Policy Institutes

Back in 2002, Stephen Ware wrote a policy analysis for Cato entitled “Arbitration Under Assault: Trial Lawyers Lead the Charge.” That assault – endorsed by the New York Times in a two-part series that is getting some attention – depends crucially on both an attack on freedom of contract and a refusal to take seriously what consumers vote for with their marketplace choices.

As has come to be widely acknowledged in recent years, most class action litigation over consumer financial claims goes on for the benefit of lawyers. It produces scanty benefits for customers but does drive up the costs of providing common services, which is passed along in the form of higher fees and rates. Given a chance, as a result, almost every company will seek to draft “fine print” substituting low-cost, relatively fast arbitration for forms of litigation whose transactional cost greatly exceeds the value to customers of eventual relief given. Even where there is strong competition in a market (among affluent credit card users, for example), it is exceedingly rare for consumers to switch accounts because one provider shunts claims into arbitration while another invites class action litigation.

What does this signify about consumer preferences? Consumers willingly switch all the time from one airline loyalty card to another in quest of better miles-and-points rewards, baggage allowances, pre-boarding policies, and so forth – but not to avoid arbitration policies. Why not? To the experts the Times prefers to speak to – and as the U.S. Chamber of Commerce points out, every single judge and law professor the Times spoke to was hostile to arbitration, which is hardly true of the universe of all distinguished law professors and judges  – it must be inattention or false consciousness; consumers don’t realize that they’ve giving up terribly valuable rights. The other possibility is that consumers rationally place little before-the-fact value on a future benefit that is expensive to provide and mostly pays off for the lawyers who – as Daniel Fisher points out – mostly manage to stay in the background of the Times piece. 

I’ve got more on the story at Overlawyered this morning, where I’ve been covering the Litigation Lobby’s war on arbitration since I launched the site in 1999.  Other Cato legal scholars have agreed with a Supreme Court majority (but not with the Times) that the role of the government is ordinarily to enforce, not substitute its judgment for, clearly worded private contracts generating terms announced and known to the parties.  And I’ll give the last word for the moment to blogger Coyote, writing about a recent California anti-arbitration bill so extreme that even liberal Gov. Jerry Brown saw fit to veto it: “Here is how you should think about this proposed law: Attorneys are the taxi cartels, and arbitration is Uber. And the incumbents want their competitor banned.”

The Arizona Republic and the Associated Press (AP) used Cato’s recent work to highlight the failure of E-Verify to turn off the jobs magnet that attracts unauthorized immigrants to the United States. Arizona has a shaky record on immigration enforcement, despite its laws and reputation to the contrary. Maricopa County Attorney’s Office has had zero E-Verify related cases since 2010 and the state Attorney General’s office has failed to update a list of E-Verify compliant businesses since at least 2012 – a requirement under state law.

Other states’ recent experiences also point to problems with E-Verify.

In Ohio, an unauthorized worker at a dairy company was charged on October 20th with identity fraud, after having been discovered to be using the Social Security number of a (legal) Arizona resident.  The fraud only came to light after the Arizonan discovered that his Social Security number was being used in Ohio. The fraud was not discovered by the routine E-Verify check that the unauthorized Ohio worker underwent in 2013. E-Verify confirmed the worker, who was utilizing the stolen SSN and fraudulently obtained documents based off of said number, as work-authorized and legal. The use of a valid number and fraudulent (but on the surface valid) documents by migrants is a problem with E-Verify that we’ve highlighted in the past.

California passed legislation to prevent employer misuse of E-Verify. Their law effectively duplicates federal restrictions on re-verification of employees, bars selective verification (targeting certain applicants over others), punishes use of E-Verify as an interview screening tool, and imposes a $10,000 fine for misuse. The intent of the new law is positive but it will be impossible to enforce. 

Finally, a controversial immigration bill has become law in North Carolina (I wrote about this in May). The new law lowers the threshold for mandated E-Verify to businesses with five or more employees, limits the types of identification that migrants can present (effectively banning use of Mexican consular identification cards), and prevents local and county governments from adopting so-called “sanctuary city” policies.

E-Verify imposes an economic cost on American workers and employers, does little to halt unlawful immigration because it fails to turn off the “jobs magnet,” and is an expansionary threat to American liberties.  During the housing collapse and Great Recession, Arizona enacted the Legal Arizona Workers Act (LAWA), which mandated E-Verify for all new hires in the states.  In its early days, E-Verify had a reputation of effectiveness that, combined with the crashing economy, resulted in a large exodus of unlawful immigrants from Arizona.  After the economic recovery and E-Verify’s flaws were made clear, subsequent states like Alabama, Mississippi, and South Carolina have had far less success in using E-Verify to decrease the numbers of unauthorized immigrants in their states.  E-Verify’s bark was worse than its bite.   

This post was written with the help of Scott Platton

As the prominence of tariffs in the transatlantic relationship has receded and transnational supply chains and investment have proliferated, regulatory barriers to transatlantic trade have become more evident. Reducing duplicative regulations that increase production and compliance costs without providing any meaningful social benefits is a chief aim of the Transatlantic Trade and Investment Partnership negotiations. Indeed, most of the economic gains from the TTIP are expected to come from this exercise.

But that is easier said than done.  According to University of California-Irvine law school professor Gregory Shaffer, “regulatory barriers to trade can be more pernicious and more difficult to reduce than tariff barriers because they often reflect certain cultural values and preferences, and there are often more interests vested in the status quo.” In his Cato Online Forum essay, submitted in conjunction with last month’s TTIP conference, Shaffer describes five different approaches to regulatory coherence/harmonization (with pros and cons) that could be undertaken by U.S. and EU negotiators.

Depsite vastly different approaches to regulation on opposite sides of the Atlantic, Shaffer points to examples of successful cooperation in recent years as evidence that the TTIP’s regulatory coherence discussions could bear fruit. But he doesn’t bet the house on that outcome. Instead, he writes:

We should nonetheless be cautious in our optimism given the serious impediments to achieving regulatory coherence. Removing regulatory barriers to trade and investment while continuing to reflect local preferences and retain democratic accountability is, and always has been, a challenging undertaking.

Read Shaffer’s essay here.  Read the other Cato Online Forum essays here.

On Sunday, the Associated Press released the results of a year-long investigation into sexual misconduct by police officers across the country. They found that about 1,000 officers were decertified for some type of sexual misconduct—consensual sex on duty, sexual assault, coercion, child molestation/pornography, statutory rape, inter alia—over a six year period. The Morning Call listed the general rules governing misconduct and decertification—where applicable—in each state.

The AP story reported that the 1,000 number is “unquestionably an undercount” of offenders because of the scattershot nature of police misconduct reporting, prosecution, and internal administrative discipline across states and departments. Indeed, such is the nature of tracking any kind of police misconduct.

At the National Police Misconduct Reporting Project (NPMRP), we track all kinds of police misconduct from sexual misconduct to domestic violence to DUI and drug related corruption. Looking at the preliminary data through October 30, NPMRP has tracked at least 130 news reports of sexual misconduct* by American law enforcement personnel in 2015. Almost all were criminal in nature. Many cases had multiple victims and happened over a period of years, supporting the AP claim that many cases go unreported.

You can look at the cases we’ve tracked below the fold. You can read more about NPMRP at PoliceMisconduct.net, follow the @NPMRP Twitter feed, and like our facebook page.

Jurisdiction/Agency State Date of Report Summary of Incident Jal NM 1/5/15 Chief resigned after being caught having sex in ambulance while on duty. Milan NM 1/5/15 Officer arrested for sexual assault and providing alcohol to a minor. Oklahoma City OK 1/9/15 Officer fired and charged with multiple counts of sexual assault against motorists, all of whom were women of color. Memphis TN 1/12/15 Officer sentenced to one year, suspended, and two years of probation for sexual misconduct. Plano TX 1/12/15 Officer arrested for child pornography distribution and indecent contact with a minor. Duluth GA 1/13/15 Officer fired and arrested for sexual battery of an acquaintance. Homerville GA 1/13/15 Officer arrested for sexual assault of jail inmate. Irwindale CA 1/14/15 Officer sentenced to nine years in prison for sexually assaulting woman after traffic stop. Ocala FL 1/16/15 Officer arrested and fired for soliciting sex from 16-year-old sex worker. Aledo IL 1/21/15 Officer charged with aggravated sexual assault with a weapon. Highstown NJ 1/26/15 Officer faced administrative discipline for having sex on duty. Atlantic City NJ 1/27/15 Officer pled guilty to misconduct and sexual assault of a minor. Falfurrias TX 2/10/15 Officer arrested for sexual assault of a child. New York NY 2/11/15 Sergeant charged with rape for actions against girl under 15 years of age. Mansfield OH 2/13/15 Officer indicted on 40 counts, including 25 felonies, related to sexual battery, burglary, and tampering. Rothschild WI 2/17/15 Officer resigned and charged with sexual assault. Broward County FL 2/18/15 Deputy sentenced to five years for coercing undocumented immigrants into having sex. Shreveport LA 2/19/15 Officer arrested for aggravated rape and intimidation. Adams County OH 2/20/15 Chief deputy charged with multiple rape counts for actions at his home with 15-year-old girl. Chatham County GA 2/25/15 Deputy fired and arrested for filing false statements and sexual assault of an inmate. Grand Rapids MI 3/3/15 Officer charged with home invasion and sexual assault of his ex-girlfriend. Memphis TN 3/3/15 Officer arrested for performing a lewd act and solicitation of a minor. New Orleans LA 3/4/15 Officer arrested for solicitation of prostitution. Orange Beach AL 3/9/15 Officer indicted on two counts of sexual abuse of a child under 12. Long Beach MS 3/12/15 Officer indicted on multiple counts of statutory rape for actions with 15-year-old girl. New York NY 3/12/15 Two officers went to Seattle to interview rape victim and went drinking with her. They were all very drunk and they convinced her to come back to their hotel, where one officer eventually crawled into bed with her and ripped her shirt while making sexual advances. They pled guilty to administrative charges, were sentenced to forfeit vacation time and were transferred out of their departments, but ultimately kept their jobs as police officers. Exeter CA 3/13/15 Officer sentenced to 45 days in jail for sex with a minor who was in department’s youth program. McLennan County TX 3/13/15 Constable fired and arrested for soliciting sex from a minor. Syracuse NY 3/16/15 Officer indicted for misconduct for having sex with woman who called police for help. Pitt County NC 3/18/15 SRO arrested for statutory rape of a 15-year-old student. USCBP (Ysleta, TX) USCBP 3/19/15 Agent arrested for sexual assault of a child. Hardin County TX 3/20/15 Deputy pled guilty to making false statement in a child pornography investigation. Seminole County FL 3/24/15 Deputy fired and arrested on molestation charges. New York  NY 3/27/15 Officer arrested for repeated sexual assaults of 16-year-old girl at church where he served as pastor. Indiana Excise Police IN 3/31/15 Officer arrested for sexual misconduct with a minor. Eugene OR 4/6/15 Officer sentenced to seven years for child pornography possession and hiding cameras in police bathroom. Vidalia GA 4/6/15 Suspended and charged with statutory rape of a 15-year-old girl. Ohio State Police OH 4/10/15 State trooper was sentenced to five years in prison for throwing out traffic tickets in exchange for sexual favors. Fairfax County VA 4/16/15 Officer charged with child pornography possession. Indiana University-Bloomington IN 4/17/15 Officer resigned after he was accused of raping a student. Butler County OH 4/22/15 Deputy arrested for a sex crime against a minor. Park Ridge IL 4/22/15 Officer suspended for sending sexual images to woman who recently had contact with the police. Wichita KS 4/30/15 Retired officer tried for multiple counts of sexual contacts with minors during last several years of his career. Hillsborough NC 5/5/15 Officer sentenced to 20-33 months, suspended, for sexual contact with two 13-year-old children. Washington County OR 5/8/15 Sergeant resigned during investigation into sexual harassment and misconduct. Bethel OH 5/12/15 Officer resigned after indictment for rape and sexual battery. St. Clair County MI 5/12/15 Deputy fired and arrested for sexual misconduct for having sex w/ jail inmate. Bossier Parish LA 5/14/15 Deputy fired and arrested for solicitation of prostitution. Orange County FL 5/14/15 Deputy resigned before he was arrested for child pornography. Onslow County NC 5/15/15 Deputy charged with solicitation of child pornography. Chicago IL 5/18/15 The City settled a lawsuit with a woman who claimed two officers sexually assaulted her while they were on duty. Washington DC 5/18/15 Officer arrested for sexual abuse of a minor and child pornography. Lincoln County WI 5/21/15 Deputy resigned after his arrest for molesting a 15-year-old girl. New York State Police NY 6/1/15 Trooper acquitted on 3 of 4 rape charges. Jury hung on fourth charge. Winona County MN 6/4/15 Deputy fired and arrested for solicitation of prostitution. Greece NY 6/5/15 Officer sentenced to four years in prison and 10 years supervised release for child pornography conviction. Ann Arbor MI 6/8/15 Officer sentenced to 11 months in jail for offering leniency to female suspect in exchange for sex. Brandenburg KY 6/11/15 Officer’s trial for child rape postponed until April 2016. Williams County ND 6/11/15 Deputy arrested for child pornography. Oklahoma State Police OK 6/12/15 Trooper ordered to stand trial for rape of motorist during traffic stop. Tallahassee FL 6/15/15 Officer arrested for solicitation of prostitution. New York State Police NY 6/17/15 Trooper arrested for sexual assault of woman in Atlantic City. Amarillo TX 6/19/15 Officer fired after sexual assault allegation. DeKalb County GA 6/19/15 Deputy sentenced to 1 year in prison and 9 years of supervised release for soliciting prostitution on duty. Seaside Park NJ 6/19/15 Officer arrested for sexual contact with minor. Dane County WI 6/25/15 Deputy convicted of sexual assault for actions against a woman who was serving her sentence in home confinement. Phoenix AZ 6/29/15 Officer arrested for kidnapping and sexual assault against a woman in custody. Tuscon AZ 6/29/15 Two officers resigned; 5 others under investigation for involvement with sex workers. Champaign IL 7/6/15 Officer arrested for sexual assault and domestic battery. Fairfax County SC 7/7/15 Deputy sentenced to 20 years for sex crimes against 11-year-old child. Phoenix AZ 7/14/15 Officer pled guilty to sexual contact with a minor. Dallas TX 7/22/15 Officer arrested and fired for sex acts against a child. Sacramento CA 7/22/15 Officer was convicted for repeatedly raping elderly woman at senior living facility. Maypearl TX 7/23/15 Chief terminated and charged for sex acts against minors. Hartsville IN 7/24/15 Deputy town marshal arrested for attempted solicitation of a child. Portland OR 7/24/15 Officer placed on leave after he was accused of demanding sexual acts from a woman. Fresno CA 7/28/15 Officer resigned after being discovered in prostitution investigation. Dallas TX 7/31/15 Officer pled guilty to aggravated assault after he was charged with raping a woman who was sleeping. He received a five-year suspended sentence. Mt. Pleasant NY 8/3/15 Chief pled guilty to child pornography charges. Whitehouse TX 8/3/15 Chief resigned one week after an assault charge for unwanted sexual advances against him was dropped. Las Vegas NV 8/4/15 Detective sentenced to 3 years of probation for attacking a sex worker. Boscawen NH 8/6/15 Former officer who was then chief of Canterbury was arrested for sexual assault of a minor for actions while employed in Boscawen. Jackson County NC 8/7/15 Deputy pled guilty to obstruction for covering up underage drinking and statutory rape charges. Pasco County FL 8/7/15 Deputy arrested for soliciting sex from a minor. San Bernadino County CA 8/7/15 Deputy accused of sex with jail inmate. Spearsville LA 8/12/15 Chief convicted of child rape sentenced to life imprisonment. Cleveland TN 8/14/15 Two officers suspended for sexual misconduct. Sevier County TN 8/14/15 Deputy sentenced to 90 days of house arrest after he pled guilty to misconduct for having sex with woman while on duty. Emmett Township MI 8/17/15 Officer suspended for sexual assault arrested again for sexual assault. Greece NY 8/17/15 Officer fired and arrested for sexual harassment and stalking. Kiowa OK 8/18/15 Officer fired and charged with abduction and sexual seduction for actions against a 15-year-old girl. Oakland FL 8/19/15 Officer charged with child molestation and child pornography. Elburn IL 8/20/15 Officer charged with 33 counts related to sexual abuse of a child over 10 years. Gretna LA 8/20/15 Officer arrested for child pornography. DEA (McAllen, TX) DEA 8/21/15 Agent arrested for accessing child pornography. Haskell AR 8/21/15 Officer arrested on sexual assault and child pornography charges. Oak Ridge TN 8/21/15 Officer fired amid statutory rape allegations. He left his previous law enforcement position after being accused of indecent exposure. Eagle County CO 9/8/15 Deputy sentenced to 180 days–90 in jail, 90 in work release–for sexual assault. Kern County CA 9/9/15 Deputy sentenced to two years in prison for sexual battery. San Mateo CA 9/9/15 Deputy found guilty of child molestation. Maryland State Police MD 9/10/15 Trooper indicted for forcing a woman to perform sex act at gunpoint. Michigan State Police MI 9/10/15 Trooper found guilty on four counts of 2nd degree criminal sexual conduct. Birmingham AL 9/11/15 Officer indicted for rape and sexual abuse of a child. Shelby County TN 9/11/15 Deputy arrested for statutory rape. Spalding County OH 9/11/15 Captain charged with aggravated assault, influencing witnesses, stalking, sexual battery, and other charges against department employees. Germantown TN 9/14/15 Officer fired while rape charge pending. Memphis TN 9/15/15 Officer arrested for sexual battery, official misconduct and oppression. East St. Louis IL 9/21/15 Officer on leave for suspected sexual assault off duty. Isabella County MI 9/21/15 Deputy pled no contest to attempting to extort sexual favors from suspects. Port St. Lucie FL 9/23/15 Officer arrested for child pornography. Fairview OK 9/24/15 Officer arrested for child pornography. San Antonio TX 9/25/15 Three officers charged with sexual assault and official oppression. San Jose CA 9/25/15 Officer charged with rape fired. Crestview FL 9/29/15 Officer resigned in lieu of termination amid sexual battery allegations. Greenville TN 10/2/15 Officer sentenced to 18 months for having sexual relationships with several jail inmates. Kentucky State Police KY 10/5/15 Trooper pled guilty to sex with a minor. Four other law enforcement officers were terminated or charged for sexual contact with same girl. University of Oklahoma OK 10/7/15 Officer arrested for breaking into a car, stealing cell phone, and attempting to send or access sexual content with that phone. Spring ISD TX 10/15/15 SRO arrested for sexual assault against a minor. Watervliet NY 10/15/15 SRO pled guilty to sodomy charges against student at his school. Chicago IL 10/19/15 Two officers under investigation for sex trafficking. Tulsa County OK 10/19/15 Deputy found guilty of sexual battery and indecent exposure while in uniform. Walton County GA 10/19/15 Deputy arrested for child pornography. Fort Smith AR 10/22/15 Resigned after his arrest for solicitation. Henderson TX 10/22/15 Officer accused of sex crimes against a child. Adams County CO 10/26/15 Deputy fired for sexual assault on duty. Cypress-Fairbanks ISD TX 10/26/15 SRO sentenced to one year for pulling over motorist and asking for sexual favor in exchange for looking other way on misdemeanor charge. Live Oak FL 10/29/15 Officer fired for child pornography possession. Boynton Beach FL 10/30/15 The City settled lawsuit for over $800,000 brought by a 21-year-old woman who accused officer of raping her last year. The officer was acquitted at trial. Los Angeles County CA 10/30/15 Deputy was arrested for child molestation. Spokane WA 10/30/15 Spokane Co. Sheriff accuses city police of covering up sexual assault against SCSO employee.


*This number was compiled by searching the @NPMRP Twitter feed using the terms “rape,”“sex,” “sexual,” “pornography,” “solicitation,” and “molestation.” Other cases of stalking, harassment, and other charges that may be sexual in nature would not necessarily be counted in these searches. 

The government of China has launched its 13th five-year plan (known as 13.5), sticking with the form if not the substance of Stalinism. But in our modern and networked world, China wants the world to understand its planning process, so it released this catchy video in American English:

What’s China gonna do? Better check this music video

The video explains how comprehensive the planning process is: 

Every five years in China, man
They make a new development plan!
The time has come for number 13.
The shi san wu, that’s what it means!

There’s government ministers and think tank minds
And party leadership contributing finds.

First there’s research, views collected,
Then discussion and views projected.
Reports get written and passed around 

As the plan goes down from high to low,
The government’s experience continues to grow.
They have to work hard and deliberate
Because a billion lives are all at stake!

It must be smart: note the picture of Einstein along with Chinese leaders such as Mao Zedong (around 0:50).

Of course, this “planning process” doesn’t work. In the best of circumstances, it’s no match for a billion producers and consumers making decisions every day about what actions are likely to better their own condition. It’s characterized by bureaucracy, backward-looking decisions, and cronyism. In less-than-ideal circumstances, when the planners are armed with total power and inspired by an ideological belief that they can actually direct the activities of millions of people, as in China from 1949 to 1979, the results are disastrous: poverty, starvation, and even cannibalism. Fortunately, after 1979, the planners led by Deng Xiaoping began to dismantle the system of collective farming and to allow Chinese farmers to make many of their own decisions, and growth took off. Plans work better when they allow individuals to plan.

I wrote about planning in The Libertarian Mind:

It is the absence of market prices that makes socialism unworkable, as Ludwig von Mises pointed out in the 1920s. Socialists have often considered the question of production an engineering question: Just do some calculations to figure out what would be most efficient. It’s true that an engineer can answer a specific question about the production process, such as, What’s the most efficient way to use tin to make a 10-ounce soup can, that is, what shape of can would contain 10 ounces with the smallest surface area? But the economic question—the efficient use of all relevant resources—can’t be answered by the engineer. Should the can be made of aluminum, or of platinum? Everyone knows that a platinum soup can would be ridiculous, but we know it because the price system tells us so. An engineer would tell you that silver wire would conduct electricity better than copper. Why do we use copper? Because it delivers the best results for the cost. That’s an economic problem, not an engineering problem.

Without prices, how would the socialist planner know what to produce? He could take a poll and find that people want bread, meat, shoes, refrigerators, televisions. But how much bread and how many shoes? And what resources should be used to make which goods? “Enough,” one might answer. But, beyond absolute subsistence, how much bread is enough? At what point would people prefer a new pair of shoes to more food? If there’s a limited amount of steel available, how much of it should be used for cars and how much for ovens? What about new goods, which consumers don’t yet know they’d like? And most important, what combination of resources is the least expensive way to produce each good? The problem is impossible to solve in a theoretical model; without the information conveyed by prices, planners are “planning” blind.

In practice, Soviet factory managers had to establish markets illegally among themselves. They were not allowed to use money prices, so marvelously complex systems of indirect exchange—or barter—emerged. Soviet economists identified at least eighty different media of exchange, from vodka to ball bearings to motor oil to tractor tires. The closest analogy to such a clumsy market that Americans have ever encountered was probably the bargaining skill of Radar O’Reilly on the television show M*A*S*H. Radar was also operating in a centrally planned economy—the U.S. Army—and his unit had no money with which to purchase supplies, so he would get on the phone, call other M*A*S*H units, and arrange elaborate trades of surgical gloves for C rations for penicillin for bourbon, each unit trading something it had been overallocated for what it had been underallocated. Imagine running an entire economy like that.

Despite the total failure of total planning, I wrote,

the Holy Grail of planning dies hard among intellectuals. What is President Obama’s health care plan but a central plan for one-seventh of the American economy? [And see also his promise of “strategic decisions about strategic industries.”] President Bill Clinton had offered an even more breathtaking view of the ability and obligation of government to plan the economy:

We ought to say right now, we ought to have a national inventory of the capacity of every… manufacturing plant in the United States: every airplane plant, every small business subcontractor, everybody working in defense.

We ought to know what the inventory is, what the skills of the work force are and match it against the kind of things we have to produce in the next 20 years and then we have to decide how to get from here to there. From what we have to what we need to do.

After the election, a White House aide named Ira Magaziner fleshed out this sweeping vision: Defense conversion would require a twenty-year plan developed by government committees, “a detailed organizational plan… to lay out how, in specific, a proposal like this could be implemented.” Five-year plans, you see, had failed in the Soviet Union; maybe a twenty-year plan would be sufficient to the task.

China’s catchy jingle can’t obscure the fact that central economic planning is a misguided holdover from the era of centralized industries and centralized governments. It’s increasingly backward in a dynamic world of instant communication, global markets, and unprecedented access to information.

Last week I attended a talk and panel discussion at Brookings, in which Roger Lowenstein discussed his new book on the Fed’s origins. I have much to say about that book, and I eventually plan to say some of it here. But for the moment my concern is with another book, this one concerning, not the Fed’s origins, but its recent conduct. I mean Ben Bernanke’s The Courage to Act.

So why bring up the Brookings event? Because, in the course of that Federal Reserve love-fest, someone made a passing reference to those crazy people who actually want to limit the Fed’s emergency lending powers. Having seen the Fed save the economy from oblivion, such people, one of the panelists observed (I believe it was former Fed Vice Chairman Donald Kohn), are determined to make sure it can never save it again! At this, the audience chuckled approvingly.

Well, mostly it did. My own reaction was more like a bad attack of acid reflux. Is it really possible, I asked myself (as I struggled to keep my gorge from rising), that nobody here takes the moral hazard problem seriously? Do they really suppose that Senators Warren and Vitter and others seeking to limit the Fed’s bailout capacity are doing so because they like financial meltdowns and couldn’t care less if the U.S. economy went to hell in a hand-basket?

To his credit, Ben Bernanke does understand the problem of moral hazard. Moreover, he claims, in his long but very readable memoir, to have struggled with it repeatedly over the course of the financial crises. “I knew,” he writes at one point, “that financial disruptions” could

send the economy into a tailspin. At the same time, I was mindful of the dangers of moral hazard — the risk that rescuing investors and financial institutions from the consequences of their bad decisions could encourage more bad decisions in the future (p. 147).

Faced with this dilemma, what’s a responsible central banker to do? The classic answer — and one that Bernanke has long endorsed — is what he calls “Bagehot’s dictum,” after Walter Bagehot, the Victorian polymath (and opponent of central banking) who set it forth in Lombard Street. According to Bernanke’s own summary of that dictum, central bankers faced with a crisis should “lend freely at a high interest rate, against good collateral” (p. 45).

Did Bernanke’s Fed follow Bagehot’s advice? To answer, it helps to first consider Bagehot’s own elaboration of his rules:

First. That these loans should only be made at a very high rate of interest. This will operate as a heavy fine on unreasonable timidity, and will prevent the greatest number of applications by persons who do not require it. The rate should be raised early in the panic, so that the fine may be paid early; that no one may borrow out of idle precaution without paying well for it; that the Banking reserve may be protected as far as possible.

Secondly. That at this rate these advances should be made on all good banking securities, and as largely as the public ask for them. The reason is plain. The object is to stay alarm, and nothing therefore should be done to cause alarm. But the way to cause alarm is to refuse some one who has good security to offer… No advances indeed need be made by which the Bank will ultimately lose. The amount of bad business in commercial countries is an infinitesimally small fraction of the whole business… The great majority, the majority to be protected, are the ‘sound’ people, the people who have good security to offer. If it is known that the Bank of England is freely advancing on what in ordinary times is reckoned a good security — on what is then commonly pledged and easily convertible — the alarm of the solvent merchants and bankers will be stayed. But if securities, really good and usually convertible, are refused by the Bank, the alarm will not abate, the other loans made will fail in obtaining their end, and the panic will become worse and worse.

Plainly, Bagehot’s reasons for insisting on good collateral (“good banking securities”) are, first, to protect the central bank itself against losses, and, second, to make sure that only “sound” institutions benefit from the central bank’s protection.

The Fed’s first, extraordinary use of its last-resort lending power during the subprime crisis consisted of its decision, on March 15, 2008, to assist JPMorgan’s purchase of Bear Stearns by arranging for the purchase, through Maiden Lane, a limited liability company formed for the purpose, of $30 billion worth of Bear’s mortgage-related securities. Although Bernanke claims that those securities were “judged by the rating agencies to be investment-grade” (that is, rated BBB- or higher) (p. 219), their value when the Fed acquired them was anything but certain, which is why JPMorgan was determined to limit its exposure to losses on them to $1 billion — its share of the Maiden Lane purchase.

Moreover, thanks to Bloomberg’s having forced the Fed to disclose the contents of all three Maiden Lane portfolios, we now know that, by April 3, 2008, when Bernanke made the same “investment grade” claim in testifying before the Senate Banking Committee, some Maiden Lane securities had already been downgraded to below investment grade. Furthermore we know that Maiden Lane I’s portfolio was chock-full of toxic securities. Reacting to these disclosures, Ohio Senator Sherrod Brown, a member of the Senate Banking Committee, opined that “Either the Fed did not understand the distressed state of some of the assets that it was purchasing from banks and is only now discovering their true value, or it understood that it was buying weak assets and attempted to obscure that fact.”

That Bernanke should repeat the “investment grade” claim in his book, after the true nature of the Fed’s purchases has been disclosed, seems pretty surprising. So, for that matter, does his admission — offered in defense of the Fed’s subsequent decision to let Lehman go under — that the Fed “had no legal authority to overpay for bad assets.” If the Fed really lacked such authority, then its purchase of Bear’s assets wasn’t legal. If it did have permission to overpay, then the reason Bernanke gives for the Fed’s having let Lehman Brothers fail — a reason he only started referring to when questioned by the Financial Crisis Inquiry Commission (FCIC), almost two years after the rescue — is phony.

If saying that the the Fed’s Bear bailout was secured by “investment grade” collateral is a stretch, calling the assets in question “sound banking securities” or “commonly pledged” ones requires an impossible leap: even the Fed itself commonly accepts only AAA-rated CDOs and MBSs as collateral for its discount-window loans.

Yet perhaps the biggest problem with the Bear loan was, oddly enough, the fact that its providers did not consistently maintain that Bear was being rescued only because it had plenty of good collateral. Instead, in explaining the Bear rescue to the JEC, Bernanke argued that Bear had to be saved because its sudden failure “could have severely shaken confidence.” Tim Geithner made similar claims; and Hank Paulson, in justifying the rescue to the FCIC, actually scoffed at the suggestion that Bear might have been solvent at the time. “We were told Thursday night,” Paulson testified, “that Bear was going to file for bankruptcy Friday morning if we didn’t act. So how does a solvent company file for bankruptcy?” How indeed. In short, far from insisting that they were rescuing Bear because, though illiquid, it was fundamentally sound, those concerned made it clear that they were rescuing it because it was Too Big (or Too Systematically Important) to Fail.

Peruse the pages of Lombard Street all you like. You will find no equivalent to the contemporary notion that some firms are Too Big (or Systemically Important) to Fail. Nor will you discover any other exception to the rule that emergency lending ought to be confined to “sound institutions.” Suppose one recklessly-managed, gigantic firm to be in danger of going under, and of ruining 1000 sound firms in the process, unless the central bank intervenes. Lombard Street offers grounds for having the central bank lend generously to the sound 1000, but none at all for having it lend to the unsound one, however gigantic it may be.

Why not lend to unsound firms, or at least to gigantic (or Systematically Important) ones? Because, if you do, every gigantic firm will come to expect similar aid, and so will be inclined to take risks it would not take otherwise. (Notice how this isn’t the case if lending is confined to “sound” firms.) Of course the moral hazard problem had been present before the Bear rescue. But until then it was mainly confined to commercial banks, which had so far been the only recipients of the Fed’s largesse. Although the 13(3) loophole had been present since the 1930s, the Fed hadn’t dared to make much use of it even then, and made none at all for decades afterwards.

The Bear rescue convinced surviving investment banks that they’d suddenly been moved from beyond the school-ground fence to the head of the Systematically-Important class. As Michael Lewis put it not long after Bear was saved:

Investment banks now have even less pressure on them than they did before to control their risks. There’s a new feeling in the Wall Street air: The big firms are now too big to fail. Already we may have seen some of the pleasant effects of this financial order: the continued survival of Lehman. What happened to Bear Stearns might well already have happened to Lehman. Any firm that uses $1 of its capital to finance $31 of risky bets is at the mercy of public opinion… Throw its viability into doubt and the people who lent them the other $30 want their money back as soon as they can get it — unless they know that, if it comes to that, the Fed will make them whole. The viability of Lehman Brothers has been thrown into serious doubt, and yet Lehman Brothers lives, a tribute to the Fed’s new policy.

Lewis wrote in June 2008. And he was far from being alone in his sentiments. (See also Joe Nocera’s exit interview of Sheila Bair.) Lehman filed for bankruptcy in September 2008. These facts must be kept in mind in assessing Bernanke’s own assessment of the Fed’s action:

Some would say in hindsight that the moral hazard created by rescuing Bear reduced the urgency of firms like Lehman to raise capital or find buyers. … But in hindsight, I remain comfortable with our intervention. … Our intervention with Bear gave the financial system and the economy a nearly six-month respite, at a relatively modest cost (pp. 224-5; my emphasis).

What Bernanke calls “a six-month respite” is what some others might be inclined to call a six-month period during which failing firms, instead of either looking for more capital wherever they could get it, including from prospective purchasers, or planning for bankruptcy, could become more deeply insolvent.

Bernanke goes on to say that Lehman did, after all, raise some capital that summer, and that it ultimately suffered runs that proved that at last some of its creditors worried that it would not be rescued (ibid.). But these facts prove no more than that the market put the probability of a Fed rescue at something less than 100 percent. In fact they don’t even prove that much, for as Bernanke observes elsewhere (p. 252), Lehman, besides refusing to consider selling itself, acquired more capital only after being heavily pressured by both the Fed and the Treasury to do so; and Lehman first confronted a broad-based run on September 12, when it finally became evident that the Fed might not rescue it after all (p. 258). Moreover it’s clear from the Fed’s internal email communications, as disclosed by the FCIC, that the decision to not rescue Lehman was a last-minute one, and one that came as a surprise even to employees at the New York Fed, who reported in favor of a bailout.

Besides allowing an insolvent firm to go on placing risky bets with other people’s money, the expectation of Fed support makes both troubled firms themselves and their prospective buyers unwilling to clinch a deal until the pot has been sweetened. Had Bear been allowed to fail, or had Bernanke and company somehow been able to persuade larger investment banks that despite the Bear bailout their still greater Systematic Importance was no guarantee of Fed support, Lehman might have felt compelled to grab one of the lifelines thrown to it by CITIC securities and the Korean Development Bank, instead of waiting for the USS Fed to toss it a thicker one. Whether any of Lehman’s prospective, later purchasers were also holding out for such a deal isn’t clear, although Bernanke acknowledges that at one point both Bank of America and Barclay’s, having found Bear’s losses to be much bigger than had previously been assumed, “were looking for the government [i.e., the Fed] to put up $40-$50 billion in new capital” (p. 263), and that he worried at the time that the firms might be “overstating the numbers as a ploy to obtain a better deal.”

In the case of AIG’s rescue, it’s even harder to avoid seeing a moral-hazard-inspired game of chicken being played out between the lines of Bernanke’s account. “Every time we heard from the company and its potential private-sector rescuers,” Bernanke writes, “the amount of cash it needed [from the Fed] seemed to grow” (p. 275). When two firms finally made offers, AIG’s board “rejected them as inadequate,” and then made sure its representatives let Fed Board members know that “it would need Fed assistance to survive” (p. 276). A day later AIG executives “were hoping for a Federal Reserve loan collateralized by a grab bag of assets ranging from its airplane-leasing division to ski resorts” (p. 127). Would those executives have entertained such hopes if Bear hadn’t been rescued, or if the Fed had been prohibited by statute from rescuing potentially insolvent firms, or ones lacking “good banking securities” in the strict sense of the term?

The $85 billion loan that the Fed ended up making to AIG was in any case even less justifiable on Bagehotian grounds than its loan to Bear had been. As Bernanke acknowledges, the collateral for the AIG loan consisted, not of any sort of securities but of “the going concern value of specific businesses,” the value of AIG’s marketable securities having been “not nearly sufficient to collateralize…the loan it needed” (p. 281). Even granting Bernanke’s claim that such collateral met the Fed’s own legal requirements — a claim that is one of many reasons for entertaining serious doubts concerning Bernanke’s insistence that the Fed could not legally have rescued Lehman Brothers — it certainly couldn’t be said to consist of “good bank securities.” On the contrary, it was so bad that when the Fed was forced to disclose its Maiden Lane holdings, those of Maiden Lane II and III, which held AIG’s troubled assets, were worth 44 and 39 cents on the dollar, respectively.

Although the Fed’s defenders, Bernanke among them, are quick to note that all three Maiden Lane portfolios eventually recovered, so that the Fed (or rather taxpayers) bore no losses, the fact that they did doesn’t at all suffice to square the rescues in question with Bagehot’s well-considered advice. That advice simply doesn’t allow central banks to place risky bets on troubled firms. Bagehot never says that it’s OK for a central bank to set his advice aside provided that its gambles end up paying off.* The Fed’s apologists also fail to consider that, while the Fed itself may have come out of the deals it made smelling like roses, the same cannot be said for several of the private firms that took part in them.

And what about the moral hazard consequences of the AIG bailout? Time will tell, but at very least the bailout set the dangerous precedent of having the SIFI (“Systemically Important Financial Institution”) stamp applied to non-financial firms. And although Bernanke assures his readers that the bailout’s “tough” terms were such as would not “reward failure or…provide other companies with an incentive to take the types of risks that had brought AIG to the brink” (p. xiii), he fails to point out that the terms, though “tough” on AIG’s shareholders, let its creditors, including Goldman Sachs, go Scot-free, instead of insisting that they accept haircuts. The trouble is that, unless creditors bear some part of the risk of failure, they will chase after high non-risk-adjusted returns, even if that means depriving safer firms of credit.

The plain truth is that, despite his professed devotion to Bagehot, Ben Bernanke was never able to heed the principles laid down by that great authority on last-resort lending.** Nor is it hard to see why. When confronted by a failing SIFI, it generally takes more courage for a central banker to refuse aid than to grant it. After all, if the SIFI survives, the central banker can claim credit, whereas if it doesn’t he can at least claim to have “acted.” On the other hand, if the SIFI is left to fail, the costs are obvious and immediate, whereas the benefits are largely invisible and remote. Bad as it was, the drubbing Bernanke took for bailing out Bear and AIG was nothing compared to the horsewhipping he received, even from some people whose opinions he had reason to care about, after he let Lehman fold. The usual public choice logic applies. In any event, no one knows how to calculate the net present value of present and future financial losses. And who, in the midst of a crisis, would pay attention if someone managed to do it?

And that is why it makes little sense, after all, to blame Ben Bernanke for the Fed’s irresponsible bailouts. Apart from allowing Lehman Brothers to fail, he only did what just about any central banker would have done under the same circumstances. For among that tribe, the courage to act is one thing; the courage to refuse to rescue large, potentially insolvent firms is quite another. And that is why we need laws that make such rescues impossible.


*Bernanke himself appears to confuse loans paid in full with loans made to solvent institutions when he observes that “Nearly all discount window loans [are] to sound institutions with good collateral. Since its founding a century ago, the Fed has never lost a penny on a discount window loan” (p.149). Apparently he is unaware of, or has forgotten about, the House Banking Committee’s study of Fed discount window lending during the late 1980s and Anna Schwartz’s St. Louis Fed article on the same subject.

**The conclusions appears to hold, not just for the Fed’s more notorious rescues during the crisis, but also for its lending through the Term Securities Lending Facility (TSLF) and the Primary Dealer Credit Facility (PDCF), both of which lent on toxic and systematically overvalued collateral.

[Cross-posted from Alt-M.org]

In the 15 months since the president unilaterally launched our latest war in the Middle East, he’s repeatedly pledged that he wouldn’t put U.S. “boots on the ground” in Syria. As he told congressional leaders on September 3, 2014, “the military plan that has been developed” is limited, and doesn’t require ground forces. 

Alas, if you liked that plan, you can’t keep it. Earlier today, the Obama administration announced the deployment of U.S. Special Forces to Northern Syria to assist Kurdish troops in the fight against ISIS. U.S. forces will number “fewer than 50,” in an “advise and assist” capacity; they “do not have a combat mission,” according to White House press secretary Josh Earnest. Granted, when “advise and assist” missions look like this, it can be hard for us civilians to tell the difference.  

Asked about the legal authorization for the deployment, Earnest insisted: “Congress in 2001 did give the executive branch the authority to take this action. There’s no debating that.”

It’s true that there hasn’t been anything resembling a genuine congressional debate over America’s war against ISIS. But the administration’s legal claim is eminently debatable. It’s based on the 2001 authorization for the use of military force, or AUMF, the Congress passed three days after 9/11, targeting those who “planned, authorized, [or] committed” the attacks (Al Qaeda) and those who “aided” or “harbored” them (the Taliban).


In 2013, Obama administration officials told the Washington Post that they were “increasingly concerned the law is being stretched to its legal breaking point.” That was before they’d stretched it still further, 15 months later, to justify war against ISIS, a group that’s been denounced and excommunicated by Al Qaeda and is engaged in open warfare with them. Headlines like “ISIS Beheads Leader of Al Qaeda Offshoot Nusra Front,” or “Petraeus: Use Al Qaeda Fighters to Beat ISIS” might give you cause to wonder–or even debate!–whether this is the same enemy Congress authorized President Bush to wage war against, back before Steve Jobs unveiled the first iPod

In the Obama theory of constitutional war powers, Congress gets a vote, but it’s one Congress, one vote, one time. This is not how constitutional democracies are supposed to go to war. But it’s how we’ve drifted into a war that the Army chief of staff has said will last “10 to 20 years.” Sooner or later, we’ll have cause to regret the normalization of perpetual presidential war, but any congressional debate we get will occur only after the damage has already been done.

Hands On Originals, a t-shirt printing company in Kentucky, refused to print t-shirts promoting a gay-pride event, the Lexington Pride Festival. Its owners weren’t objecting to any customers’ sexual orientation; instead, they objected only to the ideological message conveyed by the shirts.

The Gay and Lesbian Services Organization nevertheless filed a complaint with the Lexington-Fayette Urban County Human Rights Commission under an antidiscrimination ordinance that bans public accommodations from discriminating against individuals based on sexual orientation. The Commission ruled against Hands On Originals, but the state district court reversed on free speech and free exercise grounds.

The case is now before the Kentucky Court of Appeals, where Cato filed an amicus brief, drafted by Prof. Eugene Volokh and UCLA’s First Amendment clinic. Our brief urges the court to uphold the right of printers to choose which speech they will help disseminate and which they won’t.

In Wooley v. Maynard (1977)—the “Live Free or Die” license-plate case—the Supreme Court held that people may not be required to display speech with which they disagree because the First Amendment protects the “individual freedom of mind.” Wooley’s logic applies equally to Hands On Originals’ right not to print messages with which they disagree, which is an even greater imposition than having to passively carry the state motto on your car’s tag.

Thanks to Prof. Volokh and his student, Ashley Phillips, for their work on the brief, and on this blogpost.

The European Union (EU) and its member states have had a difficult time dealing with the politics of genetically modified organisms (GMOs).  Despite the fact that the European Food Safety Authority (EFSA) has determined numerous GMO products to be safe, only one currently is allowed to be planted.  MON 810 corn (maize) resists insects, such as the European corn borer.  Although this type of corn is widely grown around the world, it is planted on only 1.5 percent of the land area devoted to corn production in the EU.  The main reason is a decision by the EU to allow individual member states to forbid the planting of crops that have been enhanced through genetic engineering. Member states now banning the planting of GMOs include Austria, France, Germany, Greece, Hungary, Italy, Luxembourg, and Poland. 

Regardless of the EU’s reluctance to allow GMO crops to be grown, importation of GMO soybeans and soybean meal has been a commercial necessity.  In 2014 the EU consumed the protein equivalent of 36 million metric tons of soybeans for livestock feeding.  Roughly 97 percent of those soybeans were imported.  The three largest soybean producing and exporting countries – the United States, Brazil, and Argentina – each devote more than 90 percent of their plantings to GM varieties.  It simply isn’t possible to buy enough non-GMO soybeans in today’s world to meet the protein needs of the EU livestock sector. 

Apparently it also isn’t possible for the European Commission to achieve agreement among member countries to authorize new GMOs for importation as human food or livestock feed.  Since the regulations for considering GMO applications went into effect in 2003, a qualified majority of member states has never agreed to approve a new food or feed product.  When the outcome among member states is “no opinion,” the decision on whether to allow a product containing GMOs to be imported reverts to the Commission.  Perhaps with some reluctance, the Commission has approved the importation of around 50 genetically modified products. 

Not pleased to be in a situation in which opponents of GMOs criticize it every time a new application gets approved, the European Commission proposed in April 2015 to pass the buck and allow individual member countries to ban the importation of GMO foods and feed ingredients that they don’t like.  The EU Parliament, a popularly elected legislative body, voted on Oct. 28 to reject the proposal by a convincing 577-75 margin.  Among the reasons for disapproval are that it would fracture the EU internal market, violate World Trade Organization rules, and impose huge costs on livestock producers. 

It is gratifying to see legislators acting in support of sound science, economic integration, and the rules-based global trading system.  It would be nice to think that the Parliament’s strong rejection of the proposal would mean the end of it.  Not so fast, though.  The Commission still is hoping for an affirmative decision by the European Council, which includes the heads of state of EU member countries.  If the Council decides to approve it, the measure would go back to the Parliament to be considered once again.

Even though this particular proposal does not seem likely to be adopted, the question of how best to regulate GMOs in the EU is far from settled.  In the United States, there has been a general consensus that approved GMOs should be allowed to be marketed, but debate continues on whether they should carry special labeling.  The political process in the EU still is wrestling with the basic question of whether the government should prevent people from purchasing products that are recognized as safe, but are opposed by some members of society.  A libertarian approach would be to ensure that people are free to exercise their rights to buy – or to refrain from buying – whatever they wish.  The EU still has some distance to go to achieve that degree of individual liberty and consumer choice.

Perhaps in anticipation of Halloween, two components of corporate welfare have been doing their best impression of a Hollywood monster that refuses to die.

The Export-Import Bank (Ex-Im) seems poised to come back from the grave, and promises have already been made to reverse the minor cuts to the crop insurance subsidy program agreed to in this week’s budget deal. These cases give some insight into just how difficult it is to actually get rid of corporate welfare.

Cato has long criticized both corporate welfare and crony capitalism, which benefit the few, the powerful, and the politically connected at the expense of everyone else. These policies introduce distortions into the market and limit competition, all at taxpayer expense. Despite their many harmful effects, the nature of these programs, with concentrated benefits and dispersed costs makes it hard to root out corporate welfare from the budget. The groups and companies that benefit are highly motivated to make sure they continue, while ordinary people who all bear a smaller share of the cost are more focused on other things like the practical concerns of providing for their families. This can explain part of why it’s so hard to end any of the many programs that make up the web of corporate welfare.

Ex-Im provides financing and loan guarantees for foreign customers of certain U.S. companies. While proponents argue that Ex-Im is critical to exports and helps American businesses, the vast majority of these benefits flow to a handful of major corporations, and roughly 98 percent of U.S. exports do not get any kind of Ex-Im assistance at all. As Cato’s Dan Ikenson has shown, these subsidies also harm “competing U.S. firms in the same industry, who do not get Ex-Im backing, and U.S. firms in downstream industries, whose foreign competition is now benefiting from reduced capital costs courtesy of U.S. government subsidies.” Given these inefficiencies and distortions, opponents of Ex-Im cheered when the bank’s charter lapsed this summer, but unfortunately that was not the last chapter in this saga. Earlier this week, the House, in a discouraging instance of bipartisanship, voted to reopen Ex-Im by a 331-118 margin. While it still has to get past the Senate, a similar bill passed that chamber earlier this year, and the measure will likely be included in the coming highway bill. So after a prolonged battle to shut down this one small component of corporate welfare, the hard-fought victory for Ex-Im opponents will probably be short-lived.

Tucked into this week’s very disappointing budget deal was one minor positive aspect: modest cost savings from making changes to the subsidized crop insurance program. In this program, farmers can purchase insurance from approved private insurance companies, and the federal government reimburses these insurance companies for administrative and operating costs in addition to reinsuring their losses. The tweak in the budget deal wouldn’t even achieve savings by increasing the insurance premiums paid by farmers, but by merely lowering the rate of return for the insurance companies from 14.5 percent of premiums to 8.9 percent.  It’s worth noting that the Congressional Budget Office estimated that this change would save about $3 billion through 2025, and that these savings would not really start to materialize until 2019. Perhaps unsurprisingly, Roll Call reports that “[f]arm-state lawmakers have been assured by leaders that a provision in the bipartisan budget deal that would trim the federal crop insurance subsidy program will be replaced down the road.” This modest change was years away from even taking effect and the savings were extremely modest over a decade, but there have already been promises to reverse them, citing the potential for “dramatic” consequences.

Past Cato research has analyzed the amount of corporate welfare in the federal budget, estimating that it consistently accounts for more than $100 billion (in inflation-adjusted dollars) each year.

Sources: Author’s calculations using Office of Management and Budget, “Public Budget Database, Outlays,” https://www.whitehouse.gov/sites/default/files/omb/budget/fy2016/assets/outlays.xls and Office of Management and Budget, “The Appendix, Budget of the United States Government, Fiscal Year 2016,” https://www.whitehouse.gov/omb/budget/Appendix; Tad DeHaven, “Corporate Welfare in the Federal Budget,” Cato Institute Policy Analysis No. 703, July 25, 2012; Stephen Slivinski, “The Corporate Welfare State: How the Federal Government Subsidizes U.S. Businesses,” Cato Institute Policy Analysis No. 592, May 14, 2007.

The developments with Ex-Im and crop insurance subsidies are just the two most recent examples of why corporate welfare keeps coming back like a Hollywood monster, costing taxpayers and introducing economic distortions, year after year. Even so, opponents of corporate welfare need to continue to expose the flaws, costs and harmful effects of these programs, otherwise they will always be with us.

The Trans-Pacific Partnership negotiations have just concluded and the parties are about to begin a very long process of ratification and implementation. Once all of that is complete, the TPP will be ready and willing to accept new members. There’s a pretty long list of countries ready to join.

The president called the TPP America’s chance to “write the rules” instead of China. That’s an unfortunately confrontational way to sell international commercial cooperation. Certainly, the TPP is an effort to circumvent gridlocked negotiations at the World Trade Organization and establish new norms while lowering trade barriers. It’s not clear yet whether the proliferation and growth of megaregional agreements like the TPP will help or hinder the broader and more valuable goal of global trade liberalization.  

In practice, having America “write the rules” mostly means (1) lower tariffs; (2) more rules on things like intellectual property, state-owned enterprises, and labor and environment protection; and (3) less pressure to eliminate America’s own protectionist policies like outrageous farm subsidies, shipping restrictions, and abusive antidumping laws. 

But if the TPP is going to be a vehicle for exercising American influence over global economic governance, it will surely need to expand beyond its current 12 members. 

Since the negotiations concluded a few weeks ago, half a dozen governments in the region have expressed or reiterated their interest in joining the TPP. These include Indonesia, South Korea, Colombia, Thailand, the Philippines, and Taiwan. The fact that so many countries are eager to join an agreement they haven’t seen and had no role in drafting says a lot about the politics of international trade.

Once the TPP text is released, we will have a better idea of what these countries will be required to do to gain entry to the agreement. Will they need unanimous approval from existing members? Will they be required to accept additional obligations beyond the current text? Will Congress and other legislatures have to ratify each accession? The answers to these questions could have a big impact on the future of the global trading system.

In the trade policy world, everyone is eagerly awaiting the release of the full text of the Trans Pacific Partnership (TPP) agreement, but trade news sources say this is still several weeks away. My colleague Bill Watson has done a nice job with the one chapter, on intellectual property, that is available in mostly final form through a leak, but for the rest of the text, it is hard to say too much at this point.

But if we can’t talk much about substance yet, what we can talk about is the politics of the TPP: What are its chances in Congress?  The Obama administration has taken a somewhat creative approach to assembling a coalition from across the political spectrum in support of the TPP.

They have tried to appeal to free market conservatives by talking about how the TPP would involve “18,000 tax cuts,” in the form of lower tariffs on U.S. exports.

They have tried to bring in liberal support by calling it the “most progressive trade agreement in history.”

And some people have portrayed the TPP as having a security component, in order to bring security hawks on board.

But here’s a key question related to the first two: Can they bring in supporters without creating new opponents?  For example, with regard to the TPP’s “progressive” nature, the administration says the TPP would do the following on labor protections: “Require laws on acceptable conditions of work related to minimum wages, hours of work, and occupational safety and health.”  Focusing on the first one, what exactly would the TPP require with a minimum wage?  If it requires that all TPP countries have a minimum wage – either set at a particular level, or just having one at all – some Republicans in Congress might object.

With trade agreements these days addressing so many aspects of social policy, assembling a package of provisions that Congress will support is a challenge. Putting aside the substance, which we will get to once the text is released, the politics of the TPP are going to be very interesting.

In the Republican debate last night, former Gov. Mike Huckabee of Arkansas criticized calls for Social Security reform, saying “people paid their money. They expect to have it,” and that the country needs to honor its promises to seniors. There are problems with this line of argument: the Social Security payroll taxes a person pays are not tied to the benefits they receive in a legal sense, and the ‘promises’ made by Social Security are, and always have been, subject to change.

Congress has had the authority to alter Social Security since its inception. Section 1104 of The Social Security Act of 1935 explicitly says: “The right to alter, amend, or repeal any provision of this Act is hereby reserved to the Congress.”

Not only does Congress have the right to make changes, it has done so multiple times in the past. Sometimes these changes are smaller things, like a technical correction to the indexation formula, but there were also larger reforms that were part of attempts to address the programs solvency issues.

The Supreme Court revisited the issue of Social Security’s promises in Flemming v. Nestor, in which Nestor, who had paid into Social Security for 19 years and begun to receive benefits, was then deported for previous ties to the Communist Party. Nestor tried to appeal the termination of his benefits, citing his previous contributions, but the Supreme Court upheld it, saying:

To engraft upon the Social Security system a concept of ‘accrued property rights’ would deprive it of the flexibility and boldness in adjustment to ever changing conditions which it demands… It is apparent that the non-contractual interest of an employee covered by the [Social Security] Act cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments.

The other aspect Huckabee touches on is the link between the taxes paid in and the benefits a person ultimately receives, implying that a worker’s contributions are kept in some kind of silo to be paid out to them at a later date. As another Supreme Court case found, this is not true.

In Helvering v. Davis (1937)the Court held that Social Security was not a contributory insurance program in the sense that  “[t]he proceeds of both the employee and employer taxes are to be paid into the Treasury like any other internal revenue generally, and are not earmarked in any way.” Despite how Huckabee and his fellow defenders of the status quo describe the program, the payroll tax payments a person pays into Social Security have no direct link to the benefits that they receive in a legal sense: they  are subject to future changes made by Congress and dependent on the program having sufficient revenue.

Huckabee doesn’t need to familiarize himself with these decades-old Supreme Court cases or the Social Security Act to be able to understand the problems with his invocation of the program’s ‘promises’. Anyone, including Huckabee, can see this for themselves in the Social Security Statement that the Social Security Administration periodically sends to workers:

Your estimated benefits are based on current law. Congress has made changes to the law in the past and can do so at any time.

The ‘promises’ with Social Security always came with an asterisk, and beneficiaries are not entitled to a certain amount because they have contributed payroll taxes. In the past the law has been altered to change the deal facing beneficiaries, and there will undoubtedly have to be more changes in the future if Social Security is to remain viable. If we maintain the status quo and do nothing, benefits will have to cut by 23 percent across the board when the combined trust fund is exhausted in 2034. There can be disagreements about the best way to reform Social Security, but when it is facing trillions in unfunded obligations and the certainty of drastic cuts in the future absent reform, doing nothing is not a feasible option.

Technically, even though the negotiations are over, the TPP isn’t finished being drafted.  Lawyers are currently going over every inch of the agreement to make sure the negotiators’ intent is reflected effectively and accurately in the final text, which will presumably be released in the coming weeks.  However, Wikileaks has published what appears to be the fully negotiated, pre-scrub TPP chapter on intellectual property.  While the final text may have somewhat different language, the leaked version gives a clear picture of what the parties agreed to on a number of contentious IP issues.

I have been critical of the inclusion of IP rules in trade agreements generally and in the TPP in particular.  Trying to resolve contentious policy differences that are not strictly trade-related impedes the important and valuable work of trade agreements in lowering trade barriers and reducing harmful protectionism.  Moreover, trade negotiations are not the proper forum for devising complex patent and copyright systems, which if done poorly can have negative impacts on the rights of consumers and even hinder innovation. 

It would have been best if the TPP did not impose any obligations related to IP, but it will, so the task at hand is to evaluate the individual provisions.  While it’s tempting to judge TPP provisions as being good or bad policy on their face, it’s important to remember that the agreement does not exist in a vacuum.  What matters is whether and to what extent the TPP is going to impact national IP laws—that includes not only changes to the law but also restrictions on a legislature’s ability to change the law later. 

I offer three standards for judging individual IP provisions in the TPP.  These standards are U.S.-focused, but you could do the same analysis for any other country.

  1. Does the provision require a change in U.S. law?
  2. Does the provision impose a greater obligation than past U.S. trade agreements?
  3. Is the provision more strict than current global rules at the World Trade Organization?

The original negotiating position of the United States in the TPP included provisions that went beyond current U.S. law.  For example, U.S. negotiators wanted the TPP to require governments to limit copyright exhaustion to domestic sales, a rule that contradicts U.S. law’s global first sale doctrine.  U.S. negotiators were also pushing for rules that secured more protections than previous U.S. trade agreements to match recent changes in U.S. law, the most prominent example being 12 years of market exclusivity for biologic medicines.

The latest leak reveals, however, that the United States failed to secure any of these ambitious proposals.  In fact, the TPP’s IP chapter is by and large less onerous than the U.S.–Korea Free Trade Agreement, the most recent agreement negotiated by the United States before the TPP.  Many provisions are less detailed and more flexible than their counterparts in the last agreement.  I suspect this outcome is due in large part to the fact that the TPP has 12 members, many of whom do not want to reform their IP regimes.

But while the TPP’s IP chapter is apparently not going to impose any new international obligations on the United States, many of its provisions go beyond what is required under the rules of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and so other TPP members will have to change their laws.  The most notable example of a TRIPS-plus requirement in the TPP is the provision mandating that copyrights last for 70 years after the author’s death.  That is twenty years longer than the TRIPS requirement, so a number of TPP members—including Canada, Japan, and New Zealand—will have to extend copyright duration retroactively, keeping many very old works from entering the public domain for another two decades. 

The IP chapter is just one of many components of the TPP that will need to be evaluated to determine whether the entire agreement is net liberalizing and therefore worth doing.  Everyone should wait until the final text of the entire deal is available before making that determination.

It’s been a day since the disappointing “Nation’s Report Card” results came out, and it has given me a chance to crunch some numbers a bit. They don’t tell us anything definitive – there is a lot more that impacts test scores than a policy or two – but it is worth seeing if there are any patterns that might bear further analysis, and it is important to explore emerging theories.

Not surprisingly, while many observers have been rightly hesitant to make grand pronouncements about what the scores mean, some theories revolving around the Common Core have come out. The one I’ve seen the most, coming from people such as U.S. Secretary of Education Arne Duncan and Karen Nussle of the Core-defending Collaborative for Student Success, is that the Core will bring great things, but transitioning to it is disruptive and we should expect to see short-term score drops as a result.

That is plausible, and we can test it a bit by looking at the performance of states (and the Department of Defense Education Activity) that have demonstrated some level of what I’ll call Core aversion. Those are states that (1) hadn’t adopted the Core at the time of the NAEP test; (2) had adopted but had moved away by testing time; and (3) were still using the Core at test time but officially plan to move away. They are broken down in the following table, which uses score changes in the charts found here:

What we see in the highlighted area is that, with the exception of eighth grade math scores for states that will be departing the Core but were still in it as of NAEP testing, average score changes were better in all four testing categories for Core-averse states than the national average.

That the states that never adopted the Core outperformed the average could indicate that the disruption theory is correct: foregoing the transition to the Core enabled better performance. Of course, it could also be that the Core standards are less effective at boosting NAEP scores than what Core-averse states are using. Or that those states had better economies over the last two years. Or many other possibilities.

The problem for the disruption theory is that the states that adopted the Core but then dropped it likely underwent greater disruption than states that have been consistently working on the Core. Indeed, Michael Petrilli of the Core-supporting Fordham Institute said that Oklahoma was plunged into “chaos” when it abandoned the Core in May 2014. Yet the Core-dropping states performed better than the national average. It is also likely that the two states that announced they would be leaving the Core but were still in it as of the time of the NAEP testing – Missouri and South Carolina – experienced greater disruptions than consistent Core states.

Of course more, much deeper analysis of the NAEP data – and more iterations of the test – will be needed to reach any firm conclusions about the Core’s effects. But the disruption theory already seems to be in a bit of trouble.

The tax-reform landscape is getting crowded.

Adding to the proposals put forth by other candidates (I’ve previously reviewed the plans offered by Rand Paul, Marco RubioJeb Bush, Bobby Jindal, and Donald Trump), we now have a reform blueprint from Ted Cruz.

Writing for the Wall Street Journal, the Texas Senator unveiled his rewrite of the tax code.

…tax reform is a powerful lever for spurring economic expansion. Along with reducing red tape on business and restoring sound money, it can make the U.S. economy boom again. That’s why I’m proposing the Simple Flat Tax as the cornerstone of my economic agenda.

Here are the core features of his proposal.

…my Simple Flat Tax plan features the following: • For a family of four, no taxes whatsoever (income or payroll) on the first $36,000 of income. • Above that level, a 10% flat tax on all individual income from wages and investment. • No death tax, alternative minimum tax or ObamaCare taxes. • Elimination of the payroll tax and the corporate income tax… • A Universal Savings Account, which would allow every American to save up to $25,000 annually on a tax-deferred basis for any purpose.

From an economic perspective, there’s a lot to like. Thanks to the low tax rate, the government no longer would be imposing harsh penalties on productive behavior. Major forms of double taxation such as the death tax would be abolished, creating a much better environment for wage-boosting capital formation.

And I’m glad to see that the notion of a universal savings account, popularized by my colleague Chris Edwards, is catching on.

Moreover, the reforms Cruz is pushing would clean up some of the most complex and burdensome sections of the tax code.

But Cruz’s plan is not a pure flat tax. There would be a small amount of double taxation of income that is saved and invested, though the adverse economic impact would be trivial because of the low tax rate.

And the Senator would retain some preferences in the tax code, which is somewhat unfortunate, and expand the earned income credit, which is more unfortunate.

It maintains the current child tax credit and expands and modernizes the earned-income tax credit… The Simple Flat Tax also keeps the current deduction for all charitable giving, and includes a deduction for home-mortgage interest on the first $500,000 in principal.

But here’s the part of Cruz’s plan that raises a red flag. He says he wants a “business flat tax,” but what he’s really proposing is a value-added tax.

…a 16% Business Flat Tax. This would tax companies’ gross receipts from sales of goods and services, less purchases from other businesses, including capital investment. …My business tax is border-adjusted, so exports are free of tax and imports pay the same business-flat-tax rate as U.S.-produced goods.

His proposal is a VAT because wages are nondeductible. And that basically means a 16 percent withholding tax on the wages and salaries of all American workers (for tax geeks, this part of Cruz’s plan is technically a subtraction-method VAT).

Normally, I start foaming at the mouth when politicians talking about value-added taxes. But Senator Cruz obviously isn’t proposing a VAT for the purpose of financing a bigger welfare state.

Instead, he’s doing a swap, imposing a VAT while also getting rid of the corporate income tax and the payroll tax.

And that’s theoretically a good deal because the corporate income tax is so senselessly destructive (swapping the payroll tax for the VAT, as I explained a few days ago in another context, is basically a wash).

But it’s still a red flag because I worry about what might happen in the future. If the Cruz plan is adopted, we’ll still have the structure of an income tax (albeit a far-less-destructive income tax). And we’ll also have a VAT.

So what happens 10 years from now or 25 years from now if statists control both ends of Pennsylvania Avenue and they decide to reinstate the bad features of the income tax while retaining the VAT? They now have a relatively simple way of getting more revenue to finance European-style big government.

And also don’t forget that it would be relatively simple to reinstate the bad features of the corporate income tax by tweaking Cruz’s business flat tax/VAT.

By the way, I have the same specific concern about Senator Rand Paul’s tax reform plan.

My advice to both of them is to ditch the VAT and keep the payroll tax. Not only would that address my concern about enabling the spending proclivities of statists in the future, but I also think Social Security reform is more feasible when the system is financed by the payroll tax.

Notwithstanding my concern about the VAT, Senator Cruz has put forth a plan that would be enormously beneficial to the American economy.

Instead of being a vehicle for punitive class warfare and corrupt cronyism, the tax code would simply be the method by which revenue was collected to fund government.

Which gives me an opportunity to raise an issue that applies to every candidate. Simply stated, no good tax reform plan will be feasible unless it’s accompanied by a serious plan to restrain government spending.

The budget agreement between congressional leaders and the Obama administration would break prior budget caps and increase spending over the next two years by $80 billion. The Bipartisan Budget Act (BBA) of 2015 would theoretically offset that cost with savings down the road, but promises of future savings are worth little given that GOP leaders have shown they will break agreed-to restraints whenever the time comes. The Heritage Foundation is right that the deal is a “colossal step” in the wrong direction and “does nothing to reduce the size and scope of government.”

If passed, the deal would undermine a crucial GOP policy plank going into 2016. The issue that unifies all the Republican presidential candidates is the promise of major tax cuts for individuals and businesses. It has been heartening to see so many candidates proposing pro-growth cuts. The Tax Foundation has run the numbers on the plans, and nearly all of them would generate revenue losses for the government and savings for the people.

I’m all for a large tax cut, but how do Republicans plan on passing such a cut if they keep increasing spending? The next president will be confronted with very ugly budget numbers looking forward, thanks partly to the bipartisan profligacy of recent years. Coming into office in 2017, the new president will see deficits exploding to more than $1 trillion by the early 2020s, and $8 trillion more in debt projected to be piled up over the coming decade.   

The best pro-growth tax cuts should be enacted regardless of the deficit situation. In particular, a permanent corporate tax rate cut would generate strong economic growth and would not increase the long-term deficit because the corporate tax base is so dynamic. But to cut taxes, the next president will have to convince enough members of Congress to go along, and the higher are spending and deficits, the harder it will be to get moderates on board.

By repeatedly caving into President Obama, Republican leaders are undermining the ability of the next president, if a Republican, to follow though on major tax reforms and stronger economic growth.

The chart below shows total federal spending on programs, and excludes spending on interest, which has been abnormally low in recent years. While current spending is down from the stimulus peak of 2009, it is still substantially above spending during the Bush years, which in turn was substantially above spending during the Clinton years. With the new budget deal, non-interest spending will be about 19.9 percent of gross domestic product (GDP) in 2016, up more than two percentage points from the Bush years.

That may not sound like much, but two points of GDP is about how much the government collects in corporate income taxes each year. If Obama and the Republicans hadn’t splurged on spending in recent years, we would have had the budget room to completely abolish the corporate income tax—a reform that would generate a powerful boom and rising prosperity for all Americans.

Rising spending matters because it damages the economy. But it also matters because it balloons deficits and makes desperately-needed tax reforms more difficult.    



Data note: the 2009 spending spike was not quite as high as shown because recorded TARP spending did not materialize.

Today, China abandoned its 35-year-old one-child policy. Based on the now debunked threat of overpopulation that was popularized by Stanford University scholar Paul Ehrlich, the communist government subjected the Chinese people to forced sterilizations and abortions. Many newborn babies were either killed or left to die. Today, the Chinese population suffers from a dangerous gender imbalance that favors boys over girls at a ratio of 117:100, and a demographic implosion that threatens future economic growth and prosperity. In fact, as Human Progress advisory board member Matt Ridley shows in his book The Rational Optimist, population growth and economic expansion go hand in hand. The horrific consequences of the Chinese one-child policy are a reminder of what happens when governments are allowed to interfere in the deeply personal decisions of individual citizens and their families.

For decades, discriminatory housing policies in the U.S. restricted the ability of black citizens to purchase homes outside of predominantly black ghettos. From the 1950s through the 1970s, real estate speculators called “blockbusters” made some progress opening up white-only neighborhoods to black families until an odd coalition of segregationists and left-wing activists succeeded in regulating blockbusters out of existence. Tragically, the U.S. housing market has remained largely segregated even until today. Moreover, because a family’s access to a quality education is determined primarily by the location of their home, black children are disproportionately assigned to low-performing district schools, depriving them of opportunity. 

Sadly, misguided suspicions about the market led left-wing leaders to support paternalistic regulations that harmed the very people they intended to help – a disastrous mistake that many modern progressives are now repeating in education policy.

In a recently updated version of his 1998 paper, “A Requiem for Blockbusting,” Dmitri Mehlhorn of the Progressive Policy Institute details the sordid history of discriminatory housing policy in the U.S. When Southern agricultural jobs dried up in the early 20th century, black workers began migrating to the industrial North. The response was ugly:

White Americans mostly reacted to this migration with coordinated and violent hatred. Driven by xenophobia, they used physical, political, and economic power to drive blacks into strictly circumscribed ghettos. The ugliness was a team sport, including local governments, state and federal agencies, courts, businesses, and the media.

At the federal level, the Federal Housing Administration encouraged racial covenants, stating that they “provide the surest protection against undesirable encroachment and inharmonious use.” These covenants contractually prohibited homes from being resold to black families. By the 1940s, integrated neighborhoods had ceased to exist in every major city in the United States.

The U.S. Supreme Court eventually ruled against racial covenants in housing, but racists found workarounds. As Mehlhorn details:

For instance, both federal and local agencies encouraged white flight by steering resources to whites seeking segregated suburban houses and schools, while cutting those resources for black families. So-called “urban renewal” laws were used to raze expanding black neighborhoods that threatened white institutions. Federal funds were used to construct massive public housing projects for the displaced black residents.

We are still feeling the effects of these discriminatory policies today, particularly in education, which is intimately linked with housing policy. According to a 2012 study by the UCLA Civil Rights Project, “80% of Latino students and 74% of black students attend majority nonwhite schools (50-100% minority), and 43% of Latinos and 38% of blacks attend intensely segregated schools (those with only 0-10% of whites students) across the nation.”

In the 1950s, “blockbusters” began selling homes in white areas to black families in violation of industry norms because they could charge blacks significantly higher prices. As Mehlhon details:

From the 1950s onward, for roughly two decades, blockbusters bought low, sold high, and moved housing supply from whites to blacks at an accelerating pace. By 1962, when blockbusting had been in existence for barely a decade, Chicago alone had over 100 operators. For a time, blockbusters around the country were on pace to destroy the price differential between white and black housing markets, making housing much more widely available for African Americans.

But make no mistake, these men were hated.

It’s easy to understand why segregationist whites hated the blockbusters, whom the segregationists accused of being race traitors perpetrating “communicide.” The reason progressives joined with the segregationists in supporting laws against blockbusting is more complicated. Progressives believed blockbusting entailed an “unconscionable exploitation of minority groups” for profit because blockbusters regularly charged blacks higher prices than whites. Congress responded by passing a series of regulations restricting blockbusting and in 1969, a federal court ruled that any black homebuyer could invalidate his property and finance contracts if he could demonstrate “that he was charged more than a white person would have been charged or that he received less favorable terms and conditions than would have been given to a white person.” On its face, that seems sensible. But practically, as Mehlhorn shows, these regulations and rulings preserved segregation:

Thus, by the early 1970s, any real estate agent who wished to sell a home to a black family faced enormous legal liabilities. If any clients alleged that their contractual terms were not identical to the terms a white family might have obtained, they would have an automatic cause of action in federal court to challenge the contracts. If a client asked about changing racial demographics, the agent would either have to decline to answer, or could be subjected to substantial civil and criminal penalties. Given the realities of the racially segregated markets of the time, the only safe way to avoid these lawsuits was to adhere to the prior professional code of racial steering: buy and sell homes only within a single race.

Blockbusters charged blacks higher prices but, as Mehlhorn explains, they also bore significantly higher risks and costs. “By dealing with blacks, blockbusters earned the social sanctions of the segregationist era, including boycotts, local government sanctions, and even death threats.” At the time, “banks would not lend to blacks and whites would not sell to blacks” so, Mehlhorn concludes, “Without the profits available from blockbusting, the real estate and finance industries might not have been willing to alienate their racist white customer base by dealing with blacks, or at the very least might have slowed their activities. The profits available to blockbusters were the biggest driver of support for black homebuyers during this period.” By eliminating those profits, well-intentioned activists eliminated blacks’ only promising avenue to escape the ghetto and live in middle-income communities.

Given all of these problems, it seems astonishing that progressive elements of society supported the anti-blockbusting movement. The problem appears to be that progressives lacked economic savvy, and in fact were openly hostile to market mechanisms. This hostility blinded them to the needs of individual blacks and allowed them to accept destructive policies. […]

The first way that blacks suffered from this bias by their leaders was at the individual level. Prior to anti-blockbusting laws, blacks had the choice of whether or not to patronize blockbusters. By the millions, blacks indicated that their preference was for blockbusting. The anti- market, anti-blockbusting progressives, however, refused to accept that choice as legitimate, and thus enacted laws that prevented blacks from acting upon these preferences. Perhaps some progressives genuinely felt that the decisions to patronize the blockbusters were the result of market distortions such as fraud. Others, however, refused even to accept the possibility that market mechanisms can empower individuals and reveal preferences.

Fear and misunderstanding about profit and market mechanisms also drives much of the modern left’s opposition to school choice. Even more prevalent is the concern that by choosing a better education for their children, parents who accept vouchers or tax-credit scholarships or enroll their children in charter schools thereby deprive traditional district schools of funding. The left’s solution, therefore, is to deprive families of that choice – and those families are disproportionately low-income minorities

Take, for example, the case of Washington D.C.’s Opportunity Scholarship Program (OSP). Nearly all of the OSP voucher recipients are black or Hispanic and a gold-standard study of the program found that it increased high school graduation rates by 12 percentage points. As the study’s lead researcher notes, this finding is important because “high school graduation is strongly associated with a large number of important life outcomes such as lifetime earnings, longevity, avoiding prison and out-of-wedlock births, and marital stability.” Moreover, Congress intentionally funded the OSP separately from the district schools to shield them from any fiscal impact. Yet although 74 percent of D.C.’s mostly black residents support the OSP, all but two Democrats in Congress voted against the OSP’s reauthorization last week.

D.C.’s non-voting member of Congress, Eleanor Holmes Norton, condemned the voucher program as Speaker John Boehner’s “pet project” and argued that “D.C. residents, not unaccountable members of Congress, know best what our children need and how to govern our own affairs.” However, by “our own affairs” Norton appears to be referring to government officials rather than individual residents and families. Norton’s language betrays the progressive inclination to celebrate democratic decision-making while dismissing decisions made in a market, a tendency that Mehlhorn detected in the progressive opposition to blockbusting:

One court made this argument explicitly, holding that blacks should be forced to express their preferences through political, instead of market, mechanisms. According to this court, the availability of housing from blockbusters actually reduced the likelihood of true justice, “by offering the long-oppressed black an unattractive yet alternative choice to that of a confrontation for equal buyers’ rights in a white neighborhood.” The explicit articulation of the court’s anti-market bias allows us to explore its moral and empirical flaws. At face value, the court’s argument seems brutal. After all, the court appears to be agreeing that individual blacks would choose blockbusters over political confrontation. Nonetheless, the court refuses to allow them that option, preferring to force them to take political action. In addition to moral problems with overtly removing decision-making power from blacks, the court’s logic has little empirical grounding. The court fails to consider the speculative nature of the eventual political relief, or the costs that would be imposed by delay while blacks waited for political reform to take effect. Moreover, it is not clear how making blacks desperate would have enhanced their ability to influence the all-white power-brokers of city government.

One hears echoes of these arguments in the claims of some modern leftists that–using Albert O. Hirschman’s lexicon–giving families an “exit option” (the ability to leave a school that isn’t working for them) undermines their exercise of “voice” (advocating for change) within in a school. However, this is an empirically testable hypothesis and it has been tested repeatedly. Of 23 studies on the impact of competition on district schools, 22 found a modest but statistically significant positive impact on student outcomes and one found no detectable difference. None found harm.

Indeed, the ability to leave may well enhance the ability of and propensity for parents to advocate change within their schools. Hirschman himself later realized that “opening up of previously unavailable opportunities of choice or exit may generate feelings of empowerment in parents, who as a result may be more ready than before to participate in school affairs and to speak out.” When administrators who know that parents have other options, they are more likely to pay attention to their concerns. And when parents see that the administration takes their concerns seriously, they’re more likely to speak up. Choice, therefore, benefits not only those who choose to leave it but also those who choose to stay.

Moreover, despite fears to the contrary, numerous studies have found that school choice improves integration. As Dr. Ben Scafidi details in a Friedman Foundation study released yesterday, school choice policies have a better track record of promoting integration than government efforts. Sadly, it is too often the case that “government restrictions on the choices of African Americans and of low-income families leads to a more segregated society.”

The market is not the enemy of social justice. As Mehlhorn observes, “Markets allow an expression of preferences, including in some circumstances the preferences of society’s worst-off.” The best way for policymakers to foster integration and remedy historical wrongs against minorities is to empower minorities to make decisions in their own best interests rather than to presumptuously make decisions for them. 

To learn more about the impact of housing policy on access to quality education, watch the recent Cato Institute event, “Race, Housing, and Education”:

There’s big news in the crowdfunding world. The Securities and Exchange Commission (SEC) announced that they are (finally) voting on final rules Friday that would make investment crowdfunding legal.

Other types of crowdfunding — funding a venture with small amounts of money solicited from a large group of people — have been around for a while. The biggest crowdfunding site has even seen its name become a verb – as in “we’re Kickstarting our indie film.” And while one typically thinks of crowdfunding as a creature of the Internet, the concept has a long history. The Statue of Liberty stands in New York Harbor because of a successful crowdfunding effort, although in those days they called it taking subscriptions for donations, and the campaign was done door-to-door and not, of course, online.

But crowdfunding has been limited legally. Organizations raising money through crowdfunding, including for-profit corporations, have been restricted in what they can give in exchange for funds provided through online solicitations. Things like t-shirts have been popular thank-you gifts, while creators of innovative products, like the Pebble Watch, have offered pre-sales of their coveted inventions.

But offering any kind of return on investment, including the opportunity to buy a piece of the company, has been off limits. That’s because securities offered for sale in the U.S. must be registered with the relevant regulators, including the SEC and any state regulator in the states in which the securities will be offered. Any offering that deviates from this rule must fall under one of the laws’ exemptions. For example, there is an exemption that can apply when an issuer sells only to accredited investors (broadly speaking, institutional investors and wealthy individuals). Until now, there hasn’t been an exemption for crowdfunding.

In 2010, some entrepreneurs began thinking about an exemption for investment crowdfunding. They wanted to allow regular people to invest small amounts of money either in start-ups or in small businesses, such as a local coffee shop, without requiring the start-up or small business to register with the regulators. The fact is that registering an offering with the SEC is extremely time-consuming and expensive. When companies register an offering for the first time — that is, when the company has its initial public offering or IPO — it’s a big deal. The local coffee shop is not going to do an IPO to raise $100,000 for a renovation; nor is a start-up going to use an IPO to get seed money.

In the wake of the financial crisis, there was broad concern about capital access for small companies. In early 2012, Congress passed the Jumpstart Our Business Start-ups (JOBS) Act with wide-spread bi-partisan support, passing 390 to 23 in the House and 73 to 26 in the Senate. Among other provisions, the Act included a new crowdfunding exemption in securities law. Reactions in some corners of the start-up world could not have been more enthusiastic: investment crowdfunding would “change the world.” But the new exemption required implementing regulation, and although the Act ordered the SEC to issue rules by the end of 2012, no rules were forthcoming. In October 2013, the SEC finally issued proposed rules, but those proposed rules sat untouched for two years.

Finally, with Friday’s vote, the SEC will likely finalize the rules, dubbed Regulation CF, making investment crowdfunding legal.

I doubt, however, that the world will change because of Regulation CF.

The problem is that Regulation CF is really not very new. It’s an exemption built into the regulatory framework created through the Securities Act and Securities Exchange Act in the mid-1930s. Even though legislators clearly attempted to create a workable exemption in the JOBS Act, the process was fraught with concern about investors losing all their money through risky start-up investments. The legislation includes limits on how much any one investor can invest in crowdfunding in any given year — ranging from $2,000 or less for lower and middle income investors, to $10,000 for people with incomes over $100,000.

Even this limit was deemed insufficient to fully protect retail investors. So other features of public offerings (those that are registered with the SEC pursuant to an IPO or later offering) were incorporated into the crowdfunding exemption both in the JOBS Act itself and in proposed Regulation CF. For example, crowdfunding issuers must both make a number of disclosures about the business and its financial status to the SEC (and the public) and make annual disclosures for as long as the crowdfunding securities remain outstanding, or the company goes out of business. Additionally, under proposed Regulation CF, issuers must follow U.S. Generally Accepted Accounting Principles (GAAP) in preparing their financial statements. Among other things, GAAP requires accrual-based accounting, but most small businesses use the simpler cash-based accounting method. There are reasons to use accrual-based accounting for larger businesses, but it’s not clear that financial statements prepared in accordance with GAAP provides much benefit for investors in small businesses.

The crowdfunding exemption, both as it’s written in the JOBS Act and as the SEC proposes implementing it, is built on several assumptions that underlie the federal securities laws. While some of these assumptions may be appropriate for the kinds of companies the SEC typically regulates — the large public companies — it’s not clear they apply to the small companies the crowdfunding exemption was designed to support. Crowdfunding is supposed to be a simple process, one that an issuer could navigate without expensive assistance from accountants and lawyers. Under the proposed rules and underlying legislation as they are currently written, most issuers will likely need help. With the $1 million cap on how much a company can raise through selling securities through crowdfunding, it’s unlikely that many issuers will find the process worth the expense.

Fortunately, the JOBS Act included other provisions, many of which have already begun to help companies access capital. There is no reason why investment crowdfunding should not exist; it’s just unlikely that many issuers will find it useful without significant changes to the underlying legislation, something no rules from the SEC can fix. And investment crowdfunding is almost certainly not going to change the world.

[Cross-posted from Alt-M.org]