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The EPA’s propaganda machine

August 28, 2015, 12:24 PM

A little over a century ago, U.S. Rep. Frederick Gillett, R-Mass., read something in The New York Times that vexed him. The U.S. Department of Agriculture’s Bureau of Roads advertised that it was seeking to hire a publicity expert. Gillett could not understand why a government agency needed someone to “advertise” its work.

A few weeks later, on Sept. 6, 1913, Gillett introduced legislation, which read: “no money appropriated by this or any other act shall be used for the compensation of any publicity experts unless specifically appropriated for that purpose.” When House Agriculture Committee Chairman Asbury Lever, D-S.C., asked for his rationale, Gillett clarified that he saw no harm in agencies employing editors to write agency reports in “more popular language.” What offended Gillett was agencies spending public funds to “extol” their work.

Gillett’s amendment was accepted, and remains law to this day. In addition to the Gillett law, Congress has banned agencies from encouraging the public to lobby Congress, a prohibition included in the 2015 omnibus spending act. But one would not know it from a glance at how routinely agencies dole out propaganda.

Today, federal agencies regularly toot their horns to the public. They blog, post videos to YouTube, host Google hangouts and generally flood the Internet with feel-good messages. What would the children do without kids.usa.gov and its videos instructing them what gear they need to play various sports?

Of the lot, the Environmental Protection Agency might be the most pushy and self-aggrandizing. The agency has at least a dozen Twitter accounts that have posted more than 70,000 tweets over the past seven years. The EPA’s unabashed willingness to politick has been on full display in the recent public relations blitz to support its “Clean Power Plan.” The agency has posted videos, blogged, issued press releases and frenetically blasted out 140-character propaganda:

How would you spend $100 billion? Climate/weather disasters in the US cost that much in 2012! https://t.co/bnWoepAQRO #ActOnClimate

— U.S. EPA (@EPA) July 20, 2015

People w/heart & lung illnesses are especially vulnerable to excessive heat exposure. Climate change means more health risks. #ActOnClimate

— U.S. EPA (@EPA) July 28, 2015

Today w/#CleanPowerPlan we are showing the world what’s possible. Countries across the globe will step up as we lead. pic.twitter.com/YR4hAU6HDs

— U.S. EPA (@EPA) August 3, 2015

No one has led us to #ActOnClimate as fearlessly as @POTUS. It’s made all the difference for #CleanPowerPlan. pic.twitter.com/eoOeLKpk1X

— U.S. EPA (@EPA) August 3, 2015

Cost-benefit analysis is an inherently complex enterprise. Analysts can come to very different results, especially when one is trying to calculate the interplay between consumer demand, power production and climatological effects on health. The EPA, however, brooks no dissent and the agency’s public communications lack all nuance. The EPA Connect blog confidently asserts that, thanks to its new regulations:

By 2030, sulfur dioxide emissions from power plants will be 90 percent lower than 2005 levels, and emissions of nitrogen oxides will be 72 percent lower. Because these pollutants can create dangerous soot and smog, the historically low levels mean we’ll avoid 90,000 children’s asthma attacks, 300,000 missed days of school and work, and up to 3,600 premature deaths in 2030 alone.

As for those who think otherwise, EPA Administrator Tom Reynolds writes: “they’re wrong.

Whatever one’s feelings about the risks of climate change and the new emissions regulations, it is undeniable the EPA is not simply informing the public. It is propagandizing. The EPA’s spin doctors are relentlessly on script, often in coordination with the Surgeon General’s Office and other Obama appointees.

The rationale for all this public-relations work is plain: the EPA is trying to build grassroots support for its agenda, presumably in hopes that widespread public support for it will kneecap critics in Congress.

This is not quite how the Founders drew up our government. Congress, by virtue of being popularly elected, is to represent the public interest. The legislature enacts the laws and the executive branch is supposed to implement them. If legislators stray from the desires of the voters, they get voted out. That is democratic accountability.

Congress’ best option is to direct the Government Accountability Office and the EPA Inspector General’s Office to audit the agency’s public-relations activities. This tactic has worked in the past. The Department of Health and Human Services dialed back its promotion of new Medicare benefits after it was subjected to GAO scrutiny. The Department of Defense abolished one of its public communications units after it was caught trying to manipulate press coverage.

The U.S. Constitution’s careful balance of powers goes out the window when executive agencies make policy unilaterally and then manufacture public sentiment in support.

Take kids off the sex-offender registries

August 28, 2015, 11:50 AM

At age 10, Maya R. did something that would disturb just about anyone: “Me and my step-brothers, who were ages 8 and 5, ‘flashed’ each other and play-acted sex while fully clothed,” she told Human Rights Watch researcher Nicole Pittman. After copping to the incident in juvenile court, Maya’s punishment was an 18-month sentence in a detention center, mandatory counseling, and a quarter-century of registration as a sex offender.

Maya’s mistake had significant consequences for her life. With her name on a sex-offender registry, she faced harassment in college and ultimately dropped out. Facing huge barriers to finding housing, she spent 90 days in a homeless shelter. She fell into a deep depression. Despite a clean adult record and a life that eventually got on the right track—she did missionary work, married, and now has a child of her own—Maya can’t escape the “sex offender” label. She and thousands of others like her continue to be punished for mistakes they made as children.

In April, prosecutors in Archbold, Ohio, brought charges that could have meant mandatory registration for high-school students caught exchanging nude “selfies.” An Indiana judge, likewise, has sentenced two teenage boys to lifetime sex-offender registration for having sex with teenage girls they met online. In some states, even trivial offenses like public urination and streaking can land children on registries.

Currently, 40 states have sex-offender registration for those convicted in juvenile court. This ought to trouble us, not least because it undermines the usefulness of the registries. It’s a policy that needs to change at both the federal and the state levels.

The juvenile justice system is predicated on a trade-off. Juvenile defendants have fewer rights, but the system is supposed to expend greater effort at rehabilitation. There are no jury trials in juvenile courts. Records are typically confidential, and rules of evidence are looser. As counterbalance, juveniles serve shorter sentences and are sent less frequently to secure facilities. Sanctions are, at least in theory, levied in the “best interests” of those convicted, rather than meted out as punishment.

Unlike adult criminal records, which normally follow offenders for life, juvenile records can be sealed at age 18 (the procedure is automatic in some states). Even unsealed juvenile court convictions (which generally aren’t on the public Internet) typically don’t affect offenders’ ability to vote, live where they choose, receive most government benefits, get professional licenses, and hold public office. When juveniles commit particularly atrocious crimes, like murder or violent rape, every state offers a procedure that would permit them to be tried and sentenced as adults.

Sex-offender registries impose some of the most severe restrictions that face anyone convicted of a criminal offense. In addition to public humiliation, made more intense in the Internet age, those required to register as sex offenders often are forbidden from living close to schools and day-care centers, pushing many far out into the country or even into homelessness (and homeless shelters turn many away). Sex offenders can be denied professional licenses and may be subject to near-constant police surveillance. Since most juveniles on sex-offender registries have victimized other juveniles, some also face restrictions intended for adult pedophiles, and can be excluded from living with their own siblings and even, as they get older, with their own children. Even those who do manage to find jobs and places to live will generally see much lower wages and find healthy adult relationships much harder to establish.

Registry laws were created to deal with the problems of recidivist pedophiles and serial rapists. They are a harsh response, but public sentiment holds they are just. And they are certainly popular, as evidenced by near-unanimous votes to create them in state after state. It’s less obvious how society benefits from imposing such long-lasting sanctions in response to mistakes made by children. There’s little evidence that youthful sex offenders remain a public danger. The largest meta-analysis shows that only about 7 percent of youthful sex offenders are ever convicted of another offense. Some studies have found reoffense rates as low as 1 percent. By comparison, 40 percent of adults convicted of serious crimes reoffend.

Juveniles convicted of sex offenses clutter the registries. They account for as much as 25 percent of the rolls. Monitoring these individuals for decades wastes resources that law enforcement and social workers otherwise could use more effectively to target those who pose real dangers to society. (And where young offenders do appear to pose such truly significant risks, prosecutors can avail themselves of the opportunity to file adult charges.)

States are encouraged to include juveniles in their registries by the federal Adam Walsh Act, which ties federal funding to state and local enforcement to the degree to which state registries comply with the law’s classification system for sex offenders. Not only should these incentives be eliminated, but Congress should consider withholding some grant funds from states that continue to list those adjudicated in juvenile court on the registries.

At the least, many states should rejigger their registry laws. Teenagers who have sexual relationships or exchange nude “selfies” with other teenagers may need counseling, punishments from their parents, and admonitions from other adults. But they shouldn’t routinely face criminal sanctions for “statutory rape” or “child pornography.”

Pre-teens like Maya R. who act out sexually may well have serious problems that require more extensive intervention. But absent strong evidence that they’re likely to reoffend, they shouldn’t face lifetime sanctions more severe than those levied on juveniles who commit crimes like armed robbery and auto theft. Like other juvenile offenders’, their records should be eligible to be sealed, and they certainly shouldn’t spend long periods on sex-offender registries.

Including children on sex-offender registries is a grave injustice that does little good and much harm. Congress and state legislatures need to undo the damage they have done.

Need for dialogue on tobacco harm reduction

August 27, 2015, 1:24 PM

What is now needed, if we are to ever secure the personal and public health benefits that e-cigarettes and tobacco harm reduction can offer, is honest and sincere dialogue on this topic between the public health community, industry representatives and consumer representatives. This has been impossible to date because of the perception within the public-health community that the industry is evil and engaging in such dialogue would constitute collaboration with the enemy.

For the past four years, Scott Ballin, working with and through a team at the University of Virginia, has hosted a series of what they call Morven Dialogues. These have attracted industry representatives and the handful of public health people known to be supportive of THR and e-cigarettes, but no active participation from FDA, CDC, NIH, AMA, or heart, lung or cancer societies.

The issue I would like to see addressed, both domestically and internationally is this perception that the industry is an evil monolithic enterprise and that there are none within the industry who would sincerely welcome the opportunity to partner with public health colleagues in pursuit of shared public health objectives.

Carly Fiorina celebrates ‘Women’s Equality Day’ by paying women as much as men

August 26, 2015, 6:20 PM

Feminists long have struggled with the concept of “equal pay.” Although most social justice-y gender studies majors demand that “equal pay” mean “totally, statistically equal,” that standard is actually an impossible one to reach. Women choose different jobs from their male colleagues, often select less dangerous professions (which pay less than the more dangerous ones), work shorter hours and take breaks in the middle of their careers to raise children, and generally make different choices than men.

Now, those choices might be the result of ingrained cultural norms, but the idea that women earn $0.77 to every man’s $1.00 because of blatant sexism in the workplace long has been exposed as a myth – and not even a very good one.

There are instances of true pay inequality, though. For example, Hillary Clinton, while she served in the Senate, paid her female employees 28 percent less than her male employees, overall. She tried to explain it away by insisting that the women on her staff held lower-level positions, something that seems to verify both claims that the “pay gap” is bogus, and that Hillary Clinton is, herself, kind of sexist in her hiring practices.

On Women’s Equality Day (at least, that’s what the Internet tells me), we take a moment to remember all those women Hillary Clinton failed as a feminist. Especially now that Carly Fiorina, the other woman in the presidential race, has been revealed to be the real candidate of pay equality.

As women working for Hillary Clinton’s presidential campaign struggle with a gender pay gap, women working for the businesswoman and Republican presidential candidate Carly Fiorina are coming out on top.

The median female annual salary on Fiorina’s campaign is $69,724, about $15,000 higher than the median male annual salary of $54,829, according to data made available to the Washington Free Beacon by the campaign.

The highest paid members of Fiorina’s staff are her campaign managers Frank Sadler and Sarah Isgur Flores, who both make $150,000 a year.

The next six highest salaries on the campaign are all for female employees. The lowest salary is for a male.

According to an analysis done by the Free Beacon of Clinton campaign salaries (post her tenure in the Senate), women on Fiorina’s campaign are actually faring far better than the women on Clinton’s. They’re promoted higher, in positions of greater authority and paid far more.

Fiorina, for her part, says that the “feminism” isn’t actually intentional – since she comes from the business world, she promotes what she calls a “ruthlessly cultiva[ted] meritocracy,” and her best employees simply rise to the top. In the case of her campaign, those employees happen to be female.

As far as the so-called “gender pay gap” is concerned, Carly says she recognizes that there are factors that keep women from reaching their full potential…but, to paraphrase, Hillary Clinton has pretty much no idea what those are or how to overcome them.

So, as Twitter celebrates “Women’s Equality Day” and the passage of the 14th Amendment, perhaps they should look closely at exactly who is keeping that ball rolling.

If you don’t support the party line, don’t speak

August 26, 2015, 3:52 PM

I am extremely disappointed to announce that my invitation to speak at the fall conference of the Council of Institutional Investors has been withdrawn. The conference organizers have determined that my presence at the conference may create a “hostile environment.”

The hostility is not a result of the paper I was to present, “Activist Hedge Funds in a World of Board Independence: Creators or Destroyers of Long-Term Value?,” which is forthcoming in the Columbia Business Law Review, and then discuss with a distinguished panel. Instead, it appears to be because of an exchange of comments I had on a corporate-governance blog concerning the shout-down of my recent R Street policy brief, “Public-pension funds play with newest toy in corporate governance.”

I believe my presentation would have been extremely educational for CII members and possibly change their way of thinking about hedge-fund activism. Yet I understand that the CII has the right to withdraw its invitation if the conference managers so choose. Given that the CII is still dominated by public and union pension funds, at least based on the make-up of its board of directors, I should not be surprised by their decision.

Nonetheless, it is very disappointing to see that the action was taken because of the expectation that there was going to be a critical mass of participants so intolerant of my views on the use of proxy access by public pension funds that they would create a hostile environment during my presentation. To have members like that does not reflect well on the organization and the positions it advocates.

This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

Ohio considers the crony side of cannabis

August 26, 2015, 8:00 AM

Ohio produced the first airplane pilot and the first man on the moon. This week, we are blessed with the consensus No. 1 preseason pick of college football teams. But this fall, all eyes will be on the state for a different kind of first – a public policy first.

Ohio is poised to become the first American state to flout the federal Schedule I drug law and to go straight to recreational marijuana use for adults without going through the medicinal purpose stage.

The proposed constitutional provision will also allow cannabis use at any age for medical purposes. Of course, as we have learned from Colorado and Washington state, doctors won’t risk their licenses to prescribe it and pharmacies won’t risk theirs to dispense it. It will continue to be only a suggestion by medical professionals for certain kinds of illness or discomfort.

Colorado and Washington have experienced some other hiccups in their marijuana experiments. For instance, it’s much more difficult to make an enforcement case for operating a motor vehicle under the influence with marijuana than it is with alcohol consumption. Lacking a standard like the 0.08 level of blood alcohol content, law enforcement largely have to rely on field tests.

The Ohio Chamber of Commerce, the Ohio Council of Retail Merchants, the Ohio Manufacturers Association, the Ohio State Medical Association, the local chapter of the American Academy of Pediatrics and many other groups oppose the initiative. Gov. John Kasich – currently on a different kind of high after winning the primary endorsement of fellow presidential candidate “Deez Nuts,” a 15-year old Iowa high school sophomore who was polling 9 percent of the votes in North Carolina on social media last month – opposes the initiative, as do most of the state’s constitutional officers.

But the most compelling reason to be concerned about Ohio’s proposed constitutional amendment is that it would, according to an editorial in Sunday’s Columbus Dispatch, “change Ohio’s foundational document in order to financially benefit a handful of people.”

That’s right: a monopoly on weed production in the state Constitution.

By that, I mean that 10 plots of land in the state, by actual parcel number, are granted exclusive rights to grow, cultivate and extract the good stuff.  Facilities licensed to sell marijuana products in the state are only allowed to process cannabinoids and THC from plants grown on the 10 plots of land owned by the entrepreneurs who are funding the initiative campaign. One of whom is former boy band star Nick Lachey, perhaps best-known as Jessica Simpson’s ex-husband and reality show co-star.

How does a real libertarian sort out this new exercise in do-it-yourself crony capitalism?

Last month, Responsible Ohio filed 695,273 petition signatures with Ohio Secretary of State Jon Husted. But after about 40 percent of the signatures were deemed invalid, the campaign came up 29,509 signatures short of the 305,591 needed to make the November ballot.  A review by Husted earlier this month determined the initiative had collected 320,267 valid signatures, qualifying in 77 of the state’s 88 counties.

More recently, the ballot backers have taken issue with the language agreed to by the Ohio Ballot Board. Former Ohio Supreme Court Justice Andy Douglas, who is serving as counsel to Responsible Ohio, said he was preparing to sue in his former court to replace ballot language describing “recreational” marijuana with “personal use,” which better reflects the purpose of the constitutional amendment in the judgment of the supporters.

Meanwhile, the state Legislature thinks it has the antidote.  Issue 2 on the November ballot is a measure cooked up by the state’s lawmakers to nullify any future constitutional amendment that awards benefits to an exclusive set of investors. Husted swears that, if it passes, it will negate the new marijuana provision, even if both pass in the same election. The specific language of House Joint Resolution 4 preventing grants of monopoly in the Ohio Constitution is:

Restraint of trade or commerce being injurious to this state and its citizens, the power of the initiative shall not be used to pass an amendment to this constitution that would grant or create a monopoly, oligopoly or cartel, specify or determine a tax rate, or confer a commercial interest, commercial right, or commercial license to any person, nonpublic entity, or group of persons or nonpublic entities, or any combination thereof, however organized, that is not then available to other similarly situated persons or nonpublic entities.

If it were only this easy to amend the U.S. Constitution, just think how many things we could fix!

This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

Protect taxpayers from another Fannie/Freddie bailout

August 26, 2015, 7:00 AM

We, the undersigned organizations, representing hundreds of thousands of hardworking Americans fed up with government spending and overreach, urge members of Congress to pass H.R. 1673, the Enterprise Secondary Reserve Taxpayer Protection and Government Accountability Act of 2015, introduced by Rep. Marsha Blackburn, R-Tenn. This legislation takes a much-needed first step to reining in Fannie Mae and Freddie Mac. It is important that Congress pass H.R. 1673 as a standalone bill or as part of other legislation.

The Government-Sponsored Enterprises (GSEs) Fannie Mae and Freddie Mac stood at the center of the 2008 financial crisis. In the aftermath of that crisis, taxpayers provided Fannie Mae and Freddie Mac with $188 billion in equity to cushion against losses related to their mortgage portfolios. Despite the significant taxpayer support they received, the danger they continue to pose to the federal balance sheet is significant. Incredibly, while the Dodd-Frank “financial reform” of 2010 imposes higher levels of capital and new regulations on community banks and life insurance companies that had nothing to do with the mortgage crisis, Fannie and Freddie operate today with virtually no capital reserves.

Since 2008, Fannie and Freddie have been under conservatorship administered through the Federal Housing Finance Agency (FHFA). Pursuant to the Obama administration’s 2012 “Third Amendment” to an agreement between FHFA and the United States Treasury, all of Fannie and Freddie’s net profits have been swept back into government coffers, thereby masking higher spending and creating phony short-term deficit reductions that the Obama administration can claim credit for. This scheme has left the two GSEs with almost no capital reserves to offset potential losses in the event of another downturn in the mortgage and housing markets.

H.R. 1673 would help protect taxpayers in the event that these two GSEs experience significant losses in the future. By creating a reserve fund using profits generated by the GSEs, the Enterprise Secondary Reserve Taxpayer Protection and Government Accountability Act allows Fannie and Freddie to draw down such funds in the event of significant losses, rather than going back to the Treasury for additional resources. Once FHFA’s conservatorship of Fannie and Freddie ends, the reserve fund would dissolve. Simply put, the bill creates an insurance policy for taxpayers.

As long as Fannie and Freddie are under conservatorship, any losses they experience are a threat to taxpayers. While H.R. 1673 is a wise proposal, it highlights the need for Congress to reduce dramatically the role of government in the housing finance system. In particular, Fannie and Freddie’s government support – implicit and explicit – should be phased out. Until lawmakers embrace comprehensive reform, however, they should pass the Enterprise Secondary Reserve Taxpayer Protection and Government Accountability Act. And this measure must, as a first step, be part of any large appropriations or financial services bill that attempts to deal with Fannie and Freddie.


Pete Sepp
National Taxpayers Union

John Berlau
Competitive Enterprise Institute

Matthew Kandrach
60 Plus Association

Norm Singleton
Campaign for Liberty

Kristin Fecteau
Campaign to Free America

Andrew F. Quinlan
Center for Freedom and Prosperity

Richard Viguerie

Tom Schatz
Council for Citizens against Government Waste

Seton Motley
Less Government

Lori Sanders
R Street Institute

Steve Ellis
Taxpayers for Common Sense

David Williams
Taxpayers Protection Alliance

Judson Phillips
Tea Party Nation

Melissa Ortiz
Able Americans

British government backs e-cigarettes for smokers

August 25, 2015, 4:09 PM

Public Health England last week became the first national government agency to endorse e-cigarettes as safer options for current smokers. Its report also dispelled several bogus anti-tobacco claims.

PHE encourages smokers to switch to e-cigarettes in order to stop smoking and to reduce smoking-related diseases and deaths. The agency strongly rejects the claim that vaping is a pathway to smoking:

There is no evidence that e-cigarettes are undermining the long-term decline in cigarette smoking among adults and youth, and may in fact be contributing to it.

Additionally, PHE refutes scaremongering about nicotine poisoning (a subject I previously discussed here):

When used as intended, e-cigarettes pose no risk of nicotine poisoning to users, but e-liquids should be in ‘childproof’ packaging. The accuracy of nicotine content labeling currently raises no major concerns.

I have noted here and here that some researchers have fabricated claims that vapor contains dangerous levels of formaldehyde. PHE rejects the assertion:

Two recent worldwide media headlines asserted that e-cigarette use is dangerous. These were based on misinterpreted research findings. A high level of formaldehyde was found when e-liquid was over-heated to levels unpalatable to e-cigarette users, but there is no indication that…users are exposed to dangerous levels of aldehydes.

Unfortunately, the PHE report overreaches in one respect. It says that “best estimates show e-cigarettes are 95 percent less harmful to your health than normal cigarettes,” and this became the dominant media headline upon the report’s release. To be accurate, PHE should have reported that e-cigarettes are far less harmful than combustible cigarettes, without specifying a percentage; there is no hard data to support a number.

The 95 percent is derived from the reported opinions of a group of international experts in a publication last year. The opinions were merely “guestimates”. In truth, the health risks of long-term vaping are not known, and they are at this time unknowable. While there is universal agreement among tobacco research and policy experts that inhaling a vapor of propylene glycol, nicotine and flavoring agents is vastly safer than inhaling smoke containing thousands of toxins, the precise risk differential is unknown.

I routinely criticize e-cigarette opponents for violating scientific principles when they make outrageous claims against the products. Recognizing that the PHE report is a welcome endorsement of tobacco harm reduction and e-cigarettes, I am disappointed that its value is at all compromised by a comparison that cannot be scientifically validated.

The elephant in the room: The GOP’s tech dilemma

August 25, 2015, 3:54 PM

Fifteen months ahead of the presidential election, a number of the 17 Republicans vying for their party’s nomination have invested considerable energy courting Silicon Valley. These candidates are boldly attempting to articulate a coherent understanding of the issues facing the technology industry.

This makes sense: what’s been seen traditionally as a Democratic stronghold ought to be ripe for the Republican taking. After all, it’s easy to frame the success of the Internet as an excellent manifestation of the conservative ideology that free markets and limited regulation spur economic growth and upward mobility.

Yet none of the Republican candidates has demonstrated a coherent technology-policy agenda. Despite all the overtures, the latest quarter’s financial filings revealed “most tech industry bigwigs are throwing cash at Democratic front-runner Hillary Clinton.”

This isn’t because Hillary Clinton has a better tech agenda or better tech instincts than Republicans. Her comparative fundraising success is likely attributable primarily to the tech community’s own instinct that it’s better to trust the devil you know than the devil you don’t.

It’s clear that Republicans want to win Silicon Valley’s affection, whether it’s former Florida Gov. Jeb Bush hailing an Uber; Sen. Rand Paul, R-Ky., hanging out at SXSW; or Sen. Marco Rubio, R-Fla., suggesting he would be “a new president for a new age.” Despite these photo-ops, careful evaluation of the candidates’ positions on issues important to startups, tech hubs, innovators and Internet giants show the Republican field is conspicuously out of step.


For some of the Republican candidates, the primary issue is an unwillingness to challenge the surveillance state. This may be due in part to a desire to preserve the party’s brand as a home for security hawks and in part to avoid appearing soft on Edward Snowden. Whatever one thinks of Snowden personally, there’s no dispute that his disclosures about the National Security Agency set off a national debate about the balance of security and privacy. These very real privacy concerns have resulted in significant economic fallout for the tech sector, as consumers and the international community lose confidence about the ability of U.S. firms to secure their data.

This summer, after much deliberation, the House and Senate passed the USA FREEDOM Act.  Swiftly signed into law by President Barack Obama, the law ends the bulk collection of phone metadata. This reform did not address all surveillance concerns, but it did represent a substantial and balanced approach to curtail the abusive spying undertaken by the government.

While the tech community universally praised the legislation, the GOP’s presidential candidates for the most part opposed efforts to rein in the NSA. Ignoring Silicon Valley, Sen. Rubio called for a “permanent extension” of the PATRIOT Act and voted against the reform. Wisconsin Gov. Scott Walker echoed Rubio, saying the nation “would be much better off” without the USA FREEDOM Act. Not to be outdone, New Jersey Gov. Chris Christie famously defended the NSA, explaining that critics of mass spying should talk to families of the 9/11 victims.

Only two of the GOP candidates aligned with the tech community against the unwarranted mass surveillance of Americans. Sen. Paul didn’t vote for final passage of the USA FREEDOM Act, because he didn’t think it went far enough, but he did rally privacy supporters with his efforts on the Senate floor that helped bring about reform. Fellow privacy hawk Sen. Ted Cruz, R-Texas, showed solidarity with Paul during his filibuster, even though he ultimately voted in favor of the USA FREEDOM Act.


Last year, the conservative-leaning Young Guns Network published a paper titled “Room to Grow,” designed to serve as a conservative blueprint for an “innovative agenda that empowers individuals by increasing competition and replacing failed government policies.” In the report, American Enterprise Institute scholar James Pethokoukis correctly identified a problem hindering so many in the tech community. In his essay, “Regulatory and financial reforms to combat cronyism and modernize our economy” Pethokoukis explained: “over the years, copyright and patent law has evolved into cronyist protection of the revenue streams of powerful incumbent companies—a type of regulation that hampers innovation and entrepreneurship.”

This resonates as true in tech hubs across the country where many entrepreneurs are struggling to fight patent trolls as they develop new software and services. These “trolls” are companies that take advantage of the patent system to amass huge troves of weak and broad patents and make money by threatening lawsuits against legitimate new startups and entrepreneurs. Not only are patent trolls costing the economy $29 Billion a year, but the struggle against meritless patent litigation was even satirized front-and-center in the HBO hit comedy Silicon Valley.

Unfortunately, it appears the Republican candidates missed those episodes. For example, when pressed about his stance on patent reform in an interview with Tech Dirt, Rand Paul passed quickly over the issue, leading the author to conclude that fighting patent trolls “doesn’t appear to be of serious interest leading to Paul or his ilk.”

Of the other candidates, former Hewlett-Packard CEO Carly Fiorina has been the most vocal on the topic. Unfortunately, her stance has been to oppose patent reform. Fiorina attacked a Silicon Valley-supported legislation to rein in patent trolls, explaining, “these supposed reforms pose a dire threat to our notion of property rights.” The current reform effort – Rep. Bob Goodlatte’s INNOVATION Act – actually wouldn’t change substantive patent-law rights, but it would curb frivolous litigation costs and abuses.

Net neutrality

As access to the Internet has increased dramatically, there has been serious interest and debate over its future, quite often centered on the question of net neutrality. While the conversation in D.C. largely has been partisan, in Silicon Valley, there long has been vibrant, nuanced debate, both in favor of and in opposition to net-neutrality proposals.

Unfortunately, Republican candidates largely have been tone deaf on net neutrality. Rational people can disagree on the issue, but it isn’t helpful for branding when Ted Cruz calls net neutrality the “Obamacare of the Internet” or Jeb Bush says it the “craziest idea I’ve ever heard.” (There are some other pretty crazy ideas out there.)

If Republicans are serious about relating to the interests of Silicon Valley, they must learn to speak intelligently about the issues that matter to tech interests.

On a few subjects, they do. On the national level, Republicans have embraced the benefits of the sharing economy, notably in support of car-sharing services like Uber, although at the local level, Republicans and Democrats have been split fairly evenly in their support for and opposition to these innovations.

But the sharing economy is only one aspect of the tech revolution. Republicans should extend their celebration of free-market solutions into a comprehensive tech agenda. Some of these ideas were laid out by technology analyst Derek Khanna, who has written that conservatives should “create forward-leaning legislative policies to foster innovation, not uncertainty.”

The candidates would also do well to learn from their counterparts in Congress, who have deliberated on a host of issues of concern to the tech industry. While there are still areas where the stance of congressional Republicans (particularly on immigration) is unpopular in the Valley, many Republicans are working with their Democratic counterparts to make policy changes that will enhance the tech sector.

Most notable among these are Reps. Blake Farenthold, R-Texas, and Darrell Issa, R-Calif., and Sen. Mike Lee, R-Utah, who have been on the front lines on surveillance reform, patent policy and rebalancing copyright. This trio hasn’t hesitated to seek support for forward-thinking solutions, both within their caucus and across the aisle.

In the absence of strongly articulated pro-tech stances in the Democratic presidential field, 2016 has the potential to be a defining election for the Republican Party on the tech-policy front. But for GOP top-of-the-ticket candidates to win over new audiences and support, there must be a concerted effort to showcase a comprehensive agenda that will spur economic growth. There’s still time for Republicans to seize these issues, but the time is shorter than GOP leaders may like to think. We can only hope that, over the next year, more of the leading Republican candidates will step up to the challenge and frame a visionary path forward.

Call for public access to Congressional Research Service reports

August 25, 2015, 8:00 AM

We write in support of expanded public access to Congressional Research Service (CRS) reports. Longstanding congressional policy allows members and committees to use their websites to disseminate CRS products to the public, although CRS itself may not engage in direct public dissemination. This results in a disheartening inequity. Insiders with Capitol Hill connections can easily obtain CRS reports from any of the 20,000 congressional staffers and well-resourced groups can pay for access from subscription services. However, members of the public can access only a small subset of CRS reports that are posted on an assortment of not-for-profit websites on an intermittent basis. Now is the time for a systematic solution that provides timely, comprehensive free public access to and preservation of non-confidential reports, while protecting confidential communications between CRS and members and committees of Congress.

CRS reports—not to be confused with confidential CRS memoranda and other products—play a critical role in our legislative process by informing lawmakers and staff about the important issues of the day. The public should have the same access to information. In 2014, CRS completed over 1,000 new reports and updated over 2,500 existing products. (CRS also produced nearly 3,000 confidential memoranda.)

Our interest in free public access to non-confidential CRS reports illustrates the esteem in which the agency is held. CRS reports are regularly requested by members of the public and are frequently cited by the courts and the media. For example, over the last decade, CRS reports were cited in 190 federal court opinions, including 64 at the appellate level. Over the same time period, CRS reports were cited 67 times in The Washington Post and 45 times in The New York Times. CRS reports often are published in the record of legislative proceedings.

Taxpayers provide more than $100 million annually in support of CRS, and yet members of the public often must look to private companies for consistent access. Some citizens are priced out of these services, resulting in inequitable access to information about government activity that is produced at public expense.

In fact, while CRS generates a list of all the reports it has issued over the previous year, it silently redacts that information from the public-facing version of its annual report, making it difficult for the public to even know the scope of CRS products they could obtain from Congress. A Google search returned over 27,000 reports, including 4,260 hosted on .gov domains, but there is no way to know if those documents are up-to-date, what might be missing or when they might disappear from view.

Comprehensive free public access to non-confidential CRS reports would place the reports in line with publications by other legislative support agencies in the United States and around the globe. The Government Accountability Office, the Congressional Budget Office, the Law Library of Congress, and 85 percent of G-20 countries whose parliaments have subject-matter experts routinely make reports available to the public.

We hasten to emphasize that we are not calling for public access to CRS products that should be kept confidential or are distributed only to a small network on Capitol Hill. Memoranda produced at the request of a member or committee and provided to an office in direct response to a request should remain confidential unless the office itself chooses to release the report. By comparison, we believe no such protection should attach to reports typically published on CRS’ internal website or otherwise widely disseminated.

We value the work of CRS and in no way wish to impede its ability to serve Congress. CRS reports already undergo multiple levels of administrative review to ensure they are accurate, nonpartisan, balanced and well-written. Authors of every CRS product are aware of the likelihood that reports will become publicly available.

We do not make a specific recommendation on who should comprehensively publish nonconfidential CRS reports online, although the approaches outlined in H. Res. 34 (114th Congress) and S. Res. 118 (111th Congress) are reasonable. The Clerk of the House, the Secretary of the Senate, the Government Publishing Office (GPO), the Library of Congress and libraries in the Federal Depository Library Program (FDLP) are all reasonable places for the public to gain access to these documents. Even bulk publication on GPO’s website would be a major step forward.

We ask only that all non-confidential reports be published as they are released, updated or withdrawn; that they be published in their full, final form; that they are freely downloadable individually and in bulk; and that they be accompanied by an index or metadata that includes the report ID, the date issued/updated, the report name, a hyperlink to the report, the division that produced the report, and possibly the report author(s) as well.

In the attached appendix we briefly address concerns often raised by CRS regarding public access to reports. In doing so, we note that many committees, including the Senate Rules Committee, have published CRS reports on their websites. Also, that many CRS reports are available through third parties. We urge you to give great weight to the significant public benefit that would result from comprehensive, timely access.

We welcome the opportunity to further discuss implementing systematic public access to nonconfidential CRS reports. Please contact Daniel Schuman, Demand Progress policy director, at daniel@demandprogress.org, or Kevin Kosar, R Street Institute senior fellow and governance director, at kkosar@rstreet.org. Thank you for your thoughtful consideration of this matter.

American Association of Law Libraries
American Civil Liberties Union
American Library Association
Association of Research Libraries
Bill of Rights Defense Committee
California State University San Marcos
Cause of Action
Center for Democracy and Technology
Center for Effective Government
Center for Media and Democracy
Center for Responsive Politics
Citizens Against Government Waste
Citizens for Responsibility and Ethics in Washington
Congressional Data Coalition
Data Transparency Coalition
Defending Dissent Foundation
Demand Progress
Essential Information
Federation of American Scientists
Free Government Information
Government Accountability Project
Middlebury College Library
Minnesota Coalition On Government Information
National Coalition for History
National Security Archive
National Security Counselors
National Taxpayers Union
NewFields Research Library
Niskanen Center
Project on Government Oversight
Public Citizen
R Street Institute
Sunlight Foundation
Taxpayers for Common Sense
Transactional Records Access Clearinghouse (TRAC) at Syracuse University
Union of Concerned Scientists
Western Illinois University Libraries


Letter to National Credit Union Administration

August 24, 2015, 8:00 AM

My name is Eli Lehrer and I am president of the R Street Institute, a free-market think tank headquartered in Washington, with offices in Tallahassee, Fla.; Austin, Texas; Columbus, Ohio; Sacramento, Calif.; and Birmingham, Ala. I am writing to comment on the above-referenced rules, based both on R Street’s commitment to free-market principles and R Street’s own interests as a small nonprofit and credit-union member. We consider these proposed rules a good start toward a better and freer environment for credit unions to operate and urge you to move forward with them.

R Street staff long have argued that – given the history of the credit-union movement, the nature of credit-union lending to business and the potential benefits to the broader economy – statutory and regulatory caps on credit-union member-business loans should be removed or, at least, made significantly more flexible. Credit-union lending can better meet market needs if it is based on demand, rather than arbitrary rules.

Proposed changes to lift credit union lending caps could provide economic stimulus on a significant scale at no cost to taxpayers; significant research has shown this type of lending is already becoming more important. As current law does not give the NCUA authority to lift the cap, simplifying the process to make more loans, as the proposed rules would do, is a step in the right direction.

We see little to no risk of harm from the modest rule changes currently under consideration. These proposed changes would eliminate some requirements not found in statute and simplify a few rules. They pose no safety and soundness concerns related to the overall scope of expanded credit-union business lending.

As president of an organization that is a credit union member, I believe legal simplification would benefit us and other existing members. In an op-ed I co-authored last year with my organization’s chief operating officer, we described how the member-business-lending cap constrained our ability to find a credit union that met our needs as a growing business:

[W]e couldn’t easily make electronic check deposits and couldn’t see check images online. When we looked for these features – and we spent almost a month searching – we couldn’t find a single credit union anywhere that both offered them to small business and could fit [the R Street Institute] into their field of membership. This state of affairs, we believe, exists because of federal laws that cap credit union member-business loans. Since credit unions face such onerous restrictions on the size of their loan portfolios, it’s natural and even proper that many underinvest in the IT systems necessary to support small business.

Without a significant easing of the cap, it is unlikely that any given set of regulatory changes will solve these problems. Nonetheless, the small changes you propose might, at the margin, make it easier for credit unions to justify the investments necessary to serve businesses like ours in the way we would like to be served.

The rule changes you suggest are common sense and will benefit both and existing credit-union members the economy as a whole.

Higher ed/industry disconnect a workforce wakeup call for Alabama

August 24, 2015, 7:00 AM

“Workforce development” is such a widely used term that it’s easy for most of us to ignore. Unfortunately, it might be one of the most critical challenges facing Alabama. Between an aging population and a disconnect between education and industry, we may need to change the term to “workforce creation” in short order.

My generation grew up in the middle of America’s manufacturing exodus. For the last three decades, America has seen its “makers” move to lower-wage nations like China and Mexico.

From December 1982 to July 1990, the economy saw one of the largest expansions in American history. More importantly, employment grew by more than 25 percent.

Manufacturers cashed out on the growth by moving to emerging markets in an effort to lower labor and regulatory costs.

Now, those foreign markets are catching up. Many cost and regulatory advantages are decreasing. At the same time, issues of product quality from nations like China are popping up continually.

Manufacturers are coming back to America and Alabama has many of the fundamentals they need. Even so, we struggle in three key areas: Workforce, workforce and workforce.

“When we talk to the folks in business and industry, they’re talking in terms of 50 percent of their workforce could retire today if they wanted,” said Alabama Community College System Chancellor Mark Heinrich. “So far, the economy has kept them in place.”

As the economy improves, retiring workers could prove to be a potentially catastrophic problem for existing businesses and a hindrance to industrial expansion and recruitment.

Normally, we’d simply replace them, but we’ve effectively lost a generation of workers in the same industries we’re trying to recruit.

At the same time as America’s manufacturing exodus, our education system managed to redefine personal and professional success in terms of obtaining degrees. That’s a great benefit to colleges and universities, but it’s a problem when the supply of degrees doesn’t match the job demand of the marketplace.

According to information presented by Alabama State Board of Education member Mary Scott Hunter, Alabama’s public colleges aren’t producing enough graduates in the areas of projected economic growth.

Unfortunately, the problem isn’t unique or novel. For example, I majored in both philosophy and classics in college. But for law school, I would have been able to use a dead language to critically explore the meaning of me starving to death as a result of my career choices. Other than my father’s wisdom, nobody bothered to highlight the importance of being able to find gainful employment with my degree.

At the same time, our industry leaders need a longer-term approach to education and professional agility. People aren’t commodities; they’re assets. Investments that incrementally provide workers with the skills to engage the changing industrial environment may actually prove economically preferable to firing and hiring repeatedly.

Alabama’s economy needs all the help it can get. Finding ways to increasingly match our education with our industrial needs is a good place to start.

Should we make it easier for people with criminal records to find work?

August 22, 2015, 10:01 AM

From the Deseret News:

While ban the box laws are designed to encourage employers to keep an open mind when evaluating people with criminal records, there is no evidence that it actually leads to more hires, according to Eli Lehrer, president of R Street Institute, a Washington, D.C.-based libertarian think tank that advocates for free markets and limited government.

“If there were evidence to support ‘ban the box’ I would get behind it,” said Lehrer. “But we are still waiting for that gold standard study. There’s no proof it works.”

August: Season of rules

August 21, 2015, 11:59 AM

From Politico:

Though 15 major rules in a month might seem like a lot, in fact the bigger problem with rulemaking right now is just how far behind regulators are in producing rules mandated by Congress, as a recent report from the R Street Institute points out. The problem then is not regulators trying to sneak rules in when Congress isn’t looking but an inability to produce rules at all.

Courts need a better appreciation of the principles of depreciation

August 21, 2015, 9:50 AM

Post-World War II, the United States experienced a simultaneous boom of babies and buildings. To keep pace with the need for new development, homes literally could be ordered out of a Sears catalogue.

The true expense of such homes was not found in the cost of the building supplies, but rather in the labor necessary to construct the structure. A Sears home available for $1,000 would, with the cost of construction figured in, run closer to $3,000.

That distinction, between the cost of materials and the cost of labor, is at the core of a current controversy about how replacement costs should be calculated.

Replacement-cost calculations are utterly uninteresting to most people, right up until they experience a loss. At that point, those uninterested people are surprised to learn that, if their homeowners insurance policy spells out that they are entitled only to the “actual cash value” of certain features of their home (a roof, a deck, etc.), then damage claims will subtract from the replacement costs any depreciation stemming from the wear and tear the home would have experienced over time.

In 2002, the Oklahoma Supreme Court was prompted by a U.S. District Court to answer this question: “In determining actual cash value, using the replacement costs less depreciation method, may labor costs be depreciated?” That is, when determining the amount to be paid out to satisfy a claim, is it appropriate to distinguish between the materials, which obviously depreciate over time, and the labor use in construction?

The Oklahoma court ruled against such distinctions because “labor is a part of the whole product, it is included in the depreciation of the roof.” At bottom, insurance is designed to return claimants to their pre-loss condition. If a tree lands on a homeowner’s seriously dilapidated porch, the value of that porch (which might effectively be nothing) is all the homeowner is entitled to.

But in the case of, for instance, the owner of the Sears home, the materials and labor were purchased separately. This can be cause for confusion. Recently, courts and even some departments of insurance have embraced that confusion and departed from the Oklahoma court’s reasoning. The counter argument – elucidated earlier this year by a U.S. District Court in Kentucky – holds that while construction materials age, labor does not:

Labor is not subject to wear and tear. Indeed, the cost of labor to install a new garage would be the same as installing a garage with 10 year old materials. In other words, depreciated labor costs would result in under indemnification. As the insurance contract is one for indemnity, depreciating the cost of labor violates the contract.

Of course, it’s true that labor is not subject to wear and tear. But that obfuscates the larger point, which is that any produced item is composed of a mixture of labor and material. It is that item which depreciates, not its component parts, which ultimately are indistinguishable.

The Oklahoma Supreme Court’s reasoning rests soundly on a theory of property not unlike that of 17th century British philosopher John Locke. A home’s roof is not just the materials needed to create it or the labor for its construction. The roof only exists when the materials and labor are mixed.

Were an insurance policy drafted to cover labor and materials separately, it would be reasonable for a claimant to assume that labor would not depreciate. But in virtually all cases, claimants insure their structure as a whole. Put another way, the relative component parts of labor and materials aren’t relevant to the depreciation of an item itself.

A practical consequences of the Kentucky court’s decision to not allow for depreciation of labor in “actual cash value” policies will be that like items are treated differently. For instance, it is possible that one contractor who got a good deal on materials, but overcharged for labor, would construct a deck that is deemed more valuable than another contractor who paid market price for materials and a regular price for labor, even if they were the same deck and depreciated at the same rate. Again, the value of the item itself is determinative of the value of a claim because the policy, in all likelihood, covers the item itself.

That courts are choosing to ignore the distinction between the antecedent conditions of an item and the item itself is troubling. That the colloquial wisdom upon which such decisions are being made is creeping into quasi-legislative determinations of state insurance departments is more problematic. Depreciation of labor is an affordability mechanism by any other name. Prohibiting it will hurt the very insureds that insurance departments are attempting to assist.

This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

John Kasich wants to abolish teachers’ lounges instead of the DOE

August 21, 2015, 7:55 AM

John Kasich has had a difficult time differentiating himself from the Republican field. Not only are there other, more recognizable moderates, but John Kasich is basically the kind of entity that ghosts in and out of things like debates. He never says anything really right and he never says anything really wrong. In a sense, he’s like the State of Ohio: it’s there. You’ll visit it if you have to drive through it, but you wouldn’t go out of your way.

Yesterday, though, at a New Hampshire “Education Summit” for “The 74 Million” education advocacy group, Kasich came up with a novel and unconventional idea to address problems with education in this country. While other candidates like Bush, Jindal, Christie and Fiorina explained their comprehensive plans to address the need for education reform, John Kasich wants to abolish the teachers’ lounge – because we can’t have people fraternizing on work time.

While some Republicans have called for abolishing the federal Education Department, Ohio Gov. John Kasich on Wednesday set his sights on a smaller target: the teachers’ lounge.

At an education forum here featuring several GOP presidential contenders, Kasich offered many kind words for teachers and teachers unions, but he also chastised their efforts to block changes in some parts of his state. And they spend too much time scaring teachers about their jobs.

“There’s a constant negative … They’re going to take your benefits. They’re going to take your pay,” Kasich told former CNN anchor Campbell Brown, whose advocacy news site “The 74 million” hosted the forum along with the American Federation for Children…

“If I were, not president, if I were king in America, I would abolish all teachers’ lounges where they sit together and worry about ‘woe is us’,” Kasich told Brown.

Frankly, if I were king in America, I’d demand that our teachers’ lounges have an endless supply of wine and chocolate, maybe massage tables. Being a teacher is a tough job: you’re an instructor, a caretaker and a substitute parent. And sure, teachers, like any group of colleagues, will gather together to discuss what sucks about what they do. It doesn’t seem like a suuuuuuuper effective way to bust a union, however. After all, you can’t stop teachers from meeting in hallways, after work in restaurants or over a bottle of teacher-affordable alcohol in their off hours.

Kasich does seem to want to eliminate something though, since not eliminating anything puts him far out of line with his peers, most of whom suggest that the primary target for elimination actually ought to be the Department of Education itself. Kasich chastised his fellow conference-goers for wanting to take out an entire governmental authority, even though Kasich himself wanted to cut off the DOE back when he was chair of the House Budget Committee. And unfortunately for Kasich, the Internet is forever.

So what happened? Kasich says his views on certain issues have “evolved,” the standard answer most candidates give when faced with a flip-flop. But it might have more to do with his support of teachers unions in his home state, something he can’t shake. Even yesterday, as he polished up his answer to the New Hampshire forum, the Ohio Teachers Union was singing Kasich’s praises, with one member of the Ohio Federation of Teachers even going so far as to say that if we had to have a Republican president, she’d prefer it be John Kasich.

He must think taking away a teacher lunchroom is a decent compromise position. Or something.

Landmark study finds e-cigs 95% safer than smoking

August 20, 2015, 10:44 AM

In landmark news, a systematic review of available literature by Public Health England on the health and safety implications of electronic cigarettes concludes that their use is about 95 percent safer than smoking.

The authors conclude that smokers who have tried other methods of quitting without success could be encouraged to switch to e-cigarettes. In addition to encouraging their use as a cessation tool, encouraging switching could help reduce smoking-related disease, death and health inequalities.

The authors also conclude there is no evidence that young people’s experimentation with e-cigarettes has led to increased smoking in this group.

There is still a great deal to be learned about e-cigarettes. But these findings are crucial, given the rise of inaccurate perceptions that e-cigarettes are as harmful as tobacco cigarettes. Adopting this advice could have a profound public health impact for the 42 million Americans who still smoke.

This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

Florida insurance chief calls on NFIP to hand over its data

August 20, 2015, 7:00 AM

In his ongoing efforts to foster a competitive private flood insurance market in Florida, state Sen. Jeff Brandes, R-St. Petersburg, recently requested help from the state’s Office of Insurance Regulation to obtain data from the federal government that justify the rates the National Flood Insurance Program charges Floridians for their for flood insurance coverage.

The information – held by the NFIP’s overseer, the Federal Emergency Management Agency – would include loss-projection models, actuarial figures and actual loss-history data that private companies looking to write flood coverage in Florida could use for their rate-making

Florida Insurance Commissioner Kevin McCarty replied that his office would request the information. Most notable in his reply, however, was his statement that the NFIP’s rates would be considered “unfairly discriminatory” under Florida law, given the lack of actuarial information available, coupled with the federal program’s admitted rating system based largely on averaging multiple zones together with a “theoretical determination of the probability of flooding.”

Merely averaging together different risks and charging one rate would force those at a lower risk of loss to pay more than they otherwise should, which Florida law considers “unfairly discriminatory.” A Florida insurance company doing this would be sanctioned by regulators; however, because the NFIP is a federal program, rather than an admitted insurance carrier, the state has no oversight over it.

In 2014, Brandes and Rep. Larry Ahern, R-Seminole, sponsored S.B, 542, later passed by the Legislature, authorizing private carriers to offer flood coverage within Florida’s insurance regulatory framework. Earlier this year, the legislature passed S.B. 1094 – also sponsored by Brandes and Ahern – which increases coverage options for flood insurance beyond the NFIP.

However, given that the NFIP has been the sole provider of flood insurance, only they hold the historical-loss data and other information private companies need to set their rates.

FEMA has been reluctant to release its loss history data from properties covered by the NFIP, citing “privacy concerns.” It’s understandable that NFIP policyholders may not want their claims history made public. However, this is, ultimately, public data that can and should be released to private companies and/or to state insurance regulators. Personally identifiable information can be safeguarded with nondisclosure agreements and stiff penalties for violators. Many private entities exchange confidential data with government agencies every day, and the NFIP should be no different.

Ultimately, it is in the interests of consumers, policyholders and taxpayers alike to shift as many policies away from the NFIP and onto the private market. Doing so will give consumers more coverage options, decrease rates and save taxpayers from having to bail out the NFIP every time there is a major flood event.

This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

Former CRS researcher calls for public access

August 19, 2015, 11:00 AM

From the Project on Government Oversight:

We reached out to Kevin Kosar, former CRS researcher of 11 years, to talk about the concerns we heard from Hill staffers regarding making formal reports public. Kosar serves as director of the Governance Project which focuses on Congress as an institution at the R Street Institute.

Concern #1: CRS reports are only meant for Congress, not the public.

Being called Congressional Research Service seems to imply an exclusivity to the formal reports, as if they are only for the eyes of Congress. Perhaps publicly releasing them would create problems or misunderstandings that compel Members of Congress to protect the reports from disclosure, even when the information isn’t classified or sensitive.

Does Congress already release CRS reports to the public? Do CRS researchers expect that their reports will make it to the public?

Kosar: Yes, all the time, and Congress has done so for decades. Consider this 1979 CRS annual report listing dozens of reports that Congress either published or released as committee prints. Thousands of CRS reports are scattered over various government Internet sites, including both House.gov and Senate.gov. CRS does not own the work it produces; Congress owns it, and anyone who works for Congress can release any report he or she pleases. The Senate’s Virtual Reference Desk has a bunch of reports on it, which is posted to help the public better understand how Congress works. So, for example, there are CRS reports on vetoes and legislative process.

The problem, obviously, is that reports are released to the public ad hoc. Some reports appear on the Internet quickly, but others take months or years to dribble out. Meanwhile, DC insiders can easily find the reports they need, or pay for a subscription service like CQ-Roll Call to get the reports. The rest of the public has to cast about thousands of websites in hopes of locating a report, which may well not be the latest and most up-to-date copy of the report. It is an inequitable situation.

Finally, the Internet has been around for 20 years, and these days everyone at CRS knows that their reports will eventually find their way out to the public. Thus, when a CRS expert wants to speak in utter confidence to Congress, they do it on the phone, in person, or via a confidential memorandum.

Concern #2: CRS researchers are not ready to be public persons, scrutinized for their work.

Decision-makers may be hesitant to make CRS reports public because they want to protect the people who work on them. Making these reports public could thrust the authors into the public sphere.

Would researchers be prepared for public attribution for their work? Would they want the attention?

Kosar: One of the allures of working at CRS is that your name goes on the report. CRS is an individualistic organization—the researcher aims to become known as the go-to person on a subject. To achieve that means putting one’s name on the reports. That’s how congressional staffers locate the expert they want, by seeing a name on a report. Additionally, getting promoted to higher grades and pay levels at CRS is heavily dependent on the work one does for Congress. You the CRS expert want Congress to ask you lots of questions, to request you to testify before Congress, and help work on legislation. I should also note that CRS’s promotion guidelines speak of the value of an analyst becoming a “nationally recognized expert” in a subject. When academics and other researchers outside Congress are citing a CRS analyst’s work, that testifies to its quality. And it is also really nice as a CRS analyst to have an academic contact you and say, “Hey, I saw your report on X— it was really good. Would you be interested in helping me with an academic study or coming to present a paper at a research conference?” It is good for CRS researchers to be active members of scholarly communities.

Concern #3: If reports are made public, CRS researchers will get negative attention and complaints that will make their work too difficult.

After all, if their names are on these reports, researchers might face some sort of harassment. Even if information is unclassified and without any sort of agenda, won’t researchers focusing on sensitive topics need to be protected? Why would they want to be associated with what they write?

Might researchers get in trouble for something they say? Or receive negative attention that interferes with their jobs?

Kosar: Everything written by CRS goes through four different stages of review. The reports are scrubbed of anything that might offend anyone. Moreover, they do not make recommendations or push policies. They lay out the facts and the options—which is not something that upsets many people.

In my 11 years there, I never heard of any CRS analyst or reference expert being stalked or threatened for writing a report. I mean, who beats up think-tank experts? Nobody. Do CRS analysts sometimes get grouchy emails from the public or activists? Sure—and the practice is to delete them and go on with one’s day.

Concern #4: Putting CRS’s formal reports online would change the content that CRS generates.

It may be one thing to be read by Hill staffers, but allowing the entire country to access the reports sounds intimidating and could change the content and format of the materials to make them more interesting to the broader audience. Soon CRS analysts may feel pressured to create something akin to clickbait.

If analysts are writing for a public audience, won’t they change the content of their work?

Kosar: No. This speculation is wrong on a few counts. First, the basic premise of the contention is odd. Members of Congress and congressional staff are members of the public, so it’s not as if we are talking about two different tribes of humans with completely different understandings of government. In fact, a significant percentage of legislators are brand new to Congress and benefit from reading primers that introduce them to complex governance topics. That the public also benefits from reading these reports is an extra benefit.

Second, CRS staff are paid by Congress and work for the Congressional Research Service. So, they are unflinchingly loyal and dedicated to writing reports and studies that appeal to Congress. Add to that the fact that CRS’s promotion policy does not account for mentions in blogs or media sites. That’s not part of the promotion process. Furthermore, CRS has internal policies that ensure that reports are not being written about topics that are not of interest to Congress. The agency also tracks congressional downloads of its products so as to better understand what Congress wants and does not want. CRS’s focus, then, is laser-like on the needs of Congress and nothing will alter the basic incentive structure that keeps its focus on Congress’s wants.

Bridging the separation of powers

August 19, 2015, 7:00 AM

The separation of powers is a hallmark of democratic systems. Power is divided among different branches or units of government. The legislature legislates, the executive executes and the judiciary judges. Even in parliamentary systems, where the head of state is a monarch or subservient to the parliament, there tends to be a functional division between courts, agencies and lawmakers. For better or worse, this division affects the popular view of the relationship between public administrators and legislators.

Separation of powers is a concept that cropped up in response to 17th century concerns about absolutist government. Thomas Hobbes argued that citizens had to obey their government no matter what it did. To disobey, he wrote in Leviathan, would plunge humanity back into a “perpetual war of every man against his neighbor,” which is the very state of nature that mankind sought to escape through the creation of government.

However, later theorists drew a different conclusion. Erecting a powerful government created a peril at least as great as the state of nature. Thinkers such as John Locke and Baron Montesquieu argued that despotic government might be avoided if government power was placed in a different set of hands. James Madison, who had a major role in producing the U.S. Constitution, justified the separation of powers thus:

In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

Marvelous as the separation-of-powers theory is, it comes with implementation costs. Separating the branches encourages rivalry and often contemptuous attitude, particularly between the legislative and executive branches. Legislators view themselves as the bureaucrats’ bosses and guardians of the public interest. Administrators and civil servants see themselves as apolitical experts who take oaths to dutifully carry out the law. Legislators often disdain bureaucrats, accusing them of being slow, stubborn and unaccountable. Civil servants and administrators, for their part, look upon elected officials as politicos and amateurs at governance. To keep a relative peace, the two sides take the view that lawmakers shall not meddle in administration and bureaucrats shall advocate policy. “Never the twain shall meet.”

Of course, governance suffers when legislators and administrators keep one another at arm’s length. Consider, for example, the findings of a new study on federal regulation. Congress frequently writes laws directing agencies to issue rules by a particular deadline. Over the course of 20 years, federal agencies missed half of these 1,400 deadlines. That is an eye-popping finding, but is it any wonder? Bureaucrats rarely assist Congress when it is writing laws, so legislators have little sense of what is a reasonable deadline. The Patient Protection and Affordable Care Act (“Obamacare”) had some deadlines that were a mere 90 days after enactment of the law.

The quality of regulation suffers from too strict an adherence to the separation of powers. Congress has no formal role in the development of regulations. When agencies issue final rules, no congressional committee reviews them as a matter of course. Nor does our national legislature vote on regulations, as many state assemblies do. Congress does not even have a formal system for tracking whether its demands for new rules have been fulfilled.

At the federal level, the legislative and executive branches are almost entirely estranged. The president produces a budget, which Congress typically ignores in favor of producing its own. Congress passes a law and then leaves it to agencies to make the rubber hit the road. Each week, the president makes policy by issuing memoranda and the like. If Congress views the president’s actions as contrary to law, then the third branch will referee the dispute.

At a recent gathering of women state legislators, Teri Quimby, who has worked for both Michigan’s legislative and executive branches, suggested elected officials should take field trips to bureaucracies. Doing so would enable lawmakers to better comprehend agencies’ capacity to achieve whatever goals are legislated.

It is a fine idea, but I would go further. More coordination between the branches might reduce the number of policy errors and make the inter-branch relationship less inimical. Bridging the separation between those who write the laws and those who implement them will improve governance. The two rivals—the elected officials with their fresh ideas and sense of the public’s needs and the long-serving, experienced agency wonks—need to work together.

Goodwill is not enough. Bridging the separation of power will require developing processes and forums that force inter-branch collaboration in policymaking. The REINS Act, which the House of Representatives recently passed, would force Congress to vote on certain regulations before they take effect. Congress and the president also might devise a “Kill List” process, whereby they could jointly identify failed programs for elimination.

Surely, there are more ideas out there. I invite readers to send them to me.