Topic: Government and Politics

#OpenGov and the Road from Serfdom

i-want-to-believeLike Jim, I watched this morning’s Open Government Initiative launch with an eyebrow reflexively arcing skyward. Like Fox Mulder, I want to believe, but it’s not just the track record that gives me pause; it’s the tension in one of Vivek Kundra & Aneesh Chopra’s answers to a pointed question that came in from the Web: How do you actually implement this? How do you get all the agencies on board, persuade (or compel) them to open up, embrace openness, and free their data?  Because the public pitch is that the great benefit of open government is accountability, which requires information that may reflect badly on an agency and generate bad publicity to be released. But since they’re limited in their ability to enforce this on an alphabet soup of agencies, the pitch to leaders within government is: Imagine how cool it would be to have the entire population as your clickworkers.  So transparency is carrot and stick in one—a carrot stick, if you will: Take a nibble between thrashings, it’s delicious! This is not totally crazy, since there will probably be data whose release opens an agency to greater scrutiny, but still benefits them on net because it lets some tasks be offloaded to the cloud. But insofar as those two things come apart, it’s not hard to guess which one agencies will want to focus on, and the mandate to ensure “data quality” makes a good stock excuse for withholding.

I don’t want to be entirely cynical, though, because openness—as I’ve harped on before, and as Jim often stresses—can be an important structural limitation on government.  And if I can riff for a moment, I think it’s worth distinguishing two aspects of “limited government” through the lens of the argument F.A. Hayek makes in his seminal The Road to Serfdom. Very crudely, the idea goes something like this: As government takes on responsibility for ever more complex forms of planning, via a growing tangle of interdependent rules, it becomes increasingly difficult for that power to be checked  by democratic mechanisms.  Expansion in the scope of state authority goes hand-in-hand tends to be associated with more centralized, opaque, and autocratic exercise of that authority, compounding the disempowerment of ordinary citizens. Call them, if you want to be dramatic, the Orwell problem and the Kafka problem, respectively. But state functions that are not amenable to democratic oversight by the crowd may be amenable to peer-produced oversight by the cloud. Libertarians focus—with good reason—on limiting the scope of state power, which we might think of as a kind of external boundary.  The internal boundaries are at least as important. But folks who are centrally concerned about limited government don’t often choose a career in the federal bureaucracy, and the ones who get elected to office, let’s face it, often lack the skill and disposition for the nitty gritty details of governance.

One implication of this is that a more open and networked government, if it ever does come about, may demand a disorienting cultural shift of libertarians—where on top of the big political-philosophy level ideas, it begins to behoove us to pick a pet agency and get interested in the profoundly unsexy details of how it operates. It lacks the frission of taking to the streets quoting Paine, to be sure, but at least engagement no longer demands more pernicious incentives—either venal or, heaven forfend, idealistic.

It’s Stossel Thursday

Yes, folks, it’s the moment we’ve all been waiting for: John Stossel launches his new weekly show on the Fox Business Network Thursday evening at 8 p.m. (Even though the vaunted Fox News machine can’t seem to put a notice about it on their website, I have it on good authority that the show will go on!) Rumor is he’ll be talking about Ayn Rand on the first show. It’s a good time for a show about freedom and limited government – as the Baltimore Sun says, “Stossel’s new show should have no trouble finding an audience of viewers eager for a discussion about the pedal-to-the-metal pace of expansion [of government] since Barack Obama took office.”

Some people ask, Why give up ABC for the smaller Fox networks? (Presumably, these are not the same people who asked Stossel for years, “Why don’t you go to Fox?  They’d love you there.”) The good news is that now Stossel has an hour a week to talk about freedom – as well as appearances on other Fox shows such as Beck and O’Reilly. His hour-long specials at ABC were excellent, and drew solid ratings, but ABC hasn’t put one on in more than a year. And even his “Give Me a Break” segments on 20/20 had become rare. So what’s the point in being part of a big but declining network that isn’t actually interested in serious political commentary? Now he’s on a smaller but growing network that wants him to do 44 hours of pointed commentary and analysis, plus contribute to other shows.

If you haven’t seen Stossel’s ABC specials, you need to. I can never decide which one I think is best. Of course, I’m partial to “John Stossel’s Politically Incorrect Guide to Politics,” in which I get a bit of screen time. But “Greed,” with Walter Williams, David Kelley, and Ted Turner, is great, too. And so is “Is America #1?,” featuring Tom Palmer. But there were plenty of others – “Stupid in America,” “Are We Scaring Ourselves to Death?,” “John Stossel Goes to Washington,” “Sex, Lies, and Consenting Adults.”

You can view some of them, including “Is America #1?,” at a website called Freedom Channel. And for the time being, at least, you can still watch lots of shorter Stossel videos at ABC News.

But meanwhile – tell your mama, tell your pa, to watch “Stossel” this Thursday at 8 p.m. on Fox Business Channel. And note: it will repeat at 10 p.m. Friday, giving you a chance to show ABC what they lost by watching “Stossel” instead of “20/20.”

On Transparency, Talk Trumps Action

In the heady first days of the administration, President Obama issued a memorandum on transparency and open government that seemed it would set the ship of state on a course for transparency, participation, and collaboration. Many people expected that within the 120-day time-frame stated in the memo, the administration would issue the “Open Government Directive” it called for.

Well, 120 days from January 21 was May 21—and 200 days after that, we are finally going to see that open government plan. An announcement of it will be streamed live on the White House web site at 11:00 am.

It turns out that administrators didn’t fall woefully behind on President Obama’s instructions. His memorandum directed the not-yet-appointed Chief Technology Officer and others “to coordinate the development by appropriate executive departments and agencies, within 120 days, of recommendations for an Open Government Directive …” It was an instruction to coordinate on the writing of a directive, and within 120 days, people were surely coordinating.

Given the exciting campaign mantra of “change,” one could forgive people expecting the administration to set its course for good governance early. How un-change-like it is that nearly a quarter of the way through President Obama’s term (an eighth if he’s reelected), with old habits established and unlikely to be dislodged, we finally get that “open government plan.”

If only this good-government priority had been pursued as steadfastly as President Obama’s big-government priorities.

While coordinating and planning has gone on, President Obama has specifically declined to carry out an open government promise he made on the campaign trail. In fact, more than 100 times since he has been in office, he has declined to post online the bills sent him by Congress for five days of public review before he signs them. I’ll put up a new chart covering all the laws President Obama has signed sans sunlight later today.

Since I last wrote about this favorite topic, I learned of a new development, however. At some point earlier this year, the White House began posting links on Whitehouse.gov to bills that were heading its direction, a half-measure the White House told the New York Times it would take.

I failed to notice the existence of these pages, but I think it is forgivable error. There is no uniform structure to them, and there is no link I can discover on Whitehouse.gov that would bring anyone to them.

Based on my spot-checking, they haven’t been crawled by any search engine, so the only way a person could find them is by searching on Whitehouse.gov for phrases on the yet unseen pages or by searching the House or Senate bill numbers of bills that you know to look for because they have already passed into law.

This doesn’t fulfill the spirit of the Sunlight Before Signing pledge. It doesn’t give the public an opportunity to review final bills and comment before the president signs them. I doubt if a single one of the people who cheered when President Obama made his Sunlight Before Signing pledge has visited one of these pages and commented to the president as he told them they would be able to do.

There are further curiosities: The pages themselves are undated, but their “posted” dates, which appear in search results, are sometimes well beyond the date on which they became law. A Whitehouse.gov search for H.R. 2131, which became Public Law 111-70 on October 9th, shows that it was posted for comment on October 23rd.

Today the White House announces plans for dramatic steps forward on government transparency. But the steps it could have taken starting on day one remain promises unfulfilled. President Obama’s “Sunlight Before Signing” campaign pledge breaks every time he signs a bill without posting its final version at Whitehouse.gov for five days of public review before signing it.

Timber Payments and Logrolling

Since 1908, the U.S. Forest Service has paid 25 percent of its gross receipts to the states for spending on roads and schools in the counties where national forests are located. In the Pacific Northwest, receipts started to decline in the late 1980s due to lower timber sales as a result of efforts to protect the spotted owl. In 1993, Congress responded with additional “spotted owl payments” to the affected states. A 2000 law spread these payments to all national forests, but the bulk continued to go to the Pacific Northwest.

When the law was reauthorized last year, members of Congress used it as an opportunity to grab money for their states. According to the Associated Press:

The federal largesse initially focused on a handful of Western states, with Oregon alone receiving nearly $2 billion. Spending of that magnitude, though, sparked a new timber war – this one among politicians eager to get their hands on some of the logging money. A four-year renewal of the law, passed last year, authorizes an additional $1.6 billion for the program through 2011 and shifts substantial sums to states where the spotted owl never flew. While money initially was based on historic logging levels, now any state with federal forests – even those with no history of logging – is eligible for millions in Forest Service dollars. Doling out all that taxpayer money is based less on logging losses than on the powerful reality of political clout.

Democratic New Mexico Senator Jeff Bingaman bluntly admitted that the money grab was a result of good ole congressional logrolling:

Of much more important note: New Mexico’s two senators served as chairman and ranking Republican on the Senate committee that rewrote the timber payments formula. New Mexico’s increase under the new formula was 692 percent… Bingaman defended the changes. ‘Frankly we had to broaden the program in order to get the support to go ahead and do a reauthorization, and that’s exactly what we did,’ he said in an interview.

And of course, the porkfest was bipartisan:

Senate Minority Leader Mitch McConnell, R-Ky., was an early backer of the law and provided political cover for Republicans to support it… Timber harvests in Kentucky’s Daniel Boone National Forest have been modest in recent decades – ranging from $7,600 to $77,000 annually – but Clay County, Ky., which includes part of the forest, received $338,510 this year from the timber program, a 341 percent increase.

A Cato essay on the U.S. Forest Service notes that a “reform step would be to revive federalism by eliminating federal forest subsidies to the states and turning portions of the national forests over to the states. Other activities could be privatized… Some experts have proposed full privatization of the national forests.”

Such reforms would help to address the chaotic nature of current forest management through the federal political process, as illustrated by the spotted owl saga.

Big Out-of-Control Government Has Had Better Days at the Supreme Court

This morning at the Supreme Court, the federal government argued for the continued existence of the Public Company Accounting Oversight Board (PCAOB, pronounced peek-a-boo) – and by extension the nefarious financial regulatory scheme known as Sarbanes-Oxley.  Cato filed a brief supporting a free market advocacy group and an accounting firm, who sued PCAOB for violating both the Appointments Clause and general constitutional separation-of-powers principles.

Passed with scant deliberation in the wake of the Enron and WorldCom scandals, the Sarbanes-Oxley Act of 2002 established PCAOB to oversee the accounting practices of the nation’s public companies.  As my piece with Cato legal associate Travis Cushman details today, PCAOB enjoys the rare authority to make its own laws, collect taxes, inspect records, prosecute infractions, make judgments, and impose sanctions.

Traditionally, independent agencies that serve such executive functions must be accountable to the president.  PCAOB members, however, may only be removed “for cause” by members of the Securities and Exchange Commission, who in turn may only be removed “for cause” by the president.  I previously blogged about the case, Free Enterprise Fund v. PCAOBhere, here, and here.

As far as how the argument went, I think the forces of limited constitutional government have eked out a 5-4 victory.  Justices Ginsburg, Breyer, and Sotomayor were extremely hostile to the challengers’ argument, while the Chief Justice and Justices Scalia and Alito were supportive.  (Scalia at one point joked that he had no less power than the president – meaning not very much – to influence PCAOB.)  Justice Stevens only spoke up once but seemed to show a leaning towards the government position.  Justice Thomas, while remaining silent, can be expected to support the view of D.C. Circuit Judge Brett Kavanaugh – whose blistering yet scholarly dissent likely prompted the Court to take up the case.

And so the ruling rests, as often happens with the most interesting cases, on the shoulders of Justice Kennedy.  I remain cautiously optimistic that Kennedy will decide to uphold constitutional checks and balances and strike down what has become an unholy new branch of government.

Two curious notes from the argument: 1. Petitioners’ counsel Michael Carvin referenced Cato’s brief in discussing PCAOB’s overreach internationally – seeking to regulate even foreign accounting standards – without oversight from the State Department or the SEC, let alone the president; 2. PCAOB brought its own lawyer to argue alongside the solicitor general, begging the question: if PCAOB is subservient to the SEC and/or the president, why does it need its own counsel to represent its own views?

All the News That’s Fit to Subsidize

Today, Politico Arena asks:

NPR v. Fox News?

My post:

Do I sense a bit of chutzpa in Politico’s report today that NPR executives have asked their top political correspondent, Mara Liasson, to reconsider her appearances on Fox News because of what the executives perceive as the network’s political bias?  The request would be impertinent if NPR itself were beyond reproach, ideologically, but “fair and balanced” it is not.  It’s a playpen for the left, subsidized by the American taxpayer, exceeded in its biases only by Pacifica Radio, another tax subsidized playpen straight out of the late ’60s.

There’s nothing wrong with a news organization tilting left or right, of course:  let the public then decide, as the Fox News numbers show the public is doing.  (And that, plainly, is what’s behind the White House efforts to marginalize the one network that’s had the audacity to criticize it systematically.)  There is something deeply wrong, however, with asking the public to subsidize that tilt.  NPR and its listeners would be screaming, and rightly so, if the taxpayers were subsidizing Fox News.  Is it any different in their case?  And please don’t say that NPR’s news is “news” – we’re all adults here.  There’s a reason conservatives, mostly, and libertarians want to reduce the reach of government.  It’s because so much of life – from news to education, religion, health care, the arts, and so much more – is fraught with values about which reasonable people can have reasonable differences.   For that, there is only one answer: freedom, including freedom, as Jefferson put it, from having to subsidize views one finds abhorrent.

How Michigan Could Save $3.5 Billion a Year

Michigan is facing a projected $2.8 billion state budget shortfall. As a result, Governor Granholm has cut $212 million from state public school spending – rousing the ire of parents and education officials around the state. But if Michigan merely converted all its conventional public schools to charters, without altering current funding formulas, it would save $3.5 billion.

Here’s how: the average Michigan charter school spends $2,200 less per pupil than the average district school – counting only the state and local dollars. Put another way, Michigan school districts spend 25 percent more state and local dollars per pupil, on average, than charter schools. Sum up the savings to Michigan taxpayers from a mass district-to-charter exodus and it comes to $3.5 billion.

Anyone who wants to check that calculation can download the Msft Excel 2007 spreadsheet file I used to compute it. It contains both the raw data from the relevant NCES Common Core of Data files, and all the calculations. Among other things, it shows total per pupil spending and the pupil teacher ratio for every charter school and every public school district in the state. (Unlike certain climatologists, some of us researchers not only keep our data around, we’re actually happy to share them).

Journalists who have questions about this file are welcome to get in touch. Note that it is also viewable, I believe, with the free OpenOffice spreadsheet program, though I haven’t tested that.