Category Archives: Government

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No Surprise in Hobby Lobby

As this blog is at least partly about the law, here’s my brief take on today’s Hobby Lobby case: although it seems strange and petty to me that it’s 2014 and we’re still having debates about contraception, it’s an unsurprising decision.

Why unsurprising?  Two reasons:  First,  if the government admits that some groups (e.g., non-profit corporations) have rights under the Religious Freedom Restoration Act, and it also admits that for-profit business owners have such rights, it’s pretty hard to make a cogent argument why for-profit corporations shouldn’t also have such rights.

Secondly, whether the RFRA precludes a particular form of regulation often comes down – as it did here – to a question of the “least restrictive means.”  As in “is this regulation set up in a way to achieve the government’s goal while interfering as minimally as possible with religious rights?”  And again, it’s really hard for the government to win this point when it has already granted exceptions to the contraceptive mandate for religious non-profits.  

Ultimately, it comes down to the fact that Congress enacted a law – in response to a Supreme Court decision that many felt was unduly dismissive of religious concerns – that offers sweeping protection for religious rights. It shouldn’t surprise anyone that the government is going to be held to task in showing that it is complying with that law.  And on these facts, in this case, the government had a steeply uphill climb to make.

Cantor’s Loss Shows Why We Don’t Need Campaign Finance Regulation

Eric Cantor, the House Majority Leader, just suffered a humiliating loss in the Virginia primary. Overnight, he goes from being one of the most powerful people in Washington to just another K Street insider.

I don’t feel sorry for him, and even will indulge in a little Schadenfreude at the idea of a politician being humbled – even if the guy who beat him has even more reprehensible politics than the soul-less Cantor.

But his loss helps bring into focus one of the key points I’ve been trying to make to those apoplectic about the Supreme Court’s perceived loosening of campaign finance regulation in the Citizens United and McCutcheon decisions: money just isn’t as important as it used to be when it comes to campaigns.

But first, I need to point out a couple of key points that many of those in favor of campaign finance regulation gloss over:

  1. Political speech of all stripes is at the core of the First Amendment; and
  2. The government carries a very high burden to show that regulation of speech that is otherwise protected by the First Amendment is both necessary and narrowly focused at a particular harm.

This is why quid pro quo, direct campaign contributions are an easy case, and why broad restrictions of the sort at play in Citizens United and McCutcheon were doomed to fail.  It’s hard to regulate speech – you’ve got to have a very real harm and a very targeted, effective means of addressing that harm.  And this is how it should be; it’s no place for “feel good” legislation.

But for those frustrated that the First Amendment prohibits the sort of government speech control they’d like to see, the Cantor result should be seen as a panacea.  Perhaps they don’t need to wail about the injustice of it all, propose ridiculous constitutional amendments, and engage in spin (“Corporations Aren’t People! “Money isn’t Speech!”) worthy of the most hackneyed campaign. For Cantor’s loss – which follows the poor ROI of campaign spending in the 2012 and 2014 national campaigns – demonstrates that it’s getting harder for money to “buy” elections.  For grass roots groups, it’s never been cheaper and easier to organize and get the word out.  If you’ve got a message that resonates, social media provides the sort of publishing platform that only the most plutocratic of plutocrats could afford a generation ago.

In Virginia tonight, a challenger with less than a quarter million in campaign funds knocked off the second-highest ranking member of the House, an incumbent with millions of dollars at his disposal.  This should be seen as very good news to those who want the “corrupting power of money” out of the process – even as it provides further evidence that attempting to regulate campaign speech may be as unnecessary as it is unconstitutional.

 

Puget Sound Bike Share

Seattle Bike Share Nears

With Seattle (finally) getting a bike share system later this year, the Puget Sound Bike Share program has put together an interactive site showing proposed bike share station locations.  You can vote up the stations you like, and propose other locations.

I expect the system will be fairly limited at first, but could expand rapidly if bike share proves popular.  The problem, of course, is Seattle’s helmet law, which our City Counsel hasn’t seen fit to eliminate (preferring to spend time on priorities like protecting the taxicab monopoly and running experiments on the continued viability of Seattle small businesses).  As a result, every station is going to need these god-forsaken “helmet vending machines,” which will add further friction to anyone’s decision to take a spin on one of the yet-to-be-named system bikes.

Of course, I will plunk down my annual membership to support the system.  Having used bike share in other cities, I love the idea of having this option here.  But I’m not optimistic about the success of the system as long it has to labor under nanny-state restrictions. 

Hold Fast

Like many, I want to see Obama and the rest of the democrats resist the urge to negotiate with the GOP over the debt ceiling and shutdown.  Not because I care about retaining all of the elements of Obamacare, or not fixing entitlements or simplifying the tax code.  It’s because we need to kill, once and for all, this governing by crisis, this careening free-for-all that rewards 11th-hour brinkmanship over actual statecraft.

 

lexington historical society

Negotiating with Crazy People

On my first blog, I wrote extensively about negotiating – things I’d found effective and ineffective in a career spent negotiating business deals.  One of last posts on Corporate Tool was during the debt limit crisis in 2011; it had to do with the difficulties of negotiating with crazy or completely unreasonable counterparties.

President Obama finds himself in that situation now, and he’s doing what I (and many others) wrote he should have done two years ago: refuse to negotiate.  He didn’t follow that advice, which is why he finds himself dealing with an escalated variety of crazy this go-round.

But here’s the thing: the hardest about dealing with crazy counterparties is figuring out that they are, in fact, crazy.  It’s a long road, particularly if you are reasonable sane, smart and objective yourself, to get to the point where the “these guys are batshit” lightbulb goes off. You want to believe they are reasonable.  That they get how cause and effect works.  That they understand the respective leverage each party holds.  That they want to get a positive outcome for their side.

It may take repeated interactions to get past these assumptions and realize that fear, nuttiness, personal agendas, or a clinical lack of objectiveness is driving their behavior.  And the longer it takes to get there, the more empowered they become.  Their demands become more outrageous.  They retrade. And heaven help you if you finally wrestle a deal to the ground, and then have to deal with them again.

The good news is that once you’ve figured out that you’re dealing with nutters, the negotiating strategy is straightforward: you don’t negotiate.  Anything.  Until they change out the team or demonstrate a newfound and durable commitment to sanity.

If anyone wonders why President Obama doesn’t give up, say, the 2.3% tax on medical devices, or a delay of the ACA individual mandate, in exchange for keeping the government funded, it’s because he’s finally figured out that he’s dealing with crazies in the House.  People who are engaging in a form of economic terrorism in an effort to get their way.  The answer to such tactics isn’t to sigh and give in – it’s to keep saying “no” until they come to their senses or the team is changed out.

Photo: Lexington, KY Historical Society (josh king)

Train station

A Nation of Compliance Officers

I have conflicting feelings about Edward Snowden, the shrinking-violet-of-a-spy who leaked the info on the PRISM program being run by the NSA.

– He violated every term of his employment contract and who knows how many oaths he took.

– He knew exactly what he was signing up for in working (even as a contractor) with the NSA.

– The programs involved all appear to have been lawful.

But even with all that, there’s the fact that Snowden’s act of civil disobedience also brought renewed focus to the runaway nature of our modern surveillance state. And that’s a necessary thing, even if Snowden’s methods and motives in getting us there are less-than-pure.

I’m reminded of this recent piece from Reason.com on the failings of the “compliance mindset.” For too many, all questions are answered by just following the rules. But that doesn’t cut it. There are too many times when circumstance, opportunity or risk demand that the rules be broken.

Of course, inherent in civil disobedience – but not always well-understood – is that there are consequences for breaking the rules. Snowden may be naive, he may be narcissistic, he may be a coward. His running to the largest surveillance state in the world suggests some combination of all three.

But he WILL suffer the consequences for his choice. While I question his underlying motivation and methods, I don’t condemn him for breaking the rules. He’s provided the spark for a much-needed discussion, one that will hopefully yield better protections from intrusive government surveillance. And that’s not a discussion we get to have if we become, as Reason’s Ira Stoll put it, a “nation of compliance officers.”

The Choices of Miranda

There’s been a fair bit of legal chatter about the decision of law enforcement to not read Boston bombing suspect Dzhokhar Tsarnaev his Miranda rights. What’s lost in most of the discussion is that doing so is a perfectly rational decision for the authorities to make. Why? The reasons are related to one of my favorite topics: why no one should blindly follow the law (or procedure, or “standard operating process”).

The police choosing to not Mirandize a suspect isn’t the same as choosing to disobey an unjust or unconstitutional law, or even the decision to proceed in the face of ambiguous applicability of regulation. It’s more akin to the cost-benefit involved in choosing to run a red light on a bicycle, or to breach a contract. You see, unlike the legal consequence for being caught running a red light (a ticket), there’s not a legal sanction for failing to Mirandize. There’s no independent “Miranda right;” the warning merely serves as a safe harbor allowing the police to use whatever statements the suspect may offer up after the warning has been given.

(for any criminal defense lawyer readers, yes, I am skipping over a lot of criminal law nuance here, but my point has to do with decision-making, not procedure).

Like my running the red light, the authorities here are making a pragmatic choice: give up the ability to use any incriminating statements that Tsarnaev may make against him in exchange for the increased likelihood that he yields information exposing co-conspirators, foreign support, etc. This decision is actually quite an easy one. While the FBI is preserving optionality by claiming that skipping Miranda is justified under the public safety exception (which would permit any statements to be used despite the failure to Mirandize), the much more important point is that there is almost no chance that they need any incriminating statements by Tsarnaev in order to convict him. Absent some truly startling developments, they’ve got all the evidence they need. So why not skip the warning and see what intelligence he offers up?

The rules of police procedure would say that you read the suspect his Miranda rights. And as with most rules (including red lights), that’s a good idea – most of the time. But as this case illustrates, we’re not going to maximize our chances of getting the best outcomes if we don’t critically assess, every time, whether we should follow the rules this time.

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What’s Right & What’s Legal

While I’m a big advocate of personal freedoms, I could never embrace libertarianism.  There’s too little recognition of what brings us together as social beings, not enough pragmatism.  Then there are the unfortunate backwaters that an unyielding defense of liberty leads to – tax resistance, antipathy to laws prohibiting discrimination, etc.  

But I loved this piece from the libertarian Reason.com blog the other day – “why I’m teaching my son to break the law.”  It plays into a debate I often have with my son; at 14, he’s got a heightened fear of the consequences of breaking rules.  I can respect that concern, and as a parent, I don’t want to see him getting into trouble for trouble’s sake.  But as I try to tell him, sometimes what’s right doesn’t line up with what’s legal.  Rules aren’t imbued with some kind of moral weight just because a government body, bureaucrat or majority of the citizenry voted for them.  Sometimes the least right laws are the most popular.  Sometimes laws are enacted that are flatly unconstitutional.  And sometimes the law is an ass.

As I’ve written before, I’m convinced that being too scrupulous about rules-following is a dangerous way to ride a bike.  But it’s also a dangerous way to live as a citizen.  The only way to stay free to stand up, to question authority and to push back on bad laws. For as Ralph Waldo Emerson observed:

“The wise know that foolish legislation is a rope of sand, that perishes in the twisting.”  

Twist away.

Rep. Orcutt Still at it

I had thought perhaps Rep. Ed Orcutt was concerned with environmental or economic justice. But via Bikehugger, we learn that Orcutt has walked back his silly comments about the environmental impacts of cycling while doubling down on his view that cyclists should pay a separate tax to support “their” infrastructure.

Never mind that we’re already paying our fair share: As I mentioned earlier, 96% of transportation funding coming from sources, like property taxes, that aren’t based on direct use of transportation infrastructure. And while it’s one thing to look at the (currently $0) contribution cyclists make to transportation on a usage basis as compared to gas tax, let’s flip that around – how fair is it that auto usage only accounts for 4% of total spending? After all, there’s no question that this 4% radically under-represents the use motor vehicles place on roadways, both in terms of capital demands and maintenance needs. Where’s the fairness in that?

But actually, and unlike Orcutt, it doesn’t bother me a bit that I pay so much for roads despite hardly ever using them as a driver. That’s because I benefit from having them there, and not just for riding on.

It’s a point that should be blindingly obvious, but clearly needs reinforcing: Transportation infrastructure is what enables so much else of our economy to click. It’s why I can get fresh produce at the store. It’s why we can have an interconnected economy with jobs and options and recreation and entertainment in myriad different locations. And it’s why we can have politicians from remote rural areas influence statewide policy (oops).

Same goes for sidewalks or protected bike lanes. Yes, they benefit the direct users – just as roads benefit those driving on them. But they also help connect everything together and provide options other than cars for moving around (which, incidentally, directly benefits those having to drive by reducing congestion). There’s a reason it’s called infrastructure. Well-designed transportation spending that accounts for the different modes people use to move around is core to keeping our society closer together and our economy and cultural life humming. It’s time for politicos like Ed Orcutt to get past the blinkered view that spending on – and benefits from – transportation is limited only to those who directly use it.

Pine-Bellevue

Rep. Orcutt on Those Freeloading, Polluting Bicycles

Ed Orcutt is the ranking minority member on the Transportation Committee in the Washington House of Representatives.  In an email to a constituent, Orcutt riffed on the transportation tax bill introduced last week.  It started off easily enough:

“I am not a fan of much in the House Transportation tax proposal nor of many tax proposals . . .”

(of course not – Orcutt is an erstwhile Republican and fan of the Tea Party)

But just like the Tea Party can find a soft spot in its heart for government action when it comes to Social Security, Medicare or enforcing drug laws, Orcutt has found a tax that he actually likes:

“. . . but I have to admit I think there are valid reasons to tax bicycles.”

Really?  Like what?

Well, it may be the case that Orcutt is a closet economist, because he seems awfully concerned about externalities – you know, the costs that certain activities impose on the rest of society that aren’t paid by the person or industry creating the cost.  Orcutt, with professorial patience, continues:

“Think about this for a moment.  Currently motorists are paying to use their cars on the roads while they are actually driving their cars.  At the same time, they are paying for bike lanes because there is no gas tax – or any transportation tax – generated by the act of riding a bike on the roadways.”

That’s an admirable concern for the “free rider” problem right there. I assume Orcutt feels the same way about the firearms dealers and timber industry in his district paying the full freight for the costs they impose, although I’ve yet to see his incisive macroeconomic analysis on that topic.

But never mind that – on to the bikes!   Yes, it must be a dreadful thing, all us freeloading cyclists.  Orcutt is right, of course – we don’t pay a tax based on usage.  Compared to cars, we ARE freeriders, creating externalities that are paid for by society.  There’s no debate about that.  Although 96% of Seattle’s roadway budget comes from non-usage based funds (principally property, sales and B&O tax revenue), fully 4% comes from gas tax.  FOUR PERCENT!

The burden of which – and I can’t be plainer about this – is borne solely on the shoulders of drivers.

Rep. Ed Orcutt is obviously a principled economist, focused on the question of fairness.  I’m sure he would advocate that cyclists pay for roadway commensurate with usage and impact in relation to cars and trucks.

So let’s do some quick math.

  • In Seattle, gas tax revenues used for roads equals about $13.5 million annually.
  • Bikes are used for about 5% of commutes.  There’s obviously recreational riding as well, but let’s assume that’s washed out by non-commute driving.
  • 5% of $13.5 million is a little shy of $700,000.
  • But we haven’t accounted for commercial driving, which places a massively disproportionate burden on transportation infrastructure given the weight of the vehicles and the miles driven.  Let’s say that cuts the share attributable to bikes down to $350,000.
  • Oh, and we haven’t accounted for the difference in commute length.  The average one-way commute for drivers in Seattle is 14.1 miles; for cyclists it’s 6.1 miles. So that brings the “cycle share” down to about $150,000.
  • Then’s there’s vehicular weight and rolling resistance on pavement – the biggest driver of transportation infrastructure wear and tear.  Let’s say the average motor vehicle weighs 4000 pounds, and the average bike-and-rider 200.  That’s probably understated, since it doesn’t account for commercial vehicles or the differences in tire size, but let’s go with it because it makes for a nice, clean 5% ratio.  That brings the number down to $7,500.

So those of us commuting by bike in Seattle are free riding to the tune of, at most, $7,500 per year.  I’m guessing a more detailed analysis or factoring in the positive externalities of cycling would reduce that number further or even turn it negative.

As Orcutt is a devotee not only of fairness but also of small government, I’m certain he would not want to create or expand state bureaucracy to collect so piddling a tax, a tax whose meager revenues would be swamped by the cost of collection and enforcement.

But perhaps not.  Because Orcutt may have a bigger agenda.  You see, he is not only an economist, but also an environmentalist, concerned about the dire impact of bicycling on global warming.  He may like this tax because it uses the “pull” of state taxation to drive an end desirable to Orcutt – getting all of those spandex-clad polluters off their bikes and back behind the wheel where they won’t do so much damage to Mother Earth:

“But if I am not mistaken, a cyclist has an increased heart rate and respiration. That means that the act of riding a bike results in greater emissions of carbon dioxide from the rider.  Since CO2 is deemed to be a greenhouse gas and a pollutant, bicyclists are actually polluting when they ride.”

Read the whole crazy here.

(h/t Seattle Bike Blog)