Cato: More Americans Die in Animal Attacks than in Terrorist Attacks

Comparing the risk of dying in a terrorist attack to a common household accident like slipping in the bathtub is inappropriate.  After all, inanimate objects like bathtubs do not intend to kill, so people rightly distinguish them from murderers and terrorists.  My research on the hazard posed by foreign-born terrorists on U.S. soil focuses on comparing that threat to homicide, since both are intentional actions meant to kill or otherwise harm people.  Homicide is common in the United States, so it is not necessarily the best comparison to deaths in infrequent terror attacks.  Yesterday, economist Tyler Cowen wrote about another comparable hazard that people are aware of, that is infrequent, where there is a debatable element of intentionality, but that does not elicit nearly the same degree of fear: deadly animal attacks.

Cowen’s blog post linked to an academic paper by medical doctors Jared A. Forrester, Thomas G. Weiser, and Joseph H. Forrester who parsed Centers for Disease Control and Prevention (CDC) mortality data to identify those whose deaths were caused by animals in the United States. According to their paper, animals killed 1,610 people in the United States from 2008 through 2015. Hornets, wasps, and bees were the deadliest and were responsible for 29.7 percent of all deaths, while dogs were the second deadliest and responsible for 16.9 percent of all deaths.

The annual chance of being killed by an animal was 1 in 1.6 million per year from 2008 through 2015.  The chance of being murdered in a terrorist attack on U.S. soil was 1 in 30.1 million per year during that time.  The chance of being murdered by a native-born terrorist was 1 in 43.8 million per year, more than twice as deadly as foreign-born terrorists at 1 in 104.2 million per year.  The small chance of being murdered in an attack committed by foreign-born terrorists has prompted expensive overreactions that do more harm than good, such as the so-called Trump travel ban, but address smaller risks than those posed by animals.

Read more at https://www.cato.org/blog/more-americans-die-animal-attacks-terrorist-attacks

Cato: Qualified Immunity: The Supreme Court’s Unlawful Assault on Civil Rights and Police Accountability

Our primary federal civil rights statute, colloquially called “Section 1983,” says that any state actor who violates someone’s constitutional rights may be sued in federal court. This remedy is crucial not just to secure relief for individuals whose rights are violated, but also to ensure accountability for government agents. Yet the Supreme Court has crippled the functioning of this statute through the judge-made doctrine of “qualified immunity.” This doctrine, invented by the Court out of whole cloth, immunizes public officials even when they commit illegal misconduct unless they violated “clearly established law.” That standard is incredibly difficult for civil rights plaintiffs to overcome because the courts have required not just a clear legal rule, but a prior case on the books with functionally identical facts.

In Pauly v. White, 874 F.3d 1197 (10th Cir. 2017), the Tenth Circuit used qualified immunity to shield three police officers who brutally killed an innocent man in his home. The officers had no probable cause to think Samuel Pauly had committed any crime, but they stormed his home with guns drawn and shouted that they had him surrounded—yet failed to identify themselves as police. Mr. Pauly and his brother reasonably believed they were in danger and retrieved two guns to defend themselves. After his brother Daniel fired two warning shots to scare away the unidentified attackers, Samuel was shot dead by one of the officers—Ray White—through the front window of his home.

Read more at https://www.cato.org/blog/qualified-immunity-supreme-courts-unlawful-assault-civil-rights-police-accountability

Cato: Keeping Russia’s Electoral Misdeeds in Perspective

Concerns about Russia’s apparent interference in the 2016 U.S. presidential election are becoming deeper and more widespread.  The latest episode was the indictment of 13 Russian nationals as a result of Special Counsel Robert Mueller’s investigation.  The indictments allege that those individuals operated an internet “troll farm” producing propaganda to exacerbate America’s political and social divisions.  The alleged goal was to weaken Hillary Clinton’s electoral prospects (as well as those of Ted Cruz and Marco Rubio) and strengthen those of Donald Trump and Bernie Sanders.

If such activities occurred with the approval of Vladimir Putin’s government (as is likely the case) Moscow has committed a serious breach of diplomatic norms.  However, angry Americans need to keep the offense in perspective.  The social media propaganda campaign was surprisingly crude and amateurish.  Even the Mueller indictment conceded that there is no evidence the efforts of the Russian trolls changed even a small number of votes, much less altered the outcome of the presidential contest.

However, as I point out in a recent National Interest Online article, the reaction in some American political and media circles to the “Russian meddling” scandal, even before the latest revelations, was shrill to the point of outright hysteria.  The most egregious manifestation is the determination of some critics of the Trump administration to compare Moscow’s behavior to an act of war akin to Pearl Harbor and 9-11.

Read more at https://www.cato.org/blog/keeping-russias-electoral-misdeeds-perspective

Cato: Constitutional Defects Big Enough to Drive a (Food) Truck Through

Imagine that it’s your first day at a new job. As you endure the tedious onboarding process, an interesting tidbit catches your attention; among the perks of your new position, you will be issued a company car and cell phone. “Sweet!” you exclaim, now more confident than ever of having made the right career move. But your enthusiasm drops precipitously as you learn that GPS devices have been installed on both the car and phone, allowing the company to continuously track your location. And your shock turns to horror when you are informed that the (mandatory) use of these items requires that you consent to the police having unfettered access to the resulting information, thus waiving your Fourth Amendment rights. While commenting on what a huge mistake accepting the position was on your way out the door, HR drops perhaps the biggest bombshell of all: “Sorry you feel that way, but it’s the city’s rule, not ours, and every other company in the field has the exact same rules… so good luck finding another job!”

Incredibly, such a dystopian scenario could become commonplace if the City of Chicago has its way.

LMP Services is a company owned by Laura Pekarik, who has operated the “Cupcakes for Courage” food truck since 2011. About a year after starting her business, Chicago passed ordinances requiring food trucks to install GPS trackers and to refrain from operating within 200 feet of established restaurants. LMP then sued to prevent enforcement of these laws—and is capably represented by our friends at the Institute for Justice.

While this case ostensibly involves food trucks in Chicago, if the Fourth Amendment fails to protect against laws like these, then there is very little to prevent cities and states across the country from extending similar regulations to virtually any other disfavored economic activity. In erroneously ruling that these requirements don’t involve an unreasonable search and don’t intrude on any liberty interests, the Illinois Appellate Court employed two lines of reasoning.

Read more at https://www.cato.org/blog/holes-illinois-courts-logic-are-big-enough-drive-food-truck-through

Cato: An Executive Office Doesn’t Become a Judicial One Simply by Changing Its Name

In sports—including the current Winter Olympics in South Korea—the concept of the “home field advantage” is pervasive. But in government, separating powers among three branches is supposed to protect individual liberties when the government pursues someone for an alleged legal infraction.

Well, Raymond Lucia felt that the Securities and Exchange Commission had such an advantage when he was fined $300,000 and barred from working as an investment adviser after an SEC administrator determined that he had misled prospective clients in a quasi-judicial proceeding that the SEC investigated, prosecuted, and adjudicated without any appreciable oversight.

Lucia fought the SEC, because the agency’s administrative law judges (ALJs) are, in fact, “officers” of the SEC and not mere employees, meaning that under the Constitution’s Appointments Clause, they should have been appointed by and be accountable to the president or a department head. As the Supreme Court held in a similar challenge to the Public Company Accounting Oversight Board in 2010, “if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” The president has a duty to ensure the law is faithfully executed, and to do so he must be able to remove those officers who fail to uphold their duties.

The U.S. Court of Appeals for the D.C. Circuit deadlocked over the issue of whether ALJs are executive officers and thus subject to the removal power. As it stands, they’re protected from control by the electorate because the president currently lacks the ability to remove ALJs who abuse their powers or otherwise act badly. Cato supported Lucia’s successful petition for Supreme Court review. Now we file on the merits, ahead of oral argument.

Read more at https://www.cato.org/blog/executive-office-doesnt-become-judicial-one-simply-changing-its-name

Cato: The Russian Danger

Last week Robert S. Mueller III, the special counsel, indicted 13 Russians for intervening in the 2016 United States election. Two of the charges  - buying political advertisements and mandatory disclosure - bear on free speech.

Much of the indictment documents activities during the election that would be both normal and protected by the Constitution if undertaken by American citizens. The defendants bought political advertisements, staged political rallies, and even “posted derogatory information about a number of candidates,” Hillary Clinton in particular. Lacking all scruples, they are said to have “solicited and compensated real U.S. persons to promote or disparage candidates” which means paying an actress to impersonate Hillary Clinton in jail. The defendants tried to create “political intensity through supporting radical groups, users dissatisfied with [the] social and economic situation and oppositional social movements.” Overall the Russians hoped “to sow discord in the U.S. political system.”

As it happens, all this activity may be illegal because the Russian government supported these activities. The Federal Election Commission concisely explains regulation 110.20: , “The Federal Election Campaign Act (FECA) prohibits any foreign national from contributing, donating or spending funds in connection with any federal, state, or local election in the United States, either directly or indirectly.”  The Commission notes that this ban “was first enacted in 1966 as part of the amendments to the Foreign Agents Registration Act (FARA), an “internal security” statute.  The goal of the FARA was to minimize foreign intervention in U.S. elections by establishing a series of limitations on foreign nationals.” FARA also required agents of foreign principals to register with the federal government presumably, as the indictment says, so “the people of the United States are informed of the source of information and the identity of persons attempting to influence U.S. public opinion, policy, and law.” (It should also be noted that the defendants are charged with several counts of fraud and identity theft).

These two parts of the law establish different rules for different audiences. Voters in an election are prohibited from hearing speech funded by a foreign power. Arguably, they are prevented from hearing any speech by an employee of a foreign government; such speech would  involve indirect spending on an election. Other listeners, unnamed in the law, need not be prevented from hearing speech of foreigners “attempting to influence U.S. public opinion, policy, and law.” The public, apart from electoral appeals, and public officials, including above all members of Congress, may hear foreign speech assuming disclosure of its source. Voters, however, should be, and are protected from such speech.

Read more at https://www.cato.org/blog/russian-danger

Cato: The Trial Penalty

Have you ever heard of the “Trial Penalty”? It is among the most important features of America’s criminal justice system, and yet there is no reference to it in the Constitution, it is not taught in high school civics classes or even law schools, and most lawyers have never heard of it. Nevertheless, the Trial Penalty is the grease that keeps the massive engine of American criminal justice humming along at peak efficiency.

So what is it? Simply put, the Trial Penalty is the array of penalties, paybacks, and repercussions that are inflicted upon criminal defendants who presume to insist upon exercising their Sixth Amendment right to a jury trial—or what Cato Research Fellow Trevor Burrus calls “bespoke justice.”

With more than 10 million arrests last year and the world’s highest incarceration rate, America’s criminal justice system simply cannot afford to provide each and every defendant with an expensive and time-consuming jury trial. Nor do we: These days, about 95 percent of criminal convictions are obtained through plea bargains rather than jury trials. In the federal system, the numbers are even higher—more than 97 percent of convictions come from plea bargains.

Think about that for a moment. The citizen jury is the cornerstone of American criminal justice. It is a historic and hallowed institution. Why would so few people choose to invoke such a precious and fundamental right as the opportunity to challenge the government’s case in court and force the prosecutors to convince a unanimous jury (in most jurisdictions) of guilt beyond a reasonable doubt?

The answer is the Trial Penalty, and a recent case from the Second Circuit Court of Appeals in New York, United States v. Tigano, illustrates what a pernicious and sordid tool of injustice it is.

Read more at https://www.cato.org/blog/trial-penalty

Cato: When Corruption Is a Job Perk

I recall quite vividly the day I first witnessed the potency of the “get out of jail free” cards issued by Police Benevolent Associations. I was a teenager in the New Jersey suburbs headed to a concert with a car full of friends, and our driver was so caught up in conversation about what a great show it was going to be that, despite our feeble warning shouts, he barrelled through a solid red light going about 40 miles per hour—a red light with a police car stopped on the opposite side of the intersection. Predictably, the police car immediately flipped on its siren and tore after us. The passengers resigned ourselves to missing the start of the show. At the very least we were going to be stuck waiting through a sobriety test. The driver was surprisingly calm. He explained that he had both a card and a silver shield in the rear window identifying him as a family member of a law enforcement officer. To our astonishment, the stop was the shortest I’ve ever sat through before or since. The officer made some small talk with the driver, asked (without checking) whether his record was clean, then apologized for the delay before sending us on our way. As our friend explained on the way to the show, an ordinary paper card—the sort given to friends of police or folks who’ve made a donation to a PBA—would have been torn up after such an encounter, providing immunity for only a single minor infraction, while the family versions were permanent.

Since I don’t own a car, I hadn’t thought about these in years, until a story in the New York Post—about officers livid that the union was cutting their allotment of cards to distribute—provoked a flurry of discussion on social media. Readers who’d never heard of the practice before reacted with shock that this form of petty corruption could be so normalized that there would actually be official cards, openly distributed by police departments or their unions, for the explicit purpose of placing friends, family, and donors above the law—even if only for relatively minor infractions. The idea that family of police might get more lenient treatment was not particularly surprising, but many seemed taken aback that the practice could be so shamelessly institutionalized on such a large scale. Is there, after all, any conceivable non-corrupt reason for issuing wallet-sized cards identifying the bearer as a relative of police?

That sense of shock was, I immediately recognized, the correct reaction. As long as laws are enforced by human beings, a bit of small-scale local nepotism in the enforcement of the law is probably unavoidable. But there is something quite toxic about institutionalizing it, to the point where officers feel so entitled to special treatment for themselves and their friends and family that they express open outrage when the law is applied to them as it would be to any other citizen. Getting out of a speeding ticket may not seem like a dire threat to the rule of law—though you do have to wonder how many cardholders feel emboldened to drive intoxicated—but I think one can reasonably draw a link between this sort of petty favoritism and the more serious abuses that leave so many minority communities regarding their local police less as public servants than an occupying force.

Read more at https://www.cato.org/blog/when-corruption-job-perk-0

Cato: For the Purposes of the Fourth Amendment, Does it Matter Where Your Email Is Stored?

People use email for many things: to collaborate at work, catch up with old friends, share baby pictures, or, sometimes, to coordinate the operations of an international narcotics trafficking ring. The federal government believes certain Microsoft-hosted email accounts were used for this last purpose and is demanding Microsoft provide them access to the communications stored within.

The Stored Communications Act (SCA) governs federal law enforcement’s authority to search email and other electronic records. They must obtain a warrant, subject to constraints similar to those imposed by the Fourth Amendment, and then provide an opportunity for the target company (e.g. Microsoft here) to contest the warrant.

Microsoft chose to contest the warrant in this case on the ground that the emails in question are stored on servers in Ireland, arguing that federal law enforcement may not claim jurisdiction over the entire globe. The federal government argues that the happenstance of the server’s location is invisible to the user, who, while sitting in his apartment in Manhattan (or wherever), is oblivious to whether his email server is in Galway or Yonkers. Because this is an important and recurring question, the Supreme Court decided to step in and sort the matter out.

Read more at https://www.cato.org/blog/purposes-fourth-amendment-does-it-matter-where-email-stored

Cato: Privatizing Federal Grazing Lands

The federal government owns 640 million acres of land—mainly in the West—which is 28 percent of land in the United States. For more than a century after the nation’s founding, the federal government aimed to sell or give away western lands to individuals, businesses, and state governments. But by the turn of the 20th century, federal policy came under the sway of progressives, who favored increased federal control.

Progressives had a misguided notion that federal ownership would be efficient and environmentally sound. Broadly speaking, they were wrong. Experience has shown that federal agencies mismanage land from both economic and environmental perspectives, as discussed here and here. The solution is to devolve ownership of most federal land to the states and private sector.

The Bureau of Land Management (BLM) owns about 250 million acres of land, of which about 160 million acres are used for livestock grazing. Cato scholar Steve Hanke championed BLM land privatization as an economist for President Ronald Reagan. He proposed that ranchers be allowed to buy the grazing land that they currently rent from the BLM.

Privatization would create benefits by securing property rights. Currently, ranchers are uncertain about their future access to the federal grazing lands they use, so they have incentives to overstock the lands and disincentives to make capital improvements. Privatization would allow ranchers to plan for the best economic and environmental rangeland management over the long term.

Read more at https://www.cato.org/blog/privatizing-federal-grazing-lands

Cato: Colorado: Where Anyone Can Squelch Political Speech

With school board elections approaching, Tammy Holland purchased ad space in her local paper to inform her neighbors about their available options when it came time to vote. For this brazen exercise of her free speech rights, Ms. Holland found herself forced to expend considerable time and resources to defend her actions in court, twice. You might wonder how this could happen in a “free” country that ostensibly enjoys the blessings of the First Amendment. Unfortunately, Colorado’s byzantine system of campaign and political finance regulations not only turn a blind eye to First Amendment concerns, but actively incentivizes politically motivated, retaliatory litigation.

Colorado is unique in being the only state to effectively outsource enforcement of its campaign finance regulations by allowing “any person who believes” that campaign finance laws are being violated to “file a written complaint with the secretary of state.” Filing a complaint triggers a litigation process culminating in a court hearing before an Administrative Law Judge, much like a trial. After Ms. Holland was dragged into court on the whim of individuals who took issue with her speech, Campaign Integrity Watchdog (CIW)—an outside group that was not a party to the litigation—filed a motion requesting the court seal otherwise public records because they contain information related to campaign finance settlements. If the court grants CIW’s request, the public will never be able to access vital information about how these cases are resolved. In an effort to protect the public’s right to know, Cato has joined the Reason Foundation to file an objection to CIW’s motion.

Read more at https://www.cato.org/blog/colorado-where-anyone-can-squelch-political-speech

Cato: Eighth Circuit Makes Tangled Mess of Hair Braiding Case

Readers of this blog may recall Cato’s filing an amicus brief for an appeal in the Eighth Circuit supporting two Missouri women’s challenge to state requirements that they become licensed as cosmetologists or barbers before being allowed to work as African-style hair braiders. Obtaining the mandatory license from the Missouri Board of Cosmetology & Barber Examiners entailed undergoing a minimum of 1,000 hours of mostly irrelevant training and passing an exam with both written and “practical” (term used loosely) components.

Not only is over 90 percent of the required training completely inapplicable to the practice of African-style hair braiding, but seven of the nine board members are barbers, cosmetologists, or cosmetology school owners with a direct financial incentive to limit competition.

None of that mattered to the three judges on the Eighth Circuit panel, who yesterday after a full year of foot-dragging issued a perfunctory opinion upholding the district court ruling in the board’s favor. Instead of finally providing two aspiring entrepreneurs their day in court before a neutral arbiter, this ruling continues the pattern of courts’ violating bedrock due-process principles by rubber-stamping occupational regulations under the flimsiest of rationales.

Read more at https://www.cato.org/blog/eighth-circuit-makes-tangled-mess-hair-braiding-case

Cato: Oregon Returns One of Two Kids It Seized From Low-IQ Couple

Amy Fabbrini and Eric Ziegler of Redmond, Oregon have not been accused of abuse or neglect, and “both have standard high school diplomas,” reported Samantha Swindler in The Oregonian this summer. But the state of Oregon deems their IQs to be too low and has seized their two sons in what has turned into a four-year battle. 

I was a guest in August on Glenn Beck’s radio show to discuss the case. The Blaze summarizes:

"Essentially, the state doesn’t have to prove anything definite to take away a child; the argument is that they are going by the expert’s recommendation for what’s best just in case something could happen. In Fabbrini’s case, her estranged father has told authorities that she is an unfit mother; however, people closer to her have vouched for her ability to parent.

“If they [authorities] want to take your child, they’ve got him,” Olson said….

“It’s been called [‘worst-first’] thinking,” he explained. “If you’re in the child protection business, then, you know, everything looks like a danger. … You always think the worst possible thing could happen.”"

Read more at https://www.cato.org/blog/oregon-returns-one-two-kids-it-seized-low-iq-couple

Cato: Not Everything Professionals Say Is “Professional Speech”

Like all states, California has licensed medical centers of every kind. One particular type, often known as a “crisis pregnancy center,” provides pregnancy-related services with the goal of helping women to make choices other than abortion. Based on opposition to these centers, the California legislature enacted a law, the FACT Act, requiring licensed clinics “whose primary purpose is providing family planning or pregnancy-related services” to deliver to each of their clients the following message: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women.” But the law also creates an exception for clinics that actually enroll clients in these programs—so, in effect, the law applies only to clinics that oppose the very program they must advertise.

Several of these crisis pregnancy centers sued to block the law, arguing that it violated their First Amendment rights by forcing them to express a message to which they are opposed. But the U.S. Court of Appeals for the Ninth Circuit upheld the law, holding that it regulates only “professional speech” and therefore should be reviewed under a more deferential standard, rather than the normal strict judicial scrutiny that applies to laws compelling speech. The Supreme Court agreed to review that ruling in a case called National Institute of Family and Life Advocates (“NIFLA”) v. Becerra. Cato has filed a brief urging the justices to correct the lower court’s flawed reasoning.

Read more at https://www.cato.org/blog/not-everything-professionals-say-professional-speech

Cato: Defendants, Not Their Attorneys, Should Decide Whether to Admit Guilt

Criminal defense is personal business. A criminal defendant may never face a more momentous occasion than his trial, nor one where his decisions have greater personal consequence. For this reason, the Constitution not only mandates rights for the accused but also secures a defendant’s autonomy in the exercise of those rights: “The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.” Faretta v. California, 422 U.S. 806, 819 (1975).

Robert McCoy sought to exercise his autonomy on one of the most fundamental decisions a defendant can possibly make—whether to admit or deny his own guilt before a jury. On trial for his life, McCoy made an informed, intelligent, and timely decision to maintain his innocence and put the state to its burden. But that decision was not respected. Over McCoy’s express objection, the trial court permitted his attorney, Larry English, to tell the jury that McCoy was guilty of murder. With the court’s approval, English even purported to relieve the state of its burden to prove McCoy guilty of murder beyond a reasonable doubt. Following this brazen violation of McCoy’s autonomy, the jury returned a unanimous verdict for first degree murder and sentenced McCoy to death.

The Louisiana Supreme Court upheld McCoy’s conviction, and effectively treated his insistence on deciding for himself whether to admit or deny guilt as a claim for ineffective assistance of counsel. But that framing elides the fundamental interest at issue here. In a capital case with overwhelming evidence, it may be tactically advantageous to admit guilt, with the hope of avoiding the death penalty at the sentencing phase. But the issue is not whether such a strategy is reasonable; it is whether a mentally competent defendant, fully informed of his situation, may decide for himself whether to maintain innocence and demand the state prove his guilt beyond a reasonable doubt.

Read more at https://www.cato.org/blog/defendants-not-their-attorneys-should-decide-whether-admit-guilt

Cato: Border Patrol Checkpoints Do Not Work—End Them

Data from a new Government Accountability Office (GAO) report shows that interior checkpoints manned by Border Patrol agents are a poor use of resources, at least from an enforcement perspective. Border Patrol checkpoints would have to have apprehended about 100,000 to 120,000 more illegal immigrants from FY2013-2016 than they actually did to justify the man-hours spent occupying them by agents. Even those who support expanding immigration enforcement along the border should recognize that checkpoints are a waste of scarce border security resources.

Border Patrol agents man checkpoints within 100 miles of the U.S. border where they can stop motorists, inquire about immigration status, and enforce other laws. Checkpoints are a significant risk to civil liberties and are expensive to run. Supporters argue that checkpoints are effective at enforcing federal laws against illegal immigration and drugs, although Border Patrol officials state that they are more concerned about the former. However, the number of illegal immigrant apprehensions, drug seizures by weight, and the deployment of Border Patrol man-hours to checkpoints show that they are not a good use of resources if the goal is to enforce immigration and drug laws.

Figure 1 comes from data reported by the GAO for FY2013-2016. About 9.4 percent of all man-hours worked by Border Patrol were at checkpoints but they only apprehended 3.1 percent of all illegal immigrants apprehended and 5.4 percent of all marijuana seized by weight, at best. At worst, Border Patrol apprehended only 1.9 percent of all illegal immigrants at checkpoints (this same number estimate is not reported for marijuana seizures). This means that Border Patrol agents would have to have apprehended 101,219 to 120,978 more illegal immigrants from FY2013-2016 at checkpoints than they actually did in order for their expenditure of man-hours to be proportional to their apprehensions.

Read more at https://www.cato.org/blog/border-patrol-checkpoints-do-not-work-end-them

Cato: LaHood: Make Bus Riders Pay for DC Rail Fix

Washington Metro should raise bus fares and cut service as a part of a plan to restore its rail system to its former greatness, recommends a report by former Secretary of Transportation Ray LaHood. The report hasn’t been released yet–in fact, it has apparently been sitting on the Virginia governor’s desk for several weeks–but the Washington Post obtained a copy just in time for the report to have no influence on Virginia’s recent election.

Parts of the report are predictable, such as a recommendation that Metro obtain a source of “dedicated funds,” meaning a tax dedicated to it so it won’t have to be responsive to local politicians. However, LaHood’s mandate was to come up with a specific funding source acceptable to regional political interests, and he failed to do so.

What was not predicted was a finding that Metro “offers more [vehicle-hours of] service per rider than other large transit agencies.” Based on this finding, LaHood recommended cutting back service. The report notes that service levels were “average when compared to peers” until the opening of the Silver Line led to increased service hours coinciding with a decline in ridership.

So as the Silver Line has not only hurt the rail system, LaHood now recommends that Metro fix the problem by cutting back on service. But he does not recommend cutting back on Silver Line service. Instead, LaHood wants Metro to cut back on bus service (which he says is also above average) and raise bus fares. Ironically, this echoes my recent commentary noting that transit agencies often pay for the high cost of rail by cutting bus service.

Another of LaHood’s findings is that Metro’s costs are “average” compared with its peers. But, as former Indianapolis mayor Stephen Goldsmith once noted, you can’t find out whether a public agency’s costs are reasonable by comparing it with other public agencies; you need to compare it with private operators. For example, Denver’s RTD contracts out half its buses to private operators that consistently charge RTD about 52 to 53 percent of the amount RTD spends running its own buses.

LaHood could have recommended that Metro contract out its bus service. In 2016, it spent $15 per vehicle-revenue mile operating its buses. Denver’s RTD spent $11 per vehicle-revenue mile on its buses, but paid private contractors less than $6 per vehicle-revenue mile on the buses they operated. Based on this, Metro’s costs may be “average” but are not reasonable.

Rather than save money by contracting out service, LaHood wants bus riders, who are disproportionately black, to pay more for less service in order to make up for Metro’s incompetence in managing its rail system. Meanwhile, he did not propose to raise fares for rail riders, who are disproportionately white.

Read more at https://www.cato.org/blog/lahood-make-bus-riders-pay-dc-rail-fix

Cato: Much Ado Abood the First Amendment

After a year of contentious negotiations between Illinois Governor Bruce Rauner and the American Federation of State, County, and Municipal Employees, Council 31 (“AFSCME”), the parties reached a bargaining impasse in early 2016. As a result, the governor attempted to institute reforms over AFSCME’s objections, with the union then suing to thwart implementation. Caught in the middle of this power struggle was Mark Janus, a state employee who was compelled to subsidize the union’s efforts despite his personal opposition to its position (and non-membership). These forced exactions, known as “agency fees,” essentially provide workers in the 25 states that allow them with a Hobson’s choice: Either sacrifice your First Amendment rights by funding political advocacy you may not like, or find another job.

The Supreme Court precedent allowing this unjust scenario, Abood v. Detroit Board of Education (1977), has become quite controversial. Twice in the past five years, the Court has explicitly questioned its central holding that mandatory agency fees are constitutional, and two terms ago the Court split 4-4 on the issue of whether to overturn Abood outright. Mr. Janus’s case finally provides the Court with a golden opportunity to restore the First Amendment liberties of the country’s public-sector workers. One of the union’s central arguments is that stare decisis should keep Abood in place. Stare decisis is a legal doctrine whereby courts are bound by their own precedents because of the reliance interests that have built up around them; sometimes it’s more disruptive to society to get a ruling right than to allow a possibly erroneous ruling to stand.

Because only constitutional amendments can check the Supreme Court’s constitutional rulings, however, and given that it’s increasingly hard to enact constitutional amendments, stare decisis is at its weakest when constitutional rights are being violated. In fact, when judges find that certain prudential factors weigh in favor of overturning precedent, judges have a duty to correct those past constitutional mistakes.

Read more at https://www.cato.org/blog/much-ado-abood-first-amendment

Cato: The Pernicious Doctrine of “Accusation Equals Guilt”

Equating mere allegations of misconduct with definitive evidence is a growing habit in the United States.  That tendency is most prevalent regarding national security matters, and the trend has been building since the onset of the so-called war on terror following the 9-11 attacks.  Conservatives are especially prone to assert that “terrorists” are not entitled to constitutional rights, even if they are American citizens.  The obvious problem with that argument is that until a fair and impartial trial is held, the individuals in question are merely accused terrorists.  The whole point of due process is to determine whether a defendant is guilty or not.

Alarmingly, George W. Bush’s administration asserted the authority to jail suspected terrorists without trial or even a hearing before an independent tribunal.  In the case of Jose Padilla, an American citizen apprehended at Chicago’s O’Hare International Airport, the government designated him an “enemy combatant” and held him (as well as inflicted torture) for nearly four years at a military prison in South Carolina before bringing charges to a grand jury.  Even then, the administration’s belated application of due process occurred only in response to the U.S. Supreme Court’s prodding.

It would be a mistake, though, to assume that only right-wing leaders embrace the notion that accusation equals guilt.  The Obama administration escalated its predecessor’s contempt for due process.  President Bush merely asserted his alleged authority to imprison American citizens without trial.  President Barack Obama asserted an authority to execute such people without trial.  That point was underscored when he authorized a September 2011 drone strike that killed radical Islamic cleric Anwar al-Awlaki, an American citizen, in Yemen.  A separate strike the following month killed Alwaki’s 16-year-old son.

Read more at https://www.cato.org/blog/pernicious-doctrine-accusation-equals-guil

Cato: Private Forums for Political Speech

Congress is considering the Honest Ads Act, an effort to force disclosure of political advertising on the Internet. We ought to be skeptical anytime Congress seeks to manage a private forum for purposes of improving political speech. I will return to my skepticism in a later post. For the moment, I want to examine how the managers of that private forum have responded to the bill.

Facebook has announced a host of changes to its advertising marketplace, attempting to forestall regulation by satisfying congressional concerns through private action. Facebook is acting to counter a threat of regulation and that itself is disturbing. We do not wish to see Facebook bullied into actions that run counter to their own inclinations. Yet, Facebook also has a history of seeking to satisfy its users, and it is possible that such business motives are at work. Perhaps we should avoid for now deciding that Facebook has been coerced. That said, there is good reason to believe that self-regulation can address the concerns of lawmakers more effectively than government action.

The Honest Ads Act is purportedly intended to reduce the ability of foreign governments to meddle in our elections while providing voters with access to information about the source of advertisements. Targeted advertisements, which appear only to users who match certain profiles, are of particular interest to legislators.

Read more at https://www.cato.org/blog/private-forums-political-speech