Tag Archive for: politics

Bernie Sanders Thinks the Middle Class Is Deteriorating: He’s Wrong! by Corey Iacono

Sen. Bernie Sanders is a democratic socialist running for President of the United States, and his passionate populist message has won him many admirers on the left. His willingness to push for radical progressive policies (such as top income tax rates of 90 percent), which mainstream Democrats are too moderate to embrace, is steadily eroding Hillary Clinton’s dominance of the Democratic primary field.

There are several “facts” upon which Sanders has built his campaign. Probably the most important is the claim that the American middle class has been declining for quite some time. According to Sanders’s website:

The long-term deterioration of the middle class, accelerated by the Wall Street crash of 2008, has not been pretty…

Since 1999, the median middle-class family has seen its income go down by almost $5,000 after adjusting for inflation, now earning less than it did 25 years ago.

The situation is clearly dire, and the right man for the momentous job of saving the middle class is Sen. Sanders. Well, at least that’s [the] message his campaign seeks to convey.

But what if the middle class isn’t becoming worse off over time? What if the American middle class is actually doing as well as ever? Would Sanders’s supporters be as likely to endorse his more radical ideas if they weren’t convinced that the middle was becoming poorer over time — and that only progressive policies could reverse this trend?

It’s worth taking the time to examine Sanders’s claim that the middle class is worse off now than in the past. He doesn’t cite a source for his statistic, but it seems to rely on looking at the median household income over time and adjusting for inflation using the Consumer Price Index (CPI).

This is a problematic methodology because it does not control for the well-known fact that the median household has itself grown smaller over time. Even if median income stayed the same over time, a decline in the number of people in the median household over time would lead to an increase in income per household member.

Additionally, Sanders’s statistic looks at income before taxes and transfers. Transfer payments and tax credits (like the Earned Income Tax Credit) make up a significant portion of income for many lower-income families. Not controlling for these factors understates their true economic well-being.

The figures cited by Sanders also fail to take into account the fact that a larger proportion of worker compensation comes in the form of non-cash benefits (such as health insurance) now than in the past.

According to research published by the National Tax Journal, “Broadening the income definition to post-tax, post-transfer, size-adjusted household cash income, middle class Americans are found to have made substantial gains,” amounting to a 37 percent increase in income over the 1979-2007 period.

Similarly, in 2014, the Congressional Budget Office found that adjusting for changing household size and looking at income after taxes and transfers, households in all income quintiles are much better off than they were a few decades ago.

The incomes of households in the three middle income quintiles grew 40 percent between 1979 and 2011. Somewhat surprisingly, given the histrionics about the state of America’s poor, income in households in the lowest quintile was 48 percent higher in 2011 than it was in 1979.

Research from the Federal Reserve Bank of Minneapolis comes to even more optimistic conclusions.

The Consumer Price Index is widely understood to overstate inflation — among other reasons, by failing to accurately account for improvements in quality and consumer substitutions for newer or cheaper goods — which is why the Federal Open Market Committee uses an alternative measurement for inflation, the Personal Consumption Expenditures (PCE) price index, which includes more comprehensive coverage of goods and services than the CPI.

If the CPI does, in fact, overstate the extent to which prices rise over time, then it also consequently understates the growth in real, inflation-adjusted incomes over time.

Indexing median household income (post taxes and transfers) to inflation using the PCE, rather than the CPI, and adjusting for the long-run decline in household size shows that median incomes have “increased by roughly 44 percent to 62 percent from 1976 to 2006.”

Moreover, the focus on statistical categories ignores what is happening at the level of individuals and households, which may move up or down the income ladder, through different income quintiles. And studies have consistently shown that this income mobility has not changed in decades.

While the rate of growth for some income categories in recent years has been sluggish, the claim that middle incomes are declining precipitously is false. Based on these findings, it seems appropriate to conclude that Sanders’ claim that there exists a “long-term deterioration of the middle class” is patently untrue.

Learn more about wage “stagnation” from former FEE president Don Boudreaux:

Corey Iacono

Corey Iacono is a student at the University of Rhode Island majoring in pharmaceutical science and minoring in economics.

Europe Needs Regime Change in Greece: They Won’t Get It by Stephen Davies

It seems the saga of negotiations between the Greek Government and its creditors has arrived at a denouement but almost certainly not a final conclusion, and we may expect this show to return to the stage at some point, probably in the near future. The reason for this is the real nature of the ultimate problem facing both parties, something of which the creditors are still unaware.

The negotiations over the last few months have been marked by a remarkable degree of acrimony. Most of the other eurozone governments have become increasingly (and publicly) exasperated with the Greeks, and the expressions of hostility towards the Greek government from members of national parliaments have grown ever more outspoken.

Some of the reasons for this are well known — above all, the lack of a true European demos: there simply is not the kind of solidarity or shared interest in Europe that one finds in, for example, the United States.

However, there is another reason for the acrimony that has not received much attention. The creditors misunderstand what it is they are asking the Greek government and society to do. This lack of understanding is why any deal made now is likely to prove a disappointment.

The impression given by media reports is that this is all about debt, specifically the debts run up by the Greek state before 2009. Certainly there is a problem, but it is one that is soluble and does not require the kind of fraught negotiations we have seen.

The difficulty is that the fiscal state of Greece before the first bailout in 2010, and the underlying state of the Greek economy, are symptoms of a much more serious underlying problem. This is one not of debt but of competitiveness.

Quite simply the Greek economy is not productive enough to support the levels of income and public spending that it now has, without significant capital inflows from outside Greece. Before 2008 these came in the form of private loans, since then by government bailouts (even if much of this has been recycled back to private creditors).

Greek firms and labour are simply not competitive with their counterparts elsewhere in Europe, above all in Germany. Being in the euro means that they cannot adopt the traditional way of regaining at least some competitiveness by devaluing their currency. Instead, they have to deflate internally, and the attempt to do this has devastated economic life in Greece.

This is all well known. It is the reason why the creditors are demanding that, in return for a third bailout, the Greek government introduce a series of reforms to public spending, the tax system, and the machinery of the Greek state, particularly it’s tax collecting apparatus. Successive Greek government have either refused to do this or promised to do it and then failed. This is why the rest of the eurozone is becoming ever more exasperated. It here however that the misunderstanding comes in to play.

What the creditors think they are asking for is a major shift in public policy. They recognise that the shift they are asking for is radical, and many also realise that what would be involved would be a shift in the general ideological basis of Greek politics, towards a more market liberal direction. However, they are actually, without realising it, asking for something much more fundamental and drastic.

One question that should be asked is why Greece got into a position that was so much worse than that of other “peripheral” economies. Also, why has the performance of the Greek economy been so much worse than that of other countries that have had bailouts and austerity, such as Spain, Portugal, and Ireland? The answer lies in the fundamental nature of the Greek state and the political economy of Greece.

Greek political culture is dominated by practices and institutions that certainly exist elsewhere in Europe but are not as dominant. The state has a narrow tax base, with powerful interests such as the Orthodox Church effectively exempt. The revenue collection apparatus is completely ineffective so that tax evasion is endemic at every level of income.

This means that simply raising or extending VAT for instance is not enough because so many transactions are off the books. At the same time, the Greek state provides generous pensions and other benefits, which it cannot fund.

The political system appears to be a modern democracy but is in fact a much older model. The key institution is clientelism, in which political actors give out rewards to their clients in the shape of handouts and sinecures in the very large public sector. This is done much more directly than with the kind of interest group politics that we find in most democratic countries, and it is central to the whole way that politics works.

The extent of patronage means that the Greek government (whoever they are) does not have a modern, Weberian, bureaucracy to call on. Instead, most of the people in the public service owe their positions to networks of patronage and these command their loyalty.

The economy is highly regulated in ways that entrench settled interests and inhibit innovation. In particular, a very wide range of occupations are subject to rules that make it very difficult for new entrants into those sectors. Because of the inefficiency and the existence of a plethora of rules that are irksome but ultimately unenforceable, corruption is endemic and widespread throughout Greek society.

This system cannot maintain anything like the standard of living to which most Greeks aspire and as such it means that, via membership of the euro, we have seen the development of an economy that depends upon inward transfers — to a much greater degree than is the case in countries such as Spain and Ireland.

Given all this, it becomes clear that what the creditors are asking for is much more than a shift in policy, no matter how sharp and dramatic. Policy shifts of that kind are part of the normal or regular political process that take place infrequently, but still regularly, in most polities. The shift brought about by Margaret Thatcher’s election in 1979 is an example.

What is needed in Greece, and what the creditors are asking for without realising it, is something more fundamental, a change in the very nature of the political system and in the entire nature of politics and government, rather than a change of policy within a system. This is a regime change in the original and correct use of that term.

The point of course is that changes of this kind are extremely difficult and only happen extremely rarely. Sometimes it requires a revolution, as in France; on other occasions, it takes place in the context of a fundamental crisis such as defeat in a major war. Very rarely it can happen when there is a near consensus in a society over what to do, as in Japan in the 1870s.

The current Greek government is almost certainly aware of this, but, apart from ideological objections to part of the list of reforms, they are quite simply unable, rather than unwilling, to do what is asked because a change in the political order is simply very, very hard.

So the creditors are likely to be disappointed and will then become even more enraged. Moreover, being in the euro makes any attempt at systemic change in Greece even more difficult than it would be already, because if removes a range of policy options that could alleviate some of the transition costs.

As most economists of all persuasions now think, the best option is a managed Greek exit from the euro. If this does not happen (as seems likely) then this farce is a production that will run for some time.


Stephen Davies

Stephen Davies is a program officer at the Institute for Humane Studies and the education director at the Institute for Economics Affairs in London.

Students Expect (and Demand) to Have Their Beliefs Confirmed by George C. Leef

With so many more Americans going to college than in the past, you would think that anti-intellectualism would be a distant, rapidly fading memory. But you’d be mistaken, argue Mark Bauerlein and Adam Bellow, editors of a sharp new book The State of the American Mind.

“Instead of acquiring a richer and fuller knowledge of U.S. history and civics, American students and grown-ups display astounding ignorance of them, and their blindness is matched by their indifference to the problem,” write Bauerlein and Bellow.

Increasingly, Americans shrug at the idea of basic liberties but “accept restrictions on speech, freedom of association, rights to privacy, and religious conscience.”

The book they have put together shows the depth of these worrisome trends.

Each of the sixteen essays included is worthwhile. I am going to focus in particular on one that dovetails especially with the work of the Pope Center — Greg Lukianoff’s “How Colleges Create the ‘Expectation of Confirmation.’”

Lukianoff is the president of the Foundation for Individual Rights in Education (FIRE), a group that stands up for free speech on campus no matter who the speaker is or what the content of the message might be.

In his essay, he laments the fact that many college students have become so bold as to demand that school administrators silence speakers with whom they disagree and “protect” them from arguments contrary to their beliefs.

Or, it would be more accurate to say, “assume they disagree with,” because they refuse to allow the individuals to speak. Therefore, they are spared having to actually think of logical responses after listening to the speaker’s arguments. So is everyone else on campus, of course.

The “heckler’s veto” thus affects those would like to hear the speaker’s message just as much as those who think they’re entitled to silence perceived enemies.

Lukianoff presents quite a few instances, starting with one at Brown University, where Ray Kelly, former New York City police commissioner, had been scheduled to give a talk. A group of students managed to so disrupt the event that Kelly finally gave up and left the building. Afterward, a student who had been at the center of the disgraceful, anti-intellectual protest bragged, “They decided not to cancel the lecture, so we decided to cancel it for them.”

The intellectual climate on many campuses has been in decline for years, but it seems to be speeding up. Just a few years ago, the big new trend was the demand that lectures, books, and everything else on campus that might possibly offend anyone be scrubbed of ideas or images that might “trigger” a sensitive student. Lukianoff senses that we are moving further into this swamp as the “right not to be offended” morphs into “the right to have your views confirmed and not challenged.”

Although it occurred too recently to make it into the book, the Laura Kipnis furor is evidence for Lukianoff’s point. When a liberal feminist professor at Northwestern wrote an essay that took issue with the popular trope that college campuses are dangerous places for women and need more federal oversight, she was blasted by women students who couldn’t stand Professor Kipnis’ disagreement with their cherished beliefs.

The students did more than just wring their hands and write about their hurt feelings. They filed an official complaint against Kipnis with Northwestern’s “Title IX coordinator,” claiming that her writings had violated their rights. Thus began an amazing, Kafka-esque series of proceedings for Kipnis, which she details here.

My point is not that Title IX invites abuse, although it certainly does. My point is that we now have college students who think that it is proper to bring down the weight of federal regulation on the head of a professor simply for saying something that clashed with a view they expected to be reinforced.

It’s especially troubling that the students went after a member of the faculty. In the past, you would have expected students to at least show a bit of deference towards scholarly thought. “Maybe we should consider the possibility that Professor X has a point here….”

But now we find a new breed of know-it-all students who eagerly use the machinery of federal regulation to wreak vengeance on a professor for writing something they find disagreeable.

Lukianoff’s analysis of the reasons for this deplorable state of affairs centers on the way Americans increasingly “cluster” ideologically. That is, they tend to hear only opinions that coincide with theirs and, disturbingly, that phenomenon becomes more apparent as educational levels rise.

Citing Diana Mutz’s book Hearing the Other Side, Lukianoff notes that “people with a high school education or less are the most likely to engage in discussions along lines of political and philosophical disagreement, while those with higher levels of education are less likely.”

I suspect that observation is generally correct, but the effect is much more pronounced among leftist students. Students who have at least some sympathy for private property, free enterprise, and individual responsibility are very apt to encounter people, especially in the education system, who will argue against their beliefs. (“Denounce” would often be a more accurate word than “argue,” however.)

As Professor Michael Munger observed in this Pope Center piece last year, it is leftist students who are likely to get rewarded just for stating the “correct” beliefs. Conservative and libertarian students don’t develop that expectation of having their opinions validated and their egos stroked because they can hardly avoid intellectual combat. There is a huge ideological asymmetry here.

Moreover, leftist students themselves tend to cluster in courses where ideology is the primary focus and professors are prone to reinforcing their already formed views about the array of “social justice” topics.

As a means of countering this noxious trend of students who think that the point of college is to reinforce their existing beliefs, Lukianoff suggests that part of freshman orientation be devoted to “instruction in productive academic engagement.” That is, tell students “we fight offensive speech not with censorship but with contrary words.”

That is a superb idea. Orientations should be used for the salutary academic purpose of explaining to students what intellectual arguments are and how they’re conducted. An assignment might be to read that part of John Stuart Mill’s On Liberty that deals with the importance of free speech and debate.

Schools should be just as interested in making sure that students know the rules of academic dispute as that they know the rules, say, about drinking on campus.

We hear again and again from college leaders that they want students to learn “critical thinking skills,” but evidence keeps mounting that the exact opposite is happening — that many students are learning how to make life miserable for those who dare to disagree with them.

Leaders who really care about the intellectual development of the students who come to their schools ought to pay attention to the alarm Greg Lukianoff is sounding.

This post first appeared at the Pope Center.

George C. Leef

George Leef is the former book review editor of The Freeman. He is director of research at the John W. Pope Center for Higher Education Policy.

Real Hero William Leggett: Imagine a Political Party That Really Supports Equal Rights by Lawrence W. Reed

Death from yellow fever complications claimed journalist William Leggett at the tender age of 38, days before he would have assumed his first political office. President Martin Van Buren had just named Leggett US ambassador to Guatemala. In the early 19th century, as temptations were rising to divert Americans’ constitutional framework toward bigger government, Leggett (to borrow a phrase from 20th-century journalist William F. Buckley) stood athwart history yelling, “Stop!”

Leggett’s fame is inextricably intertwined with the term Locofoco. Here’s the story.

Imagine a political movement that says it’s committed to “equal rights” — and means it. Not just equality in a few cherry-picked rights but all human rights, including the most maligned: property rights. Imagine a movement whose raison d’être is to oppose any and all special privileges from government for anybody.

When it comes to political parties, most of them in recent American history like to say they’re for equal rights. But surely the first lesson of politics is this: what the major parties say and do are two different things.

In American history, no such group has ever been as colorful and as thorough in its understanding of equal rights as one that flashed briefly across the political skies in the 1830s and ‘40s. They were called “Locofocos.” If I had been around back then, I would have proudly joined their illustrious ranks.

The Locofocos were a faction of the Democratic Party of President Andrew Jackson, concentrated mostly in the Northeast and New York in particular, but with notoriety and influence well beyond the region. Formally called the Equal Rights Party, they derived their better-known sobriquet from a peculiar event on October 29, 1835.

Democrats in New York City were scrapping over how far to extend Jackson’s war against the federally chartered national bank at a convention controlled by the city’s dominant political machine, Tammany Hall. (Jackson had killed the bank in 1832 by vetoing its renewal.) When the more conservative officialdom of the convention expelled the radical William Leggett, editor of the Evening Post, they faced a full-scale revolt by a sizable and boisterous rump. The conservatives walked out, plunging the meeting room into darkness as they left by turning off the gas lights. The radicals continued to meet by the light of candles they lit with matches called loco focos — Spanish for “crazy lights.”

With the Tammany conservatives gone and the room once again illuminated, the Locofocos passed a plethora of resolutions. They condemned the national bank as an unconstitutional tool of special interests and an engine of paper-money inflation. They assailed all monopolies, by which they meant firms that received some sort of privilege or immunity granted by state or federal governments. They endorsed a “strict construction” of the Constitution and demanded an end to all laws that “directly or indirectly infringe the free exercise of equal rights.” They saw themselves as the true heirs of Jefferson, unabashed advocates of laissez-faire and of minimal government confined to securing equal rights for all and dispensing special privileges for none.

The Locofocos saw themselves as the true heirs of Jefferson, unabashed advocates of laissez-faire and of minimal government.

Three months later, in January 1836, the Locofocos held a convention to devise a platform and to endorse candidates to run against the Tammany machine for city office in April. They still considered themselves Democrats: rather than bolt and form a distinct opposition party, they hoped to steer the party of Jefferson and Jackson to a radical reaffirmation of its principled roots.

“We utterly disclaim any intention or design of instituting any new party, but declare ourselves the original Democratic party,” they announced.

The “Declaration of Principles” the Locofocos passed at that January gathering is a stirring appeal to the bedrock concept of rights, as evidenced by these excerpts:

  • “The true foundation of Republican Government is the equal rights of every citizen, in his person and property, and in their management.”
  • “The rightful power of all legislation is to declare and enforce only our natural rights and duties, and to take none of them from us.”
  • “No man has a natural right to commit aggression on the equal rights of another; and this is all the law should enforce on him.”
  • “The idea is quite unfounded that on entering into society, we give up any natural right.”

The convention pronounced “hostility to any and all monopolies by legislation,” “unqualified and uncompromising hostility to paper money as a circulating medium, because gold and silver are the only safe and constitutional currency,” and “hostility to the dangerous and unconstitutional creation of vested rights by legislation.”

From affirmative action to business subsidies, today’s Congress and state legislatures routinely bestow advantages on this or that group at the expense of others. The Locofoco condemnation of such special privilege couldn’t be clearer:

We ask that our legislators will legislate for the whole people and not for favored portions of our fellow-citizens, thereby creating distinct aristocratic little communities within the great community. It is by such partial and unjust legislation that the productive classes of society are … not equally protected and respected as the other classes of mankind.

William Leggett, whose expulsion from the October gathering by the Tammany Democrats sparked the Locofocos into being, was the intellectual linchpin of the whole movement. After a short stint editing a literary magazine called theCritic, he was hired as assistant to famed poet and editor William Cullen Bryant at the New York Evening Post in 1829. Declaring “no taste” for politics at first, he quickly became enamored of Bryant’s philosophy of liberty.

He emerged as an eloquent agitator in the pages of the Post, especially in 1834 when he took full charge of its editorial pages while Bryant vacationed in Europe. Leggett struck a chord with the politically unconnected and with many working men and women hit hard by the inflation of the national bank.

In the state of New York at the time, profit-making businesses could not incorporate without special dispensation from the legislature. This meant, as historian Richard Hofstadter explained in a 1943 article, that “men whose capital or influence was too small to win charters from the lawmakers were barred from such profitable lines of corporate enterprise as bridges, railroads, turnpikes and ferries, as well as banks.”

Leggett railed against such privilege: “The bargaining and trucking away of chartered privileges is the whole business of our lawmakers.” His remedy was “a fair field and no favor,” free-market competition unfettered by favor-granting politicians. He and his Locofoco followers were not anti-wealth or anti-bank, but they were vociferously opposed to any unequal application of the law. To Leggett and the Locofocos, the goddess of justice really was blindfolded. His relentless rebukes of what we would call today “crony capitalism” are well represented in this excerpt from an 1834 editorial:

Governments have no right to interfere with the pursuits of individuals, as guaranteed by those general laws, by offering encouragements and granting privileges to any particular class of industry, or any select bodies of men, inasmuch as all classes of industry and all men are equally important to the general welfare, and equally entitled to protection.

The Locofocos won some local elections in the late 1830s and exerted enough influence to see many of their ideas embraced by no less than Martin Van Buren when he ran successfully for president in 1836. By the middle of Van Buren’s single term, the Locofoco notions of equal rights and an evenhanded policy of a small federal government were reestablished as core principles of the Democratic Party. There they would persist for more than half a century after Leggett’s death, through the last great Democratic president, Grover Cleveland, in the 1880s and 1890s. Sadly, those essentially libertarian roots have long since been abandoned by the party of Jefferson and Jackson.

Upon Leggett’s untimely death in 1839, poet William Cullen Bryant penned an eloquent obituary in which he wrote, in part, the following tribute:

As a political writer, Mr. Leggett attained, within a brief period, a high rank and an extensive and enviable reputation. He wrote with great fluency and extraordinary vigor; he saw the strong points of a question at a glance, and had the skill to place them before his readers with a force, clearness and amplitude of statement rarely to be found in the writings of any journalist that ever lived. When he became warmed with his subject, which was not unfrequently the case, his discussions had all the stirring power of extemporaneous eloquence.

His fine endowments he wielded for worthy purposes. He espoused the cause of the largest liberty and the most comprehensive equality of rights among the human race, and warred against those principles which inculcate distrust of the people, and those schemes of legislation which tend to create an artificial inequality in the conditions of men. He was wholly free — and, in this respect his example ought to be held up to journalists as a model to contemplate and copy — he was wholly free from the besetting sin of their profession, a mercenary and time-serving disposition. He was a sincere lover and follower of truth, and never allowed any of those specious reasons for inconsistency, which disguise themselves under the name of expediency, to seduce him for a moment from the support of the opinions which he deemed right, and the measures which he was convinced were just. What he would not yield to the dictates of interest he was still less disposed to yield to the suggestions of fear.

We sorrow that such a man, so clear-sighted, strong minded and magnanimous has passed away, and that his aid is no more to be given in the conflict which truth and liberty maintain with their numerous and powerful enemies.

If you’re unhappy that today’s political parties give lip service to equal rights as they busy themselves carving up what’s yours and passing out the pieces, don’t blame me. I’m a Locofoco and a fan of William Leggett.

For further information, see:


Lawrence W. Reed

Lawrence W. (“Larry”) Reed became president of FEE in 2008 after serving as chairman of its board of trustees in the 1990s and both writing and speaking for FEE since the late 1970s.

EDITORS NOTE: Each week, Mr. Reed will relate the stories of people whose choices and actions make them heroes. See the table of contents for previous installments.

Religious Charities, Gay Marriage, and Adoption: A Case for Pluralism by Walter Olson

At Reason, Scott Shackford has a valuable piece on where libertarians’ interests are likely to coincide with those of organized gay rights advocates and where they are likely to diverge, following the Supreme Court’s ruling on marriage.

One flashpoint of controversy is likely to be the role of conservative religious agencies in areas of adoption that are commonly assisted with public funds (as with the adoption of older kids from foster care).

It is now legal all across America for gay people to adopt children, and now with same-sex marriage, they can adopt their partner’s child as well. This fight is largely over, and was actually pretty much won even before gay marriage recognition.

But there is another side, and it ties back into the treatment of religious people. Some adoption agencies are tied to religious groups who do not want to serve same-sex couples or place children in same-sex homes. They are also typically recipients of state funding for placing children, and are therefore subject to state regulation. Should they be required to serve gay couples?

Some states, such as Illinois, attempted to force them. As a result, Catholic Charities, which helped the state find adoptive and foster home services for four decades, stopped providing their services in 2011.

At the time, a gay activist declared this a victory, saying “Finding a loving home for the thousands in the foster/adoption system should be the priority, not trying to exclude people based on religious dogma.”

Some libertarians I admire have taken the view that where any public dollars are involved, private social service agencies must be held to rigorous anti-discrimination standards.

While I respect this view, I don’t share it.

Programs that are explicitly voucherized (such as G.I. Bill college tuition benefits, which can be used for seminary study) often go to institutions that I might find discriminatory, and the same logic can apply even with some less explicitly voucherized benefits.

If a state depot is dispensing gasoline to rescuers’ boats after Katrina, and Catholic Charities’s boats spare the need for government boats to reach some rescue targets, the “subsidy” might in fact save the taxpayers money.

In Olson’s experience, the more agencies out there serving the needs of the children looking for homes, the better. …

Much as with the controversies over bakers and florists, being denied service by one agency does not actually impact a gay couple’s ability to find and adopt children at all.

But eliminating Catholic Charities from the pool reduces the number of people able to help place these children. It’s the children who are punished by the politicization of adoption, not Catholic Charities.

This is especially important when dealing with older children or children with special medical needs. … Allowing both sides (and others as well) to play their role as they see fit benefits all children in the system.

As for the concern that some adoption agencies take taxpayer money and then discriminate, Olson points out that it’s much more expensive to the taxpayers to leave children to be raised by the state, not to mention terribly cruel.

“If you don’t care about the kids or the families, at least care about the taxpayers,” Olson says. But you should probably care about the kids, too.

I’ve written about the same set of issues (in the foster care context) before. The new Reason piece is here.


Walter Olson

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies.

RELATED ARTICLE: ‘Cake Artist’ Fights in Court to Be Able to Refuse to Make Wedding Cakes for Gay Couples

EDITORS NOTE: This post first appeared at Cato.org.

Celebrate Independence With a Revolution Against the Surveillance State by Ryan Hagemann

In the decade before 1776, British courts began issuing “writs of assistance” for the general search and seizure of colonists’ documents. The intention was to permit British troops to inspect properties for smuggled goods, but these writs gave officials broad power to enter private homes to search for, and seize, anything and everything that might be considered contraband by the British Empire.

Such general warrants were among the many complaints the colonists levied against the crown and played no small part in the American Revolution.

This Independence Day, it would behoove us all, as Americans, to reflect on the motivations for the colonists’ revolt against Britain. In a 2013 piece at the Huffington Post, Radley Balko spoke on the core meaning of the Fourth of July:

Independence Day isn’t for celebrating the American government and whoever happens to be currently running it, but for celebrating the principles that make America unique.

And in fact, celebrating the principles that [animated] the American founding often means celebrating the figures who have defended those principles in spite of the government.

The list of modern Americans who have stood as stalwart guardians of the principles of liberty is regrettably short. More concerning, however, is what has happened in the years since 9/11, as fear and paranoia over terrorism gripped the American electorate and absconded with many of the basic liberties that the founding generation fought and died to uphold. America just isn’t what it used to be.

But the tides of unrestrained surveillance seem to be receding.

A few weeks ago, thanks to a vibrant and broad coalition of civil libertarians, grassroots organizations, and cross-aisle partners, America finally took the first step in reining in the secret surveillance state that Edward Snowden revealed to us almost two years ago to the day. The USA FREEDOM Act, for all its flaws, stands as the most significant piece of surveillance reform legislation since 1978 and signals Congress’s willingness to work on surveillance reform.

While there is much to do in preparing for upcoming battles over government surveillance, a look back at recent events can help shed light on how we as libertarians can best move forward.

Not surprisingly, the debate left some dissatisfied that the reforms did not go far enough, while others considered anything short of a full USA PATRIOT Act reauthorization to be an unacceptable compromise.

Filled with riotous rhetorical broadsides, the debate featured civil libertarians supporting reform against civil libertarians backing a complete, uncompromising end to the surveillance state, pitting Republican hawks against centrists and Democrats, and Sen. Rand Paul against pretty much everyone.

In a story of strange political bedfellows, Sen. Paul joined hawks such as Sen. John McCain and Sen. Richard Burr in voting against the USA FREEDOM Act. While Paul criticized components of the bill for not going far enough (all criticisms being perfectly fair and true), the political reality was such that this bill, however imperfect, was by far the best chance for reform in the near term.

As Cato’s Julian Sanchez noted prior to its passage: “While ‘Sunset the Patriot Act’ makes for an appealing slogan, the fact remains that the vast majority of the Patriot Act is permanent — and includes an array of overlapping authorities that will limit the effect of an expiration.”

In other words, the limitations of USA FREEDOM would actually be more effective than simply letting a two or three provisions of the USA PATRIOT Act (temporarily) expire.

The heroes of this debate were a broad coalition of civil-society groups, technology firms, and nonprofits dedicated to moving the ball forward on reform, no matter how small the gain.

However, even as some are celebrating this small but important victory, there are troubled waters ahead for privacy advocates and civil libertarians. The upcoming Senate vote on the Cybersecurity and Information Sharing Act (CISA) is the next battle in the ongoing war against the surveillance apparatus. If passed, it would be one step forward, two steps back for the small victories privacy advocates have won over the past month.

I’ve written quite a bit on the issues that many civil libertarian organizations have with CISA, which is little more than a surveillance Trojan Horse containing a host of “information-sharing” provisions that would allow intelligence agencies to acquire information from private firms and use it to prosecute Americans for garden-variety crimes unrelated to cybersecurity, due process be damned.

A broad coalition of organizations has once more come together, this time to oppose CISA, to continue the battle against expanding the surveillance state.

In public policy, the Overton window refers to the spectrum of policy prescriptions and ideas that the public views as tolerable: the political viability of any idea depends not on the personal preferences of politicians, but on whether it falls within the range of publicly acceptable options.

That is why a willingness to compromise is so vital in public-policy discussions. Marginal reforms should be seen as victories in the slow but consistent effort to rein in the excesses of our Orwellian security order.

USA FREEDOM is far from ideal, and the expiration of provisions of the PATRIOT Act, such as Section 215, will not stop government surveillance in its tracks. The government can still use National Security Letters (NSL), and Section 702 of the FISA Amendments Act can still be creatively interpreted by the intelligence community to justify continued mass surveillance, to say nothing of Executive Order 12333, which covers surveillance conducted outside of the United States.

Nonetheless, the new law is an important first step towards tearing down the most onerous provisions of the PATRIOT Act in a piecemeal fashion. This may seem a daunting and less-than-ideal approach for many libertarians, but the alternative is merely symbolic gesticulation.

So where do we go from here?

Libertarians need to start working with nontraditional allies to support, on an issue-by-issue basis, real, practical reforms to the surveillance state. If we do not, we cannot hope to be effective and valuable partners to those individuals and organizations working tirelessly in support of the same values and freedoms that we all hold dear.

We must also recognize that there are limitations to compromise, and we should never forsake our core principles in favor of political expediency. But, on the margins, we can make significant contributions to civil liberties, especially in the ongoing surveillance reform debate. Recognizing the reality of what is achievable in the current political landscape is necessary for identifying and taking advantage of the available opportunities for restoring liberty.

We have a choice in the upcoming surveillance-reform fights: We can be positive contributors to a legacy of liberty for future generations, or we can continue to fancy ourselves armchair philosophers, ignoring public-policy realities and taking comfort in the echo chamber that never challenges our worldview.

Given political realities, marginal reforms constitute the fastest path forward. The American people are owed their civil liberties; hence, we must fight to move, however incrementally, towards a freer, more civil society.


Ryan Hagemann

Ryan Hagemann is a civil liberties policy analyst at the Niskanen Center.

RELATED ARTICLE: Cyber Security: Where are we now and where are we headed?

Gays Need the Freedom to Discriminate by Jeffrey A. Tucker

Gaining the right to be married is a win for liberty because it removes a barrier to free association. But how easily a movement for more freedom turns to the cause of taking away other freedoms!

Following the Supreme Court decision mandating legal same-sex marriage nationwide, the New York Times tells us that, “gay rights leaders have turned their sights to what they see as the next big battle: obtaining federal, state and local legal protections in employment, housing, commerce and other arenas.”

In other words, the state will erect new barriers to freedom of choice in place of the old ones that just came down!

To make the case against such laws, it ought to be enough to refer to the freedom to associate and the freedom to use your property as you see fit. These are fundamental principles of liberalism. A free society permits anything peaceful, and that includes the right to disassociate. Alas, such arguments seem dead on arrival today.

So let us dig a bit deeper to understand why anti-discrimination laws are not in the best interests of gay men and women, or anyone else. Preserving the ability to discriminate permits the market system to provide crucial information feedback to a community seeking to use its buying power to reward its friends and noncoercively, nonviolently punish those who do not share its values.

Ever more, consumers are making choices based on core values. Does this institution protect the environment, treat its workers fairly, support the right political causes? In order to make those choices — which is to say, in order to discriminate — consumers need information.

In the case of gay rights, consumers need to know who supports inclusion and who supports exclusion. Shutting down that information flow through anti-discrimination law robs people of crucial data to make intelligent buying decisions. Moreover, such laws remove the competitive pressure of businesses to prove (and improve) their commitment to community values, because all businesses are ostensibly bound by them.

A market that permits discrimination, even of the invidious sort, allows money and therefore success and profits to be directed toward those who think broadly, while denying money and profitability to those who do not. In this way, a free market nudges society toward ever more tolerant and inclusive attitudes. Money speaks far more persuasively than laws.

Notice that these proposed laws only pertain to the producer and not the consumer. But discrimination is a two-edged sword. The right can be exercised by those who do not like some groups, and it can be exercised by those groups against those who do not like them.

Both are necessary and serve an important social function. They represent peaceful ways of providing social and economic rewards to those who put aside biases in favor of inclusive decision making.

If I’m Catholic and want to support pro-Catholic businesses, I also need to know what businesses don’t like Catholics. If I’m Muslim and only want my dollars supporting my faith, I need to know who won’t serve Muslims (or who will put my dollars to bad use). If a law that prohibits business from refusing to serve or hire people based on religion, how am I supposed to know which businesses deserve my support?

It’s the same with many gay people. They don’t want to trade with companies that discriminate. To act out those values requires some knowledge of business behavior and, in turn, the freedom to discriminate. There is no gain for anyone by passing a universal law mandating only one way of doing business. Mandates drain the virtue out of good behavior and permit bad motivations to hide under the cover of law.

Here is an example from a recent experience. I was using AirBnB to find a place to stay for a friend. He needed a place for a full week, so $1,000 was at stake. The first potential provider I contacted hesitated and began to ask a series of questions that revolved around my friend’s country of origin, ethnicity, and religion. The rental owner was perfectly in his rights to do this. It is his home, and he faces no obligation to open it to all comers.

On the other hand, I found the questions annoying, even offensive. I decided that I didn’t want to do business with this person. I made a few more clicks, cancelled that query, and found another place within a few minutes. The new renter was overjoyed to take in my friend.

I was delighted for two reasons. First, my friend was going to stay at a home that truly wanted him there, and that’s important. Force is never a good basis for commercial relationships. Second, I was able to deny $1K to a man who was, at best, a risk averse and narrow thinker or, at worst, an outright bigot.

Declining to do business with him was my little protest, and it felt good. I wouldn’t want my friend staying with someone who didn’t really want him there, and I was happy not to see resources going toward someone whose values I distrusted.

In this transaction, I was able to provide a reward to the inclusive and broad-minded home owner. It really worked out too: the winning rental property turned out to be perfect for my friend.

This was only possible because the right to discriminate is protected in such transactions (for now). I like to think that the man who asked too many questions felt a bit of remorse after the fact (he lost a lot of money), and even perhaps is right now undergoing a reconsideration of his exclusionary attitudes. Through my own buyer decisions I was actually able to make a contribution toward improving cultural values.

What if anti-discrimination laws had pertained? The man would not have been allowed to ask about national origin, religion, and ethnicity. Presuming he kept his room on the open market, he would have been required under law to accept my bid, regardless of his own values.

As a result, my money would have gone to someone who didn’t have a high regard for my friend, my friend would have been denied crucial information about what he was getting into, and I would not be able to reward people for values I hold dear.

This is precisely why gay rights leaders should be for, not against, the right to discriminate. If you are seeking to create a more tolerant society, you need information that only a free society can provide.

You need to know who is ready to serve and hire gay men and women, so they can be rewarded for their liberality. You also need to know who is unwilling to hire and serve so that the loss part of profit-and-loss can be directed against ill-liberality. Potential employees and customers need to know how they are likely to be treated by a business. Potential new producers need to know about business opportunities in under-served niche markets.

If everyone is forced to serve and hire gays, society is denied important knowledge about who does and does not support enlightened thinking on this topic.

Consider the prototypical case of the baker who doesn’t want to make a wedding cake for a same-sex couple. He is within his rights. His loss of a potential customer base is his own loss. It is also the right of the couple to refuse to give this baker business. The money he would have otherwise made can be redirected towards a baker who is willing to do this. It is equally true that some people would rather trade with a baker who is against gay marriage, and they are within their rights as well.

Every act of discrimination, provided it is open and legal, provides a business opportunity to someone else.

How does all this work itself out in the long run? Commerce tends toward rewarding inclusion, broadness, and liberality. Tribal loyalties, ethnic and religious bigotries, and irrational prejudices are bad for business. The merchant class has been conventionally distrusted by tribalist leaders — from the ancient to the modern world — precisely because merchantcraft tends to break down barriers between groups.

We can see this in American history following the end of slavery. Blacks and whites were ever more integrated through commercial exchange, especially with the advance of transportation technology and rising incomes. This is why the racists turned increasingly toward the state to forbid it. Zoning laws, minimum wage regulation, mandatory segregation, and occupational licensing were all strategies used to keep the races separate even as the market was working toward integration.

The overwhelming tendency of markets is to bring people together, break down prejudices, and persuade people of the benefits of cooperation regardless of class, race, religion, sex/gender, or other arbitrary distinctions. The same is obviously and especially true of sexual orientation. It is the market that rewards people who put aside their biases and seek gains through trade.

This is why states devoted to racialist and hateful policies always resort to violence in control of the marketplace. Ludwig von Mises, himself Jewish and very much the victim of discrimination his entire life, explained that this was the basis for Nazi economic policy. The market was the target of the Nazis because market forces know no race, religion, or nationality.

“Many decades of intensive anti-Semitic propaganda,” Mises  wrote in 1944, “did not succeed in preventing German ‘Aryans’ from buying in shops owned by Jews, from consulting Jewish doctors and lawyers, and from reading books by Jewish authors.” So the racists turned to the totalitarian state — closing and confiscating Jewish business, turning out Jewish academics, and burning Jewish books — in order to severe the social and economic ties between races in Germany.

The biggest enemy of marginal and discriminated-against populations is and has always been the state. The best hope for promoting universal rights and a culture of tolerance is the market economy. The market is the greatest weapon ever devised against bigotry — but, in order to work properly, the market needs to signaling systems rooted in individuals’ freedom of choice to act on their values.

And, to be sure, the market can also provide an outlet for people who desire to push back for a different set of values, perhaps rooted in traditional religious concerns. Hobby Lobby, Chick-Fil-A, In-and-Out Burger, among many others, openly push their religious mission alongside their business, and their customer base is drawn to them for this reason. This is also a good thing. It is far better for these struggles to take place in the market (where choice rules) rather than through politics (where force does).

Trying to game that market by taking away consumer and producer choice harms everyone. Anti-discrimination laws will provide more choices at the expense of more informed choices. Such laws force bigotry underground, shut down opportunities to provide special rewards for tolerance, and disable the social learning process that leads to an ever more inclusive society.

New laws do not fast-track fairness and justice; they take away opportunities to make the world a better place one step at a time.


Jeffrey A. Tucker

Jeffrey Tucker is Director of Digital Development at FEE, CLO of the startup Liberty.me, and editor at Laissez Faire Books. Author of five books, he speaks at FEE summer seminars and other events. His latest book is Bit by Bit: How P2P Is Freeing the World.

“SCOTUScare”: Supreme Court Guts Obamacare to Uphold Subsidies by Daniel Bier

The Supreme Court has voted 6-3 (with Chief Justice Roberts writing the majority opinion, joined by Justice Kennedy and the four liberal justices) to uphold the subsidies the IRS is distributing for health insurance plans purchased on the federal insurance exchange.

This ruling sets a dangerous precedent, and its reasoning is, as Justice Scalia wrote in his dissent, “quite absurd.”

There will no doubt be much written about the decision in the coming days, and almost all of it will mischaracterize the ruling as the Supreme Court “saving” the Affordable Care Act again.

This is a crucial error: The Court’s ruling guts the ACA and rewrites [it] in a way that is politically convenient for the president — again.

When the Patient Protection and Affordable Care Act was passed in 2010, the law was designed to work through a “cooperative federalism” approach. For example, the portion of the law expanding Medicaid, like the rest of Medicaid, would be a joint federal-state program, partly funded and regulated by the feds but administered by the states.

The part of the law meant to increase individually purchased insurance coverage was similarly designed to work through federal-state cooperation.

Each state would set up its own health insurance “exchange,” and the federal government would issue tax credits for qualified individuals who purchased policies on the state exchanges. The logic here is that the states are best suited to run exchanges for their residents, as they have particular and specialized knowledge about other state healthcare programs, state regulations on insurance, and their residents’ health needs.

But the law did not (and constitutionally could not) force state governments set up exchanges. So as a backstop, a separate section of the law allows the federal government to set up an exchange for residents in states that did not set up their own.

Here’s where it got problematic: The plain text of the law only authorizes tax credits for policies purchased on an “exchange established by the State.”

There’s no easy way around this fact. Nowhere does the ACA authorize subsidies for plans purchased on the federal exchange. None of this would have been an issue if every state had chosen to build an exchange, as the law’s authors anticipated.

But in reality, the ACA has been persistently unpopular, and only 14 states (and DC) had working exchanges. The details of the backstop provision suddenly became a lot more important as the residents of 36 states were cast onto the federal exchange.

Faced with uncooperative federalism, the Obama administration suddenly had a big political problem, and it would have been quite embarrassing for the law’s biggest benefit to evaporate just as the president was planning to run for reelection on it.

So 14 months after the bill was signed into law, the IRS issued a rule, by executive fiat, to issue subsidies on the federal exchange. Because the penalty for failing [to] purchase health insurance is based on the cost of insurance, including subsidies, relative to a person’s income, individuals and businesses in states without exchanges who would otherwise have been exempt from fines and mandates were now in violation.

Lawsuits followed, which argued the IRS’s decision to issue subsidies in states that had declined to create exchanges was against the law, and it had resulted in actual harm to them.

In one of the lower court rulings on this issue, the DC Circuit concluded that the law offered no clear basis for issuing subsidies through the federal exchange.

If Congress intended to issue subsidies through the federal exchange, it would have been perfectly easy for them to say so, in any number of sections. And if Congress intended to treat the federal exchange as though it were a State entity (as the ACA does with US territories’ exchanges), it knew how to do that too. Yet there is no section of the law that does this.

Some argued that this omission was a “drafting error,” a legislative slip-up. If so, it was one it made over and over again, in at least ten different sections. And, as Michael Cannon rather pointedly asks, if it was a drafting error, why didn’t the government make that case in court? Why didn’t the IRS make that claim when they issued the new rule?

The answer may be that the law meant what the law says. The scant legislative history on this question doesn’t show that Congress ever thought that subsidies were going to be disbursed through the federal exchanges. Perhaps the law’s authors simply didn’t think about it or did not consider the possibility that most states would refuse.

But, in fact, it is entirely plausible that the ACA’s authors intended to only offer subsidies to residents of states that created exchanges, as an incentive to states to build and run them.

The reasons why Congress wanted the states to run the exchanges are perfectly clear. But, apart from the possibility of losing the subsidies, there seems to be little reason for state governments to take the risk of building one of the notoriously dysfunctional exchanges if they could dump their citizens onto the federal exchange with no consequences.

Jonathan Gruber, an MIT economist who was involved in the design of the health care law, explicitly claimed that the law’s authors did this on purpose:

If you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. … I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it.

On the other hand, the government argued (and Roberts accepted) that the text of the law is ambiguous, and ambiguous phrases should be interpreted “in their context and with a view to their place in the overall statutory scheme,” the goal of which was to increase health insurance coverage.

Given that, Roberts concludes, we should construe “exchange established by the State” to mean any ACA exchange, whether Federal or State.

Roberts got to this reasoned, methodical, and preposterous conclusion by arguing that the plain meaning of the text would lead to “calamitous results” that Congress meant to avoid. To wit, that only allowing subsidies for plans purchased on state exchanges would cause a “death spiral” in the insurance market in states that refused to establish exchanges.

The ACA reform has three basic components: subsidies for insurance plans, the individual mandate to purchase insurance, and regulations requiring insurers to issue coverage to people with preexisting conditions (“guaranteed issue”) and banning them from charging higher premiums to sicker people (“community rating”).

The “death spiral” logic goes:

  • If states chose not to establish exchanges, their residents would not get subsidies;
  • If they couldn’t get subsidies, many people would be exempt from the insurance mandate;
  • If they were exempt, they could just wait until they got sick to buy insurance;
  • If they did that, insurers would have to accept them, under the guaranteed issue rule;
  • If that happened, the price of insurance would go up for everyone, under community rating;
  • If that happened, more healthy people would drop out of the insurance market, leaving insurers with a pool of ever sicker and more expensive patients (“adverse selection”), thus forcing insurers out of business and leaving even more people without insurance. And so on.

Hence, “death spiral.” In fact, this is exactly what happened in the 1990s in many states with guaranteed issue and community rating, before Massachusetts invented the mandate to force people to buy insurance and keep the pool of insured people relatively healthy.

But in the ACA, the mandate rests on the cost of insurance with subsidies, and (under the plain text of the law) the subsidies rest on the states establishing exchanges. If the subsidies go, fewer people will buy insurance, and the mandate crumbles, leading to a spiral of higher costs and fewer people insured.

Roberts concluded that this risk would have been unacceptable to Congress, arguing: “The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. It is implausible that Congress meant the Act to operate in this manner.”

This perceived implausibility, combined with the alleged ambiguity of the text, caused the Court to rule in favor of the subsidies:

Petitioners’ plain-meaning arguments are strong, but the Act’s context and structure compel the conclusion that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.

The basic problem with Roberts’ decision is that the text isn’t ambiguous. It’s actually pretty clear, as he acknowledged. But the second issue is that Roberts has no strong basis for his speculations about what Congress thought was likely to happen with states or what risks it was willing tolerate.

If the ACA’s authors thought (as almost everyone did) that the states would get with the program and establish their own exchanges, there is no reason that they would have assumed a serious risk of a death spiral. In fact, Gruber suggested that was the plan all along: offer a carrot to the states (the subsidies) and a stick (the risk of screwing up their insurance market).

But more importantly, the “implausible” risk that Roberts bases his interpretation on is precisely what the ACA deliberately did to US territories by imposing guaranteed issue and community rating without an individual mandate.

The DC Circuit Court that ruled against the subsidies last year made exactly this point:

The supposedly unthinkable scenario … one in which insurers in states with federal Exchanges remain subject to the community rating and guaranteed issue requirements but lack a broad base of healthy customers to stabilize prices and avoid adverse selection — is exactly what the ACA enacts in such federal territories as the Northern Mariana Islands, where the Act imposes guaranteed issue and community rating requirements without an individual mandate.

This combination, predictably, has thrown individual insurance markets in the territories into turmoil. But HHS has nevertheless refused to exempt the territories from the guaranteed issue and community rating requirements, recognizing that, “[h]owever meritorious” the reasons for doing so might be, “HHS is not authorized to choose which provisions of the [ACA] might apply to the territories.”

But, it seems, the Supreme Court feels that is authorized to choose what provisions of the ACA should apply, on the grounds that doing so would make better policy, regardless of what the law actually requires.

This is essentially what Roberts did in the previous Obamacare ruling, in which he rewrote the individual mandate and the Medicaid portions of the law in order to make them pass constitutional muster.

In his scathing dissent, Justice Scalia noted,

Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange established by the State.”

This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.

… This Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence.

This decision is not disastrous because it “saved” Obamacare — it did no such thing: The Court gutted the law and let the Obama administration stuff it with whatever policy it thought best.

No, the ruling is a catastrophe because it establishes the principle that the president can unilaterally override the plain meaning of the law whenever he or she thinks that doing so will lead to a better outcome, one more in keeping with his or her policy goals.

As is often the case with elaborate government programs, things didn’t turn out the way that the planners expected. And, once again, the Supreme Court allowed the government to skate around both the Affordable Care Act and the law of unintended consequences.

This decision sanctifies the administration’s decision to defy Congress, circumvent the states, and flout the law. And as the authors of Obamacare knew, if you subsidize something, you’ll get more of it. Expect this ruling to stimulate more sloppy legislation, executive overreach, and subversion of the rule of law.


Daniel Bier

Daniel Bier is the editor of Anything Peaceful. He writes on issues relating to science, civil liberties, and economic freedom.

“The President that Couldn’t”: Why Obama’s Agenda Failed by Thomas A. Firey

With time running out on his administration, President Obama has embarked on a sort of “apology tour” to disillusioned supporters. They are frustrated that he hasn’t delivered on many of their favored policies, from gun control to single-payer health care to carbon controls.

With candidates queuing up to replace him — many with very different policy goals than his — he apparently feels the need to rally the disaffected behind a successor who would carry on his agenda.

His message to the disheartened supporters is simple: The political failures aren’t his fault. He’s tried hard to deliver, but “Congress doesn’t work” and American government “is broken.” According to Obama:

As mightily as I have struggled against that… it still is broken. … When I ran in 2008, I, in fact, did not say I would fix it. I said we could fix it. I didn’t say, “Yes, I can”; I said — what? … “Yes, we can.”

Washington Post columnist Chris Cillizza, writing about the apology tour, throws some shade at the president, claiming that he did in fact promise to change policy. But ultimately Cillizza agrees with Obama, writing that the American “political system is … more broken than any one person — no matter who that person is or the circumstances that surround that person’s election — could hope to solve.”

But both the president and Cillizza are completely wrong; the American political system assuredly is not broken. The system was designed — and we should all be very grateful that it was designed — to not allow the radical change that Obama’s supporters — or supporters of other politicians across the political spectrum — want.

It is the rare times when such change does occur — think Franklin Roosevelt’s expansion of national government or George W. Bush’s anti-terrorism initiatives and war in Iraq — that American governance had failed and very bad things happen.

Today the United States is a nation of more than 320 million remarkably different people, living in unique situations, having highly individual concerns, desires, and risk preferences, and holding a wide variety of mostly noble values. They each operate in a world of uncertainty and limited resources. Given those dramatically varied circumstances, any national policymaking is likely to harm and anger tens of millions of people.

For that reason, the Framers (who likewise lived in an incredibly diverse nation for their era) designed American government to elevate private action and decentralize governance while limiting national policy to matters of broad consensus and compromise.

Because few of the policy goals advocated by President Obama and his “progressive” supporters have such support or allow for serious compromise (even the signature item that he did manage to enact), it shouldn’t be surprising that few of those goals have been achieved. That doesn’t mean American government is broken — quite the opposite! — but rather that Obama’s conception of governance is.

Perhaps the next president will better appreciate the genius of American government’s design and work within that design for policy change that he or she believes is important. But it’s clear from President Obama’s comments that he is not up to that task.

For the reason, we should all be very grateful that, no, he couldn’t.

Thomas A. Firey

Thomas A. Firey is a Maryland Public Policy Institute senior fellow, and also is managing editor of Regulation magazine, the Cato Institute’s quarterly review of business in government.

EDITORS NOTE: This first appeared at MDpolicy.org.

Why Is Snapchat More Secure than the Federal Government? by Andrea Castillo

Cyberhawks have seized upon this year’s massive hack of the Office of Personnel Management (OPM) to shove a wolfish surveillance bill in a sheepish cybersecurity bill’s clothing down America’s throat.

But the “Cybersecurity Information Sharing Act of 2015” (CISA) would have done nothing to stop the hack that exposed as many as 14 million federal employees’ personnel records. The pro-NSA crowd’s arguments are obvious nonsense — if anything, the OPM hack clearly demonstrates the danger of trusting incompetent government bureaucracies to manage huge datasets of sensitive personal information.

But amid all of the hubbub, these self-styled champions of strong cybersecurity — who also just happen to be anti-private encryption and pro-surveillance — have neglected to raise one important question: Why did a goofy picture-sharing app implement basic security measures before the central repository for all federal personnel data did?

This week, Snapchat announced that the private picture messaging service was offering two-factor authentication for its users. This basic measure of security helps to verify that the person logging in is indeed the legitimate owner of their account by sending out a text message with a special access code to the owner’s cell phone.

That way, a hacker must obtain both your password and your mobile phone to access and control your account. It’s simple, but simple security solutions can sometimes mean the difference between a foiled infiltration and a very, very bad day for a Snapchat user.

Of course, it is too much to expect the chief steward of federal employee information to implement such a simple policy. As the beleaguered office’s Inspector General reported last fall, OPM does not require multi-factor authentication to access its information systems.

If a careless OPM employee chose a weak and easy-to-guess password, or emailed it in plain text across an insecure channel, or merely left it on a sticky note on his or her desk (as is common practice in the federal government), than any common hacker could potentially access vast amounts of federal data.

In other words, an application for sharing pictures of wild parties and funny cats has better authentication standards than the federal government’s primary steward of millions of current and former federal employees’ and contractors’ addresses, Social Security numbers, financial information, and health records. Oh, and that of our military leadership and intelligence contacts — several of which are embedded deep undercover in dangerous missions — as well.

Hackers also accessed the feds’ cache of Standard Form 86 files for the aforementioned groups, dragging countless family members, friends, and colleagues into the databreach crossfire.

To call this a huge mess would be the second biggest understatement of the year. The biggest? That OPM’s substantial information security vulnerabilities are entirely unacceptable and directly at fault for the hack.

The OPM’s annual information security reports to Congress have admitted “material weaknesses” and “significant deficiencies” for years. The department lacked an IT team with “professional security experience and certifications”until 2013. Disgruntled employees could have merely walked off with this data if they wanted to, since OPM does not “maintain a comprehensive inventory of servers, databases, and network devices.” Nor did the OPM encrypt any of the data that the hackers stole — they might as well have just invited our forward friends in China to sweep in through the front door!

As Ars Technica’s Sean Gallagher concludes, “Considering the overall condition of OPM’s security, it’s no surprise that an attacker — almost any attacker — could gain a foothold inside the agency’s network. But attackers didn’t just gain a foothold, they had practically a free run of the networks.”

It’s true that Snapchat has hardly been a paragon of good cybersecurity in the past, as previous security vulnerabilities, breaches, misleading marketing, and the infamous “Snappening” testify. However, there is another important difference between Snapchat and the OPM that puts the humble app ahead of the mighty federal office: Snapchat has to learn from its mistakes.

As a private service provider in a hotly-competitive market that must keep its users happy to stay afloat, Snapchat moved quickly to get its security house in order after their big mistakes. They hired the former social network security leader for Google and started to build a “culture of security” within the firm.

They may still have a long way to go, but these investments and cultural prioritization are important first steps that demonstrate a proactive sense of ownership in their platform’s security. And of course, if they keep screwing up, they’ll be sued out the nose and go out of business for good.

We see no such sense of urgency with OPM. The agency received what could have been a saving wakeup call in last year, when it was discovered that Chinese hackers had accessed OPM databases in March of 2014.

OPM had the opportunity to implement simple encryption and authentication measures, tighten up their ship, and increase employee education about good data and security practices. No such luck! The office more or less continued on its merry way.

No one was fired back then and it looks like no one will get fired now. It’s government work, after all.

Unfortunately, OPM is hardly the only sucker on cybersecurity in the federal government, as my research for the Mercatus Center has found. This kind of unbelievably poor cybersecurity posture is the norm rather than the exception.

In fact, it’s hard to pick what is scarier: that the federal government operates under the digital equivalent of leaving all of their doors and windows unlocked and wide open, or that these same federal agencies want more power to manage your personal data through CISA.


Andrea Castillo

Andrea Castillo is the program manager of the Technology Policy Program for the Mercatus Center at George Mason University and is pursuing a PhD in economics at George Mason University.

No Labels Leaders Descend on Capitol Hill to Tout National Strategic Agenda

WASHINGTON, PRNewswire-USNewswire/ — No Labels leaders participated in a series of signature events on and around Capitol Hill, on Wednesday, to make the case for its National Strategic Agenda as a transformational idea that can help unite the country, shape the 2016 electoral debate and provide a proven framework for problem solving in the first 100 days of the next administration.

A day that began with former Senator Joe Lieberman (D-CT), former Governor Jon Huntsman (R-UT) and other No Labels leaders testifying before the Senate Homeland Security & Governmental Affairs Committee continued with a series of media briefings and training events for No Labels activists from across the country.

“We always hear political leaders talk about their desire to unite the country, but lately, there has been no plan for how to actually do it. The National Strategic Agenda is the how,” said No Labels National Co-Chairman Jon Huntsman. “As today’s events make clear, legions of people inside and outside Washington are recognizing that this simple and powerful concept can break the gridlock that has afflicted our government for far too long.”

“The National Strategic Agenda is based on a simple premise: To solve a problem – any problem – you need to set goals, get people to buy into those goals and put a process or plan in place to achieve them,” added No Labels National Co-Chairman Joe Lieberman. “This is the way any well-oiled organization runs. It’s the only way anything big in Washington has ever gotten done. And it is why the National Strategic Agenda is an idea whose time has come.”

At the Senate hearing, Lieberman, along with Huntsman, Co-Chair of the Loews Corporation Andrew Tisch and Merchants Metals CEO Andrea Hogan explained the urgency for a new National Strategic Agenda and painted an ambitious vision for how it could be implemented. This would include the next president, soon after inauguration, inviting leaders of both parties to Camp David to commence work on at least one of the four goals in No Labels’ National Strategic Agenda. These goals, which were chosen with input from the American people in a series of national polls No Labels conducted in 2014, are:

  • Create 25 million new jobs over the next 10 years;
  • Secure Medicare and Social Security for another 75 years;
  • Balance the federal budget by 2030; and
  • Make American energy secure by 2024.

A No Labels-backed resolution calling for a National Strategic Agenda based on these four goals (S. Res. 199) was introduced in the U.S. Senate on June 11th by Senators Bill Nelson (D-FL) and John Thune (R-SD). A companion resolution (H. Res.207) has been introduced in the House by U.S. Representatives Tom Reed (R-NY) and Ami Bera (D-CA), along with more than 50 co-sponsors from both parties.

Tisch and Hogan compared their experience in the private sector to the challenges facing the American government.

Said Tisch: “In business, as in government, the road to success is not so different. The first step is to identify a problem or an opportunity. The second step is to figure out how to solve that problem or seize that opportunity. Then, a goal is set that identifies the metrics and the timeline for success. And you hold your team accountable for meeting that goal. That’s how we succeed in our business. That’s how our government has succeeded in the past, whether it was winning a World War or sending a man to the moon.”

Hogan said she knew of “no business that can succeed long-term without a clear vision of what success looks like – a shared, goal-driven agenda of strategic imperatives – and a defined set of tactics aimed at achieving the organization’s goals.” She went on to marvel at the fact that in “the largest ‘enterprise’ in the world, the United States of America – all $17 trillion of it in economic output terms – operates precisely this way today.”

“We can’t allow this to be the case anymore,” Hogan concluded.

After the hearing, more than 100 No Labels citizen activists gathered for a No Labels luncheon that included media training while the No Labels’ leadership team hosted about 50 national political reporters at a luncheon nearby.

No Labels is running what it calls a “presidential campaign without a candidate” in New Hampshire and will convene the first-ever Problem Solver Convention in Manchester on October 12th, which is designed to attract independent voters and a number of leading presidential candidates from both parties.

“The next president will be a problem solver because the people will demand it,” said No Labels Executive Director Margaret Kimbrell. “Thanks to our extensive ground operation in New Hampshire, every presidential candidate will have to have a position on the National Strategic Agenda. And we’re confident that candidates will see that this idea is good for them and most important of all, good for our country.”

As further evidence that No Labels and the National Strategic Agenda is gaining currency among prominent political leaders in Washington and beyond, co-chairs Huntsman and Lieberman, as along with vice-chairs Al Cardenas and Mack McLarty, welcomed former U.S. Senator Kay Bailey Hutchison (R-TX), former U.S. House Majority Leader Representative Dick Gephardt (D-MO), former Governor John Engler (R-MI), former U.S. Senator Evan Bayh (D-IN), former U.S. Representative Tom Davis (R-VA), former U.S. Representative Ellen Tauscher (D-CA) and Retired U.S. Navy Admiral Dennis Blair to the No Labels Advisory Board.

ABOUT NO LABELS

No Labels is a national movement of Democrats, Republicans and Independents dedicated to a new politics of problem solving. With a network of hundreds of thousands of citizens and local leaders across America and more than 70 allies in the U.S. Congress, No Labels has proposed reform ideas that have been introduced with support across the aisle, passed by Congress, and signed into law, including No Budget, No Pay. Find out more at www.nolabels.org.

American Exceptionalism: The Defining Question for Presidential Candidates

The most important question we can ask our presidential candidates in this rapidly approaching primary season is for their definition of American Exceptionalism. After six-plus years of an administration that has apologized for America, demoralized our American military, destroyed our status on the international stage, attacked America’s unparalleled entrepreneurial vigor, and assaulted our future path to prosperity, I’ve had enough. My daughters deserve better, your children deserve better, and the many men and women who sacrificed and died for the ideas our flag represents deserve better.

We are an exceptional nation, and Americans are an exceptional people, and we should never make any apologies for that. We are not only the economic breadbasket of the world, and the innovative idea factory of the world, but we are a beacon of freedom for other nations to follow. Yes, we’ve fallen short at times, but we’ve always gotten back up and emerged stronger.

We were born of a revolution where the odds of being victorious were incalculable. We conquered the scourge of slavery. We sent our fighting men and women to foreign shores to conquer fascism and communism. And we measure our national valor not by the conquered land we’ve acquired, but by the land we’ve returned to people we’ve set free from the shackles of tyranny in exchange for the blood of our sons and daughters. Our commitment to liberty and freedom as gifted by God, not man, is unique and has no equal on the world stage either now, or historically. Reagan recognized this, JFK recognized this, our military men and women recognize this and, most importantly, the overwhelming majority of Americans recognize this.

It’s time for an American renaissance. We’ve been through the economic travails and the international Barack Obama American apology tour and it’s time for an American president who will boldly stand, both at home and abroad, for a reinvigorated and vibrant American spirit, which shines brightly on the global stage. Our next president must passionately fight back against the idea that the United States of America can happily enter into an era of “managed decline.” I will be no part of any “managed decline” and our next President should reaffirm that an exceptional America will never decline, managed or otherwise, in this lifetime or in the lifetimes of the American sons and daughters to follow.

While I’ll be intensely focused on all of the candidate’s responses to questions on taxes, spending and the other important issues of our time, it’s their answers as to what makes America exceptional that will tell me if they can right America’s course. I ask you to join me in this mission to challenge our candidates for president, and everywhere else at the state and local levels, and to ask our future leaders what makes America exceptional. It’s not a gotcha question and I’m not looking for a candidate who can wax poetic in their response. I am looking for a candidate who can firmly, passionately and vigorously defend the axiom that this nation has been touched by the hand of God and has no equal, and that it’s not who we’ve been willing to fight with that has made us exceptional, but what we have been willing to fight for.

EDITORS NOTE: This column originally appeared in the Conservative Review. The featured image of Rick Santorum is by Tom Williams | AP Photo.

There Is No “Nationwide Crime Wave” — But Baltimore Is in Trouble by Daniel Bier

Heather McDonald’s Wall Street Journal op-ed “The New Nationwide Crime Wave” has exploded into the debate over police misconduct and criminal justice reform like a flash-bang grenade. It’s been discussed on numerous talk radio and cable news shows, and it’s been shared nearly 40,000 times on social media.

It’s a story engineered to go viral: It has a terrifying premise (crime everywhere is spiraling out of control!), a topical news hook (it’s all because of protesters!), a partisan bad guy (it’s all liberals’ fault!), and a weapons-grade dose of confirmation bias.

But there is no nationwide crime wave. It is completely manufactured by cherry picking data and misleading stats.

McDonald selects a handful of cities and quotes statistics to show that crime is exploding in “cities across America” this year:

In Baltimore… Gun violence is up more than 60% compared with this time last year, according to Baltimore police, with 32 shootings over Memorial Day weekend. May has been the most violent month the city has seen in 15 years.

In Milwaukee, homicides were up 180% by May 17 over the same period the previous year. Through April, shootings in St. Louis were up 39%, robberies 43%, and homicides 25%. …

Murders in Atlanta were up 32% as of mid-May. Shootings in Chicago had increased 24% and homicides 17%. Shootings and other violent felonies in Los Angeles had spiked by 25%; in New York, murder was up nearly 13%, and gun violence 7%.

Does this blizzard of numbers show a “nationwide crime wave”? No.

As John Lott points out at FoxNews.com,

Overall, the 15 largest cities have actually experienced a slight decrease in murders. There has been a 2 percent drop from the first five months of 2014 to the first five months of this year. Murder rates rose in eight cities and fell in seven. There is no nationwide murder wave.

Murder rates fell dramatically in some of these cities. Comparing this year’s January-to-May murder data with last year’s, we find that San Jose’s murder rate fell by a whopping 59 percent; Jacksonville’s fell by 31 percent; Indianapolis’ by 28 percent; San Antonio’s by 25 percent; and Los Angeles’ by 15 percent.

Even in the cities where murder is up compared to 2014, other categories of crime are down. New York, for instance, has had more murders but fewer burglaries and robberies. LA’s other violent crimes may be up, but murder is down.

She also implies that police are being attacked and killed more than ever: “Murders of officers jumped 89% in 2014, to 51 from 27.”

This 89% statistic is a deeply misleading view of the facts. Yes, 51 officers were murdered in 2014, compared to 27 in 2013. But 2013 was the safest year for police since World War II. It had the fewest shooting deaths for police since1887.

If you compare 2014’s 51 murders to other recent years, it’s not exceptional. In 2012, there were 48 officers killed. In 2011, it was 72. Over the last couple decades, the rate of police murders (and indeed work-related deaths from all causes) have fallen by nearly half, as have assault and injuries of police.

There’s another reason why McDonald quoted last year’s statistics for officer deaths when all of her other figures come from this year: officer shootings are down 27% so far this year.

Just like her other statistics, if she had given any context at all to the 89% figure, it wouldn’t have fit with her narrative of rising violence.

But never mind — as the author of this story, McDonald knows the cause of this fictitious trend: the “Ferguson Effect.”

The most plausible explanation of the current surge in lawlessness is the intense agitation against American police departments over the past nine months.

By her account, an “incessant drumbeat against the police” is behind the nonexistent “wave” of crime and violence against cops.

But this is also a myth. Public support for police has not waned. Gallup’s polling shows that confidence in law enforcement has been steady since the early 1990s.

That hasn’t changed, even after the protests against police abuse around the country. A Huffington Post/YouGov survey from April 2015 showed that 61% of Americans have a “great deal” or a “fair amount” of trust in their local department; 21% said “not very much,” and only 14% had “none.”

There is no national crime wave. Big cities are not facing a “surge of lawlessness.” There is no “war on cops.” The public hasn’t turned against the police.

So what’s going on in Baltimore? McDonald isn’t wrong about the spike in crime there. Baltimore City really is facing a breakdown in law and order.

Alex Tabarrok notes that police have made 40% fewer arrests since the start of the protests and the filing of criminal charges against six cops involved in Freddie Gray’s death.

As arrests have declined, crime has soared.

Tabarrok writes,

Not all arrests are good arrests, of course, but the strain is cutting policing across the board and the criminals are responding to incentives.

Fewer police mean more crime. As arrests have fallen, homicides, shootings, robberies and auto thefts have all spiked upwards.

Homicides, for example, have more than doubled from .53 a day on average before the unrest to 1.35 a day after (up to June 6, most recent data) – this is an unprecedented increase – and the highest homicide rate Baltimore has ever seen.

It’s not just murder. Shootings are up over 250%. Robberies are up 64%. Car thefts are up 42%.

It’s reasonable to assume that the increase in crime is at least partially related to the decline in police activity — criminals respond to incentives just like everyone else — but why aren’t police making arrests?

The answer might be found in the “De Blasio Effect.”

New York saw a similar “work stoppage” — that is, an unofficial strike — by the NYPD during its feud with Mayor De Blasio over his critical comments about the death of Eric Garner.

The NYPD retaliated: Arrests fell by 56% and criminal summonses fell by 92%, until the mayor made up with the department and police work resumed.

Kevin Drum speculates that BPD’s precipitous decline in arrests is a similar reprisal against the indictment of the officers involved in Freddie Gray’s death.

It’s certainly possible that has something to do with it, but officers appear to be genuinely spooked. About 130 cops were injured in the riots — that’s about 4.5% of the city’s officers down over the course of a week. That’s almost twice the rate of injury the average department sustains in a whole year.

Cops are understandably worried. Peter Moskos, a former BPD officer, says, “In Baltimore today, several police officers need to respond to situations where formerly one could do the job. This stretches resources and prevents proactive policing.”

There’s another issue: when crime spikes, police can be overwhelmed. Cases build up, and as new reports pour in, less and less time can be devoted to the old ones.

Most murders in Baltimore this year have gone unsolved. BPD’s clearance rate for homicides has fallen to just 40%, and the surge in killings can only make things worse.

Police Commissioner Anthony W. Batts said the rise in killings is “backlogging” investigators, just as the community has become less engaged with police, providing fewer tips.

Tabarrok is worried that a new equilibrium for crime could emerge in Baltimore. If crime continues to rise, clearance rates will fall further, detectives will get more backlogged, and it gets even harder to solve the next case. And if the probability of being caught and punished goes down, criminals will commit more crimes.

With luck the crime wave will subside quickly but the longer-term fear is that the increase in crime could push arrest and clearance rates down so far that the increase in crime becomes self-fulfilling. The higher crime rate itself generates the lower punishment that supports the higher crime rate

It’s possible that a temporary shift could push Baltimore into a permanently higher high-crime equilibrium. Once the high-crime equilibrium is entered it may be very difficult to exit without a lot of resources that Baltimore doesn’t have.

Some people see criminal justice reform as being anti-cop or “soft on crime,” but it’s not. Reform enables police to do a better job, which reduces crime — and that makes them and their citizens safer.

The best thing that Baltimore can hope for is that cops get back to work and start solving crimes. The best way to do that is for the community to engage with law enforcement.

Communities’ trust in police is key to fighting crime, and right now the BPD doesn’t have it. The Baltimore Sun has documented in excruciating detail the department’s history of corruption and excessive force, writing: “The perception that officers are violent can poison the relationship between residents and police.” And that leads to tips not given, 911 calls not dialed, and witnesses failing to come forward.

Real, credible reform, combined with accountability for misconduct and a strong commitment to community safety, is the best and probably only way to rebuild the relationship between citizen and cop and to turn crime around in Baltimore. The city and the police must embrace the task; they won’t accomplish it without each other.


Daniel Bier

Daniel Bier is the editor of Anything Peaceful. He writes on issues relating to science, civil liberties, and economic freedom.

Nudging Voters to Make the Right Decisions by Julian Adorney

In politics, as in commerce, consumers cannot always be trusted. Sometimes they’re duped, or foolish, or just make decisions for the wrong reasons. That’s when we need government to step in and take the decision out of their hands.

I propose the passage of the Control and Help Upgrade the Market in Politics (CHUMP) Act to eliminate the inherent flaws in the political market.

A little nudge

Many intellectuals realize that consumers need to be nudged toward certain decisions.

This idea, called “libertarian paternalism,” consists of bureaucrats “self-consciously attempting to move people in directions that will make their lives better.”

Take cigarettes, for example. Consumers aren’t rational enough to research the dangers of cigarettes on their own, so governments insist that tobacco companies include graphic warnings to “nudge” people away from buying them. This light touch retains for users the option to buy cigarettes but gently moves them toward a wiser decision.

We need to move this idea into the political marketplace. Under the CHUMP Act, government will be empowered to nudge voters by asking them to read a few positive facts about certain candidates before they vote. Like cigarette buyers, voters will still be free to choose their candidate. We’ll just be offering a little guidance.

MoveOn.org recently put this idea into practice, releasing a poll with positive statements about Elizabeth Warren (and no statements about any other candidate). Warren won the poll by several points. That’s the political market at its best.

Subsidizing good ideas

We have long realized that unregulated markets produce the wrong distribution of resources. As Senator Bernie Sanders recently argued, why should we have 23 brands of deodorant when we can’t feed our children? Or, to put it another way, why does Kim Kardashian always have a show while NPR struggles to make ends meet? The market may reflect the desires of consumers, but it leads to the wrong outcomes.

We deal with this market failure by subsidizing NPR. But we don’t just need better shows; we need better politics, too.

For that reason, the CHUMP Act will subsidize some political groups. Judging by Sanders’s poll numbers, many Americans don’t care for big-government rhetoric. But so what? All that means is that there’s insufficient demand for his views. Some ideas, like NPR’s brand of reporting, are downright unpopular in the market. But we need them. What’s wrong with helping them along?

Certain policies, or rather the candidates who endorse them, should be subsidized. Each candidate should be rated on a scale of 1 to 100 (or from Ted Cruz to Bernie Sanders) and receive funding equal to $5,000 multiplied by their score. Hillary Clinton might score a 55, and receive $275,000 in subsidies for her presidential campaign. Sanders, who might score a solid 100, would receive $500,000. Who can say that money wouldn’t be put to good use educating Americans on the benefits of bigger government?

Cruz, as the scale suggests, would score 0 and receive no funding. Some ideas just shouldn’t be encouraged.

Banning bad politics

We need more than subsidies for good ideas: we need to protect people from themselves. Again, the blueprint lies in commerce, where wise bureaucrats protect people from businesses like Lyft, Airbnb, or Tesla. No matter how much people may say they like these companies, some products and services are just bad all around. I don’t care if you want to take an Uber. It’s too expensive, it’s disruptive, and its rating system is deeply flawed. If your city has banned ride-sharing services, it’s doubtless for your own good.

In the same vein, why should the government stand idly by while underinformed voters succumb to the rhetoric of extremist malcontents? We need to step in to save these misguided folks from themselves. They may say they want lower taxes or fewer regulations, but that’s only because they don’t understand the long-term consequences of casting their votes for smaller government.

But what about freedom?

Now, some naysayers may claim that political and commercial markets are different, that we should subsidize companies but not ideas. They claim that political freedom, the ability to choose freely between competing political ideas, is sacrosanct.

But a century ago, during the dark ages of the Lochner era, we said the same thing about economic freedom: “freedom of contract” was a right enshrined by the Supreme Court. Can you imagine if we still lived in an era where economic freedom was recognized as inviolable? It would be a nightmare of worker exploitation, child labor, and Kardashian shows. The Supreme Court struck down this freedom for the good of us all.

Right now, this “libertarian moment” we’re in is as dangerous as the Industrial Revolution was before reformers curbed its excesses. We no longer have child labor, but we do have people who want to eliminate welfare. We have reduced exploitation, but we still have extremists claiming that health care is not a right.

These residual reactionary views remain with us because we still believe that the political consumer’s choices are sacred. But that belief allows demagogues to be elected with no thought to the consequences.

Like toddlers who refuse to eat their veggies, some people just don’t know what’s good for them. We need to help them make the right choices. Political freedom is no more sacred than economic freedom — and should be dispensed with as easily, for the good of us all.


Julian Adorney

Julian Adorney is Director of Marketing at Peacekeeper, a free app that offers an alternative to 911. He’s also an economic historian, focusing on Austrian economics. He has written for the Ludwig von Mises Institute, Townhall, and The Hill.

The Feds vs. Reason.com Commenters by Ryan Radia

Our friends over at the Reason Foundation, a venerable libertarian think tank and publisher of Reason magazine, recently received a grand jury subpoena from a federal prosecutor in New York, reports Ken White at Popehat.

The subpoena demands that Reason disclose “all identifying information” it has regarding six pseudonymous users who posted comments about the death and afterlife of a federal judge on Reason’s Hit & Run blog.

These comments came in response to a May 31 post by Nick Gillespie about the trial and sentencing of Ross Ulbricht, who was convicted in February of running an Internet-based narcotics and money laundering platform known as Silk Road.

In late May, Judge Katherine Forrest, who sits on the US District Court for the Southern District of New York, sentenced Ulbricht to life in prison. This sentence was met with mixed reactions, with many commentators criticizing Judge Forrest for handing down what they perceived as an exceedingly harsh sentence.

A few Reason users, some of whom may have followed Reason’s extensive coverage of the fascinating trial, apparently found Ulbricht’s sentence especially infuriating.

One commenter argued that “judges like these … should be taken out back and shot.” Another user, purporting to correct the preceding comment, wrote that “it’s judges like these that will be taken out back and shot.” A follow-up comment suggested the use of a “wood chipper,” so as not to “waste ammunition.” And a user expressed hope that “there is a special place in hell reserved for that horrible woman.”

Within hours, the office of Preet Bharara, the US Attorney for the Southern District of New York, sent Reason a subpoena for these commenters’ identifying information “in connection with an official criminal investigation of a suspected felony being conducted by a federal grand jury.”

This doesn’t mean a grand jury actually asked about the commenters; instead, in federal criminal investigations, it’s typically up to the US Attorney to decide when to issue a subpoena “on behalf” of a grand jury.

The subpoena demands from Reason information about the six users, including their email and Internet Protocol (IP) addresses — which, if disclosed, could enable the government to uncover the true identities of the commenters, perhaps after another round of subpoenas are sent to the users’ respective Internet Service Providers.

Popehat’s Ken White is quite troubled by the government’s decision to issue this subpoena. Ilya Somin, writing at The Volokh Conspiracy, also objects to the subpoena. So do the Cato Institute’s Tim Lynch and Techdirt’s Mike Masnick, among many others.

I too find it quite concerning. Even if this subpoena is valid under current law — more on that angle in a bit — the government made a serious mistake in seeking to force Reason to hand over information that could uncover the six commenters’ identities.

Unless the Department of Justice is investigating a credible threat to Judge Forrest with some plausible connection to the Reason comments at issue, this subpoena will serve only to chill hyperbolic — but nonetheless protected — political speech by anonymous Internet commenters.

And if Reason decides to stand up for its users’ rights, the resulting court battle will amount to a waste of federal law enforcement resources that could instead help bring actual criminals to justice, as Tim Lynch reminds us.

To be sure, I have no problem with the feds seeking to locate and prosecute people who actually threaten to commit murder — which, if transmitted in interstate commerce, is a federal crime under Title 18 USC. § 875.

Threatening to kill a federal judge is especially problematic; assassinations of federal judges do happen from time to time. As such, it’s only natural that law enforcement takes such threats seriously.

Yet, while the comments identified in the subpoena are undeniably vile, they’re also protected by the First Amendment, and rightly so. Hyperbolic political statements have a long history in the United States.

For instance, Ken Shultz notes that Martin Luther King, Jr., once said that “the hottest place in Hell is reserved for those who remain neutral in times of great moral conflict.” Sound familiar?

As for the comments about shooting a federal judge, consider the Vietnam War-era prosecution of Robert Watts for “knowingly and willfully threatening the President.”

At age eighteen, Watts said that if he were forced to join the military and “carry a rifle,” then the “first man I want to get in my sights is L.B.J.” The Supreme Court reversed his conviction, finding that Watts had merely “indulged” in a “kind of political hyperbole.” Id. at 708.

Although these statements, like the Reason comments quoted above, are understandably offensive to many listeners, causing offense alone is no basis for outlawing speech. To the contrary, “a function of free speech under our system of government is to invite dispute,” as the Supreme Court has noted. Indeed, speech can sometimes “best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

As for the hyperbolic comments posted on Reason about Judge Forrest, they are plainly not “true threats,” but mere “angry bluster,” as Ken White explains in detail.

The remarks, he notes, were not directed to the Judge, or reasonably calculated to reach her; instead, they appeared on a libertarian political blog notorious for its trash-talking commentariat. The comments lacked any specifics about a specific person’s plans to actually carry out an act of violence; instead, they merely expressed a general desire that a particular person be killed.

And while courts have held on occasion that hoping for someone’s death without evincing a desire to personally kill them can be a true threat, this requires some “causal connection” between the statement and the desired outcome. Again, the Reason comments don’t come close to meeting this threshold.

In short, even if the six Reason users are indicted on federal criminal charges, the First Amendment means the government is all but guaranteed to lose (barring the unlikely scenario the US Attorney’s office is sitting on some damning evidence it hasn’t disclosed).

If the commenters didn’t break the law, then, why can the government use its subpoena power to force Reason to hand over whatever personal information it’s collected about them? Because, as Ken White frets, the US Attorney’s power to issue grand jury subpoenas is so broad that, in most cases, they can be quashed only “when they are irrationally burdensome … or for an improper purpose.”

Moreover, a grand jury — which, again, is typically just another word for “federal prosecutor” — is afforded “wide latitude” in investigating potential crimes, and the “law presumes, absent a strong showing to the contrary, that a grand jury acts within the legitimate scope of its authority.”

And when a grand jury subpoena is “challenged on relevancy grounds the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.”

What about a grand jury subpoena that implicates First Amendment interests?

In theory, “where values of expression are potentially implicated,” a district court should act with “special sensitivity” to “prevent the chilling effect” of “prosecutorial abuse,” in the words of the Fourth Circuit.

In practice, however, courts are extremely reluctant to quash a federal grand jury subpoena on First Amendment grounds. For instance, the District Court for the District of Columbia held in 2011 that “merely issuing a subpoena to uncover the identity of the speaker so that the police can ascertain whether a threat is valid cannot be deemed a Constitutional violation.”

Where does all of this leave us? Reason could move to quash the subpoena — or at least petition the court to limit its scope to identifying information about the more threatening commenters — on the basis that, absent additional evidence that its commenters’ identities are related in any way to some criminally actionable threat, enforcing the subpoena would undermine Reason commenters’ constitutional interest in anonymity while generating information of “negligible value to the government.”

However, because Reason probably could not show the US Attorney is acting in bad faith, or that complying with the subpoena would be unduly burdensome, Reason’s chances of prevailing if it chooses to fight back are not good. That’s a problem for all of us.

This piece first appeared at CEI.org.


Ryan Radia

Ryan Radia is an Associate Director of Technology Studies at the Competitive Enterprise Institute. He focuses on adapting law and public policy to the unique challenges of the information age.