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67 organizations and companies to Congress: Support the Email Privacy Act

April 26, 2016, 2:03 PM

Dear Representative,

We, the undersigned civil society organizations, companies and trade associations, write to express our support for the Email Privacy Act (H.R. 699). The Act updates the Electronic Communications Privacy Act (ECPA), the law that sets standards for government access to private internet communications, to reflect internet users’ reasonable expectations of privacy with respect to emails, texts, notes, photos, and other sensitive information stored in “the cloud.”

The bill would end ECPA’s arbitrary “180-day rule,” which permits email communications to be obtained without a warrant after 180 days. The Act would also reject the Department of Justice interpretation of ECPA that the act of opening an email removes it from warrant protection. These reforms would ratify the Sixth Circuit’s decision in U.S. v. Warshak, which held that email content is protected by the Fourth Amendment and that law enforcement access requires a probable cause warrant. Moreover, the changes reflect current practices: DOJ and FBI policies already require law enforcement officials seeking content to obtain a search warrant, and many service providers will not relinquish their users’ content without one.

The bill reported from committee does not achieve all of the reforms we had hoped for. Indeed, it removes key provisions of the proposed bill, such as the section requiring notice from the government to the customer when a warrant is served, which are necessary to protect users. However, it does impose a warrant-for-content rule with limited exceptions. We are particularly pleased that the bill does not carve out civil agencies from the warrant requirement, which would have expanded government surveillance power and undermined the very purpose of the bill.

For these reasons, we support H.R.699 and urge its immediate passage without any amendments that would weaken the protections afforded by the bill.



ACT | The App Association


American Civil Liberties Union

American Library Association

American Association of Law Libraries

Americans for Tax Reform

Application Developers Alliance

Association of Research Libraries

Automattic Inc.

Brennan Center for Justice

BSA | The Software Alliance

Center for Democracy & Technology

Center for Financial Privacy and Human Rights

Cisco Systems

Competitive Enterprise Institute


Computer & Communications Industry Association

The Constitution Project

Consumer Action

Consumer Technology Association

Council for Citizens Against Government Waste

Data Foundry, Inc.

Deluxe Corp

Digital Liberty

Direct Marketing Association

Distributed Computing Industry Association (DCIA)


Electronic Frontier Foundation






Federation of Genealogical Societies

Future of Privacy Forum

Golden Frog, GmbH



Hewlett Packard Enterprise

HP Inc.

Information Technology and Innovation Foundation

Information Technology Industry Council


Institute for Policy Innovation

Internet Association

Internet Infrastructure Coalition – I2Coalition

The Jeffersonian Project

Less Government




New America’s Open Technology Institute

Newspaper Association of America

Niskanen Center


R Street Institute

Reform Government Surveillance

Software & Information Industry Association


Taxpayers Protection Alliance




U.S. Chamber of Commerce

Venture Politics



Michael W. Carroll, American University Washington College of Law*

James X. Dempsey, University of California, Berkeley*

Paul Rosenzweig, Visiting Fellow at the Heritage Foundation*

* For identification only

R Street Institute urges Congress to vote yes on H.R. 2901, the Flood Insurance Market Parity and Modernization Act of 2015

April 26, 2016, 12:26 PM

Dear Representative,

The R Street Institute urges all members to vote yes on H.R. 2901, the Flood Insurance Market Parity and Modernization Act of 2015, sponsored by Reps. Dennis Ross and Patrick Murphy. The legislation is a necessary follow-up to the Biggert-Waters Flood Insurance Reform Act of 2012, as it clarifies Congress’ intent to encourage the development of a private market in flood-insurance products to compete with the taxpayer-subsidized policies offered through the National Flood Insurance Program.

The NFIP is more than $20 billion in debt to U.S. taxpayers. Shifting the risk for the program’s $1.1 trillion of total property exposure requires a thriving private market, which insurers and reinsurers are willing to provide. However, the current statutory language unnecessarily limits the available admitted policies and stymies development of acceptable options in the private sector.

H.R. 2901 defers to the states’ expertise in insurance regulation to develop appropriate guidelines for qualifying policies, including those written through the excess and surplus lines markets. Additionally, it ensures that any period in which a property is covered either by an NFIP policy or a private policy is to be considered “continuous coverage.”

These commonsense adjustments and clarifications represent important steps toward flood insurance reform. It’s long past time to put the NFIP on a fiscally sound trajectory and provide those living in flood-prone properties more choice. We urge all members to support this bill.

R Street Institute

Rideshare rules could cost Austin coveted ‘Smart City’ designation

April 26, 2016, 7:30 AM

Austinites will vote next week on how to regulate ridesharing companies in the city (early voting began Monday). On the ballot is Proposition 1, which would continue the ridesharing regulations currently in place and pre-empt a new pending set of rules approved by the City Council late last year.

Uber and Lyft (the two main ridesharing companies) consider the new regulations unjustifiably burdensome, and have announced that they will suspend operations in the city unless Proposition 1 passes (I’ve written about some of the issues with the new regulations here).

Aside from the specifics of the different regulations, many see the battle over Proposition 1 as symbolic of Austin’s openness to new technologies and business models in general. The latest voice to weigh in is the U.S. Chamber of Commerce, which has suggested that forcing ridesharing out of the city could undermine Austin’s bid to win the Smart City Challenge:

In a letter to U.S. Transportation Secretary Anthony Foxx, the U.S. Chamber of Commerce writes, if Uber and Lyft leave Austin that will be a setback for the Smart City approach. The ridesharing companies have threatened to leave if voters support an ordinance to fingerprint drivers as a background check.

Austin was one of seven cities selected as finalists for the Smart City Challenge. Victory means not just bragging rights, but also $50 million.

Whether the failure of Proposition 1 would mean Austin will lose the Smart City Challenge is unclear. But it would mean an end to Uber and Lyft in Austin. Given the (often lifesaving) value that ridesharing brings to cities like Austin – that, in and of itself, is pretty significant.

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

Lehrer at the Aleph Institute’s ASKS Summit

April 26, 2016, 7:00 AM

R Street President Eli Lehrer took part recently in the Alternative Sentencing Key Stakeholder (ASKS) Summit, hosted in Washington by the Aleph Institute. Eli moderated a panel March 8, the second day of the summit, on whether federal criminal justice reform legislation would pass and whether it would make a difference. Panelists included John Malcolm of the Heritage Foundation, Jesselyn McCurdy of the American Civil Liberties Union and Nicole Austin-Hillery of the Brennan Center for Justice. Video of the full panel is embedded below.

Day 2 Will Federal Criminal Justice Reform Pass v11 from The Aleph Institute on Vimeo.

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

Amicus brief for Impression Products v. Lexmark International

April 25, 2016, 1:09 PM

According to the patent exhaustion doctrine, once a patentee sells an article embodying the patented invention, “the patentee may not thereafter, by virtue of his patent, control the use or disposition of the article.” United States v. Univis Lens Co., 316 U.S. 241, 250 (1942). Yet the Court of Appeals approved of two mechanisms by which a patentee may sell a patented article and yet still control use or disposition of that article. The questions presented are whether those mechanisms are tenable under the exhaustion doctrine. Specifically:

1. Whether a “conditional sale” that transfers title to the patented item while specifying post-sale restrictions on the article’s use or resale avoids application of the patent exhaustion doctrine and therefor permits the enforcement of such post-sale restrictions through the patent law’s infringement remedy.

2. Whether, in light of this Court’s holding in Kirtsaeng v. John Wiley & Sons, Inc. that the common law doctrine barring restraints on alienation that is the basis of the exhaustion doctrine “makes no geographical distinctions,” 133 S. Ct. 1351, 1363 (2013), a sale of a patented article—authorized by the U.S. patentee—that takes place outside of the United States exhausts the U.S. patent rights in that article.

The full amicus brief is attached above. 

Betsy’s page: cruising the web

April 25, 2016, 10:32 AM

From Betsy’s Page

Eli Lehrer details some of the reasons why Harriet Tubman is such an admirable role model. In addition to her work leading 300 slaves to freedom on the Underground Railroad, she was also a brave spy during the Civil War.

10 rising stars in the energy and environment world

April 25, 2016, 10:30 AM

From The Hill

Catrina Rorke, director of energy policy, R Street Institute

Rorke has become a champion of a controversial idea: that taxing carbon dioxide emissions is a conservative solution to climate change.

It’s a challenging case to make, because most Republican policymakers dispute that humans significantly contribute to climate change. But Rorke sees a carbon tax as one of the few palatable options for Republicans who want action to mitigate global warming.


The idea of a public good

April 25, 2016, 9:18 AM

One of the key concepts needed to better understand the economic argument for environmental protection is the idea of a public good.

When economists talk about public goods, they don’t mean just anything that’s good for the public, such as a school or hospital. Rather, to qualify as a public good, a thing must be nonexcludable (meaning it can’t easily be provided to some, but not others) and nonrivalrous (meaning that once the good is provided to some, it doesn’t really cost more to provide it to others).

One classic example of a public good is national defense. The existence of the military protects a sovereign nation against the threat of invasion. However, it’s not possible for the military to protect my neighbor from the invasion or attack without also protecting me. So national defense is nonexcludable. And, there’s really no incremental cost to protecting both of us compared to costs to protect my neighbor alone. Thus national defense is nonrivalrous.

The not so good thing about public goods is that the market doesn’t easily produce them. The fact that a public good is nonexcludable means I’d continue to receive its benefits even if I don’t pay for it.

From a self-interest point of view, I’m better off letting others bear the cost, while I “free ride” on their contributions. If everyone acts in his or her own interest, however, no one would be willing to pay for the public good at all, and the public good wouldn’t exist. This problem is known as the public goods problem (economists are nothing if not creative) or, sometimes, as the “free rider” problem.

One traditional solution to this problem is government action.

People don’t get to choose whether they will contribute toward national defense; they have to pay their taxes or they risk jail time. Economists like Elinor Ostrom have also written about ways that groups have used social norms and other nonstate mechanisms to overcome the public goods problem. In some cases, more carefully or creatively defined property rights can alleviate the public goods problem by giving a single individual or group ownership of the asset.

Many environmental problems are best understood as public goods problems. Clean air, for example, looks like a typical public good; it’s hard for me to have clean air without my neighbors having it too, and the cost of measures to improve air quality doesn’t change if he moves away and his house remains vacant.

Another example of an environmental public good is coastal wetlands. Leaving aside the strictly environmental benefits they provide, wetlands also serve as a valuable form of protection against flooding. By absorbing storm surge, wetlands can reduce the damage from flooding and windstorms, sometimes significantly. A recent estimate puts the flood-protection benefit from wetlands at $23 billion a year. Given the vulnerability of Texas’s coast to tropical storms, wetlands are vitally important to the state.

But, while wetlands can provide large economic benefits, these benefits meet the criteria for a public goods problem. A wetland that protects my house from flood damage is probably going to do the same for the other houses in my neighborhood, and the cost of maintaining the wetland typically doesn’t go up if a new house is built.

For that reason, public action to preserve wetlands (such as the recent decisions to protect wetlands using a portion of the proceeds from fines collected from BP as a result of the Deepwater Horizon Spill) can be economically beneficial to society as a whole.

Build a way out of high housing prices

April 25, 2016, 8:25 AM

If there were 30 loaves of bread and 50 people who wanted them, you can guess what would happen. Prices for those loaves would rise, from, maybe, $2, to $3 or even $10, depending on how desperate people were to make sandwiches. Those prices wouldn’t fall until some buyers switched to tortillas or bakers started baking more bread.

That concept is so simple it’s almost embarrassing to point it out. Yet when policymakers talk about other products, they lose sight of these basics. The housing market jumps to mind. Prices throughout California are still going up. Affordability is down.

I know well-paid professionals in some coastal cities who have basically given up on the dream of homeownership given the typical $1-million-plus price tag for a tiny bungalow. A modest apartment in San Francisco can easily set you back $4,000 a month. Orange County isn’t much better.

For years, people have retorted: “That’s the price for living near the beach.” Actually, it’s the price we pay because those who already live in such lovely places lobby city councils, boards of supervisors and the state Legislature to put the kibosh on new construction, supposedly to stop congestion. A few minutes’ drive from the Golden Gate Bridge, one finds endless, lovely countryside – all tightly growth-controlled to keep out young families and other riff-raff.

In California, it’s always fair game to blame politicians. Over the years, they’ve certainly passed a lot of laws that make it tough to build new houses. As they dream up far-reaching new programs on myriad subject matters (e.g., the Secure Choice retirement plan for the private sector), they steadfastly avoid dealing with major problems where they could effect change.

“The lack of housing supply fuels headlines that reveal the state’s housing prices at their starkest,” Liam Dillon wrote in the Los Angeles Times. “It could explain why doctors and others making as much as $250,000 a year are struggling to find homes in Palo Alto.” Prices in California are double the national average, Dillon writes, yet “legislators have shied away from tackling broad efforts to increase housing supply.”

Of course, state legislators aren’t the only ones to blame. City councils and county boards of supervisors love to control housing growth. But often, they merely succumb to public pressure. The Register reported this past week that a judge ordered Huntington Beach to “immediately comply” with a previous ruling requiring it to permit more low-income units as part of a high-density housing project.

The city, which has vowed to appeal, has been at odds with housing advocates “since last May, when the council, reacting to public outcry, eliminated more than 2,400 units of potential high-density housing from plans along portions of Beach and Edinger,” according to the report. Focus on the phrase, “reacting to public outcry.” Try to find any development project that doesn’t spark a backlash from neighbors, environmentalists and slow-growth activists.

Affordable-housing activists miss the big picture, of course. They believe the solution to the housing-affordability crisis is to subsidize (or mandate) the development of below-market-price “affordable” units. That’s a drop in the bucket; traditionally, “affordable” housing is best found in the “used” housing market. There’s no constitutional right to a subsidized new condo. They are right that localities need to permit more infill housing, but they need to green-light every type of new housing. If you feed supply into the system, it will help at every price point.

Vox’s Matthew Yglesias reported that a San Francisco supervisor “is forcing the city’s chief economist to conduct an unprecedented economic impact study of the city’s various land-use and development rules.” There’s this from the Santa Rosa Press Democrat: “Healdsburg is likely to create more affordable housing if it repeals a voter-approved growth management ordinance that restricts the number of new homes to an average of 30 per year.”

Maybe the local pendulum is swinging back in a more sensible direction, even if the Legislature hasn’t gotten the memo. The problem isn’t a secret.

A report last month by the state Legislative Analyst’s Office came to this conclusion: “[C]ommunity resistance to housing, environmental policies, lack of fiscal incentives for local governments to approve housing, and limited land constrains new housing construction. A shortage of housing along California’s coast means households wishing to live there compete for limited housing. This competition bids up home prices and rents.”

It’s simple stuff. The problem won’t be fixed until people stop coming here, stop having children or the government finally just lets builders build more houses.

Nonprofits urge high court to hear patent exhaustion suit

April 22, 2016, 5:13 PM

From Law360

EFF, along with Public Knowledge and the R Street Institute, said the Federal Circuit’s decision in Lexmark International Inc.’s infringement suit against Impression, a printer cartridge refurbisher and reseller, has created loopholes in traditional ideas regarding ownership.

California GOP blathers about freedom, but mostly backs ‘secrecy lobby’

April 22, 2016, 5:12 PM

From Reason

In one of my favorite Far Side comic strips, the first panel offers what people typically say to dogs: “OK Ginger I’ve had it. You stay out of the garbage! Understand Ginger?” The next panel translates what dogs actually hear: “Blah blah Ginger, blah blah blah Ginger.”

I think of that comic sometimes when I’m stuck on the floor of the state Assembly or Senate and hear a Republican legislator giving a speech about “freedom.” All I hear is, “Blah blah Constitution, blah, blah limited-government.” My comprehension skills are better than the average mutt’s, but I’m trained to know blather when I hear it.

Read more…

R Street Institute welcomes Uber settlements in California, Massachusetts

April 22, 2016, 11:12 AM

WASHINGTON (April 22, 2016) – Concluding a legal battle that began last year, ridesharing company Uber announced it will pay $100 million to settle two class-action lawsuits initiated by drivers who sought to be classified as employees, rather than as independent contractors.

Eli Lehrer, president of the R Street Institute, reacted to the announcement:

“While it would have been far better for the government to simply leave an innovative business model alone and empower workers to make their own decisions, this is still a welcome development in that it preserves the basics of an important, innovative business model,” Lehrer said.

The classification of its drivers as independent contractors has been integral to Uber’s rapid growth, as well as to its famed ability to offer its drivers flexibility in creating their own schedules. By applying a more traditional model to Uber, courts and regulators would threaten that approach, since classifying every driver as an employee would legally entitle drivers to minimum wage, overtime pay, unemployment compensation and more. Such a dramatic increase in per-employee costs would undoubtedly lead to the necessary establishment of limitations on when and how much drivers work for the company.

While the settlements are a welcome development, in that they avert a threat to the emerging ridesharing business model, the situation highlights the need for state and federal lawmakers to take decisive action to provide clarity. Labor markets need sensible regulatory policies that finally put an end to the continuous regulatory and legal challenges that have plagued startups like Uber and Lyft in their formative years.

In its annual Ridescore project, which scores 50 of America’s largest cities on how friendly their regulatory frameworks are toward ridesharing and other for-hire transportation services, R Street noted a general trend of improvement over the past year. But even as states like West Virginia, Mississippi and South Dakota have proactively passed legislation classifying most ridesharing drivers as independent contractors, labor-classification issues were seen as the “next wave of TNC policy challenges, as the initial matters of legal status, insurance and background checks approach complete resolution.”

“The time has come for lawmakers to begin sketching a policy framework that provides workers and firms much greater flexibility than exists in today’s rigid, old-economy structures,” noted the report’s authors. “Regulatory regimes that divide labor only into traditional salaried workers and entirely independent contractors do not suit the modern sharing economy.”

Nina: Not racist, just terrible

April 22, 2016, 11:03 AM

Among all the many problems that bedevil Nina, the Nina Simone biopic that finally comes to theatres this Friday nearly two years after making its debut at the 2014 Cannes Film Festival, the natural pigmentation of star Zoe Saldana does not feature among the 10 or 20 or 30 biggest.

Of course, you wouldn’t know that from the news coverage around the film, which has focused equally on the epic shade thrown Saldana’s way by Simone’s estate via Twitter (“Cool story but please take Nina’s name out your mouth. For the rest of your life.”) and the filmmakers’ decision to use makeup to darken Saldana’s relatively light-skinned complexion to more closely match the late singer, which has raised the usual concerns about “blackface.”

It’s true that Saldana bears not the slightest physical resemblance to Simone, even with the cosmetic enhancements and the Jan Brady fright wig. Where the film’s makeup crew actually fall most short is in their utter failure to allow any in the audience to suspend disbelief, even momentarily, that this beautiful 33-year-old actress (at the time of filming) could convincingly portray a 62-year-old alcoholic manic depressive.

But in truth, when all is said and done, Saldana is almost certainly the best thing about this muddled mess of a picture. Her performance, while displaying more ham than an Easter dinner, clearly demonstrates that she studied Simone’s staccato mannerisms and haughty affectations pretty intensely. She even acquits herself well behind the microphone, doing her own singing and making the wise choice not to strive for a Simone impression in that arena.

Given a career and a life as big and intense and all-too-often tragic as Nina Simone’s – from 1959’s I Loves You, Porgy through her political radicalization and support for black separatism through her decision, in 1974, to leave the United States behind forever – any biopic would have difficulty finding the appropriate focus. First-time director Cynthia Mort, previously best known as a writer for 1990s sitcoms, chooses as her window the Nina Simone of 1995 — embittered, paranoid and ready to draw a gun at the slightest provocation.

Nina sees its protagonist become enamored with a handsome young psychiatric nurse, played by Selma’s David Oyelowo, who is equally taken with her, albeit in a purely platonic way. As fate would have it, Oyelowo’s Clifton Henderson goes on to become Simone’s personal assistant and, later, her manager, guiding her toward a planned comeback/farewell concert in Central Park, even as he must endure her personal instability, unwelcome sexual harassment and homophobic slurs. In this way, the plot positions Henderson as Joe Gillis to Simone’s Gloria Swanson.

All of which might be a perfectly serviceable, if well-trodden framing device for ruminations on Simone’s life, the passions that animated her and the forces that conspired to keep her down, including her own self-destructive streak. The film does offer some flashbacks, but none that illuminate how such a unique talent ended up so broken down. Meanwhile, the plot never quite manages to shift out of neutral and the hokey and cliché-ridden script does its talented leads no favors. The film’s best moments tend to be its quietest, as Saldana works through the unique facial and body language to express all 36 flavors of “tortured.”

Its billing as a racially problematic film probably isn’t fully deserved. But Nina does manage to accomplish one final indignity that actual racist segregationists and a corrupt music industry and mental illness combined could not: It makes this towering figure of the 20th century appear small.

#65 Government Transparency

April 21, 2016, 4:54 PM

From TechFreedom

These days, it costs almost nothing to publish information online. So why isn’t more government information available to the public? Taxpayers spend $100 million a year on the Congressional Research Service (CRS), but only Congress gets to decide whether the research gets published. Is that fair? Should the CRS just put it all online? Evan is joined by Kevin Kosar, Senior Fellow at the R Street Institute and a supporter of legislation that would make all CRS reports public. Is there any potential harm to releasing this information? Could more transparency improve citizens’ view of government? For more, see Kevin’spost on Medium.

Five climate lies the attorneys general aren’t investigating

April 21, 2016, 4:20 PM

The attorneys general of 20 states have launched an investigation into groups they suggest have misled the public on the dangerous reality of climate change. Caught up in the inquisition of climate heretics are ExxonMobil, which has funded much private sector climate research and which today supports a revenue-neutral carbon tax, and the Competitive Enterprise Institute, a free-market think tank that rejects climate alarmism in favor of advocating energy affordability and abundance.

Through subpoenas for communications and research on climate change, the AGs aim to unearth any intentional misinterpretation of climate science. But the real inconvenient truth in this situation is that science itself is very much open to interpretation. It is, in fact, possible to disagree over the causes, effects and severity of climate change, and the pursuit of science and an appropriate policy response is advanced by having numerous voices engaging these difficult questions.

Misstating or exaggerating scientific consensus is a bipartisan offense. While we at R Street would never condone going after any organization for exercising its rights to free speech and advocacy, especially in pursuit of scientific truth, a few examples of scientific misinterpretation from the environmental community may serve as a helpful counterpoint to the witch-hunt pursued by these overzealous AGs.

Larry Schweiger, National Wildlife Federation: “There will be no polar ice by 2060 … Somewhere along that path, the polar bear drops out.”

Yes, Arctic sea ice is shrinking and seasonal sea-ice loss continues to grow, but the former president of the National Wildlife Federation takes it a step too far when it comes to the polar bears. What we know today is that bear populations are stable and adapting well to changes in ice patterns and their health parameters, including weight and reproductive rates, are strong. Zoologists have documented population declines in just 3 of 19 subpopulations, and those declines have stabilized or rebounded in recent years.

Kerry Emanuel, Massachusetts Institute of Technology: “We’re in for a rough ride over the next 10 years.”

In 2005, fresh off speculation about the link between hurricanes Katrina and Wilma and climate change, meteorology researcher Kerry Emanuel predicted a devastating decade of hurricane activity. While climate change unequivocally is increasing the ocean temperatures that lend hurricanes more energy and destructive power, we’re not yet certain whether hurricane frequency and intensity are actually increasing. The record actually suggests the number of hurricanes to make U.S. landfall has declined over the past 150 years. In fact, it has been more than a decade since a major hurricane – Category 3 or higher – has made landfall in the United States.

Rhea Suh, Natural Resources Defense Council: “Climate change played a direct and possibly determinative role in the death and destruction of a huge swath of the southern Philippines.”

The NRDC president attributed 2013’s Typhoon Haiyan, the deadliest typhoon in Philippine history, to climate change. Again, no particular weather event can be tied to a changing climate, even if anthropogenic forces make certain types of weather events more likely. The typhoon was a devastating tragedy, but that does not justify seizing on the deaths of 6,300 people to generate irrational and reactionary fear about the future impacts of climate change.

James Hansen, Columbia University: “Game over for the climate.”

With a doctorate in physics and a long career in climatological research, this former director of NASA’s Goddard Institute for Space Studies should know better than to offer overly simplistic sound bites on complex policy decisions – in this case, whether to build the Keystone XL pipeline. Yes, combustion of fossil fuels will add greenhouse gases to the atmosphere, but it’s far beyond scientific consensus to suggest that forestalling climate catastrophe requires closing off any one source of carbon.

Leonardo DiCaprio, United Nations: “We are seeing extreme weather events, increased temperatures and the West Antarctic and Greenland ice-sheets melting at unprecedented rates, decades ahead of scientific projections.”

This U.N. Messenger of Peace falls into a familiar trap. Scientists are still trying to parse which weather events might be made more likely by a changing climate, but we do have a rich data record for the pace of temperature rise and ice melt. Researchers have been trying to determine why warming has slowed of late, pointing to several factors that might help reduce the sensitivity of the atmosphere to greenhouse-gas-forced warming. The short answer is that the climate system is a bit more dynamic than we’d appreciated. Ice is proving similarly durable. The Greenland and West Antarctic glaciers hold enough water to raise sea levels alarmingly, so scientists keep a close eye on melting patterns. Thankfully, geologic features are working against runaway melting, restricting glacial flow, slowing the pace of glacial retreat and delaying sea-level rise.

If Al Gore weren’t part of this activist push against scientific dissent, the AGs might want to look into his history of bombastic statements about the future of our climate as well. Consider, “I believe it is appropriate to have an overrepresentation of factual presentations on how dangerous it is, as a predicate for opening up the audience to listen to what the solutions are.” It’s enraging to see one of the principle instigators of this investigation openly admit to engaging in the very behavior he wants to expose.

Of course, this isn’t actually about rooting out scientific misrepresentation, but rather discrediting any analysis that derails support for aggressive cuts to greenhouse-gas emissions. Climate change is real, happening, and human caused to a significant extent. It demands a thought-out, hotly debated, well-informed policy response that accounts not just for the science but also for the non-climatic consequences of any decision. Suggesting caution isn’t wicked, but necessary to the debate.

Data can only inform policy choices, not direct them. The AGs’ crusade is a dogmatic and political attack on First Amendment rights – not a scientific one.

Free-market groups to Congress: Oppose federal bailouts for Florida’s government-run property insurance plans

April 21, 2016, 1:51 PM

Dear Representative,

On behalf of the millions of citizens represented by the undersigned groups, we write in strong opposition to H.R. 4947, the misleadingly titled “Homeowners Insurance Protection Act” (HIPA) introduced by Rep. David Jolly, R-Fla. This legislation would establish a so-called “national catastrophe fund” that could result in enormous taxpayer bailouts for ill-conceived state government-run insurance schemes. Far from protecting taxpayers by reducing future costs, this type of legislation could potentially burden them with billions of dollars in liabilities and create a massive federal bailout facility for failing state-run plans.

By establishing a federal reinsurance facility for broken state-run programs, H.R. 4847 would discourage ongoing reform in states like Florida, where the Florida Hurricane Catastrophe Fund has $17 billion in liabilities. While Gov. Rick Scott and the Legislature have worked hard to reduce the Cat Fund’s risk to taxpayers in recent years, legislation like HIPA would encourage future leaders to reverse that progress, secure in the knowledge that the federal government would come to the rescue following a sufficiently large storm.

In fact, as currently written, Florida is the only state that would be eligible for the bill’s bailout facility, calling into question its stated commitment to improve disaster planning nationwide. Perhaps even worse, it would encourage other states to copy Florida’s failed model, creating state catastrophe funds that displace the private sector in order to capitalize on guarantees from federal taxpayers.

Establishing a federal bailout for failing state systems would represent a tremendous expansion of the federal government’s already excessive role in disaster recovery. It would amount to forcing taxpayers to guarantee against losses that currently are covered by the private sector. There is a vibrant, well-capitalized reinsurance market that clearly could and does bear these risks at market-based, actuarially sound rates.

“National catastrophe fund” legislation runs counter to the most basic principles of insurance, which manages risk by spreading it broadly as possible. By creating a federal government-run reinsurer, the Jolly bill would lead to dramatically higher concentrations of risk within our borders and concentrated risk is always more expensive. No longer would claims on Florida hurricanes be balanced in global reinsurance markets by premiums paid for, say, earthquake risks in Japan. Instead, U.S. taxpayers would be on the hook for huge losses.

H.R. 4947 would increase the size and scope of the federal government and encourage states to create and maintain reckless government-backed insurance schemes. This legislation is not federal assistance for natural disasters; it is a federal bailout for state-created financial disasters. In essence, it would countenance open-ended federal subsidies for “too big to fail” state insurance plans that are wholly incapable of dealing with a major catastrophe. This bill is counterproductive to sound insurance policy and poses unacceptable risks for taxpayers. We urge you to oppose it vigorously.


Andrew Moylan, R Street Institute

Norman Singleton, Campaign for Liberty

Kent Lassman, Competitive Enterprise Institute

Seton Motley, Less Government

Brandon Arnold, National Taxpayers Union

Steve Ellis, Taxpayers for Common Sense

David Williams, Taxpayers Protection Alliance

California’s Soviet-like kangaroo ‘courtroom’

April 21, 2016, 12:44 PM

It’s hard to spend time on Facebook without finding examples of “Godwin’s Law”: The longer an online discussion goes on, the higher the likelihood someone will use a Nazi analogy. After reading social-media posts about the presidential race, it’s clear such discussions — Is Hitlery (Clinton) creepier than (Donald) Trumpolini? — needn’t go on very long before someone mentions a dead dictator.

Unfortunately, the overuse of such comparisons numbs us to those instances where only such an analogy will suffice. Consider the following situation and ask yourself whether this is the type of thing that happens in free or totalitarian societies:

People vote in an election. The government suspects the vote will go against its allies, so it seizes the ballots. Officials overseeing the election seem to be in cahoots with the suspected losers. They hold proceedings that have the trappings of an impartial legal process, but the results are a foregone conclusion. After three years of bureaucratic machinations, officials decide to destroy the ballots — and tout the decision as a victory for voters’ rights.

The term “Soviet-esque” jumps to mind. The Soviet Union did indeed have elections. It had a constitution, too. In a banana republic, the voting boxes would have been seized, the voters rounded up, and that would have been that. In totalitarian regimes, image is important. It’s not a Nazi analogy, but I can’t resist the Soviet comparisons.

The example here was inspired by a union decertification election at one of the nation’s largest fruit farms. As many workers allege, the United Farm Workers — the union founded by Cesar Chavez — won an organizing election at Gerawan Farming near Fresno in 1990. Then the UFW largely disappeared from the scene, reappearing 22 years later and claiming to be the rightful dues-collecting representatives of the workers.

The farm is known for paying some of the best wages in the industry. Its workers held an election in 2013 on whether to decertify the UFW, figuring it wasn’t much help, due to the long absence. The Agricultural Labor Relations Board — created under Gov. Jerry Brown decades ago to assure that farmworkers can choose their labor representatives — oversaw the voting. It then grabbed the ballots and has kept them in a vault ever since. It recently voted to destroy them.

“It almost seems like (ALRB) is in cahoots (with the union),” said a Fresno County judge at one point in the latest fracas. You think? Instead of telling 3,000 farm workers the government knows best and will never count votes to decertify the union, the Brown administration let them trudge up to the ALRB headquarters in Sacramento, where they were treated to a kind of bureaucratic callousness one would expect in — here I go again — the Soviet Union.

Instead of counting the votes, the labor board forced the workers into “mandatory mediation and conciliation,” where it and UFW leaders crafted the workers’ contract. Workers even were denied an opportunity to be in the room where their contract was being hammered out. The Legislature weighed in — on the side of the union — by passing a bill that gives the agency even more power to impose contracts on workers unilaterally.

For a while, it looked like the governor might save the dignity of his agency. He vetoed that bill (S.B. 25) and brought in an old hand, former National Labor Relations Board Chairman William B. Gould IV, to run it. Some personnel changed, but nothing substantive did. On April 15, the board affirmed its own past findings and set aside the election. It said the farm “unlawfully supported and assisted a petition to decertify the UFW,” although there “was insufficient evidence that the employer… initiated an effort to decertify” the union.

Among its findings: the farm helped send buses to Sacramento to protest the board’s action and thus “sent a signal to all employees that it supported the decertification effort.” The “employer unlawfully granted a wage increase during the decertification campaign and unlawfully solicited employee grievances.” By the way, the ALRB spent more than $10 million in tax dollars on these show trials.

“In its decision to destroy the ballots, the board ignores the desires of workers to determine their own economic future,” according to a Gerawan Farming statement. “Chairman Gould justifies the board’s power to trump worker rights. He insinuates that Gerawan’s employees have become ‘servile pawns’ of ‘masters,’ subjugated to a ‘tyranny’ of their employer. He frames the issues as a parable to the ‘storm clouds’ that ‘gathered so ominously’ in Nazi Germany. He cloaks his decision in the language of democracy, in order to destroy a democratic right.”

Gould thus confirmed Godwin’s Law doesn’t only apply to the Internet, but to bureaucratic pronouncements as well. But it gets even more dystopian. Two weeks before his decision, the ALRB chairman penned a column in the Los Angeles Daily Journal, a prominent legal publication, defending the U.S. Supreme Court’s decision upholding mandatory union-dues payments (Friedrichs v. California Teachers Association).

First, the hypocrisy: “If teachers object to union policies with regard to seniority, tenure and teacher evaluations, they can always campaign against the union’s attempt to become a representative,” Gould wrote. “Dissenters are always free to vote for someone else at an appropriate time and dissatisfied workers can always get no union, another union or new leadership.” Unless, of course, a union-friendly government official decides to shred their votes.

Second, there’s a broader issue raised by the attorney representing some of the disenfranchised Gerawan workers. “(I)f the contract is imposed on these workers, and the UFW is permitted to siphon away workers’ hard-earned wages, the union stands to approximately double its membership and annual revenue,” Anthony Raimondo wrote in a recent letter to Gould. Based on the view expressed in the Daily Journal column, “such an outcome would be a wonderful benefit to your beloved Democratic Party, and a boon to a legislative agenda that you personally support. Such a public position is inappropriate for a person in your position….”

Alas, in Sacramento’s one-party state, no one with any clout is likely to object. It may not be Nazi-like, but it’s certainly totalitarian.

Realizing Texas’ Clean Energy Potential

April 21, 2016, 12:08 PM

WASHINGTON (April 21, 2016) – Texas’ solar-power potential outpaces that of nearly every other state. But according to a new R Street policy brief, that potential remains largely unrealized.

“Despite falling prices, Texas ranks behind such states as Colorado and New Jersey in solar-electric capacity,” writes R Street Senior Fellow Josiah Neeley. “Many energy-efficiency and other projects that generate significant cost savings on paper remain undeveloped.”

The report notes two particular mechanisms that could help ease the often prohibitively expensive entry costs typically necessary to make energy saving improvements to properties.

The first is property assessed clean energy (PACE) financing, under which “the responsibility to repay the loan to finance a property’s energy-efficiency improvements attaches to the property itself, rather than the property owner.” This is intended to address situations in which commercial property owners are hesitant to make clean-energy upgrades to a property, due to uncertainty over whether they will remain in the property long enough to pay off the loan and recoup the long-term financial savings.

The second mechanism is on-bill repayment, which allows individuals to repay loans for energy-efficiency improvements via an assessment on their monthly utility bills. This approach has been used successfully in a number of states and promises simplicity and flexibility for residential homeowners, as well as peace of mind for lenders, given the historically high rate of compliance with utility-bill payments.

“While government should not be picking winners and losers in the energy marketplace, it should take care that it has not created barriers to the emergence of new energy technologies,” the author writes. “Providing mechanisms that allow private financing and voluntary development of clean energy and energy-saving systems offers Texas consumers the ability to decide what makes sense for them. If properly designed, these new options can deliver billions in energy savings to Texans, without using the heavy hand of taxpayer funding or government mandates.”

Harriet Tubman on the $20 bill? Hell yeah

April 21, 2016, 10:58 AM

Harriet Tubman is a good choice to replace Andrew Jackson on the front of the $20 bill. Jackson, the first Democratic president, is exactly the sort of overheated, pompous populist that has tended to screw up the American political system. His demotion to the back of the bill is long overdue.

But before we act to raise Tubman’s stature to the point that she is memorialized on commonly used currency, it behooves Americans to understand her role in our common history. It’s a lot more interesting than the description of her as an “Underground Railroad conductor” that appears in my son’s elementary-school materials and many popular accounts of her life.

In fact, Harriett Tubman was a gun-toting, Jesus-loving spy who blazed the way for women to play a significant role in military and political affairs.

Indeed, her work on the Underground Railroad was mostly a prelude to her real achievements. Born into slavery as Araminta Ross, Tubman knew the slave system’s inhumanity firsthand: She experienced the savage beatings and family destruction that were par for the course. She eventually escaped and, like most who fled, freed herself largely by her own wits.

She later went back south — always carrying a gun she wasn’t afraid to use — to help guide her own family and many others out of the plantations. The courage and will that this took is difficult to fathom. But she’s really a secondary figure in the history of the Underground Railroad. Historians estimate that she led 300 or so people to freedom, while figures like William Sill and Levi Coffin helped bring freedom to thousands.

This isn’t to say that Tubman is a minor figure. To the contrary, what she did during the Civil War secures her an important place in history. The Union, fighting a war mostly on southern soil, desperately needed good intelligence. Tubman’s exploits on the Underground Railroad, quick wits, mastery of stealth, knowledge of local geography, and personal bravery made her a near-perfect scout and spy. She could often “hide” in plain sight, since white-supremacist southerners probably were not inclined to consider a small African-American woman a threat.

Her quasi-memoir “Scenes in the Life of Harriet Tubman” (told to Sarah Bradford and written in the third person) explains how things worked. While African Americans were suspicious — often rightly — of Union soldiers, they were willing to trust Tubman. “To Harriet they would tell anything,” Bradford writes. “It became quite important that she should accompany expeditions going up the rivers, or into unexplored parts of the country, to control and get information from those whom they took with them as guides.”

Tubman was one of the most valuable field-intelligence assets the Union Army had. She had hundreds of intelligence contacts and could establish new ones — particularly among African Americans — when nobody else could.

During one of her scouting missions along the Combahee River, she became the first woman and one of the first African Americans to command a significant number of U.S. troops in combat. The raid she organized and helped to command freed far more enslaved people than her decades of work on the Underground Railroad. She also was a strong advocate of allowing African Americans into the Union Army. She knew Robert Gould Shaw, who commanded the almost entirely African-American 54th Massachusetts Volunteer Infantry regiment — the unit at the center of the 1989 film “Glory.” A (probably apocryphal) legend even has it that cooked his last meal before the heroic assault in which he and much of his regiment perished.

In her “retirement” — she never really stopped working until she became ill at the very end of her life — Tubman remained a political presence. A friend of Secretary of State William H. Seward, she settled in his hometown of Auburn, New York, on land he sold her. There, she helped to build both a church (she was devoutly religious) and a privately run retirement home. She also fought for women’s suffrage, supported Republican politicians, and advocated for fair treatment of black Civil War veterans, which they rarely received.

In short, Harriett Tubman was a black, Republican, gun-toting, veterans’ activist, with ninja-like spy skills and strong Christian beliefs. She probably wouldn’t have an ounce of patience for the obtuse posturing of some of the tenured radicals hanging around Ivy League faculty lounges. But does she deserve a place on our money? Hell yeah.

Improving the market for clean energy in Texas

April 21, 2016, 8:00 AM

The last few years have seen an incredible decline in the price of technologies that provide clean energy or increase energy efficiency. The cost of solar power has fallen by more than half since 2009. In April 2015, Tesla announced the release of its new Powerwall battery, providing commercially available electrical-storage options for residential and commercial consumers, as well as for utilities.

The untapped benefits to Texas from clean-energy technologies are enormous. Texas has more solar-power potential than any other state. A 2008 study by the Public Utility Commission of Texas found that energy-efficiency measures could save Texans between $4.2 billion and $11.9 billion. Moreover, the Lone Star State’s considerable manufacturing base is ideally suited to take advantage of large-scale cogeneration, in which heat generated as a side-effect of the manufacturing process is used to produce electricity.

Yet when we turn from potential to reality, Texas often lags. Despite falling prices, Texas ranks behind such states as Colorado and New Jersey in solar-electric capacity. Many energy-efficiency and other projects that generate significant cost savings on paper remain undeveloped.

The key question – is Texas’ low utilization of clean energy and energy efficiency something about which free-market advocates should be concerned? The answer depends on the cause of the lag. Other states may use more solar power because government subsidies and mandates have increased demand artificially.

To the extent that lower use of clean energy and energy-efficiency technologies is genuinely the result of market forces and consumer preferences, this should be respected. Government should not use subsidies or mandates to increase demand for clean-energy sources.

On the other hand, if Texas isn’t meeting its potential on clean energy because of structural factors, regulatory barriers or a lack of appropriate financing options, addressing these problems should be seen as an opportunity to allow the market to function more effectively by removing obstacles in its path. Many clean-energy technologies require high upfront costs that are repaid over the lifetime of the system. These initial costs may deter widespread adoption, either because of uncertainty or lack of financing.

Fortunately, the last few years have seen the development of a number of new financing options that allow for greater access to clean energy without undercutting market forces.