5-4 bad decision against Arizona Clean Elections law

The decision in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett came out today (PDF), a 5-4 decision ruling Arizona's Clean Election laws unconstitutional.  The dissent, it seems to me, has a much better case than the majority:

the program does not discriminate against any candidate or point of view, and it does not restrict any person's ability to speak.  In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate. ...
At every turn, the majority tries to convey the impression that Arizona's matching fund statute is of a piece with laws prohibiting electoral speech. The majority invokes the language of "limits," "bar[s]," and "restraints." ... It equates the law to a "restrictio[n] on the amount of money a person or group can spend on political communication during a campaign." ...

There is just one problem. Arizona's matching funds provision does not restrict, but instead subsidizes, speech. The law "impose[s] no ceiling on [speech] and do[es] not prevent anyone from speaking." ... The statute does not tell candidates or their supporters how much money they can spend to convey their message, when they can spend it, or what they can spend it on. ...

In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while financing someone else's; we must then decide whether the government differentiated between these speakers on a prohibited basis--because it preferred one speaker's ideas to another's. ... But the speakers bringing this case do not make that claim--because they were never denied a subsidy. ... Petitioners have refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.

Indeed, what petitioners demand is essentially a right to quash others' speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing--and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this court to prevent Arizona from funding electoral speech--even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this court gladly obliges.

(See my previous argument against the Institute for Justice's position on this, with some subsequent clarifications on other aspects of the law.)

The majority position on this issue is that the unconstitutionality arises from the way that the subsidy to clean elections candidates is tied to campaign spending by the non-clean-elections candidates; I take it that had the subsidy been a fixed amount the argument would not have worked at all.

There's a good overview of the issues at the SCOTUS blog.

Prestons win in court

The judge has ruled in Preston v. Hallman, and again it goes in favor of the Prestons. As expected, he ruled that the city's decision to revoke their permit was "arbitrary and capricious" since it did not meet any existing standard for denial.

The judge ruled that Tempe must re-issue their permit and allow their business to open. The city has 30 days to file an appeal.

I haven't heard how the judge ruled on the other issue, which I predicted might go the city's way, but it doesn't matter for the overall outcome--it was enough for the Prestons to prevail on either of the two issues, and they won on the one that they had a very strong case for.

The Goldwater Institute has issued a press release about the victory, and the Arizona Republic has run a story on it.

(Previously.)

Tempe tattoo parlor case

In late June 2007, Tom and Elizabeth Preston obtained a use permit from the City of Tempe to open a tattoo studio. The Prestons signed a five-year lease and invested $30,000 in the property, but then a local neighborhood group appealed to the city, arguing that this would have a negative impact on the neighborhood, lowering property values and increasing crime. (Other businesses in the same area include a liquor store, bail bondsman, lingerie shop, check cashing store, and an adult video store.)

Tempe Mayor Hallman and the City Council voted unanimously to override the zoning officials who had approved the permit on the basis that there was a "perception" that the business would contribute to neighborhood deterioriation.

The Goldwater Institute's Scharf-Norton Center for Constitutional Litigation has taken the case on behalf of the Prestons, with former Institute for Justice litigator Clint Bolick as the primary attorney for the plaintiffs.

In a previous hearing in May, the court ruled in favor of the Prestons and remanded the case back to the City Council for reconsideration. The city then asked for a new hearing on the grounds that it had found some new relevant case law, and that hearing occurred at 11 a.m. today before Maricopa County Superior Court Judge Robert Oberbillig.

The judge first stated, that the city's motion for reconsideration in today's hearing was appropriate and that the hearing would take place, setting aside the plaintiff's objections to that. He then focused most of the hearing on two issues. First, what was the appropriate level of burden of proof for the appeal to the city which revoked the permit? And second, did the city provide "credible evidence" that the Prestons' business would lead to neighborhood deterioration?

Burden of Proof
The burden of proof argument centered around two parts of the City of Tempe's Zoning and Development Code. These were Section 1-305 (D), which says:

Hearing Officer – Appeals. Any person aggrieved by a decision of the Hearing Officer under this Code may file an appeal to the Board of Adjustment, or the Redevelopment Review Commission as applicable, within fourteen (14) calendar days after the Hearing Officer has rendered its decision, in accordance with Part 6, Chapter 8, Appeals. Appeals of the decisions of the Hearing Officer shall be heard de novo by the Board of Adjustment, or the Redevelopment Review Commission as applicable.

and Section 6-802(C), which says:

In the event that a decision made under this Code is appealed, the appeal does not invalidate the approval. The holder of the approval may proceed with a use or development at their own risk.

The plaintiffs argued that this second section means that the permit was granted and created a vested right for the Prestons to use the property, and that in the event of an appeal the burden of proof was on the city to demonstrate a reason to revoke, rather than a completely new ("de novo") process that was as though they were applying for the permit for the first time. The city, by contrast, put emphasis on the first passage, arguing that the appeal hearing was "de novo" and had no burden of proof on the city. The city argued that the "at their own risk" phrase in the second section indicated that the permit was, in fact, conditional and did not give the Prestons any vested rights.

The plaintiffs were previously victorious on this issue on the grounds that the second section did entail a vested right for the plaintiffs. This time around, however, the city argued that case law from outside of Arizona demonstrated that there was no vested right. They agreed that the city made a botch of this case from a customer service perspective, in that the Prestons were not told that their permit was conditional and could be appealed, and they were in fact sent a letter by the city telling them to go ahead and start doing work on the property to meet other requirements of the city, such as the addition of windows.

The judge seemed amenable to the city's argument, and questioned Clint Bolick over this thoroughly. He noted that the Arizona cases presented by the plaintiffs on this issue were not in the context of a pending appeal, though Bolick disagreed with the judge, pointing to a 1939 case from Iowa City, Iowa, Crow vs. Board of Adjustment. The city responded by noting that a 1981 Iowa Supreme Court case, Grandview Baptist Church v. Davenport, argued the opposite--that a church couldn't apply a vested right during a pending appeal to keep a storage shed it had built.

The judge then pointed out that there were two arguments of equitable estoppel here--one is whether the city's actions in granting the permit shifted the burden of proof to the city and in favor of the plaintiffs for the subsequent appeal, and second regarding the potential for damages to be awarded to the plaintiff. He set the second issue aside, and then asked to continue the hearing to the question of the city's evidence of negative impact by the Prestons' business, which would become relevant if he ruled in favor of the city on this first issue.

The Credible Evidence Issue
On this issue, the city got a thorough grilling by the judge. The relevant context here was the city's use permit test criteria, part (c) of which supplies a ground for denying a use permit if a proposed use will cause:

Contribution to the deterioration of the neighborhood or to the downgrading of property values which is in conflict with the goals, objectives or policies for rehabilitation, redevelopment or conservation as set forth in the City's adopted plans, or General plan.

The hearing officer for the initial permit application ruled that this was not the case, but the City Council and Mayor overturned the permit on these grounds based on complaints from neighbors.

The judge made it clear that the city had the burden of providing not just evidence, but credible evidence that this would be the case. He noted that in the city's filings, it expressed concern that the tattoo studio is a "de facto adult business" which would contribute to a clustering of adult businesses (even though there is no clustering provision in statute) and thereby would cause a deleterious effect on the neighborhood.

The city's attorneys then noted that Tempe does now have an anti-clustering ordinance, which the judge seemed to suggest was not good for the city's case, but rather evidence that they didn't have the necessary ordinances in place at the time of their decision. He asked, "why even discuss a clustering effect" at this hearing?

The city responded that it was an issue raised by the neighbors, to which the judge responded that the city should have responded as the hearing officer already did on that issue--sorry, we don't have an ordinance on that, but we need another reason, such as contravention of the city's general plan or some other plan. But the hearing officer approved the use permit, and noted that it was in furtherance of, not in detriment to, the city's general plan.

The city's attorneys noted that the city didn't object to the business in general, and that Mayor Hallman had said that he hoped the Prestons would keep their business in Tempe.

At this point, the judge noted that the Prestons have had a successful tattoo business in Mesa for 15 years with no complaints, and asked, "So on what basis was this rejected?"

The city attorneys noted that nobody from the city has objected to tattoos, but it was complaints by third parties, neighbors of the business who "want some other type of business--a Starbuck's, or a drugstore," to stop the clustering. They made reference to a study from New York City (perhaps referenced by the complaining neighbors?) arguing that clusters of adult businesses contribute to neighborhood deterioriation and crime. They admitted that a tattoo parlor is not an adult business under city code, and again, that there was no anti-clustering ordinance at the time. (I find it interesting that both of the city's examples of preferred types of businesses are in the business of drug distribution. The space, in fact, remains vacant to this day, demonstrating that the real choice is between the Preston's business or no business at all.)

The judge then asked, "Where's the credible evidence? A New York study that's apples and oranges? A real estate person who steps up to the microphone [and offers objections]? If there's no credible evidence, [then] this [decision] could be arbitrary and capricious. If we have an anti-clustering statute, the permit process should incorporate that." He offered a few specific objections to the NYC study and its applicability here, and noted that in order to have substantive due process in the permitting procedure, the applicant needs to know up front that there are rules objecting to clustering. He stated that the city seemed, in effect, to have a secret unadopted city plan that requires third party intervention to enforce requirements that are not in the city's plans or ordinances. And he noted that the city had already overruled the arguments of the third parties in its initial granting of the permit.

At this point, the judge asked Bolick if he had anything to add, and he asked permission to give another argument on the previous point, arguing that it was the city's actions that caused the defendants to engage in detrimental reliance upon their representations. The judge told Bolick that "you're still missing the first step in the analysis--that it's a person who knows the law. It must be reasonable detrimental reliance." This exchange suggests to me that the judge will rule in favor of the city on the prior point. Bolick responded that there is a factual aspect to the meaning of the statute, and that the Prestons would never have made the investment if not specifically told to go ahead and do so by the city and by a hearing officer.

Bolick then made a few remarks on the credible evidence issue. He pointed out that the City Council and the City Attorney said in deposition that the city's standard must be satisfied, but the city also admitted that the business is in furtherance of the general plan. The judge said that the city is now focusing on a prior point, that the business is "detrimental to the public." Bolick said this is a post hoc change of the city's legal position and asked how a permit applicant would know. He stated that "there's not only no credible evidence for the city's position, there's no evidence." And he also noted that "there are constitutional dimensions to 'arbitrary and capricious'--there has to be a standard."

Immunity for Damages
At this point, the judge said there were a couple other issues to discuss. If the city didn't meet its standard and so has to issue the use permit, there's an immunity for damages issue. The city has argued for immunity to damages on two grounds. First, absolute immunity on the grounds that its action was a legislative action, as per an opinion from the city attorney. Second, immunity on the grounds that the "at your own risk" clause was sufficient warning to the plaintiffs. The city added a third argument, noting that while they want the case to be decided based on the current record, they have other documents that are relevant to a decision about damages. Specifically, they argued that there are emails between Preston and his contractors which appear to make the contracts conditional upon the granting of a permit and so neither Preston nor the city should be liable for that. Bolick agreed that there should be a separate factual review on damages, but that plaintiffs should win damages if they either win on the burden of proof issue or if they win on the "arbitrary and capricious" issue and it's an administrative act.

The judge observed that the City Council has a legislative function, a judicial function, and an administrative function, and that if this was an administrative function, this was not a matter of determining fundamental government policy. Bolick cited the Reynolds case (?) and another to the effect that issuing a building permit is an administrative act. The city attorneys objected that Reynolds didn't involve a de novo appeal process, and that the city was going forward on the assumption that it was a legislative process, as argued in a position from the city attorney on which the City Council relied. The judge asked, "is it clearly not judicial?" The city said that perhaps it might be, if the judge ruled that there couldn't be a de novo review in this case (i.e., if they lost on the burden of proof claim) and were thereby acting in an appellate capacity.

After a few more exchanges, the judge indicated that he would deliberate and be back shortly to issue a ruling from the bench. A few of us gathered outside the courtroom to talk, including Bolick, the plaintiffs, a few other supporters of the plaintiffs, and a reporter from the Arizona Republic. At around 1 p.m., the bailiff summoned us back into the courtroom, to inform us that we were all dismissed and the judge would be issuing a written ruling, which is apparently what he did at the May hearing as well.

My understanding is that the plaintiffs win the case if they win on either of the above two grounds, the burden of proof issue or the credible evidence/"arbitrary and capricious" issue, and the case will not go back to the City Council this time. Of course, it may be appealed by the losing side. My best guess is that the city will prevail on the first issue and the plaintiffs on the second.

CBS Channel 5 was also filming the hearing, but you heard the details here first.

I'll update this post with information about the decision after it happens.

The Goldwater Institute's website has more on the Preston case.

(The photo of the Maricopa County Court House in downtown Phoenix, above, is a Creative Commons licensed photo (attribution, noncommercial, no derivative works) from the flickr photostream of Steve Minor, user lumierefl. Click on the photo to get to that photo in his photostream.)

UPDATE (July 9, 2009): The Prestons won their case, again, on the grounds that the city's decision to revoke their permit was "arbitrary and capricious." I haven't heard how the judge ruled on the other issue. The city has 30 days to appeal the decision; otherwise they must issue the permit and allow the business to open.

Mark Sanford wants me to join him...

Talk about great timing--a few minutes ago, I received an email from "Governor Sanford" with the subject "Join Me." I thought perhaps it might be an invitation to travel to Buenos Aires. But no, it's an appeal from the Goldwater Institute to join, signed by Mark Sanford, the Republican Governor of South Carolina who is in the news today for confessing that his recent week-long disappearance was to visit a woman in Argentina that he's been having an affair with.

I suppose they can be sure the recipients are more likely to open such an email today, though I'm not sure how much Sanford's name will result in people giving them money.

BTW, Fox News ran a caption on Sanford's confession press conference identifying him as a Democrat, just like they did with Republican Rep. Mark Foley of Florida back in 2006.

Goldwater Institute hires investigative journalist

As newspapers decline and die, it's good to see other opportunities opening up to support investigative journalism. Along with wire services, which are beefing up their staffs and seeing growing profits as their content is syndicated to more and more places including websites and broadcast media, think tanks are also getting into the business. (There are also other nonprofits that support investigative journalism, such as the Center for Public Integrity.)

The Goldwater Institute has hired investigative reporter Mark Flatten from the Tribune to investigate and report on cases of government corruption, abuse, and waste. Flatten is an award-winning reporter who has covered state government for nearly 20 years in Arizona, including covering the impeachment of former Gov. Evan Mecham, the AzScam corruption scandal, and the alternative fuels fiasco.

Flatten is the only reporter who has ever been banned from the floor of the state legislature, which occurred at the order of former Arizona Speaker of the House Don Aldridge (R-Lake Havasu City) because of Flatten's reporting on links between Aldridge and Max Dunlap, who was convicted for his part in the 1976 murder of Arizona Republic reporter Don Bolles. In 1976, Aldridge was a member of the Maricopa County Board of Supervisors, and he accompanied Dunlap to the law office of Neal Roberts on June 2, the day a bomb went off under Bolles' car, allegedly about a runway paving problem at the Mohave County Airport (as reported in the Kingman Daily Miner, June 28, 1976). On June 3, Roberts and Dunlap met at Durant's Restaurant to discuss raising $25,000 for the defense of Bolles' killer, John Harvey Adamson, who was at the time facing a minor criminal charge and had not yet been caught for the murder.

A May 10 NPR story describes the Goldwater Institute's job ad for this position and raises concerns about political bias infecting any stories produced. While I think that's a real concern, I think it's often better to have stories come from an advertised bias rather than pretend objectivity. In any case, Flatten's stories have gone after abuse regardless of party (Mecham was a Republican, the alternative fuels fiasco was caused by a Republican, and AzScam caught both Republicans and Democrats taking bribes).

I look forward to seeing what he will investigate and write about in this new role.

UPDATE (October 19, 2009): Flatten has published his first major investigative piece since being hired by the Goldwater Institute, and it's an account of how a federal program designed to provide business opportunities to the disadvantaged is being used by political insiders for their own benefit, including County Supervisor Mary Rose Wilcox. Wilcox obtained the Chili's Too franchise in Terminal 4 at Sky Harbor Airport as an Airport Concession Disadvantaged Business Enterprise (ACDBE), which requires that the owner participate in the day-to-day operation of the business, which she does not (though perhaps her co-owner does?). She also received a $450,000 loan from Host International which meant she didn't have to bring any money to the table, a loan which violated city policy (the City of Phoenix owns and operates Sky Harbor).

Flatten's "High Fliers" report may be found here.

Jeff Benedict and Little Pink House

This afternoon I had the pleasure of hearing writer Jeff Benedict speak about his book, Little Pink House, which is the story behind the Kelo v. New London case that went to the U.S. Supreme Court in 2005. That case, which ruled that New London did have the right to use eminent domain to seize private property and turn it over to another private entity--effectively retranslating the Fifth Amendment's use of the words "public use" into the meaning "public benefit"--was a case I thought I was familiar with. But Benedict's talk revealed that while I was aware of some of the facts relevant to the legal case, I really had no idea about the whole story. In his short talk, he conveyed some of the events and details that did not make it to the national press, but which make the story all the more interesting. The political battles between state and city government, the plan to get Pfizer to stay in Connecticut when it was looking elsewhere, and the personalities involved made for a genuinely moving talk even when we already know how the story ends.

I look forward to reading his book.

Arizona Court of Appeals overturns CityNorth subsidy

The City of Phoenix's $97.4 million sales tax subsidy to the CityNorth retail center project in north Phoenix has been declared unconstitutional, a violation of the Arizona Constitution's gift clause. All three members of the appeals court agreed, writing in their opinion that "We think these payments are exactly what the Gift Clause was intended to prohibit."

The city's subsidy would have granted $97.4 million in sales tax revenues (or less, not to exceed 50% of the sales taxes collected by CityNorth businesses) over 11 years to the project developer, the Klutznick Company, in return for 3,180 parking spaces, including 200 parking lot spaces set aside for public use for "park and ride," for the next 45 years. The ruling found that the only public benefit for which the city could legitimately be paying were the 200 "park and ride" spaces, and that the city may still pay market rate for those 200 spaces (probably about $6 million over 45 years), but not for the other 3,180 spaces. The appeals court's ruling may be found here (PDF).

Congratulations to Goldwater litigation director Clint Bolick and the owners of the six small businesses that were plaintiffs in the case: Meyer Turken of Turken Industrial Properties, Ken Cheuvront of Cheuvront Wine and Cheese Cafe and Cheuvront Construction (and Democratic State Senator), Zul Gilliani who owns an ice cream shop at Paradise Valley Mall, James Iannuzo of Sign-a-Rama, Kathy Rowe of Music Together, and Justin Shafer of Hava Java.

The Goldwater Institute team initially lost the case, Turken v. Gordon, at the trial court level in Maricopa County Superior Court. The City of Phoenix tried unsuccessfully to get an award of $600,000 in attorney's fees from the Goldwater Institute in an attempt to chill future public interest lawsuits; now they'll no doubt appeal to the Arizona Supreme Court.

(Previously.)

Blatant deception on Arizona Proposition 101

Arizona ballot proposition 101, the Medical Choice for Arizona amendment, says this:

Be it enacted by the People of Arizona:

1. Article II, Section 36: Constitution of Arizona is proposed to be added as follows if approved by the voters and on proclamation of the Governor:

ARTICLE II, SECTION 36. BECAUSE ALL PEOPLE SHOULD HAVE THE RIGHT TO MAKE DECISIONS ABOUT THEIR HEALTH CARE, NO LAW SHALL BE PASSED THAT RESTRICTS A PERSON'S FREEDOM OF CHOICE OF PRIVATE HEALTH CARE SYSTEMS OR PRIVATE PLANS OF ANY TYPE. NO LAW SHALL INTERFERE WITH A PERSON'S OR ENTITY'S RIGHT TO PAY DIRECTLY FOR LAWFUL MEDICAL SERVICES, NOR SHALL ANY LAW IMPOSE A PENALTY OR FINE, OF ANY TYPE, FOR CHOOSING TO OBTAIN OR DECLINE HEALTH CARE COVERAGE OR FOR PARTICIPATION IN ANY PARTICULAR HEALTH CARE SYSTEM OR PLAN.

2. The Secretary of State shall submit this proposition to the voters at the next general election as provided by Article XXI, of the Constitution of Arizona.

It prohibits the State of Arizona from passing any legislation that prevents individuals from choosing to purchase or decline to purchase any type of health care or health care insurance from what's available, or that imposes a penalty or fine for doing so. That's it. It doesn't introduce any new taxes, it doesn't ban any state spending on health care programs, it doesn't prevent anything except the institution of a state health care or health care insurance program that requires mandatory participation, and it guarantees your right to privately arrange for health care with your own funds from the health care provider of your own choice.

Now, this does ban some kinds of health care program that some people advocate, such as the Massachusetts Health Care Reform Law of 2006, which required all Massachusetts residents to purchase health care insurance or face legal penalties--similar to mandatory automobile insurance. That program, supported by Gov. Mitt Romney, is similar to Hillary Clinton's health care proposal, but neither Obama nor McCain advocates mandatory health care insurance. If they did, however, this proposition would not prevent such a program from being instituted at the federal level.

But the opposition to Proposition 101 has been wholly deceptive. Here's some text from a mailer sent out to most Arizona residents last week:

Top 5 Reasons To Vote No On 101

Is an unclear permanent constitutional amendment that is so poorly written that it will ensure that our health care decisions will be dictated by the courts for years to come.

Makes health insurance so expensive, employers will be unable to provide coverage for their employees.

Jeopardizes Arizona's Medicare and Medicaid programs by destroying the cost containment measures adopted to provide affordable health care.

Is opposed by Doctor groups such as the American Academy of Pediatrics.

Will increase health care costs to Arizona taxpayers by $2 Billion.

Most of these items are simply fabrications or non sequiturs put forth without argument, and the mailer conveniently fails to mention anything about what the proposition actually says. Further, this mailing contained a photograph of Gov. Janet Napolitano under the State Seal of Arizona, which is a violation of state law, a class 3 misdemeanor.

The signs by the roadside urging opposition to Proposition 101 are equally deceptive, and include the claim that it will increase health care costs to Arizona taxpayers by $2 billion.

I've also seen claims online (in the comments on about.com's discussion) that Prop. 101 is backed by the insurance industry. That's false--it's opposed by the insurance industry, because they support mandatory health insurance programs for obvious reasons. This was a grassroots effort, led by Arizona doctors Eric Novack and Jeff Singer. (I contributed to the funds for signature collection for this ballot proposition.)

I've also seen claims at about.com that Prop. 101 will deregulate the healthcare and health insurance industries. Again, nonsense--the proposition has no effect on the state's ability to regulate healthcare or health insurance, except that it can't impose mandatory insurance or prevent you from purchasing any legal healthcare service or program. It doesn't say that the state can't ban or regulate healthcare, or determine what constitutes lawful healthcare.

The opponents of Prop. 101 are engaging in the most deceptive campaign against a ballot proposition that I've seen in several years. If you think the state of Arizona should be able to impose mandatory health insurance, then that's a reason to vote no on Prop. 101. If you think the right to opt-in or opt-out of health care or health insurance coverage should be left to the individual, then that's a reason to vote yes on Prop. 101.

Clint Bolick of the Goldwater Institute has issued a press release about the deceptive arguments against Proposition 101. I've been meaning to write something about it since I received the dishonest mailing, but seeing his press release prompted me to actually do it.

UPDATE (November 12, 2008): Prop. 101 was defeated in a very close race, 961,567 votes against and 950,440 votes for.

Gene Healy on The Cult of the Presidency

Last night I went to hear Gene Healy of the Cato Institute speak about his new book, The Cult of the Presidency, at the Goldwater Institute. I had a chance to speak to him briefly before his talk, and said I'd buy a copy of his book if I liked his talk. I did like his talk, and did buy his book--the clincher was the "illegal" cover of his book. He said that he had sent the galleys to John Dean, former Nixon White House counsel who has become a vocal critic of overreaching executive power, for a blurb, only to receive word back from Dean that his book cover violates U.S. law regarding the use of the presidential seal. (This was ironic in light of Healy's previous book, Go Directly to Jail: The Criminalization of Almost Everything.) The Onion was sent a cease-and-desist letter by the Bush administration in 2005 for using the presidential seal on its website. In my non-lawyerly opinion, neither The Onion nor the book are actually in violation of the law since the law prohibits the use of the presidential seal in a commercial context that suggests presidential endorsement or approval, and it's pretty obvious in both cases that no presidential endorsement or approval is implied.

Healy's talk criticized the expansion of executive power from the original description in the U.S. Constitution. While George Washington described himself as "chief magistrate" and refused to start wars with the Indians without Congressional approval, subsequent presidents have expanded their power. Academics of both conservative and liberal stripes have ranked as the "best presidents" those who have engaged in bold exercises of power, while those who have taken more limited roles in line with the Constitution are ranked among the worst (such as Warren G. Harding, whom Healy identified as the best president). Even William Henry Harrison, who served only 30 days as president, receives low poll rankings. By contrast, presidents such as Woodrow Wilson (whom Healy identified as the worst president, for actions such as throwing Eugene V. Debs in jail for criticizing the draft) and Franklin Delano Roosevelt (who put 110,000 Japanese into internment camps and attempted to subvert the U.S. Supreme Court by packing it with six additional appointees loyal to him) are identified as among the best presidents in polls.

And today, we have Hillary Clinton saying that she's prepared to be "commander-in-chief of our economy" from the moment she takes office, yet that's clearly not the job of the president described in the Constitution, where the only reference to CIC is "Commander in Chief of the Army and Navy of the United States." Healy identified his first moment of apprehension that things had gotten ridiculous about public expectations of the role of the president as a 1992 presidential town hall debate, in which Denton Walthall said (p. 132 of Healy's book):

The focus of my work as a domestic mediator is meeting the needs of children that I work with, by way of their parents, and not the wants of their parents. And I ask the three of you, how can we, as symbolically the children of the future president, expect the two of you, the three of you to met our needs, the needs in housing and in crime and you name it ... [emphasis in Healy]

None of the candidates challenged Walthall's assumption that citizens of the United States should be treated "symbolically" as children of a president-father.

Healy also spoke about what he called "situational Constitutionalism," where Republicans oppose expansions of executive power when a Democrat is president, but are happy to expand it with a Republican president, and Democrats do the opposite. It occurred to me that the timing of his book could lead to such a criticism of his work, except that he has been a consistent critic of the Bush administration's abuses. It's too bad it didn't come out before Bush's re-election, though I doubt it would have made any more difference to the outcome than James Bovard's The Bush Betrayal, which came out in August 2004, just before that election.

In the Q&A, a self-identified liberal* asked if Healy thought that Bush was the worst abuser of executive power in light of his signing statements refusing to enforce, follow, or be bound by various laws. Healy answered that he didn't consider the signing statements to be the worst of Bush's actions, since at least they were written openly and not hidden. He said he considered the internment of Japanese-Americans in WWII to be worse than anything Bush has done to date, and that he found other actions of Bush's to be worse than the signing statements, such as his warrantless wiretapping, his misuse of military commissions, elimination of habeas corpus, etc. He followed that up by saying that what he fears most from Bush's legacy is that by expanding executive power under a "time of war" doctrine for the "war on terror"--a war that will likely never end--he has effectively made the powers permanent. The similar abuses of the past were during wars that at least were temporary conditions.

I look forward to reading his book.

* There were a few liberals in attendance, including a member of the Green Party who asked me if it was considered gauche to go for seconds on the food provided--I said no, I was taking seconds myself.

UPDATE (May 6, 2008): Also see Mike Linksvayer's report on Healy's talk in San Francisco.

Goldwater Institute takes on Sheriff Joe

Clint Bolick, formerly the primary litigator for the Institute for Justice, is taking on some good causes as a litigator for the Goldwater Institute's new Scharf-Norton Center for Constitutional Litigation. He's currently fighting against the City of Phoenix's unconscionable and unconstitutional multimillion-dollar subsidy to the developers of the CityNorth project, and now he's taking on popular Maricopa County Sheriff Joe Arpaio.

In an article posted today called "Who's in Charge?", Bolick points out two cases of apparent misuse of funds by Arpaio--using RICO funds to send staff to Honduras, and sending out nearly 200 deputies and "posse" members on "saturation patrols" that appear to be trespassing the jurisdiction of the Phoenix Police Department. Meanwhile, Bolick notes:

Whatever the rationale the Maricopa County Sheriff’s Office had for those actions, both diverted scarce resources away from vital law enforcement duties that fall within the Sheriff’s Office’s core duties:

• Unserved warrants, including those for violent offenders, number an estimated 70,000.
• Dozens of criminal defendants have missed court appearances because deputies in charge of moving inmates were told to skip shifts due to excessive overtime.
• The Sheriff’s Office closed three regional booking facilities in Surprise, Avondale, and Mesa, forcing police officers in all 26 Maricopa County jurisdictions to book criminal suspects at the Fourth Avenue jail in downtown Phoenix. The greatly increased transportation time removes officers from the streets and induces them to simply cite and release criminals.

Arpaio has a long history of showy but useless or even counterproductive law enforcement activities, as well as costing the taxpayers millions by getting the MCSO sued repeatedly for wrongful death and injury cases as a result of abuse of inmates. But Maricopa County residents keep voting him back in, because he claims to be tough on crime and is often a good self-promoter. I hope that events like last October's arrests of the owners of New Times and now Clint Bolick going after him will finally lead to his non-reelection for County Sheriff this year.

Dan Saban, who's running against Arpaio, is saying all the right things about integrity, civil rights, and combating waste, though he also seems to take a hard line on illegal immigration (which is another area where Arpaio has taken a hard line and engaged in some theatrical activities). He looks like a marked improvement to Arpaio.

UPDATE (April 2, 2008): Looks like Goldwater lost round one today on CityNorth, a project where the city is giving $97.4 million in taxpayer subsidies to the developers of a shopping mall over the next 11 years, and claiming that it is for the 3,180 parking spaces in the parking garage the project is building, 200 of which are reserved for carpoolers using park and ride city bus services for the next 45 years. If the subsidy is considered to be for those 200 spaces, that comes out to $487,000 per space over the 45-year period, or $10,822.22 per space per year. The average parking space annual lease price in Phoenix is $684, and ASU recently estimated that a parking garage would cost $14,000 per space to build. In other words, if instead of paying nearly $100 million to CityNorth, the city instead had purchased land and built its own parking garage, the construction would have cost less than what the city is paying for the first two years worth of the 45-year lease on the 200 spaces. And that doesn't count the additional $10,000/week of taxpayer funds that has been spent on lawyers fighting for this subsidy.

The Goldwater Institute has announced that it will appeal.

UPDATE (April 9, 2008): The New York Times has editorialized that Arpaio should be subpoenaed about his anti-illegal-immigrant sweeps:

For months now, Sheriff Joe has been sending squads of officers through Latino neighborhoods, pulling cars over for broken taillights or turn-signal violations, checking drivers' and passengers' papers and arresting illegal immigrants by the dozen.

Because he sends out press releases beforehand, the sweeps are accompanied by TV crews and protesters — deport-'em-all hard-liners facing off against immigrant advocates. Being Arizona, many of those shouting and jeering are also packing guns. Sheriff Joe, seemingly addicted to the buzz, has been filmed marching down the street shaking hands with adoring Minutemen.

If this doesn't look to you like a carefully regulated, federally supervised effort to catch dangerous criminals, that's because it isn't. It is a series of stunts focused mostly on day laborers, as Sheriff Joe bulldozes his way toward re-election.

The sheriff says he is keeping the peace, but it seems as if he is doing just the opposite — a useless, reckless churning of fear and unrest.

Ayaan Hirsi Ali receives Goldwater Award

Last night Einzige and I attended the Goldwater Institute's award dinner for Ayaan Hirsi Ali at the Phoenician resort in Scottsdale, where she was given the 2007 Goldwater Award for her work in support of freedom, in defense of women against the oppression they face in Islamic countries. Copies of her autobiographical book, Infidel, were given to each table and I obtained the copy at our table since most everyone at the table had already read it and no one accepted my challenge to fight for it.

It was a rainy night and it was a huge event, with about 800 attendees. It took me about 25 minutes to get from the entrance of the Phoenician to the event venue, where I later heard that valets parked 400 cars for the event. It seemed as if the Phoenician wasn't used to hosting an event of that size, which can't possibly be true.

I was extremely surprised to see that the schedule for the event included an *invocation*. I have attended multiple Goldwater events in the past (such as the screening of "Mr. Conservative"), but this was the first time I had been to one that included a prayer. I noted at the table that it seemed disrespectful in the extreme that an event honoring an atheist would begin with a prayer. The prayer itself was an ecumenical, non-sectarian "meditation" (as the individual who spoke referred to it) of the sort likely to be as offensive to hardcore Christians as it is to atheists for its failure to appeal to Jesus Christ, but it was still a public verbal appeal to an imaginary being for his approval and support. It reminded me a little bit of the "Agnostic's Prayer" in Roger Zelazny's book Creatures of Light and Darkness, which goes like this (p. 40):

Insofar as I may be heard by anything, which may or may not care what I say, I ask, if it matters, that you [a man about to die in a "suicide show" who the speaker has put his hand upon the head of] be forgiven for anything you may have done or failed to do which requires forgiveness. Conversely, if not forgiveness but something else may be required to insure any possible benefit for which you may be eligible after the destruction of your body, I ask that this, whatever it may be, be granted or withheld, as the case may be, in such a manner as to insure your receiving said benefit. I ask this in my capacity as your elected intermediary between yourself and that which may not be yourself, but which may have an interest in the matter of your receiving as much as it is possible for you to receive of this thing, and which may in some way be influenced by this ceremony. Amen.

And I continue to fail to understand why Christians cannot abide by Matthew 6:5-7.

The dinner at the event was phenomenal, though portions were small (filet mignon was the main course). Steve Forbes gave a keynote speech which was well done; it was primarily a recounting of some of the basic principles necessary for economic freedom, such as the importance of the rule of law and a system of stable property rights. Regarding property rights, I was pleased that he commented on a survey of businesses and property in Egypt that found that most businesses and buildings were illegal under the country's laws, and noted that this is common throughout the world. Having recently read Robert Neuwirth's excellent book Shadow Cities, I'm aware that over a billion people in the world live in squatter cities where they are illegally occupying land and often develop their own informal property rights that are not legally enforceable but tend to be respected within their own communities. Countries which manage to give some kind of enforceable title to such people can dramatically unlock wealth and improve their conditions.

The part of Forbes' talk which most caught my attention, however, was his discussion of the current mortgage crisis. He stated that this is a mere blip, so long as the government doesn't overreact. He claimed that there is perhaps $400-$500 billion in losses hiding in securitized mortgage packages, which should be easy for the market to take since that's the amount lost in a bad day on the stock market. The concern is that government or bankers will overreact and withdraw liquidity from everyone (rather than just bad risks) at a time when it is needed. In my opinion, Forbes understates the risks because he repeatedly assumed that the problem exists only within subprime loans, which is already demonstrably false. American Home Mortgage of Tucson, which filed for bankruptcy in August, did not originate subprime loans at all, only "Alt-A" loans, which fall between prime and subprime. The root of the problem has been people of all levels of credit risk using their homes as ATMs who are now underwater, and in particular those using adjustable rate mortgages. This article from someone inside the mortgage industry sets out a worst-case scenario that I think is far more plausible than Forbes' rosy picture, which fails to account for the cascading effects of foreclosures, bankruptcies, and loss of real estate jobs on the broader consumer-driven economy. But in any case, he predicts that the mortgage crisis will be over before the end of 2008, so by this time next year we will know who is right.

Ayaan Hirsi Ali's talk was actually an interview conducted by Darcy Olsen, the president of the Goldwater Institute, who asked her a series of questions about growing up in Somalia, her subsequent life, what motivated her to escape Islamic fundamentalism and her arranged marriage, and so forth. She was well-spoken (especially for a non-native speaker of English) and charming, and told of being inspired by works of fiction about individual freedom while living in a community that emphasized submission to family, tribe, and nation. Her sources of inspiration were all secular, of course, though surprisingly included Barbara Cartland romance novels and Nancy Drew mysteries as well as books like Huckleberry Finn.

Afterward, I stood in line to get my book signed, and had a chance to speak to her directly. Although I thought of asking her what she thought of being honored at an event that opened with a prayer, our brief exchange went something like this:

JL: Have you heard of the Internet Infidels?
AHA: No. (She smiles.)
JL: It's at infidels.org, it is a group critical of religion. Are you familiar with Ibn Warraq? [I had also meant to mention Internet Infidels supporter Taslima Nasrin, but couldn't remember her last name.]
AHA: Yes.
JL: Some of his material is published there, though it mostly focuses on Christianity, since it's a bigger source of problems in this country.
AHA: I think I would disagree that Christianity is a bigger problem than Islam in this country.
JL: It's Christianity that has control of the government here.

And then I stepped away with my book, and joined the long line at valet parking right behind Barry Goldwater, Jr. I tipped my valet with a $20, which he seemed very pleased to receive, and then thought that I should have said "this is a tip from an atheist," since I saw several other people (not Goldwater) apparently fail to tip at all, even though they were more elegantly dressed and driving vehicles several times the price of mine.

Ayaan Hirsi Ali seems to be focused exclusively on Islam--not surprising given her history. Several of her answers were somewhat defensive of Christianity (no doubt appealing to her audience), at least by comparison to Islam, much like her response to me above. Yet the Bible contains teachings very similar to the Koran in regard to calling for the death of unbelievers, the subjection of women, slavery, and so forth--the difference is that there are fewer who endorse those teachings, perhaps in part because Christianity has gone through a Reformation while Islam has not.

UPDATE: Note that Wikipedia reports that Hirsi Ali has admitted to falsifying some information in her application for asylum in the Netherlands (specifically her name, date of birth, and claim to have spent time in refugee camps on the border of Somalia and Kenya), and her family disputes her account of her forced marriage, though Hirsi Ali has provided letters from family members (including her father) to the New York Times which substantiate her account. It was the exposure of her fabrications on her asylum application that led her to step down as a Member of the Dutch Parliament and led to Rita Verdonk saying that her Dutch nationality was therefore invalid, which was subsequently overridden by vote of Parliament.

This blog post quotes from a Reason magazine interview of Hirsi Ali that shows that she is somewhat extreme and illiberal in her position regarding Islam, as well as having some unusual ideas about Christianity (e.g., she thinks Catholics have a conception of God where there is no hell). One commenter at the Reason blog compared her to Ann Coulter. This post critiques her understanding of Islam as overly simplistic, like confusing all of Christianity with its most extreme fundamentalist varieties.

UPDATE (February 20, 2008): I've just finished reading Hirsi Ali's book, Infidel, and I highly recommend it. Contrary to my statement above, it wasn't the "exposure of her fabrications on her asylum application that led her to step down" as an MP; she had been open with many people, including the press, about having used the name Ali instead of Magan on her asylum application and claiming to be a refugee from Somalia instead of a resident of Kenya fleeing a forced marriage to a Canadian.

UPDATE (May 5, 2024): Since at least November of 2023, Hirsi Ali now identifies as a Christian, which for her seems to be a cultural stance not grounded in any reasons for believing Christianity to be true.

Ayaan Hirsi Ali to receive 2007 Goldwater award

The Goldwater Institute will be giving Ayaan Hirsi Ali, former Muslim turned atheist author of the book Infidel, its 2007 Goldwater award at an event in Phoenix later this year. I plan to attend and will report here afterward.

Mr. Conservative

Tonight I attended the Goldwater Institute's screening of the HBO documentary "Mr. Conservative," a biography of Barry Goldwater produced by his granddaughter, CC Goldwater, who was in attendance along with Barry Goldwater Jr. The audience was a mix of people who still call themselves conservative, libertarians, and even a few liberals. (Gary Peter Klahr sat directly behind me, and his question in the Q&A session was what Goldwater would have thought of the Bush administration's power grab and war in Iraq. Barry Goldwater Jr.'s answer was that his father disliked foreign entanglements and supported the Constitution.)

The film features footage and photographs taken by Barry Goldwater himself--the film notes that he always had a camera in his hand, and at least three books of his photographs have been published. He was born in Arizona prior to its statehood, to a Jewish father and an Episcopalian mother--which led to one quip from Goldwater reported by Robert MacNeil in the movie: "He would say things like, 'I went to a golf club where they wouldn't let Jews play, and I said, "I'm only half Jewish. Can I play nine holes?'"

The movie features interviews with people ranging from George Will, Barry Goldwater, Jr., and Sandra Day O'Connor to Ben Bradlee, Sally Quinn, Al Franken, Julian Bond, and Hillary Clinton. Also featured is the exceedingly evil Jack Valenti.

The film covers Goldwater's life in Arizona, including his mother teaching him to shoot guns, his coming home from the University of Arizona to run the family store in Phoenix so his smarter older brother could stay at Stanford, his love of ham radio and flying airplanes (he would hear on the radio of medical emergencies among the Hopi Indians and personally deliver medicine from Phoenix--and this during his political career). He was a very early runner of the Colorado River (in 1940 using wooden dories--when fewer than 100 people had run the river; Goldwater was #73). He ran the river with camera equipment, making a film which he traveled about Arizona to show, which made him well-known before running for office. He won his first election to the Phoenix City Council, and went straight from the City Council to the U.S. Senate.

In his later life, he was outspoken in his support for a woman's right to abortion, for gays to serve in the military, and for the religious right to stop pushing their religious views into politics. The film reveals that he supported his daughter obtaining an abortion before Roe v. Wade, and that he has a gay grandson. Several of the more liberal interviewees say that they thought Goldwater became liberal later in life (and some in the audience seemed to have a similar view), but Goldwater himself is shown making a statement that preempts this claim, back in 1963--that he is a conservative, but that at some time in the future people will call his views liberal.

He was a supporter of individual liberty who wanted the government's role in private life minimized across the board, on both economic and social issues--it wasn't he who changed, but the political environment that changed.

I recommend the movie--it is well done, it fairly points out his foibles and flaws as well as his strengths. It is sad that there are virtually no politicians today who are as forthright, honest, and outspoken about their views--who are as genuine as he was. We need more people in the public sphere who speak out with integrity and honesty, rather than with dissembling and spin.

UPDATE (August 17, 2007): I glossed over Goldwater's negatives in my last paragraph, but the film doesn't. It reports on how he lost the 1964 election in the biggest landslide in history, and why--including his opposition to the Civil Rights Act of 1964 (though he supported the Civil Rights Acts of 1957 and 1960, supported the Arizona NAACP, and helped desegregate the Arizona National Guard), his remarks about the use of atomic weapons for defoliation in Vietnam, and his remark about sawing off the eastern seaboard of the U.S. and letting it float away. LBJ's political ad graphically depicting the latter remark and his famous "Daisy" mushroom cloud ad are shown in the film. Goldwater's reaction to the latter is reported as saying that if he thought that accurately depicted what he would do, "I wouldn't vote for me either."

A few other points of interest in the film: Goldwater was a friend of John F. Kennedy, and they were looking forward to running against each other in the 1964 election, flying from city to city on the same plane together to campaign against each other face to face. That would have been an interesting match up. (I should note that my opinion of JFK is not as positive as the general public's view, after having read how he made use of the CIA. He was one of the worst abusers of the CIA for interventions in attempt to overthrow the governments of other countries who ever sat in the White House.)

Barry Goldwater Jr. was a long-time friend of Nixon White House counsel John Dean, and Dean consulted with Goldwater Sr. before testifying in front of the Senate about Watergate. Goldwater told him to go ahead and nail Nixon, because Nixon was a liar.

During Watergate, Goldwater, whose wife had decided to remain in Arizona, spent much of his time in D.C. at the home of Lt. Gen. William W. Quinn and his wife Bette. The Quinn's daughter Sally was a journalist engaged to Ben Bradlee, publisher of the Washington Post. Bradlee reports that Goldwater told him that he thought Nixon was going to resign, but not to publish a story about it because if he did, Nixon was so stubborn that he'd then refuse to do it.

The Wikipedia page on Goldwater is quite comprehensive.

UPDATE (August 18, 2007): Apparently the golf story is apocryphal. The discussion page on Goldwater's Wikipedia entry says "In his autobiography, 'Goldwater,' BG attributes this joke to his brother Bob, speaking about HIS brother Barry at 'a golf pro tournament near Los Angeles.' B. Goldwater adds, 'The story got a big laugh, but the incident never occurred.'"

Congressional earmark reform is a sham

From Robert Novak (ick, but it doesn't change the facts here) via Distributed Republic:

With the midnight hour approaching on Saturday, Aug. 4, near the end of a marathon session, Democratic and Republican leaders alike wanted to pass the defense appropriations bill quickly and start their summer recess. But Republican Rep. Jeff Flake's stubborn adherence to principle forced an hour-long delay that revealed unpleasant realities about Congress.

Flake insisted on debating the most egregious of the 1,300 earmarks placed in the defense money bill by individual House members that authorize spending in their districts. Defending every such earmark was the chairman of the Appropriations defense subcommittee: Democratic Rep. John Murtha, unsmiling and unresponsive to questions posed on the House floor by Flake. Murtha is called "King Corruption" by Republican reformers, but what happened after midnight on Aug. 5 is not a party matter. Democrats and Republicans, as always, locked arms to support every earmark. It makes no difference that at least seven House members are under investigation by the Justice Department. A bipartisan majority insists on sending taxpayers' money to companies in their districts without competitive bidding or public review.

Claims of newly established transparency were undermined by the late-night follies. Flake, who ran a Phoenix think tank, the Goldwater Institute, before coming to Congress in 2001, is immensely unpopular on both sides of the aisle for forcing votes on his colleagues' pork. He burnished that reputation by prolonging the marathon Saturday session and challenging selected earmarks.

What ensued showed the sham of earmark "reform." With debate on each earmark limited to five minutes per pro and con, and roll calls also pressed into five minutes, the House was mainly interested in finishing up and defeating Flake with huge bipartisan majorities. The mood of annoyance with Flake was personified by the 17-term Murtha, who as subcommittee chairman defended and retained every earmark (including notorious infusions of cash to his Johnstown, Pa., district).

Murtha is on CREW's list of the most corrupt Congressmen (as "one to watch") and has a history of working with Republicans in order to block fraud investigations and prevent lobbying reform. I observed last November that it looked like the Democrats were off to a poor start on reforming Congress.

Deceptive Goldwater Institute article on CO2 and global warming

The Goldwater Institute sent out an email today titled "Some Like It Hot" by Robert C. Balling, Jr., a global warming skeptic who is a climatology professor at Arizona State University (and a Goldwater Institute Senior Fellow). It's short, so I'll quote it in full:

This summer treated us to the films "Too Hot Not To Handle" and Al Gore's "An Inconvenient Truth," as well as news that the Supreme Court will decide whether carbon dioxide (CO2) should be considered a pollutant under the Clean Air Act.

Reinforcing the idea that CO2 is a pollutant, Gore and others often speak of "CO2 pollution." Before you train yourself to add the "p" word to your vocabulary, consider that CO2 comes from the Earth itself and its levels have fluctuated greatly throughout history.

At one point, atmospheric CO2 levels dropped drastically and came perilously close to suffocating the global ecosystem. If someone is concerned about dangerous levels of atmospheric CO2, too low is far more dangerous than too high.

Experiments show that when CO2 levels increase, plants grow faster and bigger. In order to make CO2 more sinister, claims are made that ragweed and poison ivy will grow more vigorously in the future, and indeed they will. But so will every tree in the forest.

There is no doubt that CO2 is a greenhouse gas that when elevated will act to warm the Earth. However, its levels have fluctuated enormously over the history of the Earth, and the ecosystems of the planet have adjusted to cope with these variations. The Supreme Court ruling will be interesting, but Mother Earth has clearly ruled that CO2 is not a pollutant.

Dr. Robert C. Balling Jr. is a Goldwater Institute Senior Fellow and is a professor in the climatology program at Arizona State University, specializing in climate change and the greenhouse effect. A longer version of this article originally appeared on TCSDaily.com.

The big problem with this piece is a very critical omission. The last paragraph admits that CO2 elevation causes global warming, but says that its levels have "fluctuated enormously" over the history of the earth. But it fails to tell us what the record of CO2 fluctuation shows and where we stand today in comparison to the existing past record, leaving the reader with the false impression that the current levels are within normal historical fluctuations. CO2 levels today are much higher than they have been in the last 400,000 years (which I believe has now been extended to 600,000 years), as documented by CO2 levels in Antarctic ice cores.

To quote Steve Albers at NOAA:

The reason I would be most concerned is not what has happened so far, but what can very possibly happen if we stay on the present course. Carbon dioxide (CO2) mainly from fossil fuel burning is being released into the atmosphere faster than natural processes can remove it, thus increasing atmospheric concentrations. The rate of rise in CO2 concentration has been increasing as well, from about 1.3 parts per million per year several decades ago to about 2.2 ppm/yr in 2005. The natural background is about 280ppm and current CO2 concentrations are about 380ppm. A linear extrapolation of the 2005 trend would yield a doubling of CO2 over natural values by around 2080. It is often suggested that short of that, values of just 450ppm would represent a threshold of unacceptable changes in the environment. These values are potentially just a few decades away.

If we wait until things get obviously worse before we take action it could be too late for reasonably quick action to restore our familiar climate. One reason is because the ocean reservior of CO2 might be filling up and it would then take hundreds of years or more to reverse the CO2 back to its "natural" level to undo the warming effect. Another aspect of the carbon cycle is that even if the global emission rate is held constant, the CO2 concentration in the atmosphere would continue to rise for quite some time (e.g. one or more centuries) and reach levels several times what it is at present. Alternatively, to hold the CO2 concentration at current levels, the emission rate would have to be cut by roughly one-half (without considering the effect of the ocean reservoirs filling up). To hold the currently elevated temperature constant the emission rate would need about a two-thirds cut. Even if we magically turned off all emissions at once, it would probably take 100-300 years for CO2 levels to come down close to the natural background levels. The corresponding "half-life" would be something on the order of 50 years, subject to changes in the various CO2 sinks.

Since carbon emissions are continuing to grow (primarily because the major method of electricity production around the globe is burning coal), the levels are continuing to rise (graphs are from Wikipedia).



For whatever faults one might find in Al Gore's presentation in "An Inconvenient Truth," at least he presents the data to support what he says--and I recommend that everyone see that movie.

Misleading commentary on taxes from the Goldwater Institute

On April 3, the Goldwater Institute released a short opinion piece by former state senator Tom Patterson titled "Same Old Story," in which he claims that "A new report shatters the 'tax cuts for the wealthy' myth." But the figures he gives do not shatter any such myth, and the facts are that Bush's tax cuts have gone overwhelmingly to the top 1% of income earners.

Patterson writes:

According to the Congressional Budget Office, between 1979 and 2003 the share of income taxes paid by the highest earning 20 percent of Americans jumped from 65 percent to 85 percent. The top 10 percent of income earners in 2003 paid 70 percent of the income tax. The infamous top one percent shouldered 35 percent of total income taxes paid.
Meanwhile, the proportion of income tax paid by the lowest two quintiles has dropped to minus two percent. And, according to Office of Management and Budget figures, anti-poverty programs in 2004 consumed 16 percent of federal spending, an all-time high.

The first thing to notice about these figures is that the only comparison between two time periods for share of income taxes is for the top 20% of Americans (their share went from 65% to 85% between 1979 and 2003). All of the other figures are for 2003 (except for the 2004 OMB figures on federal spending, which I won't address--I'm just interested in the tax question here).

These figures don't even attempt to refute the claim that the Bush tax cuts primarily went to the wealthiest Americans--this data in no way "shatters the myth." A look at the facts shows that this is no myth.

I sent the following email to Tom Patterson on April 3:

Tom:

This data doesn't seem consistent with other reports of more recent CBO data, e.g.:

http://www.washingtonpost.com/wp-dyn/articles/A61178-2004Aug12.html

It also doesn't seem consistent with the data in David Cay Johnston's book, Perfectly Legal.

Does Riedl look at tax as a percentage of income, as well as just percentage of the tax burden?

My understanding is that tax as a percentage of income has increased on the middle class and bottom of the upper class, while it has significantly decreased for the richest of the rich.

I then included the text of my Amazon.com review of Johnston's book (which I've moved to the bottom of this post). I was mistaken that the facts "aren't consistent" with the other sources--those facts are indeed consistent, but conceals the point that the per-dollar burden on the top 20% has declined. The top 20% is paying a greater share of income tax because they are taking home a greater share of the total income, and being taxed less per dollar of income--and most of that is occurring within the top 10%.

As Johnston's book shows (p. 31), the top 10% of American taxpayers saw their average income rise 88.6% between 1970 to 2000, from $119,249 to $224,877 (inflation-adjusted); their percentage of the total U.S. income increased from 33% to 48%. The bottom 90% of American taxpayers saw their average income go from $27,060 in 1970 to $27,035 in 2000, and their percentage of total U.S. income dropped from 67% to 52%. Within the top 10%, those at the 90-95th percentile saw a 29.6% increase in income between 1970 and 2006, those from the 95th to 99th percentile saw a 54.2% increase in income during that period, those from the 99th to 99.5th percentile saw an 89.5% increase in income, and those in the 99.5th to 99.9th percentile saw a 144.8% increase in income (p. 34). Those in the 100th percentile saw a 558.3% increase in income from 1970 to 2000 (p. 36).

The result of Bush's 2001, 2002, and 2003 tax cuts by 2010 will be an increase in the share of taxes paid by the bottom 95% of taxpayers by 3.8%, and decrease the share of taxes paid by the top 5% by 3.8%. The top 1% will see a decrease in their share by 2.7% (p. 94).
Looking at it another way, the percentage of income paid as taxes by the top 20% of taxpayers in 2001 was 19%; the percentage of income paid as taxes by the bottom 20% of taxpayers was 18% (also p. 94). That's practically a flat tax today, yet the relative burden on the poorest is much greater than on the richest, since a smaller percentage of their income is discretionary.

Dr. Patterson kindly replied to my email:

Mr. Lippard, I appreciate your reply. You bring up a number of interesting considerations, but my column was only a rebuttal of the "Bush tax cuts for the rich hurt the poor" mantra. I think the numbers, while always debatable, are reasonably authoritative and on point, or at least on the point I was trying to make. Tom

If that was what he was rebutting, I didn't get that from the wording--the specific claim made is that the claim that Bush's tax cuts went primarily to the rich is a "myth," and that's just not so.

On April 5, the New York Times reported that:

* Among taxpayers with incomes greater than $10 million, the amount by which their investment tax bill was reduced averaged about $500,000 in 2003, and total tax savings, which included the two Bush tax cuts on compensation, nearly doubled, to slightly more than $1 million.

* These taxpayers, whose average income was $26 million, paid about the same share of their income in income taxes as those making $200,000 to $500,000 because of the lowered rates on investment income.

...

Because of the tax cuts, even the merely rich, making hundreds of thousands of dollars a year, are falling behind the very wealthiest, particularly because another provision, the alternative minimum tax, now costs many of them thousands and even tens of thousands of dollars a year in lost deductions.

And on April 14, Paul Krugman pointed out how the Bush administration has tried to falsely imply that the poor and middle class gained the most from his tax cuts by not being forthright about the actual numbers:

The Treasury Department has put out an exercise in spin called the "Tax Relief Kit," which tries to create the impression that most of the tax cuts went to low- and middle-income families. Conspicuously missing from the document are any actual numbers about how the tax cuts were distributed among different income classes. Yet Treasury analysts have calculated those numbers, and there's enough information in the "kit" to figure out what they discovered.

An explanation of how to extract the administration's estimates of the distribution of tax cuts from the "Tax Relief Kit" is here. Here's the bottom line: about 32 percent of the tax cuts went to the richest 1 percent of Americans, people whose income this year will be at least $341,773. About 53 percent of the tax cuts went to the top 10 percent of the population. Remember, these are the administration's own numbers--numbers that it refuses to release to the public.

Now, it is a simple consequence of mathematics that a government that consumes the amount of tax revenue that the United States does has no choice but to generate most of those revenues from the non-poor, and conversely that the non-poor will get most of the benefits of any tax cuts since they pay the most in taxes. But what the above facts show (and what Johnston's book in particular shows in numerous outrageous details) is that the tax system has been set up in ways that allow the very richest of the rich to benefit even out of proportion to their income, and that the Bush administration has been deceptive about that.

It's high time for real tax reform that greatly simplifies the system, eliminates most deductions and loopholes, doesn't give special breaks for particular corporations owned by friends of people in government, and eliminates the Alternative Minimum Tax. Reducing taxes on dividends and eliminating the estate tax are changes that only benefit the extremely wealthy and don't produce benefits that are likely to create jobs or otherwise benefit most of the population. Reducing taxes on payroll and on small businesses (along with regulatory burdens on them) and eliminating corporate welfare would bring us closer to an actually free market that benefits everyone.

Here's my Amazon.com review of Johnston's book:

While I found much to dismay and horrify me within this book, I suspect I also often did not interpret things in the way the author intended. The author seems to hold a viewpoint in which if you avoid paying a tax--even legally--you have gained income, rather than merely avoided an expense. The author seems to hold the view there is a fixed amount of tax that is the right amount to [be] collected, and if one person or entity reduces its tax burden, it thereby increases the burden on everyone else, cheating them. This is a judgment without any regard to the other side of the coin, government spending. While I agree that at the extremes (many of which are portrayed in this book), there is clear-cut cheating and not paying a fair share by any reasonable standard, I would not agree that all or even most legal tax avoidance falls into that category. Those who favor limited government and balanced budgets are likely to have a similar reaction to much of what the author writes.

That said, however, he makes a very strong case that the U.S. tax system is unfair and corrupt, that the IRS is limited in its ability to go after tax cheats who are breaking the law, and that the net effect is to give tremendous benefits to the richest of the rich, while the burden on everyone else (regardless of whether those taxes are being collected for legitimate or frivolous purposes) has increased.

He has chapters on how the alternative minimum tax (AMT) is completely broken and is now impacting a growing number of the middle class, how tax-exempt insurance companies are being exploited as a mechanism for storing hundreds of millions of dollars in investments and avoiding taxes on the gains, on those who simply refuse to file or pay income taxes at all, on the effects of Reagan-era payroll tax increases, on tax-evading partnership schemes and the IRS's complete inability to devote any resources to detecting them, on American companies moving their headquarters to Bermuda to avoid taxes, and on the destruction of pensions at many large companies. All are fascinating reading.

I agree with the author that something should be done, and that something should include a complete overhaul and simplification of the U.S. tax code, to make it fair and enforceable. But I am not optimistic that anything will be done--I think the level of corruption in the federal government is so high, and that because the behavior of bureaucrats and legislators is more accurately described by public choice theory than by political science, that it is unlikely we'll see radical change in a positive direction.

Goldwater Institute: Confused priorities

In today's release from the Goldwater Institute, "The Nanny State Comes to My Mailbox," Andrea Woodmansee complains about the fact that a birthday card from Arizona Governor Janet Napolitano contained the statement "One of your most important roles as a parent is to make sure your baby is immunized."

I find it more objectionable that the state spends money to send out cards for all births instead of on more useful things (or did Ms. Woodmansee get special treatment as a result of her proximity to power?) than I am that the card contains an accurate statement about the importance of immunization.

This state contains numerous anti-vaccination conspiracy theorists who put the rest of us as well as their own children at risk by not having them vaccinated.

Failing to have children vaccinated is arguably a form of child abuse--failing to take reasonable steps to give the child proper medical treatment.

I can't bring myself to be exercised about Janet Napolitano promoting vaccination when we have a President who doesn't respect Constitutional limits on his power.

Does anyone doubt that Barry Goldwater would have prioritized George Bush's abuses of power over Janet Napolitano's birthday card promotion of vaccination as a subject of critical attention?

Best argument for supporting the Goldwater Institute I've ever seen

I've attended a few Goldwater Institute events, such as hearing P.J. O'Rourke and Ben Stein speak, but I've never actually donated money to them. In my opinion, they're too supportive of the Republican Party in Arizona. Seeing this Len Munsil piece railing against them, however, is the strongest argument in favor of doing so that I've seen.

Munsil's an anti-porn crusader who used to be editor of Arizona State University's State Press back when I was an undergraduate. He refused to print a letter I wrote criticizing factual errors in an editorial he wrote about the Strategic Defense Initiative ("Star Wars"), specifically his claim that X-ray lasers do not involve nuclear explosions. He invited me to his office to discuss his decision, but still refused to print my letter or a correction to his erroneous statement. That made me believe he was dishonest, and seeing the arguments he's continued to make since that time has only confirmed my opinion. He typically argues by assertion, not with evidence, as you can see repeated in the piece linked above.

He was extremely exercised by the fact that Republican Governor Jane Dee Hull signed a bill to repeal Arizona's laws against sodomy, oral sex, and cohabitation on May 8, 2001.

Institutional Inertia

HBO’s The Wire is an absolutely fantastic show. Written by Ed Burns, a former policeman, the show is, on one level, about a Baltimore homicide detective’s monomaniacal pursuit of the leaders of a heroin cartel. On another level, the show is an exploration of how institutions impact the choices available to the individuals who make them up. Albert Jay Nock, in his essay Anarchist’s Progress, addressed this topic brilliantly. The message of both Burns and Nock is that people are often forced by circumstance (usually one contrived by the institutions they are a part of) to do things they wouldn’t otherwise do (of course, Max Stirner would justifiably declare these people to be "possessed by spooks").

Unfortunately this phenomenon extends beyond the bureaucratic hell that a city government must be. It seems it exists even in what I would imagine would be the least likely of all places for it to be: libertarian think tanks. I personally know several Cato staffers, for example, who are staunch anarchists, and yet, apparently from a need for Cato to appear “inside the beltway,” they often put out some seriously milquetoast policy recommendations.

Arizona’s Goldwater Institute, also staffed by a few anarchistas, provides another example. In private conversations with Vicky Murray, she has told me that she thinks school and state should be entirely separate. Yet, in her capacity as Goldwater’s Director of Educational Opportunity, she writes articles like this and this. It is understandable that Goldwater would want to pander to their financial base, which consists mostly of traditional conservatives, but it’s disappointing, nonetheless. Does taking a half-assed approach really "defend liberty"? (I'm actually not sure what, if anything, defends liberty nowadays. I am more and more convinced that Stirner is right when he says that all freedom is self liberation and must be taken.)

All of these issues were really brought into stark relief for me by the article they published today, which complains about Arizona’s salary grid for teachers. The article’s author, John Wenders, points to a school in Little Rock, Arkansas, where they “began tying teacher bonuses to students’ Stanford Achievement Test results. In just one year, overall student achievement increased 17 percent, and teachers received bonuses up to $8,600.”

I can’t believe that the article’s author, an economics professor, cites this literally incredible statistic so unquestioningly. As someone versed in economic theory, Professor Wenders should know better than most that incentives matter. I submit that the amazing 17 percent increase was probably achieved via some combination of cheating (and I specifically mean teacher cheating, not student), “teaching to the test”, statistical anomaly, and perhaps a small amount of legitimately better teaching.

I think that, in publishing this article, Goldwater does a disservice to themselves and the cause of liberty. Unfortunately, the article that should have been written, and the article that I can only hope Vicky Murray probably wanted to write – that schools should be entirely private and then the salaries of the teachers would suddenly no longer be a political hot-button – is one that we’re likely never to see. I think that’s a shame.

Rehnquist remembered, Rashomon-style

Clint Bolick and Alan Dershowitz have written two very different--yet only occasionally directly contradictory--rememberances of Chief Justice William Rehnquist. Bolick, in a piece distributed by the Goldwater Institute and published in the Arizona Republic, describes Rehnquist as a conservative, moderating influence on a liberal court, advocating state's rights, school choice, and presiding over a court that has been "usually (though less frequently lately) siding with individual liberty over state power." Dershowitz, on the other hand, in a piece published on the Huffington Post, describes Rehnquist as a bigot who enjoyed racist and anti-Semitic jokes, who defended the "separate but equal" doctrine in Plessy v. Ferguson as a law clerk for Justice Jackson, and who began his legal career as a Republican thug who obstructed African-American and Hispanic voters at Phoenix polling places.

Bolick gives a more nuanced view that actually addresses more of Rehnquist's work on the court (though less than I would have expected), while Dershowitz emphasizes evidence of Rehnquist's personal character which mostly derives from before he was on the Supreme Court. I was surprised that Bolick didn't mention some of the recent cases (such as Raich v. Ashcroft and Kelo v. New London) where Rehnquist voted for liberty (and was unfortunately in the minority).

Yet I have no doubt that there is accuracy in both descriptions. Bolick has in the past seen people as defenders of liberty who have done much to destroy it, such as former Attorney General John Ashcroft. Dershowitz alternatively takes courageous stands in defense of liberty and crazy stands which oppose it.

One area where I was less than impressed with Rehnquist was on religious liberty, specifically for nonbelievers. He (like the majority) went the wrong way on Elk Grove v. Newdow (the Pledge of Allegiance "under God" case) and (unlike the majority) the wrong way on the McCreary County v. ACLU case (Ten Commandments display in a Kentucky courtroom which included a written statement that the display was "in remembrance and honor of Jesus Christ, the Prince of Ethics").