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.
July 20, 2013
Latest Studies: 45 new items, including a Mercatus Center history of cronyism in the information technology sector, and an American Legislative Exchange Council report card on American education
Notes on the Week: What won’t they do to promote ObamaCare?, religious liberty is still alive, one in four new bills lack mens rea, and more
To Do: Behold the ObamaCare disaster
Budget & Taxation
• 35 Years after Prop 13, Has It Worked? – American Enterprise Institute
• House Can Save $2.3 Billion More on the Commerce, Justice, and Science Bill – The Heritage Foundation
• The Government Scandal (You Haven’t Heard Of) – Hoover Institution
• Virginia Gubernatorial Candidates Eye Cumbersome Tax Code – Tax Foundation
Crime, Justice & the Law
• The Unfair Attack on Arbitration: Harming Consumers by Eliminating a Proven Dispute Resolution System – The Heritage Foundation
Economic Growth
• Productivity and Compensation: Growing Together – The Heritage Foundation
• Regulation, Growth, and the Labor Market Recovery – Mercatus Center
Education
• Analyzing Teacher Strikes in Pennsylvania – Allegheny Institute for Public Policy
• Report Card on American Education – American Legislative Exchange Council
• Charter Authorizers Face Challenges – Education Next
• Sallie Mae and Uncle Sam: Cronyism in Higher Education Finance – Reason Foundation
Elections, Transparency, & Accountability
• Shelby County, Alabama v. Holder (Section 4 of the Voting Rights Act) – Alabama Policy Institute
• How Bureaucrats Captured Government – American Enterprise Institute
• Requiring Photographic Identification by Voters in North Carolina – The Heritage Foundation
Foreign Policy/International Affairs
• Putin’s Petro State Approaching Empty – American Enterprise Institute
• China’s Steady Global Investment: American Choices – The Heritage Foundation
• The Importance of Providing U.S. Food Aid during Egypt’s Ongoing Political Crisis – The Heritage Foundation
• A Biographical and Factional Analysis of the Post-2012 Politburo – Hoover Institution
• Chinese Views Regarding the Senkaku/Diaoyu Islands Dispute – Hoover Institution
• Military Themes from the 2013 National People’s Congress – Hoover Institution
• Striving for New Equilibria – Hoover Institution
• The Work System of the Xi Jinping Leadership – Hoover Institution
• Xi Jinping’s Fast Start – Hoover Institution
Health Care
• How to Stop the Rise of Superbugs – American Enterprise Institute
• The Cure for Obamacare – Encounter Books
• Medicare’s Sustainable Growth Rate: Principles for Reform – The Heritage Foundation
• Lessons Learned: How the Partnership for a Healthy North Carolina Avoids Kentucky’s Medicaid Reform Mistakes – John Locke Foundation
Immigration
• Border Security Results Act: Misguided Metrics and a Potential Trigger for Amnesty – The Heritage Foundation
Information Technology
• Improving FCC Process – Free State Foundation
• A History of Cronyism and Capture in the Information Technology Sector – Mercatus Center
International Trade/Finance
• Liberalization or Litigation?: Time to Rethink the International Investment Regime – Cato Institute
• Programs of Economic Reform Begin to Emerge – Hoover Institution
Monetary Policy/Financial Regulation
• The Troubled Currencies Project – Cato Institute
National Security
• Protecting U.S. Territory Against Long-Range Missiles: Second Approach Needed – The Heritage Foundation
• The Future of U.S. Bases in Europe: A View from America – The Heritage Foundation
• The Impact of a Declining Defense Budget on Combat Readiness – The Heritage Foundation
Natural Resources, Energy, Environment, & Science
• ‘Carbon Pollution’ and Wealth Redistribution – American Enterprise Institute
• A Roundup: Myriad, Monsanto, and the Supreme Court – American Enterprise Institute
• The President’s Broken Window Fallacy: Carbon Policies and Jobs – American Enterprise Institute
• Sue and Settle – Capital Research Center
Philanthropy
• The Blueprint: How the Left Hopes to Recapture America – Capital Research Center
Regulation & Deregulation
• How Well Do Federal Agencies Use Regulatory Impact Analysis? – Mercatus Center
The Constitution/Civil Liberties
• Perry Ruling Spells Peril for States – American Enterprise Institute
• Congress Doesn’t Know Its Own Mind—And That Makes You a Criminal – The Heritage Foundation
Transportation/Infrastructure
• Airline Safety: The Good News – The Heritage Foundation
Notes on the Week
What won’t they do to promote ObamaCare? No marketing idea appears too wacky for those charged with promoting the ObamaCare exchanges. We noted last week that HHS Secretary Sebelius had tried (and failed) to enlist the help of the National Basketball Association and the National Football League in promoting the exchanges to the leagues’ younger fan bases. Here are a few even wackier ideas, compiled by Eric Boehm:
• Connecticut’s exchange, Access Health CT, has signed up as a sponsor of Sailfest 2013, and will hand out bottles of suntan lotion that urge attendees of the annual celebration in New London to “Get Covered.”
• The PR firm hired by California to promote its exchange has explored the possibility of writing the exchange into the plotlines of primetime television shows like Modern Family and Grey’s Anatomy.
• Oregon hired a guitar-strumming hipster to sing a ditty called “Live Long in Oregon.”
• Washington State is considering putting ads on the front of portable toilets at music festivals. [Watchdog.org, July 16]
How signing up for ObamaCare works—or doesn’t: Earlier this month, the Department of Health and Human Services said it would not be able to verify eligibility for ObamaCare’s exchange subsidies and would rely instead on the information applicants submit. Here’s a picture of the bureaucratic nightmare that isn’t working:
Chris Jacobs:
The process for determining subsidy eligibility could require 21 different steps, involving at least five separate entities—the Social Security Administration, the Department of Homeland Security, the Department of Health and Human Services, the Internal Revenue Service, and state exchanges—and utilizing a process called the Income and Family Size Verification Project. [The Foundry, July 19]
Fearing robots: Technophobia—the fear that automating work will lead to mass unemployment—is a disease that is strangely persistent against the evidence of history, observes Scott Winship:
The computer was invented and subsequently the fastest one increased in speed by a factor of 100,000. Unemployment fell to around five percent from 1930’s nine percent. Median earnings doubled. Yet a self-appointed committee of public intellectuals declared in a letter to the President that a “cybernation revolution” was at hand, the product of “the combination of the computer and the automated self-regulating machine.” The revolution was producing “a system of almost unlimited productive capacity which requires progressively less human labor.” The year was 1964.
Between 1964 and 2007, on the eve of the Great Recession, the earnings of the median working-age male rose by about one-third, and while most of that came during the 1960s, men’s earnings did rise modestly after 1969. Median earnings among female workers more than doubled after 1969. Median household income rose by about 75 percent. The typical age at retirement declined, and leisure time increased among both working age men and women. Unemployment was no higher than five percent, even accounting for adults not included in official figures because they had stopped looking for work out of discouragement. The computing speed of the fastest computer rose by a factor of one billion. With a “b.” But we cannot shake technophobia. The sense remains that the next one-billion-fold increase in technological progress will be different. [Real Clear Politics, July 16]
The problem, as Winship points out, is that it is easy to see the jobs that will go away because of technology, but really hard to imagine the new jobs that technology will create. How many in 1985, besides science fiction writer Orson Scott Card, predicted blogging?
Licensure criminalizes the giving of advice. A number of states, including Kentucky and North Carolina, are treating advice as if it isn’t speech protected by the First Amendment. Authorities in those states have claimed that their licensing laws for professions like dietician and psychologist apply to columnists who give diet advice or parenting advice. As the Institute for Justice points out in a new video, that kind of regulation is an attack on the First Amendment that will make criminals of a lot of people who are just trying to help:
The real broadband bottleneck is government. What’s holding up high-speed Internet in some areas? Probably the local governments and public utilities that see rights of way and “pole attachment” contracts as cash cows that get bigger when they restrict access, argue Berin Szoka, Matthew Starr, and Jon Henke:
Local governments and their public utilities charge ISPs far more than these things actually cost. For example, rights of way and pole attachments fees can double the cost of network construction.
So the real bottleneck isn’t incumbent providers of broadband, but incumbent providers of rights-of-way. These incumbents—the real monopolists—also have the final say on whether an ISP can build a network. They determine what hoops an ISP must jump through to get approval. […]
Other kickbacks arguably include municipal requirements for ISPs such as building out service where it isn’t demanded, donating equipment, and delivering free broadband to government buildings.
And, as Szoka, Starr, and Henke note, the Federal Communication Commission’s National Broadband Plan hasn’t accomplished anything except provoking lawsuits from states and localities that want to preserve their negotiating power over the cable companies. But franchising fees are a hidden tax, and like all taxes they discourage investment. Some states have figured that out. Don’t be surprised if Kansas, Missouri, and Texas—all of which have streamlined their franchising laws—gain a competitive advantage in broadband deployment. [Wired, July 16]
The evidence now points to Washington. There was a bombshell in this week’s hearings on Internal Revenue Service targeting of Tea Party non-profits, says Peggy Noonan, who summarizes the testimony:
In April 2010, [Carter] Hull was assigned to scrutinize certain tea-party applications. He requested more information from the groups. After he received responses, he felt he knew enough to determine whether the applications should be approved or denied.
But his recommendations were not carried out.
Michael Seto, head of Mr. Hull’s unit, also spoke to investigators. He told them Lois Lerner made an unusual decision: Tea-party applications would undergo additional scrutiny—a multilayered review.
Mr. Hull told House investigators that at some point in the winter of 2010-11, Ms. Lerner’s senior adviser, whose name is withheld in the publicly released partial interview transcript, told him the applications would require further review:
Q: “Did [the senior adviser to Ms. Lerner] indicate to you whether she agreed with your recommendations?”
A: “She did not say whether she agreed or not. She said it should go to chief counsel.”
Q: “The IRS chief counsel?”
A: “The IRS chief counsel.”
The IRS chief counsel is named William Wilkins. And again, he is one of only two Obama political appointees in the IRS. […]
Ms. Hofacre of the Cincinnati office testified that when she was given tea-party applications, she had to kick them upstairs. When she was given non-tea-party applications, they were sent on for normal treatment. Was she told to send liberal or progressive groups for special scrutiny? No, she did not scrutinize the applications of liberal or progressive groups. “I would send those to general inventory.” Who got extra scrutiny? “They were all tea-party and patriot cases.” [Wall Street Journal, July 18]
One in four new bills lacks mens rea. Mens rea—Latin for “guilty mind”—is a legal concept that once commonly protected people from prosecution for unknowingly violating a law. But Congress has increasingly written laws that create either a strict liability regime or fail to specify an intent requirement. How bad is the problem? Paul Rosenzweig:
The best estimate available puts the number of federal crimes at 4,500, but if these numbers are only an estimate, it is obviously impossible to answer the even more detailed question of how many of the crimes do not have [an intent] requirement.
Researchers from The Heritage Foundation and the National Association of Criminal Defense Lawyers, however, began to create an estimate of the extent to which a lack of mens rea requirements is infecting federal criminal law. This study revealed that of the 446 criminal proposals advanced in Congress during the 109th Congress, 25 percent (113 bills) had no intent requirement. And that carried forward into enactment: Of the 36 new criminal statutes passed by the 109th Congress, nine (again, a full quarter) had no intent requirement at all. In short, Congress created nine new strict liability crimes where a “defendant’s knowledge, intent, misperceptions, mistakes, or accidents are essentially irrelevant to his innocence or guilt.”
One example, selected at random, demonstrates the point far better than all statistics could. The Youth Worker Protection Act (H.R. 2870), had it been enacted, would have made it a crime “to employ a youth” in the sale of goods in a public place (in other words, you cannot use a child to “peddle”). No intent would have been required, so the government would not have had to prove either that an individual knew the person he or she employed was a youth or that he or she knew the sale of goods occurred in a public place. The government also would not have had to prove that an individual knew it was illegal to employ children to sell candy on the street. Had this law passed and had a man thereafter given his grandson five dollars to set up a lemonade stand on the corner, that man would have been a felon—without any need to prove criminal intent at all. [Internal citations omitted.] [The Heritage Foundation, July 18]
Rosenzweig suggests that one fix—besides Congress making sure it writes mens rea requirements into the laws it passes—would be for Congress to pass a statute that simply says when Congress fails to specify whether intent is required to convict, then courts should assume that Congress meant to include a mens rea element in the law.
Religious liberty is still alive. On Friday, the Hobby Lobby won a preliminary injunction that prevents the Department of Health and Human Services from enforcing its contraception/abortion-drug mandate against the company. The retail chain, represented by the Becket Fund, says the mandate violates its First Amendment right to the free exercise of religion.
Last month, the 10th U.S. Circuit Court of Appeals overturned a district court denial of the Hobby Lobby’s injunction request and remanded the case back to the district court. The appeals court found that Hobby Lobby had “established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm.”
As the Becket Fund says: “This is a major victory for not only Hobby Lobby, but the religious liberty of all for-profit businesses.” [Becket Fund, July 19]
• Get an update on the ObamaCare train wreck. Grace-Marie Turner of the Galen Institute and Christie Herrera of the Foundation for Government Accountability will speak at the next Conservative Women’s Network, hosted by the Clare Boothe Luce Policy Institute and The Heritage Foundation. The talk begins at noon on July 25 at The Heritage Foundation. Men are welcome, too!
• If you know somebody whose behind-the-scenes work makes a difference for freedom, nominate him or her for the Vernon K. Krieble Foundation’s Unsung Hero Award. The winner will receive a prize of $25,000 and recognition at the State Policy Network’s Annual Meeting in Oklahoma City, Okla. To be considered, nominations must be received by August 23, 2013.
• Find out if Hassan Rouhani will liberalize Iran. The Heritage Foundation will host a panel discussion on the new Iranian President, featuring Kenneth Katzman of the Congressional Research Service, James Phillips of The Heritage Foundation, and Henry Sokolski of the Nonproliferation Policy Education Center. The discussion begins at noon on July 24.
• Take stock of Dodd-Frank’s economic effects on the law’s third anniversary. The Cato Institute will host a conference beginning at 10:30 a.m. on July 22.
• Assess the Supreme Court’s recent rulings on marriage. Ed Whelan will speak at the Mississippi Center for Public Policy in Jackson, Miss. The talk begins at 11:30 a.m. on July 23.
• Save the dates:
—The 101st anniversary of Milton Friedman’s birthday is July 31 2013. Check the Friedman Foundation for Educational Choice’s Friedman Legacy Day event map to find an event near you.
—The Young America’s Foundation’s National Conservative Student Conference will be July 29 to August 3 at George Washington University in Washington, D.C.
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