Monthly Archives: September 2009

Lake Los Angeles

Here in Southern California, water is a pretty precious commodity. And I’m not just talking about the pretentious restaurants where you get dirty looks if you don’t like your water “sparkling” and at $6 a bottle. No, it’s a serious outgrowth of building a major city in the middle of a desert, in which you have to pull water from supplies in other geographies to meet your needs. As we’re more sensitive to water conditions throughout the western US, we’ve been inundated with PSAs encouraging saving.

One of those PSAs has teeth, advising of watering restrictions. If you want to water your lawn, you’re only allowed to do so two days a week, and only in the morning. At least, those are the rules for us mere citizens. I’ve complained on twitter about driving past freeway medians and cloverleafs where the State of California is watering at 5 PM on a Friday, but I’ve simply assumed that this is mere government hubris.

But perhaps I was wrong. In the LA area, old decrepit infrastructure has led to a higher-than usual number of major pipe ruptures, causing significant flooding (NY Times, reg. req’d). Based on one of the potential reasons for that, I must now think that the Friday afternoon waterings weren’t about not following the same rules as mere citizens, but because they fear overloading the system (emphasis added):

Since Sept. 1, there have been 43 breaks that have flooded or damaged streets, compared with 21 in September 2008, 17 in September 2007 and 13 in September 2006.

The rash of blowouts began in June, when a new drought-induced water policy went into effect, a circumstance leading outside engineers and analysts to question whether water restrictions are contributing to the problem.

Under the policy, residents are permitted to water their lawns only on Monday and Thursday, causing a surge in water flow those days that may be taxing the system, said Richard G. Little, a policy analyst at the University of Southern California who studies public infrastructure.

So thank you, California State Government! Your inability to follow stupid* restrictions with destructive unintended consequences may have saved us from some of the negative impact of that stupid restriction! Under normal circumstances, I’d assume your inability to follow the restrictions you expect the rest of us to follow to be simple hubris, but here I’ll give you the benefit of the doubt — you were trying to save us!

Hat Tip: Brian Doherty, City of Angles
» Read more

Supreme Court To Rule On Second Amendment’s Applicability To The States

One of the issues left unresolved by the Supreme Court’s ruling in District of Columbia v. Heller was whether the Court’s interpretation of the Second Amendment as an individual right applied to state and local governments. The last time the Court had the opportunity to rule on the issue, in 1886, in the case Presser v. Illinois, it specifically held that the Second Amendment only limited the national government, and no subsequent case has applied the doctrine of incorporation to the Second Amendment.

Today, the Supreme Court announced that it had accepted a case from Chicago that should resolve that issue once and for all:

The Supreme Court on Wednesday said it would decide whether an individual’s right to own guns for self-defense — as articulated by the high court in 2008 when it struck down the District of Columbia’s ban on handguns — also covers states and other cities with gun-control laws.

The question of whether the Second Amendment only applies to the federal government and federal enclaves like the District is one that was not addressed in the decision in Heller v. District of Columbia.

The case that the court accepted Wednesday concerns the city of Chicago’s law, which bans most handguns

Lyle Denniston at SCOTUSBlog provides further details on the issue now before the Court:

The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon. It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA. lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller). A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497). Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.

Given that the makeup of the Court has not appreciably changed since Heller, it seems likely that the Court will rule that the Second Amendment does apply to the states, but that’s something we can’t really be sure of until the decision is actually issued.

The Nanny State In Action — School District Bars Kids From Riding Bikes To School

I wouldn’t be able to do it anymore because district boundaries in my hometown changed a long time ago, but when I was a kid I used to ride my bike to school nearly every day that weather permitted it.

It’s a good thing I didn’t live in Saratoga Springs, New York:

SARATOGA SPRINGS — The first day of school, already a happy and trying event for any student, saw a little additional stress for Maple Avenue Middle School student Adam Marino.

Marino and his mother, Janette Kaddo Marino, left for school by bicycle on Wednesday morning, as they often do in good weather, despite a phone call placed to students’ homes by school officials, asking parents not to allow students to walk or ride bikes to school.

(…)

One section of the school policy states: “The Board of Education forbids the riding of bicycles by students to and from Maple Avenue Middle School.” Another section also prohibits riding to elementary schools.

In an apparent contradiction, a third section states: “Secondary school pupils may ride their bicycles to school and shall park them in the racks provided.”

The policy was written when the Maple Avenue school opened in 1994, and has never before been reviewed, Superintendent of Schools Janice White said.

Remember, they’re from the government and they’re here to help you.

The Daily Show Illustrates the Shortsightedness of Government

The Daily Show With Jon Stewart Mon – Thurs 11p / 10c
Arizona State Capitol Building for Sale
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The above video clip from The Daily Show, while very humorous, illustrates a fundamental problem of government: shortsightedness.

In this example, the State of Arizona is offering to sell the state capitol for $735 million and rent it back from the new owners.

“What happens next year when you have to pay rent?” asks Daily Show correspondent Jason Jones.

Sen. Lopez responds that the state government is more concerned about this year…they will deal with the next year’s budget (and subsequent budget) shortfalls when the time comes.

If this doesn’t illustrate the shortsightedness of government (at all levels), I don’t know what does. Our government officials do not look far beyond the immediate future (i.e. the next election). They don’t worry about the insolvency of Social Security, Medicare, Medicaid, the long term financial difficulties of the bailouts etc, they will worry about those problems (which they created and will also blame on the free market, big business, or lack of regulation) when they can no longer pretend the problem doesn’t exist. If they are lucky, the other party will be in power by that time and the American public will turn its anger against that party by voting them out.

What the American public needs to understand is that whether the blue team or the red team controls the levers of power, this shortsighted mentality is standard operating procedure for both. They are not interested in solving long term problems but trying to appear as though they are.

Politicians will not be accountable for their deceitful actions until we, the people, hold them accountable.

…I won’t hold my breath.

Why Not The Sage From South Central The Senate?

California is a state that is not likely to elect a Republican to the Senate any time soon. But that doesn’t mean it’s not worth trying. Babs Boxer is up for re-election next fall, and the field is wide open. Unfortunately, the NRSC is determined to narrow the field, and has scuttled support for one potentially strong challenger in exchange for one whose main political qualification appears to be friendliness with McCain and Palin.

Who is the potentially strong challenger? None other than Larry Elder, Los Angeles talk radio host, accomplished author, and strongly libertarian-leaning Republican (self-described Republitarian). He’s got name recognition, a proper small-government philosophy that will appeal to the Republican base, a compelling life story, and enough media experience to be able to navigate the pitfalls of the California press.

So why did Jon Cornyn shut the door on him?

Elder is a serious name and presence among California Republicans. He just wrapped up his radio show. “Why,” you might ask, “doesn’t Larry Elder run for the Senate?”

There is an answer accorinding to many of Elder’s friends at the Republican Convention — Senator Cornyn and the NRSC told him not to.

Here’s the story that is circulating at the convention: Back in the spring, Elder went to Washington to sit down with John Cornyn and the NRSC, and ask for their support for a bid for U.S. Senate against Barbara Boxer. Cornyn and the NRSC told him the following:

  • If Elder chose to run, they would not support him.
  • The NRSC was already committed to supporting Carly Fiorina
  • The NRSC expected Fiorina to lose against Boxer, but expected her to tie up Democrat resources in the meantime.

How incompetent is this? The NRSC actually told a popular African-American with statewide name recognition to NOT run? Last I checked, our party isn’t overflowing with those.

Larry Elder was one of the formative voices in my post-collegiate political path. I think that over time, cutting my philisophical teeth in the blogosphere, I’ve taken the libertarian train a few stops farther than he has, so there are certainly areas where we disagree. Philosophically, though, he’d be a very strong advocate for small government coming from a state not known for its fiscal responsibility. He’s the type of candidate that California Republicans and libertarians could be energized by.

Carly Fiorina, on the other hand, is certainly an accomplished businesswoman, but little is known about her political acumen or philosophy. Her website, though, is not exactly encouraging. Her record as CEO of Hewlett Packard is a mixed bag, and about the only thing she has over other California Republicans is name recognition and two X chromosomes, but a new poll is showing that this might not be enough.

If California Republicans want to be a true thorn in the side of Barbara Boxer, Carly Fiorina appears to be nothing more than a demographic play. Larry Elder, on the other hand, has spent a decade and a half sparring with listeners on talk radio and has followed California and National politics over that time. He’ll know where Boxer is vulnerable and will know how to exploit the weakness. What was John Cornyn thinking?

Hat Tip: Co-contributor Jason Pye

PATRIOT Act – Much Ado About Drugs, Not About Terrorism

The PATRIOT Act was sold to the country as the line in the sand protecting us from the murderous hordes of Islamist terrorists. Passed in a hurry following 9/11, they told us that these powers were needed for terrorism only, and not for general law-enforcement. Civil libertarians didn’t believe this assertion, of course, and as usual when it comes to government power, we were right (link to PDF report).

In a traditional search warrant, the person/people/place being search are notified when the search is conducted. One aspect of the PATRIOT Act is the delayed notification warrant, aka the “Sneak and Peek”. For this, the search is conducted but the person being investigated is not told that the search was executed for some delayed time afterwards. For a terrorism surveillance case, this allows investigators to attempt to detect plots in the planning stage.

In the government’s FY2008 (Oct’07 to Sep’08), 763 new warrants were obtained. Of these new warrants, a mere 3 were for terrorism. What were the rest?

Table 2 presents the types of offenses specified in delayed-notice search warrant and extension requests reported in 2008. Drug offenses were specified in 65 percent of applications reported, followed by fraud (5 percent), weapons, and tax offenses (4 percent each).

Someday, the warnings issued by libertarians — rather than being ignored — will actually be heeded. On that day I will die of shock.

Hat Tip: David Rittgers, Cato@Liberty

Republican Senator Expresses Support For Mandatory Health Insurance

Former Republican Senator Bill Frist starts out the U.S. News And World Report article in which he comes out in support of a government requirement that each American have health insurance with what can only be described as a fair degree of irony:

I believe in limited government and individual responsibility, cherish the freedom to choose, and generally oppose individual mandates—except where markets fail, individuals suffer, and society pays a hefty price.

Or, to put it another way, I believe in individual government and individual responsibility, cherish the freedom to choose, and generally oppose individual mandates — except when I don’t.

While Frist spends much time in his article talking about the alleged benefits that an individual mandate would bring, he spends no time whatsoever addressing the fundamental issues that need to be talked about if we’re seriously going to pass what amounts to the Health Insurance Industry Subsidization Act of 2009.

First, there’s the issue of why a mandate is necessary. Frist does not address at all the “market failure” that he claims exists which would be remedied by forcing everyone to purchase health insurance. What he does do, though, is reveal what the individual mandate is really all about — forcing young, healthy people who otherwise might choose to forgo the several-hundred-dollars-a-month worth of premiums they’d have to pay:

When healthier people opt not to carry insurance, only those with poorer health, and thus higher costs, remain in. This leads insurance prices to spiral up. And it further impedes markets’ ability to mitigate risks and prevent personal economic catastrophe. The “free-riders” who do not purchase insurance and the “voluntarily uninsured” who depend on emergency room care paid by others would then pay their fair share for services received.

What Frist doesn’t address, of course, is the fact that an individual mandate is likely to create upward pressure on premiums for one very simple reason — once insurance companies know that you have to buy their product whether you want to or not, they have zero incentive to keep premiums down. That’s the reason why, for example, auto insurance rates (which in most states are mandatory if you want to own a car) are higher than most other forms of insurance that individuals typically purchase.

What the individual mandate really does is to force the young and healthy to subsidize the older and sicker. It’s worth noting that hat’s the same logic that Social Security and Medicare are built on, and they’re in the process of going into an demographically inevitable bankruptcy. One can foresee much the same thing happening under an individual-mandate health scenario.

First goes on to cite Massachusetts as an example of an individual mandate plan that “works,” but that isn’t necessarily true:

The Massachusetts experiment with the same scheme has left the state with the nation’s most expensive insurance, with program spending up 70 percent in just three years and with a third of the uninsured remaining so. The cheapest insurance we can find in Massachusetts for an average family of four is $906 per month. In Iowa, it’s $145. Different coverage, certainly, but at least in Iowa cheaper coverage choices exist.

That’s what could come to America if we adopt the individual mandate.

Frist also fails to address a more important issue — what right does the Federal Government have to force me or you to buy health insurance ? I don’t just mean to ask what Constitutional provision authorizes it, although that is certainly important, but also why should the government be allowed to do this at all, even if it technically had the power to do so ? As a Republican who claims to “believe in limited government and individual responsibility, cherish the freedom to choose, and generally oppose individual mandates,” that’s a question that should be relatively easy for Frist to answer.

His silence, and the silence of other Republicans, is deafening.

Updated to reflect my failure to note that Frist is in fact a former Republican Senator

Why You Should Support Auditing The Fed

The Fed is tasked with the dual goals of price stability and restraining inflation. Folks like myself would suggest it hasn’t done a very good job of either, but that’s not crucial to the question of whether we should be able to determine how they’re attempting to fulfill their mission.

Particularly irksome when we’re talking about an audit is the fact that they’ve just admitted to engaging in gold swaps, influencing the gold price, in opposition to past denials and with the assertion that they should be able to continue hiding the specifics:

The Federal Reserve System has disclosed to the Gold Anti-Trust Action Committee Inc. that it has gold swap arrangements with foreign banks that it does not want the public to know about.

The disclosure, GATA says, contradicts denials provided by the Fed to GATA in 2001 and suggests that the Fed is indeed very much involved in the surreptitious international central bank manipulation of the gold price particularly and the currency markets generally.

The Fed’s disclosure came this week in a letter to GATA’s Washington-area lawyer, William J. Olson of Vienna, Virginia (http://www.lawandfreedom.com/), denying GATA’s administrative appeal of a freedom-of-information request to the Fed for information about gold swaps, transactions in which monetary gold is temporarily exchanged between central banks or between central banks and bullion banks. (See the International Monetary Fund’s treatise on gold swaps here: http://www.imf.org/external/bopage/pdf/99-10.pdf.)

Gold has been flirting with the $1000/oz level for several weeks (topping it a few times). Those in the gold market have long believed that central banks are suppressing the price to keep fears of inflation from hitting the roof.

How much longer do we have to allow the fed to lie to us, and then when we catch them red-handed, assert that they know well enough that we have to let them hide details on top of their lies?

I say we audit the fed. Then End The Fed.

Sorry Granny, “But For The Good Of Everyone, The Law Was Put Into Effect.”

I tells ya, sometimes ya just gotta to make an example of ‘em:

When Sally Harpold bought cold medicine for her family back in March, she never dreamed that four months later she would end up in handcuffs.

Harpold is a grandmother of triplets who bought one box of Zyrtec-D cold medicine for her husband at a Rockville pharmacy. Less than seven days later, she bought a box of Mucinex-D cold medicine for her adult daughter at a Clinton pharmacy, thereby purchasing 3.6 grams total of pseudoephedrine in a week’s time.

Those two purchases put her in violation of Indiana law 35-48-4-14.7, which restricts the sale of ephedrine and pseudoephedrine, or PSE, products to no more than 3.0 grams within any seven-day period.

When the police came knocking at the door of Harpold’s Parke County residence on July 30, she was arrested on a Vermillion County warrant for a class-C misdemeanor, which carries a sentence of up to 60 days in jail and up to a $500 fine. But through a deferral program offered by Vermillion County Prosecutor Nina Alexander, the charge could be wiped from Harpold’s record by mid-September.

You know the only thing worse than a police force given the discretion to determine whether or not a lawbreaker is a real threat to society and should be arrested for a crime — a situation which can lead to unintended consequences of racist enforcement, letting cronies off the hook, etc? A police force which enforces horrible, no-good, very bad laws evenly.

H/T: Reason

HHS Blocks Misleading Insurance Company Propoganda! [It Just Happens To Be True]

The Department of Health and Human Services isn’t pleased. You see, Humana has sent out a mailer (PDF) claiming that under the proposed health care legislation, Medicare Advantage benefits might be cut. HHS thinks this might be misleading, partly because Max Baucus (D-MT) says it won’t cut benefits and because they suggest it can be confused with an official Medicare communication (from the AP, via EconLog):

“The health care reform bill we released … strengthens Medicare and does not cut benefits,” said Baucus. “From lower prescription drug costs, to free preventive care, to better treatment for chronic conditions, seniors have so much to gain from health reform — and I’m not going to let insurance company profits stand in the way of improving Medicare for seniors.”

Humana has about 1.4 million Medicare Advantage enrollees, and the program accounts for about half the company’s revenue, Noland said.

The Humana mailer focused squarely on the Medicare Advantage program.

“While these programs need to be made more efficient, if the proposed funding cut levels become law, millions of seniors and disabled individuals could lose many of the important benefits and services that make Medicare Advantage health plans so valuable,” it said.

In a warning letter to Humana, HHS said the government is concerned that the mailer “is misleading and confusing” partly because the company’s lobbying campaign could be mistaken for an official communication about Medicare benefits.

HHS ordered the company to immediately halt any such mailings, and remove any related materials from its Web site. In the letter, the government also said it may take other action against Humana.

A PDF of the mailer is linked above. It certainly seems to me to be a “call your congressman” message, not an official Medicare communication.

So that leaves point #2. It could be misleading, false advertising. After all, Max Baucus says that Medicare Advantage won’t be cut, and he’s one of the main guys writing the bill. And he’s a Congressman, surely he can be trusted!

Or… Maybe not. At least, the Congressional Budget Office doesn’t think so (via QandO):

The head of the nonpartisan Congressional Budget Office, Douglas Elmendorf, told senators Tuesday that seniors in Medicare’s managed care plans would see reduced benefits under a bill in the Finance Committee.

The bill would cut payments to the Medicare Advantage plans by more than $100 billion over 10 years.

Elmendorf said the changes would reduce the extra benefits that would be made available to beneficiaries.

Hmm. So Humana is under the gun for “misleading and confusing” communications.

But they’re just reporting the facts of what is going on in Congress! Oh, wait, I guess that’s pretty much misleading and confusing by definition…

The NEA Con-Call; There’s Not Much “There” There

On August 10th, a conference call occurred, including folks from the White House, the National Endowment for the Arts, and the arts community. The purpose of the call was to “rally the troops” of artists who had spent time working for the Obama campaign, enlisting their help to push national service initiatives. The revelation of this call was the follow-up by Andrew Breitbart to the ACORN scandal, and as a fellow contributor to his “Big Hollywood” site put it, was pretty damning.

Monday, we have the NEA under the microscope. The Obama Administration was caught red-handed (is that “racist”?) funneling tax payer dollars into an official propaganda department. I can’t wait to see what the excuse will be this time.

Yeah, that’s pretty damning — if true. If there are taxpayer dollars being funneled into the arts community as a walking campaign for Barack Obama, there’s definitely something to be concerned about.

Thankfully, though, this is the internet age. Some anti-government crank in California like me can look at the transcript of the call (available here, courtesy of the very same Andrew Breitbart site), and piece together exactly what happened and what this means.

Because this is going to be a long post, let me set my thesis up front. I don’t like this call. I don’t like what it means. I view what occurred on this call as more properly being the domain of the DNC than the NEA or White House. But I don’t think any laws were broken, I don’t think this is really a walking Barack Obama campaign ad, and what was discussed on the call is not outside the mandate of the NEA.

So let’s look at the call:

Main Participants:
Mike Skolnic: Organizer of call. Independent filmmaker now Political Director for Russell Simmons, asked by United We Serve to arrange this call due to his extensive contacts within the art community.
Buffy Wicks: White House Office of Public Engagement (actual title not disclosed)
Nell Abernathy: Outreach Director for United We Serve
Yosi Sargent: Director of Communications, National Endowment For the Arts
Various artists: Mainly artists already engaged in Democratic activism, some who worked for Obama campaign.

Purpose of Call:
United We Serve is an initiative managed by the White House and the Corporation for National & Community Service, a federal agency formed in 1993 (as an outgrowth of existing agencies) to administer programs like SeniorCorps and AmeriCorps, and expanded in 2002 by George W. Bush to include USA Freedom Corps. United We Serve is an initiative looking to publicize and coordinate community and volunteer service through their Serve.gov web site. The conference call was intended to publicize this site and the United We Serve initiative to influential artists to help them further this in their communities. As such, the call was directed at furthering United We Serve primarily (although assuredly benefiting Barack Obama is a secondary benefit for the White House).

Potential Issues Raised by the Call:
There are several things that could be improper about this call, some of which I will accept and some of which I hope to dispel.

  • Using the National Endowment for the Arts, a funding arm for art and art education, in the furtherance of partisan goals of Barack Obama.
  • Similar to the above, the use of taxpayer funds for the same.
  • Direct influence of the White House Office of Public Engagement on the NEA.

So, again, we need to look at the transcript of the call to hash a lot of this out, because looking at the purpose of the call as I state it above compared to the potential issues raised by the call leaves a lot of room for subtlety and nuance. So if you didn’t click over already, I suggest you read the transcript itself. The advantage of the internet tends to be great access to primary sources, and you do well to make yourself familiar with them before forming a full opinion.

So let’s dispel a few things right up front.

Are taxpayer funds being used?
As far as I can tell, no. There was never a single mention that I could find in the transcript of offer or even discussion of the NEA providing grants or funds for these programs. It was rather one-sided, inasmuch the artists were pretty much told “you’ve shown previously that you care about X, here are some ways that YOU can help make X happen in your community and how Serve.gov will help you do so.”

Is this about partisan legislative efforts and Barack Obama’s agenda?
Again, no. The topic of the call was community service and volunteerism, and the furtherance of Serve.gov rather than legislation. A question was asked by one of the artists at the very end of the call regarding Organizing for America, and Nell Abernathy on the call very expressly stated that the two groups are different, unrelated, and that United We Serve has no intention of using the assistance of the artists for anything other than the furthering of community service and volunteerism. It was left by Nell along the lines of ‘the most I can do is tell you who to contact at OFA, but that’s a ball they need to run with.’

Alternatively, the language from Mike Skolnic (who, as he points out, is not employed by the government) was a bit more open. But I think it was clear that he was speaking not as a voice of United We Serve, the NEA, or the Office of Public Engagement when he made his statements in this manner.

Is the White House exerting partisan pressure on the NEA?
This, again, I don’t really see. It is clear that the NEA is signing up to help United We Serve, but the implications of that are far more interesting.

This is an excerpt (some portions cut to remove unnecessary language) from Yosi Sargent’s portion of the talk. It immediately suggested to me that the NEA was overreaching its mandate to further the arts and art education. The language here is arguably the most objectionable of the entire call (emphasis added):

This is what we fought for. We fought for a chance to be at the table and not only at the table but we’re setting the table. And now the official rule of National Endowment for the Arts, as director of communication and say, We here at the NEA are extremely proud to participate in the president’s United We Serve initiative.

This is a chance for us to partner with the White House and the corporation for national community service along the arts community in immediately affecting some change in our communities.

Really I want to emphasize, and I know that other people have brought it up already, but I want to just hearken back to it really quickly in that this is just the beginning. This is the first telephone call of a brand new conversation. We are just now learning how to really bring this community together to speak with the government. What that looks like legally, we’re still trying to figure out the laws of putting government Web sites on Facebook and the use of Twitter.

This is all being sorted out. We are participating in history as it’s being made. So bear with us as we learn the language so that we can speak to each other safely and we can really work together to move the needle and to get stuff done.

He is quite clearly saying that the NEA is excited to be joining in a partnership with United We Serve and the Corporation for National & Community Service. He is clearly saying that the NEA will be working not just to promote the arts, but to promote actual Federal government programs outside the arts.

Now, this seems to go beyond the NEA’s mandate as explained in their “About Us” page:

The National Endowment for the Arts is a public agency dedicated to supporting excellence in the arts, both new and established; bringing the arts to all Americans; and providing leadership in arts education. Established by Congress in 1965 as an independent agency of the federal government, the Endowment is the nation’s largest annual funder of the arts, bringing great art to all 50 states, including rural areas, inner cities, and military bases.

You see, nothing there says that they should be serving the government’s agenda. Their mandate, according to this very short blurb, is to promote the ARTS, not the government. So, on its face, it appears that the NEA will be going too far…

…but that doesn’t take into account the legislation forming the NEA (PDF), and what mission it was truly tasked with. From Title 20 U.S.C. § 954:

(o) Correlation and development of endowment programs with other Federal and non-Federal programs; expenditure of appropriations. The Chairperson shall correlate the programs of the National Endowment for the Arts insofar as practicable, with existing Federal programs and with those undertaken by other public agencies or private groups, and shall develop the programs of the Endowment with due regard to the contribution to the objectives of this Act which can be made by other Federal agencies under existing programs. The Chairperson may enter into interagency agreements to promote or assist with the arts-related activities of other Federal agencies, on a reimbursable or nonreimbursable basis, and may use funds authorized to be appropriated for the purposes of subsection (c) for the costs of such activities.

What does this mean? The Corporation for National & Community Service is a federal agency, and United We Serve is a portion of that agency that may need arts-related activities. Thus, the National Endowment of the Arts, per the actual founding legislation created by Congress, is well within its authority to use its power, through funding or without funding, to help United We Serve achieve its goals. The NEA is not overstepping its bounds here. Those bounds may be farther out than we realized, but there’s nothing I see that suggests they cannot be doing this.

Now, as a libertarian, I don’t expect myself or most conservatives to like what was discussed on this call. There are reasons to object, largely based on the appearance of impropriety and the fact that the government views these artists as vessels to promote its agenda. There’s a fundamental view of the relationship between the government and its citizens that I believe gets confused. This administration seems to see a path to self-actualization for all Americans through collectivism organized by government. But I don’t see this as anything different, new, or particularly “damning” knowing what we already know about this administration. This is certainly less of a “gotcha” than the ACORN tapes, in factual terms, but I suspect that if you listen to the Glenn Becks of the world, they’ll make a mountain out of a molehill.

The ACORN Tapes

I’m about to write a very long-winded post on the story that dropped from Breitbart on the NEA “scandal”, and in doing so, I need to clear the air about ACORN. When the ACORN tapes hit the street, I considered posting about it.

My initial reaction was this:

1) I’m a libertarian. In my world, prostitution would be legal.
2) I’m a libertarian. In my world, the IRS would be illegal.

Thus, I wasn’t all that up in arms about an organization advising someone on how to hide the proceeds of a prostitution business from the IRS. In fact, I was a bit jealous — nobody exists to help me hide MY legal income from the IRS! Who’s gonna help out us engineers?!

But, then I started to actually dig into the story, and there were two additional bits of information that pushed me to the other side of the fence:

3) ACORN was advising these folks on how to bring in underage girls from overseas to work as prostitutes. Libertarianism doesn’t quite extend to human child sex trafficking.
4) ACORN is an organization that I learned is significantly funded by the government. I’m against government funding of most things, but I’m particularly against government funding of groups which are working very hard to advise people how to break the law.

So I’m pretty glad to see that ACORN got what was already likely coming to them, in the form of public ridicule and scorn and being tossed off the public dole. Advising someone on how to hide the fact that you’re bringing in foreign children to work as whores is despicable, and ACORN should be ashamed for what their employees did on those tapes.

Happy Hump Day!

A little diversion to your week:

India’s cricketers at the Champions Trophy in South Africa are being encouraged by their coach to have sex to boost their on-field performance, a newspaper reported on Wednesday.

The large-selling broadsheet, which claimed to have a copy of the document, said the relevant chapter was headlined “Does sex increase performance?”.

“Yes it does, so go ahead and indulge,” the document said, before detailing the benefits of a good sex life and even suggesting “going solo” if no partners were available.

“From a physiological perspective, having sex increases testosterone levels, which cause an increase in strength, energy, aggression and competitiveness,” the document said.

As a college football fan, I think this could give a whole new meaning to the term “booster”.

Why Federal Government Spending Will Never Be Cut

Economist Bruce Bartlett had a column in Forbes outlining why he thinks spending won’t be cut.

Every time I write about the need to raise revenues to pay for federal spending, some nitwit always demands to know why we don’t just cut spending. That is not a viable option to deal with our fiscal problem.

The first point that people need to understand is that we live in a democracy. We don’t have a dictator who can just wave his hand and abolish government programs. We have a president who may propose spending cuts, but before they take effect he must get agreement from both the House of Representatives and Senate, both of which may be controlled by a different party. Congress’ efforts to cut spending on its own are futile without prior agreement from the president to support them, as Republicans found out the hard way in 1995.

Direct presidential control over spending is extremely limited. By law, he must spend every dollar appropriated by Congress. And presidents have no control at all over three-fifths of the budget devoted to interest on the debt and entitlement programs–those like Medicare for which spending is automatic. Even Congress can’t reduce spending for entitlements unless it changes the law governing eligibility and programmatic operations.

So 60% of the Federal budget cannot be touched in the budget process. The national debt must continue to be serviced and entitlements (ie. Social Security and Medicare) can only be touched by changing eligibility and the actual operations and only as stand alone legislation for the most part. So what about cutting the other 40%? Won’t work…

Looking at last year’s budget, only 38% was classified as discretionary; that is, under Congress’s control through the appropriations process. All the rest was mandatory: entitlements and interest on the debt. Within the discretionary category, 54% went to national defense. Just $37.5 billion, 3.3% of the discretionary budget, went for international affairs including foreign aid. Over the years I have encountered many conservatives who thought that abolishing foreign aid was just about the only thing needed to balance the budget. Obviously, that’s nonsense.

Domestic discretionary spending amounted to $485 billion last year. With a deficit last year of $459 billion, we would have had to abolish virtually every single domestic program to have achieved budget balance. That means every penny spent on housing, education, agriculture, highway construction and maintenance, border patrols, air traffic control, the FBI, and every other thing one can think of outside of national defense, Social Security and Medicare.

Obviously that will never happen because most of the above programs have a constituency that supports them.

Bartlett also points out that it would help the situation if some of the proponents of budget cuts knew what the hell they were talking about:

Many of those favoring budget cuts have ridiculous notions about how much of the budget can be cut without reducing services. A recent Gallup poll found that Americans generally believe that 50% of the budget is wasted. This suggests that they believe the federal budget could be cut in half without cutting anything important like Social Security benefits or national defense.

Just so people know the round numbers, total spending this year is about $3.6 trillion. At most, $200 billion of that represents stimulus spending, so even if there had been no stimulus bill and the economy had done as well as it has done, we would be looking at a $3.4 trillion budget.

Revenues are only about $2.1 trillion, so we would be looking at a substantial deficit even if the stimulus package was never enacted. Revenues would be even lower if Republicans had gotten their wish and the stimulus consisted entirely of tax cuts. How tax cuts would help people with no wages because they have no jobs or businesses with no profits to tax was never explained. But many right-wingers are convinced that tax cuts are the only appropriate governmental response no matter what the problem is.

It would also help matter if Republicans weren’t hypocrites:

This means that it is impossible to get control of spending without cutting entitlement programs. Many Republicans agree, but they never make any serious effort to do so. On the contrary, they defend entitlements when Democrats suggest cutting them. The Republican National Committee has run television ads opposing cuts in Medicare because Obama proposed using such cuts to fund health reform. Many demonstrators at right-wing tea parties were seen carrying signs demanding that the government keep its hands off Medicare.

Last year, we spent $456 billion on Medicare, and it is the fastest growing major government program. How likely is it that the people protesting Obama’s Medicare cuts will stand with Republicans if they propose cutting that program even more to balance the budget? They will switch sides in an instant. The elderly will fight anyone who tries to cut their benefits even as they hypocritically demand fiscal responsibility and rant about the national debt. The elderly are the reason why we have a national debt.

As for the great spending cutters Ronald Reagan and Margaret Thatcher, well not so much:

When I raised these facts with a prominent Republican recently, he countered that Reagan had cut spending. But he didn’t. Spending rose from 21.7% of the gross domestic product in 1980 to 23.5% in 1983 before declining to 21.2% in 1988. And that improvement came about largely because favorable demographics caused entitlement spending to temporarily decline from 11.9% of GDP in 1983 to 10.1% in 1988. (Last year it was 12.5% of GDP.)

When I noted these facts, my friend pointed to British Prime Minister Margaret Thatcher as someone who showed that spending could be slashed. But she raised spending from 42.4% of GDP when she took office in 1979 to 46% of GDP in 1985. Only in her last years in office was spending cut to 38% of GDP. But keep in mind that Thatcher was in office for 10 years, longer than a U.S. president may serve, and had compete control of Parliament the whole time–something Reagan could only dream about.

Since it is not politically possible to cut Federal spending there are only three choices, from the argument laid out in the article:

A) Raise taxes massively which would likely crush the American economy and continue to perpetuate the cycle of government growth consuming resources out of the private sector.

B) Default on the national debt causing a national and global economic collapse.

C) Continue the current cycle of bread and circuses of spending and spending more until options A and B come due.

However, I see Bartlett’s argument as too defeatist in nature.

Neither of the three options is pleasant and fortunately, we don’t have to choose between the three but that requires the American people and politicians making hard choices (which they don’t seem to know how to make).

Solving the long term financial crisis that will lead to national bankruptcy will take a grand bargain of sorts where every political faction will get some of what they want but will have to swallow some things they don’t.

The left will have to swallow budget cuts to social welfare programs but they will applaud the tax increases that will be needed overall.

The right will have to swallow defense cuts and higher taxes but they will applaud overall budget decreases.

Libertarians will have to swallow a government not quite as small as they want and higher taxes but will applaud a shrunken Federal government both in size and scope both at home and abroad.

Populists will not like any of this because populism whether it be right-wing populism, left-wing populism, or even libertarian populism is predicated on the concept of having one’s cake and eating it too. Populism is generally anti-intellectual and solving the serious long-term financial problems of this nation will take more than a slogan or a media celebrity. I don’t see a role for populists in solving this nation’s problems because they are generally the cause of them.

Over the coming weeks, I will lay out what I see as the ingredients of the great political grand bargain that will be needed to avert national bankruptcy.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at IJ Review.com and Rare. You can also find me over at the R Street Institute.

Republicans Were Against Big Government Before The Election, Too.

Apparently, the Obama administration is learning that calling a large percentage of the American people racist wackos isn’t a very good idea: it cheapens the terms, which carry more charge if applied to Stormfront and the birthers, respectively. Obama on Leno last night (text via LA Times) suggested that maybe people are opposing him because that’s what the opposition in politics does, not because he’s black:

Asked about Jimmy Carter’s charge that opposition to Obama health care reform is rooted in racism, Obama said, “I was actually black before the election.” Attributing the criticism to the heat of the issues, the president noted that FDR was reviled as a socialist, Ronald Reagan as a reactionary.

“This is not untypical,” he said. “One of the things you sign up for in politics is folks yell at you.”

So let’s go through one other charge. Some say that Obama is being called a socialist because he’s black. That’s patently false. He’s being called a socialist because he’s a Democrat. Want some evidence? See this [fairly socialist] ad from Hillary’s campaign, which was widely pilloried on the right (and here at TLP):

And, speaking of some wackos, let’s take a quick look at some choice responses in the comments from the freepers after the ad dropped (after the fold):
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Quote Of The Day

From Ian Millhiser, who derides “tenthers”, the folks who actually believe the 10th Amendment was designed as a meaningful check on the federal government.

More important, there is something fundamentally authoritarian about the tenther constitution. Social Security, Medicare, and health-care reform are all wildly popular, yet the tenther constitution would shackle our democracy and forbid Congress from enacting the same policies that the American people elected them to advance. After years of raging against mythical judges who “legislate from the bench,” tenther conservatives now demand a constitution that will not let anyone legislate at all.

Huh… So by not wanting a hugely powerful federal government regulating and monitoring every aspect of my life, I’m an authoritarian?

I guess if Ian Millhiser would call himself anti-authoritarian — which I would guess he does — he’ll support letting us “tenthers” opt out of these government programs for which we disagree? After all, we don’t want to impede his ability to have the government he wants, as long as we don’t have to have the government he wants too.

Hat Tip: Popehat

Are Health Insurance Mandates Constitutional ?

After a piece last month in the Washington Post, which I wrote about here, lawyers David Rivkin and Lee Casey are back with a piece in the Wall Street Journal expanding on their argument that a requirement that every American buy health insurance would be unconstitutional. This time, they argue that, even under current commerce clause precedent, there is no Constitutional authority for a Federal health insurance mandate:

The Supreme Court construes the commerce power broadly. In the most recent Commerce Clause case, Gonzales v. Raich (2005) , the court ruled that Congress can even regulate the cultivation of marijuana for personal use so long as there is a rational basis to believe that such “activities, taken in the aggregate, substantially affect interstate commerce.”

But there are important limits. In United States v. Lopez (1995), for example, the Court invalidated the Gun Free School Zones Act because that law made it a crime simply to possess a gun near a school. It did not “regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity.” Of course, a health-care mandate would not regulate any “activity,” such as employment or growing pot in the bathroom, at all. Simply being an American would trigger it.

Article 1, Section 8, Clause 3 of the Constitution sets forth Congresses commerce power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Strictly construed the Commerce Clause would not seem to be that broad of a grant of power. After all, the chief ill that it was aimed at was to allow goods and business to flow easily between the respective states, something that was not possible under the Articles of Confederation. However, the Supreme Court has interpreted the clause so loosely that it has gone far beyond the point where it actually imposed any limits on Congressional authority. For example, in 1942, in Wickard v. Filburn, the Supreme Court ruled that a farmer who grew wheat on his own land for his own consumption affected interstate commerce and was therefore subject to the regulations of Agricultural Adjustment Act of 1938. Once that happened, the door was open to allow Congress to use the Commerce Clause to justify extensions of Federal power into areas that the Founding Fathers would never have conceived it would be exercised.

The post-Wickard history of the Commerce Clause has been one of expanding federal power and increasing regulation of activities that have only a tangential relationship to interstate commerce. But there have been some bright spots recently.

As the article notes, in 1995, the Supreme Court ruled in United States v. Lopez that the commerce clause could not be used to justify a Federal Law that made it a crime to carry a gun with a certain distance from a school. In 1996, it ruled in Seminole Tribe v. Florida, that the Commerce Clause did not give the Federal Government the right to abrogate the soverign immunity of the state. And, most notably, in a dissent in Gonzalez v. Raich, the 2005 case that upheld the supremacy of Federal drug laws over state medical marijuana laws, Justice Thomas said the following:

Respondent’s local cultivation and consumption of marijuana is not “Commerce … among the several States.”
Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

Given this trend, the a Constitutional challenge to an individual mandate would seem to be a potentially successful argument. However, as Eugene Volokh pointed out in a post responding to the original WaPo article, that isn’t necessarily the case:

As much as I oppose the various health care reforms promoted by the Obama Administration and current Congressional leadership (and as much as I would like to see a more restrictive commerce clause jurisprudence), I do not find this argument particularly convincing. While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)

At best then, this would seem to be a very close call and, given almost 200 years of Supreme Court precedent it seems unlikely that a Court would overturn something as far reaching as a health care reform plan — although as the National Recovery Administration learned in 1935, it’s not impossible.

Hey Ezra, Strawman Much?

Ahh, the infamous strawman. Take one aspect of an argument, assume it is not part of a cohesive whole, and argue against it as if it negates everything else at hand. I.e. libertarians and conservatives argue that capping drug prices just MIGHT reduce drug innovation, and Ezra Klein acts as if we’d keep everything else equal in the system:

For a long time, I took questions about stifling innovation very seriously. So did a lot of liberals. But then I realized that the people making those arguments wanted to do things like means-test Medicare, or increase cost-sharing across the system, and generally reduce costs in this or that way, which would cut innovation in exactly the same way that single-payer would hypothetically cut innovation: by reducing profits.

I also found that I couldn’t get an answer to a very simple question: What level of spending on health care was optimal for innovation? Should we double spending? Triple it? Cut it by 10 percent? Simply give a larger portion of it to drug and device manufacturers? I’d be interested in a proposal meant to maximize medical innovation. I’ve not yet seen one.

It turned out that concerns about innovation weren’t really about innovation at all. They were just about attacking universal health care ideas of a certain sort. Which is why I stopped taking them seriously.

No libertarian in the world will argue that government spending can’t achieve certain goals. After all, government spending got us to the moon. If you set the goal of American society, as Kennedy did, as getting to the moon within a decade, then you forcibly take the money to pay for the goal [since Americans weren’t exactly going there of their own accord], you can probably get there.

Likewise, if government really put its mind to drastically advancing medical innovation, and threw out, say, $50B a year for drug research to stem the growth of most types of cancer, I’ll bet within two decades they might have results. While money doesn’t exactly solve everything, government subsidies can certainly accelerate development. Granted, that cancer research might be at the expense of heart disease research, and AIDS research, and diabetes research, and just about everything else [excepting penis enlargement research, of course, because that’s always a growth industry].

But now I’m getting away from the point. Why is this a strawman? Because opponents to gov’t healthcare view the death of medical innovation as one bad side effect of a wider bad policy, not the most important argument against gov’t healthcare.

Look at it this way. We don’t argue that there is no innovation in the digital music player industry because gov’t doesn’t spend enough. After all, we’ve got all different flavors of iPods, the new Zune, all manner of knockoff players and tiny upstarts, not to mention the fact that just about every new cellphone or car stereo can play MP3’s. Ten years ago, when I was in college, MP3’s were limited to those of us savvy enough to navigate Napster, hook our computers up to our stereos, and had a fast enough internet connection to make the whole deal worthwhile. Today MP3 players are ubiquitous and digital music threatens to destroy the entire existing business model of music production.

I’m not going to address the conservative rebuttals, but I’ll take a look at this from a libertarian perspective. Libertarians aren’t opposed to profits. We are not opposed to competition. We are not opposed to market-based prices that may, in some cases, not cover the costs of drug development. We don’t view medical innovation as a simple question of “should WE spend X or 2X or 3X?” Not because we don’t have an opinion on optimal spending — we may or may not — but because we oppose to the WE. We implies collective action, and usually implies forced collective action.

The WE, of course, has a lot of unintended consequences to it. If the WE becomes too large [cough]medicare[/cough], it tends to crowd out private spending. When private spending is crowded out, prices become opaque. They cease to be a clear sign of market value and cease to be a proper incentive for producers. As I said above, $50B a year in research money would entice quite a few drugmakers to focus R&D onto cancer. But is that the optimal amount to spend? Would that be useful or wasteful? What is the opportunity cost of pulling that money out of the economy through taxation and redistributing it through the government? All these questions distort the free market, and when you try to distort the free market you end up with problems.

There are two SIGNIFICANT government distortions specifically into drugs: the patent scheme and the FDA.

The FDA:

Simply put, the FDA’s job is to restrict access to medicine until in meets very stringent guidelines. The doctrinaire libertarian position on the FDA is that it needlessly delays medicine that has some efficacy and takes away freedom of choice from individuals who may wish to take personal risks by purchasing that medicine despite the FDA’s lack of recognition.

The doctrinaire libertarian position is a moral position on individual choice, but the economic case is much simpler and stronger. FDA regulation artificially raises the cost of creating new medicines. If your R&D division knows that of all the medicines they research, only 40% will be effective, and only 10% will be approved through FDA trials, you know that 75% of effective drugs they create cannot be purchased. This means that they must more than double the price of drugs to cover R&D on those which wouldn’t be effective, and then quadruple the price beyond that for those which would have been effective but not meet FDA approval. Prices charged for drugs are dependent as much on covering the cost of failure as the cost of success.

Patents:

From a doctrinaire libertarian perspective, you can go two ways on patents. First is that intellectual property isn’t property, and patents are simply government distortion into the market that should be distorted. I like the argument, but even as a doctrinaire libertarian, I’m not far enough behind the anti-IP program to defend it (see mises.org for that one). The opposite (yet still doctrinaire libertarian) argument is that intellectual property should not be arbitrarily time-limited by the government, and that the patent protection time is too short.

The second argument is an explanation for the price of drugs. When you develop a new drug, have to recoup the development & testing costs of that drug, need to recoup all the development costs of the failed drugs, you need to forecast the expected use of that drug between the time it launches and the time your patent expires. Once that patent expires, you’re fighting generics for market share. If you think that 10,000 people per year might need your drug, and you have patent protection for 5 years, you know what price you need to set to recoup your investment and make a profit. If your patent protection extends for 10 years, though, you can set the price at roughly 1/2 the level and still make your profit.

Either way, from an economic standpoint the extension of patent protection might reduce costs and improve pharmaceutical innovation. Reducing patent protection might increase short-term costs (reducing them long-term) but at the expense of pharmaceutical innovation. There are trade-offs and issues no matter what you do.

The solution:

Frankly, the solution isn’t to ask what WE should spend on health care or medicine, just as WE don’t ask what WE should spend for iPods, HDTV’s, heads of lettuce or pickup trucks. The difference is that in those products, we have a functional market. In a functional market, competition and choice lead to efficiency and an optimal mix of innovation vs. price.

The solution is NOT price controls. Economic history shows that price controls lead to shortages.

The solution is NOT rationing. Rationing doesn’t control prices but controls expenditures (unit volume). Rationing increases prices and/or leads to shortages.

The doctrinaire libertarian solution is to reduce the role of the FDA and put more responsibility on the individual to choose health care options, and to ensure that intellectual property laws are set optimally to protect innovation. The free market is known for reducing prices and increasing innovation. Perhaps we should have more of this “free market” thing.
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