Even Sex Offenders Have Constitutional Rights

On Monday, the Supreme Court ruled that a North Carolina preventing sex offenders from accessing social media and other websites – without any attempt to tailor restrictions to potential contact with minors – violated the First Amendment. But restrictions on the freedom of speech aren’t the only unconstitutional deprivations sex offenders face.

In 1994, Minnesota passed what has become arguably the most aggressive and restrictive sex-offender civil-commitment statute in the country. The Minnesota Sex Offender Program (MSOP) provides for the indefinite civil commitment of “sexually dangerous” individuals, over and beyond whatever criminal sentence they may have already completed.

And while there is technically a system in place whereby committed individuals can petition for release or a loosening of their restrictions, in the more than 20 years that the MSOP has existed, only one person has ever been fully discharged (someone in the program for offenses committed as a minor, and he was only discharged after a court challenge). As Craig Bolte, one person committed in the MSOP, has testified, there is a distinct feeling that “the only way to get out is to die.”

The Supreme Court has held that states have the authority to commit individuals against their will outside the traditional criminal justice context, but only for the purpose of keeping genuinely dangerous people off the streets while undergoing rehabilitative treatment. Punishment and deterrence are legitimate goals exclusively of the criminal justice system, so any deprivation of liberty for either of those two purposes must follow only from that system, with all the procedural protections our Constitution requires.

Three Lessons from the Tax Defeat in Kansas

Leftists don’t have many reasons to be cheerful.

Global economic developments keep demonstrating (over and over again) that big government and high taxes are not a recipe for prosperity. That can’t be very encouraging for them.

They also can’t be very happy about the Obama presidency. Yes, he was one of them, and he was able to impose a lot of his agenda in his first two years. But that experiment with bigger government produced very dismal results. And it also was a political disaster for the left since Republicans won landslide elections in 2010 and 2014 (you could also argue that Trump’s election in 2016 was a repudiation of Obama and the left, though I think it was more a rejection of the status quo).

But there is one piece of good news for my statist friends. The tax cuts in Kansas have been partially repealed. The New York Times is overjoyed by this development.

The Republican Legislature and much of Kansas has finally turned on Gov. Sam Brownback in his disastrous five-year experiment to prove the Republicans’ “trickle down” fantasy can work in real life — that huge tax cuts magically result in economic growth and more, not less, revenue. …state lawmakers who once abetted the Brownback budgeting folly passed a two-year, $1.2 billion tax increase this week to begin repairing the damage. …It will take years for Kansas to recover.

And you won’t be surprised to learn that Paul Krugman also is pleased.

Fatalities and the Annual Chance of being Murdered in a European Terrorist Attack

Recent terrorist attacks in Europe have increased death tolls and boosted fears on both sides of the Atlantic. Last year, I used common risk analysis methods to measure the annual chance of being murdered in an attack committed on U.S. soil by foreign-born terrorists. This blog is a back of the envelope estimate of the annual chance of being murdered in a terrorist attack in Belgium, France, Germany, Sweden and the United Kingdom. The annual chance of being murdered in a terrorist attack in the United States from 2001 to 2017 is about 1 in 1.6 million per year. Over the same period, the chances are much lower in European countries.

Methods and Sources

Belgium, France, and the United Kingdom are included because they have suffered some of the largest terrorist attacks in Europe in recent years. Sweden and Germany are included because they have each allowed in large numbers of refugees and asylum seekers who could theoretically be terrorism risks.

The main sources of data are the Global Terrorism Database at the University of Maryland for the years of 1975 to 2015, with the exception of 1993. I used the RAND Database of Worldwide Terrorism to fill in the year 1993. I have not compiled the identities of the attackers, any other information about them, or the number of convictions for planning attacks in Europe. The perpetrators are excluded from the fatalities where possible. Those databases do not yet include the years 2016 and 2017, so I relied on Bloomberg and Wikipedia to supply a rough estimate of the number of fatalities in terrorist attacks in each country in those two years through June 20, 2017. The United Nations Population Division provided the population estimates for each country per year.

How Many Libertarians Are There? The Answer Depends on the Method You Use

There has been debate this week about how many libertarians there are. The answer is: it depends on how you measure it and how you define libertarian. The overwhelming body of literature, however, using a variety of different methods and different definitions, suggests that libertarians comprise about 10-20% of the population, but may range from 7-22%.

Notes: This estimate comes from an analysis I ran on the 2012 American National Election Study Evaluations of Government and Society Survey (EGSS) 2.  Furthermore, if one imposes the same level of ideological consistency on liberals, conservatives, and communitarians/populists that many do on libertarians, these groups too comprise similar shares of the population.

In this post I provide a brief overview of different methods academics have used to identify libertarians and what they found. Most methods start from the premise that libertarians are economically conservative and socially liberal. Despite this, different studies find fairly different results. What accounts for the difference?

1) First, people use different definitions of libertarians

2) Second, they use different questions in their analysis to identify libertarians

3) Third, they use very different statistical methods.

Let’s start with a few questions: How do you define a libertarian? Is there one concrete libertarian position on every policy issue?

What is the “libertarian position” on abortion? Is there one? What is the “libertarian position” on Social Security? Must a libertarian support abolishing the program, or might a libertarian support private accounts, or means testing, or sending it to the states instead? A researcher will find fewer libertarians in the electorate if they demand that libertarians support abolishing Social Security rather than means testing or privatizing it. 

Further, why are libertarians expected to conform to an ideological litmus test but conservatives and liberals are not? For instance, what is the “conservative position” on Social Security? Is there one? When researchers use rigid ideological definitions of liberals and conservatives, they too make up similar shares of the population as libertarians. Thus, as political scientist Jason Weeden has noted, researchers have to make fairly arbitrary decisions about where the cut-off points should be for the “libertarian,” “liberal,” or “conservative” position. This pre-judgement strongly determines how many libertarians researchers will find.

Next, did researchers simply ask people if they identify as libertarian, or did they ask them public policy questions (a better method)? If the latter, how many issue questions did they ask? Then, what questions did they ask?

Five Questions I Will Use to Evaluate the Phantom Senate Health Care Bill

Rumor has it that tomorrow is the day Senate Republican leaders will unveil the health care bill they have been busily assembling behind closed doors. So few details have emerged, President Trump could maybe learn something from Senate Majority Leader Mitch McConnell about how to prevent leaks. Even GOP senators are complaining they haven’t been allowed to see the bill.

Here are five questions I will be asking about the Senate health care bill if and when it sees the light of day.

  1. Would it repeal the parts of ObamaCare—specifically, community rating—that preclude secure access to health care for the sick by causing coverage to become worse for the sick and the Exchanges to collapse?
  2. Would it make health care more affordable, or just throw subsidies at unaffordable care?
  3. Would it actually sunset the Medicaid expansion, or keep the expansion alive long enough for a future Democratic Congress to rescue it?
  4. Tax cuts are almost irrelevant—how much of ObamaCare’s spending would it repeal?
  5. If it leaves major elements of ObamaCare in place, would it lead voters to blame the ongoing failure of those provisions on (supposed) free-market reforms?

Depending on how Senate Republicans—or at least, the select few who get to write major legislation—answer those questions, the bill could be a step in the right direction. Or it could be ObamaCare-lite.

Devolving Highway Funding

The Trump administration’s recent proposal on infrastructure stressed federalism. It said that the “federal government now acts as a complicated, costly middleman between the collection of revenue and the expenditure of those funds by states and localities. Put simply, the administration will be exploring whether this arrangement still makes sense, or whether transferring additional [infrastructure] responsibilities to the states is appropriate.”

Indeed, the federal-middleman arrangement does not make sense. With regard to highways, federal funds go not just to the 47,000-mile interstate highway system (IHS), but also to the vast 3.9 million mile “federal-aid highway system.” But there are few advantages in federal funding over state funding for most the nation’s highways, which are owned by the states and mainly serve state-local needs.

As such, there have been many proposals to devolve at least the non-IHS activities to the states. In such “turnback” proposals, the federal government would cut its highway spending and its gas tax, and allow states to fill the void.

The turnback idea has been around awhile. A major 1987 study by the Advisory Commission on Intergovernmental Relations (ACIR) proposed devolving highway funding except for IHS funding to the states. The ACIR was led by a bipartisan mix of federal, state, and local elected officials, and was known for its top-notch staff experts.

Thirty years later, the ACIR report contains sound advice for today’s policymakers. Here are some excerpts:

The Commission concludes that a devolution of non-Interstate highway responsibilities and revenue sources to the states is a worthwhile goal and an appropriate step toward restoring a better balance of authority and accountability in the federal system (page 2).

It is the sense of the Commission that the Congress should move toward the goal of repealing all highway and bridge programs that are financed from the federal Highway Trust Fund, except for: (1) the Interstate highway system, (2) the portion of the bridge program that serves the Interstate system, (3) the emergency relief highway program, and (4) the federal lands highway program. The Commission urges that the Congress simultaneously relinquish an adequate share of the federal excise tax on gasoline—about 7 cents of the federal tax on motor fuel plus an additional 1 cent for a grant based on lane mileage—to finance the above programs (page 2). [Note: the federal gas tax at the time was just 9.1 cents per gallon].

With state and local governments freed from federal requirements, some of which are unsuitable and expensive, turnbacks offer the possibility of more flexible, more efficient, and more responsive financing of those roads that are of predominantly state or local concern. Investment in highways could be matched more closely to travel demand and to the benefits received by the communities served by those roads (page 3).

Highway turnbacks potentially can add both certainty and flexibility—as well as efficiency and accountability—to the financing of the nation’s transportation infrastructure as well as to the design and operation of both new and modernized roads (page 4).

In time, federal requirements and sanctions have accumulated, which have limited state and local governments’ flexibility in road construction and operation, have restricted these governments’ ability to address specific transportation needs, and have probably increased the cost and time needed for road improvements … The design standards required for receiving federal road grants may often be higher than those actually employed for roads built with state or local funds alone. The result can be that some federally subsidized highways are “gold-plated,” that is, built more lavishly than would be the case if state and local governments made the tradeoffs involved in highway plans and financed their choices by taxes levied on their own constituents (page 11).

[Federal highway regulations] may intrude the most broadly upon the choices of state-local governments and citizens. Examples include the rule that federally aided projects be preceded by an environmental analysis and the Davis-Bacon requirement to pay union wage rates, or the equivalent. The Federal Highway Administration has estimated that the Davis-Bacon requirement added between $293 and $586 million to road costs in FY 1986 (page 12).

The federal restriction on state and local road choices occurs not solely because federal standards are high, but because they tend to be inflexible, inappropriate to circumstances that vary from place to place, and more responsive to national interest groups than to the users of specific highways (page 13).

There is “fiscal equivalence” when the same political community—the same jurisdiction—finances a governmental program, is responsible for its operation, and receives the benefits of that program … The tie between taxing and spending promotes efficiency and careful choices, whether spending levels are high or low. Because various areas’ highway needs and preferences are so different, a nationally uniform program cannot tailor taxing and spending to each other, as state and local programs can (page 22).

With the Interstate system used for long-distance travel, most of the benefits of other federally aided roads are contained within state boundaries. These non-Interstate, federally aided roads should be considered for turnback. Absent federal funding, there is reason to believe that state-local responsibility for the devolved highways would not impair nationwide mobility or interstate commerce. Devolution would move toward “fiscal equivalence.” The same jurisdiction that finances a set of roads will benefit from them. Thus highway spending and highway services would be more closely linked than is presently the case. Efficiency would be enhanced as would political, fiscal, and program accountability (page 48).

The diverse goals and constituencies served by the federal highway program has led to a complex operation and has engendered controversy over the program’s procedures and allocation formulas … Devolution … would sharpen goals and priorities (page 48).

The ACIR report (“Devolving Selected Federal-Aid Highway Programs and Revenue Bases: A Critical Appraisal”) is here.

Towards a Private Flood Insurance Market

The federal-government-managed National Flood Insurance Program (NFIP) is $25 billion in debt, stokes moral hazard, and entails a regressive wealth transfer that favors coastal areas. The NFIP is set to expire at the end of September, offering policymakers an important chance to rethink the program. The House Financial Services Committee is considering the Flood Insurance Market Parity and Modernization Act Wednesday, the current version of the bill takes important steps in moving the U.S. towards a private flood insurance market. Private insurance would improve upon the NFIP by ending transfers from the general taxpayers to the wealthy and the coasts and by limiting moral hazard.

Private insurance functions as a market-driven regulator of risk. Private insurers devise premium payments to accurately reflect risk, forcing economic agents to internalize the risk they choose to assume. For instance auto insurance premiums depend both on a driver’s performance as well as other factors that correlate with risk, such as age or area of the country.

The enactment of the NFIP in 1968 reflected a belief that a centrally planned insurance program could better fulfill the regulatory function of insurance than the private market. Government-managed insurance could, it was held at the time, “limit future flood damages without hampering future economic development” and “prompt an adjustment in land use to reduce individual and public losses from floods,” reported a Housing and Urban Development study integral to the program’s design.

However, the NFIP’s fifty-year record shows why the reasoning behind the creation of the program was misguided. The NFIP is beset by many design flaws, especially in terms of how premiums are priced. About 20% of all NFIP policies are explicitly subsidized and receive a 60-65% discount off the NFIP’s typical rate. These subsidies are in no way a subsidy to poor homeowners but instead relate to the age of a property. They turn out to be wildly regressive.

Even the 80% of the NFIP’s so-called “full risk” properties are not priced accurately. For instance, despite their name the full risk rates do not include a loading charge to cover losses in especially bad years, so even these insurance policies are money-losers in the long run.