Mitt Romney (R-UT). Romney made sure to emphasize his disagreement with Amash, but praised him for “a courageous statement.” Coming from the on-again, off-again Trump critic, “courageous” sounded a bit like a tell (subtext: “I wish I had the guts!”).

Whatever one thinks of President Trump or the other personalities involved, the scope of high crimes and misdemeanors is a constitutional question, and shouldn’t be analyzed through a Red or Blue lens. As I argue in my recent Cato study on impeachment, Indispensible Remedy, if you raise the bar to save a president you like—or lower it to nail one you hate—you may come to regret it when power changes hands.

Amash, who’s long used social media to explain the constitutional reasoning behind the positions he takes, makes a number of claims about the scope of Article II, section 4. As it happens, he has a better grasp of the constitutional issues surrounding impeachment than most of his colleagues on both sides of the aisle. I’ll highlight and elaborate on a few of his key points below. 

Wherefore the Freedom Caucus?

In a column for Reason Magazine yesterday, Matt Welch asks “What’s the point of a ‘limited government’ bloc that doesn’t limit government?” Indeed, in the Trump era some of the President’s most strident defenders can be found amongst the ranks of the Freedom Caucus, and, as my colleague Chris Edwards points out, they seem every bit as comfortable with big deficits as the other fiscal-conservatives-cum-spendthrifts in the GOP.

But, to my knowledge, nobody has yet performed a systematic analysis of the Freedom Caucus’ voting behavior vis-a-vis other Republicans in the House. Do they, as a caucus, even vote cohesively? If so, are they at all differentiable from generic Republican House members? I set out to test this using the NOMINATE methodology to assign an “ideal-point” estimate for each member of the House during the modern era of Republican dominance (2011-2018). For a quick explainer on NOMINATE, see this page. The basic upshot is that it will differentiate members of Congress according to their voting patterns, along two dimensions, with the x-dimension being dimension of primary importance and capturing inter-party variation. Democrats tend to have negative scores on the x-dimension, and Republicans tend to have positive scores. The y-dimension captures intra-party variation. The sign is arbitrary, but the inter-point distance is meaningful. I’ve labeled everyone who appears on the “membership” list on the Freedom Caucus wikipedia page. 

First, let’s look at all final passage votes over this period, regardless of substantive topic (this excludes votes such as amendments and procedural votes).

passage.png (862×550)

Freedom Caucus members are clearly differentiable from generic Republicans, and predominantly occupy the upper-right quadrant. 

Now, let’s generate ideal point estimates over subsets of all substantive rollcalls (amendments, procedure, etc.) pertaining to certain select topics:

domestic_appropriations.png (862×550)entitlements2.png (862×550)

environment.png (862×550)defense.png (862×550)

Across each of these rollcall subsets, Freedom Caucus members are differentiable from other House Republicans, and consistently occupy the upper-right quadrant (note: comparing the substantive implications of these two dimensions across subsets is difficult. Nonetheless, Freedom Caucus members are distinct in some sense).

 It’s worth noting that on procedural votes, House leadership exercises more effective discipline on its members. This is consistent with the political science literature (Cox and Poole 2002). For example, look at the pattern on motions to recommit:

 recommits.png (862×550)

While the substantive implications of the above graphs aren’t clear as of yet, I don’t think we can so easily dismiss the Freedom Caucus as generic Republicans. 

 

The Coming “Stimulant Crisis?”

Earlier this month the Centers for Disease Control and Prevention, in the Morbidity and Mortality Weekly Report (MMWR), reported that from 2015-2016 deaths from cocaine and psychostimulants (such as methamphetamine, Ritalin, dextroamphetamine) increased 52.4 percent and 33.3 percent respectively. In 2017, the CDC reported a total overdose rate of 70,237, and cocaine was involved in 19.8 percent of those deaths while other psychostimulants were involved in 14.7 percent. Opioids, primarily synthetic (fentanyl and fentanyl analogs), were found in 72.7 percent of the cocaine deaths and 50.4 percent of the other psychostimulant deaths. The report mentioned that provisional 2018 data indicate deaths involving cocaine and other psychostimulants are continuing to increase.

As I have written here and here, deaths related to cocaine, methamphetamine, and other psychostimulants have been on the rise for several years now, despite legislation in 2005 that was supposed to address the problem, and recently fentanyl has replaced heroin as the drug with which they are combined to make a “speedball”—a mixture aimed at reducing the negative “come-down” effects after the rush from the stimulant.

The most important sentence in the CDC report was this: “Increases in stimulant-involved deaths are part of a growing polysubstance landscape.” This should be viewed in the context of a recent study from the University of Pittsburgh that concluded:

The U.S. drug overdose epidemic has been inexorably tracking along an exponential growth curve since at least 1979. Although there have been transient periods of minor acceleration or deceleration, the overall drug overdose mortality rate has regularly returned to the exponential growth curve. This historical pattern of predictable growth for at least 38 years suggests that the current opioid epidemic may be a more recent manifestation of an ongoing longer-term process. This process may continue along this path for several more years into the future…Indeed, it is possible that a future overdose epidemic may be driven by a new or obscure drug that is not among the leading causes of drug overdose death today. Understanding the forces that are holding multiple sub epidemics together onto a smooth exponential trajectory may be important in revealing, and effectively dealing with, the root causes of the epidemic.

New Study on Fiscal Federalism

The federal government spends $750 billion a year on 1,386 different subsidy programs for state and local governments. The number of aid programs has tripled since the 1980s as shown in the chart below.

My new Cato study describes 18 harmful effects of the federal aid system. The system undermines responsible and efficient governance. It encourages excessive and misallocated spending. And it reduces accountability for failures while generating costly bureaucracy and regulations.

The federal aid system stifles healthy policy diversity and undermines democratic control. And by imposing one-size-fits-all policies when there is no national consensus, the aid system divides society and increases political conflict.

 

Read the full study here

Trump Isn’t Only “Constitutional Crisis” Afflicting Congressional Oversight

Earlier this week, Vox’s Sean Illing asked 10 law professors whether President Trump’s sweeping refusal to cooperate with congressional investigators has plunged the nation into “a constitutional crisis.”  I recommend the article, and I also observe that I’m 100% on Congress’s side regarding the legitimacy of its information queries. Indeed, I’m with my colleague Gene Healy, who has rightfully Tweeted that, “#ExecutivePrivilege is something judges just made up out of penumbras and emanations of Article II.”

For this post, however, I argue that congressional oversight, per se, is in its own state of “constitutional crisis” wholly independent from Trump. Specifically, I will make two claims. First, I explain why congressional oversight always has been sub-optimal. Then, I explain why contemporary oversight is acutely awful.

Even decades ago, when Members of Congress were policy savants relative to now, congressional oversight was known as the body’s “neglected duty.” In a famous 1984 article, Professors Mathew McCubbins and Thomas Schwartz lent a conceptual framework to explain this inadequacy. Their core insight was to identify two types of congressional behavior regarding oversight. The first was the “police patrol,” which describes ongoing monitoring of the law’s execution. The second type was “fire alarm” oversight, by which the professors meant that lawmakers snap to attention only when hot-button issues become sufficiently politicized.

Quite obviously, the “police patrol” method is superior because, if it is done faithfully, then such supervision could head off the crises that lead to “fire alarms.” Nevertheless, the “fire alarm” approach takes less work, and it reaps more political currency in the form of attention. Due to these incentives, Congress has underinvested in oversight for as long as legislators have delegated power to execute the law.

In this manner, oversight was shortchanged in Congress during the first three quarters of the Twentieth Century. Back then, however, a decentralized power structure within the legislature provided a counter-incentive for the use of preferable “police patrol” techniques. As I explained in a prior post, Members of that period cared about policy because policy chops were necessary to succeed in Congress. At that time, committees and subcommittees competed with the president to manage administrative agencies, and, as with life generally, competitors do their homework.

Starting in the 1980s, however, power in Congress shifted from committees to party leadership. Many factors were at play in causing this change. Crucially, congressional leaders, such as Reps. Tip O’Neil and Newt Gingrich, altered the rules to facilitate centralization. The modernization of mass media played another important role, in that it allowed to party leadership to push a national message. Finally, recurrent impasses with the president over spending and budgets—known as the “fiscalization” of politics—facilitated the centralization of power by creating the necessity for high-level negotiations, which, naturally, would be conducted by congressional leaders and thereby enhanced their power accordingly.

Due to this shift, partisan affinity now trumps institutional prerogative, such that one party loses interest in oversight whenever “their guy” occupies the White House. Also due to the shift to centralized power, Members of Congress know less about policy-making because there’s little incentive to have such knowledge. Each of these factors works to undermine the occasion and performance of “police patrol” superintendence of the administrative state.

Yet the current contretemps between Congress and the Trump administration reveals that the legislature’s oversight function has withered further, such that “fire alarm” investigations, too, are falling by the wayside. To be precise, they’ve altered from an inferior form of oversight (relative to “police patrols”) to a worthless form.

Historically, “fire alarm” oversight pertained to catastrophes or governing scandals. In either case, the investigatory lodestar was reform. That is, congressional investigations traditionally sought to discern how something bad happened, and then how to try to make sure it doesn’t happen again. Even investigations that don’t easily fit this usual framework—such as Watergate—shared a nexus with governmental reform. Nixon’s excesses inspired institutional responses, including the 1974 Budget and Impoundment Control Act and the 1977 Legislative Reorganization Act.

As I survey the current landscape of fire-alarm investigations, I see a qualitatively different application in the present day. When it comes to resource allocation for oversight, I can think of any number of “fire alarms” to sound, including:

  • The reported possibility of war (!!) with Iran;
  • The president’s declaration every other day of a fake “national emergency” to get what he wants without Congress getting in the way; and,
  • The EPA sneaking a major New Source Review regulation into the (unrelated) revision of an Obama-era climate rule.

Despite these—and many more—worthy targets for serious congressional oversight by opponents of the Trump administration, House leadership is pouring resources into getting Trump’s tax returns and relitigating the Mueller Report. I find Trump as off-putting and dangerous as anyone, but these strike me as the silliest possible subjects for oversight.

On the one hand, I think these investigations don’t inform anyone. Who doesn’t think Trump would fire subordinates—and then Tweet about it—to head off an investigation? And who doesn’t think Trump exaggerates his wealth all the time? Notwithstanding these qualities, which are baked into Trump’s brand, the American people elected him president, alas. The upshot is that I’m not convinced that these investigations bring much new to the table.

More importantly, I fail to see any prospect for reform. Neither of these investigations bears any relationship to a specific policy outcome. It’s all about Trump, the man, and none about Trump, the policymaker. Nor am I sanguine about the prospect that these investigations ultimately could inspire institutional reforms the way that Watergate did. Well into the third year of this presidency, I have not once seen the democrats reach out to Never-Trumpers to explore curbing the power of the office. Instead, the majority in the House seems to want only to damage Trump politically, and otherwise maintain the president’s power for when their party takes control.

In sum, I wholeheartedly support Congress’s right to information from President Trump, but I also bemoan its present use of that right.

Federal Disaster Spending Boosted by Politics/Population

Despite rising federal deficits, Congress is set to pass another budget-busting spending bill. This time it is a $19 billion package of disaster-related subsidies.

The Washington Post reports “taxpayer spending on U.S. disaster fund explodes.” It documents increases in disaster spending by the Federal Emergency Management Agency (FEMA). In a typical recent year, “spending on the federal disaster relief fund is almost 10 times higher than it was three decades ago, even after adjusting for inflation.”

The story identifies two causes of the spending increases: climate change and population growth in disaster-prone areas. But it ignored perhaps the most important cause: increased federal intervention in the sorts of emergencies that used to be handled by the states, as I discuss here.

The Post is correct that more Americans are moving into disaster-prone areas:

Many more Americans have moved into harm’s way, with growth exploding in the Gulf Coast region and along the Continental Divide, where tornadoes frequently occur, according to a study on the “expanding bull’s eye effect” by Stephen M. Strader of Villanova University and Walker S. Ashley of Northern Illinois University.

Since 1970, 35 million more people and their homes have moved to coastal shoreline “in the direct path of potentially devastating storm surges,” the researchers found, a 40 percent increase.

“We’ve put more stuff in the wrong place the wrong way,” said W. Craig Fugate, a former FEMA administrator under President Barack Obama. “We’ve got a lot more stuff — bigger houses, multiple cars, more people — in high-hazard areas.”

More people are also living in fire-prone areas of California.

The Post does not explore an important reason why Americans are moving into these areas: government subsidies. Federal subsidies for flood insurance, flood control structures, beach replenishment, and disaster rebuilding have encouraged development in coastal areas, as I discuss here. Meanwhile, state policies have contributed to building in California’s fire-prone areas.

American governments are not alone in pursuing policies that increase disaster hazards. A World Bank / United Nations study identified such policies in numerous countries and discussed market-based reforms to mitigate risks.

In the United States, federalism is supposed to undergird our system of handling disasters, particularly natural disasters. Under the 1988 Stafford Act, the federal government is supposed to get involved in disasters only if they are of “such severity and magnitude that effective response is beyond the capabilities of the state and the affected local governments.”

However, presidents and congresses have increasingly ignored this limit. The number of presidential disaster declarations has soared and the costs of disaster bills have increased as politicians shoe-horn subsidies unrelated to immediate emergency response into bills.

Growing federal intervention is undermining the role of the states and private institutions in handling disasters. This intervention stems from politics not practical benefits. State and local governments and the private sector are better positioned to handle most disaster response. Also, states, cities, and private utilities aid each other during disasters.

Rising FEMA spending is not a good metric for measuring the severity of natural disasters striking the United States. Rather, it reflects growing populations living in risky areas and growing disregard for federalism in disaster-related response and rebuilding.

The Federal Election Commission Is Bad Enough

Chris Hughes, a founder of Facebook, has proposed Congress create a new agency to “create guidelines for acceptable speech on social media.”

As Hughes notes, this proposal “may seem un-American.” That’s because it is. At the very least, Hughes’ plan contravenes the past fifty years of American constitutional jurisprudence, and the deeply held values that undergird it. Let’s examine his case for such a momentous change.

He notes that the First Amendment does not protect all speech. Child porn and stock fraud are not protected by the First Amendment. True threats as harassment are also illegal. Incitement to violence as understood by the courts can also be criminalized. All true, though more complex than he admits.

The fact that the courts have exempted some speech from First Amendment protection does not mean judges should create new categories of unprotected speech. Hughes needs to make a case for new exemptions from the First Amendment. He does not do so. Instead he calls for an agency to regulate online speech. But, barring drastic changes to First Amendment jurisprudence, his imagined agency would not have the authority to broadly regulate Americans’ speech online.

However, Hughes’ old firm, Facebook, can and does regulate speech that is protected from government restrictions. In particular, Facebook suppresses or marginalizes extreme speech (sometimes called “hate speech”), “fake news” about political questions, and the speech of foreign nationals.

Facebook is not covered by the First Amendment.  You can support or decry their decisions about such speech, but it would be “un-American” to say Facebook and other private companies do not have the power to regulate such speech on their platforms. And I might add that you can exit Facebook and speak in other forums, online and off. A federal speech agency would not be so easily avoided.

Hughes may think that Facebook is doing a poor job of regulation and that its efforts require the help of a new government agency (which would be subject to the First Amendment). But if we ended up with government speech codes imposed by private companies, the courts might well swing into action on the side of free speech. In that sense, the new agency would actually vitiate private efforts at content moderation. We might well end up with more of the online speech Hughes and other critics want to restrict.

In sum, Hughes’ agency is a bad idea in itself. It is unlikely to accomplish his goals. The agency might even weaken private efforts to limit some extreme speech. Of course, if judicial doctrines changed to accommodate new speech restrictions imposed by this new agency, America really would change for the worse. It is encouraging, however, how little support and how much criticism Hughes’ proposal has received from his fellow Progressives. (See the critiques by Ari Roberts and Daphne Keller linked here).   Conservatives should feel free to chime in.

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