May 8, 2006 12:28PM

Stumbling on Paternalism?

Harvard psychologist Daniel Gilbert's new book, Stumbling on Happiness, appears to be all the rage. Cato Institute adjunct scholar Tyler Cowen thought it was the best book he had read this year, until he forgot, and nominated David Warsh's Knowledge and the Wealth of Nations instead. In any case, Gilbert is one of the world's experts about "affective forecasting," i.e., our ability to predict how we will feel in the future. Generally, we overshoot the mark. Here's a bit from Scott Stossel's review in the NYT:

Events that we anticipate will give us joy make us less happy than we think; things that fill us with dread will make us less unhappy, for less long, than we anticipate. As evidence, Gilbert cites studies showing that a large majority of people who endure major trauma (wars, car accidents, rapes) in their lives will return successfully to their pre-trauma emotional state — and that many of them will report that they ended up happier than they were before the trauma. It's as though we're equipped with a hedonic thermostat that is constantly resetting us back to our emotional baseline.

Why might this be of political interest? Recall that part of J.S. Mill's famous libertarian argument against paternalistic interference in On Liberty is based in the following claim:

. . . with respect to his own feelings and circumstances, the most ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by anyone else.

If we are systematically wrong in our predictions about how our circumstances will relate to our feelings, then it might seem that experts, like Daniel Gilbert, may be better placed than we are to know what is and is not going to make us happy. Some paternalism may be called for after all.

There are several things to say in response to this line of thinking. Let's set aside the tricky moral replies, and focus on a major practical problem for teasing paternalistic implications out of our "affective ignorance."

Even if some experts know better than we do what will make us happy, it is very unlikely that those experts will be the ones determining paternalistic policy. Consider that the very same people who make systematic mistakes about their future feelings are the voters in democratic elections. And, as Bryan Caplan's work shows [.doc], voters are likely to be even more profoundly mistaken about politics than about their own affairs.

Successful politicians are likely to reflect the biases of the voters. Take the War on Terror, for example. Gilbert's work implies that whatever the harm of another terrorist attack may be, it probably will not be as bad as we imagine, and we would get over the wound rather more quickly than we think (indeed, more quickly than it may be comfortable to acknowledge). But that doesn't keep voters or politicians (who share the same psychology, after all) from being extremely anxious about another terrorist attack.

There's a good chance that lots of people mispredict how bad things would be if drugs were legalized, or if same-sex marriages were legally recognized. The consequence is that we get politicians who appeal to us because they make the same errors---or even because they convince us that things will be even worse than we thought (which was already way worse than it would really be) if they aren't elected. And these are the people who determine paternalistic policies, not experts like Daniel Gilbert.

Even if you ask politicians to appoint experts, they will not consult experts on expertise to determine who the real experts are. Their beliefs about who is and isn't an expert, like their beliefs about anything else, will reflect their biases. If I were President, Leon Kass might be the last person I would think of to head my Council on Bioethics. But if you look at his bio, you can certainly see why he looks like an expert to some people. The upshot is that happiness-based paternalistic policy may be more likely to be based on the work of Dr. Rick Warren than on the work of Dr. Daniel Gilbert.

So, a realistic account of human psychology shows that we can be pretty bad at predicting what is really going to make us happy. But a similarly realistic account of actually existing political institutions shows that they are likely to be even worse than individual decision-makers. If we make systematic errors, then democracy will simply aggregate our errors. And politicians, who make the same errors we do, will reflect our errors, and will often have an incentive to reinforce them to their political benefit. Even if expert knowledge exists---even if Daniel Gilbert knows better than you do about what will and won't make you happy---democratic institutions will not be reliable at identifying it or applying it.

May 8, 2006 12:22PM

Surrendering the Argument on Health Care

A new Rasmussen poll shows that a third-party presidential candidate promising universal health care coverage would run virtually even with a Republican candidate and ahead of a Democrat. This is the latest sign of dissatisfaction with our current health care system.

But it also shows what happens when we abandon principles and co-opt the arguments from the left. From Massachusetts Governor Mitt Romney’s individual mandate to President Bush’s Medicare prescription drug benefit, many Republicans and conservatives appear to have conceded to the idea that expanded—indeed universal—coverage should be the goal of health insurance policy.

Very seldom do you see anyone making the case that government-run health care will inevitably lead to rationing and the denial of care. Even less do you see anyone, outside of Cato, arguing that we must shift the health care debate away from its single-minded focus on expanding coverage to the bigger question of how to reduce costs and improve quality through greater consumer control.

Given a choice between national health care and national health care “lite,” it's not surprising that a great many people favor the real thing. We are not going to win this argument unless we a) make a clear case against more government involvement in health care, and b) offer a clear consumer-based alternative.

May 8, 2006 9:28AM

Robert Jackson and NSA Spying Reconsidered

I enjoyed Roger Pilon’s and Bob Levy’s debate on NSA surveillance Friday. I’ll confess I’m in general agreement with Bob. However, I post to note one wrinkle: Bob mentioned Justice Jackson’s opinion in the Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer) in support of his position against the NSA surveillance program. In the Steel Seizure Case, Jackson’s concurrence set out a tri-partite framework for assessing presidential power, in which he argued that the power of a President acting without congressional authorization is at its lowest ebb. The problem is that no one knows what exactly this means.

In the spring edition of The Green Bag (available here), Jack Goldsmith (my onetime international law professor and former head of the Office of Legal Counsel) discusses a recently discovered draft of Jackson’s (never filed) concurrence in In re Quirin—the case involving the military trial and eventual execution of enemy saboteurs captured on U.S. soil during World War II. The draft opinion sheds some further light on Jackson’s views.

Here’s the basic gist:

[Jackson] ‘began in Quirin with the fixed presumption that the Court has no business reviewing military judgments in time of war, and he never deviated from that position.’ Jackson clearly stated the basis for this presumption in the closing paragraph of his draft opinion in Quirin:

‘[I]n the long run it seems to me that we have no more important duty than to keep clear and separate the lines of responsibility and duty of the judicial and of the executive-military arms of government. Merger of the two is the end of liberty as we in this country have known it. If we are uncompromisingly to discountenance military intervention in civil justice, we would do well to refuse to meddle with military measures . . .’

Jackson's is a somewhat strange middle position: He felt it was the Court’s duty to declare extra-legal actions undertaken in the service of national security unconstitutional when the Court confronted such acts. But Jackson also seemed to believe that courts should not directly interfere with the carrying out of such unconstitutional “military measures.” In effect, Jackson believed the Court, when confronted with illegal actionj must declare it as such, but should leave the remedy to the political process.

What would Jackson have done in a case reviewing the NSA surveillance program.? It is hard to tell. But to the extent he would have viewed the program as a “military measure,” part of the “necessities and practices” of warfare, he might well have wanted the Court to declare it illegal and then abstain from directly ordering an end to the surveillance program.

May 5, 2006 4:21PM

What if They Held an Election and Nobody Came?

The interesting story about the new Associated Press-Ipsos poll is not the further decline in approval ratings for President Bush and the Republican Congress. The interesting story is how the decline is being driven by discontent among self-identified conservative voters.

Bush’s disapproval rating among conservatives is 45%. That is not as high as the overall 66% disapproval score, but it is quite remarkable considering Bush is supposed to be—according to the media—the most conservative president since Ronald Reagan. Even more stunning is the whopping 65% negative score among polled conservatives for the Republican Congress. Close to a third of conservatives surveyed would be happier if the GOP lost control of Congress.

There are many reasons for the low poll numbers. But one of the primary drivers of conservative discontent with the GOP has got to be that the Republican Congress and President Bush are the biggest spenders since LBJ.

The AP-Ipsos results seem to corroborate what other pollsters have discovered among likely voters over the past two years. In February 2006, a George Washington University Battleground poll revealed that only 36% percent of those surveyed trusted Republicans in Congress to keep spending under control—down from 47% in the same poll two years before. This isn’t because Democrats have effectively wrapped themselves in the mantle of fiscal responsibility. It’s entirely a result of the public realizing that the GOP is no longer a party committed to small government.

As a result of this, many Republicans might shift from being “likely voters” in November to deciding they’d rather not put up with the fuss of showing up to vote at all. And that’s exactly what has Republican strategists worried. Why would conservatives bother to pull the lever for a Republican candidate when continued GOP control of Congress seems likely only to give them the sort of Big Government they would expect from Democrats? That’s not what Republican leaders want to hear from their base before a mid-term (read: low turnout) congressional election in which support of the party faithful is essential to victory.

Pundits suggest that the poll numbers of late are a harbinger of a 1994-like realignment in Congress. It’s probably too early to make such grand predictions. Perhaps a better historical comparison is with the 1998 congressional elections.

At that time, Republicans were coming off of a year when they seemed to have made peace with Big Government. A few weeks before the midterm elections of 1998, the Republican Congress approved a budget that hiked non-defense discretionary spending by over 5% that year—low by comparison to today’s budgets, but over twice what was promised in the Contract with America budget. They also funded a record amount of pork-barrel projects, reversed their promise to phase-out farm subsidies, and passed a highway bill that at the time was the most expensive and earmark-laden in U.S. history. In other words, the 1998 session of Congress was in every way a rout of the very ideals that sparked the Republican Revolution in the first place.

What was the result? The GOP lost a net three seats in the House, narrowing their majority to five seats. Exit polls showed that turnout among self-identified conservatives dropped 6% from 1994 to 1998. This may not sound like a lot, but consider this: Republican House candidates received a total of 32 million votes, and Democratic candidates received 31 million votes—a difference of about 2%. In a race that close, Republicans needed all the help that could be mustered from self-identified conservatives. But those voters were clearly peeved that Republicans had lost their fiscal backbone and decided to stay home on Election Day.

Whether 2006 will be a replay of 1998 or even 1994 will at least partly depend on whether Republicans can dispel their reputations as big spenders. 

May 5, 2006 10:07AM

The Politics of Pain

Over at Reason, Jacob Sullum notes the similarities between the the Rush Limbaugh case and the sad case of Richard Paey

Both men suffered severe back pain for which they underwent unsuccessful surgery, and both were accused of fraudulently obtaining more narcotics than they really needed. But while Limbaugh remains a free man and will not even face criminal charges if he continues to attend drug treatment for the next 18 months (something he was planning to do anyway), Paey is serving a 25-year sentence in a Florida prison.Limbaugh was accused of "doctor shopping," getting painkillers from several physicians who were not aware of the other prescriptions. Although he denies the charge, he admits he became addicted to the painkillers, which by definition means he was taking them for reasons the law does not recognize as medically legitimate--as an "escape" (his word) from stress or unhappiness.

Paey, who moved to Florida from New Jersey, was accused of forging painkiller prescriptions from his New Jersey doctor. The doctor, who could have faced criminal charges if the government decided he was dispensing narcotics too freely, at first confirmed that the prescriptions were legitimate but later changed his story.

There was no evidence that Limbaugh or Paey sold painkillers on the black market, and both men insisted they had done nothing illegal. But unlike Limbaugh, who publicly confessed to a drug problem and voluntarily entered treatment, Paey said he really did need large quantities of narcotics to treat his physical symptoms, a situation that is not uncommon among patients who suffer chronic pain for years and develop tolerance to the analgesic effect of their medicine.

So why the disparity in sentences? Limbaugh copped to Drug War rhetoric. He admitted addiction, didn't question the law, and did what he was told. In contrast, Paey refused to admit to any crime, and instisted on his right to find relief from his pain. Sullum writes:

Paey's refusal to call himself an addict, more than Limbaugh's celebrity, seems to be the crucial factor that led to such dramatically different outcomes in these two cases, both of which were handled by Florida prosecutors under Florida law. Like Limbaugh, Paey was initially offered an arrangement through which he could have avoided jail—although, unlike Limbaugh, he would have had to plead guilty.After Limbaugh's deal was announced, a spokesman for the Palm Beach County State Attorney's Office explained that "it's a diversion specifically for first-time offenders with no prior criminal history or arrest." He called it "standard for someone who is dealing with their addiction."

But because Paey insisted there was no addiction to deal with, the prosecution threw the book at him, charging him not just with prescription fraud but with drug trafficking.

Paey's prosecutors have admitted as much. Here's John Tierney on Paey from July of last year:

Scott Andringa, the prosecutor in the case, acknowledged that the 25-year mandatory penalty was harsh, but he said Mr. Paey was to blame for refusing a plea bargain that would have kept him out of jail.

In other words, Paey—a paraplegic with multiple sclerosis—was punished with an unspeakably cruel 25-year sentence in a maximum-security prison not for selling illicit drugs, but for "stubbornly" insisting on his right to a jury trial.

Meanwhile, the DEA's misguided war on painkillers continues. Last week, the Third Circuit denied the appeal of Pittsburgh doctor Bernard Rottschaefer, convicted of overprescribing painkillers, despite the fact that key prosecution witnesses have since admitted to committing perjury on the stand. The 63-year old Rottschaefer—a man with no previous criminal record and a spotless medical record—will serve his 6 1/2 year sentence at a maximum security prison, with a population of men convicted of sex crimes, trafficking in hard drugs, and murder.

May 5, 2006 9:59AM

Japanese FM in Washington — Who Knew?

Japanese Foreign Minister Taro Aso was in Washington for meetings on Wednesday, and he took time to speak to the media and the public at an event at the Willard Hotel.

There was considerable interest in Aso’s talk, judging from the many microphones at the podium and cameras in the back. And no wonder: if Prime Minister Junichiro Koizumi steps down later this year, as is widely expected, Aso would be a leading candidate to replace him. The security retinue of Mr. Aso is already comparable to that of a head of state, judging from the number of people with earpieces standing around the room who showed absolutely no interest in what he was saying.

And yet, Aso’s remarks didn’t merit mention on the front pages of either the Washington Post or the Washington Times. Then again, it didn’t make it into the middle pages of those papers either. The big news in the capital city of a country waging two conventional wars (and numerous smaller unconventional wars) was that the Washington Nationals baseball team had new owners. Other cities, and other papers, also seemed disinterested. After an admittedly cursory glance, I found no mention of Aso's remarks in the New York Times or the Wall Street Journal. (By way of comparison, today's Financial Times has two stories, a news article and an editorial, about the speech.)

The speech presumably got more coverage in East Asia, but Americans need to hear what Aso is saying. Of great concern on both sides of the Pacific is the nature and trajectory of China’s rise to power. If Sino–Japanese relations remain sour or grow worse, there will be a risk of conflict. And with over 35,000 U.S. troops in Japan and another 25,000 on the Korean peninsula, the United States would almost certainly become involved. Then there is the perennial flashpoint of Taiwan, the subject of my friend and mentor Ted Galen Carpenter’s latest book (America’s Coming War with China: Collision Course over Taiwan)

Mr. Aso went out of his way, both in his prepared remarks (delivered in English, by the way) and in his responses to questions, to stress the potential for peaceful coexistence between Japan and China. He did not dismiss questions about the past nor did he minimize or ignore China’s need for greater transparency and openness in its dealings with the outside world. But Aso tried his best to focus on the future. Trade is flourishing between the two countries. China has now passed the United States as Japan’s leading trading partner. There is now tremendous economic opportunity throughout East Asia, a region once characterized by crushing poverty.

As I stress in a Cato Policy Analysis published last month (“Two Normal Countries: Rethinking the U.S.–Japan Strategic Relationship,” PA 566, April 18, 2006), Japan’s emergence as a normal nation, one that is no longer dependent upon the United States for its defense, could play an important role in safeguarding East Asian security. While it would be unwise to dismiss lingering concerns in East Asia about Japan’s intentions, I stress that many of these concerns flow from a period of time that has long since past. It is well past time for Americans and East Asians to embrace the future.

Foreign ministers come and go in Washington almost every day. When Mr. Aso returns to Washington, which he is almost certain to do, it will be interesting to see if the media coverage will be any different. Perhaps the Redskins will replace the Nationals on the front pages of the hometown newspapers, or perhaps foreign policy concerns will remain focused on the Middle East. But I hope that a Prime Minister Aso will be afforded the attention that he, and that the U.S.–Japan relationship, deserves.

May 5, 2006 9:51AM

The Devil in Massachusetts

Betsy McCaughey digs into some of the details on the effects on business of Massachusetts' brave, new health insurance experiment:

Say, for example, you open a restaurant and don't provide health coverage. If the chef's spouse or child is rushed to the hospital and can't pay because they don't have insurance, you -- the employer -- are responsible for up to 100% of the cost of that medical care. There is no cap on your obligation. Once the costs reach $50,000, the state will start billing you and fine you $5,000 a week for every week you are late in filling out the paperwork on your uncovered employees (Section 44). These provisions are onerous enough to motivate the owners of small businesses to limit their full-time workforce to 10 people, or even to lay employees off.

What else is surprising about this new law? Union shops are exempt (Section 32).

Of course, in states like Maryland (where I live), the possibility of killing off jobs in small businesses would hardly deter the passage of similar laws.  As far as politicians here are concerned, undermining the private economy is not a legislative bug.  It's a feature.