Out of the Storm News
Writing in the Aug. 18 edition of the Journal of the American Medical Association, Adam Leventhal of the University of Southern California and his team survey teens about past and recent e-cigarette use in terms of potential recruitment to combustible tobacco use.
Their survey employs yes/no responses that do not differentiate experimentation from continuing use. The findings show that 768 of the teens tried combustible tobacco first, 3.5 times as many as the 222 teens who initiated nicotine use with e-cigarettes. Furthermore, 49.1 percent of the e-cigarette initiators admitted to a history of substance abuse, compared to 15.0 percent of those with no such history
These data show that those inclined to experiment with a chemical substance are more likely to initiate e-cigarette use than those not inclined to such experimentation. In other words, the data reported in this study do not support the suggestion that preventing use of e-cigarettes by minors would in any way influence the number of teens experimenting with nicotine delivery products.
More research is needed to address the public-health impact of e-cigarette use by teens. Such research should address experimentation versus consistent and continuing use, use of zero-nicotine e-cigarettes and a wider array of potential confounders.This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.
For a Sacramento administration unaccustomed to failure, the end of the state’s legislative session had an air of unique disappointment. An effort backed by Governor Jerry Brown and sponsored by Senate President Pro Tempore Kevin de Leon, D–Los Angeles, to combat climate change by giving the California Air Resources Board the authority to cut the amount of gasoline used in the state by 50 percent by the year 2030 failed thanks to a coalition of Republicans and moderate Democrats.
Supporters of the emissions target that was once part of Senate Bill 350 are now in search of an explanation for their failure. At a press conference after the fact, the governor spoke grimly about the influence of “big oil,” while the Senate pro tem claimed that special interests defeated the reduction target not on the strength of their ideas, but on the strength of their bank accounts.
Such accusations are not new, and neither is their cause. In a state in which environmental activists are not accustomed to defeat, their previous success prevents them from contemplating an uncomfortable reality, or as former Vice President Al Gore would put it, “an inconvenient truth.”
Californians are not committed to a green-crusade at all costs; Californians are decreasingly committed to such green efforts as their direct and measurable personal costs increase significantly.
For instance, Californians have not risen against either the cap-and-trade system or restrictions on the sources of energy used by power plants. While costly, both obfuscate their pass-through costs indirectly via utility and other billings. Not unexpectedly, neither policy has sparked a meaningful electoral response. And yet, the prospect of a gasoline reduction target, achieved in a manner to be determined later by the CARB, which would leave residents poorer each-and-every time they visit the pump was enough to galvanize serious concern among the inland and rural constituencies that would carry a disproportionate burden of implementing that requirement.
The crux of the issue now confronting the governor and his legislative allies is that their political coalition is not broad enough to secure the majorities necessary to achieve their goals. Hyperbolic rhetoric about the nature of the threat posed by climate change – in other words, fear – simply does not provide impetus enough for those not already within their camp to bankroll their policy aims.
That is particularly true for those of us who are inclined toward free markets. For us, the S.B. 350 debate was a microcosm of the larger controversy surrounding how to address climate change.
There is a cognitive dissonance that exists between the rhetoric of an existential threat to humanity and the policy solutions that, conveniently, are virtually all tailored to expand the power of the state and to redistribute wealth. The worst part of this sort of cynical power grab in the name of saving the earth is that citizens, undoubtedly, will become increasingly skeptical and resistant to reasonable palliative environmental measures.
Climate change is a natural phenomenon and solutions to it are not the exclusive domain of a single political movement or ideology.
A free-market approach to addressing climate change would involve less government involvement, not more. It would involve fewer and more narrowly tailored taxes, not more. And it would rely upon the innovation that only individual agency can provide, not the coercive might of a purportedly expert state apparatus. Most importantly, a free-market approach would be far more effective in preserving the environment.
At bottom, if the goal of climate activists is really to reduce the greenhouse gas emissions they must do better than mandates and arm-twisting. If they do not, free-market voices and the constituencies which they seek to burden will continue to confound them.
A recent three-day family vacation brought me to the impressive Seattle Art Museum, where I marveled over the collection of artifacts from around the world and what they may say about how my own slice of civilization is changing.
The Romans and the Greeks developed culture, commerce, institutions and rules to govern all of it, which enabled them each to stand atop Western civilization for about five centuries. I couldn’t help but wonder if our own experiment will last that long.
If I last for another baker’s dozen years, I will have lived through a full third of this nation’s life since it became independent. Some changes over that time have been gradual, like the number of manual devices that became electrical: toothbrushes, guitars and car windows. Other things were pretty much one way all my life, but recently have changed.
Until a few years ago, student debt wasn’t really a public issue. Now it’s two public issues: one threatening both the American economy and graduates’ ability to earn a living, and the other, a cultural change in values relating to paying back what one owes.
For most of my life I don’t think there were many municipal ordinances telling people how many cats or dogs they could own. Now, even Clark County, Nev. – located physically next to a county which permits legal prostitution – has one, as do many other localities. There were no courses in animal law when I attended law school.
Until recently, when the pharmaceutical companies were finally able to develop a vaccine for some possibly fatal disease, there was no widespread reluctance to use it, except for religious reasons.
Travelers not half my age have witnessed the emergence of a new opportunity in transportation by organizing and commercializing the sort of college ride-sharing board we once used to get home to visit our families. Uber is now a verb in dozens of countries. In my hometown of Columbus, Ohio, the company announced this week it expects to add 3,000 drivers by the end of next year to the 2,500 registered there. Suburban residents with disabilities that make driving difficult have newfound freedom to get around where public transportation is scarce.
Since around 1890, the United States has been the world’s largest economy. Last year, China claimed the title, according to both the World Bank and the International Monetary Fund, using gross domestic product adjusted for purchasing power as the measure.
Until recently, every piece of landmark legislation enacted by the U.S. Congress that provided benefits for large numbers of citizens enjoyed bipartisan support.
Until recently, the president of the United States and the people of the United States pretty much had the same friends and enemies among the nations of the world.
Some of this may matter, if we are going to extend our streak.This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.
Dear Chairman Goodlatte:
We appreciate your steadfast support of the 10th Amendment to the Constitution and your leadership in the face of constant threats from both political parties. We wish more Members of Congress devoted as much energy and attention to the Constitution as you do.
You will no doubt be placed under enormous pressure by vested interests pushing H.R. 707, the Restoration of America’s Wire Act (RAWA). We also understand and respect your long-standing opposition to gambling. That said, politics and one’s personal views should not trump the ability of states to regulate their own affairs.
RAWA is an outright assault on federalism. The legislation tramples on the 10th Amendment by banning state regulation of online gambling – further chipping away at the balance between state and federal governance. The bill would overturn state laws already on the books in three states and would prohibit states from selling lottery tickets online for their own constituents – rolling back at least another six state laws.
The 10th Amendment was designed to protect states from the unmitigated power of the federal government, because a government powerful enough to tell states they cannot have Internet gaming for their residents is also powerful enough to one day force gaming on the states. Weakening the 10th Amendment today will do permanent damage to it.
Earlier this year at a Judiciary Committee hearing on RAWA, you rightly acknowledged there is a states’ right dynamic to this issue and suggested that the Congressional effort to update the Wire Act “will need to address how to handle both the states that have already enacted laws allowing online gambling and any states that would want to do so in the future.”
Let’s be honest – this is not possible. Proponents of the legislation are seeking to rollback state laws and prohibit other states from exercising their constitutional authority. Period. Anything less will be considered a failure. It has also come to our attention that some in Congress are proposing a “gaming moratorium” which would grandfather existing states that have passed laws while prohibiting other states from exercising their rights under the 10th Amendment. Make no mistake about it, a moratorium is as much an assault on the 10th Amendment as an outright ban.
We encourage you to continue to stand up for the Constitution, the 10th Amendment, and the ability of the states to regulate their own affairs. We assume there will be a last ditch effort before the 2016 elections to see this provision enacted into law, perhaps as part of a larger spending package. We urge your continued principled opposition to the Las Vegas rent-seekers pushing for this measure. This bill is an assault on the constitutional values we all hold dear.
Andrew F. Quinlan, President, Center for Freedom and Prosperity
Michelle Minton, Fellow, Competitive Enterprise Institute
Thomas Schatz , President, Council for Citizens Against Government Waste
Dan Schneider, Executive Director, The American Conservative Union
David Williams, President, Taxpayers Protection Alliance
Seton Motley, President, Less Government
Andrew Moylan, Executive Director, R Street Institute
Carrie Lukas, Managing Director, Independent Women’s Forum
Norm Singleton, Senior Vice President, Ron Paul’s Campaign for Liberty
Heather R. Higgins, President, Independent Women’s Voice
Bob Bauman, Chairman, Sovereign Society Freedom Alliance
Jeffrey Mazzella, President, Center for Individual Freedom
NASA tweeting that Congress should give it more money so our astronauts won’t have to ride on Russian rockets. Recovery.gov reporting overly optimistic statistics on jobs saved and created by stimulus funds. The Department of Health and Human Service Web site encouraging the public to “state your support for health care reform” during the congressional debate over Obamacare.
These are just some recent examples of the executive branch using our tax dollars to shape our opinions. Unlike the National Security Agency’s personal data collection or the overuse of “secret” stamps to withhold information, this government-produced propaganda receives almost no attention. But that doesn’t mean this “third dimension” of government information is not a problem. America becomes less democratic when the $3 trillion executive branch uses its resources to tilt the debate in its favor.
Of course, a democratic government has an obligation to inform and be transparent. Citizens need to know the government’s policies and plans. We have a right to know which companies receive government contracts, how to collect insurance benefits and social security payments and what public school educational reform will look like. But too often, the government uses its information machinery to do more than simply inform us about a policy. Sometimes, it tries to persuade us to adopt a particular position, regardless of its efficacy.
Consider, for example, the Department of Labor’s campaign to raise the minimum wage, a topic on which there is considerable debate. Raising the minimum wage, the Congressional Budget Office points out, will eliminate some jobs. Still, the government devotes a Web page to the topic that proclaims, “See how raising the national minimum wage will benefit America’s workers.” Americans are invited to tell the Labor Department why they “support raising the federal minimum wage.” Twitter users can see a video of a squiggle of mustard spelling out “#RaiseTheWage” on a hot dog, a reference to the recent interest group advocacy to pay fast-food employers more money. The Labor Department’s Web page treats raising the minimum wage as an unalloyed good and labels possible job losses a “myth.”
Such aggressive communications are neither novel nor exceptional. Government agencies historically have made a habit of crossing the blurry line between informing the public and propagandizing.
Treasury Secretary Alexander Hamilton’s 1791 report on manufacturing promoted policies to grow the nation into a commercial republic. President Woodrow Wilson’s Committee on Public Information recruited 75,000 members of the public to give speeches in favor of such World War I measures as Liberty Bonds and the draft, blanketed the nation with pamphlets and posters, and generally set in motion the modern publicity apparatus that exists today
A decade ago, the Government Accountability Office faulted the second Bush administration’s Department of Health and Human Services for overselling the benefits of the new Medicare law. Several years before, in 1997, the GAO caught the State Department paying a consultant to write op-ed pieces in support of the Clinton administration’s policy on Central America.
As these revelations dribble out, they sometimes become fodder for vitriolic partisan political battles, and occasionally prompt congressional hearings. Just three years ago, the House Oversight and Government Reform Committee Republicans issued a report detailing various propagandizing efforts by the Obama administration. Democrat Rep. Henry A. Waxman leveled similar accusations during the second Bush administration. But the issue then gets forgotten until the next propaganda scandal erupts.
This cycle has been occurring for at least a century, and it repeats itself because no corrective mechanisms are in place. There is no systematic monitoring of government information. Inspectors general and the GAO do not regularly report on agency communications. No congressional committee has jurisdiction over government information.
The scope of the third dimension is difficult to assess. In 2014, the government spent $760 million to hire private advertising firms, according to USASpending.gov. The contracts purchased advertising space on all forms of media, marketing research and opinion polling, message-crafting assistance and more.
That figure does not include the salaries of the innumerable federal employees who promote their agencies’ work in print, on air and online. It does not include the anti-drug media campaigns, or the cost of printing and publishing reports and government journals, such as the Federal Highway Administration’s Public Roads magazine. Speaking of publishing, the Government Publishing Office, which costs $110 million to operate, has more than a million publications online.
The Internet has only exacerbated this problem by making it so easy to communicate with the public. Not long after President Obama arrived in office, his administration carried out an audit of federal government Web sites. They found 24,000 of them.
The Obama administration has made heavy use of social media, which was so successful during his run for president. The Department of Commerce has a YouTube channel. The Environmental Protection Agency — to name just one of the 120 government agencies — has about two dozen Twitter accounts. It uses a social media tool called Thunderclap, which spreads messages so widely that an agency communications official calls it a “virtual flash mob.”
EPA communications to the public include both factual updates on the agency’s response to the Gold King Mine spill and aggressive advocacy in favor of the EPA’s Clean Power Plan. Presidential appointees spinning for an administration is unobjectionable. But using agencies as presidential messaging machines sullies the civil service, which is supposed to be nonpartisan.
Congress has tried to curb this behavior. In 1913 it passed legislation forbidding, without its expressed approval, the expenditure of appropriated funds on “publicity experts.” Several years later, it enacted its grass-roots lobbying ban, which forbids the executive branch from using tax dollars to whip up public pressure to influence law-making.
Each year appropriations bills forbid agencies from spending funds for “publicity or propaganda purposes.” But this has done little good. As noted by Mordecai Lee, one of the few scholars to pay any attention to this issue, agencies have given their communications staff different titles, such as “public affairs specialist,” and renamed their communications “outreach” and “public education.”
The GAO defines “propaganda” very narrowly as government information that is not labeled as such. Unfortunately, it otherwise has proven all but impossible to write a law that absolutely differentiates information from advocacy.
Congress again is trying to do something about government information in a modest way. The Taxpayer Transparency Act of 2015 would force agencies to label their ads and media as government-produced, which agencies do not always do.
But this reform would be even more helpful if it required agencies to cite and share the sources for their “facts.” Where, for example, are the Department of Labor data that prove hot dog venders earn less than $9 an hour?
Congress should direct agencies to annually inventory the number of public communications they produce, the number of staff who assist in communications, and the approximate cost. These reports should additionally reference whatever laws authorize agencies to communicate with the public and for what purposes.
All these data should be submitted to the Government Accountability Office, which can audit the data, and then publish publicly an overall inventory of government public communications.
This is only a start, of course. But it would be a big step ahead of where we are now. Just as setting the federal minimum wage is a ripe subject for energetic political debate and decision-making, so too is the third dimension.
From Education Week:
And in “Kill the Department of Ed.? It’s been done.,” Kevin Kosar, an education policy historian, recounts how Congress created a federal Education Department in 1867 and killed it a year later. The “meek agency” had a commissioner and three clerks, and was charged by law with “collecting such statistics and facts as shall show the condition and progress of education in the United States.” The agency also was to publish useful information on the “organization and operation” of school systems and “promote the case of education throughout the country,” Kosar notes.
Many in Congress were worried about this federal power grab, and by 1868, the department was demoted to an office in the Department of the Interior. (The piece has a nifty graphic describing federal efforts in education going back to the Northwest Ordinance of 1785.)
From American Spectator:
And an exception he must be. As Ian Adams, Senior Fellow at the R Street Institute, told this writer, “While Mr. Gobena’s situation is unfortunate, it is also the exception. Independent contractors across the nation drive for TNCs and enjoy both the flexibility and the compensation necessary to make it worth their while.”
“While the way in which Mr. Gobena arrives at his specific $3 per/hour figure is hard to understand,” Adams said, “like any contractor, his success is a combination of the rate he is willing to work for and the expenses that he is willing to incur. His choice of vehicle, financing, and insurance, to name a few variables, are all factors that contribute to his bottom line.”
Every day closer to Oct. 1 marks another step toward a potential government shutdown. Even though Republicans maintain control of both the House and Senate, there has been clamoring within certain conservative circles to use the lapse of the current continuing resolution to threaten a government shutdown unless the women’s health organization, Planned Parenthood, is defunded.
There are also rumors of palace intrigue that conservatives in the House will use the circumstances to start a mutiny against Speaker John Boehner, R-Ohio. A majority of Republicans in both the House and Senate oppose this approach. However, many are concerned about blowback from grassroots groups if they don’t fight “hard enough” against the evil Democrats.
While the odds of ridding the earth of Planned Parenthood and ending Boehner’s reign are very slim, it is very probable that Democrats and some Republicans, both fans of uncontrolled government spending, will use the inevitable legislative crisis to lift the sequester caps established by the Budget Control Act of 2011. The usual sacred cows are in play: Republicans want an increase in military spending, while the president and Democrats want to increase non-defense spending.
Repealing these spending caps on discretionary spending would undo one of the few examples of sustained government savings over the past 15 years. As our friends at the National Taxpayers Union explain: “federal spending was reduced by over $1.3 trillion compared to what the Administration had proposed just before the caps were enacted.”
This is why the R Street Institute joined a coalition letter of taxpayer and limited-government groups urging Congress to preserve the Budget Control Act spending levels. The letter highlights that our nation is facing an $18 trillion national debt and that “abandoning these modest spending limits by directly breaking the BCA caps or using budget gimmicks to get around them would be fiscally irresponsible and send a dangerous message to the American people.”
Among the different ideas and potential strategies swirling round Congress, it is encouraging to see the Republican Study Committee’s propose the aptly named solution to the government spending situation: the “Responsible Spending and Accountability Act.” While this proposal includes goodies conservatives are hoping for, like ending the Affordable Care Act and defunding Planned Parenthood, the RSC plan would keep the BCA caps.
While R Street hasn’t engaged on these other legislative matters, it is important that the House and Senate do not forget that limiting spending is the chief issue at the heart of the government spending fight.
Over the next week, Republicans and Democrats will continue a staring match. It’s essential they not forget the law they agreed to four years ago that set a modest but lasting example for limiting the gluttony of federal spending.This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.
In 2007, presidential candidate Barack Obama expressed his desire to “reclaim the American dream.” Right now, GOP frontrunner Donald Trump plans to “make America great again.”
For most of my adult life, the people that run this country have told us that we need to go back to a mythical time and place. We’ve been admonished to restore something we’ve lost. They wax poetic about the days when John F. Kennedy inspired us to shoot for the moon and Ronald Reagan confronted the Soviet menace. They’re not happy with today’s America, and they want to take us back.
I don’t want to go.
These are the same people that told American school children that “duck and cover” was the best response to a nuclear attack—because nothing protects you from a wave of radioactive fire quite like hiding under a school desk.
Kidding aside, I’m not pining for days gone by or wishing for another version of America. You shouldn’t either.
Our nation has some serious challenges: American education is falling behind, our workforce isn’t matching our labor demands, and politicians act more like carnival barkers than leaders.
We can bemoan American decline and wish for better days or appreciate the wonderful opportunity we have to actually do something about it.
As a nation, we’re great at feelings and thoughts. Just ask Dr. Walter Palmer—better known as the dentist who killed Cecil the lion in Zimbabwe. If we can express that much collective outrage over a poached lion, we’re not lacking emotion.
We also have tremendous access to information and knowledge. If all traditional learning institutions vanished today, I could learn calculus, hang a door, and make panna cotta thanks to YouTube. We might take that for granted, but technological advances have provided us with some amazing tools. More importantly, we’ve created a society that offers more educational opportunities to more people than any time in our history. You don’t have to be wealthy or connected to learn something useful. It’s far from perfect, but it’s still amazing.
So why are we charmed by nostalgia and offers of better dreams?
Because work is hard.
We’d rather let politicians make empty promises and watch videos of cats falling into fish tanks. That’s the long and short of it.
We have more passion and intellectual capital than we’ve had in a long time, but we lack implementation and work ethic. America isn’t in decline; we’re just scared.
We’re scared that if we change our institutions, we might break something. We’re scared to question the status quo because we might offend someone. We’re scared to step out of the line, because we might not get our turn.
Get over it.
In cased you missed it, that’s not who we are as Americans. That wasn’t Kennedy, it wasn’t Reagan, and it can’t be our national attitude now. We’ll always have challenges, but what makes us Americans is that we take them head on.
Whether it was revolutionary fighters braving the cold Delaware, civil rights marchers crossing the Edmund Pettus Bridge, or police and firemen running into the dust and debris clouds funneling through New York streets in September of 2001, we’re not strangers to overcoming fear.
We aren’t suffering the effects of inevitable decline; we’re again at one of those points where we shape our future by rolling up our sleeves and rising to the occasion.
When Washington’s education bureaucracy comes under political attack, it’s common to pin responsibility for its existence on Jimmy Carter. He signed legislation to establish the Department of Education in 1979, and critics note that this imposed a new department on a country that had gotten along quite well without one for more than 200 years.
But that’s not quite true. It wasn’t Jimmy Carter who launched the first Department of Education: it was Andrew Johnson, and the year was 1867. The department was small, ambitious and astonishingly short-lived. Congress abolished it and demoted its reformist chief just a year later.
The Reconstruction Era was different in many ways, and the department got caught in the toxic racial politics of the day. But at a deeper level the demolition of the original DOE was not a random act of political pique. In fact, the department fell victim to an argument that had started long before Johnson and which we’re still having today: What’s the federal government’s role in our schools? Should it be meddling at all?
America has never been able to answer this question decisively. As a result, our national politics have been especially rancorous when it comes to education. Small policy matters tend to blow up into great philosophical disputes on the nature of government; national bipartisan reforms quickly become political flash points. The issues that inspired the first Education Department didn’t go away, but more than a century would pass before another president would try the same thing.
As Congress tries to rewrite the No Child Left Behind law this fall, and presidential candidates turn broad-based ideas like accountability and Common Core into highly politicized stump issues, it may seem education is just another punching bag for 2015’s partisan warriors. It’s not. These arguments were all simmering in the America of the 1860s. The story of the first DOE helps show why they’ve been so hard to escape.
EDUCATION WAS CENTRAL to the American story from the start. For the most part, the Founders were pro-education. “[N]othing is of more importance for the public weal, than to form and train up youth in wisdom and virtue,” said Benjamin Franklin. The young nation’s experiment in democratic self-government depended on citizens with the sense to direct their own affairs and to select good leaders. Widespread education “is favorable to liberty,” said Benjamin Rush. “Without learning, men become savages or barbarians, and where learning is confined to a few people, we always find monarchy, aristocracy and slavery.”
But that didn’t mean the founders were pro-federal education. Churches and towns had been running schools since the earliest European settlers landed in North America. At a time in world history when public education was a rarity, some American settlements actually required it. Massachusetts’ Old Deluder Satan Act of 1642, for example, directed “every township in this jurisdiction, after the Lord hath increased them to 50 households, shall forthwith appoint one within their town to teach all such children as shall resort to him to write and read, whose wages shall be paid either by the parents or masters of such children, or by the inhabitants in general.” (The remarkable name of the act was a reference to education’s power to counter the devil, who wants humans illiterate and unable to read God’s directions in the Bible.)
Though American leaders wanted a nation of virtuous, informed citizens, almost nobody saw educating them as the federal government’s job. The Constitution didn’t authorize the federal government to make schools policy. It is not among the enumerated powers in Article I section 8, and the 10th Amendment reserves powers not delegated to the federal government by the Constitution to the states and the people. For most of the nation’s history, Congress intervened in education only in specific, narrow ways justified by an explicit constitutional provision. The various acts to settle the West almost inevitably required land to be set aside for public schools; Congress had also authorized schools when it chartered the District of Columbia’s government in 1804. (While U.S. president, Thomas Jefferson also was the president of the D.C. school board). The federal government later funded and set up schools on American Indian reservations.
In the early 19th century, the nation’s first major education-reform movement took off. These “common school” reformers sought to professionalize education, which struck them as too often ad hoc and shoddy. They advocated schooling for all children via government school systems with university-educated schoolmen at the top and teachers trained in the latest pedagogical methods. Children would be improved by learning to read, write and perform basic math; and their character would be bettered by moral instruction. The nation as a whole would benefit through the spread of upright, hygienic youth prepared to find work (boys) and run orderly households (girls).
When he arrived in D.C. in 1867, Henry Barnard was the nation’s most famous living education reformer. (Horace Mann, the movement’s iconic figure, had died eight years earlier.) Barnard was a wunderkind who graduated Yale with academic honors at age 20; he was appointed schoolmaster of an academy, then served in the Connecticut Legislature. His bill to establish a state school board became law in 1838, and he was seated on it. That same year, he traveled to Washington to ask what national schooling statistics were available. “Not many” was the response. He persuaded the Census Office to include questions on education. He did all this before age 30, and went on to lead the nascent Rhode Island school system, start a teachers training school and publish the American Journal of Education.
He was an obvious choice for first commissioner of the Department of Education. The idea was the brainchild of Rep. James Garfield, R-Ohio, and other congressmen from northern states who, in the wake of the Civil War, were distressed by widespread illiteracy and the sorry state of many schools.
President Andrew Johnson signed the Department of Education Act in 1867 reluctantly, after he had been assured it was harmless. It was a meek agency. Congress authorized it to have just four employees – besides Commissioner Barnard, there were three clerks – and limited its powers to “collecting such statistics and facts as shall show the condition and progress of education in the United States.” The DOE also was to publish useful information on the “organization and operation” of school systems and “promote the case of education throughout the country.”
Even with these limits, many in Congress hated the Department. They saw its existence as an unconstitutional power grab and worried that its data-gathering authority gave Washington a new and dangerous kind of leverage. Rep. Andrew Rogers (D-N.J.) declared: “I am content, sir, to leave this matter of education where our fathers left it, where the history of our country left it, to the schools systems of the different towns, cities and states…[This legislation] proposes to collect such statistics which will give a controlling power over the schools systems of the states.”
Federal education policy also was a proxy for race politics, which added further fuel. Rep. Garfield and other ardent abolitionists had fought for the department. The Freedmen’s Bureau (established in 1865) had paid northern, Christian missionaries to start schools for blacks in the South. Confederate states, as a condition of readmission to the Union, had to rewrite their constitutions to provide schooling for children, both white and black. The Department of Education would do its part in Reconstruction by tracking the progress to enroll newly emancipated students and increase their literacy rates, and advocating for better schools, all of which struck some in Congress as threatening.
In 1868, Barnard delivered the first of what would be annual reports to Congress. It had been a busy year. He published a dozen circulars on teacher training, school architecture, education taxes and more. The commissioner requested additional funds. He needed another clerk and he wanted more books and studies that described the school reforms undertaken in Europe. Barnard also wanted the department to publish state education data in cases where state governments lacked funds to do so.
Instead of backing his ideas, Congress rebuked him. The Department of Education was demoted to an office in the Department of the Interior. To add insult to injury, it also cut Barnard’s salary 25 percent. He got no protection from Johnson, who was generally unsupportive of Reconstruction.
On March 15, 1870, Henry Barnard resigned as the U.S. commissioner of education. He left Washington and returned to Hartford, Conn., to live out his final 30 years doing what he loved most – studying schooling and advocating for its improvement and expansion to all children. A brief experiment in Washington-driven education reform was over.
UNTIL THE 1960S, Congress tended to stay within its old constitutional bounds on education issues, jumping them only when the nation imagined it was facing a crisis. The 1917 Smith-Hughes Vocational Education Act was passed due to anxieties over widespread illiteracy, especially among the waves of immigrants who might otherwise be susceptible to the incipient anarchist and communist movements. After the next world war, “as a matter of national security,” Congress passed the 1946 School Lunch Act “to safeguard the health and well-being of the Nation’s children.” The national panic over the Soviet launch of Sputnik, putting the Russians ahead in the space race, inspired Congress to hustle the 1958 National Defense Education Act to the desk of an ambivalent President Dwight Eisenhower. It bolstered high school scientific and foreign-language curricula to build more brainpower to fight the Cold War.
But in the 1960s, the federal role in schooling expanded dramatically. The Elementary and Secondary Education Act was passed to ameliorate poverty and the destructive effects of segregation. It was the largest education law to date, and its Title I spread federal dollars to nearly every school district in America with low-income students. The ESEA was omnibus legislation. It paid for projectors and technology for classrooms, training and new administrative systems for state education agencies. It even authorized the commissioner to build education-research centers, a power Barnard would have loved to have. Section 604 of the law, of course, forbade “federal control of education.”
The Department of Education itself didn’t return until the 1970s, when Jimmy Carter claimed the country needed a full-fledged Cabinet department to make federal education programs more efficient and accountable. As in Reconstruction, much of Congress disagreed, and 200 House members voted against the legislation. Critics suggested this was little more than a political payback; Carter was the first presidential candidate endorsed by the National Education Association. Abolishing the department became a plank in Republican presidential platforms for the next 20 years.
Today, federal funds are less than 10 percent of elementary and secondary education spending. Localities and states pay the rest. But while federal funding is modest, Washington’s sway is not. Title 20, the corpus of federal education laws, runs more than 1,000 pages. The Department of Education spends $70 billion each year and issues reams of regulations and policy guidance, spelling out in exacting detail what states, localities and schools must do to keep the federal funds flowing. With that leverage, federal education policy has metastasized. The anxiety voiced by Rep. Rogers in 1867 was not unfounded.
No Child Left Behind, signed in 2002, is a case in point. NCLB was a significant retooling of Lyndon Johnson’s landmark education law. The original ESEA, in 1965, was 32 pages long; NCLB is 670 pages. Its reforms to Title I aimed to remedy the stubborn black-white, rich-poor achievement gap by toughening the conditions of aid to require states to adopt stronger education standards, test students more frequently and demonstrate all children were making “adequate yearly progress.” Schools that failed at these goals would be reorganized, and their students could be freed to attend other public schools. The new requirements had bite, and complaints about “punishing teachers,” “too much testing” and the subsequent rise of Common Core standards erupted from both left and right, with palpable anger about Washington intruding far too much into local schooling.
The pendulum tends to swing back over time, as the congressional education debates of the past decade have centered on how to reduce federal control of schooling without giving up the goal of educational equity. The Senate overwhelmingly passed a reauthorization of the education law in July, which dials back the federal demands. The House has passed its own bill that reduces the conditions of aid further or, in the words of Education and the Workforce Committee Chairman John Kline (R-Minn.), “helps provide American families the education system they deserve, not the one Washington wants.”
Perhaps the two chambers will reconcile their differences this autumn and gain President Barack Obama’s signature. If they do, a detente in education policy will set in for a time. But when the argument over education policy restarts, the fight over what business Washington has in the American classroom – an argument Henry Barnard and Andrew Johnson would recognize very well – will start anew.
The taxi industry has been perhaps the biggest, and unquestionably the most forceful, critic of the emerging ridesharing services like Uber and Lyft. Taxis see the upstarts unregulated competitors who, by competing for the same fares, represent a threat to their livelihoods.
However, if they were to give the subject more than a moment’s pause, taxis might realize the competition between the taxi industry and ridesharing companies has benefited taxis. This shouldn’t be a surprise, because competition often improves the quality of products. Why should taxis be any different?
Here are a few of the ways that traditional taxi services have been improved for their customers.
Taxi smartphone apps
One of the big benefits of ridesharing is that, instead of calling a taxi company and waiting for them to send a cab, you can simply hail an Uber or Lyft from your smartphone. It’s far more convenient to just hit an app and pay for a ride from your phone than picking a cab service at random and waiting for someone to arrive who may not have a credit card reader.
But more and more taxis are finally getting into the game themselves by creating their own smartphone apps. For example, the Carriage Media Group is rolling out TaxiCabApp for cabs in New Orleans and Chicago to use. The app allows users to schedule pickups, while another, Curb, even lets them pay the fare with a stored credit card.
By becoming more smartphone-friendly, taxis should be able to win back some of the business they lost to Uber and Lyft. This should especially be true during times of “surge pricing,” when taxi rates are usually competitive with Uber and Lyft.
Improved customer service
Let’s face it: one of the reasons Uber and Lyft have gained in popularity is the terrible customer service of the taxi industry. In many cities, taxi drivers were known for treating customers horribly and overcharging them. Uber and Lyft gave customers the opportunity to rate their drivers and vice versa. Most taxis do not offer that option to customers, who instead have to complain to the local taxi commission.
The emergence of ridesharing has forced traditional taxis to begin improving their service. More cabs are taking credit cards. Others are beginning to feature interactive entertainment. That latter innovation also has provided another stream of revenue for taxi companies, who can sell advertising on those systems as well. Finally, it has forced taxi companies to instill the culture of customer service in their drivers that exists.
The early signs are that this investment has paid off. Data from Chicago and New York show that, once Uber came to town, customer complaints to taxi bureaus fell. In part, of course, that’s likely because customers who were most likely to complain about taxis have switched to Uber. But there’s no question that taxis have been forced to improve their customer service to rebuild their industry’s tarnished image.
Forced taxi deregulation
Uber and Lyft has forced regulators and city officials to look at how they regulate transportation. Many cities have tried to keep both companies out. Others have sought to heavily regulate the ridesharing companies.
Meanwhile, cities like Sarasota, Fla., have decided to take a more free-market approach. They responded to Uber and Lyft by scrapping all rules for the taxi industry. Even more modest forms of deregulation, like those seen in Washington, D.C., clearly have helped taxis remove some of the burdens that long have hampered their businesses.
True deregulation allows taxis to compete on fair terms with ridesharing, not just on customer service, but on rates as well. In most cities, taxis have their rates set by local taxi commissions and bureaus. These bodies also erect barriers to entry, such as expensive licensing and permitting fees and/or requiring cabs to buy taxi medallions.
There are many reasons to support competition between taxis and ridesharing. Not only does it improve both services, there are many benefits to cities as a whole. By placing downward pressure on pricing and making it more convenient to use other people’s cars, it will lower demand for privately owned cars and take some of them off the road. It has the potential to improve traffic conditions and air quality, while also creating more jobs for drivers.
Competition between taxis and ridesharing can yield many winners, if politicians and regulators let it happen.This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.
WASHINGTON (Sept. 23, 2015) – The R Street Institute announced today it has joined a host of technology companies and public-policy groups in the Wifi Forward coalition. The coalition aims to preserve, protect and extend existing technical specifications for Wi-Fi use.
In addition, the coalition seeks standards for unlicensed broadband spectrum that will protect and strengthen existing designations, as well as free up new spectrum at all frequencies. The unlicensed spectrum consists of those bands that any operator of wireless devices is free to use. The Consumer Electronics Association estimates the unlicensed spectrum generates $62 billion a year in economic value.
The coalition emphasizes multi-stakeholder development of voluntary standards for existing and future unlicensed uses. Members believe that relying on collaborative, voluntary standard-setting should minimize any need for regulatory intervention by the Federal Communications Commission.
“We’re committed to collaborative, market-oriented policy for Wi-Fi standard-setting and allocation of spectrum for unlicensed use,” said Mike Godwin, R Street’s director of innovation policy and general counsel. “The public is served best when the FCC is least required to intervene in order to set standards.”
“The history of Wi-Fi has taught us that voluntary collaboration among all stakeholders works best to adapt new wireless technologies for an evolving marketplace,” Godwin added.
The coalition also urges policymakers to support and promote investment-friendly, transparent and predictable unlicensed policies that encourage growth and deployment. Nearly every sector of the U.S. economy already depends on available and reliable Wi-Fi to conduct business. Offices all over the country are more efficient because their employees can connect and transmit information untethered to a desktop.
“We’ve all seen how our economy depends more and more on Wi-Fi every year,” Godwin said. “This reliance will only grow in the foreseeable future as more innovations – such as the ride-sharing services offered by companies like Uber and Lyft – create businesses that operate almost entirely through mobile apps on smartphones and other wireless devices.”
More information can be found at the coalition’s website, WiFiForward.org, or by following the hashtag #SaveOurWiFI. Other members of the coalition include public-policy groups such as Public Knowledge and the Open Technology Institute, as well as technology companies like Google, Comcast and Microsoft.
Whether you’re an American sitting at laptop in Hawaii or a Japanese citizen using your smartphone in Kyoto, French privacy regulators believe they have the authority to block search results you otherwise might receive on Google.com or Google.jp.
It’s unlikely that even Louis XIV thought French regulatory authority should stretch so far. On Monday France’s data-privacy agency ordered Google to delist certain links (that is, remove them from search results) everywhere it operates and in every service it offers. The French regulator CNIL, for Commission nationale de l’informatique et des libertés, rejected Google’s appeal of an earlier commission order that the search giant remove all links to the names of anyone who requests to have them removed under French law.
The decision has potentially disastrous consequences for the Internet we have grown to love—a platform that, because it’s administered by standard technologies and protocols, makes it possible for anyone on the globe with Internet access to peek into the publicly available information everywhere else.
CNIL says it is merely applying the language of a May 2014 European Court of Justice decision that vindicated a Spanish lawyer’s so-called right to be forgotten. But in practical terms, the agency is extending that precedent far beyond the language of the ECJ decision.
Google’s response to the earlier decision was to consider each demand on a case-by-case basis and delist links if the demands are likely lawful, but only on Google’s Europe-facing services—not Google.com. Google’s running transparency report on “European privacy requests for search removals” reveals that, as of Monday, there were nearly 67,000 French requests for link removal aimed at more than 219,000 web pages. (France leads the world in demanding “right to be forgotten” takedowns.) Nearly half those URLs have been removed.
The CNIL says that isn’t enough:
Google received several tens of thousands of requests from French citizens. It delisted some results on the European extensions of the search engine (.fr; .es; .co.uk; etc.). However, it has not proceeded with delisting on other geographical extensions or on google.com, which any Internet user may alternatively visit.
Anyone who takes the time to figure out some basics of the Internet works can find how to circumvent territorially oriented rules about content, based on things like country-level domains or Internet-protocol addresses. As a result, the CNIL has concluded, the only acceptable outcome is for the French and EU rules to apply everywhere in the world—even, in theory, on Google sites serving users in languages like Japanese or Tagalog. Or, of course, English.
But the questions of what Google and other search engines should censor run deeper than a nation’s (or a politico-economic union’s) privacy laws. For instance, as David Jordan of the BBC has pointed out, there’s the question of preserving history:
Since the advent of Google our news reports are now just a click away for anyone with a computer, as the Spanish man who brought the ECJ case found. Our online news is far more accessible today than the newspaper archives of libraries. But in principle there is no difference between them: both are historical records. Fundamentally it is in the public interest to retain them intact.
The BBC has made a point of listing the URLs it removes in response to right-to-be-forgotten demands. “We are doing this primarily as a contribution to public policy,” BBC Managing Editor Neil McIntosh wrote.
Then there’s the larger guarantee of freedom of inquiry. The “right to be forgotten” (which is not, in fact, a “right to privacy,” but instead a right to limit access to already-public information like news reports) is a new idea whose outer bounds are not yet established. It’s heartening that a recent article in the European Data Protection Law Review shows Dutch courts may be more willing to balance freedom-of-expression interests against right-to-be-forgotten demands. Summarizing one decision, the authors write:
The Court says two fundamental rights are stake. Firstly, the [plaintiff’s] right to privacy as protected by the European Convention on Human Rights. … Secondly, Google’s right to “freedom of information” (as the Court calls the right to receive and impart information)… [as] protected by the Convention and the Dutch Constitution. … The Court adds that the interests of Internet users, webmasters, and authors of online information should be taken into account as well.
The Dutch court decision relies on the European Convention and the Dutch Constitution, but the global human-rights framework that underlies and informs both, and that protects the rights of people in other nations as well, is the Universal Declaration of Human Rights. That document declares that everyone has the right not merely to “freedom of opinion and expression,” but also the freedom “to seek, receive and impart information and ideas through any media and regardless of frontiers.” Other human rights documents add provisions for protecting “reputation or rights of others” (typically against false factual statements rather than true ones), and it’s generally understood in free societies that these reputational rights don’t normally limit the protections for freedom of inquiry.
But does that freedom extend to search engines and their users? It should. Accurate records of the facts aren’t nearly so useful to any of us if they are made artificially harder to find. The freedom to seek and to impart information online doesn’t mean much on the internet if internet Web search tools are constrained by broad, vague, (national governments being as different from one another as they are), inconsistent, and unpredictable demands for erasure of facts.
Long before the Internet, of course, we had a vision of what it means when it’s easy to alter history, or to hide it. In Nineteen Eighty-Four, George Orwell’s protagonist, Winston Smith, had the job of rewriting old newspaper articles to reflect his totalitarian government’s current ideological views. Reading the novel as a 10-year-old, I often wondered the point of this job, since (as I thought then) hardly anyone looks up old newspaper articles. Of course, today that’s something all of us do online by reflex, and with the help of Internet search tools.
The point, of course, is that the Internet has expanded our expectations of what freedom of inquiry means. So why should we let an overreaching government—whether it’s French or American or anyone else’s—take that away?
Now comes along another strong conservative case for congressional re-assertion from Kevin R. Kosar, a senior fellow at the free-market R Street Institute, whose new essay, “How to Strengthen Congress” is in the new issue of the right-leaning quarterly National Affairs.
Describing the events of 2015, Kosar writes that “Republicans were left spluttering over Obama’s power grabs.” But without adequate capacity, it is no wonder they had only spluttering to offer. Congress, in Kosar’s stinging phrase, was “complicit in its diminution.”
Dear Member of Congress:
On behalf of our organizations and the millions of members we represent, we urge you to ensure that any legislation providing discretionary funding for Fiscal Year 2016 adhere to the discretionary spending levels set forth by the Budget Control Act of 2011 (BCA).
Congress passed the BCA with bipartisan support and a promise to cap overall discretionary spending every year for the following decade. Even with these modest spending limits, discretionary spending will still increase in 2016 and every year thereafter.
Since its implementation, the BCA has been a rare victory for fiscal responsibility in Washington and has helped to control the growth of government spending and reduce deficits. Sadly, though not surprisingly, some in Washington want to abandon the BCA caps in order to spend more taxpayer money and add to the growing debt burden for current and future generations.
Facing an $18 trillion national debt, abandoning these modest spending limits by directly breaking the BCA caps or using budget gimmicks to get around them would be fiscally irresponsible and send a dangerous message to the American people. Hard-working Americans deserve to have their policymakers live up to their promises on spending. Under the BCA, total discretionary budget authority in FY 2016 is capped at $1.016 trillion. Any discretionary spending legislation exceeding that level would break the promise made to the American taxpayers.
Marc Short, President
Freedom Partners Chamber of Commerce
Phil Kerpen, President
Coley Jackson, President
Americans for Competitive Enterprise
Rick Manning, President
Americans for Limited Government
Brent Gardner, Vice President of Government Affairs
Americans for Prosperity
Grover Norquist, President
Americans for Tax Reform
Norm Singleton, Senior Vice President
Campaign for Liberty
Andrew F. Quinlan, President
Center for Freedom & Prosperity
Tom Schatz, President
Council for Citizens Against Government Waste
David McIntosh, President
Club for Growth
Coalition to Reduce Spending
Lawson Bader, President
Competitive Enterprise Institute
Pete Hegseth, CEO
Concerned Veterans for America
Penny Nance, President and CEO
Concerned Women for America
Adam Brandon, President and CEO
Andrew Clark, President
Mario H. Lopez, President
Hispanic Leadership Fund
Heather R. Higgins, President and CEO
Independent Women’s Voice
Carrie Lukas, Managing Director
Independent Women’s Forum
Daniel Garza, Executive Director
The Libre Initiative
Brandon Arnold, Executive Vice President
National Taxpayer Union
Andrew Moylan, Executive Director
R Street Institute
Steve Ellis, Vice President
Taxpayers for Common Sense
Paul J. Gessing, President
Rio Grande FoundationDaniel Garza, Executive Director
From The Grist:
The GOP leadership has yet to show any signs of moderation on climate change, and they control the agenda. The threat to House Speaker John Boehner’s leadership comes from conservatives within his party, not the cosponsors of this resolution, who largely hail from swing districts. “Keep in mind that these are moderates,” says Catrina Rorke, director of energy policy at the R Street Institute, a conservative think tank. “They face risk from the other side of the aisle more than in a primary and that’s not the calculation that the leadership faces.”
After last November’s elections left Republicans with control of the Senate and an expanded advantage in the House, triumphant party leaders announced their intention to do the hard work of governing. “Your priorities will be our priorities,” Speaker John Boehner promised the public. The leadership of both chambers even pledged to work with the White House, against whom they had been campaigning for several years. “I think we ought to start with the view that maybe there are some things we can agree on to make progress for the country,” Senate majority leader Mitch McConnell said. He even sounded a note of hope, observing that divided government was “not unusual” in American politics.
With congressional approval ratings at historic nadirs and Republican majorities in both chambers, GOP leaders promised to put an end to Congress’s partisan sniping and dysfunction. To prove it, leadership would keep Congress in session more days. Regular order would return, with its attendant debate, amendment process, and open floor votes. Congress, in short, would behave like the first branch in the world’s first modern democratic republic.
In the weeks and months that followed, however, Republicans quickly came to see how little power they actually had to govern. First, President Obama rebuked House Republicans for failing to pass his immigration-reform legislation; then, he took executive actions to change immigration policy. More displays of executive might followed. The National Labor Relations Board issued regulations to make it easier for unions to organize in open shops. The Federal Communications Commission, at the president’s behest, proposed “net neutrality” rules, despite the express opposition of Congress. Obama vetoed the Keystone XL pipeline, which his State Department had tied up for years. With congressional negotiations over cyber-security policy ongoing, the president issued an executive order directing the Department of Homeland Security to act.
While the president and other executive agencies took action, Republicans were left spluttering over Obama’s power grabs. It is easy to criticize the president for overreach, but that would fail to account for the more fundamental problem: Congress has not been the dominent branch for decades. The executive surpassed it long ago.
The executive branch’s growth in size and influence means more concentrated power and less democratic accountability. Each new exercise of executive power creates precedent to justify its future use. Today, the United States has an executive branch that can do just about anything it pleases, over the objections of the people’s representatives, and sometimes to spectacularly bad effect.
Congress has been complicit in its own diminution, but any path to reining in the executive must begin with the legislative branch. The most democratic of the three branches, only Congress has sufficient constitutional power to bring the executive branch to heel. To reverse the current state of executive-dominated governance, Congress needs to take steps to remedy decades of neglect and bad decisions that have enfeebled the first branch while empowering the executive.ECLIPSING CONGRESS
The founding fathers did not intend for the executive branch to be as large and powerful as it has become. Ironically, the founders feared that Congress, not the executive, would be the greatest threat to republican democracy. “In republican government,” Madison declared in the Federalist Papers, “the legislative authority necessarily predominates.” It “alone has access to the pockets of the people,” enabling it to extend “the sphere of its activity” and draw “all power into its impetuous vortex.”
Article I of the Constitution establishes the national legislature and grants all lawmaking power to it. Only Congress, not the government generally, may “coin Money” and regulate its value, “lay and collect Taxes,” and “establish an uniform Rule of Naturalization.” Congress, and especially the House of Representatives, is to be the place where the will of the people, the ultimate fountain of power, is represented.
In contrast to Article I, Article II of the Constitution is brief — a little more than 1,000 words, half of which are devoted to outlining how a president is to be selected, compensated, and removed. The president may appoint “Officers of the United States” and “require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” The president’s own enumerated powers mostly relate to international affairs. Even though the president is commander in chief, Congress retains the power to “raise and support armies,” “provide and maintain a navy,” and “declare war.” The president’s most fundamental duty is to “take Care that the Laws be faithfully executed.” That is it.
After rebelling against the tyranny of monarchy, the founders took great pains to conceive a new and much weaker executive, even after the Articles of Confederation failed in part for lack of a true executive. Alexander Hamilton, who was more enamored of a powerful executive than most of his peers, underscored how circumscribed the executive would be in Federalist No. 69:
The President of the United States would be an officer elected by the people for four years; the king of Great Britain is a perpetual and hereditary prince….The one would have a qualified negative upon the acts of the legislative body; the other has an absolute negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the sole possessor of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments.
How then did the executive branch come to have so much control? In short, all three branches of government contributed to the flow of power from Congress to the executive.
Some of this growth has come from the executive branch’s own actions, as the executive has sought to expand its sphere of authority. The means of expansion vary: Bureaucratic policy entrepreneurs expand federal agencies’ missions by construing them broadly; regulatory and other administrative authorities are employed to expand the scope of agency activities; interest groups urge bureaucrats to bring new problems to Congress for funding; and federal-employee organizations push for more jobs and higher compensation.
Article II’s very parsimony has, paradoxically, also facilitated the growth of executive power, especially since the turn of the 20th century. In his autobiography, Theodore Roosevelt described a “stewardship” vision of the executive, which effectively interpreted Article II’s silence as a blank check for action:
I declined to adopt the view that what was imperatively necessary for the nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the nation demanded unless such action was forbidden by the Constitution or by the laws. Under this interpretation of executive power I did and caused to be done many things not previously done by the President and the heads of the departments. I did not usurp power, but I did greatly broaden the use of executive power. In other words, I acted for the public welfare, I acted for the common well-being of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition.
Some presidents have also claimed “inherent” — not to be confused with implied or emergency — powers in Article II’s text. For example, Harry Truman justified the seizure of the steel industry on the grounds that he was commander in chief (although the Supreme Court struck down his action soon after). Truman intimated that this inherent authority would also allow him to take control of newspapers and radio stations.
The Supreme Court allowed the executive to grow by eliminating some structural barriers to federal spending in a couple of cases in the early 20th century. In 1923, the Supreme Court ruled in Massachusetts v. Mellon that the federal government could set up a matching-grant program with states to help needy mothers and their babies. In Helvering v. Davis — decided in 1937, just after the Supreme Court’s progressive turn — the Court declared Social Security constitutional. The Supreme Court held in Helvering that “Congress may spend money in aid of the ‘general welfare,'” and, in determining what constitutes the general welfare, “[t]he discretion belongs to Congress.” These decisions and others invited Congress to spend money on local areas of policy and anything that might be reasonably construed to promote the general welfare — generating the need for a massive executive bureaucracy to administer these social programs.
Today, the executive branch has 4.1 million civilian and active military employees and a budget of $3.9 trillion per year. The most recent United States Government Manual lists nearly 120 executive agencies, which does not include the 60 other “independent” entities, like the Federal Communications Commission, the heads of which are appointed by the president. The federal government also funds and directs the work of millions of proxies, as John DiIulio pointed out in these pages (see, “Facing Up to Big Government” in the Spring 2012 issue). The U.S. Defense Department relies on 710,000 contractors, while the federal Head Start program is administered by 200,000 state, local, and private-sector employees. A recent Environmental Protection Agency’s inventory of active contracts runs 79 pages, listing vendors from Aarcher, Inc., to Zero Waste Solutions, Inc.
Congress, however, must shoulder most of the blame for the burgeoning executive branch. Congress’s willingness to tax and borrow relentlessly and its inability to limit its spending to purely national purposes have only aided the growth of the executive’s reach and influence. Additionally, the legislature has frequently given away its lawmaking authority to regulatory agencies. In some instances, this has been understandable because the subject matter was so complex. But too often, Congress punts to avoid political disputes. As Christopher DeMuth observed in the Summer 2012 issue of National Affairs, “Congress is often unable or unwilling to agree on anything beyond such velleities as ‘protect the public health,'” or, as in “Congress’s mandate to the Consumer Financial Protection Bureau created by Dodd-Frank: ‘[E]nsure that all consumers have access to markets for consumer financial products and services…[that are] fair, transparent, and competitive.'” DeMuth rightly observes, “In these cases, the agencies make the hard policy choices. They are the lawmakers.”
The data here tell the tale. Congress enacts perhaps 50 significant laws each year. Agencies issue 4,000 new rules per year, and 80 to 100 have economic effects of $100 million or more. And these numbers do not include “guidance” documents issued by executive agencies, which can have the same effect as regulations. The Code of Federal Regulations, the corpus of current agency rules, holds more than 170,000 pages. All this indicates that the executive branch has displaced Congress as the primary locus of lawmaking in the country.
The aggrandizement of executive authority began a century ago, and its effects have compounded over time. The shift of power to the executive branch has eroded popular sovereignty and accountability, as lawmaking power has moved away from elected officials to anonymous, tenured-for-life bureaucrats. A diminished Congress has led predictably to an executive branch increasingly emboldened to do whatever it pleases.
The examples are legion. The National Security Agency vacuumed up more data than it was legally authorized to collect. The Internal Revenue Service subjected conservative groups to extra scrutiny. The Bureau of Alcohol, Tobacco, Firearms and Explosives allowed American guns to be sold to straw buyers for Mexican gangs. The Postal Inspection Service compromised citizen privacy and free-association rights by rubber-stamping law enforcement requests for correspondence data. The U.S. Justice Department’s Orwellian “equitable sharing” asset-seizure program has taken more than $2 billion from individuals not charged with crimes. The Central Intelligence Agency snooped into the computers of Senate Intelligence Committee staff.
The growth of the executive leviathan and the long-term degradation of the first branch cannot be fully reversed. The combination of institutional inertia, an expansionist view of the presidency, and political self-interest means that the executive has likely been strengthened permanently. Certainly, the executive branch is not going to cede any powers voluntarily, and the Supreme Court gives no indication that it will revive the old fiscal curbs or significantly restrict regulatory lawmaking. Our best hope is a Madisonian solution: Congress must restore itself as a co-equal branch with sufficient strength to push back against executive expansion.THE KNOWLEDGE PROBLEM
The founding fathers set up a kind of principal-agent relationship between Congress and the executive branch, with the president ideally executing the will of the legislature. The first branch could prevent the executive from becoming the “foetus of monarchy,” as Edmund Randolph colorfully called it, through the power of the purse, impeachment of the president and civil officers, and the passage of laws over the president’s veto. Pace the proponents of the “unitary executive” theory, Article I further provides Congress with some executive-like authorities, in that Congress may establish executive departments and “make Rules for the Government and Regulation of the land and naval Forces.”
In order for this relationship to work effectively, however, Congress has to know what the executive branch is doing. During the first century of our republic, when government posts were staffed largely by patronage, the knowledge gap between legislators and civil servants was modest. Congress could roughly apprehend the rudiments of the whole of the federal government: There were eight departments in 1900, with 230,000 employees, 135,000 of whom worked for the Post Office Department. Congressional policymaking and oversight concentrated on appropriations, private relief bills, and infrastructure and lands-related issues.
The information asymmetries between the branches today are severe compared to a century ago. Elected officials arrive at the Capitol as amateurs — that is the nature of republican government. Executive bureaucrats, in contrast, are professional and often effectively tenured for life. The Pendleton Act of 1883, meant to end federal patronage, regularized the federal hiring system and as a result expanded the knowledge gap between legislators and the executive agencies. Increased policy complexity and the breathtaking expansion of the federal government have attenuated and frayed the principal-agent relationship. At the start of the most recent Congress, 58% of House members and 54% of Senate members had no more than eight years of experience on the job. And congressmen spend just one-third of their time on policymaking and oversight, making it more difficult for these members to get up to speed. The rest of their time, according to a Congressional Management Foundation report, is devoted to meeting with constituents and interest groups, fundraising, and other activities.
A part-time, mostly amateur legislature cannot compete with a colossal, full-time executive branch. Congress has floundered in its duty to comprehend, to say nothing of manage, a federal government with a budget of $3.9 trillion and an extremely large body of law (the U.S. Code volume of laws relating to agriculture alone runs 2,000 pages). It is time to lay to rest the appealing notion of the earnest, amateur legislator who can appear at the Capitol three days a week and govern with pure horse-sense. The leviathan is too huge, complex, and relentless for that.
Congress can help decrease this knowledge gap by investing in its own capacity. It should first increase the length of the congressional calendar. Congress cannot simply convene on a Tuesday through Thursday schedule and expect to be in Washington only one-third of the year. That schedule does not leave sufficient time to learn what government is doing and why, let alone to determine what to do about it. Legislators should accept a mandate from congressional leadership to work five days a week for three weeks out of every five, regardless of accusations of having contracted “Potomac fever” or the threat of a primary challenge.
Spending more days in briefings and hearings likely will not do enough to shrink the knowledge gap. Legislators need more help to bridle the executive branch. Though federal spending today is ten times larger than it was in 1975, the House and Senate employ fewer staff members than they did then. Of the 16,000 congressional employees, half work outside Washington and devote themselves mostly to local and constituent issues. A significant percentage of the 8,000 Capitol Hill staffers have less than three years of experience, due to the low pay and grueling hours, and many members’ personal staffs — often to their despair — are devoted to constituent-service and communications duties, not policy work. Even those who are inclined to stick it out find that there are few policy positions to which they can ascend. The solution here is simple: Members should be granted the resources for more policy-focused staff positions.
Committees also need to be strengthened. Just a few decades ago, agency oversight hearings were a matter of course, and committees would publish hearing reports in which they assessed evidence and suggested reforms. Slow-to-respond agencies would be certain to face follow-up questioning from long-serving chairmen or ranking members. But ever since 1995, Republicans have placed a six-year term limit on chairmanships, absent a waiver. This has had the perverse effect of reducing the incentives for chairmen to approach their positions with a long view. Today, hearings often are spectacles for the press, and agency oversight no longer occurs with the same regularity it once did.
The frequent rotation of committee chairmen also contributes to talent loss. A new chairman usually dumps some and sometimes all of his predecessor’s staff, a practice that can gut a committee’s institutional knowledge. Committees also lose many talented staffers to the private sector, which pays better and offers more pleasant working conditions. Committees could retain skilled talent by expanding their staffs, raising salaries, and making staff retention the norm.
The Senate should also give serious thought to reducing the number of committee assignments each member has. It is difficult for a senator to become an expert in any subject when he is assigned to seven different committees, each with vast jurisdiction. Fewer assignments would also shrink the unwieldy size of committees; the Senate Finance Committee, for example, has 26 members. With fewer policy dabblers on the dais, committees would function more professionally and effectively.STRENGTHENING CONGRESSIONAL SUPPORT
Giving congressmen more resources would certainly help strengthen Congress as a whole, but Congress can do more than just expand its own staff and schedule. While federal spending and the executive branch have ballooned, Congress has downsized its research and analytical support staff by about one-third over the past 40 years. Congress currently spends $4.5 billion, just 0.1% of annual federal spending, on the legislative branch, which includes itself, the Congressional Budget Office, Government Accountability Office, and Congressional Research Service. This has left Congress heavily dependent on lobbyists for legislative analysis, a less-than-ideal arrangement for obvious reasons.
The CBO’s headcount has increased since it was established 40 years ago, but its 250 employees are inadequate to fulfill its mandate to create cost estimates for proposed legislation. The office does not have sufficient manpower to publish formal scores of every bill introduced in Congress. Instead, the agency largely limits itself to scoring legislation approved by committees, as well as to generating informal estimates, which are not released publicly, for some draft legislation and amendments. While imperfect, CBO estimates provide a starting point to assess the costs and benefits of new legislation. The office should be staffed to provide a price tag for every proposed bill so that congressmen and their constituents can see the cost of proposed ideas.
The GAO is Congress’s watchdog. It has statutory investigative authority, which it employs to audit agencies’ use of tax dollars and investigate allegations of waste, fraud, and abuse. The agency also provides policy analyses and legal opinions on executive-branch operations. GAO staff members are often detailed to congressional committees for months to help with oversight. Every two years, the GAO publishes its “high-risk list,” which identifies the federal activities (such as Veterans Affairs health-care management) most at risk for fraud and failure. GAO studies regularly make news; for example, it was a GAO report that revealed the federal government had made $125 billion in improper payments in 2014.
The office’s output is incredibly useful because it examines the work of executive agencies and forces them to defend their work publicly. One way the GAO holds agencies accountable is by generating metrics on their responses to criticism, noting that an agency has implemented, say, three of GAO’s ten recommendations. And the results are quite positive for taxpayers: By one estimate, the GAO saves taxpayers $100 for every dollar of funding it receives. Yet the ranks of GAO staff have dwindled 40% since the 1970s, from about 5,000 to just 3,000.
The CRS modestly describes its role as “providing policy and legal analysis to committees and members of both the House and Senate, regardless of party affiliation.” In truth, CRS policy analysts, attorneys, and reference librarians help Congress with just about everything. They draft digests of every bill introduced, write analyses and legal opinions, and offer research assistance to harried congressional staff. CRS staff train new members and advise experienced lawmakers in legislative procedure. CRS experts help committees to prepare for oversight hearings and sometimes are called on to testify themselves.
While Congress’s demand for research assistance has skyrocketed, the staff of CRS has shrunk, dropping 22% between 1979 and 2011. Many CRS analysts answer hundreds of congressional requests each year. Congress would greatly help itself by funding more staff for CRS, particularly reference librarians, whose assistance would free up analysts to do more in-depth research for congressional committees. The CRS also needs more flexibility in personnel decisions; currently, the agency must follow antiquated and onerous Library of Congress and government-wide hiring, promotion, and retention rules. Neither CRS nor Congress benefits when it takes months to hire a new analyst or years to remove an underperforming one.
Congress should strengthen these institutions, but it still lacks an institution to deal directly with new executive regulations. The GAO conducts a basic review of significant rules that have economic effects of $100 million or more, but such examinations tend to be limited to considerations of whether an agency followed due process. Congress should establish a Congressional Regulation Office, modeled on the CBO, to help it deal with new regulations. This new CRO would employ experts who track regulations and field questions from members and committees. Critically, the CRO could provide analysis of the substance of rules and whether agencies are using proper metrics in conducting their cost-benefit analyses.
Finally, Congress could make better use of its most obvious allies in its ongoing battle with the executive: inspectors general. The inspectors general are part of the executive branch, but Congress should seek to make them more independent of the agencies that they monitor — and as a result make them a more potent oversight institution and a better ally of Congress.
By law, the job of an inspector general is to “promote economy, efficiency, and effectiveness” and “prevent and detect fraud” in his particular agency. There are more than 70 inspectors general working in large cabinet agencies, in small entities like the Equal Employment Opportunity Commission, and in temporary, “special” capacities (e.g., the Special Inspector General for the Troubled Asset Relief Program). Within the bureaucratic state, inspector-general offices are often treated as turncoats whose work should be impeded. Their investigations and audits regularly identify corruption and waste, embarrassing the agency but helping the taxpayer. A study of 19 inspectors general by John Hudak and Grace Wallack of the Brookings Institution found that all 19 provided a positive return on investment. For every $1 spent on the Department of Health and Human Services inspector general, for example, over $19 were returned in improper payments recovered or errant outlays avoided.
Congress can strengthen the role of inspectors general in two ways. First, it ought to make all inspectors general presidentially appointed and Senate approved. Currently, about half are appointed by the heads of the very agencies they must investigate, which creates potential conflicts of interest. Second, each inspector general should be authorized to submit his budget requests directly to Congress. Many presently must seek their funding from agency heads, which compromises their independence from the agency they are meant to monitor.SHRINKING THE EXECUTIVE
More legislative-branch staff and external support will enable Congress to better comprehend the scope of executive power and expose its misdeeds. But for Congress to regain its stature as a co-equal branch, it must also trim the executive to a more manageable size.
The problem is not that there are too many federal employees; the federal workforce is about the same size as it was in 1960. Rather, as Steven Teles has observed, the problem is the executive branch’s incoherence and impenetrable complexity, or “kludgeocracy” (for more on this, see “Kludgeocracy in America” in the Fall 2013 issue of National Affairs). The GAO has issued many reports on overlap, duplication, and fragmentation among federal programs. There are 82 different programs focused on improving teacher quality operated by ten different agencies, to take just one example.
Pruning the executive will require Congress to launch a two-pronged attack that both slows the production of new initiatives and chops the existing number of programs. There are several steps Congress can take to slow the growth of government. Sequestration and budget caps, such as those enacted in the Budget Control Act of 2011, are crude tools, but these hard limits indisputably serve to slow the growth of the executive branch. If preserved in its current form, the BCA could shave $2 trillion in discretionary spending over a decade. But the caps have been revised once already, and Congress faces intense political pressure to repeal the BCA’s caps completely. Ensuring that there are no more than modest future adjustments to the BCA’s spending limits would help restrain the growth of government. But in keeping the caps, Congress should ensure that cuts do not fall on its own support agencies or the inspectors general.
Further, the legislative branch would be well-served by requiring Congressional approval for the most significant agency regulations. This should be limited to a handful of major rules that have substantial, tangible costs to the public or the private sector. The idea of legislative review of regulations is not novel and is commonly practiced at the state level. Connecticut has a Legislative Regulation Review Committee that approves regulations before they take effect. The proposed REINS Act (Regulations from the Executive In Need of Scrutiny) would implement this requirement at the federal level and has passed the House three times in recent years. Congressional review of legislation could slow executive power grabs and would have the additional benefit of forcing regulatory policy onto the congressional calendar.
These two mechanisms would slow the growth of the executive, but Congress should also try to cut the number of existing federal programs. Attempts to abolish any single federal program or activity tend to be stymied by the simple reality that every policy, program, and bureaucracy has advocates both inside and outside of Congress. One potential avenue to overcome this impediment would be to bundle proposed cuts into an omnibus, up-or-down legislative process, as has been used in the Base Realignment and Closure process or so-called “fast-track” trade-promotion authority. A commission could be appointed to identify cuts, which would be rolled into a single bill that could not be amended, and Congress would then vote the package either up or down, thereby cutting out the horse-trading that so often leaves federal programs intact.
A similar tool, which has been on the books for 40 years, is the budget reconciliation process. It has been used a couple dozen times since 1975, most famously at President Ronald Reagan’s behest in 1981. The process requires Congress to adopt a budget resolution pegged to aggregate spending levels and to include instructions for one or more committees to achieve particular spending reductions. Once committees report their cuts, the entire budget package receives a prompt vote.
Additionally, Congress should establish a commission to identify archaic and wasteful regulations and another to identify failed or needless executive-branch programs. Each would take suggestions from the public and work with congressional support agencies to ensure the cuts are sensible. Upon completion, each commission’s report would be delivered to Congress for introduction and a prompt up-or-down vote. So long as the program and spending reductions and terminations are modest and defensible, congressmen would have a difficult time voting against such a package.STRENGTHENING REPUBLICAN DEMOCRACY
For supporters of republican democracy, the efforts by the current Congress to govern and rein in the executive branch are heartening. It has spent more time in session and more time actually legislating than many recent Congresses, according to initial metrics from the Bipartisan Policy Center. Committees are reporting bills, and both chambers are showing signs of being more deliberative. In May, Congress adopted a budget resolution for the first time in several years. It invoked the Congressional Review Act in an attempt to strike down new regulations by the National Labor Relations Board (although President Obama vetoed the resolution), and Congress lined up disapproval resolutions to quash the Federal Communications Commission’s net-neutrality regulations and the EPA’s jurisdiction-expanding “Waters of the U.S.” rule.
These efforts have had limited impact, however. A can-do attitude plainly is not enough. Even though the executive and legislative branches are meant to check and balance each other, when one is vastly larger and more powerful, the other cannot play its constitutional role effectively. The result is a government that is off balance, less democratic, and more vulnerable to tyranny.
In order to begin to restore the constitutional republic that the founders envisioned, Congress must invest in itself as an institution and make some real progress in pruning the executive branch. Congress cannot wait for the Supreme Court to change its mind, and it cannot expect the executive to give up any of its power. Congress may be weakened, but it is not broken, and it can regain, through several discrete and prudent steps, at least some of its former strength.
Assignment of Copyright: Transfer ownership of a copyright from one party to another. Writing is required to take effect.
Copyright: A protection given to an original work, which is “fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device.” This protection may be allotted to literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural and audiovisual works.
- Copyright literally means “the right to copy.” This exclusive license may be provided by the original owner to another party to create copies of the work.
- Protection does not extend to an idea, procedure, process, system title, principle or discovery. Furthermore, names, titles, short phrases, slogans, familiar symbols, mere variations of typographic ornamentation, lettering, coloring and listings of contents or ingredients are not subject to copyright.
Copyright Royalty Board (“CRB,” “Rate Court”): An Article I court – that is, one created under Article I of the U.S. Constitution to administer laws on behalf of Congress. This court consists of three copyright royalty judges. The board is appointed by the head of the Library of Congress, which determines the statutory royalty rates for compulsory licenses.
- The board periodically sets the statutory mechanical royalty rate, which is currently $0.091 per track or $0.0175 for each minute of playing time, whichever is greater.
Derivative Work: A work based upon one or more preexisting works. The individual seeking to create a derivative work must be granted rights by the original owner of the copyright.
- Examples: “translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation or any other work within which a work may be recast, transformed or adapted.”
- Famous example is the Gipsy Kings’ cover of the Eagles’ “Hotel California,” a Spanish-language translation of the original song
Fair Use (17 USC § 107): Decided by a judge following the now-codified four-factor balancing test. It is a limitation and exception to the exclusive rights granted by copyright law to an author of a creative work that permits limited use of the copyrighted material without acquiring permission from the copyright holder, based on:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
- Examples of fair use include parody, search engines, library archiving, commentary, criticism, news reporting, research, reverse engineering, data-mining, teaching and academic scholarship.
Parody: The use of some elements of a prior author’s composition to create a new, distinct piece of work. Often considered a derivative work, the level of “transformativeness” from the original work under the Fair Use test is used in consideration.
- Parody was famously litigated in the Supreme Court case, Campbell v. Acuff-Rose Music, Inc.
Partial Withdrawal: In works with more than one author – commonly known as “split works” – one copyright owner may withdraw their copyrighted portion of a song. If this happens, the entire work will not be able to be used.
Sampling: Taking material from an existing sound recording to create a new, unique work. Fair use is often employed as a defense against copyright infringement, but most artists employ a license to use the composition. (See Case Law Annex on “sampling.”)
Split Works (“Co-Authored,” “Co-Pub,” “Fractional Licensing”): A work with two or more authors. Multiple artists may retain a copyright in either the composition or sound recording. Each artist may have their own set of guidelines for how the work should be distributed, including the granting of nonexclusive licenses. Furthermore, each part of the work is subject to withdrawal by one of the copyright owners: each rightsholder has the ability to unilaterally veto, but not unilaterally authorize. Each author must be consulted when seeking to license.
- Currently under review by the Department of Justice due to possible anticompetitive practices on the part of ASCAP and BMI.
Terrestrial Radio: Broadcasts across the AM and FM radio spectrum. Terrestrial radio transmitters of copyrighted music are required only to pay a singular royalty rate for songwriters and composers. These royalties are distributed by a PRO, such as ASCAP, BMI, SESAC or SOCAN.
Work for Hire: (17 USC §101): Work prepared by an employee within the scope of his or her employment. This work is specially ordered or commissioned and the employer is considered the author of the work, unless the parties agree to a division of rights.
Writer’s Share: A share of the copyright owned by the writer. Cannot be bought, sold or sub-licensed.Publishing
American Society of Composers, Authors and Publishers (“ASCAP”): Founded in 1914, this performance rights organization (PRO) was created and is controlled by composers, writers and music publishers. Artists are required to be a member of an ASCAP publishing company to collect royalties from sound recordings.
- Holds a reciprocal license with PRS for Music (“PRS”) in the United Kingdom to collect foreign performance royalties. If a song is played in the United Kingdom by a U.S. artist and the artist is a member, they will receive their royalties.
- Often attributed as one of the leaders in jazz proliferation. Holds an annual ceremony for the Jazz Wall of Fame in its’ New York City office.
- A common situation is when an artist does not belong to a publishing organization and their music is played in a foreign country. Because their interests are not represented by an organization, they are unable to receive a royalty.
Blanket License: A license which allows a user to play or perform all compositions within a performance rights organization’s catalog without limit.
- The license is generally for one year and held by service providers, such as restaurants and retail outlets.
Broadcast Music Inc. (“BMI”): Founded in 1939 at the inception of broadcast terrestrial radio by radio executives in the National Association of Broadcasters (NAB) as a low cost alternative to ASCAP. The only PRO that does not require a publishing company to collect a publisher’s shares of royalties from sound recordings. All that is required is a one-time fee paid to BMI.
- The first PRO to represent historically black genres of music: blues, jazz, rhythm and blues and gospel. In addition, BMI actively sought to purchase catalogs from independent publishers and artists of country, folk, Latin music and early rock and roll.
- Represents most members of the American Academy of Arts and Letters.
Compulsory Mechanical License: A license granted under Section 115 of the Copyright Act, it allows any individual to rerecord a song that already has been commercially released. Permission is not required from the musician’s publisher so long as it was paid the statutory rate.
- Applies on a song-by song basis.
- Copies of compact discs or records – as well as copies made from digital transmissions, downloads and data streams – fall under this category.
- Some copies are more expensive than others. For example, a ring tone may cost up to $0.24 per copy.
Creative Commons License: This license allows authors the ability to give up certain rights in their copyright – “some rights reserved” – while retaining others.
- This license makes a work available for certain artist-dictated uses, such as noncommercial sharing and remixing.
- Many artists who are members of PROs also use a Creative Commons license.
- Examples of popular artists using Creative Commons licenses include Nine Inch Nails, the Beastie Boys, Radiohead and Snoop Dogg.
Direct Deal (“Direct Licensing”): When a service contracts directly with the copyright owner of the musical composition. This type of deal offers the incentive of a higher profit to publishing services, due to the ability of the service to bypass having to license from performing rights societies.
- A popular example of direct licensing is Apple Music, which boasts a higher royalty rate to artists (around 10 percent) contracted through direct deals with the music label. However profitable, this mode is time-consuming, confusing and, at times, expensive for the services.
Foreign Mechanicals: Royalties paid for the sale of copyrighted material outside of the United States. Unlike mechanical royalties in the United States, foreign mechanicals do not have a fixed rate. They are paid as a percentage of the wholesale price. These mechanicals are collected through local PROs. If left unclaimed for six to 18 months (depending on the territory) the societies will consider the writer lost and distribute the royalties to local publishers as “black box” royalty income.
- Mechanicals are collected by MCPS, a subsidiary of PRS, for music in the United Kingdom.
Harry Fox Agency: Established in 1972 by the National Music Publishers’ Association (NMPA), it is the primary and leading provider of rights management, licensing and royalty services in the United States.
- Collects for compositions (songs) for use on compact discs, records, tapes, ring tones, permanent digital downloads, interactive streams and other digital formats that support various business models, including locker-based music services and bundled music offerings.
Manufacturing and Distribution (“M&D”): A publisher (“distributor”) will pay for an album or single upfront, then retain income from distribution until the investment is paid off and a profit made, depending on the stipulated terms in the contract.
- Independent digital distributors include CD Baby, Tunecore, DistroKid and Loudr.
- Many major labels retain their own distribution rights: UMG, Sony, Warner Music Group, EMI
Mechanical Royalties: Payments made to songwriters for the reproduction of copyrighted works in digital and physical formats. Certain interactive digital services, but not non-interactive Internet radio like Pandora, must pay mechanical royalties. For sales outside of the United States, mechanical royalties require the services of a publishing administrator to collect.
- The Harry Fox Agency is the primarily collector of mechanical royalties in the United States.
Most Favored Nations Clause (“MFN”): A clause providing for the best negotiated agreement for royalties between parties. Under an MFB, each publisher receives the same royalty rate equal to the highest rate negotiated.
- MFN clauses are popular in the construction of “greatest hits” compilations, particularly where an artist may have had a series of different publishers or labels throughout their career.
- Songwriters, composers and lyricists become members of a PRO to receive royalties for their work to be played on radio: broadcast, satellite and digital streaming.
- Performance royalties may also be collected for the work to be played on television shows, commercials or performed in live venues, such as a sports arena.
- PROs act as gatekeepers, making sure an artist who has joined their service receives adequate compensation for the written lyrics or the musical composition.
- North American PROs: ASCAP, BMI, SESAC, SOCAN, SoundExchange
- United Kingdom: PPL, PRS for Music
Performance Rights Society (“PRS”): The equivalent of a PRO in the United Kingdom. Unless the contract between the songwriter and publisher stipulates otherwise, U.K. societies pay equal shares of the performance royalties to the songwriter and publisher.
- Phonographic Performance Ltd. (PPL):Collects and distributes royalties on behalf of publishers and performers for use of recorded music.
- PRS for Music: Collects and distributes royalties for musical compositions on behalf of authors, songwriters, composers and publishers.
- Holds a reciprocal license with ASCAP.
Performance Royalties: Public performance payments made to a songwriter or publisher for broadcast of a musical work. Collected by performance rights organizations such as ASCAP, BMI and SESAC in North America. PRS for Music collects in the United Kingdom.
Public Performance: The performance of a nondramatic work in a public space. While the number of individuals viewing or listening to the performance is a matter of dispute, the rule of thumb is that any individuals outside of immediate family or casual acquaintances constitute “the public.” If a performance in public is for a substantial number of individuals, a license is required from the owner of the copyright.
Publisher’s Share: The percentage of the music composition copyright owned by a publisher. This part may be bought, sold or sub-licensed.
Publishing Administration: Administers the rights of songwriters to make sure profits are received. This administrator only collects royalties and licensing fees on behalf of the copyright owner. In return, they receive a commission. This insures the artist’s work is distributed among the industry, to whom the artist may not have access if they had to venture to do this on their own.
- Currently, the commission rate is about 10 percent.
Record Label: A brand and often a publishing administration (see manufacturing and distribution), which manages the production, distribution, marketing and promotion for sound recordings and music videos. In addition, labels often scout talent by conducting broad searches and assist in the management and development of new artists, also known as “artists and repertoire” or “A&R.” Labels often act as intermediaries between an artist and their manager, maintaining contracts and rendering promotion of the artist.
- Labels acting as publishing administrators receive a share to promote the musical composition (see publishing administration).
- Labels often retain copyrights of musical composition.
Registration: The act of filing music with a PRO to receive a percentage of performance royalties. The local PRO will then apply for registration with a foreign publisher to receive mechanical and performance royalties. Registration with a PRO also provides subscription to a PRO database or “catalog” for work to be distributed to interactive and non-interactive services for a fee.
- A PRO may also withhold the catalog from a service as an act of bargaining power. This was most recently the case in the Rate Court decisions involving Pandora Radio.
Reversion Clause: A negotiated agreement between a publisher and songwriter. Upon a mutually negotiated date, rights retained by the publisher will return to the songwriter. This is typically decided on a per-song basis and dependent on how much work the publisher had to conduct to make the song popular. Furthermore, rights may be fully obtained by the publisher if they successfully placed the song into a major production or a cover has been obtained.
Royalties: Fees paid to rights owners for use of their work. Typically, held by record labels, publishers, writers and performers, these fees provide earnings from licensed songs for each sale or broadcast.
Royalty-Free Music (“Back-End Deal”): Income calculated from the performance of music in an audiovisual work, which does not require synchronization of a license. Income is generated from the performance, as opposed to the cue sheets.
Section 110(5) exemption (“homestyle exemption,” “business exemption”): An allowance under the Copyright Act for a business establishment to offer broadcast radio or TV broadcasts from a single apparatus, an “ordinary receiver,” without having to receive a license from the copyright owner. This section divides businesses into two major categories:
- Food or drinking establishment: Must not be larger than 3,750 square feet in gross, not including a parking lot (if the parking lot is not used for commercial purposes) and the audio work must come from one source and projected on no more than six loudspeakers, of which not more than four loudspeakers are located in any one room or adjoining outdoor space.
- For audiovisual works: There may not be more than four devices and no device may be larger than 55 inches. There can be a total of not more than six loudspeakers, of which not more than four loudspeakers are located in any one room or adjoining outdoor space.
- Non-food or drinking establishments: Must not be larger than 2,000 square feet in gross, not including a parking lot (if the parking lot is not used for a commercial purpose) and the audio work must come from one source and projected on no more than six loudspeakers, of which not more than four loudspeakers are located in any one room or adjoining outdoor space.
- For audiovisual works: There may not be more than four devices and no device may be larger than 55 inches. In total, there may not be more than six loudspeakers, of which not more than four loudspeakers are located in any one room or adjoining outdoor space.
- Free Internet-radio services like Pandora and 8Tracks have not been litigated as to whether they fall under the homestyle exception.
- Satellite radio, such as XM, does fall under the exception.
Society of Composers, Authors, and Music Publishers of Canada (“SOCAN”): Canadian PRO that is the result of the merger of Composers, Authors, and Publishers Association of Canada (CAPAC) and the Performing Rights Organization of Canada (PROCAN) in 1990. Functions the same way as PROs in the United States.
Society of European Stage Authors and Composers (“SESAC”): A PRO which operates by invitation only and no longer is exclusively European. Considered the most technology-savvy of the PROs, with a focus on digital media rights, due to its early work in electrical transcription recordings in the 1950s. It is the only PRO which collects and distribute sound recording royalties on a monthly basis.
- SESAC is a privately owned company and retains some income as profit. In addition, it does not publicly disclose the amount of performance royalty income paid to artists.
- SESAC is often attributed with allowing broadcasters to satisfy the Federal Communications Commission (FCC) requirements for gospel recordings in the 1930s.
SoundExchange: A PRO which collects sound recording royalties for copyright owners (“SRCO”) and artists from non-interactive digital transmissions, like satellite and Internet radio, as well as cable television, webcasts and music channels.
- In 1995, the Digital Performance Right in Sound Recordings Act of 1995 and the Digital Millennium Copyright Act of 1998 granted a performance right for sound recordings. Before then, sound recording copyright owners and performing artists did not receive any royalties for the live performance of their work.
- Originally created in 2000 as a division of Recording Industry Association of America (RIAA). I n 2003, it became a wholly independent nonprofit organization.
- Also collects royalties for comedy and spoken-word recordings.
Sub-Publishing: Contract between a primary publisher and a secondary co-publisher to handle exploration of a song by licensing and collecting royalties; sub-publishing agreements typically collect royalties from specialty, private label or foreign markets.
- Example includes the agreement between PRS for Music and ASCAP for collection of foreign broadcast royalties. This scheme avoids black box royalties (see black box royalties).
A La Carte Service: The most popular form of digital delivery. A user cherry-picks singular songs from a musician’s library to either stream or download. Downloads are charged by song.
- A popular example is Apple iTunes.
Area of Dominant Influence (“ADI”): Geographic area or market of a radio or television service.
Broadcast: Transmission or retransmission of pre-recorded works to multiple listeners through forms of “semi live” media.
Digital Download: A music file, typically encrypted and obtained through digital music stores or peer-to-peer (P2P) sharing networks. Copyright is subject to the media owner (DRM).
- Forms of digital music include: MP2, MP3, MP4, ACC and FLAC.
- Examples include downloads from Amazon.com or iTunes.
Digital Phonorecord Delivery (“DPD”): Digital download of a sound recording to a third-party application (see digital download).
Interactive (“On Demand”) Streaming: A digital service that offers transmission via a steady, continuous flow of data that allows the user to play a specific song without purchase.
- Examples include Spotify, SoundCloud, Tidal and Apple Music.
Non-Interactive Streaming: A digital service that offers transmission via a steady, continuous flow of data in which the user does not designate specific songs they wish to hear; such choices are made by the broadcaster.
- Examples include AM/FM and satellite radio.
Retransmission: A broadcast of a performance that is received and resent by a device or process. A transmission can be further transmitted multiple times to multiple places and devices.
Statutory Damages: A tort suffered by a copyright owner in cases of infringement whose magnitude is prescribed by law (“statute”). Such damages can range from $750 to $150,000 per infringement. However, statutory damages are capped at $30,000 per infringement in cases of non-willful infringement. Damages are calculated by per-infringement, meaning by song.
Statutory License: A license provided under the Copyright Act that allows the CRB to set rates and term for royalties collected and distributed for rights holders by SoundExchange.
- Section 112: Provides a license to reproduce phonorecords (occasionally referred to as “ephemeral recordings”), which is necessary for a digital format.
- Section 114: Provides a license for the public performance of sound recordings that result from a Section 112 transmission.
- Interactive and on-demand services, such as iTunes and Spotify, are required to negotiate licenses directly with the sound-recording owners.
Streaming: An audio transmission over a data network via a steady, continuous flow of data. Data are not stored in a user’s client.
- Examples of a client include a computer, cellular phone or an MP3 player with the technology to download an application to stream a piece of music.
Synchronization (“Sync”) Rights: A license often provided by a publishing company that allows for the synchronization of music with visual media (ex. film, television, advertisement, video game and website music).
Tethered Download: Music normally received from a subscription service which is encrypted and stored on a user’s hard drive, but prevents a user from acquiring it into their own library. Once the subscription is terminated, the file is deleted.
- An example is Spotify’s “offline” mode.
Transmission: Wireless broadcast of electromagnetic waves sent to a device from a tower.
Willing Buyer/Willing Seller Standard: Requires the CRB to base its judgement on economic, competitive and programming information as presented by the parties in a proceeding.
- In the 2006 to 2010 rounds of rate setting, the rate was so high that it exceeded the profits of some webcasters. Congress then enacted the 2008 and 2009 Webcaster Settlement Acts, which directed webcasters to license directly with SoundExchange for that period and with any service that joining from 2011 to 2015. However, this cannot be used as a benchmark for future rates.
Early streaming services
Mp3.com encouraged its users to upload their personal compact disc collections to a service known as “My.MP3.com.” This would create an extensive streaming catalog of music to be accessed by a user anywhere in the world, often referred to as “space shifting.” Mp3.com had many safeguards in place, such as requiring the user to insert a copy of the CD into their personal computer or purchase it from any one of their partner retailers, to “prove” ownership of the music. However, it was discovered Mp3.com had purchased thousands of CDs and uploaded them to their own server without authorization from the copyright holder.
Bertelsmann Music Group – including Arista Records LLC, Bad Boy Records, BMG Music and Zomba Recording LLC – brought a case against LAUNCH Media Inc. alleging the service LAUNCHcast (now Yahoo Music) willfully infringed BMG’s sound recordings. The case concerned the scope of the statutory definition of an “interactive service,” as codified in 17 U.S.C. § 114(j)(7). An interactive service would be required to pay individual licensing fees to BMG’s sound recording holders. If considered a non-interactive service, LAUNCHcast would be designated under a statutory licensing fee set by the Copyright Royalty Board. The Second U.S. Circuit Court of Appeals concluded LAUNCHcast did not fall under the scope of the definition of an interactive service and therefore its rates should be dictated by the CRB.
EMI Music Group and 14 other record companies (including Capitol Records) claimed copyright infringement due to MP3Tunes’ online music storage “lockers.” The lockers allowed users to upload music from their hard drives or from third-party websites by providing a URL. The court found the storage lockers qualified for protection under the DMCA § 512(c) “safe-harbor” provision. However, due to MP3Tunes’ failure to remove infringing songs, despite having received takedown notices from EMI for 350 songs, Mp3Tunes was liable for contributory copyright infringement.
Similar to Mp3.com, Escape Media Group executives uploaded their own personal music to build a library for the service Grooveshark. The executives also later purged emails implicating and encouraging their bad behavior. The executives did not acquire licenses and often obtained pirated music to upload to their service. An attempted defense under the DMCA § 512(c) “safe-harbor” provision, which shelters digital services from the infringing activities of their users, was posed by the operators of Escape, but the argument was rejected due to the copious damning evidence. Such evidence included emails between the operators that actively encouraged piracy and infringement.
Music was provided through the AOL, RealNetworks and Yahoo services by streaming or downloading. While streaming does not involve any data transfer from the host to the user, downloading does. Downloading provides a copy to the user so that he or she can listen, even when not logged in to the service. Furthermore, users may not simultaneously listen to the song while it is downloading. All parties agreed streaming was a form of public performance and paid ASCAP. However, the parties could not agree to a “reproduction” fee for the later performance of downloads. ASCAP attempted to persuade the court to rethink its definition of “download” and liken it to the transmission of broadcast signals. This argument failed. The court ruled that, because a user could not stream the work as it was downloading, ASCAP was not entitled to a secondary fee.
The parties disputed whether revenue received from the sale of a ring tone should have an integrated licensing fee. The court concluded a transmission of a ring tone to a cellular customer did not constitute a public performance and the mechanical ring tone rate of $0.24 per download was the appropriate rate.
MobiTV offers a service that delivers television programming to mobile telephones and audio channels. The court sought a three-tiered license, similar to the 1990s’ ASCAP license with Turner Broadcasting. The tiers would be
- Music intensive fee: 0.9 percent of defined revenue
- 0.375 percent for general entertainment
- 0.1375 percent for news and sports programming
In 2010, Pandora Media entered a consent decree with ASCAP for a five-year period that commenced Jan. 2, 2011. As early as January 2013, two of the biggest publishing companies (Sony and UMPG) withdrew their digital rights from ASCAP, forcing Pandora to negotiate licenses directly. This increased Pandora’s expenditure and violated the consent decree agreed to by the parties. Pandora went to court to have its rate lowered. While Judge Denise Cote did not agree to lower it, she did maintain the rate at 1.85 percent. In addition, she expressed concerns about collusion on the part of the publishers and the PRO. This case further brought into question the definition of radio and whether or not Pandora could liken itself to terrestrial radio. Judge Cote concluded, while Pandora could not be considered to be in the same exempt status as terrestrial radio – due to its Music Genome Project – it is closer to the terrestrial radio model than many other services and this should be taken into consideration when dictating a rate.
- BMI v. Pandora Media Inc. (2015)
In the second of the Pandora Rate Court decisions, Judge Louis Stanton ordered Pandora to continue to pay a 2.5 percent license rate. A similar argument was posed as in the ASCAP case: several publishers had withdrawn their catalogs from BMI and Pandora was forced to license directly. Pandora requested the rate remain at 1.75 percent, as it had been for the past seven years. Stanton refused that request and increased the rate. Stanton concluded there was a “window of free-market negotiations” to look to as benchmarks in the direct licenses Pandora forged with publishers to conclude the rate for the PRO.Mechanical copies
The issue in this early case was to decide if something had to be directly perceptible or intelligible to a person to be considered a copy. Because piano rolls are only readable by self-playing pianos, the Supreme Court ruled they were not copies and no royalties were owed to the composer. However, only a year after this decision, Congress enacted the Copyright Act of 1909, which set requirements for compulsory licenses mandating standardized fees to songwriters to use their work. Congress set the fee low to allow individuals to be able to afford the licensing costs and to innovate.
An eating establishment (Aiken) played terrestrial radio to its customers over a loudspeaker. While the station had obtained a license from American Society of Composers to broadcast the work, the restaurant did not. Twentieth Century Music Corp. petitioned the court for a performance right royalty from the restaurant. The Supreme Court ruled in favor of Aiken, stating the restaurant’s use of terrestrial radio does not constitute a “performance,” and there was therefore no infringement on the exclusive rights of the petitioner to publicly perform their work for a profit.Parody
- Fisher v. Dees (1986):
Disc jockey Rick Dees sought and was refused permission to use Marvin Fisher’s song, “When Sunny Gets Blue” for his parody version, “When Sonny Sniffs Glue.” The parody used 29 seconds of the original song. Fisher complained on grounds of unfair competition, defamation and copyright infringement. A fair-use defense was properly lodged against the claim of infringement and this case has since been used as a benchmark for comedic parody.
- Campbell v. Acuff-Rose (1994):
2 Live Crew and its record label were accused of copyright infringement due to their parodied use of Roy Orbison’s “Oh, Pretty Woman.” The band’s manager had asked Acuff-Rose for a license to parody the song, but was refused. 2 Live Crew nonetheless produced and released the parody. The Supreme Court held commercial parody may be a fair use. 2 Live Crew’s work copied the first line of the lyrics and the characteristically famous opening bass riff, it did not go to the “heart” of the original work. While it was a derivative work, the court did not believe 2 Live Crew’s version would substantially affect the market of Roy Orbison. Thus, three of the four prongs of §107 were met sufficiently to consider the parody a fair use.Sampling
Biz Markie, signed to Warner Bros. Records, was accused of copyright infringement because he sampled a portion of the song “Alone Again (Naturally)” by singer/songwriter Gilbert O’Sullivan. In this case, Biz Markie and Warner Bros. had attempted unsuccessfully to procure a license from O’Sullivan. This was used as evidence against them for “willful infringement” of the work. This opinion has been highly criticized due the bench advocacy on the part of the Southern District of New York and has had a major impact on hip-hop.
NWA sampled and lowered the pitch of a two-second guitar chord from Funkadelic’s “Get off Your Ass and Jam” in their song “100 Miles and Runnin.'” This sample was looped five times. The Sixth U.S. Circuit Court of Appeals ruled this sample did not fall within the de minimis exception, but did not rule out the argument of fair use. While this decision has not been fully adopted by all of the federal circuits, it has affected industry practice significantly by calling into questioned the definition of a “transformative work” in copyright. The case was cited as recently as of 2008 in the Federal Court of Justice of Germany (Bundesgerichtshof), regarding a sample by the electronic band, Kraftwerk.
Analog and digital services
Sony Corp. created the Betamax videocassette recorder, which allowed users to record live broadcast programs onto tapes to watch at their convenience. This is known as “time shifting” and the court concluded it was not a form of copyright infringement, but fair use. This conclusion was primarily reached by the Supreme Court due to the size of a typical audience: the Betamax (and other VCR formats) was intended for home use, not commercial use. Furthermore, the court ruled Sony could not be held liable for any contributory copyright infringement or potential infringements by users because the device was sold for a legitimate, non-infringing purpose.
Considered a reinterpretation of Sony Corp., the Supreme Court ruled producers of technology who promote the ease to infringe copyrights can be sued for inducing copyright infringement. Though the technology itself did not infringe a copyright, the peer-to-peer service gave the user tools to commit infringement and therefore, the service could be held liable.
Cablevision was sued for copyright infringement on grounds of unlawful copying and public performance associated with their remote-server digital video recorder service, which enables subscribers to copy programs transmitted over Cablevision’s cable service for later streamed playback. The court concluded user-requested content copying did not constitute direct infringement; time-shifting did not constitute public performance; and the copying of streamed content for the purposes of buffering did not fit the requirement of unlawful copying.
Areo’s service allowed users to access free, over-the-air broadcast television through their PCs, smartphones and other devices. Each user was assigned a miniature antenna at Aereo’s facilities and any recorded programming was saved on Aereo’s servers. Another case concerning time-shifting, the court ruled this retransmission of broadcast television was a “public performance” of the network’s copyrighted work. Such a performance is forbidden without the express consent of the copyright holder.Federal Communications Commission
Pandora Media purchased an adult contemporary radio station in Rapid City, S.D., for $600,000. This purchase was approved by the FCC two years later in June 2015. By owning a terrestrial radio station, Pandora will gain footing in the argument they are – like their competitor, Clear Channel, which owns iHeartRadio – an online terrestrial radio service. This may allow for a lower rate for Pandora to license music. Currently, it pays more than 60 percent of its annual revenues in licensing fees.
The marathon second Republican presidential debate at the Reagan Presidential Library in Simi Valley California will be remembered for many revelations: Jeb Bush smoked pot 40 years ago and isn’t proud that he did; Donald Trump has personally seen vaccines lead to autism; Carly Fiorina is a rhetorical wrecking ball. What it will likely not be remembered for was a passing exchange about climate change.
Well into the spectacle’s third hour, CNN moderator Jake Tapper addressed a question about what should be done about climate change to Florida Sen. Marco Rubio. Tapper prefaced his question by asserting that President Ronald Reagan’s Secretary of State George Schultz favors action to address climate change as an “insurance policy.”
Rubio, followed by New Jersey Gov. Chris Christie and Wisconsin Gov. Scott Walker, addressed the question. In turn, each expressed skepticism about the actions that have been proposed to date to address climate change.
Now, for some, their responses were discouraging. Think Progress proclaimed that “they screwed it up” while Slate borrowed one of Sen. Rubio’s observations that “America is not a planet” and observed that it was “the only thing that Marco Rubio got right about climate change.”
From where I sit, as a member of the climate-action-inclined right, I can’t help but be more sanguine about the exchange than either Think Progress or Slate.
What did not happen, which certainly could have happened, was an embarrassing episode in which the candidates proclaimed climate science junk. In fact, save for former Arkansas Gov. Mike Huckabee’s abortive attempt to interject, all three candidates to address the issue focused their attention on the limited effectiveness of and value of current efforts to address climate change.
Climate activists may not have liked the tone, but the senator and two governors were not incorrect. Current efforts to address climate change are remarkably costly and will only have a limited absolute impact on carbon emissions. Quietly, activists themselves recognizes this. แผนที่จากดาวเทียม That’s why so many are working hard to introduce carbon taxes.
The Washington Post characterized the shift in rhetoric among the Republican candidates as being from one of “climate know-nothingism” to “climate do-nothingism.” But when it comes to the likes of the Clean Power Plan and the latest round of Environmental Protection Agency regulations, do-nothingism has a certain wisdom to it, since both measurers will cost tremendous political and economic capital to implement and will accomplish very little in the way of curbing climate change.
Think Progress, not content to note that the Republican Party field could see their way to climate action in the event that such action did not stunt the economy, did not look kindly on the cost-benefit analysis approach taken by the candidates. Instead, it cited the always reliable outlet Vox and asserted that carbon regulations “will make a difference in fighting climate change, albeit a small one.”
As pyrrhic victories go, winning the battle for this round of prescriptive climate regulations at the expense of the political will necessary to implement a meaningful and comprehensive strategy will make a difference in fighting climate change – albeit, a negative one.
For those sincerely interested in addressing climate change, the second Republican debate was certainly not a cause for celebration. But nor was it a cause for despair. America’s most influential political party tends to do the right thing, but only after it has tried everything else.This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.