Category Archives: Regulation

‘Ten Thousand Commandments’ for 2014 released

Ten Thousand Commandments 2014

By Clyde Wayne Crews

Full Report Available Here

Ten Thousand Commandments is the Competitive Enterprise Institute’s annual survey of the federal regulatory state. Authored by CEI Vice President for Policy Clyde Wayne Crews, it shines a light on the large, growing, and hidden costs of America’s regulatory state.

The scope of federal government spending and deficits is sobering, but federal regulations cost hundreds of billions – perhaps trillions – of dollars annually. Unfortunately, they get little attention in policy debates. Regulatory costs are difficult to quantify because, unlike taxes, they are unbudgeted and often indirect. Ten Thousand Commandments compiles scattered government and private data on the numbers and costs of regulations and about the agencies that issue them, in an attempt to make the regulatory state more comprehensible.

Highlights of the 2014 Edition Include:

  • Combined with $3.454 trillion in federal spending, Washington’s share of the economy now reaches 31 percent.
  • Costs for Americans to comply with federal regulations reached $1.863 trillion in 2013. That is more than the GDPs of Canada or Australia.
  • This is the 21st edition of Ten Thousand Commandments. In that time, 87,282 final rules have been issued. That’s more than 3,500 per year or about nine per day.
  • The “Unconstitutionality Index” is the ratio of regulations issued by agencies compared to legislation passed by Congress and signed into law by the president. The ratio stood at 51 for 2013. That means there were 72 new laws and 3,659 new rules – 51 rules for every law, or a new rule every 2 ½ hours.
  • Regulatory costs amount to an average of $14,974 per household – 23 percent of the average household income of $65,596 and 29 percent of the expenditure budget of $51,442. This exceeds every item in the household budget except housing – more than health care, food, transportation, entertainment, apparel, services, and savings. Some 63 departments, agencies and commissions have regulations in the pipeline.
  • The 2013 Federal Register contains 79,311 pages, the fourth highest ever. The top two all-time totals are 81,405 pages in 2010 and 81,247 in 2011, both under Obama.
  • The top six federal rulemaking agencies account for 49.3 percent of all federal rules. In 2013, these were the Departments of the Treasury, Commerce, Interior, Health and Human Services, and Transportation and the Environmental Protection Agency.
  • Small businesses pay more in per-employee regulatory costs. Firms with fewer than 20 employees pay an average of $10,585 per employee, compared to $7,755 for those with 500 or more employees.

Wayne Crews – Ten Thousand Commandments 2014.pdf

Ten Thousand Commandments 2014 on Scribd

Kansas advanced biofuels plant subject of New York Times story

The New York Times has provided a story on the future of advanced biofuels, using a plant under construction in Kansas as the centerpiece. The plant, near the western Kansas town of Hugoton, produces cellulosic ethanol. Instead of using kernels of corn as input, the plant uses material like corn stalks and wheat straw. When the Hugoton plant starts operations in May, it will be twice as large as the largest plant currently in operation.

A few notes:

The lede of the story: “There is an old joke in the energy business that advanced biofuels are the fuel of the future, and always will be.”

The legislation requiring the use of advanced biofuels (Energy Independence and Security Act of 2007) was the product of a Republican administration.

The executive vice president of Abengoa complains that the government is changing the rules.

Experts are not convinced of the potential of cellulosic ethanol plants to be economically viable.

A Canadian biofuel company wants the EPA to create regulations requiring the use of its product, and to provide incentives.

The Kansas cellulosic plant has received a $134 million loan guarantee from the Energy Department, the same type of benefit the notorious Solyndra company received.

gosnell-movie

Gosnell movie smashes through crowdfunding record

gosnell-movieFollowing is a message from Ann & Phelim Media on the continuing success of the crowdfunding campaign for the Gosnell Movie. I’ve made a contribution, and I hope you do too, as the goal is not yet met.

The movie on Philadelphia abortion doctor Kermit Gosnell has just become the most successful film ever on the Indiegogo crowdfunding website.

Gosnell, a made for TV project on the doctor who is America’s most prolific serial killer, has just smashed through the $900,000 mark — overtaking the previous record holder which had raised $898,000.

Gosnell was convicted of the murder of several live and viable babies at his clinic. It is thought that over a 40 year killing spree he murdered thousands of infants. Gosnell is currently serving several life sentences.

His case became controversial after the trial received almost no media coverage — and sparked allegations of a media coverup.

Gosnell Producer Ann McElhinney said the record breaking success of the Gosnell Movie was a testament to the thousands of small donors who wanted the truth to be covered.

“Dr Kermit Gosnell is America’s biggest serial killer — but there was almost no media coverage of his trial — and then Hollywood — which loves to make movies and TV programmes about serial killers — also decided to ignore the story.

That’s why we decided to crowdfund and it’s also why we have been the most successful project ever. This was the biggest crime in US history, which led to one of the biggest media cover ups. It makes sense that the American public has responded with the biggest ever crowdfunding campaign.”

Co-Producer Phelim McAleer said they were “ecstatic” to have achieved a record breaking amount but warned that they would not be relaxing until they had raised the $2.1m needed.

“We have a fixed funding campaign — which means that if we don’t reach our target, all the money goes back to the contributors.”

Producer Magdalena Segieda said the record breaking amount raised for the project is proof that people are fed up with censorship.

“This sends a message to the media and Hollywood that they need to stop ignoring stories that don’t match their political beliefs. By helping Gosnell smash these records the public are making a very strong statement about their dissatisfaction with media bias.”

More information on the Gosnell Movie crowdfunding campaign can be found at www.gosnellmovie.com.

wichita-taxi regulations

Regulation failure leads to tragedy in Wichita

wichita-taxi regulations

When the Wichita City Council passed new taxicab regulations in 2012, the focus was on dirty cabs and slovenly drivers who were not acting as goodwill ambassadors for the city. Mayor Carl Brewer said he was “tired” of hearing complaints about drivers.

So the council passed new regulations regarding taxicabs, including the requirement that drivers attend customer service training provided by Go Wichita Convention and Visitors Bureau. Other regulations determine taxicab office staffing levels and level of supervision.

Bryon Scott Spohn, a taxi driver accused of raping a passenger.

But something very important slipped through the cracks. The Wichita Eagle has reported the city didn’t competently enforce regulations designed to protect passenger safety:

A Wichita taxicab driver now in prison for raping a passenger last year shouldn’t have been allowed to operate a taxi in the first place.

That’s because at the time Bryon Scott Spohn applied for a taxi driver’s license in late 2012, he was on a state sex offender registry for possession of child pornography. A city ordinance that went into effect in July 2012 says a taxi driver’s license shall not be issued to anyone who “is now or has ever been registered as a sexual offender with any state, county or local government.”

Spohn shouldn’t have received a taxi license but did because the new change banning registered sex offenders wasn’t communicated to staff members doing background checks on taxi driver applicants, city officials told The Eagle on Friday. The city has fixed the problem that led to the oversight in Spohn’s case, they said. Taxi driver in prison for raping passenger was on sex offender registry, March 3, 2014

The regulations regarding customer service training were implemented. But the really important regulations? Lack of oversight, says the city.

I wonder: Who is regulating the regulators?

Exchange data security breaches don’t require notification

The breach of consumer data at Target has brought the issue of data security in focus. Yesterday a senator called for more protection and accountability for consumers and retailers. The following story from Watchdog.org tells us that government does not want to hold itself to the standards it wants the private sector to observe. There has been legislation proposed. Rep. Diane Black [R-TN6] has introduced H.R. 3731: Federal Exchange Data Breach Notification Act of 2013, whose title is “To require an Exchange established under the Patient Protection and Affordable Care Act to notify individuals in the case that personal information of such individuals is known to have been acquired or accessed as a result of a breach of the security of any system maintained by the Exchange.”

Feds not required to report security breaches of Obamacare exchange website

By 

HACKED OFF: Hackers or careless bureaucrats could cause private information to be spilled across the Internet. But the federal government, unlike most states, don't have to tell users when they have been compromised.

HACKED OFF: Hackers or careless bureaucrats could cause private information to be spilled across the Internet. But the federal government, unlike most states, don’t have to tell users when they have been compromised.

By Eric Boehm | Watchdog.org

Americans who buy health insurance through the federal Obamacare exchange website could have their personal information stolen by hackers and never even know it.

Most of the state-run health exchange websites will be covered by state laws that require notification when government databases are breached by hackers. But there is no law requiring notification when databases run by the federal government are breached, and even though the Department of Health and Human Services was asked to include a notification provision in the rules being drawn up for the new federal exchange, it declined to do so.

Other protections for individuals’ privacy, like the Health Insurance Portability and Accountability Act, or HIPAA, do not apply to the government-run exchange, only to health providers and insurance companies operating within the exchange.

Privacy advocates and cyber-security experts have had concerns about the lack of a federal notification law for years and hope the scrutiny of the Obamacare exchange will finally bringchange.

“The notification requirement is a very important part of overall security,” saidDeven McGraw, director of the Health Privacy Project at the Center for Democracy and Technology. “People should be told when their information is at-risk.”

The lack of a notification requirement is particularly bad for the health insurance exchange website because of all the questions surrounding the site’s security. Poor security, coupled with the website’s high-profile problems, could make it a target for hackers either seeking to steal identities or embarrass the government.

Unfortunately, security is often an afterthought for the government, said David Kennedy, CEO of TrustedSEC, an Ohio-based cyber-security firm. Kennedy has testified before Congress about security threats in the Obamacare exchange and the need for notification laws.

“All we need is something that says if the federal government is breached, all we have to do is alert the public,” he told Watchdog.org. “Healthcare.gov is just one website of hundreds that have had these issues going back through the years.”

Together it creates a possible nightmare scenario. Without strong security on the front end, the hastily built and not fully operational website could become a treasure trove for hackers looking to steal identities. But without any laws requiring that those victims be notified by the federal government users of the Federal health exchange will be in the dark about any potential security breaches of their private data.

When the federal Obamacare exchange was being developed by HHS prior to its troubled launch on Oct. 1, experts told the department that it should include a data-breach provision in its policies for the website even though one was not required under federal law.

The department flatly declined to do so.

The final rules for the exchanges were approved on March 27, 2012, meeting of HHS officials, according to the Federal Register.

At that meeting, two commenters asked HHS to ensure the exchanges would promptly notify affected enrollees in the event of a data breach or unauthorized access to the exchange’s databases. One suggested that a full investigation be launched each time such a breach occurred, with the goal of holding hackers legally and financially accountable for breaking into the website.

The department’s response: “We do not plan to include the specific notification procedures in the final rule. Consistent with this approach, we do not include specific policies for investigation of data breaches in this final rule.”

Since there is no federal notification requirement, breaches of any and all federal databases can occur without the public ever being informed.

The only way to find out a hack has occurred is when the government decides to disclose it — as several federal law enforcement agencies did last month in response to attacks from Anonymous, a group of super-hackers who threatened to take down the FBI website and others.

But hacks that happen behind the scenes —potentially stealing everything from Social Security numbers to Department of Homeland Security watch lists — never have to be reported.

“That’s alarming because there could be a number of federal databases that are compromised already and we don’t know about it,” Kennedy said. “The exchange is part of a bigger problem.”

Federal privacy protections contained in HIPAA also do not apply to the databases created by the federal exchange website, McGraw said, even though health insurers doing business through the exchange must be HIPAA compliant.

In other words, the health plan itself is covered by HIPAA and any breaches of security that affect a consumer who has purchased a specific plan would have to be reported. But the process of choosing and purchasing a plan through the federal exchange — along with any information entered into the federal exchange as part of that process — is not subject to HIPAA protections.

“The problem with the exchanges is that they are such new entities, and they are so unique that existing laws don’t really cover them,” McGraw said.

But 48 states have laws on the books requiring that they give notification to individuals who may have had personal information stolen or leaked from a government database. Many states require that government agencies and departments alert the state attorney general so investigations can be launched.

In states that opted to run their own health insurance exchanges, those laws generally cover security breaches of the exchanges, McGraw said, though it depends on the specific wording of each state law.

Those state laws are how data breaches of several state-level health insurance exchange websites have come to light.

In September, Watchdog.org reported on a data breech of the Minnesota health exchange — known as “MNsure” — that potentially affected as many as 2,400 people.

In Florida, concerns about data breaches of the state-run exchange website prompted Gov. Rick Scott to send a letter to Congress saying Floridians would not exchange privacy for insurance.

On the federal exchange, such breaches are possible, maybe even likely, since the site was launched without comprehensive testing of the security controls for the system.

A Sept. 27 memo to Medicare chief Marylin Tavernner said insufficient testing of the website before the Oct. 1 launch “exposed a level of uncertainty that can be deemed a high risk,” the Associated Press reported in October.

Even though the federal government does not have to report any breaches of security, at least a few already have occurred.

The most high-profile case so far is that of Thomas Dougall, a South Carolina lawyer who had his personal information accidentally leaked to another person after using the Obamacare exchange last month.

We logged on and compared some prices,” Dougall later told Fox News’ Greta Van Susteren. “We came home last Friday night to have a young man from a completely different state calling to tell me that when he logged on … he got all my personal information in exchange.

Dougall only found out about that breach of security because the recipient was kind enough to give him a call.  Without a requirement that the exchanges report such problems — whether the result of nefarious hackers or glitches in the programming — it is impossible to tell how many other Americans have had their private information released by the federal exchange.

Kennedy said he would not recommend that anyone use the federal exchange until it is more secure and until breaches of security are reported.

“I would say think twice about it, at least until we get more details,” he said.

Kennedy says he supports universal health care and his criticisms of the website are not rooted in political motivations. But the former U.S. Marine whose firm provides computer security to several Fortune 100 companies says there have been “zero changes” to the security of the health insurance exchange website in the run-up to the much-touted Dec. 1 re-launch.

Congress has debated a federal notification law in each of the past three years, but one has never been passed.

In July, during a hearing of the House Committee on Energy and Commerce, lawmakers heard testimony from a variety of experts who explained the need for a federal breach notification requirement.

David Thaw, a law professor at the University of Connecticut who specializes in cyber-security and the legal framework around it, said data breach notification laws, combined with comprehensive data security, are an essential part of protecting consumers and businesses.

I analogize the effects of breach notification alone to locking the bank or vault door while leaving a back window wide open,” he said.

With the federal health insurance exchange, there are questions about whether the vault door has been adequately locked.

But there is no doubt that the back window is still wide open.

Boehm is a reporter for Watchdog.org and can be reached at EBoehm@Watchdog.org. Follow him on Twitter @EricBoehm87

USA versus You: The problem of overcriminalization

Events in recent months have justifiably caused Americans to ask whether a powerful, activist, and interventionist government and bureaucracy is good to have. Those who have been looking at overcriminalization, however, have known that government and regulatory agencies have been targeting and oppressing Americans for a long time. And it’s getting worse.

USA vs. You cover

The new website USAvsYOU.com holds useful information for Americans to know about how law has changed in recent years, compared to how it operated for centuries before. The booklet available for reading is titled USA vs. You: The flood of criminal laws threatening your liberty.

As an example, here is a troubling trend:

In many criminal laws, the “guilty mind” requirement has been removed or weakened. This means people can go to prison regardless of whether they intended to break the law or knew their actions were in violation of the law.

Traditionally, crimes had two components: (l) mens reu (guilty mind), and (2) actus reus (bad act).

Today, many criminal laws and regulations have insufficient or no mens rea (guilty mind) requirement — meaning, a person need not know that his or her conduct is illegal in order to be guilty of the crime.

An example story is the following:

THE CRIME: Rescuing a baby deer

Jeff Counceller, a police officer, and his wife Jennifer spotted an injured baby deer on their neighbor’s porch. Instead of turning a blind eye to the dying fawn, the Councellers took the deer in and nursed it back to health.

An Indiana Conservation Officer spotted the fawn (named Dani) in the Councellers’ yard — and promptly charged the couple with unlawful possession of a deer, a misdemeanor offense. Fortunately for her, the day that “Little Orphan Dani” was to be euthanized by the state, the deer escaped into the wild. Due to public outrage, the government dropped the charges.

The website and booklet is a product of Heritage Foundation and it partners such as the American Civil Liberties Union. Heritage has been covering the issue of overcriminalization here. It describes the problem as this: “Overcriminalization describes the trend to use the criminal law rather than the civil law to solve every problem, to punish every mistake, and to compel compliance with regulatory objectives. Criminal law should be used only if a person intentionally flouts the law or engages in conduct that is morally blameworthy or dangerous.”

We have problems like this in Wichita, believe it or not. An ordinance passed by the Wichita City Council in 2010 might ensnare anyone visiting city hall, if they happen to have a broad-tip marker in their purse or briefcase:

Animated marker

“Possession of Graffiti Implements Prohibited in Public Places. It is unlawful for any person to have in his/her possession any graffiti implement while in, upon or within one hundred (100) feet of any public facility, park, playground, swimming pool, skate park, recreational facility, or other public building owned or operated by the city, county, state, or federal government, or while in, under or within one hundred (100) feet of an underpass, bridge, abutment, storm drain, spillway or similar types of infrastructure unless otherwise authorized.”

“Graffiti implements” are defined broadly earlier in the ordinance.

If you’re thinking about a career in taxicab driving, be advised that the city has ordinances punishing you if you’re found to have violated these standards: “Fail to maintain their personal appearance by being neat and clean in dress and person” and “Fail to keep clothing in good repair, free of rips, tears and stains.”

We could use the shutdown as a teachable moment

The United States government is in the third day of a partial shutdown. It’s quite a coincidence that Chapter 9 of Henry Hazlitt’s book “Economics in One Lesson” talks about government employees right at the time we’re in a government shutdown.

Here, Amanda BillyRock illustrates this chapter of “Economics in One Lesson.” (Click here to view at YouTube.)

You know how on a day when it has snowed or there’s been an ice storm, you hear on the news that “only essential government employees should report to work today.” When I hear that, I’ve wondered “Why do we have non-essential government employees?”

EPA logo

Here’s something that’s a little shocking. I didn’t believe it when I first heard it. The news agency Reuters is reporting that the Environmental Protection Agency — the EPA — has decided that only seven percent of its employees are essential. The others are non-essential. So why do we have them, if they are not essential?

At the Department of Education, only five percent of the employees are considered to be essential and will work during the shutdown. How, I wonder, are we going to educate children during this time?

Do private sector companies have non-essential employees? Of course. But market competition provides a balancing force, a motivation to avoid waste. That’s not present as strongly in government, if at all.

I understand that we depend on government for so many things that during a shutdown — be it partial or whatever — people’s lives will be disrupted. We’re seeing news stories of people showing up at our great national parks, for example, and being turned away because the park is closed. The solution to these problems is to take these products and services away from government and let the private sector operate them.

That’s something that seems very foreign to a lot of people. Take the inspection of airplanes, for example. Right now people are saying that if government inspectors are not available to inspect airplanes, they’re going to crash. Well ask yourself this question. Does an airline strive to operate its airplanes safely only to satisfy government inspectors, or does it wish to protect the lives of its customers and employees, and safeguard its physical assets like the expensive airplanes?

Or consider a meatpacking plant. Does it endeavor to produce safe beef only because inspectors are watching, or because it is concerned for its customers and wants to avoid the terrible publicity and economic harm of a recall?

I’m not saying that beef and airplanes should not be inspected. But they shouldn’t be inspected by government. It’s very difficult to hold government accountable. When we see episodes where government breaks down, such as perhaps government inspectors who might not be doing a good job inspecting beef, the proposed solution is always more money for government. More money for more inspectors and bureaucrats. But, what if we had a private market for inspection services? If there was a failure of inspection, in other words, if a private inspection company was not being thorough, that would become known. The reputation of that company, which is its primary asset, would be harmed. No longer would we trust that company when it says the beef is safe. The company would likely fail, and someone else would provide these services. We can’t really do this with government.

Markets can provide a very strong form of regulation, if we let them work.

To some extent, this happened during the financial crises of 2008. The credit rating services were not owned by government, but they had a government-granted monopoly on providing credit rating services, and many say that their failure to produce accurate assessments of the risks of securities was pivotal in contributing to the collapse. Might it have been different if there was a free market for credit rating services? We don’t really know.

This government shutdown is an opportunity to realize what we really need government to do, what can be better done by the private sector, and maybe even what doesn’t need to be done at all.

Robosquirrel

It’s a tough battle, though. Last week Nancy Pelosi said there was nowhere to cut. How about this: $325,000 was spent on a robotic squirrel named “RoboSquirrel.” This National Science Foundation grant was used to create a realistic-looking robotic squirrel for the purpose of studying how a rattlesnake would react to it. Can’t we cut that? I’m sure Pelosi would say “what would the scientific researchers do if we didn’t fund this program?” As Hazlitt tells us, they’d do something else. Hopefully something else that the market — that is, you and I — value enough to buy it because we want it, not because government taxed us to pay for it. But we can’t see that right now, while we do see robosquirrel. The seen and unseen, again.

I don’t know. Maybe I shouldn’t be so harsh in my criticism. We did learn that a successful rattlesnake attack on a squirrel involves three steps. First, striking and hitting a prey animal, and that’s usually from only about 10 inches away. Then envenomating the prey animal, and the animal may attempt to escape. Then the rattlesnake must relocate the envenomated prey animal after it succumbs to the venom.

Envenomating. I’d never heard that word before. Maybe we really need to get government back to work after all.

Regulations, even well-intentioned, may be dangerous

A regulation intended to save children resulted in many more deaths. The reason is the lulling effect.

Do well-intentioned regulations ever produce the opposite effect? In 1972 the Food and Drug Administration introduced regulations requiring child-resistant bottlecaps for aspirin and some other medications. The goal was to reduce aspirin poisonings among children. Surely this is a laudable goal. If government has the capability to reduce these tragedies, why wouldn’t we implement laws or regulations?

When W. Kip Viscusi looked at data, he found something striking and very sad: After the implementation of the regulations, there was no significant impact on the rate of aspirin poisonings. The intended goal of the regulation was not met.

But here’s the real problem, writes Viscusi: “… there has been an alarming, upward shift in the trend of analgesic ingestion rates since 1972. The source of this pattern appears to be attributable to a general reduction in parental caution with respect to such medicines, which has had an adverse spillover effect on unregulated products. The economic mechanisms involved can be best understood by considering the nature of individuals’ response to regulatory protection.”

Because of the response of people to the regulations, Viscusi estimates an additional 3,500 children died each year. This is a regulation intended to protect children.

The research is presented in The Lulling Effect: The Impact of Child-Resistant Packaging on Aspirin and Analgesic Ingestions. I’ve excerpted from the conclusion:

Analgesic poisoning rates for children under age 5 escalated from 1.1 per 1,000 in 1971 to 1.5 per 1,000 in 1980. Even after taking into account increases in analgesic sales, 47 percent of this increase is attributable to an unexplained upward shift in the analgesic poisoning rate beginning in 1972. The coupling of the absence of any shift in the trend of aspirin poisoning rates with an upsurge in analgesic poisoning rates is consistent with the hypothesis that there is a significant indivisibility in safety precautions. Moreover, absence of a significant effect of safety caps on aspirin poisonings and the 47 percent unexplained shift in analgesic poisonings suggests that the impact of the regulation on balance was counterproductive, leading to 3,500 additional poisonings of children under age 5 annually from analgesics.

It is possible but unlikely that such a strong impact could emerge from fully rational consumer decisions. Moreover, this effect is not only large but reasonably widespread, as I have identified a similar pattern for prescription drugs, and for cleaning and polishing agents. A more likely explanation for these dramatic effects is that consumers have been lulled into a less-safety-conscious mode of behavior by the existence of safety caps. The presumed effectiveness of the technological solution may have induced increased parental irresponsibility.

A variety of regulatory efforts have sought to reduce individual risks through mandated technological changes. These measures will be effective if individual actions remain unchanged. In practice, these regulations will produce a lulling effect on consumer behavior because the perceived need for precautions will decline, potentially producing adverse spillover effects on the safety of other products. The strength of these impacts should highlight the importance of taking individual behavior into account when designing regulations intended to promote safety.

So we see regulations lulling people into assuming safety, assuming that all is well, but danger is actually increased.

Do you remember Bernie Madoff? He operated in the highly-regulated securities investment industry, yet he was able to steal billions from his clients over a long period of time. Did his clients assume that regulations would keep their money safe? I’m sure that many did.

Recently John Stossel has an episode of his television show devoted to the subject of regulations. He said: “America drowns in law. There are 175,000 pages of federal regulations that you must obey, or some lawyer can wreck your life. For every pound of good the regulations do, they do a ton of harm. 175,000 pages alone strangles life.”

Stossesl also recently wrote: “EBay’s business model is also threatened by fraud. How can a buyer trust that, say, a seller will actually deliver a $25 pack of baseball cards and that the cards will be what he claims they are? In theory, you could sue; but in practice, our legal system is too slow and costly for that. So eBay came up with self-regulation: The buyers rate the sellers.”

When we look to government to solve problems, we can end up with systems that actually make the problem worse. When trading baseball cards, that’s not good. When investing for retirement, regulatory failure is very harmful. But when trying to protect children from poisoning, and then actually causing more deaths — that’s a man-made disaster of the highest order.

USA vs. You: The problem of overcriminalization

Events in recent months have justifiably caused Americans to ask whether a powerful, activist, and interventionist government and bureaucracy is good to have. Those who have been looking at overcriminalization, however, have known that government and regulatory agencies have been targeting and oppressing Americans for a long time. And it’s getting worse.

USA vs. You cover

The new website USAvsYOU.com holds useful information for Americans to know about how law has changed in recent years, compared to how it operated for centuries before. The booklet available for reading is titled USA vs. You: The flood of criminal laws threatening your liberty.

As an example, here is a troubling trend:

In many criminal laws, the “guilty mind” requirement has been removed or weakened. This means people can go to prison regardless of whether they intended to break the law or knew their actions were in violation of the law.

Traditionally, crimes had two components: (l) mens reu (guilty mind), and (2) actus reus (bad act).

Today, many criminal laws and regulations have insufficient or no mens rea (guilty mind) requirement — meaning, a person need not know that his or her conduct is illegal in order to be guilty of the crime.

An example story is the following:

THE CRIME: Rescuing a baby deer

Jeff Counceller, a police officer, and his wife Jennifer spotted an injured baby deer on their neighbor’s porch. Instead of turning a blind eye to the dying fawn, the Councellers took the deer in and nursed it back to health.

An Indiana Conservation Officer spotted the fawn (named Dani) in the Councellers’ yard — and promptly charged the couple with unlawful possession of a deer, a misdemeanor offense. Fortunately for her, the day that “Little Orphan Dani” was to be euthanized by the state, the deer escaped into the wild. Due to public outrage, the government dropped the charges.

The website and booklet is a product of Heritage Foundation and it partners such as the American Civil Liberties Union. Heritage has been covering the issue of overcriminalization here. It describes the problem as this: “Overcriminalization describes the trend to use the criminal law rather than the civil law to solve every problem, to punish every mistake, and to compel compliance with regulatory objectives. Criminal law should be used only if a person intentionally flouts the law or engages in conduct that is morally blameworthy or dangerous.”

We have problems like this in Wichita, believe it or not. An ordinance passed by the Wichita City Council in 2010 might ensnare anyone visiting city hall, if they happen to have a broad-tip marker in their purse or briefcase:

Animated marker

“Possession of Graffiti Implements Prohibited in Public Places. It is unlawful for any person to have in his/her possession any graffiti implement while in, upon or within one hundred (100) feet of any public facility, park, playground, swimming pool, skate park, recreational facility, or other public building owned or operated by the city, county, state, or federal government, or while in, under or within one hundred (100) feet of an underpass, bridge, abutment, storm drain, spillway or similar types of infrastructure unless otherwise authorized.”

“Graffiti implements” are defined broadly earlier in the ordinance.

If you’re thinking about a career in taxicab driving, be advised that the city has ordinances punishing you if you’re found to have violated these standards: “Fail to maintain their personal appearance by being neat and clean in dress and person” and “Fail to keep clothing in good repair, free of rips, tears and stains.”

REAP: We’ll plan for you, like it or not

Democracy is the theory that the common people know what they want, and deserve to get it good and hard.
– H.L. Mencken

We’ve learned that the government planners will plan for you, whether or not you want it. Despite having voted against participation, two Kansas counties are still included in a regional planning consortium.

South Central Kansas Prosperity

The new website thinktomorrowtoday.org promotes and supports the sustainable communities government planning process in South-Central Kansas. The planning effort has been rebranded as “South Central Kansas Prosperity.”

In the logo, on a map, and in narrative, Butler and Sumner counties are listed as participants. But these newspaper headlines say something else about what the elected officials in these counties thought about joining the plan:

Sumner County isn’t on board with fed’s sustainable communities planning grant

Sumner County isn’t on board with fed’s sustainable communities planning grant (Wichita Eagle, July 30, 2012): “One of the counties served by a sustainable communities planning grant recently declined to be a partner in the effort, expressing concerns about federal intrusion in local government.”

Butler County decides not to support REAP planning grant

Butler County decides not to support REAP planning grant (El Dorado Times, August 23, 2012): “The issue at the center of the Butler County Commission’s discussion about a sustainable communities planning grant was local control.”

I can understand why these counties decided to opt out of the planning process and why two Sedgwick County Commissioners voted against participation.

Cato Institute Senior Fellow Randal O’Toole, in his book The Best-Laid Plans: How Government Planning Harms Your Quality of Life, Your Pocketbook, and Your Future, explains the danger and harm of government plans. I remember two passages in particular:

Somewhere in the United States today, government officials are writing a plan that will profoundly affect other people’s lives, incomes, and property. Though it may be written with the best intentions, the plan will go horribly wrong. The costs will be far higher than anticipated, the benefits will prove far smaller, and various unintended consequences will turn out to be worse than even the plan’s critics predicted.

And this:

The worst thing about having a vision is that it confers upon the visionary a moral absolutism: only highly prescriptive regulation can ensure that the vision overcomes an uncaring populace responding to a free market that planners do not really trust. But the more prescriptive the plan, the more likely it is that the plan will be wrong, and such errors will prove extremely costly for the city or region that tries to implement the plan.

We see the vision of moral absolutism on display: Despite two counties voting against participation, their overseers will, nonetheless, create a plan for them.

It’s for their own good, after all.

Language makes a difference

No longer is it “Sustainable Communities.” Now it’s “South Central Kansas Prosperity Plan.” Either way, the program is still centralized government planning, with great potential to harm our economy and liberties.

South Central Kansas Prosperity Plan

The newly-renamed planning initiative has a new website set to launch in a few days — Let’s Talk Prosperity.

But no matter how politicians and bureaucrats dress it up, we need to remember the roots of this program. It took from 1987 to 2012, but Sedgwick County actually adopted the language of the United Nations regarding sustainability.

Those critical of sustainability planning are concerned that engaging in the practice has the potential to import harmful policies and practices originating from the United Nations. Critics of these critics say this is nonsense and overreacting. Tin-foil hat stuff, they say. Examples as reported in the Wichita Eagle come from Commissioner Dave Unruh and Commission Chair Tim Norton:

Unruh said he sees the grant simply as an “effort to make decisions about our future for us and our future generations that will save money, conserve resources and be the best solutions for all the folks in our region.” …

Norton said he sees the grant as a way to “look to the future, try to figure out best possible outcomes and make decisions today that will be good for tomorrow.”

“We’re all in this together. You may not like the federal government. You may not like the state government. You may not even like the local government. But I like being at the table and being involved in the future.”

He dismisses any connection to Agenda 21.

“It was a non-binding agreement passed during the first Bush era,” he said of former president George H.W. Bush. “I don’t rail on President Bush because it happened on his watch. I’m not twitchy about it. I’m not worried about it.”

It’s instructive to notice, however, that the language Sedgwick County uses when considering sustainability comes directly from the United Nations. General Assembly Resolution 42/187: Report of the World Commission on Environment and Development holds this language: “Believing that sustainable development, which implies meeting the needs of the present without compromising the ability of future generations to meet their own needs, should become a central guiding principle of the United Nations, Governments and private institutions, organizations and enterprises.” (emphasis added)

Sedgwick County’s Sustainability Page holds this: Definition of Sustainability for Sedgwick County … Meeting the needs of the present without compromising the ability of future generations to meet their needs … (emphasis added)

Sedgwick County left out the word “own,” but otherwise the language is identical. This definition was repeated on the county’s 2012 Employee Sustainability Survey.

The Sedgwick County page — and other county documents — mention economic development, environmental protection, institutional and financial viability, and social equity as “the four core factors that Sedgwick County considers when making community policy and program management decisions.” These goals are often mentioned in Agenda 21 documents, especially social equity.

The heavy hand of Kansas regulation

Martini glass, half full, with a single olive

Regulation run amok in Wichita, from Anne Meyer of KWCH 12 Eyewitness News:

(Wichita, KS)— “Two for one” drinks or “half price”. Customers may not know the difference between the two on their bill, but those words matter when it comes to Kansas liquor laws. One phrase is legal, the other is not.

One Wichita bar owner is trying to fight that.

Shooters on South Hydraulic is known for attracting pool players. Now Owner Paul Weigand is getting attention from the state for violating Kansas’ liquor law.

“I’m just not ready to pay that fine yet, I want a judge to tell me the difference between two for one and half price,” Weigand said.

Continue reading and view the video at Words matter when it comes to Kansas liquor law.

Kansas House votes for property rights

state-historic-preservation-environs

Today the Kansas House of Representatives passed a bill that will protect property owners from harm simply because their property is near a historic property.

The bill is HB 2118, as described by its supplemental note:

HB 2118 would delete provisions related to environs restrictions from historic property reviews.

Under current law, proposed projects within 500 feet of the boundaries of a historic property located in a city or within 1,000 feet of the boundaries of a historic property located in the unincorporated portion of a county are subject to historic design and appearance restrictions.

The bill would limit historic reviews conducted under the act to proposed projects that would directly involve, damage, or destroy a property included in the National Register of Historic Places or the State Register of Historic Places.

The bill passed today by a vote of 99 to 24. Those voting against this bill — those who wish to keep the current restrictions on private property rights — were Alcala, Ballard, Becker, Bridges, Burroughs, Carlin, Crum, Davis, Dillmore, Grant, Henderson, Henry, Hill, Kuether, Lane, Meier, Pauls, Ruiz, Sloop, Tietze, Weigel, Whipple, Wilson, and Winn.

Wichita licenses the striping of parking lots

Next week the Wichita City Council will consider licensing and regulating the painting of stripes in parking lots. How, may I ask, has civilization advanced without the benefit of such regulation?

The agenda report narrative states “The proposed ordinance does not set up permit or inspection processes; it would be complaint-driven enforcement through the ADA Coordinator.”

But earlier, the same report reads: “The proposed ordinance establishes a licensing and enforcement system applicable to persons and businesses catering to the public when they modify the construction or layout of parking spaces they make available to the public.”

The licensure requirement in the ordinance states: “Any person or entity, whether as principal, agent, or employee, engaged in the business of striping a parking lot in the City of Wichita shall be required to obtain a striping contractor’s license from the City Engineer’s Office. When striping is performed by or under the direct supervision of a property owner or renter, or such owner’s or renter’s agent, such individual shall be deemed to be a licensed striping contractor for the purposes of striping such property.”

Before receiving such a license, applicants must post a surety bond of $5,000, approved by the city attorney. Then the contractor must pass a comprehensive exam on ADA standards for accessible parking. There’s an application fee of $100, which appears to be payable annually.

And, this ordinance is open-ended: “The City Engineer’s Office shall develop any additional rules and regulations necessary for the issuance or annual renewal of striping contractors’ licenses.”

Before painting stripes on a parking lot, notice must be given, according to the proposed ordinance: “When striping begins, the striping contractor shall post a conspicuous notice at the location to be striped, to remain conspicuous for no less than seven days after striping is completed. The notice shall be in a form prescribed by the ADA Coordinator and shall contain, at a minimum, the striping contractor’s name and license number or, if the striping contractor is the property owner or renter, the notice shall contain that entity’s contact information.”

Violators, believe it or not, can face imprisonment: “Any person violating any of the provisions of this chapter shall, upon conviction, be punished by a fine of not more than one thousand dollars or by imprisonment for not more than thirty days or by both such fine and imprisonment.”

I wonder: Is it a problem in Wichita that there aren’t enough parking spots for disabled people, or that the parking spots are too narrow? (The ordinance specifies the width of the parking stalls, and also the width of adjacent access isles.)

Can’t businesses decide for themselves how many parking spots they want to reserve for their handicapped customers? Or must government decide for us, independently of the type of business? Isn’t it possible that a hospital and a ballet studio might have different needs for handicapped parking, and that each is best equipped to determine that number?

To top it off: It appears that these regulations are part of a settlement agreed to by the City of Wichita in response to a lawsuit filed against the city. For the city’s sins, we all suffer with these needless and overbearing regulations.

Wichita parking lot striping standards and enforcement

Obama’s regulatory extremism

In the introduction to his book Democracy Denied, Phil Kerpen gives us a history lesson on the grab for executive power by presidents through the use of “signing statements.”

Elizabeth Drew made the case against Bush’s abuse of executive power in a lengthy New York Review of Books piece called “Power Grab.” She specifically highlighted Bush’s use of signing statements (a technique to object to elements of a law while signing it, and refusing to enforce those elements), the detention of foreign combatants at Guantanamo, and warrantless wiretaps. She concluded that Bush was a tyrant.

Kerpen explains how the view from the oval office can make one forget campaign promises:

Even the Bush practice that raised the most ire — the use of signing statements — was embraced by Obama just weeks after he took office, when he said: “it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for presidential signature includes provisions that are subject to well-founded constitutional objections.” Contrast that with what Obama had said about signing statements on the campaign trail: “This is part of the whole theory of George Bush that he can make laws as he is going along. I disagree with that. I taught the Constitution for 10 years. I believe in the Constitution and I will obey the Constitution of the United States. We are not going to use signing statements as a way of doing an end run around Congress.”

Not that Obama alone takes criticism for exercising presidential power contrary to the actions of Congress, as he describes the auto industry bailout in the last days of the presidency of George W. Bush. A bill didn’t make it through Congress, but Bush “repurposed” TARP funds — intended for banks — and used them for an auto bailout in the amount of $17.4 billion.

It is this use of executive power and agencies to bypass the will of people — as expressed through Congress — that is detailed in a book authored by Phil Kerpen and published at this time last year: Democracy Denied: How Obama is Ignoring You and Bypassing Congress to Radically Transform America — and How to Stop Him.

Kerpen’s website is philkerpen.com, and it features excerpts from the book along with a theatrical trailer.

Kerpen explains the problem by describing a solution: The Regulations from the Executive in Need of Scrutiny Act, or REINS Act. This proposed law would require any major regulatory action to be approved by Congress and receive the president’s signature. Kerpen writes: “We have regulators who are effectively writing and executing their own laws. The major policy decisions that affect every aspect of our economic lives are moving forward without consent of the people’s legitimately elected legislative branch.”

The problem is that often Congress passes generic laws and leaves it to regulatory agencies to write the rules that implement the law. By requiring Congressional and Presidential approval of major regulations, agencies will be accountable to the current Congress, and lawmakers will have a chance to ensure that actual regulations are consistent with the intent of enabling legislation.

Cap-and-trade energy legislation provides an example of Kerpen’s thesis, which is “how the Obama administration was disregarding Congress and the American people to accomplish its objectives through regulatory backdoors.” The legislation passed the House, but couldn’t pass the Senate. So what happened next? Kerpen explains Obama’s detour around Congress:

Just to show you how unfazed the Obama administration was by the political defeat of cap-and-trade, consider what’s on page 146 of Obama’s 2012 budget: “The administration continues to support greenhouse gas emissions reductions in the United States in the range of 17 percent below 2005 levels by 2020 and 83% percent by 2050.” Those just happen to be the same levels required by the failed Waxman-Markey cap-and-trade bill. Obama is telling the EPA to just pretend that the bill passed and regulate away.

In fact Obama’s EPA was already moving full steam ahead to implement a global warming regulatory scheme that could even be more costly than cap and trade — without the approval of the American people and without so much as a vote in Congress.

The remainder of the chapter details some of the ways EPA is accomplishing this backdoor regulation.

The Patient Protection and Affordable Care Act, otherwise known as ObamaCare, is another topic Kerpen covers where regulation is replacing lawmaking by Congress:

Nancy Pelosi was right in more ways then she realized when she infamously said “We have to pass the bill so that you can find out what is in it, away from the fog of the controversy.” Not only was the more than 2,000-page bill negotiated in secret and so densely complex that few humans could understand it, it also deferred most of the really difficult and important decisions to the regulators, including dozens of brand-new boards, committees, councils, and working groups. So even after ObamaCare had been passed there was no way to know what was really in it until the bureaucracy was assembled and began issuing regulations.

Kerpen describes the bill that passed as not “finished legislation,” and is now being interpreted by bureaucrats, the most powerful being HHS Secretary Kathleen Sebelius. Her office is now, according to Kerpen, “issuing a whole string of official guidelines and regulations that attempt to ‘correct’ the draft law, often by asserting things that the law doesn’t actually say.”

Other chapters describe regulation of the internet (net neutrality), card check, the Dodd-Frank financial regulations, and energy regulation. All of these represent the Obama administration either ignoring Congress or creating vast new powers for itself. The chart Kerpen created shows the plays being made.

Obama regulatory extremismKerpen’s chart of Obama regulatory extremism. Click for larger version.

What about regulatory reform? Obama’s doing that. In January he wrote in the Wall Street Journal: “We’re looking at the system as a whole to make sure we avoid excessive, inconsistent and redundant regulation. And finally, today I am directing federal agencies to do more to account for — and reduce — the burdens regulations may place on small businesses.”

In a chapter titled “The Back Door to the Back Door: Phony Regulation Reform” Kerpen explains that this promise or regulatory reform by the president is a sham. Kerpen describes the executive order that implements regulatory review this way: “The new executive order is the regulatory parallel to the Obama administration’s strategy on federal spending, which is to spend at astonishing, record rates and rack up trillions of dollars in deficits while paying lip service to fiscal responsibility by establishing a fiscal commission.”

And in a gesture of true public service, Kerpen introduces us to Cass Sunstein, the man who is heading the Office of Information and Regulatory Affairs (OIRA), the agency that will be conducting the purported review of regulations. A quote from Sunstein: “In what sense is the money in our pockets and bank accounts fully ‘ours’? Did we earn it by our own autonomous efforts? Could we have inherited it without the assistance of probate courts? Do we save it without the support of bank regulators? Could we spend it if there were no public officials to coordinate the efforts and pool the resources of the community in which we live?”

Kerpen sums up Sunstein’s political philosophy of central planning:

The idea of Sunstein’s “nudge” philosophy is that the fatal conceit of central economic planning can somehow succeed if it is subtly hidden from view. Sunstein thinks that if he imposes regulations that steer our choices instead of outright forcing them, he can achieve desirable social objectives. … Given Suinstein’s views and the central role he will have in reshaping federal regulation to be “more effective,” we need to be deeply concerned that any changes that come out of the process may make regulation less apparent, but no less costly — and more effective at crushing genuine individual choice and responsibility and substituting the judgment (even if by a nudge instead of a shove) of a central planner.

The challenge, Kerpen writes in his conclusion to the book, “is to change the political calculus to elevate regulatory fights to the appropriate level in the public consciousness. We must make sure the American people understand that a disastrously bad idea becomes even worse when it’s implemented by backdoor, unaccountable, illegitimate means.”

Kerpen recommends passage of the REINS Act as a way to restore accountability over regulatory agencies to Congress. The two messages Congress needs, he writes, are: “You can delegate authority, but you can never delegate responsibility,” and “If you fail to stop out-of-control regulators, voters will hold you accountable.”

Dangers of texting while driving: Are laws the solution?

There’s no doubt that texting while driving is dangerous, as illustrated in this KAKE Television news story. But the government solution — passing laws against texting while driving — haven’t worked, and some states have experienced an increase in crashes after implementing texting bans.

A news release from the Highway Loss Data Institute summarizes the finding of a study: “It’s illegal to text while driving in most US states. Yet a new study by researchers at the Highway Loss Data Institute (HLDI) finds no reductions in crashes after laws take effect that ban texting by all drivers. In fact, such bans are associated with a slight increase in the frequency of insurance claims filed under collision coverage for damage to vehicles in crashes. This finding is based on comparisons of claims in 4 states before and after texting ban, compared with patterns of claims in nearby states.”

The study does not claim that texting while driving is not dangerous. Rather, the realization by drivers that texting is illegal may be altering their behavior in a way that becomes even more dangerous than legal texting. Explains Adrian Lund, president of both HLDI and the Insurance Institute for Highway Safety: “If drivers were disregarding the bans, then the crash patterns should have remained steady. So clearly drivers did respond to the bans somehow, and what they might have been doing was moving their phones down and out of sight when they texted, in recognition that what they were doing was illegal. This could exacerbate the risk of texting by taking drivers’ eyes further from the road and for a longer time.”

When Kansas passed its texting ban in 2010, newspapers editors praised the legislature and Governor Mark Parkinson for passing the law. In an editorial, the Wichita Eagle’s Rhonda Holman wrote “But it’s nice to know the state finally has a law against this brainless and dangerous practice.” In his written statement, Parkinson said “I am pleased to sign this legislation that will encourage more aware drivers and save Kansas lives.”

While Kansas was not included in the HLDI study, there’s no reason to think that Kansas will experience anything different from the states that were studied: Kansas drivers may be under greater risk of being in a crash after the passage of this law.

Paradoxically, higher fines and stricter enforcement of this law will encourage the dangerous law-evading texting behavior.

Texting while driving will be a subject on the KAKE Television public affairs program This Week in Kansas to be aired Sunday at 9:00 am. Dr. Alex Chaparro of Wichita State University will appear to present his findings on the dangers of texting while driving and what can be done to improve safety.

Special interests will capture south-central Kansas planning

Special interest groups are likely to co-opt the government planning process started in south-central Kansas as these groups see ways to benefit from the plan. The public choice school of economics and political science has taught us how special interest groups seek favors from government at enormous costs to society, and we will see this at play over the next few years.

Sedgwick County has voted to participate in a HUD Sustainable Communities Regional Planning Grant. While some justified their votes in favor of the plan because “it’s only a plan,” once the planning process begins, special interests plot to benefit themselves at the expense of the general public. Once the plan is formed, it’s nearly impossible to revise it, no matter how evident the need.

An example of how much reverence is given to government plans comes right from the U.S. Supreme Court in the decision Kelo v. New London, in which the Court decided that government could use the power of eminent domain to take one person’s property and transfer it to someone else for the purposes of economic development. In his opinion for the Court, Justice Stevens cited the plan: “The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community.” Here we see the importance of the plan and due reverence given to it.

Stevens followed up, giving even more weight to the plan: “To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.”

To Stevens, the fact that the plan was comprehensive was a factor in favor of its upholding. The sustainable communities plan, likewise, is nothing but comprehensive, as described by county manager Bill Buchanan in a letter to commissioners: “[the plan will] consist of multi-jurisdictional planning efforts that integrate housing, land use, economic and workforce development, transportation, and infrastructure investments in a manner that empowers jurisdictions to consider the interdependent challenges of economic prosperity, social equity, energy use and climate change, and public health and environmental impact.”

That pretty much covers it all. When you’re charged with promoting economic prosperity, defending earth against climate change, and promoting public health, there is no limit to the types of laws you might consider.

Who will plan?

The American Planning Association praised the Court’s notice of the importance of a plan, writing “This decision underscores the importance for a community to have a comprehensive development plan formulated through a democratic planning process with meaningful public participation by everyone.”

But these plans are rarely by and for the public. Almost always the government planning process is taken over and captured by special interests. We see this in public schools, where the planning and campaigning for new facilities is taken over by architectural and construction firms that see school building as a way to profit. It does not matter to them whether the schools are needed.

Our highway planning is hijacked by construction firms that stand to benefit, whether or not new roads are actually needed.

Our planning process for downtown Wichita is run by special interest groups that believe that downtown has a special moral imperative, and another group that sees downtown as just another way to profit at taxpayer expense. Both believe that taxpayers across Wichita, Kansas, and even the entire country must pay to implement their vision. As shown in Kansas and Wichita need pay-to-play laws the special interests that benefit from public spending on downtown make heavy political campaign contributions to nearly all members of the Wichita City Council. They don’t have a political ideology. They contribute only because they know council members will be voting to give them money.

In Wichita’s last school bond election, 72 percent of the contributions, both in-kind and cash, was given by contractors, architects, engineering firms and others who directly stand to benefit from new school construction, no matter whether schools are actually needed. The firm of Schaefer Johnson Cox Frey Architecture led the way in making these contributions. It’s not surprising that this firm was awarded a no-bid contract for plan management services for the bond issue valued at $3.7 million. This firm will undoubtedly earn millions more for those projects on which it serves as architect.

The special interest groups that benefit from highway construction: They formed a group called Economic Lifelines. It says it was formed to “provide the grassroots support for Comprehensive Transportation Programs in Kansas.” Its motto is “Stimulating economic vitality through leadership in infrastructure development.”

A look at the membership role, however, lets us know whose economic roots are being stimulated. Membership is stocked with names like AFL-CIO, Foley Equipment Company, Heavy Constructors Association of Greater Kansas City, Kansas Aggregate & Concrete Associations, Kansas Asphalt Pavement Association, Kansas Contractors Association, Kansas Society of Professional Engineers, and PCA South Central Cement Promotion Association. Groups and companies like these have an economic interest in building more roads and highways, whether or not the state actually needs them.

The planners themselves are a special interest group, too. They need jobs. Like most government bureaucrats, they “profit” from increasing their power and sphere of influence, and by expansion of their budgets and staffs. So when Sedgwick County Commissioner Jim Skelton asks a professional planner questions about the desirability of planning, what answer does he think he will get? It’s not that the planners are not honest people. But they have a vested economic and professional interest in seeing that we have more government planning, not less.

And we have evidence that planners watch out for themselves. It is not disputed that this planning grant benefits Regional Economic Area Partnership (REAP). Sedgwick County Commissioner Richard Ranzau says that John Schlegel, Wichita’s Director of Planning, told him that “acceptance of this grant will take REAP to another level, because right now they are struggling, and this will help plot the course for REAP.” He said that REAP, which is housed at the Hugo Wall School of Public Affairs at Wichita State University, needs to expand its role and authority in order to give it “something to do.”

We see that REAP is another special interest group seeking to benefit itself. In this case, our best hope is that REAP engages in merely make-work, that the plan it produces is put on a shelf and ignored, and that the only harm to us is the $1.5 million cost of the plan.

By the way, did you know that Sedgwick County Commissioner Dave Unruh, who voted in favor of the plan that benefits REAP, is now chairman of REAP? Special interest groups know how to play the political game.

Municipal stormwater regulation on White House agenda

Some scoff at those who raise warnings about overreaching federal regulation. But even though the national economy is suffering and we are drowning in debt, the administration of President Barack Obama can find time to meddle in the regulation of municipal stormwater.

Following is an email from NACo, the National Association of Counties, to county commissioners, presumably across the nation. The email, which presumes that “green” stormwater management practices are most desirable, asks for suggestions from commissioners to present at a national conference on the topic, hosted by the White House.

The agenda for the conference is White House Conference Municipal Stormwater Infrastructure: Going From Grey to Green. Following is the email commissioners received.

From: Julie Ufner [mailto:jufner@naco.org]
Subject: Green Infrastructure Information Request

Next week, I will be representing NACo at the White House’s Stormwater Infrastrucutre [sic] event. The White House asked participants to be prepared to discuss the questions below. If you have any comments or responses to the questions, please feel free to forward those responses no later than COB on Wednesday, September 19th.

1. What do you see as the most significant barriers to the wider use of green infrastructure practices to manage municipal stormwater?

2. What steps should federal agencies, communities, or others take to promote the use of green infrastructure practices in municipal stormwater management?

3. Are there specific infrastructure practices, or categories of practices, that you believe are most effective, provide the greatest benefits, or are most easily implemented?

4. Are there funding strategies for municipal green infrastructure that you have employed and would recommend?

Thank you in advance for any comments you may have.

Julie Ufner
Associate Legislative Director
Environment, Energy and Land Use
National Association of Counties
202-942-4269
jufner@naco.org

Republicans recognize overcriminalization

A section of the platform agreed to at the Republican National Convention expresses concern over the rise of overcriminalization:

“The resources of the federal government’s law enforcement and judicial systems have been strained by two unfortunate expansions: the over-criminalization of behavior and the over-federalization of offenses. The number of criminal offenses in the U.S. Code increased from 3,000 in the early 1980s to over 4,450 by 2008. Federal criminal law should focus on acts by federal employees or acts committed on federal property — and leave the rest to the States. Then Congress should withdraw from federal departments and agencies the power to criminalize behavior, a practice which, according to the Congressional Research Service, has created ‘tens of thousands’ of criminal offenses. No one other than an elected representative should have the authority to define a criminal act and set criminal penalties. In the same way, Congress should reconsider the extent to which it has federalized offenses traditionally handled on the State or local level.”

Overcriminalization has risen to become a serious threat to the freedom and liberty of citizens, placing increasing and arbitrary power in the hands of federal officials. According to The Heritage Foundation, overcriminalization is characterized by these factors:

  1. The use of strict liability crimes (i.e., offenses that dispense with the requirement that a person act with a “guilty mind,” however defined) to outlaw conduct, particularly in commercial and regulatory fields;
  2. The passage of several laws applicable to the same conduct, which enables prosecutors to multiply charges and thereby threaten a person with a severe term of imprisonment if he does not accept a plea bargain;
  3. The delegation to administrative agencies of the responsibility for filling in the details of a substantive criminal law, which thereby vests in the agency responsible for enforcing the law the power also to define its terms; and
  4. Enforcing through the criminal law conduct that, if it is to be enforced by the government at all, should be enforced through administrative or civil mechanisms.

The first item should be particularly troubling to citizens, as it removes one of the elements necessary to convict someone of a crime — that the person intended to commit a crime. The Heritage Foundation paper Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law explains:

“A core principle of the American system of justice is that individuals should not be subjected to criminal prosecution and conviction unless they intentionally engage in inherently wrongful conduct or conduct that they know to be unlawful. Only in such circumstances is a person truly blameworthy and thus deserving of criminal punishment. This is not just a legal concept; it is the fundamental anchor of the criminal justice system.”

After noting the 4,450 federal laws and estimating that tens of thousands more are located in federal regulations, the authors explain the problem regarding intent:

“But something fundamental is often lacking from this tidal wave of penal provisions: meaningful mens rea requirements. Mens rea is a Latin term describing a culpable mental state, without which there can be no crime. Lamentably, Congress has enacted scores of laws with weak or no mens rea requirements, the result of a legislative process that is haphazard at best and arbitrary at worst. In doing so, it has eroded the principle of fair notice beyond recognition and dangerously impaired the justification for criminal punishment that has for centuries been based on an individual’s intent to commit a wrongful act.”

While overcriminalization is often seen as a federal problem, it infects states and cities, too. Recently the Wichita City Council passed a sign ordinance that has the characteristics of overcriminalization. A key provision is this: “The existence of a temporary sign in the right of way or on public property directing attention to a person is prima facie evidence that such person has caused the placement of such sign in the right of way or on public property.”

This means that the mere existence of a sign promoting a candidate being in the wrong place is evidence that the candidate is guilty of a crime. No matter how well a candidate trains staff and volunteers on proper sign placement, if a sign is in the wrong place, the candidate is presumed guilty. It’s difficult to defend against this presumption.

The National Association of Criminal Defense Lawyers has created a series of short videos that explain more about overcriminalization. The first, titled “Overcriminalization: Criminalizing the Everyday” is presented below, and additional titles may be viewed here.

Kansas counties decline sustainable communities planning

Two of the five Kansas counties that were asked to participate in a sustainable communities planning grant have decided not to join the effort. Of the five counties (Sedgwick, Butler, Reno, Harvey and Sumner), Butler and Sumner county commissioners voted against participation.

The REAP sustainable communities planning process is designed to, in the words of REAP, “create a long-term regional plan for ensuring the health and productivity of our local economy. The grant will support community engagement to identify common values and goals, followed by local and regional efforts to enhance economic development, connect people with jobs, reduce housing and transportation costs, ensure public safety, and use of limited public funds efficiently in the years ahead.”

Critics of government planing processes such as this are concerned that the planning process would subject us to additional control by the federal government. These are the so-called strings that are thought to accompany federal grants.

(For those who are interested in what strings look like, here’s an example of one that is relatively innocuous. A HUD document titled Program Policy Guidance OSHC-2012-01 explains “Applicants that reach a certain qualifying score under the Regional Planning Grant Program or the Community Challenge Grant Program will receive PSS designation. PSS designation provides your entity access to bonus points for selected other HUD grant programs, technical assistance, and other capacity building opportunities that will strengthen future efforts to apply to the program.” REAP has been awarded this status, as it complied with this “string.”)

When the Wichita City Council deliberated its endorsement of and participation in this program, Council Member James Clendenin (district 3, southeast and south Wichita), asked a series of questions of Joe Yager, chief executive officer of REAP, as to whether these concerns were true. Yager said no, there are no strings accompanying the grant. But what about after the planning process is over in three years? Will the plan be forced upon us, Clendenin asked?

Yager answered no, that local governing bodies would have to vote to implement any of the ideas or programs that resulted from the plan. Nothing will be forced upon us, nothing is mandated, he said. We wold simply have a “toolkit” of things to use.

This view or attitude — that local elected officials will protect us from the harmful elements that will emerge from the plan — is dangerously naive. First, in his short time in office, Clendenin has regularly voted for expansions of government planning, power, and spending. He doesn’t stand out from most other council members, not even the Republican members (except for one), as they also regularly vote for these things.

Second, we know that after the plan is complete there will be the argument that since we have the plan, that since we spent three years and $2.2 million on the process, we might as well go ahead and implement it.

Then, there will be the future grants and undoubtedly increased local spending required to implement the plan. There is now research that looks at the effect of federal grants on future local spending. In their research paper titled Do Intergovernmental Grants Create Ratchets in State and Local Taxes? Testing the Friedman-Sanford Hypothesis economists Russell S. Sobel and George R. Crowley concluded this: “Federal grants often result in states creating new programs and hiring new employees, and when the federal funding for that specific purpose is discontinued, these new state programs must either be discontinued or financed through increases in state own source taxes.”

The authors cautioned: “Far from always being an unintended consequence, some federal grants are made with the intention that states will pick up funding the program in the future.” See Federal grants increase future local spending.

Sedgwick County Commissioner Richard Ranzau has researched the sustainable development movement, and has written a paper explaining what he found.

Randal O’Toole, Senior Fellow at the Cato Institute, has written extensively on government planning, especially regarding land use and transportation. His op-ed on this topic follows:

The vast majority of Americans, surveys say, aspire to live in a single-family home with a yard. The vast majority of American travel — around 85 percent — is by automobile. Yet the Obama administration thinks more Americans should live in apartments and travel on foot, bicycle, or mass transit.

To promote this idea, the administration wants to give the south central Regional Economic Area Partnership (REAP) the opportunity to apply for a $1.5 million grant to participate in “sustainable communities.” Also sometimes called “smart growth,” the ideas promoted by these programs are anything but sustainable or smart. (As members of REAP, the governing bodies for both Wichita and Sedgwick County endorsed this grant.)

The urban plans that come out of these kinds of programs typically call for:

  • Redesigning streets to increase traffic congestion in order to discourage people from driving;
  • Increasing subsidies to transit, bike paths, and other “alternative” forms of travel even though these alternatives are used by few people;
  • Denying owners of land on the urban fringes the right to develop their property in order to make single-family housing more expensive;
  • Subsidizing high-density, developments that combine housing with retail shops in the hope that people will walk to shopping rather than drive;
  • Rezoning neighborhoods of single-family homes for apartments with zoning so strict that, if someone’s house burns down, they will have to replace it with an apartment.

My former hometown of Portland, Oregon has followed these policies for two decades, and the results have been a disaster. In their zeal to subsidize transit and high-density developments, the region’s officials have taken money from schools, libraries, fire, and police, leaving those programs starved and in disarray.

Since 1980, Portland has spent more than $3 billion building light-rail lines. Far from improving transit, the share of commuters taking transit to work has fallen from 9.8 percent in 1980 to 7.5 percent today, mainly because the region cut bus service to pay for the trains. Traffic congestion quadrupled between 1984 and 2004, which planners say was necessary to get people to ride transit.

The region’s housing policies made single-family homes so expensive that most families with children moved to distant suburbs where they can afford a house with a yard. Residents of subsidized high-density housing projects drive just about as much as anyone else in the Portland area, and developers have learned to their sorrow that if they follow planners’ guidelines in providing less parking for these projects, they will end up with high vacancy rates.

Despite these problems, Portland has received lots of positive publicity. The reason for this is simple: by forcing out families with children, inner Portland is left mainly with young singles and childless couples who eat out a lot, making Portland a Mecca for tourists who like exciting new restaurants. This makes Portland a great place to visit, but you wouldn’t want to live there unless you like noisy, congested streets.

The idea of “sustainable communities” is that planners can socially engineer people into changing their travel behavior by redesigning cities to favor pedestrians and transit over automobiles. Beyond the fact that this is an outrageous intrusion of government into people’s lives, it simply doesn’t work. Such experts as University of California economist David Brownstone and University of Southern California planning professor Genevieve Giuliano have shown that the link between urban design and driving is too weak to make a difference.

To protect livability and avoid unsustainable subsidies to transit and high-density development, Wichita, Sedgwick County, and other REAP members of south central Kansas should reject the $1.5 million grant offered by the federal government.

Kansas auto dealers benefit from anti-competitive law

In Johnson County, a car dealer wants to move its dealership five blocks down the street. Amazingly, this simple act requires regulatory agency approval, and while unlikely in this case, existing auto dealers can block such actions under some circumstances.

In Kansas, as in many states, existing automobile dealers have input as to whether competition will be allowed into their market areas. In Kansas, the statue is 8-2430, captioned “Establishment of additional or relocation of existing new vehicle dealer; procedure; relevant market area.”

Examination of this statute reveals its anti-competitive nature. A person proposing a new dealership must state in writing why the new dealership should be allowed to be formed. The law requires that the applicant provide “a short and plain statement of the evidence the licensee, or proposed licensee, intends to rely upon in meeting the burden of proof for establishing good cause for an additional new vehicle dealer.”

If the director of vehicles holds a hearing and finds that “good cause has not been established,” the director shall deny the application, according to the statute. The burden of proof is on the applicant for the new license, and must be proved “by a preponderance of the evidence presented.”

The statute says that in determining whether there is good cause for a new dealer, the director of vehicles shall consider:

  • “permanency of the investment of both the existing and proposed new vehicle dealers”
  • growth in population
  • “effect on the consuming public in the relevant market area”
  • “whether it is injurious or beneficial to the public welfare for an additional new vehicle dealer to be established”
  • whether dealers of the same make of cars are “providing adequate competition and convenient customer care”
  • whether the proposed new dealer would increase competition and if that increased competition would be “in the public interest”
  • the effect of a new dealer on existing dealer(s)

The decision of the director is not limited to these considerations, says the statute. Some of these factors are so vague and subjective that they give the director reason to deny a new license virtually at his discretion. Will a new dealer have an effect on an existing dealer? Sure. Licensed denied.

We also have to wonder how it could injure “the public welfare” for people to have more choice in automobile dealers. Competition is the customer’s friend. Competition is always in the public interest. New business firms should not have to petition government regulators for permission to enter a market.

These laws that restrain trade and competition are harmful to the consumer. In his recent book The Right to Earn a Living: Economic Freedom and the Law, author Timothy Sandefur discusses the Illinois Motor Vehicle Franchise Act, which has language similar to the Kansas law. He writes:

Although cloaked in the language of public benefit, such laws are really private-interest legislation designed to allow the government to choose each company’s “fair share” of the trade. But the only way of determining what share of the trade is “fair” for any business is its success with consumers who are free to choose. If bureaucrats, rather than consumers, decide what amount of economic success is “fair,” businesses will devote their time not to providing quality products at affordable prices but to wooing government officials to give them special favors. … Consumers, again, are victims of anti-competitive laws of which most of them are not even aware.

Sandefur cites studies that show that states with laws like Kansas’ have fewer new-car dealerships and higher prices for new cars. “This price difference means that consumers are forced to pay more for cars without getting any increased value; the extra money is merely transferred into the pockets of politically influential car dealers.”

This law is bad for all Kansans except for one special interest group: those who own automobile dealerships. It ought to be repealed.

Regulation for the sake of business

There are many examples of how the conventional wisdom regarding regulation is wrong, That wisdom being Republicans and conservatives are in bed with government, seeking to unshackle business from the burden of government regulation. Democrats and liberals, on the other hand, are busily crafting regulations to protect the middle class from the evils of big business. As it turns out, both Democrats and Republicans love creating regulations, and big business loves these regulations. Business often uses government regulation as way to harm its competitors or gain advantage for itself, which is contrary to the principles of free markets and capitalism.

Holman W. Jenkins., Jr. explains how regulation works in the real world: “When some hear the word “regulation,” they imagine government rushing to the defense of consumers. In the real world, government serves up regulation to those who ask for it, which usually means organized interests seeking to block a competitive threat. This insight, by the way, originated with the left, with historians who went back and reconstructed how railroads in the U.S. concocted federal regulation to protect themselves from price competition. We should also notice that an astonishingly large part of the world has experienced an astonishing degree of stagnation for an astonishingly long time for exactly such reasons.” (Let’s Restart the Green Revolution, Wall Street Journal.)

Another example of a big business using regulation as a competitive weapon comes from 2005 when Walmart came out in favor of raising the national minimum wage. Providing an example of how regulation is pitched as needed for the common good, Walmart’s CEO said that he was concerned for the plight of working families, and that he thought the minimum wage level of $5.15 per hour was too low. If Walmart — a company the political left loves to hate as much as any other — can be in favor of increased regulation of the workplace, can regulation be a good thing? Had Walmart discovered the joys of big government?

The answer is yes. Walmart discovered a way of using government regulation as a competitive weapon. This is often the motivation for business support of regulation. In the case of Walmart, it was already paying its employees well over the current minimum wage. At the time, some sources thought that the minimum wage could be raised as much as 50 percent and not cause Walmart any additional cost — its employees already made that much.

But its competitors didn’t pay wages that high. If the minimum wage rose very much, these competitors to Walmart would be forced to increase their wages. Their costs would rise. Their ability to compete with Walmart would be harmed.

In short, Walmart supported government regulation as a way to impose higher costs on its competitors. It found a way to compete outside the marketplace. It abandoned principles of free markets and capitalism, and provided a lesson as to the difference between capitalism and business. And it did it while appearing noble.

Many, particularly liberals and progresives, make no distinction between business and capitalism. But we need to learn to recognize the difference if we are to have a thriving economy based on free-wheeling, competitive markets that foster innovation, or continue our decline into unproductive crony capitalism.

In the following excerpt from his book The Big Ripoff: How Big Business and Big Government Steal Your Money, author Timothy P. Carney explains that big business is able to use regulation as a blunt and powerful tool against competitors, and also as a way to improve its image, just like Walmart asking for a higher minimum wage.

How does regulation help big business?

Excerpt from The Big Ripoff: How Big Business and Big Government Steal Your Money, by Timothy P. Carney

If regulation is costly, why would big business favor it? Precisely because it is costly.

Regulation adds to the basic cost of doing business, thus heightening barriers to entry and reducing the number of competitors. Thinning out the competition allows surviving firms to charge higher prices to customers and demand lower prices from suppliers. Overall regulation adds to overhead and is a net boon to those who can afford it — big business.

Put another way, regulation can stultify the market. If you’re already at the top, stultification is better than the robust dynamism of the free market. And according to Nobel Laureate economist Milton Friedman:

The great virtue of free enterprise is that it forces existing businesses to meet the test of the market continuously, to produce products that meet consumer demands at lowest cost, or else be driven from the market. It is a profit-and-loss system. Naturally, existing businesses prefer to keep out competitors in other ways. That is why the business community, despite its rhetoric, has so often been a major enemy of truly free enterprise.

There is an additional systemic reason why regulation will help big business. Congress passes the laws that order new regulations, and executive branch agencies actually construct the regulations. The politicians and government lawyers who write these rules rarely do so without input. Often the rule makers ask for advice and information from labor unions, consumer groups, environmental groups, and industry itself. Among industry the stakeholders (beltway parlance to describe affected parties) who have the most input are those who can hire the most effective and most connective lobbyists. You can guess this isn’t Mom and Pop.

As a result, the details of the regulation are often carefully crafted to benefit, or at least not hurt, big business. If something does not hurt you, or hurts you a little while seriously hindering your competition, it is a boon, on balance.

Another reason big business often cries “regulate me!” is the goodwill factor. If a politician or bureaucrat wants to play a role in some industry, and some executive says, “get lost,” he runs the risk of offending this powerful person. That’s bad diplomacy. Bureaucrats, by their nature, do not like to be told to mind their own business. Supporting the idea of regulation but lobbying for particular details is usually better politics.

The role of speculators

As gasoline prices rise, we hear the call for regulation of speculators, with Fox News populist Bill O’Reilly a leading voice. Part of the complaint is true: Speculators are selfish people, acting only to make as much profit as possible for themselves. But by doing so, they provide a valuable public service.

That’s not what we hear when oil and gasoline prices — to take a recent example — go up. News commentators from across the political spectrum condemn speculators, blaming them for rising gasoline prices.

The mechanism of the speculator is to buy something like oil when prices are low, then to sell it when prices are high. By doing so he earns a profit. (An alternative is to sell things he does not yet own when prices are high, and then buy to fulfill his obligation when prices are low.)

The speculator, in this definition, does not hope to profit by processing and distributing the commodity he is buying and selling, as does an oil refiner or flour miller. He simply hopes to make a profit based on the changing prices — up or down — of oil or wheat.

It is said that speculators are buying oil now and therefore driving up the price. That’s probably true, and it illustrates one of the beneficial services that speculators provide: they reduce volatility in prices. If speculators are correct and the price of oil spikes sometime soon, the present buying by speculators makes the spike less steep. It also induces consumers to conserve.

Writing about speculation in food markets, Walter Block explains the beneficial effects:

First, the speculator lessens the effects of famine by storing food in times of plenty, through a motive of personal profit. He buys and stores food against the day when it might be scarce, enabling him to sell at a higher price. The consequences of his activity are far-reaching. They act as a signal to other people in the society, who are encouraged by the speculator’s activity to do likewise. Consumers are encouraged to eat less and save more, importers to import more, farmers to improve their crop yields, builders to erect more storage facilities, and merchants to store more food. Thus, fulfilling the doctrine of the “invisible hand,” the speculator, by his profit-seeking activity, causes more food to be stored during years of plenty than otherwise would have been the case, thereby lessening the effects of the lean years to come.

If the spike in prices does occur, what will speculators do? They will sell their oil, and that action will drive down prices, making the spike less steep. Here the speculator makes a profit by providing the service of making the oil shortage less severe. His hoarding of oil, bought when prices were low, makes it available in times of need, and less expensive, too. The speculator is rarely given credit for that in public, although this is how the speculator earns a profit.

More evidence of how speculators reduce price volatility is found in Oil Speculators Are Your Friends, by Jerry Taylor and Peter Van Doren of the Cato Institute:

Questions of cause and effect aside, economists Robert Kolb and James Overdahl reviewed the literature to ascertain whether physical prices exhibited more or less volatility after futures markets were introduced. They found 26 published studies examining various agricultural, energy, and financial markets but noted that only two of those studies (pertaining to cattle and mortgages) found that prices were more volatile after futures markets were established. Fourteen studies, on the other hand, found that cash market volatility decreased after futures markets were introduced (the remainder found no effect).

The upshot is that futures markets — and the speculation that occurs therein — provide a public service. Regulating, restricting, or eliminating those markets would not bring prices down or make them more predictable. All it would do is prevent these agents for social good from doing their job, which is to tell us the truth — as best they see — about the future cost of crude and to offer a means by which we can insure ourselves against the impact of increasing or declining crude oil prices.

It is possible for speculators to do harm, however. If the speculator buys, he drives up prices. Then suppose the price of oil falls, and the speculator is forced to sell. His actions have increased the volatility of oil prices and have sent false price signals to the market. Citing again Block’s food example: “What if he is wrong? What if he predicts years of plenty — and by selling, encourages others to do likewise — and lean years follow? In this case, wouldn’t he be responsible for increasing the severity of the famine? Yes. If the speculator is wrong, he would be responsible for a great deal of harm.”

In these cases, the speculator has suffered financial losses. These loses are a powerful market force that drives “bad” speculators — meaning those who guess wrong about future prices — out of the market.

The real danger we face is when government attempts to speculate. That’s a possibility at the current moment, as many are recommending that the U.S. government sell oil from the strategic petroleum reserve in an effort to lower the cost of oil. That’s speculation — the oil was bought at a time when the price was lower, and is now contemplated being sold at a higher price.

The problem with government speculation is that government does not face the market discipline that private-sector speculators face. When private-sector speculators are wrong, they lose their capital. They go out of business. But government faces no such discipline. When government is wrong, it goes on. Taxpayers and consumers, however, have to pay for the mistakes of politicians and bureaucrats.

Government attempts at regulating speculators are certain to fail, too. Almost any such regulation will seek to reduce the profit potential of speculation. But the potential of profits is what motivates speculators and makes the system work. Without the potential for profits, speculators will not take the risk of losses, and they will not perform their beneficial function.

Congress should reserve the right to protect our wireless future

From Erik Telford
Wireless technology is great. Only a few years ago, most Kansans were using their phones to call, and perhaps even text, now mobile devices are essentially small computers in the palms of our hands — capable of almost anything.

According to Nielsen research, about 44 percent of U.S. mobile subscribers now own smartphones.[i] In Kansas, there are more than 2.4 million wireless subscribers[ii] and nearly 450,000 of those subscribers have data plans with full Internet access for more than 1 million high-speed mobile devices as of December 2009.[iii]

With mobile devices capable of almost anything, Kansans are finding more ways to use them — from uploading pictures during a concert at the Sprint Center to updating their Facebook status about K-State’s football team to checking into their favorite Wichita restaurant on Foursquare.

However, in what is becoming an all too familiar occurrence, some of these efforts are unsuccessful because we just can’t seem to connect online in a stadium or arena full of people. This is just one localized example of how the looming spectrum crisis could become a widespread reality — crippling innovation and investment in one of our country’s most vibrant sectors.

Thankfully, Congress is currently considering legislation that would help avoid the looming crisis by freeing up more spectrum through an auction process. Spectrum auctions are widely supported by both Republicans and Democrats; however, as with most things — the devil is in the details.

As the agency in charge of spectrum auctions, the FCC is pressuring Congress to give the FCC complete control over the auction design process. While the FCC’s request seems somewhat innocuous, if allowed, it could have dangerous consequences.

Recent actions by the FCC suggest it would use its power to limit which companies will get to participate in the auction, effectively determining the winners and losers.

Some members of Congress, support the FCC’s request and argue that proposals that would restrict the FCC from imposing eligibility conditions on auction participants “could have a deterring effect on fostering competition and maximizing auction proceeds to pay for a public safety network and deficit reduction.”[iv] The argument that fewer auction participants would result in more competition and more revenue, however, just doesn’t make sense.

The FCC’s desire to impose conditions to increase competition and encourage innovation is not only counterintuitive; it is unnecessary. As the FCC’s own data demonstrates, the wireless market is already fiercely competitive. Nearly 90 percent of Americans have a choice of five or more wireless providers.[v]

In, Kansas, consumers in communities both large and small have a number of options for wireless services. Consumers in Salina and in Wichita can choose from six or more wireless providers.[vi] In Garden City, subscribers can choose from seven or more wireless companies.[vii]

Furthermore, eligibility restrictions could prevent companies like Sprint, Verizon and AT&T from acquiring more spectrum, which could prevent them from deploying 4G service to other communities outside the Kansas City market due to spectrum constraints.

As the expert agency, the FCC is right to ask for some flexibility with the auction design process. Congress, however, should reserve its right to protect our wireless future by preventing FCC overreach and ensure that all companies can participate in the auction process. It’s only the fair choice to make.

Notes:
[i] Nielsen Wire, “Android and iPhones Dominating App Downloads in the U.S.” November 29, 2011
[ii] Federal Communications Commission, 15th Annual Mobile Wireless Competition Report, Table C-2: FCC’s Semi-Annual Local Telephone Competition Data Collection: Mobile Telephone Subscribership, in Thousands,” p. 248, June 27, 2011
[iii] Federal Communications Commission, 15th Annual Mobile Wireless Competition Report, Table C-5: Mobile Wireless Devices Capable of Sending or Receiving Data at Speeds Above 200 kbps and Subscribers with Data Plans for Full Internet Access as of December 31, 2009, in Thousands,” p. 260, June 27, 2011
[iv] Sen. John Kerry, Press Release, “Democratic and Republican Senators Urge Smart, Inclusive Spectrum Reform,” January 9, 2012
[v] Federal Communications Commission, 15th Annual Mobile Wireless Competition Report, “Estimated Mobile Wireless Voice Coverage by Census Block, 2010,” p. 6, June 27, 2011
[vi] Cell phone provider coverage as found by zip code on http://www.wirelessadvisor.com/
[vii] Cell phone provider coverage as found by zip code on http://www.wirelessadvisor.com/

Sustainable planning: The agenda and details

Sedgwick County Commissioner Richard Ranzau has produced a document that explains the dangers contained with the “sustainable development” movement that is spreading across the country. Recently both the City of Wichita and Sedgwick County voted to participate in a planning grant devoted to starting the implementation of this ideology that government can plan better than markets can.

In the document Ranzau writes: “Proponents of these grants often speak in general terms that make it difficult to disagree. But as they say, the devil is in the details. It is very important for you to know what they are not telling you. We all need to look beyond the fancy talk and find out what the agenda is really about. … The intent of this paper is to share information and insight about ‘sustainable development’ so that citizens and elected officials can have a more complete understanding of what the planning grants will entail and what possible consequences our communities may face if these policies are implemented.”

One of the concerns Ranzau identifies is the attack on the automobile-based suburban lifestyle that many in Wichita and the surrounding area prefer, based on their revealed choices: “One of the most important reasons to be concerned about the agenda behind these grants is the effect it could have on housing costs and property rights. Smart Growth supporters decry suburban development (single family home with a yard) as unsustainable and work to push people into high density housing (and government transportation).”

This attitude is creeping into Wichita. At a January 2010 presentation by Goody Clancy, the planning firm that developed the plan for downtown Wichita, I reported on the attitudes expressed by planners and how they believe they know what people should want, if only the people were as smart as the planners:

At a presentation in January, some speakers from Goody Clancy revealed condescending attitudes towards those who hold values different from this group of planners. One presenter said “Outside of Manhattan and Chicago, the traditional family household generally looks for a single family detached house with yard, where they think their kids might play, and they never do.

David Dixon, who leads Goody Clancy’s Planning and Urban Design division and was the principal for this project, revealed his elitist world view when he told how that in the future, Wichitans will be able to “enjoy the kind of social and cultural richness” that is only found at the core.

The document holds many links to valuable resources, a timeline of sustainable planning activities, and contact information for local officials.

Sustainable Planning Grants and UN Agenda 21

Pompeo: Obama, EPA not to be trusted on regulation

U.S. Representative Mike Pompeo, a Republican who represents the Kansas fourth district, wrote this op-ed to warn us of the many ways in which President Barack Obama seeks to implement his radical agenda through regulation, this time through the Environmental Protection Agency (EPA). The remedy in this case is in the form of legislation, H.R. 1633, the Farm Dust Regulation Prevention Act. The bill was voted on today in the House of Representatives and passed 268 to 150.

While Pompeo focuses primarily on the direct impact of this regulation on farmers and ranchers, anything that makes these activities more difficult and expensive will drive up food costs for everyone, and many complain that these costs have been rising rapidly. Part of that rise, we might note, is due to regulations that require the use of ethanol in fuel, which diverts corn production away from food.

A version of this appeared in the Washington Examiner.

EPA must stop playing in the dust

By U.S. Representative Mike Pompeo

The Environmental Protection Agency (EPA) would like to regulate farm dust all across the nation. I know it sounds ridiculous, but given the Obama Administration’s demonstrated hostility toward rural America, it should not come as a huge surprise. Although EPA has verbally reversed course in recent weeks and said it has “no intention” of regulating farm dust, my 11 months in Washington have taught me quickly that we must pay attention to what politicians do and not what they say. EPA’s actions continue to show that radical environmentalists desire to regulate dust. To stop the EPA in its tracks, I have worked to advance H.R. 1633, the Farm Dust Regulation Prevention Act, through the House Committee on Energy and Commerce. I look forward to final passage on the House Floor later this week.

In Kansas and across the country, businesses are struggling to stay afloat. At best, EPA is oblivious to this fact. At worst, it deliberately presses forward in spite of the damaging consequences of new regulations. Rather than helping farmers, ranchers, business owners and other entrepreneurs, EPA continually bombards these job creators with undue and costly new regulations. The agriculture sector is now holding its collective breath as EPA considers new air quality standards, which it revises every five years. Under the Clean Air Act, the Agency asserts the authority to regulate farm dust as “coarse particulate matter.” This dust is known very well to rural Kansans. It is merely the dust created from driving down unpaved roads, moving livestock, and working the fields.

As it is, the current standard already imposes costs and restrictions on farmers, ranchers, agribusiness entities, and small businesses, particularly in arid parts of the West where dust is easily kicked up. Earlier this year, EPA staff suggested tightening standards to levels that would push most of the West — including Kansas — out of compliance.

In a recent House Committee on Energy and Commerce hearing, we heard from individuals who live in these areas, including Arizona farmer Kevin Rogers, who is already threatened by strict dust regulations. Because parts of Arizona already struggle to meet the current dust standards, he and other farmers may be required to halt tillage, drive at a snail’s pace on unpaved roads, stop work entirely on windy days, or take other expensive measures to reduce dust. If the dust standards are actually tightened to the levels suggested by EPA staff, other parts of the country would have to implement similar policies that will destroy the efficiency and productivity our farmers and ranchers are known for.

Opponents of our efforts call the desire to regulate farm dust a ‘myth’ and liken these concerns to worrying about regulation of fairy dust. While these theatrics garnered some snickers, I was not amused — and neither were the 500 plus Kansas Farm Bureau members I met with just before Thanksgiving who agree that this is a real problem. We need the bipartisan Farm Dust Regulation Prevention Act. The American Farm Bureau Federation, National Cattlemen’s Beef Association, and over 180 other organizations also agree that this valid concern with what EPA might do is more than fairy dust, and they know that this bill is vitally important to the survival of their industry.

EPA Administrator Lisa Jackson has announced that the agency has “no intention” of further regulating dust. But that announcement sounds more like political rhetoric designed to appease opponents as the 2012 election cycle nears, rather than a genuine promise rural Americans can count on. Given what I know, I would be letting farmers and ranchers down if I simply trusted the Obama Administration on their stated farm dust intentions. Besides, there is also a threat that an environmental group could sue and persuade a pliant EPA to regulate farm dust as a settlement condition. We need smart and clear laws set by Congress — not unelected bureaucrats. The Farm Dust Regulation Prevention Act is one. We must ensure that the federal government creates a positive atmosphere for businesses to prosper — including farming and livestock operations. It’s time to forget about regulating farm dust and give rural America some breathing room from the crushing regulations of which this Administration is so fond.

Regulatory Accountability Act of 2011

Last week the U.S. House of Representatives passed H.R. 3010: Regulatory Accountability Act of 2011. This law would, if passed by the Senate and signed by the president, would require regulatory agencies to “base all preliminary and final determinations on evidence,” among other reforms. It might surprise citizens to realize that regulations may be made for other reasons.

The act would also requires agencies to address “specific nature and significance of the problem,” the “significance of the problem the agency may address with a rule,” and also to recognize “the legal authority under which the rule may be proposed.”

In commentary on this legislation, James L. Gattuso of the Heritage Foundation wrote: “On the whole, the Regulatory Accountability Act represents a positive step toward regulatory reform, imposing clear obligations on agencies with review by the courts. It should, however, be considered by Congress as a supplement — not an alternative — to other needed reforms.”

All Kansas representatives voted for the bill, which passed 253 to 167. Votes were split primarily along party lines, although 19 Democrats voted in favor. Two Kansas members provided comments on the bill, and shared Gattuso’s opinion that this bill is just the start of controlling harmful and unneeded regulation.

Representative Tim Huelskamp of the Kansas first district commented on the bill and the potential of it passing the Senate: “HR 3010 — like several other bills that would require economic impact to be taken into account when regulation is being written — has the potential to control the costs of federal regulations. But, it’s just potential. I am about as optimistic as the Senate taking up this bill as I am about the Senate taking up any one of the nearly two dozen other ‘jobs’ bills or passing a budget. Majority Leader Reid is doing America a great disservice by allowing these jobs bills to go untouched in the Senate; the American people don’t send their Senators to Washington to loiter for six years.”

Representative Mike Pompeo of the Kansas fourth district was also cautious about relying on this bill to provide needed regulatory reform: “The Regulatory Accountability Act of 2011 (HR 3010) is a great piece of legislation, but it is not the silver bullet for reining in the Obama Administration’s rampant regulatory overreach, which is severely hindering job creation across the country and here in Wichita. While the Administration is ‘strongly opposed’ to the bill, they have not issued a veto threat, yet. Even still, I doubt this bill will pass the Senate. Tomorrow the House will consider a stronger piece of legislation — The REINS Act (HR 10), of which I am a co-sponsor. HR 10 would require Congressional approval of every major new regulation proposed by this Administration. Ultimately, if passed into law, it will radically slow the expansion of government which is something that I have been working to do in every way since I got here in January.”

The House is expected to vote on the REINS Act today.

Kansas gas storage regulation might not improve safety

Due to a jurisdictional issue, underground natural gas storage facilities in Kansas have not been inspected for 19 months — at least not inspected by government regulators. Senators Pat Roberts and Jerry Moran have introduced legislation that would allow Kansas to resume inspections.

The safety of underground natural gas storage is important, especially in Kansas, where in 2001 gas leaked under Hutchinson and caused fires and explosions that killed two people and caused much property damage. So should Kansans be relieved that government regulation and inspection may be resumed soon?

Reading news stories from after the January 2001 Hutchinson disaster should teach us to be wary of relying on government regulation and inspection for ensuring safety. For example, a February 2001 in the Wichita Eagle contained this: “State officials in Kansas knew that the 20-year-old regulations governing underground gas storage were inadequate, years before a gas leak in Hutchinson claimed two lives. Officials with the Kansas Department of Health and Environment met with industry representatives in 1996 and told them new regulations were needed to ensure safe operation of 630 gas storage wells in the state. The new regulations were never written. The update was delayed because the KDHE was short staffed, said Don Carlson, chief of the industrial programs section. The department has two people assigned to permit, inspect, oversee and write regulations for the 6,000 underground injection wells in Kansas that are used to store natural gas and propane, dispose of hazardous waste or mine salt, he said.” (emphasis added)

So for 20 years Kansas operated with inadequate regulations. Was this know by the general public? It doesn’t appear that it was. Instead, people assumed that government was watching out for their safety.

The Hutchinson News concluded in 2004: “True, some of the company’s reports misled the regulator. But the state official also did little, if anything, to check the company’s information or to inspect the site. A local diner serving two dozen cheeseburgers a day received more attention than an underground facility storing billions of cubic feet of natural gas and other volatile hydrocarbons.”

So how well were Kansans served by its regulators? Not well at all, we must conclude.

Eventually the operators of the gas storage facility were held accountable for their errors. But it wasn’t direct government action that did that, although the operators were fined $180,000. But government operates courts where the victims received compensation for their losses — if it is possible to compensate for loss of life with mere money.

What about the other party to this disaster — the State of Kansas: Was it held accountable? Not at all. Examples of regulatory failure rarely result in punishment of government or those who work for it.

A recent example is the Washington Post story Eight SEC employees disciplined over failures in Madoff fraud case; none are fired. Bernie Madoff stole tens of billions from clients over a long period of time in a highly-regulated industry. The Securities and Exchange Commission chief was advised to fire one person, but declined to do even that. Instead, eight employees received punishments such as “suspensions, pay cuts and demotions.”

Not only did the state not perform adequate inspections, and not only did the SEC fail to detect Madoff’s ongoing theft, the presence of government regulation makes people think things are safe.

Sadly, it is only after disasters like Hutchinson or sensational cases like Madoff’s that we become aware of the weak protections that government regulation provides.

The use of regulation by business, contrary to markets

There are many examples of how the conventional wisdom regarding regulation is wrong: Republicans and conservatives are in bed with government, seeking to unshackle business from the burden of government regulation. Democrats and liberals, on the other hand, are busy crafting regulations to protect the common man from the evils of big business. As it turns out, both Democrats and Republicans love creating regulations, and big business loves these regulations.

For example, in 2005 Walmart came out in favor of raising the national minimum wage. The company’s CEO said that he was concerned for the plight of working families, and that he thought the minimum wage level of $5.15 per hour was too low. If Walmart — a company the political left loves to hate as much as any other — can be in favor of increased regulation of the workplace, can regulation be a good thing? Had Walmart discovered the joys of big government?

The answer is yes. Walmart discovered a way of using government regulation as a competitive weapon. This is often the motivation for business support of regulation. In the case of Walmart, it was already paying its employees well over the current minimum wage. At the time, some sources thought that the minimum wage could be raised as much as 50 percent and not cause Walmart any additional cost — its employees already made that much.

But its competitors didn’t pay wages that high. If the minimum wage rose very much, these competitors to Walmart would be forced to increase their wages. Their costs would rise. Their ability to compete with Walmart would be harmed.

In short, Walmart supported government regulation as a way to impose higher costs on its competitors. It found a way to compete outside the marketplace. It abandoned principles of free markets and capitalism, and provided a lesson as to the difference between capitalism and business. Many, particularly liberals, make no distinction between business and capitalism. But we need to learn to recognize the difference if we are to have a thriving economy based on free-wheeling, competitive markets that foster innovation, or continue our decline into unproductive crony capitalism.

In the following excerpt from his book The Big Ripoff: How Big Business and Big Government Steal Your Money, author Timothy P. Carney explains that big business is able to use regulation as a blunt and powerful tool against competitors, and also as a way to improve its image.

How does regulation help big business?

Excerpt from The Big Ripoff: How Big Business and Big Government Steal Your Money, by Timothy P. Carney

If regulation is costly, why would big business favor it? Precisely because it is costly.

Regulation adds to the basic cost of doing business, thus heightening barriers to entry and reducing the number of competitors. Thinning out the competition allows surviving firms to charge higher prices to customers and demand lower prices from suppliers. Overall regulation adds to overhead and is a net boon to those who can afford it — big business.

Put another way, regulation can stultify the market. If you’re already at the top, stultification is better than the robust dynamism of the free market. And according to Nobel Laureate economist Milton Friedman:

The great virtue of free enterprise is that it forces existing businesses to meet the test of the market continuously, to produce products that meet consumer demands at lowest cost, or else be driven from the market. It is a profit-and-loss system. Naturally, existing businesses prefer to keep out competitors in other ways. That is why the business community, despite its rhetoric, has so often been a major enemy of truly free enterprise.

There is an additional systemic reason why regulation will help big business. Congress passes the laws that order new regulations, and executive branch agencies actually construct the regulations. The politicians and government lawyers who write these rules rarely do so without input. Often the rule makers ask for advice and information from labor unions, consumer groups, environmental groups, and industry itself. Among industry the stakeholders (beltway parlance to describe affected parties) who have the most input are those who can hire the most effective and most connective lobbyists. You can guess this isn’t Mom and Pop.

As a result, the details of the regulation are often carefully crafted to benefit, or at least not hurt, big business. If something does not hurt you, or hurts you a little while seriously hindering your competition, it is a boon, on balance.

Another reason big business often cries “regulate me!” is the goodwill factor. If a politician or bureaucrat wants to play a role in some industry, and some executive says, “get lost,” he runs the risk of offending this powerful person. That’s bad diplomacy. Bureaucrats, by their nature, do not like to be told to mind their own business. Supporting the idea of regulation but lobbying for particular details is usually better politics.

‘Sustainable planning’ not so sustainable

By Randal O’Toole, Senior Fellow at the Cato Institute. A version of this appeared in the Wichita Eagle.

The vast majority of Americans, surveys say, aspire to live in a single-family home with a yard. The vast majority of American travel — around 85 percent — is by automobile. Yet the Obama administration thinks more Americans should live in apartments and travel on foot, bicycle, or mass transit.

To promote this idea, the administration wants to give the south central Regional Economic Area Partnership (REAP) the opportunity to apply for a $1.5 million grant to participate in “sustainable communities.” Also sometimes called “smart growth,” the ideas promoted by these programs are anything but sustainable or smart. (As members of REAP, the governing bodies for both Wichita and Sedgwick County endorsed this grant.)

The urban plans that come out of these kinds of programs typically call for:

  • Redesigning streets to increase traffic congestion in order to discourage people from driving;
  • Increasing subsidies to transit, bike paths, and other “alternative” forms of travel even though these alternatives are used by few people;
  • Denying owners of land on the urban fringes the right to develop their property in order to make single-family housing more expensive;
  • Subsidizing high-density, developments that combine housing with retail shops in the hope that people will walk to shopping rather than drive;
  • Rezoning neighborhoods of single-family homes for apartments with zoning so strict that, if someone’s house burns down, they will have to replace it with an apartment.

My former hometown of Portland, Oregon has followed these policies for two decades, and the results have been a disaster. In their zeal to subsidize transit and high-density developments, the region’s officials have taken money from schools, libraries, fire, and police, leaving those programs starved and in disarray.

Since 1980, Portland has spent more than $3 billion building light-rail lines. Far from improving transit, the share of commuters taking transit to work has fallen from 9.8 percent in 1980 to 7.5 percent today, mainly because the region cut bus service to pay for the trains. Traffic congestion quadrupled between 1984 and 2004, which planners say was necessary to get people to ride transit.

The region’s housing policies made single-family homes so expensive that most families with children moved to distant suburbs where they can afford a house with a yard. Residents of subsidized high-density housing projects drive just about as much as anyone else in the Portland area, and developers have learned to their sorrow that if they follow planners’ guidelines in providing less parking for these projects, they will end up with high vacancy rates.

Despite these problems, Portland has received lots of positive publicity. The reason for this is simple: by forcing out families with children, inner Portland is left mainly with young singles and childless couples who eat out a lot, making Portland a Mecca for tourists who like exciting new restaurants. This makes Portland a great place to visit, but you wouldn’t want to live there unless you like noisy, congested streets.

The idea of “sustainable communities” is that planners can socially engineer people into changing their travel behavior by redesigning cities to favor pedestrians and transit over automobiles. Beyond the fact that this is an outrageous intrusion of government into people’s lives, it simply doesn’t work. Such experts as University of California economist David Brownstone and University of Southern California planning professor Genevieve Giuliano have shown that the link between urban design and driving is too weak to make a difference.

To protect livability and avoid unsustainable subsidies to transit and high-density development, Wichita, Sedgwick County, and other REAP members of south central Kansas should reject the $1.5 million grant offered by the federal government.

Randal O’Toole (rot@cato.org) is a senior fellow with the Cato Institute and author of The Best-Laid Plans: How Government Planning Harms Your Quality of Life, Your Pocketbook, and Your Future.

For more about the local grant, see Sedgwick County considers a planning grant.

Kerpen on Obama’s regulatory extremism

In the introduction to his book Democracy Denied, Phil Kerpen gives us a history lesson on a topic that doesn’t receive much discussion in public: the grab for executive power by presidents through the use of “signing statements.”

Elizabeth Drew made the case against Bush’s abuse of executive power in a lengthy New York Review of Books piece called “Power Grab.” She specifically highlighted Bush’s use of signing statements (a technique to object to elements of a law while signing it, and refusing to enforce those elements), the detention of foreign combatants at Guantanamo, and warrantless wiretaps. She concluded that Bush was a tyrant.

Kerpen explains how the view from the oval office can make one forget campaign promises:

Even the Bush practice that raised the most ire — the use of signing statements — was embraced by Obama just weeks after he took office, when he said: “it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for presidential signature includes provisions that are subject to well-founded constitutional objections.” Contrast that with what Obama had said about signing statements on the campaign trail: “This is part of the whole theory of George Bush that he can make laws as he is going along. I disagree with that. I taught the Constitution for 10 years. I believe in the Constitution and I will obey the Constitution of the United States. We are not going to use signing statements as a way of doing an end run around Congress.”

Not that Obama alone takes criticism for exercising presidential power contrary to the actions of Congress, as he describes the auto industry bailout in the last days of the presidency of George W. Bush. A bill didn’t make it through Congress, but Bush “repurposed” TARP funds — intended for banks — and used them for an auto bailout in the amount of $17.4 billion.

It is this use of executive power and agencies to bypass the will of people — as expressed through Congress — that is detailed in a book authored by Phil Kerpen and published this week: Democracy Denied: How Obama is Ignoring You and Bypassing Congress to Radically Transform America — and How to Stop Him.

Kerpen is Vice President for Policy at Americans for Prosperity, a national group that advocates for free markets and limited government at all levels. His website is philkerpen.com, and it features excerpts from the book along with a theatrical trailer.

Kerpen explains the problem by describing a solution: The Regulations from the Executive in Need of Scrutiny Act, or REINS Act. This proposed law would require any major regulatory action to be approved by Congress and receive the president’s signature. Kerpen writes: “We have regulators who are effectively writing and executing their own laws. The major policy decisions that affect every aspect of our economic lives are moving forward without consent of the people’s legitimately elected legislative branch.”

The problem is that often Congress passes generic laws and leaves it to regulatory agencies to write the rules that implement the law. By requiring Congressional and Presidential approval of major regulations, agencies will be accountable to the current Congress, and lawmakers will have a chance to ensure that actual regulations are consistent with the intent of enabling legislation.

Cap-and-trade energy legislation provides an example of Kerpen’s thesis, which is “how the Obama administration was disregarding Congress and the American people to accomplish its objectives through regulatory backdoors.” The legislation passed the House, but couldn’t pass the Senate. So what happened next? Kerpen explains Obama’s detour around Congress:

Just to show you how unfazed the Obama administration was by the political defeat of cap-and-trade, consider what’s on page 146 of Obama’s 2012 budget: “The administration continues to support greenhouse gas emissions reductions in the United States in the range of 17 percent below 2005 levels by 2020 and 83% percent by 2050.” Those just happen to be the same levels required by the failed Waxman-Markey cap-and-trade bill. Obama is telling the EPA to just pretend that the bill passed and regulate away.

In fact Obama’s EPA was already moving full steam ahead to implement a global warming regulatory scheme that could even be more costly than cap and trade — without the approval of the American people and without so much as a vote in Congress.

The remainder of the chapter details some of the ways EPA is accomplishing this backdoor regulation.

The Patient Protection and Affordable Care Act, otherwise known as ObamaCare, is another topic Kerpen covers where regulation is replacing lawmaking by Congress:

Nancy Pelosi was right in more ways then she realized when she infamously said “We have to pass the bill so that you can find out what is in it, away from the fog of the controversy.” Not only was the more than 2,000-page bill negotiated in secret and so densely complex that few humans could understand it, it also deferred most of the really difficult and important decisions to the regulators, including dozens of brand-new boards, committees, councils, and working groups. So even after ObamaCare had been passed there was no way to know what was really in it until the bureaucracy was assembled and began issuing regulations.

Kerpen describes the bill that passed as not “finished legislation,” and is now being interpreted by bureaucrats, the most powerful being HHS Secretary Kathleen Sebelius. Her office is now, according to Kerpen, “issuing a whole string of official guidelines and regulations that attempt to ‘correct’ the draft law, often by asserting things that the law doesn’t actually say.”

Other chapters describe regulation of the internet (net neutrality), card check, the Dodd-Frank financial regulations, and energy regulation. All of these represent the Obama administration either ignoring Congress or creating vast new powers for itself. The chart Kerpen created shows the plays being made.

Obama regulatory extremismKerpen’s chart of Obama regulatory extremism. Click for larger version.

What about regulatory reform? Obama’s doing that. In January he wrote in the Wall Street Journal: “We’re looking at the system as a whole to make sure we avoid excessive, inconsistent and redundant regulation. And finally, today I am directing federal agencies to do more to account for — and reduce — the burdens regulations may place on small businesses.”

In a chapter titled “The Back Door to the Back Door: Phony Regulation Reform” Kerpen explains that this promise or regulatory reform by the president is a sham. Kerpen describes the executive order that implements regulatory review this way: “The new executive order is the regulatory parallel to the Obama administration’s strategy on federal spending, which is to spend at astonishing, record rates and rack up trillions of dollars in deficits while paying lip service to fiscal responsibility by establishing a fiscal commission.”

And in a gesture of true public service, Kerpen introduces us to Cass Sunstein, the man who is heading the Office of Information and Regulatory Affairs (OIRA), the agency that will be conducting the purported review of regulations. A quote from Sunstein: “In what sense is the money in our pockets and bank accounts fully ‘ours’? Did we earn it by our own autonomous efforts? Could we have inherited it without the assistance of probate courts? Do we save it without the support of bank regulators? Could we spend it if there were no public officials to coordinate the efforts and pool the resources of the community in which we live?”

Kerpen sums up Sunstein’s political philosophy of central planning:

The idea of Sunstein’s “nudge” philosophy is that the fatal conceit of central economic planning can somehow succeed if it is subtly hidden from view. Sunstein thinks that if he imposes regulations that steer our choices instead of outright forcing them, he can achieve desirable social objectives. … Given Suinstein’s views and the central role he will have in reshaping federal regulation to be “more effective,” we need to be deeply concerned that any changes that come out of the process may make regulation less apparent, but no less costly — and more effective at crushing genuine individual choice and responsibility and substituting the judgment (even if by a nudge instead of a shove) of a central planner.

The challenge, Kerpen writes in his conclusion to the book, “is to change the political calculus to elevate regulatory fights to the appropriate level in the public consciousness. We must make sure the American people understand that a disastrously bad idea becomes even worse when it’s implemented by backdoor, unaccountable, illegitimate means.”

Kerpen recommends passage of the REINS Act as a way to restore accountability over regulatory agencies to Congress. The two messages Congress needs, he writes, are: “You can delegate authority, but you can never delegate responsibility,” and “If you fail to stop out-of-control regulators, voters will hold you accountable.”

Kansas automobile dealers benefit from protectionist law

This week the Kansas Register contains two items titled “Notice of Intent to Establish a New Motor Vehicle Dealer License.” People in Kansas want to open new automobile dealerships. But if a privileged class of people are able to persuade the Kansas director of vehicles, these actions won’t be allowed.

In Kansas, like many states, existing new car dealers are able to weigh in as to whether competition will be allowed into their market areas. In Kansas, the statue is 8-2430, captioned “Establishment of additional or relocation of existing new vehicle dealer; procedure; relevant market area.”

Examination of this statute lets us learn of its anti-competitive nature. A person proposing a new dealership must state in writing why the new dealership should be allowed to be formed. The law requires that the applicant provide “a short and plain statement of the evidence the licensee, or proposed licensee, intends to rely upon in meeting the burden of proof for establishing good cause for an additional new vehicle dealer.”

If the director of vehicles holds a hearing and finds that “good cause has not been established,” the director shall deny the application, according to the statute. The burden of proof is on the applicant for the new license, and must be proved “by a preponderance of the evidence presented.”

The statute says that in determining whether there is good cause for a new dealer, the director of vehicles shall consider:

  • “permanency of the investment of both the existing and proposed new vehicle dealers”
  • growth in population
  • “effect on the consuming public in the relevant market area”
  • “whether it is injurious or beneficial to the public welfare for an additional new vehicle dealer to be established”
  • whether dealers of the same make of cars are “providing adequate competition and convenient customer care”
  • whether the proposed new dealer would increase competition and if that increased competition would be “in the public interest”
  • the effect of a new dealer on existing dealer(s)

The decision of the director is not limited to these considerations, says the statute. Some of these factors are so vague and open-ended that they give the director reason to deny a new license virtually at his discretion. Will a new dealer have an effect on an existing dealer? Sure. Licensed denied.

These laws that restrain trade and competition are harmful to the consumer. In his recfent book The Right to Earn a Living: Economic Freedom and the Law, author Timothy Sandefur discusses the Illinois Motor Vehicle Franchise Act, which has language similar to the Kansas law. He writes:

Although cloaked in the language of public benefit, such laws are really private-interest legislation designed to allow the government to choose each company’s “fair share” of the trade. But the only way of determining what share of the trade is “fair” for any business is its success with consumers who are free to choose. If bureaucrats, rather than consumers, decide what amount of economic success is “fair,” businesses will devote their time not to providing quality products at affordable prices but to wooing government officials to give them special favors. … Consumers, again, are victims of anti-competitive laws of which most of them are not even aware.

Sandefur cites studies that show that states with laws like Kansas’ have fewer new-car dealerships, and higher prices for new cars. “This price difference means that consumers are forced to pay more for cars without getting any increased value; the extra money is merely transferred into the pockets of politically influential car dealers.”

This law is bad for all Kansans except those who own automobile dealerships. It ought to be repealed. There’s a mechanism in place. Kansas Governor Brownback’s Executive Order 11-01, creates the “Office of the Repealer.” In its preamble, the order recognizes the administration’s priority to promote “growth of liberty and economic opportunities for the citizens of Kansas and for Kansas businesses” and our state’s “mutual interest in a system of government, laws, regulations, and other governing instruments that are reasonable, comprehensible, consistent, predictable, and minimally burdensome.”

I suggest to the repealer — Dennis Taylor is his name — that we’ve found the law that should be first to go by the wayside.

Greenpeace and allies again attack Koch Industries

Last week saw the release of two reports criticizing Koch Industries for its opposition to heavy-handed regulation of the chemical industry. Greenpeace released a report with highly charged words in its title: “Toxic Koch: Keeping Americans at Risk of a Poison Gas Disaster.” Other articles commenting on this were highly sensational, such as this example: “Do the Koch Brothers Want a Toxic Disaster?”

Koch Industries has responded to these articles in a response on KochFacts.com website. Among many facts, we can see that Koch companies have received 386 safety awards and 28 environmental awards just since President Obama took office.

Much of the Greenpeace report criticized Koch for its opposition to H.R. 2868, the Chemical and Water Security Act of 2009. Koch and most of the chemical industry instead favored continuation of Chemical Facility Anti-Terrorism Standards, a set of less intrusive standards that have been effective.

Greenpeace characterizes the regulatory measures in H.R. 2868 as so mild that it can’t imagine why anyone would object. At issue is a concept known as “Inherently Safer Technology” or IST. If passed into law or regulation, regulators could require manufacturers to substitute alternative processes, in the name of safety. That, however, poses many problems, as explained below.

The Greenpeace report contains an economic analysis of what H.R. 2868 might do to the economy. This bill passed the House of Representatives, but not the Senate. The report estimates that the cost of IST would be slightly less than $1 billion per year. The analysis concludes that the extra costs of IST regulation would eliminate jobs, but the extra spending on IST would add roughly the same number of jobs. The net impact is therefore zero.

But we shouldn’t infer that a net loss of zero jobs means no economic harm is done. There will be dislocation, as the people who gain jobs won’t likely be the people who lost jobs.

But most importantly, this extra cost is spent paying for something that isn’t a problem. The Greenpeace report concedes there have been no attacks on U.S. chemical plants since the terrorist attacks of 9/11. The reports says various terrorists would like to conduct such attacks. That’s hardly news. What is news is that, for whatever reason, they haven’t succeeded.

It’s true that the words “Inherently Safer Technology” don’t appear in H.R. 2868. But in an explanatory document produced by Greenpeace, we see the bill isn’t as mild as Greenpeace claims: “If a facility disagrees with the DHS’s finding they have 120 days to appeal and the DHS must consult with a wide range of experts and those expert recommendations must be included in any order to implement safer chemical processes.” (emphasis added)

That sounds like heavy-handed regulation and the implementation of IST. Or maybe it’s just wishful thinking on Greenpeace’s part. At any rate, once initiated these regulatory regimes have a way of growing, often far exceeding the intent of Congress when it passed the legislation creating the initial regulation.

But that’s the goal of the political left: Regulation. And if they can accomplish this goal while at the same time beating up on Koch Industries, the chemical industry, the oil industry, and capitalism in general, so much the better for them. Underlying the quest of Greenpeace and its allies is a hatred of capitalism, hated so much that they will do whatever it takes to discredit and defeat its proponents and practitioners.

The problems with Inherently Safer Technology regulation

A document titled Final Report: Definition for Inherently Safer Technology in Production, Transportation, Storage, and Use supplies some useful information about IST:

IST’s are relative: A technology can only be described as inherently safer when compared to a different technology, including a description of the hazard or set of hazards being considered, their location, and the potentially affected population. A technology may be inherently safer than another with respect to some hazards while being inherently less safe with respect to others, and may not be safe enough to meet societal expectations.

IST’s are based on an informed decision process: Because an option may be inherently safer with regard to some hazards and inherently less safe with regard to others, decisions about the optimum strategy for managing risks from all hazards are required. The decision process must consider the entire life cycle, the full spectrum of hazards and risks, and the potential for transfer of risk from one impacted population to another.

This hints at the difficulty in regulating complex processes such as manufacturing. There may be many tradeoffs to make. An an example, a process might use a toxic catalyst. It would seem that eliminating its use would lead to greater safety.

But: the tradeoff. Eliminating the use of the catalyst would mean the company has to increase the temperature and pressure of the process, two factors that increase risk. The end result might be a process with more risk than the original process.

At a committee hearing in 2009, Senator Susan M. Collins gave another example of how IST might force more hazardous trucks on highways:

According to one water utility located in an isolated area of the Northwest, if Congress were to force it to replace its use of gaseous chlorine with sodium hypochlorite, then the utility would have to use as much as seven times the current quantity of treatment chemicals to achieve comparable water quality results. In turn, the utility would have to arrange for many more bulk chemical deliveries, by trucks, into the watershed. The greater quantities of chemicals and increased frequency of truck deliveries would heighten the risk of an accident resulting in a chemical spill into the watershed. In fact, the accidental release of sodium hypochlorite into the watershed would likely cause greater harm to soils, vegetation and streams than a gaseous chlorine release in this remote area.

In its discussion on IST, the “Final Report: Definition for Inherently Safer Technology in Production, Transportation, Storage, and Use” report notes the tradeoffs that are commonplace:

IST options can be location and release scenario dependent, and different potentially exposed populations may not agree on the relative inherent safety characteristics of the same set of options. For example, two options for handling a toxic gas might be receiving the material in ten, 1-ton cylinders or one, 10-ton truckloads. To a population several miles from the site, the 1-ton cylinders would be inherently safer because the maximum potential release size is smaller and less likely to expose them to a hazardous concentration of the gas. However, operators, who would now have to connect and disconnect 10 cylinders for every 10 tons of material used, instead of a single truck, would consider the truck shipments to be inherently safer. Thus, evaluation of IST options can be quite complex, and dependent on the local environment. There is currently no consensus on either a quantification method for IST or a scientific assessment method for evaluation of IST options.

We need to consider also who is in the best position to judge the relative risks: government bureaucrats, or the operators of the plant. The view of government regulators is that any risk is bad, and through technology — IST in this example — we can eliminate risk.

But this ignores the tradeoffs involved, as illustrated above. It also ignore the costs of these regulations in their attempt to lessen risk, notwithstanding the economic analysis commissioned by Greenpeace.

A common response we see in the media — certainly we see it from the political left and attack groups like Greenpeace as well as government regulators — is that greedy plant owners will use whichever method is cheapest, so as to produce the greatest profit.

This ignores the fact that there are laws and regulations already in place. It ignores the fact that market forces give plant operators a huge incentive to operate safely, for their own safety, the safety of the employees they can’t operate without, and the safety of the surrounding communities. Besides the potential loss of human life, unsafe plants expose their operators to huge economic costs. Besides being liable for damage and loss of life due to accidents, unsafe workplaces have to pay employees more to work there. Insurers charge higher rates for unsafe plants they believe present a high risk of having to pay claims.

KDHE, Sunflower Electric, Earthjustice, Center for Climate Strategies: different peas in the same pod

Evidence that a business seeking regulatory approval of its project enjoyed an apparently close relationship with the Kansas Department of Health and Environment should not be surprising.

Reporting in the Kansas City Star leads with “Hundreds of emails document that officials of a Kansas power plant enjoyed a cozy relationship with the Kansas regulators who issued them a building permit in December.” (Kansas agency, utility worked closely on permit for plant)

A press release from Earthjustice, the legal advocacy arm of the Sierra Club, proclaimed “A new report reveals Sunflower Electric (Sunflower) enjoyed a cozy relationship with Kansas regulators during the permitting process for the highly controversial coal-fired power plant Sunflower seeks to build in Holcomb.”

This incident — the details are not important for understanding the broad lesson — may be looked on as an example of regulatory capture. As defined in Wikipedia, “regulatory capture occurs when a state regulatory agency created to act in the public interest instead advances the commercial or special interests that dominate the industry or sector it is charged with regulating.”

In more detail, the Wikipedia article explains: “For public choice theorists, regulatory capture occurs because groups or individuals with a high-stakes interest in the outcome of policy or regulatory decisions can be expected to focus their resources and energies in attempting to gain the policy outcomes they prefer, while members of the public, each with only a tiny individual stake in the outcome, will ignore it altogether. Regulatory capture refers to when this imbalance of focused resources devoted to a particular policy outcome is successful at ‘capturing’ influence with the staff or commission members of the regulatory agency, so that the preferred policy outcomes of the special interest are implemented.”

Regulatory capture — or at least the heavy-handed attempt by special interest groups to influence public policy to fit their interests — is a non-partisan sport. We shouldn’t be surprised to see this form of government failure taking place at all times, no matter which party or politicians are in power.

As an example on point, the same type of activity happened during the administration of former Kansas Governor Kathleen Sebelius regarding the same electric plant that is the focus of controversy today. Her regulator, former KDHE Secretary Rod Bremby, denied the permit for the plant based on its carbon dioxide emissions, the first time that had been done in the United States.

Radical environmentalists rejoiced. Sebelius was invited to speak at an Earthjustice conference held in Denver in June, 2008. Here are a portion of her written remarks, as supplied to me at that time by her press office, thanking Earthjustice for all it had done in Kansas to help Sebelius and mold her regulatory regime:

When Big Coal pumped their money and politics into Kansas, EarthJustice was there to fight back:

  • Provided litigation and public support
  • Helped shape the media messaging and outreach
  • Rallied supporters and engaged the public to get involved

It was a victory for all of us and I appreciate their help.

About that time Sebelius established the Kansas Energy and Environmental Policy Advisory Group, or KEEP. The activities of this group were managed — at no cost to the state — by the Center for Climate Strategies, a group that expressly advocates for energy policies and regulations based on an extremist view of climate science.

The invasion of Kansas — at least the Sebelius administration — by Earthjustice and Center for Climate Studies proves the point: Regulatory capture is a non-partisan opportunity.

Regulation supports business, not capitalism and free markets

There are many examples of how the conventional wisdom regarding regulation is wrong: Republicans and conservatives are in bed with government, seeking to unshackle business from the burden of government regulation. Democrats and liberals, on the other hand, are busy crafting regulations to protect the common man from the evils of big business. As it turns out, both Democrats and Republicans love creating regulations, and big business loves these regulations.

For example, in 2005 Walmart came out in favor of raising the national minimum wage. The company’s CEO said that he was concerned for the plight of working families, and that he thought the minimum wage level of $5.15 per hour was too low. If Walmart — a company the political left loves to hate as much as any other — can be in favor of increased regulation of the workplace, can regulation be a good thing? Had Walmart discovered the joys of big government?

The answer is yes. Walmart discovered a way of using government regulation as a competitive weapon. This is often the motivation for business support of regulation. In the case of Walmart, it was already paying its employees well over the current minimum wage. At the time, some sources thought that the minimum wage could be raised as much as 50 percent and not cause Walmart any additional cost — its employees already made that much.

But its competitors didn’t pay wages that high. If the minimum wage rose very much, these competitors to Walmart would be forced to increase their wages. Their costs would rise. Their ability to compete with Walmart would be harmed.

In short, Walmart supported government regulation as a way to impose higher costs on its competitors. It found a way to compete outside the marketplace. It abandoned principles of free markets and capitalism, and provided a lesson as to the difference between capitalism and business. Many, particularly liberals, make no distinction between business and capitalism. But we need to learn to recognize the difference if we are to have a thriving economy based on free-wheeling, competitive markets that foster innovation, or continue our decline into unproductive crony capitalism.

In the following excerpt from his book The Big Ripoff: How Big Business and Big Government Steal Your Money, author Timothy P. Carney explains that big business is able to use regulation as a blunt and powerful tool against competitors, and also as a way to improve its image.

How does regulation help big business?

Excerpt from The Big Ripoff: How Big Business and Big Government Steal Your Money, by Timothy P. Carney

If regulation is costly, why would big business favor it? Precisely because it is costly.

Regulation adds to the basic cost of doing business, thus heightening barriers to entry and reducing the number of competitors. Thinning out the competition allows surviving firms to charge higher prices to customers and demand lower prices from suppliers. Overall regulation adds to overhead and is a net boon to those who can afford it — big business.

Put another way, regulation can stultify the market. If you’re already at the top, stultification is better than the robust dynamism of the free market. And according to Nobel Laureate economist Milton Friedman:

The great virtue of free enterprise is that it forces existing businesses to meet the test of the market continuously, to produce products that meet consumer demands at lowest cost, or else be driven from the market. It is a profit-and-loss system. Naturally, existing businesses prefer to keep out competitors in other ways. That is why the business community, despite its rhetoric, has so often been a major enemy of truly free enterprise.

There is an additional systemic reason why regulation will help big business. Congress passes the laws that order new regulations, and executive branch agencies actually construct the regulations. The politicians and government lawyers who write these rules rarely do so without input. Often the rule makers ask for advice and information from labor unions, consumer groups, environmental groups, and industry itself. Among industry the stakeholders (beltway parlance to describe affected parties) who have the most input are those who can hire the most effective and most connective lobbyists. You can guess this isn’t Mom and Pop.

As a result, the details of the regulation are often carefully crafted to benefit, or at least not hurt, big business. If something does not hurt you, or hurts you a little while seriously hindering your competition, it is a boon, on balance.

Another reason big business often cries “regulate me!” is the goodwill factor. If a politician or bureaucrat wants to play a role in some industry, and some executive says, “get lost,” he runs the risk of offending this powerful person. That’s bad diplomacy. Bureaucrats, by their nature, do not like to be told to mind their own business. Supporting the idea of regulation but lobbying for particular details is usually better politics.

The promises politicians make

Recently John Stossel produced a television show titled Politicians’ Top 10 Promises Gone Wrong. The show features segments on government programs and why they’ve gone wrong, with a focus on the unintended consequences of the programs. Particularly illuminating are the attempts by programs’ supporters to justify their worth.

Now the program is available to view on the free hulu service by clicking on Politicians’ Top 10 Promises Gone Wrong.

One of the segments on the show explained the harm of Cash for Clunkers, in which serviceable cars were destroyed so that new cars could be sold. The program simply stole sales from the months before and after the program. The mistaken idea that destruction can be a way to create new wealth is held by many who should know better, and Stossel reminds us of the New York Times’ Paul Krugman, who wrote that the terrorist attacks of September 11, 2001 “could even do some economic good” as rebuilding will increase business spending. It’s the seen vs. unseen problem, Stossel and David Boaz of the Cato Institute explain. It’s easy to see people buying new cars. It was reported on television. But it’s more difficult to see all the dispersed economic activity that didn’t take place because of the programs.

“Living wage” laws, in which people would be paid enough to live on — whatever that means — is next. While increasing wages of low-paid workers is a noble goal, increasing the cost of labor results in an entirely predictable result: less labor is demanded. Fewer people will have jobs. The Grand Canyon National Park, for example, switched to automated ticket machines. Christian Dorsey of the Economic Policy Institute, said that elimination of minimum wage laws would leave employers free to drive down wages as low as possible. But Stossel noted businesses hire employees in a competitive market, and it is that market that sets wages. Only about five percent of workers earn the minimum wage. Why do the others earn more than that? Competitive markets force employers to pay more, not laws.

A segment on “fancy stadiums” boosting the economy holds a lesson for Wichita and the Intrust Bank Arena in its downtown. The claimed benefits of these venues rarely appear, and the unseen costs are large — “at the local bar there’s one less bartender, there was one less waitress hired at a restaurant, a movie theater that had one less theaterfull. It’s handing money from your right hand to your left and declaring I’m rich.” While Wichita’s arena seems to be doing well, it’s still well within its honeymoon period. Even then, there was a month where no events took place at the arena.

A segment on the new credit card regulations, intended to protect consumers, shows that the regulations resulted in fewer people being able to get credit cards. Now these people have to go to payday lenders or pawn shops, which are much more expensive than credit cards. Arkansas once capped credit card interest at ten percent. The result was that few people in Arkansas could get a credit card, and the state became known as the pawn shop capital of America.

Ethanol is the topic of a segment. Promised as a way to solve our energy problem, many politicians of both parties support ethanol. But we’ve come to realize the problems with government support of ethanol: rising price of food, excessive use of fertilizer and fuel to produce corn, and an awareness that ethanol is more harmful to the environment than gasoline. “But it makes us feel good,” Stossel says. In Kansas, Governor Sam Brownback is firmly in favor of government support of ethanol, which Boaz called “pound-for-pound, the dumbest program ever.”

On the role of government in causing the housing bubble, Howard Husock said “Government exaggerates, rather than minimizes, the age-old impulse to greed. The government made it harder for bankers who wanted to do the right thing.” Stossel explained that bankers who wanted to stay with safe home loans lost out on profits they could earn selling high risk loans to Fannie Mae and Freddie Mac, the government-sponsored agencies.

At the end, Stossel said: “And that’s the number one promise gone wrong. These guys say they’ll be fiscally responsible. And then we elect them, and they spend more. They’re spending us into bankruptcy. There must be 10,000 harmful programs, and yet they keep creating more. Why can’t we cut them?” Boaz explained: “Every one of those 10,000 programs has a lobbyist in Washington. … They always know when the bill is up before Congress, and they send political contributions, they send people to Washington to lobby. The rest of us don’t do that. … People should be more engaged, people should be better citizens. But the fact is we have lives, and there’s no way that any normal person can know about the 10,000 programs that make up the $3.5 trillion federal budget.”

And so the programs keep growing, Stossel said, and we must pay their costs and unintended consequences forever — “Unless, there’s a new wind blowing in America. A new attitude, a new expectation that maybe Washington should do less. I hear there is. I sure hope so.”

Who benefits, loses from regulation?

A Powerline post discusses the Upton-Imhofe bill, which would bar the EPA from regulating carbon dioxide emissions. The article quotes Ranking Democrat Henry Waxman of the House Committee on Energy and Commerce as stating this bill benefits “big polluters like Koch Industries.”

But who really benefits from the regulation of greenhouse gases? First, large companies do. They are better able to absorb the costs of regulation than their smaller competitors. This is why we often see big business promoting increased regulation. It places their smaller competitors at a disadvantage. As Koch Industries is a large company, it is in a position to benefit from the proposed regulations relative to their smaller competitors. But, the company does not support the regulations.

Who will lose from increased regulation of greenhouse gases? Ultimately consumers will, but business is harmed, too. The cost of regulation causes a loss of income, which leads to less of the product (energy) being produced, and a corresponding rise in price. As energy becomes more expensive, it is low-income people that are hurt the most.

Aside from these market effects, the Powerline piece explains an entire industry that has developed to benefit from government subsidy of green energy sources and producers:

But there are, in fact, some companies that would benefit from the imposition of CO2 regulations on power plants, refineries and so on. Those companies are the ones that peddle inefficient forms of energy that cannot compete with fossil fuels absent government subsidies. Those subsidies come in two forms. The government can give money and tax breaks to inefficient energy producers like solar and wind, and it has indeed done that. However, those subsidies are relatively transparent and controversial. The second way in which government can help producers of inefficient energy is, therefore, actually better: it can make energy produced with fossil fuels more expensive by imposing needless regulations. And that is exactly what “green” — i.e., inefficient — energy producers lobby for.

And who are the green energy subsidy-seekers that benefit from increased regulation? Powerline identifies one: Thomas Steyer, a west coast hedge fund manager with investments in green energy companies. He has a personal financial motive, as Powerline describes: “As an investor who has placed a big bet on non-fossil energy, he has an obvious personal interest in the government imposing regulations that make his competitors — producers of fossil fuel energy — more expensive. In fact, without such government action, the ‘green’ projects in which he has invested are likely worthless.”

It should not be surprising that Steyer makes large campaign contributions to Democrats and is a board member of Center for American Progress, a left-wing think tank closely associated with the Obama Administration.

A case study in liberal hypocrisy

By John H. Hinderaker

On Monday, the House Committee on Energy and Commerce began its consideration of the Upton-Imhofe bill, which would bar the EPA from regulating carbon dioxide emissions. Upton-Imhofe is critical to any effort to restore our economy, so the Democrats are against it. Ranking Democrat Henry Waxman went on a hysterical rant against the legislation:

This is dangerous legislation. Climate change is real; it is caused by pollution; and it is a serious threat to our health and welfare. We need to confront these realities, not put our head in the sand like an ostrich.

We have written about this issue many times. Climate change is “real” only in the sense that the climate is always changing. That has been true for millions of years. Climate change is not caused by pollution; history proves that the level of carbon dioxide in the atmosphere does not control worldwide temperatures. Nor is global warming a serious threat to our health and welfare. Humanity has consistently thrived during warmer periods and suffered during colder ones. The Dark Ages were dark largely because they were cold.

Waxman continued:

Yet instead of promoting a clean energy future, we are pursuing this partisan bill that benefits no one except big polluters like Koch Industries.

I suppose Waxman thought he was punching his liberal ticket by mouthing the Democratic Party talking point du jour. Evidently he didn’t get the memo, and hadn’t heard that the Left has backed off on its daily attacks on Koch because those attacks were so over-the-top and so factually deficient that they made laughingstocks of the lefties who asserted them.

Continue reading at Powerline.

Regulation helps big business, not free enterprise

Over and over we see how the conventional wisdom is wrong: that Republicans and conservatives are in bed with government, seeking to unshackle business from regulation — but Democrats and liberals are busy crafting effective regulations to protect the common man from the evils of big business. As it turns out, both Democrats and Republicans love creating regulations, and big business loves these regulations.

How can that be? In the following excerpt from his book The Big Ripoff: How Big Business and Big Government Steal Your Money, author Timothy P. Carney explains that big business is able to use regulation as a blunt tool against competitors, and as a way to improve its image.

How does regulation help big business?

Excerpt from The Big Ripoff: How Big Business and Big Government Steal Your Money, by Timothy P. Carney

If regulation is costly, why would big business favor it? Precisely because it is costly.

Regulation adds to the basic cost of doing business, thus heightening barriers to entry and reducing the number of competitors. Thinning out the competition allows surviving firms to charge higher prices to customers and demand lower prices from suppliers. Overall regulation adds to overhead and is a net boon to those who can afford it — big business.

Put another way, regulation can stultify the market. If you’re already at the top, stultification is better than the robust dynamism of the free market. And according to Nobel Laureate economist Milton Friedman:

The great virtue of free enterprise is that it forces existing businesses to meet the test of the market continuously, to produce products that meet consumer demands at lowest cost, or else be driven from the market. It is a profit-and-loss system. Naturally, existing businesses prefer to keep out competitors in other ways. That is why the business community, despite its rhetoric, has so often been a major enemy of truly free enterprise.

There is an additional systemic reason why regulation will help big business. Congress passes the laws that order new regulations, and executive branch agencies actually construct the regulations. The politicians and government lawyers who write these rules rarely do so without input. Often the rule makers ask for advice and information from labor unions, consumer groups, environmental groups, and industry itself. Among industry the stakeholders (beltway parlance to describe affected parties) who have the most input are those who can hire the most effective and most connective lobbyists. You can guess this isn’t Mom and Pop.

As a result, the details of the regulation are often carefully crafted to benefit, or at least not hurt, big business. If something does not hurt you, or hurts you a little while seriously hindering your competition, it is a boon, on balance.

Another reason big business often cries “regulate me!” is the goodwill factor. If a politician or bureaucrat wants to play a role in some industry, and some executive says, “get lost,” he runs the risk of offending this powerful person. That’s bad diplomacy. Bureaucrats, by their nature, do not like to be told to mind their own business. Supporting the idea of regulation but lobbying for particular details is usually better politics.

Finally there is the principal-agent problem. In a business, who is doing the actual lobbying for or against a regulation? It is typically the company’s government relations person. His or her job is to work with regulators and help the company find its way through the maze of regulation. To the extent government gets out of his or her company’s hair, the government relations executive becomes less important.

Prospects for successful deregulation in Kansas

In the following short piece from the Wall Street Journal, Paul Rubin tells how difficult it was to battle regulation during the Reagan Administration, and therefore offers little hope that President Obama’s recent initiative to curb regulation will have any success.

In Kansas, Governor Brownback has created the “Office of the Repealer” and has appointed Secretary of Administration Dennis Taylor to serve as the “Repealer.” Will this initiative be successful in Kansas? Based on Rubin’s experience in the Reagan Administration, I will be pleasantly surprised if any meaningful repeal or reform of regulation is achieved.

Can Deregulation Work?

It was hard under Ronald Reagan. It will be impossible under Barack Obama.

By Paul H. Rubin

How successful is the president’s recently announced deregulatory initiative likely to be? Based on my experience at two regulatory agencies (the Federal Trade Commission and the Consumer Product Safety Commission) during the Reagan years, I am not optimistic.

President Reagan was serious about deregulation and appointed agency heads — Jim Miller at the FTC, Terry Scanlon at the CPSC — who were also serious. In turn they appointed determined managers like me, and they backed us up.

We did some good, but it was not easy. The permanent staffs of the agencies were always interested in more regulation, either because of self-selection or because promotions and power increase in a larger agency. It also helped that we deregulators (generally economists) were not usually interested in permanent government positions, because reducing the power of the agency is a sure way to make enemies.

Although my mandate was to cut back, I spent more time fighting new proposals than getting rid of old ones. The staffs wanted more, not less. Whenever I met acquaintances from other agencies the invariable comment was “You won’t believe what they want to do now.” (“They” were the permanent staffs.)

The current regulatory agencies are not going to hire or promote people like me. Without managers with a strong interest in deregulation and with the backing of senior administrators, there will be no serious power to buck the staffs. The current executive order seems to impose cost-benefit analysis, but it has enough loopholes (“equity, human dignity, fairness”) so that agencies will be able to do whatever they want.

Deregulation was hard even under Reagan. I am afraid it will be impossible under Mr. Obama.

Mr. Rubin is a professor of economics at Emory University.

Unintended consequences of credit card regulation

While supporters of 2009 Credit CARD (Card Accountability Responsibility and Disclosure) Act promoted it as good for credit card consumers, actual experience has been different, writes Todd Zywicki in The Wall Street Journal. Limits on how credit card issuers can charge their customers has driven people to payday lenders and pawn shops for credit, the very thing lawmakers wanted to curtail.

Key points of Zywicki’s article include:

  • For many Americans the law has meant higher interest rates, increases in fees, and reduced credit limits.

  • Unintended consequence number one: If companies can’t raise interest rates on risky borrowers, they raise interest rates on all borrowers, even those with spotless records.
  • Unintended consequence number two: If companies can’t price risk efficiently and rationally, they cut off customers, which pushes them to payday lenders, which are really expensive.
  • Unintended consequence number three: If companies can’t price risk efficiently and rationally, they will reduce their lending, which means credit card limits are lowered.
  • Banks also drop customers altogether: “In his letter to shareholders last spring, Jamie Dimon of J.P. Morgan Chase reported that, ‘In the future, we no longer will be offering credit cards to approximately 15% of the customers to whom we currently offer them. This is mostly because we deem them too risky in light of new regulations restricting our ability to make adjustments over time as the client’s risk profile changes.’” … “Meet the new payday loan customers,” wrote Zywicki.
  • “Nontraditional financial products serve an important role in the marketplace for the millions of consumers who count on them. Even pawn shops and loan sharks are more palatable and less expensive than the bounced checks and utility shut-offs that would result in their absence.”

Some states are stepping up regulation of payday lenders, which is one of the places people go to for loans if they can’t get a credit card. Montana is such a state, having recently passed — by a citizen ballot measure — a 36 percent interest rate cap on loans. As a result, the Great Falls Tribune reports that nearly all such lenders have closed, with some staying open to collect on existing loans without making new loans.

Comments left to the Wall Street Journal article wonder where the authors of this bill — Former Connecticut Senator Chris Dodd and Representative Barney Frank of Massachusetts — were aware of these entirely predictable consequences. Or, were they just out for a power grab?

No matter what the answer, this is yet another of endless examples of where government regulation — whether well intended or not — harms the people it is intended to help, and others along the way.

Dodd-Frank and the Return of the Loan Shark

In the name of consumer protection, Congress has pushed more Americans outside the traditional banking system.
By Todd Zywicki

The least surprising event of 2010 was that, in the wake of new federal limits on how credit-card issuers can price risk and adjust interest rates, more Americans had to go to payday lenders, pawn shops and local loan sharks in order to get credit. It’s simply the latest installment in the old story of regulators thinking they can wish away the unintended consequences of consumer credit regulation.

Proponents of the 2009 Credit CARD (Card Accountability Responsibility and Disclosure) Act argued that it would protect Americans from exploitative credit-card companies by limiting penalty fees and interest-rate adjustments. For many Americans, though, the law meant higher interest rates, an increase in other fees, and reduced credit limits.

Continue reading at The Wall Street Journal (subscription required)

The Four Loko challenge: not for me

On Friday Wichita Eagle reporter Dion Lefler issued a challenge to me based on my criticism of FDA regulation of Four Loko, a beverage marketed to young people that contains lots of alcohol, the stimulant caffeine, and other energy-producing ingredients. See Will Voice for Liberty blogger Bob Weeks accept the Four Loko challenge?

Dear Dion,

The short answer is thank you for asking, but I won’t be accepting the challenge. After all, the can of Four Loko contains as much alcohol as a bottle of wine. Now I enjoy a cocktail or glass of beer now and then, but I don’t think I’d enjoy consuming that much alcohol quickly in a short time. (I think that’s what “shotgun” means.)

Underlying this article is a serious public policy issue, described in Lefler’s reporting on the topic in the article Kansas scrutinizes alcoholic energy drink. Because the mix of caffeine and alcohol in this and similar beverages causes some people to consume more alcohol that they might realize, young people have been injured and hospitalized after consuming large quantities. The result is a call for banning the drink. Because I am not in favor of such regulation, I think I’m being accused of advocating the use of Four Loko by young people.

The challenge faced by all who favor liberty over heavy-handed state regulation is that by not supporting — in this case — a law or regulation against Four Loko, critics accuse us of endorsing its use. Or, since we don’t support laws against these things, critics assume that we don’t care about the unfortunate people who have been, and may still be, harmed by use and abuse of Four Loko.

I care. I’m sorry that young people have been harmed by this product. I don’t want anyone to be hurt or killed. But often regulation — no matter how well intended, no matter how sensible — doesn’t work. Sometimes regulation causes harmful unintended consequences.

A recent example is the bans on texting while driving that have been passed in many states, including Kansas. Sounds like sensible regulation, doesn’t it? Who wants to see people harmed on our streets and highways because someone was pecking out a text message while speeding down the street?

But as we learned a few months ago, the texting bans may not be working. According to the Highway Loss Data Institute: “… such bans are associated with a slight increase in the frequency of insurance claims filed under collision coverage for damage to vehicles in crashes.” Speculation is that the illegality of texting while driving causes people to attempt to disguise their texting, which increases the danger.

Will banning Four Loko produced the desired result?

There’s other ways to produce the effect that Four Loko and similar drinks provide, if people want that. One can simply drink coffee or consume caffeine in other forms while drinking alcohol. A popular cocktail in clubs (so I’m told) is Red Bull and vodka. Red Bull is a popular energy drink that contains a lot of caffeine and other ingredients designed to increase one’s energy level. Mixed with vodka, it’s pretty much the same recipe of active ingredients as Four Loko.

But there’s not been much publicity about the negative effects of this cocktail, to the extent they exist. Perhaps it’s because the Red Bull/vodka drinkers may be an older group, while Four Loko is marketed towards young people.

Now that the maker of Four Loko has announced a non-caffeinated version, how long will it be until people start mixing in or consuming NoDoz or other caffeine-containing products with this new version? Will this behavior be even more dangerous? The forbidden fruit is very tempting.

The regulatory state

In the Central Washington University incident that is often cited regarding Four Loko, the injured college students were “freshmen ranging in age from 17 to 19,” according to news reports. The legal drinking age in Washington is 21, so it was probably illegal for these young people to be possessing and consuming any type of alcoholic beverage.

As Lefler reports, if Kansas wants to ban these products, it would probably take an act of the legislature. Assuming Kansas lawmakers would pass such a law and the governor would sign it — and it seems likely they would — the soonest it could be done in normal course is January, when the legislature starts its next session.

This highlights a weakness in the state regulatory machinery. If we believe state regulation is the best way to deal with this product, what if the calendar says it’s May and the legislature has just adjourned, not to meet again until January? Shall the governor call a special session?

At the federal level, the FDA news release from last week states: “FDA’s action today follows a November 2009 request to manufacturers to provide information on the safety of adding caffeine to their products.” Apparently this issue has had the attention of the FDA for a year, but only now is action being taken.

But — regulation may work

Because Four Loko is sold in stores that are already heavily regulated in most states, a ban on Four Loko and similar beverages will be relatively easy to enforce. Few liquor retailers will be willing to come under state sanction and possibly losing their licenses for selling these products. So regulation will likely be successful in getting rid of the product in legal sales outlets. But as mentioned above, the same recipe and effect can be had in a variety of ways, all legal.

Which brings up a related point: What if there was a new variety of an already-illegal drug, perhaps marijuana, that caused harmful effects on the same level as Four Loko? How would we deal with that? Because sellers of marijuana already operate illegally in most states, they don’t have the same concerns about keeping their licenses as do liquor stores.