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In this essay on government construction projects, I discuss how promoters use “strategic misrepresentation” to subdue taxpayer opposition and get dubious spending schemes approved. The low-balling of projected costs is a tried and true deception used by infrastructure promoters the world over.

A variation on the strategy was apparently used to gain support for California’s expensive bullet train project. The Los Angeles Times reports that while people were aware that taxpayers would pay the system’s huge construction costs, officials promised that the operating costs would be covered by rail system revenues, not taxpayers. That promise appears to have been a fraud:

When a Spanish firm submitted a bid last year to help build the California bullet train, it cautioned that taxpayer money probably would be needed to keep the system operating.

Having reviewed data on 111 high-speed train lines around the world, construction giant Ferrovial said, it found that all but three could not make ends meet.

“More than likely, the California high speed rail will require large government subsidies for years to come,” the proposal said. 

That warning, however, was expunged from the version of Ferrovial’s proposal posted on the state’s website. The only record of it was on a data disk provided to The Times and others under a public records act request.

The state rail authority repeatedly has asserted that it will not need a subsidy and that every high-speed system in the world operates without taxpayer assistance — despite significant evidence to the contrary. A number of projects around the world have failed financially, others require direct operating subsidies and many more benefit from government taxes and regulations on competing airline and highway systems, according to audits, studies and interviews.

But in asking taxpayers to help build the Los Angeles-to-San Francisco line, officials assured the state would be able to pay the operating costs purely from the system’s revenues — and thus not sap money needed for social services, education or other projects.

When California voters committed the $9 billion in bonds in 2008, the measure stipulated that the system would have to operate without future public funding.

How can citizens fight such deceptions? This episode illustrates the importance of citizen engagement and transparency in government fiscal matters. It was not a state auditor that discovered the operating subsidy cover-up, but a concerned citizen doing some poking around:

The change in Ferrovial’s proposal was first noticed this spring by Morris Brown, a Bay Area resident and former Caltech chemistry professor who closely monitors documents and statements issued by the bullet authority.

    

Terrorism has hijacked American foreign policy. First Al Qaeda and now the Islamic State have come to dominate thinking about international affairs so completely that there is hardly any issue that has not been “terrorized.” Issues that once had significance because they were important in their own right now only matter insofar as they affect the fight against terrorism. Russia? Now discussed primarily with respect to whether their air campaign affects ISIS in Syria. Syria? Important only because of ISIS and other jihadists who want to rule. Iraq? The birthplace of ISIS. Iran? A regional power broker who supports terrorism as whose support for Assad in Syria matters because of…ISIS. Libya, the latest concern du jour? You guessed it: concern for Libya is in fact concern for the growth of ISIS in the country.

The figures below illustrate just how deeply ISIS has infiltrated American foreign policy news. In the first figure, you can see that over the past three years almost every foreign policy topic has taken on a distinct ISIS flavor. As the second figure shows, after reaching a historical high after September 11, news coverage of terrorism dropped steadily in the following years until rebounding in 2013. Attention to ISIS only really took off after June 2014 when ISIS started calling itself ISIS and simultaneously announced the establishment of a global caliphate.

(News data from Factiva’s Top US newspaper file)

(News data from Factiva’s Top US newspaper file)

Why should the United States spend so much time talking about ISIS and terrorism? To be sure, the Islamic State is a disaster for the Middle East, but it presents a relatively modest terrorist threat to the United States. And to keep things in perspective, since 9/11, just 78 Americans have died from Islamist terrorist attacks including the 49 who died in Orlando on June 12. None of those, it should be pointed out, were killed directly by members of either Al Qaeda or ISIS. ISIS and the broader problem of Islamist-inspired terrorism certainly deserve attention from both the government and the news media, but at this point, a case can be made that the current hyper focus on it has become dangerously counterproductive.

First, it seems pretty clear that sustained American intervention in the Middle East – and the news coverage that follows – helps spur attacks like the one in San Bernardino and Orlando. If the United States weren’t so closely linked in people’s minds with ISIS, then self-radicalized jihadists like Omar Mateen in Orlando or Syed Rizwan Farook and Tashfeen Malik from San Bernardino would not have found meaning in killing Americans to further the cause of ISIS.

Second, the size of the government agenda is more or less fixed. Every hour the government spends thinking about ISIS is time not spent dealing with other foreign policy issues. Issues of greater importance to the United States than ISIS include the increasingly dangerous dance with China in the South China Sea, nuclear proliferation, the future of free trade, and global health security, just to name a few. Given how much effort the United States has expended since 9/11 to confront terrorism and most recently ISIS, it is staggering to think how much has been left undone on other critical issues.

Finally, the deafening roar of ISIS-flavored news is creating incentives for political leaders to keep doing stupid things in the name of the war on terrorism. To be clear, the news media did not create the ISIS problem. That blame falls at the feet of the bipartisan Washington foreign policy consensus that has dictated endless intervention since 9/11. Once in motion, however, the news media have dutifully amplified the rhetoric of our political leaders, and by now it is almost impossible for anyone to change the conversation or reframe the foreign policy debate.  This reinforcing spiral of government overreaction and media hype have helped pave the way for a series of failed, unnecessary, and/or counterproductive policies from the 2003 invasion of Iraq through the American support of the current efforts in Yemen and Libya. Most recently it has given rise to Trump’s nativist foreign policy screeds.

Much like communism did during the Cold War, terrorism has proven itself an extremely potent rhetorical resource. Political leaders are no more anxious to appear soft on terrorism than they were soft on communism. Afraid of losing votes for seeming unconcerned about the safety and security of the United States, politicians propose one costly and counterproductive strategy after another. Duly reported by the news media, these strategies and their fallout then start the next cycle, reinforcing the same pattern of behavior. Unfortunately, as with the Cold War, it is difficult to see this problem ending until the fires that stoke Islamist-inspired terrorism have burned themselves out.

One common critique of immigration and multiculturalism is that it will cause Balkanization in the United States. Usually, the evidence that purportedly shows Balkanization in America is underwhelming.  Real Balkanization, in the Balkans, quickly led to terrorism, civil war, genocide, and some of the uglier nationalist movement of recent centuries.  By comparison, there is hardly any ethnic separatist nationalist terrorism in the United States inspired by immigrant groups or their descendants.

The best example of ethnic separatism from a migrant group is terrorism caused by Puerto Rican socialist-inspired nationalists who demanded independence for their island. From 1970 onwards, Puerto Rican terrorist groups like the United Force for Armed Independence (FALN), Armed Forces of the Popular Resistance (FARP), People’s Revolutionary Commandos (CRP), Patriotic Anti-Annexation Committee (COPAAN), Organization of Volunteers of the Revolution of Puerto Rico (OVRP), the Macheteros, and others carried out 232 attacks, killed 15 people, and injured 115 (Chart 1). 

The most notorious and brutal of the FALN’s terrorist attacks was the bombing of Fraunces Tavern on January 24, 1975, that killed four innocent people and injured about 50 others.  Eventually, many FALN members were apprehended as Bryan Burroughs expertly documents in his Days of Rage and the rest of the violent nationalist movement petered out.  According to the RAND Corporation and the University of Maryland Global Terrorism Databases (through 2014), the last reported attack by Puerto Rican nationalists was on that island in 1998.  Their datasets exclude the attempt on President Truman’s life in 1950 and the armed attack on the House of Representatives in 1954

 

Chart 1

Puerto Rican Terrorism

Sources: Global Terrorism Database, RAND Corporation.

 

The Puerto Rican situation is distinguishable from immigrant-produced Balkanization – Puerto Rico was densely populated and conquered by the United States in 1898.  Puerto Ricans who remained on the island did not immigrate to the United States but were forcibly integrated and governed from abroad for a while.  Such situations rarely lead to assimilation in the way that immigration does.  Many of the bombings recorded occurred on the island, although the deadliest ones were on the U.S. mainland.    

Chicanos, mostly Mexicans in the American southwest, were the other big group of immigrant-inspired separatism.  The insignificant number of terrorist attacks committed by self-described Chicano separatists and nationalists show just what a small movement this was (Chart 2).  They committed a total of 39 attacks that were mostly bombing, killed two people, and injured four.  The last such attack was in 1975.

Chart 2

Chicano Terrorism

 

Sources: Global Terrorism Database, RAND Corporation.

The United States conquered the American southwest from Mexico like it conquered Puerto Rico from Spain.  Territory won in the Mexican-American War of 1846-48 formed the states of California, Nevada, Utah, Colorado, Arizona, New Mexico, and parts of Texas, Oklahoma, and Wyoming.  Why didn’t that occupied territory produce more terrorism?  First, there weren’t many Mexicans living in that part of the country at the time – a mere 80,000 by most estimates.  Second, they concentrated in just a few areas.  Third, they were quickly overwhelmed by settlers and immigrants who were not Mexican.  Fourth, the 80,000 Mexicans were immediately granted American citizenship although segregation persisted in some parts of the Southwest into the mid-20th century.  Fifth, Mexican immigrants from Mexico who don’t have many grievances arrived after the war and overwhelmed the small numbers of descendants of the Mexicans who were conquered in 1846-48.   

Other groups besides these ethnic separatists are responsible for the greatest number of attacks (Chart 3), the most fatalities (Chart 4), and almost all of the injuries (Chart 5).  The 1993 and 2001 spikes for injuries are for the first and second attacks on the World Trade Center.  The 1984 spike is from a bioterror attack in Oregon in 1984 where the Rajneeshee cult deliberately spread salmonella by contaminating salad bars.

 

Chart 3

Attacks

 

Sources: Global Terrorism Database, RAND Corporation.

 

Chart 4

Fatalities by Group

 

Sources: Global Terrorism Database, RAND Corporation.

Chart 5

Injuries

 

Sources: Global Terrorism Database, RAND Corporation.

 

It’s worth noting that the spike in terrorist attacks in the early 1970s occurred when the United States had a near-historically low immigrant population and was the most ethnically and racially homogeneous in its history.  Later attacks killed and injured more people but the number of attacks in the early 1970s is unprecedented.   

The most obvious groups excluded from this post are Islamic terrorists, white separatists and supremacists, black separatists, and various left-wing terrorist groups like the Weather Underground that were active in the late 1960s, 1970s, and into the 1980s.  Many of these groups require a different framework as they aren’t really ethnic separatists nor are they recent immigrant or migrant groups.  I’ll address many of these other groups in future blogs or papers.  Terrorism committed by ethnic separatists and independence movements is relatively rare in the United States.

Hunger is very a strong word. It evokes images of famine and destitution in failed nations half a world away. I was hesitant to use it when describing the situation in Venezuela. I had visited that country four times in the last seven years and witnessed its economic decline first hand. During a trip to the industrial city of Barquisimeto in November 2014, I saw for the first time the effects of shortages, with hundreds of people lining up outside of a drugstore to get toilet paper and toothpaste. I knew things had deteriorated further since, with reports of widespread scarcity of food all over the country. But hunger?

I went back to Venezuela last month expecting chaotic crowds and queues everywhere in the city. And that was certainly the case: I saw lines outside supermarkets, drugstores, bakeries, and, tellingly, embassies (people trying to get their paperwork ready to leave the country). But I wasn’t prepared to find out that my friends and colleagues there are struggling to eat properly. They don’t say it openly. After all, Venezuelans are proud people. But after my first interactions with them, I noticed that the number one topic in every conversation was food: when was the last time they ate meat, how long they’ve been without drinking milk, etc.

Admittedly, I didn’t interact much with poor Venezuelans on this trip. My friends and colleagues are middle class, or what is left of them: the minimum wage is just $33 per month, and the salaries of the middle class aren’t much higher than that. Still, I was appalled to realize that if the people I know are struggling to eat properly, the poorest are indeed going hungry.

Today the New York Times has a harrowing account of the depth of hunger in Venezuela. The country that received nearly $1 trillion in oil revenues in the last decade and a half, is now suffering from a humanitarian crisis of significant proportions. Let’s never forget, or let others forget, that this is the end result of yet another failed socialist experiment.

Today, the Supreme Court struck yet another blow against the Fourth Amendment and the exclusionary rule. The case, Utah v. Strieff, involved a man who was illegally stopped outside of a suspected drug house and investigated for possible criminal activity. Mr. Strieff had an outstanding warrant for a minor traffic offense and was arrested. The search that resulted from the arrest turned up drugs. The question at issue was whether the undisputed illegality of the stop would render the drugs found inadmissible as evidence because of the exclusionary rule. In a 5-3 decision written by Justice Clarence Thomas, the Court decided that the “discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized” and thus the drug evidence could be used against Mr. Strieff.

In short, this case incentivizes police officers to break the law to make stops looking for drugs and contraband. As the late William Stuntz discussed in his book, The Collapse of American Criminal Justice, the way police read Supreme Court decisions is similar to a How-To blueprint to get around individuals’ constitutional rights. As Justice Elena Kagan ably notes in her dissent, today’s decision says that so long as there is an arrest on a warrant made from a bad stop, anything officers find as a result of that stop is fair game for prosecution.

Justice Sonia Sotomayor writes in her dissent:

Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. 

This practice isn’t a minor issue affecting a small population. Justice Sotomayor points out that between the federal government and the states, there are over 7.8 million outstanding warrants, a large portion of which appear to be for minor infractions such as unpaid parking tickets or civil fines. It certain areas, the outstanding municipal warrants engulf more than half of the local population. For example, she cited the Department of Justice’s report on Ferguson, Missouri that found 16,000 of the city’s 22,000 residents had outstanding warrants. Justice Sotomayor’s dissent is an impassioned and practical argument against the racial profiling this case will almost certainly encourage across the country.  

Justice Kagan’s dissent is no less damning, though she gives a more technical analysis of the relevant jurisprudence that allows for exceptions to the exclusionary rule. To be kind, she finds the majority opinion wanting. In fact, she goes through the argument with the metaphor of a baseball player at bat, and the majority strikes out under the three-part inquiry in Brown v. Illinois, 422 U.S. 590 (1975). Although the Court’s opinion was written by Justice Thomas, perhaps the metaphor was a thinly veiled jab at the Chief Justice’s famous quip about justices calling balls and strikes in cases rather than, say, going to bat for the team in blue.

Justice Kagan writes:

“The majority chalks up [Officer] Fackrell’s Fourth Amendment violation to a couple of innocent “mistakes.” But far from a Barney Fife-type mishap, Fackrell’s seizure of Strieff was a calculated decision, taken with so little justification that the State has never tried to defend its legality.At the suppression hearing, Fackrell acknowledged that the stop was designed for investigatory purposes—i.e., to “find out what was going on [in] the house” he had been watching, and to figure out “what [Strieff] was doing there.” And Fackrell frankly admitted that he had no basis for his action except that Strieff “was coming out of the house.” [Citations removed]

The upshot of this case will be an increased reliance on the already overused intrusive and investigatory stops. As I recently published in the Case Western Reserve Law Review, such aggressive and inherently antagonistic policing will likely undermine police legitimacy, making policing harder and communities less safe. More people will be arrested and searched because police have been granted a Court-sanctioned way to get into people’s pockets.

You can read the opinion and both dissents here. My law review article, “Thin Blue Lies: How Pretextual Stops Undermine Police Legitimacy” can be read here (PDF).

It isn’t often that an SEC decision involves the star of a best seller, a “magic shoe box,” and fundamental questions about the meaning of words like “immediate” and “fair.”  The SEC made such a decision on Friday. 

Last fall, the trading system IEX applied for designation as a stock exchange.  IEX, and its CEO Brad Katsuyama, rose to fame several years ago with the publication of Michael Lewis’s popular book Flash Boys.  Lewis, ever the artful storyteller, cast Katsuyama as the likeable underdog, exposing and undermining high-frequency traders (HFTs) through the development of IEX.  IEX, an alternative trading system, or in the more colorful industry jargon, a “dark pool,” has allowed investors to trade away from market scrutiny and the HFTs that populate “lit” exchanges.  But there are advantages to being an exchange, and IEX wants in.

At issue in determining whether to approve the application was the meaning of the word “immediate” in an SEC regulation known as Regulation NMS.  Regulation NMS, approved by the SEC in 2005, was intended to increase competition among trading exchanges, resulting in better execution of trades and better prices for investors.  In furtherance of that goal, a part of the regulation requires that trades be made at the best price listed on any exchange and that exchanges make their quotations “immediately” and automatically available.  In the past “immediate” has been defined as “immediately and automatically executable, without any programmed delay.”  Seems clear enough, right?

Well, here’s where we get to the “magic shoe box.”  IEX’s claim to fame is that it slows down the trading process, just a little, just enough to make it impossible for HFTs to get ahead of big orders.  Because for those who dislike HFTs, it’s this very habit that makes them a problem.  The argument is that HFTs see a trade coming and are fast enough to get ahead of it, buy up the shares, and then resell them immediately at a higher price.  IEX introduces a 350-microsecond delay, a short enough time to be unnoticeable to any human, but long enough to make this type of trading unprofitable.  The way that IEX introduces this delay is to run the orders through a long cable, which is kept coiled up in a box.  The magic box is a shoebox-sized box of coiled cable. 

See the problem?  “Immediate” has been defined as “without any programmed delay.”  It seems that running the order through a length of cable with the intent of introducing a delay is, well, a “programmed delay.”  If the delay is only 350 microseconds – less time, Katsuyama has said, than it takes to blink – does it count?  It has to count.  It doesn’t matter whether it’s essentially imperceptible to humans.  If it didn’t make a difference to HFTs, IEX wouldn’t have introduced it via the shoebox.

Well, then that’s clear enough, right?  If intentionally included, a delay is impermissible because it’s a “programmed delay.” Thus, IEX can’t use its magic shoebox and be in compliance with the rules.  The SEC should have denied the application. 

Not so fast.  Other exchanges also intentionally introduce delays through coiled cable.  That’s where IEX likely got the idea.  Except these other exchanges don’t delay everyone.  It may seem that when you send an email to a friend in China, it arrives “instantly” in your friend’s inbox.  But of course, it doesn’t.  It’s really fast, but not instant.  In the trading world, speed has become so essential that the difference between having a server pressed right up against the exchange’s servers means being faster (and better able to make money) than being located just on the other side of the same room.  To even out these differences (entirely imperceptible to humans, but very visible to computers) exchanges will attach all the servers with the same length of cable, coiling the excess cable for the servers located closest to the front of the room.  That is to say that many existing exchanges have their own shoeboxes, also filled with coiled cable.  But those boxes are designed not to slow down the whole exchange, but to even the playing field within the exchange.

What should the SEC have done?  Was it right in approving IEX’s application, allowing them to introduce an intentional exchange-wide delay?  There are those who support that position, for very compelling reasons.  Regulation NMS has caused more problems than it solved.  Former SEC Commissioner Daniel Gallagher has dubbed it the “poster child of unintended consequences,” pointing to the fact it was Regulation NMS that essentially created high-frequency trading.  If IEX’s 350-microsecond delay can starve out the HFTs, it will provide a market-based solution to any perceived problems posed by HFTs.  (I am not, to be clear, saying that HFTs are problematic.  There is evidence that they improve market quality.) 

To make the approval work within the strictures of Regulation NMS, the SEC simultaneously released updated guidance stating that any delay of less than one millisecond will be considered de minimis.  In legal terms, Black’s Law Dictionary defines de minimis as “trifling” or “so insignificant that a court may overlook it in deciding an issue or case.”  As a microsecond is significantly shorter than a millisecond, IEX’s 350-microsecond delay fits neatly into the new guidance. 

But is the solution to bad regulation to create one-off exemptions, essentially regulating by fiat?  Another former commissioner, Paul Atkins, who voted against the regulation when it came up for a vote during his tenure, has argued that the real solution is to fix Regulation NMS.  Not surprisingly, many existing exchanges have also voiced their opposition to approval of the application.  While much of this may be chalked up to their aversion to increased competition, several have raised credible arguments about the unfairness of creating loopholes for specific parties, while also highlighting potential technical problems with designating IEX as an exchange. These technical problems, of course, would not exist but for Regulation NMS.

Ultimately the SEC’s solution is a band-aid, and a poor one at that.  While 350 microseconds, or even 1 millisecond, is truly less than a blink of an eye, no one spending the kind of fortune IEX must have spent in not only its application but in the attendant lobbying efforts would view the delay as de minimis.  The delay is the issue.  Deciding that it’s too trivial to be worth considering is simply disingenuous.  Introducing competition into a marketplace is good.  But creating regulatory carve-outs for special interests is not.  The solution is to fix Regulation NMS.

The Philadelphia City Council has voted to become the second city in the United States to impose a tax on the sale of particular types of sweetened beverages. The tax applies to sugared soda, diet soda, sports drinks and more, while excluding drinks that are more than half milk or fruit, as well as drinks to which sugar is added such as coffee. The tax will be 1.5 cents per ounce, amounting to 18 cents per standard size can of soda or $1 per two-liter bottle.

Public health advocates often propose taxes on sugary drinks, colloquially known as “soda taxes,” as a means of improving public health outcomes. They argue that such beverages disproportionately cause obesity and that consumers of sugary beverages impose external costs on others through higher medical costs associated with obesity.

The evidence supporting the disproportionate effect of sugar beverages on obesity is not powerful.  An article in Obesity Review concluded, “The current evidence does not demonstrate conclusively that nutritively sweetened beverage consumption has uniquely contributed to obesity or that reducing NSB consumption will reduce BMI levels in general.” 

And the externalities of the obese also appear to be minimal.  “The existing literature … suggests that obese people on average do bear the costs and benefits of their eating and exercise habits.”

But for purposes of discussion assume that consumption of such beverages does result in obesity and its health effects, which, in turn, create costs for others.  Are the taxes a good corrective?

An article in Regulation by California Polytechnic State University professors Michael Marlow and Alden Shiers examined the economics of soda taxes.  They find several problems.  First, the tax isn’t on obesity and thus taxes the soda consumption of the majority who are non-obese.  If obesity creates additional health care costs, the first best solution would be for health insurers to price health insurance for the obese higher and then those affected would have incentive to alter all behavior that leads to excessive weight and not just soda consumption.  But under the Affordable Care Act, such pricing is not allowed.  Second, the level of taxation enacted by Philadelphia, while significant in a percentage sense, will have very little effect on weight.  Every percentage point of tax increase is estimated to result in a body mass index decrease of only .003 points.  Coca-Cola on sale at my supermarket is $2.50 for 12 cans of 12 ounces or 1.7 cents per ounce.  The tax of 1.5 cents per ounce is about an 86 percent tax on the price and would decrease BMI by about .26 points (86.4 X .003), “a trivial effect given that obesity is defined as a body mass index of at least 30.”  Finally, the tax encourages substitution of other beverages that are taxed less. Notably, the tax on beer in Pennsylvania stands at only 9 cents per 12-pack, about 4 percent of the new soda tax in Philadelphia.

There are some positives in the Philadelphia case.  The program was not sold to voters as a public health measure, but rather as a means of raising new tax monies. The discussion of the tax and the public spending for which the revenues would be used was explicit.  And the tax is a consumption tax rather than a tax on the rich or corporations.  To be sure, the tax is on a very narrow consumption base and thus is distortionary, but at least the tax is visible. The voters will see the tax and the public services that result and can make an informed decision in the next election about the tax and its uses.

Cato research assistant Nick Zaiac contributed to this post.

Imagine living in a country in which the two major parties had nominated a couple of candidates not to be trusted on the town council. Imagine deciding to stay home on Election Day.

But then imagine government officials showing up at your door, demanding that you accompany them to the polling place to vote for one of the candidates who you can’t stand even to listen speak. That is the world which some high-minded “civic activists” desire.

Every election can be expected to unleash ponderous commentaries bemoaning low voter turnout. Many Americans don’t register, let alone cast ballots. Why, oh why, won’t they get out and participate?

It is so unfair, we are told. The wealthy, elderly, and well-educated disproportionately participate, which “skews policymaking,” complained the Economist. Just think of all the government programs the underrepresented could vote for themselves if only they showed up on Election Day.

Of course, there is another way of looking at the process. Those most likely to follow politics, understand policy issues, watch the news, and know the candidates vote disproportionately. This might “skew” policy, but presumably in a very good way. Those choosing America’s leaders are actually more likely to know something.

For those determined to drive more people to the polls, the options seem few. Civic propaganda and celebrity endorsements don’t do much. Postal ballots actually may reinforce existing voting patterns. Election Day registration has limited effect. Treating Election Day as a holiday is a bust.

So, as one would expect, left-wing minds turn to coercion. Make people vote. Force them to act on their ignorance and prejudice. All that matters is pushing up turnout numbers.

Mandatory voting isn’t a new idea. Both Australia and Belgium penalize non-voters. Down Under you get hit with a roughly $14 fine if you don’t have a good excuse for staying home. (A bit like having a parent’s note for missing a day of school.)

Those in favor of a coerced ballot emphasize that you are free to do what you want once you are in the polling place, including choose no one. At least the authorities don’t look over your shoulder to ensure that you marking an officially approved selection.

Of course, there are worse impositions in life. Governments shoot people for resisting their authority, send people off to die in foolish foreign wars, invade people’s homes to punish them for conduct which threatens no one, confiscate property on the claim that it is drug-related, seize workers’ incomes to spread among political supporters and other influential interest groups, and much more. Requiring you to show up on Election Day appears, well, minor compared to so much else that government does!

However, as I wrote for Fee.org, “seemingly small exactions reinforce the presumption that the state determines and sanctions individual rights. A refusal to vote, thereby encouraging those who compete to dominate and control the lives of others, is a matter of basic conscience.”

Of course, one can argue that such staying home is irresponsible. Voting for a third party also registers dissent, but in most elections the numbers are barely noticed. This election might be different, but who knows? As for choosing the lesser of two evils, the likelihood that any one vote will make a difference is so small as to be a strong argument against wasting time trooping down to the polls.

Moreover, if those committed to liberty are unable to defeat the sort of big-spending, war-friendly candidates nominated of late, the best tactic might be withdrawing legitimacy from those who win. A steadily increasing share of the population abstaining from a process which yields choices between Tweedle Dum and Tweedle Dee might spark a serious conversation about the state of American democracy.

Ultimately, the issue of voting comes down to conscience. Simply saying no and refusing to cast a ballot is a powerful form of dissent. A decision not to vote deserves the same respect as one to participate.

 

I and others have repeatedly questioned the U.S. Department of Justice’s adventurous decision to charge Federal Express with crimes for, in essence, refusing to snoop into its customers’ packages and business. From my post at Overlawyered two years ago:

The federal government has prevailed on a grand jury to indict Federal Express for servicing what it should have known were illicit online pharmacy operations. FedEx says it repeatedly asked the government to supply a list of shippers it considered illicit so that it could cut off service, but that the government refused; the Department of Justice contends that circumstantial evidence should have been enough to alert the package shipment company. …

And last month, quoting Washington Legal Foundation’s Cory Andrews:

“Federal prosecutors have accused FedEx of knowingly shipping illegal drugs in interstate commerce and laundering money by merely doing its job: delivering packages (in this case, from online Internet pharmacies) to their intended recipients and getting paid for the service. …To avoid the very sort of ‘gotcha’ prosecution at issue here, Congress inserted exceptions for common carriers in each of the relevant statutes” authorizing shipment of prescription medications and controlled substances when done in the usual course of business….

Now, this big news from federal court in San Francisco:

A criminal trial nearly two years in the making alleging FedEx knowingly delivered illegal prescription drugs to dealers and addicts ended suddenly Friday when prosecutors moved to dismiss all charges against the shipping giant.

U.S. District Court Judge Charles Breyer, who had been highly critical of the government’s positions as the trial unfolded, granted the motion to dismiss: on Friday he called FedEx “factually innocent” and said the withdrawal of charges was “in the court’s view, entirely consistent with the government’s overarching obligation to seek justice even at the expense of some embarrassment.”

FedEx spokesman Patrick Fitzgerald said in a statement Friday that the company has always been innocent and the case should never have been brought.

“The government should take a very hard look at how they made the tremendously poor decision to file these charges,” he said. “Many companies would not have had the courage or the resources to defend themselves against false charges.”

Many in the field of white-collar legal defense have warned large corporations, particularly those with businesses built upon relationships of public trust, to cut a deal with the federal government rather than try to withstand the full force it can bring to bear in a prosecution. But FedEx, for one, has shown that it is still possible to defy the authorities and win. Mike Koehler at FCPA Professor says that might help lay to rest what has been called the “Arthur Andersen effect” in which indictment is itself seen as tantamount to corporate death.

P.S.: Our friend James Copland of the Manhattan Institute has this observation (via email):

What’s remarkable here is that UPS agreed to a $40 million non-prosecution agreement — and to hire a new corporate officer and an independent auditor looking over their shoulder and reporting to the U.S. Attorney — for the same alleged conduct.

(cross-posted from Overlawyered). 

The feds are yet again trying to have their cake and eat it too, this time regarding constitutional criminal procedure. The Double Jeopardy Clause prevents the government from using its immense resources to prosecute criminal defendants twice for the same crime. Still, if a defendant’s first trial results in a hung jury, or the conviction is reversed on appeal, the trial is a legal “non-event” and the government can seek a new trial. If the defendant is acquitted, however, then no new trial is possible; the acquittal precludes a second try because that would be “double jeopardy.”

In a new case out of Puerto Rico, the government is trying to claim that acquittals can also be “non-events” that allow retrial. Juan Bravo-Fernandez and Hector Martinez-Maldonado received a mixed verdict at trial: they were acquitted on two charges—conspiring and travelling to bribe a member of the Puerto Rican Senate—but convicted of the actual bribery. But the two acquittals necessarily depended on a finding that neither defendant violated the bribery statute. Indeed, the U.S. Court of Appeals for the First Circuit vacated the bribery conviction because the jury’s verdict was improperly based on invalid instructions from the trial judge.

That left one vacated conviction and two acquittals that logically required a finding of “not guilty” on the bribery charge. At that point, double jeopardy should have kicked in; the acquittals precluded a retrial regarding the underlying bribery. As the Supreme Court said in Yeager v. United States (2009), any “apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts” does not “affect[] the preclusive force of the acquittals under the Double Jeopardy Clause.”

But the trial and appeals courts found that this precedent did not prevent retrial here. The Supreme Court has now taken up the case and Cato has filed an amicus brief supporting the defendants. We argue that the government’s position is contrary to the common law of double jeopardy and misunderstands the effect of a court’s having vacated a conviction that cannot stand given other acquittals.

When a court vacates a ruling in the double-jeopardy context, the effect is to wipe it out as if it never existed. Going back to Sir William Blackstone and English common law, if a “judgment, pronounced upon conviction, [wa]s falsified or reversed, all former proceedings [we]re absolutely set aside, and the party st[ood] as if he had never been at all accused,” for better and for worse: He was “restored in his credit, his capacity, his blood, and his estates,” but he was also “liable to another prosecution for the same offense.” Yet here the government seeks to have the vacated conviction stop the preclusive effect of acquittal.

The government simply should not be able to benefit from the vacating “non-event” that enables a retrial while at the same time arguing that it is also an “event” such that the acquittals don’t count in the double-jeopardy calculus.

Moreover, allowing the First Circuit’s decision to stand would give prosecutors more incentive to overcharge the same underlying conduct with multiple counts, forgive them for pursuing dubious theories of criminality, and permit them to use trials as dress rehearsals for future successive prosecutions—as well as impugning the inviolate nature of jury acquittals.

These concerns strike at the heart of the Double Jeopardy Clause. That’s why the Supreme Court should prevent the government’s attempt to overreach its prosecutorial authority by eviscerating a well-established, logical set of legal doctrines.

The Supreme Court will hear argument in Bravo-Fernandez v. United States this fall at the start of its next term.

The horrific massacre at the Pulse Orlando nightclub has prompted calls for new restrictions on firearms. Those calls are understandable—fight mass murder by restricting some of the tools of mass murder, the thinking goes—but would such restrictions really reduce violent crime? Or, in a country with a robust black market, would gun restrictions merely constrain the lawful, giving violent criminals greater opportunity for mayhem? 

To answer that question, researchers John Lott Jr. and Gary Mauser decided to ask the experts. They surveyed fellow academics who published empirical research on guns and violent crime in peer-reviewed academic journals over roughly the last 15 years. Specifically, Lott and Mauser asked about their perceptions of legal firearms possession’s associations with crime and suicide, and the effects of gun-free zone and concealed carry laws.

The respondents can be divided into two groups: economists (many of whom act as applied statisticians) and criminologists. The two groups differ in an important way: economists are much more mindful of incentives and expectations. This difference in the disciplines’ views of human nature likely explains the difference between the groups’ responses. Economists were highly skeptical of the idea that greater restrictions on legal gun ownership—specifically, concealed carry, gun-free zones, and the presence of a firearm in the home—would reduce violent crime, while criminologists were considerably more mixed, with a lean (that sometimes wasn’t statistically significant) toward skepticism. Importantly for the current gun control debate, neither group supported the notion that more restrictions on legal gun possession would reduce violent crime.

Lott and Mauser present their findings in the summer issue of Regulation. You can read the article online here.

A new documentary series, “Improbable Success,” looks at countries that have thrived by implementing free-market policies. The series is currently running on Sinclair Broadcast Group stations, which are found across the country, from WJLA in Washington, D.C., to KBFX in Bakersfield, California. (Sinclair stations are variously affiliated with all major networks.) This weekend, including at noon Sunday on WJLA, host Emerald Robinson will look at Chile’s economic growth since its reforms around 1980. Experts on the show include Jose Pinera, Ian Vasquez, and Richard Rahn, along with several Chilean entrepreneurs. Last week featured Estonia; next week, Switzerland. 

Some work by Catoites responding to the lethal rampage by an Islamic State devotee at closing time last Sunday morning in Orlando’s LGBT-oriented Pulse nightclub: 

Writes Michael Tanner in his piece: “As Representative Justin Amash (R., Mich.) noted, he has heard ‘Democrats and Republicans endorse violating the 1st, 2nd, 4th, 5th, 6th, and 8th Amendments’ in response to the attack. About the only thing we are missing is a call to quarter troops in our homes.”  

And more: “Without self-defense, there are no gay rights.” Dave Kopel has a post today at the Volokh Conspiracy, “The history of LGBT gun-rights litigation,” citing the pioneering work of several scholars and activists whose name will be familiar to Cato readers, including Cato University director Tom Palmer, leading up to and following the landmark D.C. v. Heller individual rights case.

This morning, the New York Times and the Wall Street Journal published excerpts and summaries of an internal memo by 51 State Department officials calling for airstrikes against the Assad regime in Syria. The key idea expressed in the memo is simple: take military action immediately to stem the tide of violence in Syria. It’s an understandable sentiment, especially from those who have been dealing with Syria’s barbaric civil war on a daily basis, as many of the signatories have. Unfortunately, it is also an exercise in wishful thinking, ignoring the concrete problems with further U.S. military commitment in Syria which have formed the basis for the Obama administration’s refusal to overthrow Assad.

The memo criticizes the Obama Administration’s decision to eschew military action in Syria, arguing instead for the “judicious use of stand-off and air weapons” against the Assad regime. Though such internal memos contesting the administration’s official policy – known as a ‘dissent channel cable’ – are not uncommon, the large number of signatories is more unusual. The memo blames the Assad regime’s violence towards civilians for both Syria’s instability and the appeal of ISIS, arguing that the moral rationale for airstrikes “is unquestionable.”

It is this moral rationale which appears to figure more highly for the authors than practical questions. Despite this, the memo stops short of explicitly calling for regime change, arguing instead that airstrikes will provide a credible threat against Bashar al-Assad and more solid footing for a future diplomatic settlement. But while the authors note that they are not “advocating for a slippery slope that ends in a military confrontation with Russia,” they fail to note how such a confrontation could be avoided. And in calling for partnership with moderate Syrian rebels, the memo appears to gloss over the many problems inherent in finding and arming such ‘moderates,’ which often coexist and fight alongside far more extreme groups.

At the same time, such arguments sound suspiciously like those made in advance of the 2011 Libya intervention, which did not explicitly call for regime change, but embraced it wholeheartedly almost as soon as airstrikes began. And though they say otherwise, it is unclear how the authors’ call to work with Syrian rebel groups against both ISIS and the Assad regime is not a call for regime change in Syria. Among the more ironic lines reported to be in the memo is an argument that U.S. military action would “increase the chances for peace by sending a clear signal to the regime and its backers that there will be no military solution to the conflict.”

As observers have noted, it’s extremely unlikely that this memo will alter the Obama administration’s stance on Syria. The White House has been clear that any benefits of intervention against the Assad regime are far outweighed by the inherent risks of escalation and the practical obstacles to it. Yet the simple fact that the memo was simultaneously leaked to the New York Times and Wall Street Journal, rather than simply referred through internal channels suggests that it was intended as much for public ears as official ones. Its existence has the potential to shape public debates on Syria in this election year.

The bias towards action seen in this report is understandable. In the face of human suffering, it is far easier to advocate for quick, effective military strikes than it is to pursue a process of patient diplomacy and humanitarian aid. But it is not always better in practice. It is extremely unlikely that U.S. airstrikes will improve the diplomatic process, or lessen Syria’s humanitarian toll. At the same time, airstrikes carry major risks: conflict with Russia, the empowerment of extremist groups, the further destabilization Syria, or even the collapse of today’s peace talks. The authors’ wishful thinking cannot reduce these risks. 

You Ought to Have a Look is a feature from the Center for the Study of Science posted by Patrick J. Michaels and Paul C. (“Chip”) Knappenberger.  While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic.  Here we post a few of the best in recent days, along with our color commentary. 

We’ll get right to it.

First up this week is an examination by the Global Warming Policy Foundation (GWPF) of the prospects of a quick ratification of the Paris Climate Agreement—something that President Obama desperately wants in order to insure that if the next president proves hostile to the Agreement, he won’t be able to derail the whole thing.

While Obama was all smiles when Indian Prime Minister Narendra Modi was in town recently discussing cooperation on the climate, Indian officials were quick to point out that we shouldn’t get the wrong idea, stating that India is “unlikely to sign the Agreement this year, or even the next.”

The GWPF analysis takes us through India’s stance was well as the opinions of other countries which are vital to the Agreement’s ratification. Some have ratified it already, while others, like India, aren’t rushing forward.  From the GWPF:

Representing the two largest greenhouse gas emitters, the joint US and Chinese commitment to early entry into force is undoubtedly significant. Nonetheless, the picture becomes significantly more complicated looking at the next two largest emitters: Russia and India. Both countries have indicated that they are prepared to wait before they ratify the Agreement, wanting a clear set of rules and a greater recognition of differentiated responsibilities. The EU process of securing unanimity between 28 member states is likely to mean a significant delay to European ratification. This means that early entry to force is dependent on building a coalition of many smaller countries, a procedure that is likely to be challenging.

Next up is a good piece by Competitive Enterprise Institute’s Marlo Lewis showing just how dodgy the EPA’s calculation of “benefits” for their recent emissions regulations really is. Turns out that in addition to double counting them, they find health benefits from reducing emissions in regions which remain below the EPA’s cut-off concentrations for deleterious effects. Marlo wonders how it is that

EPA does not explain or try to justify why associations between PM2.5 [tiny particulate matter] and health that are too weak or uncertain to be used to determine what is requisite to protect the public health with an adequate margin of safety are strong and certain enough to calculate regulatory benefits.

He concludes that the reason is that if the EPA were to remove the monetized health “benefits” from those areas which are projected remain in attainment with EPA standards (which turns out to be most of impacted regions), the “benefits” drop to near zero. This not only applies to the EPA’s Mercury and Toxic Standards (MATS) rule, but to their Clean Power Plan (CPP) as well. Such a result would, in Marlo’s words, be a “potential PR disaster for the agency.”

And we can’t have that—so we imagine that the EPA will stick with their inconsistent methodology.

But some things are looking up.

Last week, the House of Representatives passed Rep. Steve Scalise’s (R-LA) resolution “Expressing the sense of Congress that a carbon tax would be detrimental to the United States economy” by a vote of 237 to 163. Not a single Republican vote was cast against the resolution.

Seems “conservative thinkers” still have a lot of work ahead of them.

All the while, their work is being made more difficult by growing scientific evidence that the climate’s sensitivity to carbon dioxide emissions is considerably less than advertised—a situation which reduces the urgency to “do something” (like implementing a carbon tax) about global warming.

Which brings us, again, to the topic of the social cost of carbon—the monetary manifestation of the impetus to tax carbon dioxide emissions in the first place.

Before signing out this week, we wanted to point you to an article by Ross McKitrick in the Financial Post in which he explains the importance of his new analysis of the government’s social cost of carbon determination—an analysis that we highlighted in last week’s YOTHAL.  In summary, Ross writes:

The numbers produced by the [U.S. federal government] have a large and growing influence over energy and economic policy in the U.S. and Canada and elsewhere. Unfortunately, for all its claims about following the science, where it really counts it ended up peddling guesstimates based on inconsistent models. To borrow a phrase, it is time to restore science to its rightful place. Calculations behind the social cost of carbon need to reflect empirical evidence about low climate sensitivity, and when this is done, the numbers appear to be much lower than those currently in use.

You ought to have a look.

On Fox News last night, Megyn Kelly agreed with her guest James Kallstrom that the FBI needs a larger budget. The horrific attack in Orlando has raised the issue of whether the FBI has sufficient resources to investigate potential terrorists.

I don’t know how large the FBI budget should be. The agency does fill a lot of crucial roles, including tackling never-ending corruption in federal, state, and local governments.

But I do know that the FBI has not been starved; its budget has grown rapidly. The chart, from DownsizingGovernment.org, shows that FBI spending in constant 2016 dollars has more than tripled since 1990, from $2.7 billion to $9.1 billion. 

Congress, in predictable fashion, seems poised to slap a band aid on a problem in the nation’s Selective Service system. The smarter long-term solution would end the practice of draft registration once and for all. 

Changes to the military’s combat rules would open the Selective Service system to new legal challenges on equal protection grounds. The new rules allow women to serve in previously closed ground combat units, a sensible change in policy that reflects the realities of the modern military. But, given this change, it is unfair to require only 18-year-old males to register for the draft. If the rules remain in place – and they should – women should also be required to register.

The Senate version of the National Defense Authorization Act, which passed by a wide margin on Tuesday, includes this change. Hillary Clinton has come out in favor of draft registration for women. Some conservatives are now urging the House and Senate conferees to strip the provision, and, if they don’t, to vote against the entire NDAA. But these objections mostly revolve around the changed combat rules, not the inherent unfairness of requiring only men to register. 

Congress should instead revisit whether we need a Selective Service, not whether both men and women should register for it. As I explained back in February in an online article for the Washington Post:

The entire draft architecture is anachronistic and unnecessary. We’ve operated with an all-volunteer force for decades; no one, regardless of gender, expects that they’ll be drafted; and the wars that we fight don’t depend upon conscription. Future wars aren’t likely to, either.

[…]

[I]t is highly unlikely that we’ll face threats that require troop deployments on a scale that would necessitate another draft. Policymakers in Washington have chosen to fight wars in the Middle East with smaller, more nimble and highly-trained special operators, along with air power, manned and unmanned, in part because the capabilities are available to them, but mostly because these wars do not engage vital U.S. national security interests or threaten our survival.

In the event that a mass-conscripted army was ever again required to defend our country from attack, Congress could immediately pass a law to make that happen. But any notion that today’s Selective Service System is what stands between us and military defeat is absurd. And the push to expand combat roles to women signals that more, rather than fewer, Americans are willing, voluntarily, to do their part to defend this nation. We should take this opportunity to recognize that we can get rid of the draft altogether.

You can read more here.

The Financial Times (FT) published a June 9, 2016, editorial titled, “Coping with a world of too much Chinese steel.”  (Link)  The editorial makes the case correctly that China’s steel overcapacity has spilled onto world markets and is having negative effects on steel makers in the European Union and United States.  It appropriately argues against Western governments nationalizing their steel industries or providing “other indefinite state support.” 

The editorial errs, however, in suggesting that “the best option is a judicious and limited use of trade remedies against subsidized imports.”  Economists have understood for decades that when a nation imposes trade restrictions, it always reduces its own economic welfare.  It is difficult to argue that imposing a policy measure that reduces a nation’s economic welfare is a good thing to do.  The country would have been better off simply by doing nothing.  (“Don’t do something, just stand there!”)

There are two easily understood reasons why imposing trade restrictions won’t help the situation.  The first is that the global overcapacity is so great that market prices for commodity grades of steel are low worldwide.  If imports of hot-rolled steel from China are limited by newly implemented antidumping or countervailing duty (AD/CVD) measures, relatively low-priced hot-rolled coil could easily be imported instead from countries such as South Korea, Brazil, or Turkey.  Curtailing imports from China is likely to provide relatively little relief to domestic steel manufacturers. 

The second reason is that restricting imports in an attempt to benefit steel producers will have the effect of increasing costs of production for manufacturers that use steel as an input.  These downstream users constitute a much larger segment of the economy.  In the United States, for example, data compiled by the Bureau of Economic Analysis (BEA) at the Department of Commerce indicate that economic value added by “primary metal manufacturing,” which includes steel, copper, aluminum, magnesium, etc., amounted to about $60 billion in 2014.  Downstream manufacturers that utilize steel as an input generated value added of $990 billion, more than 16 times larger.  Employment by primary metal manufacturers was 400,000, while downstream manufacturers employed 6.5 million, also 16 times greater.  Use of trade remedies against steel imports amounts to an attempt to benefit the few at the expense of the many.

To elaborate, the United States currently imposes some 150 AD or CVD orders against a large number of steel products from a large number of countries.  These restrictions have had the effect of making U.S. steel prices relatively high, while in the rest of the world they are relatively low.  Still, important portions of the American steel industry have not been sufficiently profitable.  United States Steel Corporation, the country’s largest producer, reported a 2015 loss of $1.5 billion.  So U.S. prices are somewhat high, but not high enough to cure the industry’s commercial problems.

Prices are high enough, though, to do meaningful damage to manufacturers of value-added products that use steel as an input.  Many of those firms have difficulty competing with manufactured goods imported from countries with much lower steel prices.  Carrier, for instance, has been criticized by politicians for its decision to move 2100 air conditioner jobs from Indiana to Mexico.  It seems likely that the many AD/CVD duties against steel – not to mention restrictions on imports of copper tubing and aluminum extrusions – played a role in that decision.  Carrier can escape those policy-imposed costs simply by moving production across the border.

The FT acknowledges that antidumping and countervailing duty (AD/CVD) measures “will increase costs for the numerous companies that use steel as an input,” and explains that the EU trade remedy process includes a “community interest” test that balances the potential benefit of import restrictions to steel producers against the likely damage that would be done to steel users.  The community interest test helps to explain why the EU has many fewer AD/CVD measures in place than does the United States. 

Statutes in the United States contain nothing equivalent to the community interest test.  Instead, the law requires the U.S. International Trade Commission (ITC) to consider only the effects of imports on the domestic industry producing the same product.  So as long as the ITC determines that domestic industry has been injured, it must vote to impose duties no matter how great the costs will be to users.  From experience, I know that this is an economist’s nightmare.  But commissioners are sworn to uphold the law, so have little choice.

Thus, a suggestion by FT that trade remedies offer a reasonable way to counter China’s excesses seems to be much more a political response than one grounded firmly in economic realities. The policy analysis becomes clearer if we begin by recognizing that China’s decisions to export subsidized steel have the effect of transferring a substantial amount of wealth from that country to the importers.  What’s not to like about being on the receiving end of a wealth transfer?  Yes, there are adjustment challenges for firms producing basic grades of steel in importing countries.  Trade Adjustment Assistance (TAA) exists to help address those problems in the United States.  If policymakers conclude that more assistance is needed, they should take care to avoid measures that damage the broader economy.

The better policy approach would be for the European Union and United States to get the attention of Chinese leaders by reframing the debate and delivering this message:

“Thank you for transferring so much wealth from China to Western countries by selling low priced steel.  It’s helping to keep our large manufacturing sectors globally competitive.  Please keep doing it.”

This approach has a decent prospect for encouraging Chinese leaders to deal with the root cause of global overcapacity by downsizing and restructuring their steel industry. 

And, after engaging creatively with the Chinese, U.S. officials should follow up by reforming AD/CVD laws so that import restrictions could be imposed only when economic analysis shows that benefits would outweigh the costs.  It makes no sense to respond to economic harm caused by low steel prices by imposing policies that do even more damage to the U.S. economy.

ReasonTV interviews Cato adjunct scholar Harvey Silverglate on overcriminalization and the threat to free speech at American universities.

When Everything is a Crime: Harvey Silverglate on the Overregulation of Ordinary Life

Almost anything associated with the Cold War appears to be an anachronism these days. New college graduates never saw the hammer and sickle fly over the Kremlin, the deadly wall cut Berlin in half, and defectors leave home in search of that most precious human commodity, liberty.

Even for those of us with a few more years such memories are fading. Still, 1989 remains an extraordinary moment.

The Soviet Union lasted another two years, but it was only a shell of its former totalitarian self. No longer did its citizens have to hope for a trip to the West for an opportunity to leave everything behind.

But that’s not the world in which Viktor Korchnoi grew up. He was born in Leningrad in 1931 and survived the 872-day siege during World War II. He displayed an aptitude for chess, winning the Soviet junior championship in 1947.

Korchnoi was not just a good chess player. In 1975 he lost a close match, essentially the semi-finals, to countryman Anatoly Karpov. Since American Bobby Fischer, who broke the Soviet stranglehold over the championship in 1972, refused to defend his title, Karpov was declared champion, making his match with Korchnoi the de facto title fight.

But he never was a compliant Soviet citizen. Eventually Moscow denied him permission to travel abroad and promoted his great rival and former friend, Karpov.  The regime threatened to kill destroy his future.

When he finally was allowed to play in Europe in 1976 he failed to take the flight home. Although his defection was about career, not politics, he immediately became a non-person at home and a target of Soviet fury overseas.

He was old, in chess terms, when he fled at age 45. Yet he continued to knock on the championship door.

In 1978 he disposed of the other challengers to gain a shot at Karpov. The winner would be the first to six victories. Korchnoi fell behind 5-2. Then he won three of four games, tying the match. Alas, Karpov, the perfect Soviet role model, won the next game, along with the match. Korchnoi again challenged in 1981, but was overwhelmed 6-2.

Although he had escaped, his wife and son languished in the U.S.S.R., denied permission to join him. Indeed, his son was later imprisoned for resisting the draft. Moscow was only too willing to use them as hostages against Korchnoi. (They were finally freed in 1982.)

Korchnoi played in matches leading to the championship for another decade, but never again challenged for the title. He was doomed to be known as the best chess player who never won the championship.

In the 1984 competition the 53-year-old Korchnoi suffered a 32-year-age gap and lost early to Gary Kasparov, another malcontent in the Soviet system. Kasparov, of Azerbaijani and Jewish descent, went on to defeat Karpov. Soon the Soviet Union was tossed on the trash heap of history.

Korchnoi ended up as the oldest active grandmaster playing major tournaments. For years he was by far the oldest grandmaster in the top 100 and still a ferocious competitor. Even after a stroke in 2012 he continued to play.

Korchnoi truly was a chess legend, playing for more than a half century. His 80th birthday was celebrated by Kasparov, now retired and fighting for democracy in Russia. And eulogies were many on his passing.

As I wrote for American Spectator, “thankfully, Korchnoi finished his life in freedom. His childhood was harsh; his career difficult. But he spent almost half of his life in the West, able to taste liberty even before the Soviet Union fell. Viktor Korchnoi is one more reminder of the manifold injustices of totalitarian communism. RIP Viktor.”

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