The Federal Trade Commission is on Step Two.

A front-page Washington Post article about the looming Virginia gubernatorial race between Attorney General Ken Cuccinelli and Friend of Bill Clinton Terry McAuliffe includes this point:

McAuliffe is known as “a dealmaker,” said Jennifer Duffy, who analyzes gubernatorial races for the nonpartisan Cook Political Report, and Cuccinelli “is far more ideological in a lot of ways.”

“I think [Cuccinelli] walks around with a copy of the Constitution, and McAuliffe doesn’t,” she said.

Really? The fact that the attorney general of the Commonwealth of Virginia, home of James Madison, carries a copy of the Constitution makes him an ideologue?

Cuccinelli may well be strongly ideological, for better or worse. But surely carrying a copy of the Constitution in your pocket — get yours today from the Cato Institute — is not intrinsically ideological.

For more ideologues, such as the ones below, see this article.

Here’s some ObamaCare implementation news from around the interwebs:

• “Minnesota Facing Bigger Bill For State’s Health Insurance Exchange”: Kaiser Health News reports Minnesota has increased its spending projections for operating the state’s ObamaCare Exchange by somewhere between 35–80 percent for 2015. Spending on the Exchange will rise by another 19 percent in the following year.
• The Wall Street Journal defends the 25–30 states that aren’t gullible enough to create an Exchange and therefore take the blame for ObamaCare’s higher-than-projected costs.
• Arizona Gov. Jan Brewer (R) has announced she will not implement an Exchange. That creates another potential state-plaintiff, millions of potential employer-plaintiffs, and (by my count) 430,000 potential individual plaintiffs who could join Oklahoma attorney general Scott Pruitt in challenging the IRS’s illegal ObamaCare taxes. It also means that Arizona can start luring jobs away from tax-happy California. There are four Hostess bakeries in California that might be looking to relocate.
• I’m enjoying a friendly debate with The New Republic’s Jonathan Cohn and University of Michigan law professor Samuel Bagenstos over whether the those taxes really do violate federal law and congressional intent (spoiler alert: they do). I owe Bagenstos a response.
• PolitiFact Georgia rated false my claim that operating an ObamaCare Exchange would violate Georgia law. I explain here why it is indeed illegal for Georgia (and 13 other states) to implement an Exchange.
• ThinkProgress​.org reports, “Romney’s Transition Chief Is Encouraging States To Implement Obamacare.” A better headline would have been, “Government Contractor Encourages More Government Contracts.”
• The Washington Examiner editorializes, “In California…state regulators have warned…insurance premiums will rise by as much as 25 percent once the exchange comes online…That’s the best-case scenario.” And, “In 2014, seven Democratic Senate seats will be up for grabs in states Mitt Romney carried (Alaska, Arkansas, Louisiana, Montana, North Carolina, South Dakota and West Virginia). Unless Obama’s HHS bureaucrats pull off an unprecedented miracle of central planning, Obamacare could well sink Democrats again in 2014, the same way it did in 2010.”

*According to PolitiFact.

In an unconscious parody of everything that’s wrong with the “fact-checker” movement in journalism, PolitiFact Georgia (a project of the Atlanta Journal-Constitution) has rated false my claim that operating an ObamaCare Exchange would violate Georgia law. (For some of the “fact-checker” genre’s greatest worst hits, see Ben Domenech’s top 10 list.)

PolitiFact’s analysis is one-sided. It confuses opinions with facts. It was written with “no particular policy domain knowledge.” It therefore not only reaches the wrong result — it analyzes a claim I did not make and never would make.

PolitiFact began by saying that it was fact-checking the following claim, which I made in a November 9 opinion piece at National Review Online:

[O]perating an Obamacare exchange would be illegal in 14 states. Alabama, Arizona, Georgia, Idaho, Indiana, Kansas, Louisiana, Missouri, Montana, Ohio, Oklahoma, Tennessee, Utah, and Virginia have enacted either statutes or constitutional amendments (or both) forbidding state employees to participate in an essential exchange function: implementing Obamacare’s individual and employer mandates.

Lest anyone think I meant it would be illegal for the federal government to operate Exchanges in those states, the context and the text (“forbidding state employees”) of that opinion piece make it clear I was discussing whether states should establish Exchanges. Unfortunately, the context was lost on PolitiFact readers, because PolitiFact provided neither a citation nor a link to the opinion piece it was fact-checking.

In Georgia’s case, the relevant statute is that state’s version of the “Health Care Freedom Act” (GA. CODE ANN. § 31–1‑11), enacted in 2010. It reads:

To preserve the freedom of citizens of this state to provide for their health care: No law or rule or regulation shall compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system.

The statute defines “compel” as including “ ‘penalties or fines.”

PolitiFact notes that I cited that provision to “an Atlanta Journal-Constitution health reporter [Carrie Teegardin] via email.” Thus PolitiFact presumably had access to the rest of my November 9 email to Teegardin, in which I explained why that provision precludes Georgia from establishing an ObamaCare Exchange:

Determining eligibility for and distributing ObamaCare’s “premium assistance tax credits” is a key function of an Exchange. Those tax credits trigger penalties against employers (under the employer mandate) and residents (under the individual mandate).

Indeed, there are many ways Exchanges assist the federal government in the enforcement of those mandates. State-run Exchanges must report to the IRS on which residents have dropped their coverage and when (Section 1311(d)(4)(I)). State-run Exchanges must notify employers when one of their employees receives a tax credit (Section 1411(e)(4)(B)(iii)). That very notification triggers penalties against the employer (Section 1513/I.R.C. Section 4980H(a)). State-run Exchanges must collect all the information the federal government needs to determine eligibility for tax credits and deliver it to the federal government (Section 1401/I.R.C. Section 36B(f)(3)) — a crucial component of enforcing both the individual and employer mandates. The Secretary can require state-run Exchanges to verify that information for the federal government (Section 1411(d)), and state-run Exchanges must resolve any inconsistencies between the information provided by applicants and official records (Section 1411(e)). If a state-run Exchange can’t resolve an inconsistency between the application and the official records within a certain time period, it has to notify residents that they will be penalized under the individual mandate (Section 1411(e)(4)(B)(iv)). State-run Exchanges must maintain an appeals process for individuals and employers who believe they were wrongly assessed penalties (Section 1411(f)).

My email to Teegardin continued:

Ergo, if Georgia establishes an Exchange, then a Georgia law and state employees would be indirectly compelling employers and residents to participate in a health care system.

In other words, the activities required of an ObamaCare Exchange are exactly the sorts of things that the Health Care Freedom Acts in Georgia and 13 other states exist to prohibit those states’ employees from doing. In a November 15 opinion piece Atlanta Journal-Constitution, no less, I reiterated that same point: legislatures and voters in those 14 states have enacted state laws that make it illegal (and in some cases unconstitutional) for state employees to operate an ObamaCare Exchange.

Rather than evaluate that claim, PolitiFact asked a handful of Georgia scholars about something completely different: whether Georgia’s Health Care Freedom Act prevents the federal government from creating an Exchange for Georgia, or otherwise trumps federal law. It’s difficult to see how anyone who had read my two opinion pieces, much less my email to Teegardin, could think I was saying anything of the sort. Of course such a claim would be false; that’s why I never made it. (ObamaCare does itself give each state the power to stop the federal government from running an Exchange within its borders. But that’s a topic for another day.)

Then again, I could have set them straight. PolitiFact contacted me for help with this “fact-check.” I politely refused, citing my ongoing boycott of their organization. One might say my refusal to assist with this “fact-check” means I have no right to complain.

Another way of looking at it is that this episode validates my boycott. Consider how they responded to my refusal to help: Cannon won’t speak to us because he says we’re not reputable. Should we try to find someone else who might argue his side? Nah. PolitiFact could have proven me wrong by conducting a thorough analysis. Off the top of my head, I can think of seven other experts they might have consulted. A simple online search would have produced two attorneys who have threatened to sue the State of Arizona under the Health Care Freedom Amendment to its Constitution if state officials establish an Exchange. Instead, PolitiFact considered a discussion of my email auto-signature — “Tyrannis delenda est” — more worthy of inclusion in their “fact-check” than another expert who would take up my side.

My boycott of PolitiFact hasn’t succeeded in bringing about the desired behavior change. But if they keep this up, I don’t see how I can fail.

According to the New York Times, New York Gov. Andrew Cuomo and the state’s congressional delegation want the federal government to pay for $33 billion in storm damage from Hurricane Sandy plus another $9 billion for preventative measures:

“I understand the fiscal pressures that Washington is under,” Mr. Cuomo said. “I also understand the fiscal pressure that New York is under. And I know that the taxpayers of New York cannot shoulder this burden, and I don’t think it’s fair to ask them to shoulder this burden.”

I suppose one could make the argument that it wouldn’t be “fair” to make New York citizens foot the bill given that New Yorkers have helped pay for the cleanup following natural disasters in other states. But is it “fair” for the residents of other states to subsidize rebuilding efforts on coastal areas that are prone to natural disasters? Is it “fair” for Gov. Cuomo – rumored to have eyes on running for president – to use Hurricane Sandy as an opportunity to get federal taxpayers to fund infrastructure projects that he would have otherwise had to ask his constituents to pay for?

At some point the trend toward nationalization of disaster assistance needs to be reversed. And with the federal government quickly approaching another brush up against the debt ceiling, now is a good time to start. Sorry, Gov. Cuomo and Gov. Christie (the Times says New Jersey’s bill would be $30 billion), but just because the federal government can more easily borrow $72 billion than the states doesn’t mean that it should. Need money for disaster recovery? Then cut spending for lower priority items in the state budget. Still not enough money? Then provide your citizens with the details on how you plan to spend every dime that you claim is needed for recovery efforts and explain to them why a tax increase is necessary to pay for it.

Alas, it doesn’t look like the governors will have to take the politically inconvenient route. Rep. Peter King (R‑NY) told the Times that House Speaker Boehner “had committed to providing money to New York State and New Jersey without demanding spending cuts that would offset the appropriations.” That’s the same Rep. King who would be open to tax increases as part of a deal to enable the federal government to keep on overspending.

Since President Felipe Calderon took office six years ago and decided to aggressively fight Mexican drug cartels, Mexico has seen some 60,000 drug-war-related deaths. That’s “more than the number of Americans who died in Vietnam, but in a country with one third the U.S. population,” says former Mexican Foreign Minister Jorge Castañeda.

In a new Cato video released during President-elect Enrique Peña Nieto’s visit to Washington this week, Ted Carpenter explains why the U.S.-backed drug war has been a disaster and urges an end to prohibition. For an in-depth look at the issue, read Ted’s new book, The Fire Next Door: Mexico’s Drug Violence and the Danger to America.

You can read more Cato scholars’ writings on the War on Drugs here.

The Justice Department’s Inspector General has just completed their most recent review of surveillance under the FISA Amendments Act of 2008, which is set to expire at the end of this year. The report, however, is classified—meaning the public is unlikely to see it before Congress votes to reauthorize the law for another five years during the lame duck session. Steven Aftergood of the Federation of American Scientists is trying to get a declassified version released—but he’s probably got a long wait ahead of him.

As regular readers of the Cato blog may recall, I recently wrote about my efforts to get even earlier versions of this report out of the government, in hopes of understanding something about the National Security Agency’s use of the sweeping surveillance powers granted by the FISA Amendments Act. Because it authorizes broad, programmatic interception of international communications without individualized search warrants, Congress insisted that the intelligence community produce a semi-annual report evaluating the NSA’s compliance with the law’s various procedures and safeguards, and highlighting potential civil liberties issues. Given the vast scale of surveillance under the FAA, it’s hardly a guarantee of adequate oversight, but it’s something. The ACLU had managed to get the first few such reports released, under the Freedom of Information Act, so way back in June, I filed a FOIA request of my own for the most recent reports. I asked for expedited review, arguing that since Congress is expected to extend those surveillance powers before the end of December, there was a strong public interest in getting these evaluations out as early as possible. Let me say again: I submitted this request in June.

In September—long past the statutory deadline of 20 business days—I finally heard back from the Justice Department, which said they could “neither confirm nor deny the existence” of reports that were required by federal law. Unsurprisingly, I appealed this facially ridiculous denial of my request—and to her credit, the senior FOIA officer at DOJ immediately acknowledged that this response had been inappropriate. By mid-September, just under three months after my initial request went in, I was informed that they’d identified the reports I was looking for and forwarded them to the Office of the Director of National Intelligence (ODNI) for a declassification review, which they expected would be completed by early November. Joy! Would we actually get information about an intelligence program out of the government without a lawsuit? Maybe even in time to have a semi-informed public debate?

Well, no. ODNI informed me earlier this month that they were wrapping up their review and redaction Any Day Now, at which point… their redacted version would be forwarded, one at a time, to every other intelligence agency whose activities were referenced in the report. At each agency, it would go to the back of the line of FOIA requests, exactly as though it had just been submitted for the first time. Estimated time before a heavily censored version of these reports see the light of day: Another six months. At least. By which time, it won’t matter much what these reports say about NSA’s use of its sweeping powers, because Congress will have already given them another five years of spying authority.

Notice what this means in practice: Even though a court has already established, thanks to an ACLU lawsuit, that they are legally required to release redacted versions of these reports to the public on request, a cumbersome bureaucratic process effectively guarantees that it takes a solid year to get this information out, which means at best you’re working with what the assessment found two reports ago, allowing the government to assert that they’ve fixed whatever problems were found. In this case, the timing of the review process conveniently guarantees that whatever we learn will come far too late to influence this year’s vote on FAA powers, but be old news by the time Congress takes up the question again. It’s a little hard to swallow the claim that all this delay is remotely necessary: Are we really supposed to believe that the Office of the Director of National Intelligence will be so slipshod about letting sensitive classified information through that their work has to be independently double checked by every other intelligence agency? And that this process has to take six months or longer, even after ODNI has done their initial review and redaction? Of course it doesn’t: This is a bureaucratic procedure designed, not to protect national security, but to allow stalling on the release of politically inconvenient information that the courts won’t allow to be completely hidden from the public.

This is, needless to say, a far cry from early promises that Obama would preside over “the most transparent administration in history”—and it’s part of a larger pattern of failure on that front. What we should really be asking is why I had to submit this request at all. In his first days in office, after all, President Obama issued a directive not only urging agencies to err on the side of disclosure, but to adopt a policy of proactive release of documents likely to be of public interest. Surely if there were any doubt about the public interest in the use of sweeping surveillance powers, it should have been put to rest after the ACLU won release of the earliest compliance reports. So why didn’t the Justice Department follow President Obama’s directive and draft these reports with an eye toward preparing a declassified public version, knowing full well that civil liberties groups would come asking? Well, because then they wouldn’t be able to obfuscate and delay for months and months. Because then the public might be able to have an informed discussion about the secret surveillance powers we’ve given our spy agencies before we vote to extend them. Heaven forfend.

So will there be any consequences for officials who’ve so flagrantly disregarded the president’s transparency directive? Or was the “order” to adopt more transparent policies just a bit of political theater, delivered with a wink and a nudge? I have my suspicions, but Obama still has time to prove me wrong.