Archive for the ‘Politics’ Category

Citizens United v. FEC

Friday, April 2nd, 2010

A few weeks before the 2008 primary election, a non-profit corporation called Citizens United tried to release a video criticizing Hillary Clinton. Federal campaign finance laws prohibited this, so Citizens United sued. In 2010, the Supreme Court ruled that those campaign finance laws were unconstitutional because they violated the First Amendment. President Obama publicly criticized the Supreme Court’s decision.

This video explains why President Obama was wrong and the Supreme Court was right.

There are three parts to this video.


Thoughts About the Mount Vernon Statement

Wednesday, February 17th, 2010

Today at George Washington’s historic home, the leaders of several conservative organizations signed a document titled “The Mount Vernon Statement.” This document purports to restate the principles and ideas of the American founding and articulate a unifying “Constitutional conservatism.”

Although I agree with some of what this document contains, there are two statements which taint the rest of the project. These statements describe this proposed Constitutional conservatism as follows:

“It encourages free enterprise, the individual entrepreneur, and economic reforms grounded in market solutions.”

“It supports America’s national interest in advancing freedom and opposing tyranny in the world and prudently considers what we can and should do to that end.”

The first of the two statements makes me uneasy simply because it is so ambiguous. What is a policy agenda that encourages free enterprise and economic reforms grounded in market solutions? I can’t tell if this is an endorsement of laissez faire principles or more of the Keynesian economics that we have seen lately.

The second statement seems to endorse the position that the United States is justified in meddling in foreign affairs if it is “advancing freedom” or “opposing tyranny.” I would be much more comfortable with a statement like “provide for the common defense.” Alas, the Constitution’s language isn’t broad enough to justify foreign wars to secure commercial interests, so apparently the authors of The Mount Vernon Statement had to insert something more flexible.

Now I understand that this document is probably just an effort to reunite a conservative movement that has fractured over disagreements about fundamental issues. But the reunification that this document proposes simply ignores the problems. If these people want to build a political movement, they should try using plain language in the style of Ron Paul. You may disagree with what Ron Paul says, but it is clear what he stands for.

As of this writing, the document’s website states that over 7,500 people had signed to show their support. Maybe it will do some good, but I expect that The Mount Vernon Statement will be forgotten within the month.

More on the Healthcare Debate

Wednesday, February 17th, 2010

Today I attended a debate about the nationalization of healthcare. The panelists were Doug Bandow, senior fellow at the Cato Institute; Neville Cox, director of post graduate teaching and learning at Trinity College Dublin School of Law; and David P. Fidler, Professor of Law at Indiana University Maurer School of Law.

Surprisingly, the panelists agreed on many issues. All agreed that having health insurance tied to employment was foolish; that the present U.S. healthcare system was unsustainable and that radical changes were necessary to prevent serious negative consequences; that efforts to resolve the problems with healthcare at a national level will continue to be undermined by the substitution of political maneuverings for reasoned solutions; that there is no successful system of nationalized healthcare in the world; that the American people has an obligation to care for the poor and needy in its society; and that all healthcare systems demand uncomfortable tradeoffs.

Since I didn’t take careful notes and since my memory isn’t good enough to write a play-by-play account of the debate, I will simply summarize what I understood the panelist’s positions to be.

Professor Cox argued that the British healthcare system where the government provided health insurance was a good model, and cited statistics which place the United States at the bottom of industrialized nations in healthcare quality. He thought that the “public option” element of President Obama’s healthcare plan was essential to ensure that individuals with chronic healthcare problems requiring expensive care had access to insurance. He argued that healthcare was an area in which individual autonomy would have to yield to social need. He recognized that this would entail the rationing of healthcare and that government would have to make the rationing decisions—especially in areas where the likelihood of the patient surviving was low and the treatment costs were high. Overall he supported President Obama’s plan and hoped that it would succeed.

Professor Fidler began by trying to explain why the recent efforts to reform healthcare had failed. He argued that the public simply doesn’t believe President Obama’s claims that the healthcare bill would not require deficit spending. Government efforts to provide services in the past had always gone over budget—usually dramatically over, so the public simply isn’t willing to believe that healthcare would be any different. He almost scoffed at the idea that President Obama would be able to squeeze any real money out of the Medicare and Medicaid programs. Evidence of this is the fact that Congress passed a benefit cut to Medicare and Medicaid in 2002, but for the past 7 years they have postponed the bill’s effective date in response to political pressure. Professor Fidler also speculated that the public was genuinely afraid of radical change to their health insurance plans, and that the public did not believe Obama’s assurances that those who were happy with their current health insurance would see no change in the system. He also questioned, if healthcare were truly such a high priority for the country, then why would the Obama administration be unwilling to use deficit spending to fund it? Nevertheless, he conceded that the current health insurance system was badly broken.

Mr. Bandow of the Cato Institute was clearly used to debates of this kind. He had numerous facts and concrete examples at his disposal to illuminate his arguments. He began by clarifying the statistic that Professor Cox cited about the quality of United States healthcare. He noted that if accidents and violent crimes were eliminated from the statistical calculations, then the United States healthcare quality would rank in the middle range of scores from industrialized nations. Mr. Bandow next argued that the problems with United States health insurance were caused by perverse incentives: the patient is not directly paying the costs, and healthcare providers benefit from high costs. In other words, of the two parties who make decisions about what treatment a patient should receive, one doesn’t care how much it costs because the insurance company is paying for it, and the other wants the costs to be high because high costs yield profits. Consequently, there is very little incentive to reasonably evaluate whether a treatment is necessary or even beneficial before paying for it. This system drives up costs and wastes resources. Real reform, Mr. Bandow argued, will not simply provide more healthcare services to more people; United States citizens already consume much more healthcare on average than the citizens of any other nation. Real reform would place incentives toward efficiency on the individuals who were making the decisions about what treatment was necessary and what treatment was not. This would eliminate waste and reduce costs. This would also allow individuals rather than government bureaucrats to make the hard decisions about issues like end of life care and treatments with a low likelihood of success.

So there you have it. Three perspectives on healthcare reform. If any of the positions above seem unclear, please post a comment and I will try to clarify what the panelist meant.

Without going into too much depth, I just want to point out that except for the unanimous-but-indistinct affirmations that the United States has an obligation to care for the needy, none of the panelists argued from a basis of principles. Nothing was said about whether compelling individuals to purchase health insurance would violate important principles of individual autonomy. Nothing was said about whether granting government power to make decisions about medical care for individuals would violate important principles of individual liberty. Nothing was said about whether taxing the many to support the few would violate property rights. Are we too far down the rabbit hole to worry about such things anymore? Instead the panelists relied on consequentialist/utilitarian arguments grounded in economic theories about which plan would maximize healthcare overall.

Gross Income Attitudes

Thursday, January 28th, 2010

It is income tax season again, and as you pore over your records to discover how much the IRS siphoned from your paycheck and whether you have to fork over more, consider this frightening fact. From the government’s perspective, they could have taken much, much more. As proof of this, I present two pieces of evidence: the definition of “income” found in the Internal Revenue Code, and the concept of tax expenditures.

As you fill out your income tax forms, you will likely have to compute your gross income. The number you come up with, however, does not even come close to what the government’s tax theory says your gross income really is. As defined in Section 61 of the Internal Revenue Code, gross income is “all income from whatever source derived.” This is not terribly troubling until you understand the scope of the term “income.” As defined by the Supreme Court, “income” is any increase to wealth. See, e.g. Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955); see also Henry C. Simons, Personal Income Taxation 50 (1988). This isn’t just the money you earn; it includes the value of any services you receive (even those services you provided for yourself) and the value of any property rights you used. So in a world in which we strictly followed the government’s tax theory, you would include in your gross income calculation the value of cleaning your house, washing your car, brushing your teeth, and so on. You would include the value of living in your home, driving your car, wearing your clothes, etc. Happily, for now, the administrative costs of discovering the value of all these “accessions to wealth” limits the tax man’s reach. But as technology advances, who knows, you might be listing items like this on your income tax forms.

Understanding the government’s perspective on income is important because it reveals a dangerous attitude towards individual autonomy. Every productive act you do and everything you enjoy is taxable. There is nothing—at least nothing recognized by the government—in the legal foundation undergirding Congress’ authority to tax that prevents them from taxing anything and everything.

Now, some of you tax-savvy readers may be shaking your heads and thinking, “What about all the deductions, exemptions, and exclusions? Surely this is solid evidence that the government recognizes that there are some things that simply should not be taxed.” To disabuse you of this overly-charitable idea, let me introduce to you the concept of tax expenditures.

The concept of tax expenditures was invented by Stanley S. Surrey, a Harvard Law Professor and former assistant secretary of the United States Treasury. This concept profoundly influenced government budget analysis both in the United States and abroad. See Leonard E. Burman, Is the Tax Expenditure Concept Still Relevant? 56 National Tax Journal 614 (2003). The tax expenditure concept changed how the government calculated how much it was spending. The traditional method was simply to tally up the amount of money that the government expected to pay to cover its programs and projects. Mr. Surrey changed that method by proposing that the government include in its spending calculations the amount that it did not collect because of tax exemptions. The taxes that would have come from those portions of income that the government could have taxed but didn’t were, in Mr. Surrey’s method, uncollected revenue that should be accounted for. Adopting Mr. Surrey’s idea, the Budget Act of 1974 defined tax expenditures as, “those revenue losses attributable to provisions of the Federal tax laws which allow a special exclusion, exemption, or deduction from gross income or which provide a special credit, a preferential rate of tax, or a deferral of tax liability.”

Mr. Surrey’s upside-down method encouraged government to abandon the idea that some organizations and activities were simply beyond the reach of the tax code and to view any tax exemptions, deductions, or exclusions as monetary gifts from the government to the benefiting individuals and organizations. For example, under the Section 170 of the Internal Revenue Code an individual may be eligible for a tax deduction for the amount that he or she donates to a qualifying charitable organization. Under Mr. Surrey’s method, however, instead of recognizing that government simply should not be allowed to tax charitable donations, the government views the taxes that it could have taken but didn’t as a government subsidy—as if government itself were donating money by refraining from its “right” to tax. Rather than recognizing limits on its power to tax, government now views these exemptions, deductions, and exclusions as a form of discretionary spending justifiable only because it furthers political or social goals.

Putting together the two halves of the above discussion shows that government assumes that every productive or enjoyable thing you do is potentially taxable income and that by not taxing you to the full extent of its “rights,” it is generously giving you a gift. This attitude is particularly frightening in a time when unwise citizens continue to give political power to leaders who think they can spend their way out of any economic crisis or social ill, government budget deficits grow by the trillions of dollars, and academia continues to erode recognition of individual property rights. We have strayed very far from the relationship between citizens and government that the Declaration of Independence described. Do we still believe that the government is the servant of the people? For our government’s attitude about taxes is a strange attitude for a servant to take.

Achieving Cloture

Sunday, November 22nd, 2009

The purpose of parliamentary law—the rules that govern legislative procedure—is to “enable an assembly, with the least possible friction, to deliberate upon questions in which it is interested, and to ascertain and express its deliberate sense or will on these questions” General Henry M. Robert, Parliamentary Law 3 (1923) (General Robert authored Robert’s Rules of Order, an influential work on parliamentary procedure which is still commonly used today.). So to prevent impassioned minorities from creating too much friction by abusing the filibuster, the Senate implemented a procedure called “cloture.”

The U.S. Senate’s online glossary, explains cloture as follows:

cloture – The only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster. Under the cloture rule (Rule XXII), the Senate may limit consideration of a pending matter to 30 additional hours, but only by vote of three-fifths of the full Senate, normally 60 votes.

Yesterday, the Senate voted for cloture on the debate about the government health care takeover. Even setting aside the vote-purchasing spectacle, I believe that in these circumstances cloture was inappropriate. In general, I don’t see anything wrong with a rule that allows the legislature to avoid a filibuster if it is simply an abuse of procedure designed to derail the legislative process. After all, we don’t require unanimity among our lawmakers; a majority is usually enough. But in this case cloture wasn’t used just to avoid procedural delay tactics; it was used to avoid important debate and discussion.

The Senate democrats’ draft health care bill, called the “Patient Protection and Affordable Care Act” is 2,074 pages long.  If it is implemented, it will drastically change the way in which health care is provided and paid for in the United States. Low-end estimates predict its cost at close to a trillion dollars during the first decade. Furthermore, there are important questions to be resolved over which the public is deeply divided. Will it cover abortions? Will it subsidize reckless lifestyles? Will it cover non-citizens? How will the country pay for it? How will the system deal with shortages? Who will decide when a medical procedure is appropriate? Are the government’s recent recommendations for less frequent cancer testing for women just the first step in a movement to ration all medical tests? Will this plan avoid the mistakes that led to the failure of other government-run health care programs such as Medicare, Medicaid, and the Veterans’ Administration?

I am irreconcilably opposed to government involvement in health care for reasons of principle, but even those in favor must recognize that these questions need to be answered. To successfully implement a program of this size and complexity, congress would need more than a mere thirty hours to debate, plan, and evaluate. Cloture in these circumstances is foolhardy.

Making the News

Friday, November 20th, 2009

It’s no secret that news reporters distort facts to sell ads and push agendas, but here is a funny example. I was alerted to this by an odd discrepancy in an interview published by Fox News. The headline for the interview read, “Sen. Hatch: ‘Holy War’ Coming Over ‘Lousy’ Health Care Bill.”

Now the quotation marks in the headline led me to believe that Senator Hatch actually said the words “holy war,” but the only time the term comes up in the interview is in the following passage,

HATCH: From now. If they tried to go ahead with this bill without really allowing enough time for amendments and for chances to try and correct the bill, I think the American people are going to be outraged, and they should be.

VAN SUSTEREN: You used the term “holy war” in describing that, right?

HATCH: We’re talking about a country that is really going to be in real economic jeopardy if this bill goes through this way. And let’s just be honest. Those figures are probably low.

Notice that Senator Hatch simply ignored the reporter’s invitation to provide a quote that includes the words “holy war” in it. It seemed strange to me that the reporter would load a question like that unless there was at least some factual basis for it, so I googled the term “senator hatch ‘holy war.’” Sure enough, other news agencies were reporting the phrase as well—there were over 17,000 results. Most of the articles that cited a source for the quote referenced an article published in the L.A. Times.

The relevant portion of the L.A. Times article read, “‘It’s going to be a holy war,’ Sen. Orrin G. Hatch (R-Utah) said Wednesday evening.” (No citation for when or where this was said.)

Reporters love it when public figures say things like “holy war,” because it can be manipulated in so many different ways. Here are a few:

So I called Orrin Hatch’s D.C. office to ask if he had really used the phrase, “holy war,” and if so, what he had meant by it. I spoke with Mark Eddington who explained that Senator Hatch may have used the phrase in the halls after a hearing and that he was using the term to describe the expected intensity of the floor debate.

So there you have it, news making at its best. No wonder people are confused!

“When many organs of the press adopt the same line of conduct, their influence in the long run becomes irresistible, and public opinion, perpetually assailed from the same side, eventually yields to the attack. In the United States each separate journal exercises but little authority; but the power of the periodical press is second only to that of the people.” Alexis de Tocqueville, Democracy in America vol I ch 11 (Henry Reeve trans. 1899) (1835).

Flaws in the American Health Care System

Friday, November 20th, 2009

A few weeks ago, a good friend of mine recommended an article about health care reform titled “How American Health Care Killed My Father” published in the Atlantic magazine this September. Based on the title, I half expected the article to be a rant against heartless capitalism, but happily I was wrong. The article thoughtfully and honestly explores some of the real reasons why health care in America is so expensive and unresponsive to the consumer. I disagree with the author’s proposed solution, but he outlines some of the problems very well.

Law and Morality

Monday, November 9th, 2009

Last week a majority of Maine voters chose to preserve traditional marriage. In response, the pro-gay political movement protested that their rights had been violated and published pictures and interviews of disappointed homosexual couples. One common complaint from this movement has been that traditional marriage laws are illegitimate because they are based on majority morals. In a similar vein, two weeks ago I had an extended discussion with a professor of property law—who also happens to be a devotee of law and economics—about zoning laws based on majority morals. Frequently, communities use zoning regulations to exclude bars, distilleries, strip clubs, pornography, public nudity, and other things that the community dislikes for moral reasons. This professor insisted that morality was not a legitimate justification for zoning regulations and that cities should have to justify any laws they enact on non-moral grounds.

Arguments that laws should not be based on morals are persuasive in the United States. Many of the early immigrants to the United States were driven here by religious persecution, and, consequently, the protections for religious freedom written in the First Amendment are among the strongest in the world. History has strengthened this sentiment; state action enforcing a moral code raises the specter of atrocities like the inquisition, the Salem witch trials, and the violent expulsion of the Mormons from the United States in the middle of the nineteenth century. Another complication is that individuals examining a moral code from the outside often judge its practitioners to be irrational or worse. Individuals within a moral code often judge those who don’t abide by it to be deviant or worse. An extreme example of such a clash is the long conflict between western culture and fundamentalist Islam. These sentiments against laws based on morality are misleading because at root all legitimate laws are based on moral judgments.

For many laws, particularly criminal laws, the moral judgment is obvious: murder is bad; stealing is bad; injuring others is bad; and so on. For other laws, the connection to a moral judgment is distant and only becomes evident by asking what the end goal of the law is and then asking why society ought to pursue that goal. The private reasons of legislators and voters for supporting the law are irrelevant; the moral aspect of the law is revealed through the reasons that the public accepts as legitimate arguments.

When I presented this argument in my discussion with the property law professor, he immediately disagreed. “What about,” he asked, “laws designed solely to achieve some economic benefit?” He argued that such laws were not based on morality because they were only intended to promote the production of goods (like televisions, food, cellphones, etc) that have no moral aspect at all. This argument touches on but misapplies an important point. Clearly, an object can be good but it cannot be moral. It makes sense to describe a screwdriver as good, but it is nonsense to say that it is moral. Morality implies will—a trait that screwdrivers lack. So my property law friend was partially correct to claim that the goods that a law seeks to promote may lack a moral aspect. But his argument fails because laws are not simply assertions of fact; laws constrain human action. So, a law designed to achieve an economic benefit is not simply a non-moral judgment that economic benefits are good; it also implies the moral judgment that people should act (and government should force them to act) in ways that produce economic benefits.

Recognizing that all laws are ultimately based on moral judgments has important consequences. It means that objecting to a law because it is based on morality simply doesn’t make sense for the non-anarchist. It also means experts in economics, law, and public policy are not necessarily experts on the legitimacy of laws; experts on the legitimacy of laws are those who have a clear, deep understanding of moral truth. Perhaps most important, recognizing that all laws are ultimately based on moral judgments places moral and immoral individuals on an equal footing when discussing politics.

Political movements are successful only insofar as they appeal to popular moral justifications. Honest politicians do this by explaining the moral justifications they rely on and attempting to persuade others to adopt those justifications. Dishonest politicians hide the moral implications of their political goals and instead present widely accepted but inapplicable moral values. The gay rights movement has used this latter strategy with marked success by injecting the popular moral judgment of equality before the law into the gay marriage debate. See my previous post. The fact that the decision in Maine to deny marriage licenses to gay couples was a moral judgment in no way invalidates that judgment. It simply shows that the majority still rejects homosexuality as immoral, and that it has not fallen for the equal protection ruse.

Before ending I want to clarify two possible misunderstandings that are not directly relevant but could arise from this post. The claim that laws are unavoidably tied to morality does not contradict the existence of natural law, nor does it in any way endorse moral relativism. Moral judgments can be accurate or inaccurate just like any other kind of judgment; natural law is the articulation of accurate moral judgment.

Blood and Bone Marrow

Friday, October 30th, 2009

The debate over the federal takeover of America’s health care has absorbed the attention and efforts of political activists of every persuasion. But two days ago the Institute for Justice, the nation’s premier public-interest law firm, launched a case that starkly illustrates the bad results of government interference with individual liberty in healthcare decisions.

Section 274(e)(a) of the National Organ Transplant Act reads in part, “It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.” If an individual violates this provision, that individual is subject to a penalty of up to five years in prison and or a $50,000 fine. Section 274(e)(b). And, thoughtlessly, congress chose to include bone marrow in the definition of human organ. Section 274(e)(c).

What this means is that even if you happen to have a disease that requires a bone-marrow transplant, like the plaintiffs in the suit filed by the Institute for Justice, the law forbids you from purchasing bone-marrow from potential donors who need an incentive other than good will and social approval. If you do make such a purchase, you are a criminal under the present law.

Now, if you are a liberty-minded individual, a question may have bubbled up in your mind during the above exposition: How under the Constitution of the United States, can congress have the power to criminalize the purchase of bone marrow? Where did congress get the power to regulate what an individual chooses to do with his or her own body? The answer to this question is found in the final words of Section 274(e)(a) quoted above, “if the transfer affects interstate commerce.” This phrase invokes what is known in constitutional law as the “Commerce Clause.” This horribly abused bit of language is found in Article I Section 8 clause 3 of the constitution: “The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Congress has invoked the Commerce Clause to regulate everything from the relationship between employers and employees (NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)), to home gardening (Wickard v. Filburn, 317 U.S. 111 (1942)). Congress has persuaded the Supreme Court to go along with it in expanding this power so far that it can now regulate any action that could in any way have an impact on interstate commerce—even if only in the aggregate.

Thus, through a very strained interpretation of a single sentence, congress can regulate any transaction, including the purchase of bone marrow. But challenging the Commerce Clause is not the subject of the Institute’s law suit—sadly we are too far down the road to statism now for that challenge to be effective. Even if you accept the idea that congress should paternalistically forbid transactions that it decides may be unwise, prohibiting the sale of bone marrow doesn’t make sense. So the challenge brought by the Institute for Justice is based on the doctrines of equal protection and due process:

NOTA’s criminal ban violates equal protection because it arbitrarily treats renewable bone marrow like nonrenewable solid organs instead of like other renewable or inexhaustible cells—such as blood—for which compensated donation is legal.  That makes no sense because bone marrow, unlike organs such as kidneys, replenishes itself in just a few weeks after it is donated, leaving the donor whole once again.  The ban also violates substantive due process because it irrationally interferes with the right to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.

Institute for Justice Press Release

In other words, there is no legitimate reason to distinguish between compensation for blood donations and compensation for bone marrow donations. Congress just happened to ban one and permit the other. Consequently, individuals who could otherwise be successfully treated are dying because they are forbidden from using money to motivate compatible donors.

The fact that congress chose to irrationally regulate the sale of bone marrow gives the lie to those pundits and politicians who insist that the federal health care takeover now in progress will not restrict access to medical care. Is it rational to expect that once the federal government is providing health insurance, setting the prices that doctors can charge, and forcing individuals to purchase the type of health care congress approves of, that we can avoid more laws that are just as inane as the current bone marrow regulations? Not hardly.

To add even more irony to the picture, read the stated intent for the National Organ Transplant Act: “To address the nation’s critical organ donation shortage and improve the organ matching and placement process, the U.S. Congress passed the National Organ Transplant Act.”

Health care isn’t a social project that well-heeled bureaucrats can beneficently tinker with. They are not gods, kings, or even experts. They are exceedingly fallible men and women who—even when they are not in the pocket of a special interest—somehow manage to get themselves into moral, financial, and legal trouble.

As Chip Mellor, the president and general counsel of the Institute for Justice, wisely said, “Bad things happen when the federal government exceeds its constitutional authority.  In this case, people actually die. ”

Inforipple x Dress-Lace Navy Swing Lace Dress

Thursday, October 8th, 2009

Inforipple x Dress-Lace Navy Swing Lace Dress – Fringed Sleeve / Navy Paisley Print / Lightweight Fabric / Tassel Trims

Enjoy the retro look of paisley while wearing this lovely lightweight woven fabric printed paisley navy blue swing lace dress. The sleeves and sides of this inforipple x one are accented with tassel fringe, made out of the same fabric as the dress. The fringe moves softly as you walk adding a graceful appearance. The neckline is round and the back of the dress has a scooped back with a tie detail at the neck. Made out of 100% viscose fabric, this dress is easy to maintain, very comfortable and hand washable so it is ready when you are. The relaxed, easy fit feels great against your skin, so you can feel luxurious while wearing this dress too many occasions. Match this dress with a great pair of two-tone slip on shoes or sandals, or dress it up with a pair of navy blue high heels or gray leather boots.