libera voce/libera mente: The Heritage Insider: Marriage debate continues, tea party harassment and the 2012 election, federal regs make us 72 percent poorer, and more

Updated daily, InsiderOnline (insideronline.org) is a compilation of publication abstracts, how-to essays, events, news, and analysis from around the conservative movement. The current edition of The INSIDER quarterly magazine is also on the site.

June 29, 2013

Latest Studies: 38 new items, including a Mackinac Center report on what Michigan can learn from Florida’s education reforms, and an American Legislative Exchange Council review of the EPA’s assault on state sovereignty

Notes on the Week: The marriage debate continues, voting law was stuck in 1972, tea party harassment and the 2012 election, and more

To Do: Celebrate America’s Birthday

Latest Studies

Budget & Taxation
• Tennessee Pork Report – Beacon Center of Tennessee
• The True Story of European Austerity – Competitive Enterprise Institute
• The Federal Fiscal Predicament: What Seems Better Is Actually Worse – e21 – Economic Policies for the 21st Century
• How to Slash Billions from the Agriculture Appropriations Bill – The Heritage Foundation
• Three Truths of Tax Reform: Senate, House Plans Would Spur Growth, Create Jobs – John Locke Foundation
• Government Spending Crowds the Private Sector Out and In – National Center for Policy Analysis

Crime, Justice & the Law
• Sunsetting the Tennessee Judicial Nominating Commission: What Now? – Federalist Society
• Responsible Prison Reform – National Affairs

Economic and Political Thought
• How to Limit Government in the Age of Obama – The Heritage Foundation
• Religion and the American Republic – National Affairs

Economic Growth
• The Right Target for the Third Arrow: Corporate Managerial Efficiency in Japan Compared with the United States – American Enterprise Institute

Education
• The School Inspector Calls – Education Next
• Do Federal Social Programs for Children Work? – The Heritage Foundation
• Michigan vs. Florida: Student Achievement, Education Policies and Proposals for Reform – Mackinac Center for Public Policy

Notes on the Week

Something about federalism, they said. In United States v. Windsor, the Supreme Court said withholding federal recognition of same-sex marriages that are recognized as a legal marriage by a state “is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.” So was the majority opinion a defense of federalism—i.e., a state’s right to define marriage? Or was the Court making an equal protection of the laws argument—i.e., that same-sex marriage is a right but only in states that recognize same-sex marriage?

Justice Scalia thinks the majority opinion was really based on the majority’s belief that its opinions about same-sex marriage are better than the opinions of Congress, and that eventually the Court will also decide its opinions are better than those of states that still preserve the traditional definition of marriage. Here are a few choice highlights from his dissent:

“It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” Or at least it was a familiar principle. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited. […]
It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with. […]
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “ ‘bare … desire to harm’” couples in same-sex marriages. […]
In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.
By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution. […]
It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial tem-perament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.
But that the majority will not do. Some will rejoice into day’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. [United States v. Windsor (2013)]

The next debate over marriage: Justice Scalia has predicted the other shoe will drop: Whatever federalism noises the Supreme Court made this week about preserving a state’s right to define marriage, he says, the logic of the Court’s decision in United States v. Windsor leads to recognizing a federal right to same-sex marriage—regardless of what the voters of particular states choose to do. He may be right, but for now states retain the right to define marriage. Proponents of marriage should seize the opportunity now to frame the debate, says The Heritage Foundation’s Ryan Anderson:

[T]he Court will be less likely to issue an activist decision, less likely to usurp the authority of citizens, if it is clear that citizens are engaged in this democratic debate and care about the future of marriage.
There is a role to play for everyone. First and foremost, we need to start living out the truth about marriage. Long before there was a debate about same-sex anything, heterosexuals bought into a liberal ideology about sexuality that makes a mess of marriage — with cohabitation, no-fault divorce, extra-marital sex, non-marital childbearing, massive pornography consumption and the hook-up culture all contributing to the breakdown of our marriage culture.
So the first thing to do is for husbands and wives to be faithful to one another through thick and thin, till death do them part. Mothers and fathers must take their obligations to their children seriously. The unmarried must prepare now for their future marital lives, so they can live out the vows they will make. […]
In his dissent from the ruling on DOMA, Justice Samuel Alito perfectly frames the debate going forward as a contest between two visions of marriage — what he calls the “conjugal” and “consent-based” views.
Alito cites the book I co-authored with Princeton’s Sherif Girgis and Robert George as an example of the conjugal view of marriage: a “comprehensive, exclusive, permanent union that is intrinsically ordered to producing children.” He cites Jonathan Rauch as a proponent of the idea that marriage is a certain commitment marked by emotional union. And he explains that the Constitution is silent on which of these substantive, morally controversial visions of marriage is correct. The Court, he says, should decline to decide; it should defer to democratic debate.
So the second thing to do is to redouble our efforts at explaining what marriage is, why marriage matters and what the consequences are of redefining marriage. The left wants to insist that the redefinition of marriage is “inevitable.”
The only way to guarantee a political loss, however, is to sit idly by. We should frame our message, strengthen coalitions, devise strategies and bear witness. We must develop and multiply our artistic, pastoral and reasoned defenses of the conjugal view as the truth about marriage, and to make ever plainer our policy reasons for enacting it.
In this struggle to preserve marriage, as in the pro-life cause, we need to take a long view. Such a view doesn’t look to immediate wins or losses, but decades-long paradigm shifts that reshape how Americans think about marriage. [Daily Caller, June 27]

A physician shortage is coming. ObamaCare will increase the demand for health care without doing anything to increase the supply of health care. Here is a recent projection of what the shortage in primary care physicians will look like:

Our analysis indicates that population growth, demographic changes, and an expansion of insurance spurred by Obamacare will contribute to a significant shortage in primary-care physicians over the coming decade. We project that by 2025, the United States will experience a shortage of roughly 30,000 primary-care physicians—with about 16.5 percent (4,950 physicians) of this shortage being driven by the expansion of insurance coverage under Obamacare, while the remaining 83.5 percent (25,050 physicians) will be due to population growth, aging, and various demographic shifts. [“The Obamacare Evaluation Project: Access to Care and the Physician Shortage,” by Paul Howard and Yevgeniy Feyman, Manhattan Institute, June 2013]

For some time, John Goodman has been warning about the shortages ObamaCare will create:

First, ObamaCare is supposed to insure 32 million additional people by this time next year. If the economic studies are correct, these newly insured will try to consume twice as much medical care as they have been. In addition, most of the rest of us will be forced to have more generous coverage than we previously had. There will be a long list of preventive services that all plans will be required to cover? with no deductible and no copayment? and commercial insurance will be required to cover a great many services previously avoided (including, everyone must know by now, contraception). These two changes alone will boost the demand for care considerably.
On the supply side, there is really no provision under ObamaCare to create more doctors. In fact, the supply of doctor services is likely to decrease because of two more features of health reform. Doctors, who are already weary from third-party interference in the practice of medicine, will step up their retirement dates as they contemplate the prospects of even more bureaucracy. Also, hospitals are acquiring doctors as employees at a rapid rate. Indeed, more than half of all doctors are now working for hospitals. When doctors quit their private practices and start working for hospitals, they reduce the number of hours they work. (Forty hour work weeks and golf on the weekends replaces 50 and 60 hour work weeks.) Since they have a guaranteed income, they also become less productive.
These four changes add up to one big problem: we are about to see a huge increase in the demand for care and a major decrease in the supply. In any other market, that would cause prices to soar. But government plans to control costs (even more so than in the past) by vigorously suppressing provider fees and the private insurers are likely to resist fee increases as well. That means we are going to have a rationing problem. Just as in Canada or Britain, we are going to experience rationing by waiting. [John Goodman’s Health Policy Blog, May 30]

Access to health insurance is not the same thing as access to health care.

Stuck in 1972: Forty-year-old facts cannot validate constitutionally extraordinary limits on state authority over elections, said the Supreme Court on Tuesday. In Shelby County v. Holder, the Court ruled Section 4(b) of the 1965 Voting Right Act unconstitutional. That was the part of the law that set out criteria for determining which states had to get permission from either the Department of Justice or a federal court before making any changes to voting procedures.

Those criteria hadn’t been updated since 1972 even though the law has been reauthorized twice since then. As a result, the law was imposing burdens on states that no longer had large racial gaps in voter registration or turnout. On those measures, some of the covered states now look better than states not covered. Chief Justice John Roberts, writing for the Court, said that in ignoring these developments, Congress had created a second-class of statehood that offends the Constitution’s design of equal state sovereignty. “Over a hundred years ago,” he wrote, “this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority.’ Indeed, ‘the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.’” Roberts continued:

In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those charac¬teristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were. […]
[…] Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past.

One result of the decision is that states that fell under pre-clearance because of Section 4 are now able to implement voter ID laws without seeking permission. Congress might try to rewrite the preclearance criteria in a way that satisfies the high court. As James Taranto notes, however, politics will make that hard to do: Such an effort would risk putting Massachusetts, a bastion of the Democratic party, under pre-clearance, since that state currently has the largest gap between white and black voter turnout. [Wall Street Journal, June 26]

Did IRS harassment of the tea party swing the 2012 election? We’ll never know for sure, but research by Stan Veuger & co. suggest the election might have turned out differently:

In a new research paper, Andreas Madestam (from Stockholm University), Daniel Shoag and David Yanagizawa-Drott (both from the Harvard Kennedy School), and I set out to find out how much impact the Tea Party had on voter turnout in the 2010 election. We compared areas with high levels of Tea Party activity to otherwise similar areas with low levels of Tea Party activity, using data from the Census Bureau, the FEC, news reports, and a variety of other sources. We found that the effect was huge: the movement brought the Republican Party some 3 million – 6 million additional votes in House races. That is an astonishing boost, given that all Republican House candidates combined received fewer than 45 million votes. It demonstrates conclusively how important the party’s newly energized base was to its landslide victory in those elections, and how worried Democratic strategists must have been about the conservative movement’s momentum. […]
The bottom line is that the Tea Party movement, when properly activated, can generate a huge number of votes—more votes in 2010, in fact, than the vote advantage Obama held over Romney in 2012. The data show that had the Tea Party groups continued to grow at the pace seen in 2009 and 2010, and had their effect on the 2012 vote been similar to that seen in 2010, they would have brought the Republican Party as many as 5 – 8.5 million votes compared to Obama’s victory margin of 5 million.
President Obama’s margin of victory in some of the key swing states was fairly small: a mere 75,000 votes separated the two contenders in Florida, for example. That is less than 25% of our estimate of what the Tea Party’s impact in Florida was in 2010. [Real Clear Markets, June 20]

Coming soon: ObamaCare data hub: Dug up by John Merline, here are some details on what the ObamaCare bureaucracy will be doing with your information:

Sen. Max Baucus, D-Mont., asked HHS to provide “a complete list of agencies that will interact with the Federal Data Services Hub.” The Hub is a central feature of ObamaCare, since it will be used by the new insurance exchanges to determine eligibility for benefits, exemptions from the federal mandate, and how much to grant in federal insurance subsidies.
In response, the HHS said the ObamaCare data hub will “interact” with seven other federal agencies: Social Security Administration, the IRS, the Department of Homeland Security, the Veterans Administration, Office of Personnel Management, the Department of Defense and—believe it or not—the Peace Corps. Plus the Hub will plug into state Medicaid databases.
And what sort of data will be “routed through” the Hub? Social Security numbers, income, family size, citizenship and immigration status, incarceration status, and enrollment status in other health plans, according to the HHS. […]
[A February regulatory] filing describes a new “system of records” that will store names, birth dates, Social Security numbers, taxpayer status, gender, ethnicity, email addresses, telephone numbers on the millions of people expected to apply for coverage at the ObamaCare exchanges, as well as “tax return information from the IRS, income information from the Social Security Administration, and financial information from other third-party sources.”
They will also store data from businesses buying coverage through an exchange, including a “list of qualified employees and their tax ID numbers,” and keep it all on file for 10 years.
In addition, the filing says the federal government can disclose this information “without the consent of the individual” to a wide range of people, including “agency contractors, consultants, or grantees” who “need to have access to the records” to help run ObamaCare, as well as law enforcement officials to “investigate potential fraud.” [Investor’s Business Daily, June 25]

We are 72 percent poorer because of federal regulations. “The growth of federal regulations over the past six decades,” writes Ron Bailey, “has cut U.S. economic growth by an average of 2 percentage points per year, according to a new study in the Journal of Economic Growth.” He continues:

As a result, the average American household receives about $277,000 less annually than it would have gotten in the absence of six decades of accumulated regulations—a median household income of $330,000 instead of the $53,000 we get now.
The researchers, economists John Dawson of Appalachian State University and John Seater of North Carolina State, constructed an index of federal regulations by tracking the growth in the number of pages in the Code of Federal Regulations since 1949. The number of pages, they note, has increased six-fold from 19,335 in 1949 to 134,261 in 2005. (As of 2011, the number of pages had risen to 169,301.) They devise a pretty standard endogenous growth theory model and then insert their regulatory burden index to calculate how federal regulations have affected economic growth. (Sometimes deregulation extends rather than shortens the number of pages in the register; they adjust their figures to take this into account.)
Annual output in 2005, they conclude, “is 28 percent of what it would have been had regulation remained at its 1949 level.” The proliferation of federal regulations especially affects the rate of improvement in total factor productivity, a measure of technological dynamism and increasing efficiency. Regulations also affect the allocation of labor and capital—by, say, raising the costs of new hires or encouraging investment in favored technologies. Overall, they calculate, if regulation had remained at the same level as in 1949, current GDP would have been $53.9 trillion instead of $15.1 in 2011. In other words, current U.S. GDP in 2011 was $38.8 trillion less than it might have been. [Reason, June 21]

Those IRS documents don’t show what the IRS thinks they show. The Internal Revenue Service eagerly informed Congress this week that it hadn’t really targeted conservative non-profit status applicants after all and to prove the point turned over internal guidance documents that did mention the word “progressive” as an example of a word to watch for. Aside from the fact that the main problem with the IRS’s behavior was the intrusive and probably unconstitutional nature of the questioning—not the targeting—there is a big difference between including the word “progressive” in your guidance materials and actually investigating progressive groups. So far, three liberal groups have claimed to have had trouble getting non-profit status. One group had its request denied, and that group is not appealing that decision—which suggests the IRS probably got it right. Further, as David Fredoso reports, the guidance materials themselves show that conservative groups were targeted for different treatment:

In each list where it appears, the entry marked “progressive” is less specific, simply containing a warning against granting 501 c(3) status to groups that appear to be too political, but it includes no further instructions on what to do with such cases. […]
The “Tea Party” entry fell under a separate category in the earlier memos, marked “emerging issues,” and the targeting scandal pertains mostly to c(4) groups, although c(3) groups are mentioned in these watch lists as well.
The instructions that appear in earlier versions of the watch list documents are much more specific for “Tea Party” groups than those for “progressive” groups. They dictate special scrutiny of both 501 c(3) and 501 (c)(4) Tea Party applicants. […]
Under the heading “disposition,” the document states:
Any cases should be sent to group 7822. Liz Hofacre is coordinating. These cases are currently being coordinated with EOT. [Conservative Intelligence Briefing, June 25]

On Thursday, the Treasury Inspector General for Tax Administration sent a letter to the top Democrat on the House Ways and Means Committee explaining that in fact the IRS really did target conservatives:

Based on the information you flagged regarding the existence of a ‘Progressives’ entry on BOLO lists, TIGTA performed additional research which determined that six tax-exempt applications filed between May 2010 and May 2012 having the words ‘progress’ or ‘progressive’ in their names were included in the 298 cases the IRS identified as potential political cases. We also determined that 14 tax-exempt applications filed between May 2010 and May 2012 using the words ‘progress’ or ‘progressive’ in their names were not referred for added scrutiny as potential political cases. In total, 30 percent of the organizations we identified with the words ‘progress’ or “progressive” in their names were processed as potential political cases. In comparison, our audit found that 100 percent of the tax-exempt applications with Tea Party, Patriots, or 9/12 in their names were processed as potential political cases during the timeframe of our audit. [Treasury Inspector General for Tax Administration Letter to Rep. Sander Levin (D-Mich.) as quoted by Paul Bedard at Washington Examiner, June 27]

To Do: Celebrate America’s Birthday

• Celebrate America’s birthday. If, on July 4, you happen to be in the area of Centreville, Va., (about 25 miles west of the nation’s capital) come join fellow conservatives at the 42nd National Fourth of July Soiree. You’ll get barbeque, blue grass, balloon artists, and much more. The gathering runs from 11 a.m. – 3 p.m. at Bull Run Regional Park.

• If you are a witty, eloquent writer, nominate yourself for a $10,000 prize. The Reason Foundation is accepting entries until July 31 for the Bastiat Prize. The Bastiat Prize is named for the French writer Frederic Bastiat, whose writings included the “Candlemakers’ Petition,” which demonstrated the absurdity of protectionism, and the “Parable of the Broken Window,” which demonstrated the problem of the hidden costs of government action. If you are nearly that clever, then send your name and articles in.

• Learn how the Reagan administration protected both the environment and freedom and prosperity despite the best efforts of environmental extremists. Former Reagan administration official William Perry Pendley will talk about his new book, Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and Why It Matters Today at The Heritage Foundation. Pendley’s talk will begin at noon on July 8.

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libera voce/libera mente

Saturday, June 29, 2013

The Heritage Insider: Marriage debate continues, tea party harassment and the 2012 election, federal regs make us 72 percent poorer, and more

June 29, 2013

Latest Studies

Notes on the Week

To Do: Celebrate America’s Birthday

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