A couple nights ago, the original Post-Modern Conservative James Poulos, Scott Payne and I spent a few dozen minutes discussing torture – how our thoughts on the issue have evolved, why prosecutions and/or truth commissions aren’t such an easy call, and most importantly why the aspect of the torture program that is most troubling is the secrecy it entails. If you have some time, have a listen.

Click here to Listen

Some of the posts/pieces we mentioned are linked here:

James’ unique take on torture at pomocon here and here, which acts as a jumping off point for the best parts of the conversation.

James and Daniel Larison’s conversation about empire linked here.

Most of my writing on the subject can be found here at the League of Ordinary Gentlemen. The most relevant of those posts is this one.

The Bacevich Globe piece is here.

And Tyler Cowen’s post opposing prosecution that James mentions can be found here.

There’s a section in the middle of the audio where we discuss the relevance of American interventionism and I turn into a blithering idiot for a few minutes. But Scott and James’ discussion on that issue is well worth the dead air I cause.

Cross-posted.

First, let me say that I respect Sonny Bunch. A lot. I rarely agree with Sonny, but he is clearly and genuinely interested in engaging those with whom he disagrees.

That said, the posts (and subsequent responsive comment) with which E.D. and Mr. Schwenkler take issue is emblematic of something that has been particularly frustrating to me over the last several days or so. Specifically, I’m frustrated at the certainty with which proponents of waterboarding and various other procedures outlined in the OLC memos proclaim that those procedures were clearly “not torture.”

The fact is, whatever one thinks of the legal acumen demonstrated (or, more accurately, not demonstrated) in the OLC memos, and especially the Bybee memo, they do not provide a basis for concluding that waterboarding, et al – especially when combined in one continuous program – are “clearly” not torture. The Bybee memo itself states quite explicitly that waterboarding in particular is pretty damn close to being torture, going so far as to say that it is a “predicate act” for a finding of torture. So if you’re going to rely on the Bybee memo as an accurate depiction of the law (which it isn’t – seriously, I’ve seen associates fired for less shoddy memos), then at the very least you have to acknowledge that these actions come pretty damn close to being torture, and that there is hardly anything outrageous or unhinged about calling these acts torture.

In other words, if you’re going to rely upon a piece of legal analysis as proof that something is clearly “not torture,” then you probably shouldn’t rely upon a piece of legal analysis that (shoddy as it may be) concludes that said something is pretty damned close to being torture.

Cross-posted at the League of Ordinary Gentlemen.

In the wake of the Iowa Supreme Court decision last week, combined with the subsequent Vermont legislative passage of same-sex marriage, there’s been a lot of talk, even amongst more conservative pro-same-sex marriage folks, about judicial activism and whether it’s the appropriate role of the courts to get involved in deciding social hot-button issues.

There has also, to be sure, been a fair amount of talk about whether same-sex marriage is an appropriate issue for application of equal protection doctrines, and there has even been some talk about the propriety of equal protection law in the first place. In reality, though, concerns about the propriety of equal protection law have very little legal underpinning and aren’t worth much discussion; meanwhile, it’s increasingly difficult to see how a court could find that equal protection law does not apply to same-sex marriage.

Far more interesting to me, though, is the question as to whether it is appropriate for the courts to get involved at all with hot-button social issues where they may end up overturning popular legislation. As someone who deals with the courts almost daily, I’ve long thought this question to be nothing more than a red herring – otherwise, what is the point of having an independent judiciary in the first place?

But one of my co-bloggers at the League of Ordinary Gentlemen, over the last several days, has helped me understand that there is sometimes more to that argument than meets the eye, although I continue to think that it is based on a misunderstanding of how our courts work. The result was a unique conversation that is memorialized here, and which helps clear up some misperceptions on both sides of the debate.

This section is, I think, particularly illuminating:

Will: As a pragmatic issue, I think the courts need to be cognizant of their public legitimacy precisely because a loss of credibility could undermine judicial independence. The law isn’t solely enforced or implemented by the courts – they require the implicit consent of the public, the legislature, law enforcement, as well as any number of other bodies. In other words, it makes a whole lot of sense for the courts to not only pay attention to public opinion, but to carefully pick their battles in order to preserve judicial independence.

Mark: The question I have, though, is how the courts can reasonably consider issues of political capital. They don’t get to decide when a plaintiff brings a case, and, as in Iowa, if a trial court rules for that plaintiff, then the higher court has no option – either they take the case and decide it on the substantive legal arguments, or they decline the case and let the lower court’s decision stand. Once they take the case, they simply have no choice but to apply existing law to those facts, whether or not they like the result. That’s not to say there aren’t exceptions to this – but the far bigger danger is often when courts do account for their political capital.

The whole debate is here.

One thing that does not get emphasized enough, though, in debates about judicial activism is that often times the idea of originalism is the truly “results-oriented” jurisprudence, while controversial or unpopular decisions decried as “activist” are nothing more than good faith applications of existing law. I say this because originalist critiques often insist that constitutional language should be “interpreted” to exclude laws and practices that existed when the constitutional provision was passed and were thus clearly not “intended” to be made unconstitutional by the provision. Such an “interpretation” is the very definition of activism, though, because it insists judges read into a constitutional provision limiting language that simply does not appear.

Thanks to John, I am pointed to these two rather strange arguments in favor of the Drug War and against libertarian use of statistics on race against the Drug War from Jonah Goldberg. John does a pretty good job explaining why Goldberg’s arguments are so strange. The only thing I’d really add is that the notion that libertarians don’t normally give a crap about race and poverty is a notion that is borne out of the coalition of libertarians with conservatives – libertarian and classical liberal philosophy, when divorced from coalition politics, actually have quite a bit to say about the problems of poverty and laws that disproportionately single out politically less powerful groups.

Goldberg also makes this odd statement:

A justly convicted murderer should be punished regardless of his race. A justly convicted drug dealer should be punished, regardless of his race as well. If we’re punishing a disproportionately high number of blacks, that’s a sign we should crack down on more guilty whites, not give up on punishing crimes.

This is particularly puzzling because Goldberg has argued that anti-statism is at the core of conservatism and is also why libertarians should continue to coalition with conservatives. Obviously, increasing drug prosecutions is not only inconsistent with any conception of limited government, it’s also an expansion of the size of government. And not an insignicant expansion either, given that this can definitionally only be achieved by pursuing people with enough resources to put up a tough fight against drug prosecutions (a fact that at least partly explains the socioeconomic discrepancies in such prosecutions in the first place).

Goldberg’s statement does indirectly suggest one point worth exploring, though – that human liberty is increased when laws are enforced more uniformly; unfortunately, he takes this point to be a justification for the expansion of drug prosecutions.

Much has been written of late about the difference between small and limited government – specifically, small government refers only to the fiscal “size” of the government, whereas limited government refers to the government’s actual powers. If you accept that the State must exist, as even most libertarians do, then one must have a desire that the Stated do well that which it is authorized to do. If the State does its job poorly, then it will actually have a more negative impact on individual liberty than if it does its job well, because at that point enforcement of the laws becomes arbitrary and based on one’s ability to curry favor with the State in some other non-germane arena.

If, on the other hand, the State does its job well, then people may act in reliance upon the law being enforced equally without regards to other issues. So there may be a marginal decrease in liberty due to the existence of the law in the first place, but this is mitigated by the fact that uniform enforcement ensures that people may act in reliance upon the law and without having to curry favor with the State in some other arena. This means less State corruption, less connection between wealth and power, and less fear of interference from the State more generally.

The trouble is that very often uniform enforcement is simply not possible due to the State’s limited resources. Put another way, in the words of the inestimable Wirkman Virkkala, “regulation is not scalable.”

In the case of the War on Drugs, this problem is particularly apparent. For any given drug, there are going to be potentially millions of users spread out over a vast country. The only way to have uniform enforcement of the drug laws in such a situation is to have an incomprehensibly large budget far bigger than the already-incomprehensibly large Drug War budget we have. Other programs, some of which may or may not be enforced in a relatively uniform fashion will need to be scaled back (and thus enforced more arbitrarily). Short of that, given the nature of prohibitions on the possession of banned personal items, the only way to truly enforce the law uniformly would be to turn our neighbors and friends into de facto secret police.

Still, under some circumstances, I suppose it’s possible to enforce such prohibitions in a more or less uniform fashion without creating a de facto secret police force – whatever Singapore’s flaws (and it has many), drug use is not something that flourishes there. Part of that, though, is that Singapore is a tiny nation geographically, and another part of it is that it spends very little on many other types of restrictions, such as economic regulation.

Which brings me to my final point – even regulations that are not outright prohibitions can be uniformly enforced only if they govern a sufficiently small number of actors or if the enforcing agency has the very substantial amount of resources necessary to enforce the regulations uniformly over a large number of actors. Again, they are not scalable. If the regulations are to apply to more actors than the agency has the resources to oversee, then the only solution an agency may follow will be to make the regulations so restrictive as to ensure the reduction of the number of actors over whom they have jurisdiction. In other words, regulatory capture doesn’t just benefit the capturing business – it also benefits the captured regulator.

There is, I think, a solution to this problem: terminate any set of laws or regulations that cannot be uniformly enforced without an unrealistic budgetary expansion, and fully fund those laws or regulations that can be enforced in a relatively uniform fashion. Unfortunately, this is impossible in a two-party system where the Executive is increasingly viewed by both supporters and detractors as omnipotent and where few are willing to admit the unrealistic nature of their pet programs.

Cross-posted at the League of Ordinary Gentlemen.

One thing that has long baffled me has been the idea on the American Right that Europe is some kind of socialist hell-hole that borders on Communist. The thrust of the argument always seems to be that European government is so large and intrusive, and it public mores so lacking and dare I say nihilistic that it is something akin to Hell on Earth. Mark Steyn, not surprisingly, expresses this attitude fairly succinctly, writing:

Europeanism is like Communism: the less time you’ve spent living it in practice the better disposed you are to it in theory. In the same way, few of those Americans who want to introduce Canadian-style health care to the U.S. have ever had surgery at the Royal Victoria. Indeed, America is full of immigrants whose hostility to Euro-Canadian public policy derives explicitly from their prolonged exposure to it.

Of course, the definition of “Europeanism” is ill-defined. So far as I can tell, it’s a reference to a government with a large social welfare system combined with a secularized social policy. The assumption, which is largely based on a false equivalency that social safety nets = socialism = Road to Serfdom and that United States = World’s Only Bastion of Free Market Capitalism = World’s Only Free Country, is that these “Europeanist” policies make Europe an absolute hell-hole.

Despite my deep love of the free market, I’ve always found this chain of thought to be utterly absurd. For starters, the idea that Europe is some kind of hell-hole at all doesn’t seem to line up with reality, as Alex Massie points out:

Never mind that, according to the most recent World Values Survey, Denmark, Iceland, Ireland, Switzerland, Austria, Malta, Luxembourg, Sweden each reported higher levels of happiness and “life satisfaction” than the United States. That isn’t to say that the US is unhappy, merely that there is more than one route to happiness. And that’s the point: europe (however broadly defined) and the United States are each remarkable success stories permitting a greater percentage of the population than at any point in history has the opportunity to make their own choices about how to lead their lives.

But there’s more to it than this. If “Europeanism” really is that much of a restraint on freedom, one would expect that European nations would have exceedingly tightly restricted economies, with comparatively little economic liberty. Thankfully, that lunatic left-wing think tank the Heritage Foundation has long compiled a statistical ranking of economic freedoms around the world.

In the current iteration of this list, based on data from late 2007 to early 2008, shows the good ol’ USA ranked 6th – right behind Ireland and New Zealand, and just barely ahead of Canada, Denmark, Switzerland, and the UK. But things get even more interesting when you look more closely at the data. After all, the argument seems to be that larger and more expensive government leads to less economic freedom (amongst other problems). And yet, when one looks at measures of economic freedom other than the size of government, one quickly finds that the US is outperformed by numerous European countries and Canada. Canada for instance surpasses the US in things like Fiscal Freedom (ie, taxation), freedom from corruption, business freedom, and trade freedom; Denmark in business freedom (where the Heritage Foundation considers Denmark just about perfect!), investment and financial freedom, property rights, and labor freedom; the UK and Netherlands in investments, property rights, and corruption; Iceland in business freedom, trade freedom, fiscal freedom, property rights, and corruption; and Austria and Belgium also comparing pretty favorably.

Meanwhile, there are a number of governments that seem to score extraordinarily poorly on these measures despite having relatively small governments. In fact, by the Heritage Foundation’s measurements, the US actually has a larger than average government compared to the rest of the globe, but has a far smaller government than most of Western Europe and Canada, most of which – including Sweden, with the third largest government in the world according to Heritage – score in the top 30 most economically free countries in the world. The sole exceptions are Portugal (#53), France (#64), and Italy (#76).

Meanwhile, countries with relatively small governments seem to largely be ranked pretty poorly in terms of overall economic freedom as I previously discussed here. If you rank the countries by size of government (keeping in mind that higher scores equal smaller government), the “best” governments are, in order: Burma, Liberia, Cambodia, Bangladesh, and the Central African Republic. None of these are exactly bastions of economic freedom in any other respect.

This isn’t to say that smaller government equates with less economic freedom generally – I don’t think it does, and one can’t ignore that Singapore, Hong Kong, and Chile all have rather small governments combined with quite a bit of economic freedom. Instead, it’s simply to say that there is a complete lack of evidence of any sort that “Europeanism” is a first-class ticket to disorder, totalitarianism, or regulatory hell.

Meanwhile, whatever the flaws of secularism (and in the case of so-called Human Rights Commissions, it’s pretty clear that there are quite a few such flaws), it’s worth noting that Europeans seem to have a closer attachment to their culture and history than just about any part of the US outside the Deep South. Indeed, in France, the desire to preserve that culture and history is probably one of the biggest causes of French restrictions on economic liberty, which results in a level of protectionism that is noticeably higher than the rest of Western Europe (except for Italy).

On the other hand, the idea that the solution to American problems lies in adopting European-style policies (whatever that may mean) is pretty foolish as well, for the simple reason that the U.S. isn’t Europe. We are a far more culturally and ethnically heterogenous society than any European country, we are far larger in terms of both population and area than any Western European country, and – as is the case with any two countries – we have completely different established institutions upon which to base our policies, as Ms. McArdle recently noted.

Regardless, can we please stop pretending like Western Europe is the closest thing to Hell on Earth or, in the alternative, some kind of socialist paradise? It’s neither – instead, it’s just a collection of several different governments that in general seem to have each found a balance between government and liberty that works pretty well for the specific people who are subject to that specific government’s jurisdiction.

Cross-posted at the League of Ordinary Gentlemen.

Kyle’s post yesterday the other day about the need for the GOP to stop focusing on “how” it was going to come back from the wilderness if it ever wants to get back to relevance made a lot of sense to me. The political reality is that the GOP, despite its recent defeats, continues to consist of tens of millions of faithful voters, including moderates, party fundamentalists, social conservatives, libertarians, etc. And exactly none of those voters are going to change their worldview overnight just because some pundit says that it would be more electorally sound if they did so. So whatever direction one thinks the GOP should go as a matter of policy, the political reality is that it is incapable of consciously choosing any new direction.

Does this mean that the party is permanently doomed? No – we live in a two-party federalist system, and that’s not about to change soon.

Today, I think I finally have a picture of exactly how that road back to relevance is going to look (which is different from the normative picture of how I think it should look), thanks in part to this Politico interview with Gov. Huntsman of Utah. In the interview, Huntsman spells out a worldview that some would call “moderate,” but is instead quite along the lines of the various reformist conservatives – it’s a distincly different type of worldview from that of Arlen Specter & Co.

Matt Yglesias thinks the growth of reformism amongst elected officials like Huntsman and Gov. Crist of Florida means a coming civil war for the GOP. But he argues that these voices seem confined to the state level, and that the GOP won’t actually start to reform on a national level until similar voices start getting elected to Congress.

I disagree. The reality is that change in political party policy doesn’t happen overnight; instead, it happens subtly and gradually over the course of years. What we see in the reformist governors is the beginning of that change – it’s just not a change that is being consciously directed.

Patrick Ruffini’s much-ballyhooed and criticized post on de-Plumberizing the Right gives a pretty good idea of where the Right is likely to go over the next few years on the federal level. Specifically, Ruffini argues that what is need is not a change in policy, but a change in focus onto issues where 80% of Americans agree with Republicans, per Newt Gingrich’s strategy. This actually makes quite a bit of sense as political strategy because it doesn’t involve alienating any of the base, which a political party cannot do without putting itself in an even worse position in the short-run. Meanwhile, Robert Stacy McCain is probably right that it is politically more sound for Republicans to simply oppose anything the Dems try to do, and make them own it if (and some would say when) the Dem policies fail. Besides, there’s rarely an electoral penalty for opposing something that succeeds; there’s frequently an electoral reward for opposing something that fails. And this, of course, is precisely what Congressional Republicans seem to be doing.

The trouble with this approach, while it probably will work in the short-term, is that it is superficial, and only gets part of the GOP’s problems right, as Ross Douthat and Daniel Larison argue. It allows Republicans to stop the bleeding, but those 80% issues aren’t going to be big picture enough to make the GOP relevant again in the minds of a lot of those who have abandoned it (“Drill, Baby, Drill” may be popular with a lot of people, but it’s not something that’s going to suddenly make many people Republicans).

But GOP governors have the burden of actually governing rather than just criticizing, which is part of why several of them are solidly in the reformist camp. They have no choice but to depart from dogma on core issues, which is precisely what Huntsman and Crist are doing. Eventually, though, the national GOP’s change in focus will loosen the dogma on issues where the national GOP is no longer proposing serious policy alternatives. At that point, you will see reformist thought actually start to infect Republicans in Congress and maybe even Presidential primary candidates because it will no longer require annoying part of the base.

To sum up: continued populism on the national level, but with a focus on pushing different issues while reflexively opposing Obama on just about everything; renewed reformism on the state level that ultimately winds up providing an example for a new affirmative agenda on the national level. And no one will have planned it this way, since really it’s not what anyone wants right now – the change is too slow from the perspective of the reformists, and too much from the perspective of the base. But happen, I think it will. I just don’t know what reforms will wind up carrying the day, nor whether I personally will find those reforms palatable in a way that brings me back to the GOP fold (no matter what happens, I’m pretty happy staying an independent).

Cross-posted at the League of Ordinary Gentlemen.

After months of pleas from the small business community, the New York Times (the so-called paper of record) finally decided to cover some of the central elements of the legislation. Except that it was not an article discussing the potential costs of the legislation; nor was it even an article discussing the debate over the legislation at all. No. It was an unsigned editorial. Alleging that CPSIA hasn’t been enforced aggressively enough, and that therefore the commissioner of the CPSC must go. Any reading of the editorial makes clear that the Times did not bother to research what the law actually says or how it is supposed to be implemented. Instead, it appears that they merely regurgitated the talking points of the handful of Dem politicians and interest groups who continue to support the law in the face of overwhelming evidence that it is an abject lesson in the problem of unintended consequences.

Not surprisingly, Walter Olson is angry. He zones in on one particularly offensive paragraph of the editorial and destroys it.

Well, I’m pretty angry myself. So I think it’s worth doing a full fisking of this stinking heap of ignorance. The editorial starts:

The American International Toy Fair in New York City this week has offered the newest and most tantalizing playthings in the world: walking plastic bugs, 3-D coloring sets, even Barbie, now 50 and wearing a golden outfit for the occasion. Yet one question hovered over the fair and its glittering new gizmos. Can the federal government assure consumers that the toys are safe?

Knowing a little bit about the Toy Fair, I can assure you, loyal readers, that the actual question hanging over the Fair was “Does anyone have any idea how you are going to comply with this law when it goes completely into effect without going out of business?”

As many parents, and ultimately manufacturers, learned the hard way, the Bush administration did not make the safety of toys and other products a priority. That led to the recall of millions of toys — some because of lead paint, others because of hazards such as small and powerful magnets that children swallowed. The Obama administration now has an opportunity to fill that regulatory gap by appointing new leadership for the Consumer Product Safety Commission.

So the problem here is that the Bush Administration failed to enforce existing safety laws, thereby leading to the recall of millions of toys? Now, I’m no fan of the Bush Administration, but this seems a little silly. How does the Times think that these toys were recalled? Isn’t the remedy for a prohibited product getting on the market to recall it and to penalize the importer? And isn’t that precisely what happened? And how many injuries were reported as a result of these products getting recalled? The answer is one (sadly it was a death) – except that the product that caused that death was perfectly legal under the then-existing standards, and is actually still legal under the new CPSIA standards since it was made for an adult.

Perhaps the Times is saying that the CPSC should have caught the products before they entered the stream of commerce, if only it had different priorities. This most likely is unrealistic to expect a tiny government agency to accomplish. But one thing is for certain, passing a law that creates unprecedented levels of paperwork for that tiny agency to review is a pretty good way to ensure that the agency will spend an even greater percentage of its resources looking for paperwork errors rather than actual safety hazards.

Last year, Congress passed the Consumer Product Safety Improvement Act, giving new authority and resources to a shockingly understaffed agency. The law has been described, accurately, as providing the safety net that consumers assumed they already had.

Unfortunately, the commission has yet to implement important aspects of the new law.

Really? So, Congress passes a law that provides unprecedented authority – and responsibility – to a “shockingly understaffed agency” and expects them to implement the entire law within six months – and the Times is shocked, SHOCKED, when the agency is unable to do so within that time frame. But perhaps I’m being unfair to the Times – after all, the law provides the agency with “new resources” as well. One problem – the agency didn’t actually get new resources until several months later, and the “new resources” are added incrementally over the course of six years. So the idea that CPSIA’s problems are merely a result of a lazy CPSC is patently false…..and that all says nothing about the fact that CPSC regulations, like all regulations, are subject to a sixty day notice and comment period before they can be implemented.

The delay has caused confusion and allowed opponents to foment needless fears that the law could injure smaller enterprises like libraries, resale shops and handmade toy businesses.

This is the most offensive paragraph. For a full explanation of why, see Walter Olson’s post. But simply put, the idea that any business would threaten to close and/or actually throw out thousands of dollars of inventory upon which they rely to make a living merely because of “needless fears” fomented by shadowy opponents is utterly absurd. Indeed, the guidance that the CPSC has issued on this point, far from being overly soft on product safety, specifically recommends that businesses owners discard many of these products.

The law provides ways to address such concerns without undercutting its new and vitally important protections against lead or other toxic substances in children’s products. Even so, the commission decided last month to delay for a year any real enforcement of the law, which was supposed to have taken effect on Feb. 10.

First of all, the law DID take effect on February 10 – what was stayed for a year was the enforcement of two or three specific elements of the law, including the certification and testing requirements. The lower lead limits and ban on phthalates – even for products intended for use by children with no realistic chance of ingesting the substances – still apply, with extremely stiff penalties for violations. Also – the new law deputizes State Attorneys General; while the CPSC has requested the states hold off on enforcement of the testing and certification requirements, there’s no guarantee they will do so.

As for the alleged “ways of address[ing] such concerns,” proponents of the law never seem to specify what, exactly, these ways are. To be sure, the law allows the CPSC to exempt some products from the lower lead requirements – but this allowance only applies, so far as I’m aware, to the lower lead requirements (and certification thereof). In addition, the CPSC may only exempt “specific product[s] or material[s]” “after notice and a hearing….on the basis of the best available, objective, peer-reviewed, scientific evidence….” In other words, it’s not as if the CPSC is allowed to just categorically exempt any products for which this law would be an undue and unnecessary burden.

President Obama must quickly replace the commission’s acting chairwoman, Nancy Nord, who opposed adding new resources and authority to her agency. He should then choose the kind of enlightened leadership that every parent and toy lover needs and that will give consumer safety the priority it deserves.

Because the idea that Congress may have just put forward a poorly drafted law with no consideration of how it would affect small business is just too simple.

Cross-posted at The League of Ordinary Gentlemen

Robert Stacy McCain has a scathing post that seeks to permanently douse the concept of a left-libertarian coalition ever being a real possibility, which includes this little bit:

As a political impulse, the sort of libertarianism that scoffs at creationism and traditional marriage wields limited influence, because it appeals chiefly to a dissenting sect of the intelligentsia. It’s a sort of free-market heresy of progressivism, with no significant popular following nor any real prospect of gaining one, because most Ordinary Americans who strongly believe in economic freedom are deeply traditionalist. And most anti-traditionalists — the feminists, the gay militants, the “world peace” utopians — are deeply committed to the statist economic vision of the Democratic Party.

Yikes. Now, of course, McCain is being somewhat hyperbolic in his characterization of the coalition of the political Left. But in many ways there is a fair amount of truth to McCain’s fundamental point, which is that the response of the political Left to the economic crisis has dramatically undermined the basis for any theoretical coalition of “liberaltarians.” To be sure, McCain thinks that the entire concept of such an alliance is a “luxury” that never had any chance at success, but the more pertinent issue is the role of the economic crisis in exploiting the divide between liberalism and libertarianism/classical liberalism. This is a particularly difficult truth for me, as I have repeatedly gone on record predicting that “libertarians,” broadly defined, are likely to continue their recent trend towards the Democratic Party in terms of their voting habits. Heck, I even put my money (and daughter’s toys) on the line by making a bet to this effect with John Schwenkler.

One of the things that has happened in the early days of the Obama Administration has been some fairly good (but by no means great) steps in the direction of restoring civil liberties and reigning in executive power. While this is something libertarians such as me have absolutely cheered, the reality is that these issues were a major part of what was pushing libertarianism to the left in recent years. As victories have been earned on those fronts, the entire basis for that move leftward is getting removed (although history tells us that we’re not about to see a complete restoration of civil liberties and balance of power anytime soon, either).

To be sure, really good bases remain for a left-libertarian coalition on certain specific issues, especially the War on Drugs. And I still fully agree with the great FA Hayek, whose opus Road to Serfdom describes many of those we now call liberals as essentially misled classical liberals (that we now call libertarians). And that says nothing of his essay “Why I Am Not a Conservative” – still relevant nearly half a century later.

So I still think that, at some point in time, progressives and libertarians will be reunited within a political coalition separate and distinct from conservatives. But at a minimum the progressive response to the financial crisis, with its finger-pointing for the crisis almost solely at deregulation and its use of the stimulus bill as a means for implementing all sorts of pet projects that have little to do with stimulus even under a Keynesian analysis, has brought the economic divide between liberals and libertarians to the forefront in a way unseen for decades.

To be sure, I think conservatives – especially conservative politicians – have played a role in the whole situation, both by saddling us with massive debt in the name of the War on Terror and by repeatedly (and falsely) campaigning on the idea of Obama as a socialist (and thereby turning an unwinnable election into a de facto referendum on socialism). But the fact is that the political Left, led by Congress, is now using this opportunity to implement wide-reaching policies that are anathema to libertarianism.

Simply put, it appears that liberals and Progressives, at least the influential ones, have once again taken up the mantle that regulation is always (or almost always) good, and so is just about any form of non-military government spending. As Virginia Postrel notes discussing the refusal of influential progressives to concern themselves with the effects of the abysmal, horrible, no good Consumer Product Safety Improvement Act:

Unfortunately, once you are ideologically committed to the idea of regulation, you can’t say that a given regulation is bad–or, worse, that maybe doing nothing new would have been the best course.

And this is the problem the rebirth of dogmatic support for regulation has created for any liberaltarian coalition. Rather than consider ways of achieving liberal ends (which are usually shared by liberals and libertarians alike) that may have incorporated libertarian thinking or were at the very least highly targeted, progressive politicians have been choosing extraordinarily broad and intrusive means of achieving those ends. This is not to say that those politicians ever really cared what libertarians thought; only that this route of action has undermined any possibility of a significant percentage of libertarians (again broadly defined as fiscally conservative and socially liberal) becoming intermediate-to-long-term members of the Dem coaltion.

All that said, Will Wilkinson is no doubt correct that all this talk of a left-libertarian political coalition misses the entire point of “liberaltarianism,” which is not properly understood as being about coalition-building:

I think Obama and the Democrats are already in the process of screwing it up. The romance of transformative hope is going to wear off pretty quick as all-but-uncontested Democratic policy deepens and lengthens the recession. There’s a lot of culturally and psychologically liberal people out there who are, and are going to be, interested in a liberalism that actually works. I want to use this time of ferment to work on developing the missing option in American politics: an authentically liberal governing philosophy that understands that limited government, free markets, a culture of tolerance, and a sound social safety net are the best means to better lives.

One of the major reasons I continue to support the concept of “liberaltarianism” is that ultimately I think it can only serve to increase the pathetic influence of libertarianism on American politics, turning libertarians into true political free agents that must be pandered to, year in and year out (if you use the broad “socially liberal, fiscally conservative” definition, we’re large enough a group to be worth pandering to). Just as importantly, it promises to improve libertarianism itself by encouraging a purer form of classical liberalism that is not, as Wilkinson says, “pretty well shot through with conservative reflexes bred by the long Cold War alliance between libertarians and the right.” Or as Reihan Salam notes in a sentence that speaks particularly well to me: “The liberaltarian idea, as I understand, is to start rethinking coalitions that appear to be natural because they’ve been in place for so long.”

Cross-posted at the League of Ordinary Gentlemen.

There is much ado today about the fact that Obama, apparently in response to conservatives’ objections, has asked House Democrats to withdraw a provision in the stimulus package that would provide family planning money for low income families. Some of the more partisan elements of the left are particularly upset about this, arguing that this provision is an absolutely essential element of the stimulus package. This type of reaction is pretty much par for the course whenever a President concedes something to the opposing party on an important piece of legislation, so I’m not going to write anything further about it.

But more independent liberals are also quite upset about this whole situation – even though, as Matt Yglesias acknowledges (correctly I think), the provision is “genuinely tangential to the point of the bill.” In other words, liberals of Yglesias’ mold acknowledge that the family planning provision, whatever its independent merits, has little relevance to economic stimulus. Yglesias justifies his disappointment, with which Brian Beutler and Kevin Drum agree, writing:

as with a lot of Democratic concessions on the bill thus far, what seems to be missing is the “pro quo.” Where are the members of the House saying “yesterday I was inclined to vote ‘no’ on this, but thanks to this change I’m voting ‘yes.’” Bargaining is smart. I even think magnanimity on the part of a new majority is smart. But when you bargain, you get something. And I don’t see what Obama’s gotten for his business tax cuts nor do I see what he’s getting for selling out low-income women’s access to contraceptives.

I’m not sure I get this style of argument, at least not in this particular instance. Don’t get me wrong – even though I’m not loyal to either political party, there are few words more likely to make me cringe than “bipartisan.”

Particularly given Yglesias’ admission that the contraception provision is not very germane to the concept of economic stimulus, his point doesn’t seem to give Obama enough credit and fails to recognize an important nuance that all-too-often gets lost in the usual arguments against “bipartisanship.” Specifically, Yglesias seems to argue that the sole reason for stripping the provision is to obtain Republican support for the stimulus package – even though it is almost inconceivable that this action will actually succeed in bringing Republicans on board. As such, Yglesias basically accuses Obama of caving in simply for the sake of appearing “bipartisan.”

But this misses something extremely important that we cynics (of all political stripes), myself included, seem to forget all too frequently: sometimes politicians legitimately try to do the right thing.

In this case, Yglesias correctly presupposes that the provision has little to do with an economic stimulus package, which even those who oppose consider to be an important piece of legislation. If the legislation is important and predominates all other legislation at the moment, as it does, permitting non-germane wish list items to remain in the bill is counter-productive, increasing the bill’s costs without serving the bill’s goals. This is something that is true whether or not removing the provision will garner more votes to ensure the legislation’s passage.

There is something else important here: there is no principle at stake for Obama in backing away from a provision like this when it is in an unrelated, but “must-pass” bill. If this is a program that Obama ultimately wants to implement (whatever I may think of its merits), he sacrifices no principle by removing it from this legislation and fighting for it later on as a stand-alone program. This willingness to compromise without sacrificing ultimate principles is the epitome of “good” compromise rather than the bipartisanship for the sake of bipartisanship that makes so many of us cringe.

And finally, there is something else important here in the long run, which is also independent of whether stripping the provision garners more Republican House/Senate votes. As we are all fully aware, the economy is currently in the toilet; moreover, most economists I have read acknowledge that there is a strong possibility (and a near-certainty in the case of libertarian-ish economists) that even if the stimulus is effective it will not do much more than stave off a Depression. This legislation is massive, comparable to last year’s bank bailout, but without the selling point of only being a loan of sorts.

Because the legislation is so massive and because of the fact that many Americans are going to be hurting for a long while no matter what the effects of the stimulus, it is absolutely essential that Obama get as much popular backing for the legislation as possible. Permitting this provision to remain in the package would have needlessly undermined that support and angered a lot of Americans who are already suffering from “bailout fatigue.” Should Obama need the support of these Americans in the future, whether to pass a separate piece of legislation or to win seats in the midterm elections, allowing this particular provision to remain in the bill after it has created a relatively justified stir and has proven unnecessarily divisive would prove foolish.

Worse still, allowing this provision to remain would provide a convenient scapegoat for the problems that the stimulus inevitably fails to solve. When next Obama sought to push through an additional government intervention about which many are skeptical, the fact that this provision remained would provide these skeptics with a legitimate reason to distrust Obama’s judgment with respect to that subsequent intervention.

In sum, Obama’s request to strip this provision more likely presents an outstanding case study in politics at its all-too-rare best than it presents a case study in “bipartisanship for the sake of bipartisanship,” suggesting that perhaps Obama actually listened to the opposition’s concerns rather than merely making the changes in the hopes of appeasing that opposition, regardless of the merits of their concerns.

Cross-posted at the League of Ordinary Gentlemen.

It’s been said before that “the point of torture is torture,” but I don’t think we fully understand the extent to which this is true, nor the extent to which the moral and utilitarian arguments against torture are intertwined. The easiest way to explain what I’m getting at here is through a hypothetical.

In this hypothetical, the suspect is someone who almost certainly possesses some unknown quantity of information that can be helpful in rooting out terrorism. After the suspect refuses to provide information in response to initial non-coercive questioning, the interrogation moves on to measures that are coercive but perhaps fall in the gray area of what we would call “torture.”

The suspect talks immediately as a result of the coercion, and for purposes of this hypothetical, we will say that the information provided is accurate. After providing that initial information, the suspect refuses to provide anything else. What should the interrogators do next? Do they accept that the suspect has no further information to provide? Not likely – after all, it took some form of coercion to get the suspect to provide the initial information, so there’s no reason to think that the suspect has nothing further to provide. More likely, I think, the interrogators conclude that the only way to get more information is to revisit the methods that got them more information in the first place.

But what if the suspect refuses to provide more information when those methods are used again? Will the interrogators go back to being nice, knowing that the information they got came only after they used more coercive measures? Not likely. Instead, it would seem to me, the natural response is to conclude that the suspect has learned to tolerate the initially successful level of coercion, and so the only way of obtaining more information is to make the interrogation increasingly coercive. Again, the suspect talks and again we will assume that the information provided will eventually prove to be accurate.

But again, the suspect eventually refuses to provide any additional information. Now, the suspect has a track record of withholding information even after coercion is tried, and of providing information when ever-more coercive techniques are used. So what is likely to be the interrogator’s response? If you guessed “stronger coercion,” you guessed right. But this time the suspect continues to refuse to provide information, and so the interrogator adopts even harsher methods until the suspect provides more. At what point does the interrogator conclude that the suspect has nothing more to provide? If the suspect provides more, how does the interrogator distinguish between what is accurate and what is a lie?

And that’s the problem. When coercion fails, it will only result in more coercion, and when it succeeds, it will only result in more coercion. It not only lacks any means of distinguishing between good information and bad information (the basis for utilitarian arguments against torture), but it also cannot distringuish between knowledge and lack of knowledge. And even torture’s most ardent proponents would, I think, acknowledge the immorality of using coercion on someone without useful information. In sum, by engaging in coercive interrogation we obtain unreliable intelligence; because we obtain unreliable intelligence, we will inevitably engage in more coercive – and undeniably immoral – interrogation, which will result in more unreliable intelligence, and so forth.

And that’s what I mean when I say that the moral and utilitarian arguments against torture are intertwined. What legal barriers such as the Army Field Manual or the Geneva Conventions do is to provide a stopping point past which we effectively presume that further intelligence will be unreliable, and at which we must assume that the suspect has no further information to provide that they would be unwilling to provide in the absence of coercion.

Thinking more about this, I suppose the logic of this post doesn’t lend itself well to the hypothetical (but almost entirely non-existent in reality) ticking time-bomb situation where you have intelligence that the suspect has specific information about a specific plot. In such a circumstance, the torture would not beget more torture once successful because the interrogation would be aimed at obtaining a specific piece of information along the lines of “where is the bomb,” or “when is the attack,” or “who is the bomber.” BUT….it’s easy to see how the logic described in this post would lead to imagined ticking time bombs where the suspect provides information about a non-existent plot, leading investigators to interrogate someone else about the details of that non-existent plot under the belief that the plot is a “ticking time bomb.”

Cross-posted at Publius Endures.

Alex Massie, right again:

Now it’s true that immigration reform is a tough subject for conservatives. True too, that when it comes to immigration there are some many on the restrictionist wing who consider Bush to be either a) a sentimentalist or b) corporate America’s pawn or c) both of the above. Equally, the orthodox Republican position on immigration – border enforcement first, then reform – is not desperately unpopular. But a popular (or at least not unpopular) position is only half of the matter: you have to sell it well too. And on a subject as contentious as immigration, that requires a degree of tact and sophistication that, by and large, seems alien to many Congressional and grass-roots Republicans.

***

So it isn’t just that legal Hispanic immigrants might be turned off by the GOP’s language on immigration, so too are educated, upscale white voters who don’t like the idea of endorsing a party that gives the impression, unwittingly or not, of being hostile to immigration. The GOP’s posture on immigration fosters the impression, fairly or not, that they’re the “nasty party”. As far as political branding goes, that’s a toxic position for any party to find itself in.

And this is the real problem the GOP faces, and which we’ve been discussing over the last several weeks. The biggest problem with the party’s current situation (i.e., the problem of “talk radio dogmatism”) isn’t its position on the issues – it’s the downright meanness upon which it insists to push those positions.

As I wrote during my stint subbing for John Schwenkler, it’s terribly difficult to persuade people to vote for a party or even support its policies (regardless of whether they agree with those policies in principle) when:

• That party’s guiding lights, rather than make principled arguments for various “anti-terrorism” policies, insist on labeling your religion as “Islamofascism”;
• Rather than make principled arguments for stronger restrictions on immigration, you and your family are portrayed as foreign invaders seeking to destroy the country from within because of the Mexican flag hanging on your balcony – even as nothing is said about the Italian or Irish flag hanging on your neighbor’s balcony
• Rather than make principled arguments against gay marriage, you are accused of wanting to destroy your country’s traditions because you want legal recognition of your relationship.
• Those same guiding lights proudly promote, rather than simply defend, the use of words and phrases with a well-known role in oppressing you or your ancestors.
• Rather than make principled arguments against an auto bailout, you and your friends are accused of bleeding the American people dry
• Rather than make principled arguments for the use of force and/or for restrictions on civil liberties, you are accused of being a “Defeatocrat” or wanting to “let the terrorists win.”

The reason this meanness comes about is that the party has lost sight of the principles that gave rise to its policy preferences in the first place, principles that came from a number of different strains of political thought. Far from being a sort of “master conservatism,” the resulting set of litmus test policy preferences thus lacks a coherent ideological basis in any cognizable form of conservatism.

And when a party loses sight of underlying principles, the only way to maintain party unity is to scare its constituents into loyalty, turning every issue into “Us vs. Them.” While this can work in the short-term, it must inevitably result in unprecedented discord as once-loyal coalition members become fed up with consistently being called one of “Them.” Case in point – see Weigel on Malkin on Voinovich. And that says nothing about the effects it has on ensuring you don’t make inroads into the other coalition’s constituencies.

H/T: Conor Friedersdorf.

Cross-posted at Publius Endures.

I’ve been pretty harsh on philosophical neo-conservatism over the last year or so. In fact, it’s safe to say that of all the various (actual) political philosophies that form a significant portion of our governing political coalitions, I have consistently held neo-conservatism in by far the most contempt.

And without a doubt, the basic tenets of neo-conservatism, with its emphasis on the spread of democracy as an end unto itself, are tenets with which I profoundly disagree. But it’s also worth remembering that neo-conservatism, at least in its most philosophical form, is very much concerned with a positive, idealistic worldview just as any other true political philosophy is. And while, just as other strains of conservatism and libertarianism, many prominent neo-conservatives have fallen under the spell of “talk radio dogmatism,” the actual philosophy of neo-conservatism itself – again much like other strains of conservatism and libertarianism – has deep intellectual roots.

Perhaps nothing provides a clearer example of the distinction between this “talk radio dogma” neo-conservatism and actual philosophical neo-conservatism than the reaction in conservative circles to the impending nomination of Leon Pannetta to head the CIA. As an outspoken critic of torture (aka “harsh interrogation techniques”) and the intelligence failures of the last 8 years who has no previous connection to the CIA, the Pannetta nomination has unsurprisingly drawn the praises of civil libertarians of all stripes – including Greenwald, Sullivan, Schwenkler, and Hilzoy.

What is, however, surprising is the way in which the pick has split the portions of the political Right that hold to a more-or-less neoconservative view of international relations. On the one hand, some of neo-conservatism’s biggest intellectual heavyweights, including Douglas Feith and Richard Perle, are almost completely supportive of the nomination – in spite of Panetta’s harsh criticism of policies that Feith and Perle either pushed or excused. The common thread for this group seems to be an acknowledgement of the failures of the last eight years, and a belief that those failures arose due to systemic, institutional problems within the Agency. To them, these problems can only be fixed by someone outside the Agency with strong managerial skills, and preferably, it would seem, a critic of the Agency. At base, this group recognizes that a neo-conservative agenda cannot succeed unless there is some sort of comprehensive reform of our intelligence services – and it is that idealistic (if, in my view, deeply flawed) neo-conservative agenda that remains their ultimate concern and goal.

But the GOP dogmatists, who do not understand the intellectual roots of the fundamentally neo-conservative foreign policy they advocate, have taken a vastly different tack.

Ed Morrissey, who is as close to an intellectually honest dogmatist as you will find:

Even the notion of “change” doesn’t apply here. Obama has no executive experience in government, and neither does Panetta, but Panetta hardly represents a breath of fresh air in Washington. He’s another Clinton-era retread, only in this case, put in charge of an organization about which he knows nothing. He’s there to exercise Obama’s political will and nothing more.

Similarly, Wizbang calls the pick the equivalent of the Bush decision to choose Mike Brown to head FEMA, while Ace of Spades says Panetta’s only qualification is “being a lifelong partisan hack.” And, of course, Michelle Malkin says “Another day, another clueless Clinton crony named to a top job for which he has no experience. The unqualified fish rots from the head down, after all. ”

Notably missing from any of the discussion amongst the dogmatists is an acknowledgement of the systemic problems faced by the CIA, whether it be in terms of the moral issues related to interrogation techniques or in terms of the embarassing intelligence failures in recent years.

Cross-posted at Publius Endures.

Me, elsewhere:

Over the last few months, there has been much finger-pointing as to which particular sect of the old GOP coalition is to blame for the policy failures of the last 8 years and the electoral failures of the last 2 years…..I think these accusations are deeply misplaced – the problems have not been caused by religious conservatives or adherence to free market beliefs, but instead by a sort of “talk radio” dogmatism in which any given issue becomes a litmus test for whether one is a “true” conservative or Republican.

This dogmatism has become terribly pervasive, dominating the party infrastructure and including many of the most prominent faces of conservatism both online and on the air. It is a dogmatism that is in some ways pushed by a wide variety of conservatives – free market conservatives and libertarians, religious conservatives, and defense conservatives. And yet it is also a dogmatism with which large elements of each of those groups take significant umbrage.

In and of itself, though, a little dogmatism is not necessarily a unique hindrance to a political party or movement’s electability or even its legislative agenda – political dogma has existed for at least as long as political parties have existed, and without some of it political parties cannot distinguish themselves from their competitors.

Instead, the problem with this particular form of dogma is its all-around meanness. Under this dogmatism, dissenters of any stripe are treated as the enemy, regardless of whether the dissenter’s general viewpoint could be described as “conservative,” and regardless of the dissenter’s political affiliation. Wide nets are cast to stereotype anyone who may be adversely affected by implementation of one of the dogma’s tenets. Where a particular tenet relies on a particular fact, and a suggestion is made that the fact is inaccurate, the personal loyalties of the questioner are called into question – even if the fact is demonstrably wrong.

What’s important here isn’t that GOP dogmatism (or political dogmatism more generally) is overly ideological – quite the opposite, actually. Instead, the problem is that it doesn’t recognize its lack of a firm ideological basis, turning the individual policy preferences of whichever strain of conservatism is most passionate about a given issue into a litmus test for some imagined “master conservatism.” Because this dogmatism represents the conclusions of numerous different philosophies, though, it cannot rely on the ideological arguments that gave rise to the policy preference in the first place. For instance, relying on principled libertarian arguments for a particular economic policy is not possible when you take a position on social policy that is inherently at odds with those arguments; similarly it is not possible to rely on principled religious conservative arguments for social policy when you take a position on economic policy that is directly at odds with those arguments. In short, the problem with dogmatism isn’t that it elevates principle over the common good – it’s that it is almost completely devoid of principle in the first place, a fact which Conor Friedersdorf seems to get. The result is that this imagined “master conservatism” is forced to rely on arguments that rely on a sense of fear and an “us against them” mentality.

This is not to say that this type of dogmatism is without value – it’s useful as a means of creating party unity and “getting out the base.” Nor is it particularly the province of conservatives – liberals and Democrats most certainly have their own type of fear-based, “us against them” dogmatism. Instead, the problem here is that the dogmatism has become far too pervasive, both in terms of those who insist on this dogmatism and – as importantly – in terms of the number of issues to which it extends (even extending to issues that have no inherent connection to policy preferences, such as whether Iraq had WMD’s, whether global warming is real or imagined, or whether AirTran was morally correct in its refusal to permit a Muslim family to reboard a flight after they were cleared by the FBI).

For instance, it’s one thing for talk-show hosts to rant and rave about “Defeatocrats,” the “homosexual mafia,” etc., since their purpose is not to persuade but is instead almost exclusively to rally the people who are already predisposed to agree with them. It’s a far different thing, however, when that attitude extends to campaign tactics, and/or a huge percentage of “talking heads,” whose purpose is at least nominally to persuade people to either vote Republican or to support a particular policy position.

Similarly, it’s one thing to rant and rave against a particular group as a means of motivating your “base” and maybe to scare the bejesus out of some fence-sitters into supporting your position. It is a far different thing, though, to do this on virtually every issue. So while Muslims, for instance, may be a tiny minority group whose support on any given issue is not worth being concerned about losing, the combination of Muslims, gays, social safety net beneficiaries, Latino immigrants, war opponents, etc. is a pretty large group.

By relying on rhetorical arguments that demonize so many groups and by making those arguments through so many different mediums, this form of dogma dramatically reduces the “pie” to whom conservatives may appeal – both for voting purposes and for purposes of winning support on policies that have nothing to do with the issue on which that group has been demonized. As Rod Dreher points out: “…if you build your political movement around constantly pointing out that it’s Us vs. Them, pretty soon you’ll find that there aren’t too many of Us left.”

But again – this problem is not one that is uniquely the province of conservatism or the Republican Party. Instead, it is a problem that will inevitably arise as any particular political coalition becomes ever-larger and attains a certain level of political success on issues where there is near-uniform intra-coalition agreement; in order to maintain the successful coalition, the party needs to manufacture loyalty on issues where there is less intra-coalition agreement. This is, however, an unsustainable strategy due to the way in which it “shrinks the pie” by demonizing policy opponents, even if they happen to be in the same political party. Eventually, the pie becomes small enough that the party can again find a coherent set of positive principles around which to build, and the cycle will begin anew.

The extremes of this cycle are just exacerbated today due to the way in which modern technology allows politics to pervade so much of everyday life. Eventually, the Dems will face similar problems as a result of their own successes, even as the GOP rebuilds around some as-yet unknown set of principles with a relatively broad appeal.

(Cross-posted at Publius Endures).

At his new Culture11 digs, John Schwenkler points to a Washington Post article about the impending February 10 National Bankruptcy Day, about which I have written prolifically in recent days.

One of the few saving graces with respect to this legislation, which will devastate small, medium and domestic businesses in numerous industries, has been a recent opinion letter which held that the bill’s ban on phthalates would apply only to products manufactured after February 10 and not to pre-existing inventory that was manufactured prior to the statute’s effective date (products containing any amount of lead, no matter how unlikely to be “mouthed” by a child or to contain the legitimately dangerous lead paint, are not so fortunate). This exemption for some pre-existing inventory is important because without it, businesses would be forced to destroy products already on their shelves, even if those products were legal when manufactured. The exemption is particularly important to small and medium sized businesses because of how businesses of that size order and/or manufacture their products many months in advance in order to take advantage of bulk discounts; larger businesses can obviously turn over large quantities of inventory much quicker than small businesses and, moreover, were much more capable of being aware of this law’s potential effects as early as October/November of 2007.

The Natural Resources Defense Council, having solved all “Natural Resources Defense” problems, is apparently not happy with the Consumer Products Safety Commission’s issuance of the exemption for pre-existing phthalate inventory. As such, they have sued the CPSC to make sure the law, with its $100,000 minimum penalties, is enforced in as draconian a manner as possible.

In defense of this lawsuit, the NRDC’s spokesperson expressed little sympathy for businesses that will have to close:

The problems of the retailers and the toymakers are beside the point, Colangelo said. “Congress decided these toys are unsafe,” he said. “That’s critical here. […] We’re talking about something that Congress decided was unsafe and shouldn’t be on the shelves.”

So why are these products so particularly unsafe that it justifies forcing hundreds of businesses to close in the midst of a severe recession? “Because Congress said so.” And why did Congress say so? “Because they’re so particularly unsafe that it justifies forcing hundreds of businesses to close in the midst of a severe recession.”

Again, if ever there was a time for conservative blogospheric activism (although liberal and/or libertarian activism would also be more than appropriate), this would be it. Unfortunately, the Malkinized portion of the Right (also the most activist portion) is much more concerned with talking about the NY Times’ latest flub on the all-important issue of Caroline Kennedy’s qualifications for Senator, not to mention Obama’s amorphous ties to the equally important issue of who the 800th Most Corrupt Chicago Politician of All Time spoke with and when, to even be aware that this problem exists and can realistically be prevented.

(Cross-posted at Publius Endures)

PS – I promise my next post here at Donklephant will be on something other than this issue.

Hello Donklephants! I’m Mark, and I regularly blog at (and run) the site Publius Endures.

Ostensibly I self-identify as a libertarian, although I’m not terribly dogmatic and tend not to write much on the more common libertarian themes, focusing instead on taking a sober look at the relationships between interest groups (which I define broadly) and political parties, the way in which political coalitions are formed, and the way in which laws and regulations are affected by interest group politics.

My most recent piece at Publius Endures dealt with a piece of legislation that largely fell under the radar: the Consumer Product Safety Improvement Act of 2008, which I argued needs significant revisions regardless of your political viewpoint. I have a much better piece (read: actual journalism!) up as of this afternoon at the excellent conservative site Culture11. The act, passed with almost no opposition, appears to represent the confluence of good intentions gone wrong, poor legislative incentives, and bad economics, with the added bonus of being particularly devastating to small and medium-sized domestic businesses. In other words, as enacted, the legislation should offend the sensibilities of almost any ideology.

The basic facts of the legislation appear, at first glance, to be quite reasonable. In essence (and although it also addresses several other subjects), the legislation is a response to the imported toy scandals of 2007, in which several mass-produced toys had to be recalled for containing levels of lead far in excess of the legal limits. As a result, near-unanimous passage of the legislation was almost guaranteed from the start – after all, who wants to be FOR lead in childrens’ toys in an election year?

The problems arise in the actual details of the legislation, which are voluminous and, worse, vague. As I write in the Culture11 piece (please do go read the whole thing!):

The biggest problem, perhaps, is that the law implements a new third party testing requirement on every SKU number of every children’s product (including individual titles of children’s books), testing that can run anywhere from a few hundred dollars to tens of thousands of dollars, depending on the type of product. It is unclear how often this testing will be required; however, the wording of the legislation suggests that it could be as often as every outgoing shipment. What is clear, however, is that large imported shipments will only need to be tested upon their arrival in the U.S.

The new law also requires a new type of labeling on all children’s products, in which these products must be stamped with various information for tracking the product, including the date of production. While seemingly easy to comply with, this will actually require expensive retooling for manufacturing machines. The law further mandates that suppliers provide their distributors with certifications for each shipment of each product, a bureaucratic nightmare that many businesses will likely violate occasionally due to simple human error. Yet punishments for violations of the law are draconian — $100,000 minimum fines for each violation up to $15 million, plus possible criminal sanctions. In addition, it is still possible that the law will be implemented in such a way as to turn some pre-existing inventory into contraband when the law takes effect on February 10, 2009 (unless this changes, existing inventory would have to be discarded, immediately driving many businesses to close and/or default on loans).

The piece goes on to discuss the way in which this legislation was passed, and how free market advocates can prevent legislation such as this in an era where “deregulation” is a four-letter word.

For those answers you’ll have to read the whole thing, but I did want to discuss something here that was not relevant to my point in that piece.

One of the most amazing things that came out during the course of my research was just how little this law is going to do to improve toy safety – indeed, it will most likely make children’s products more dangerous by causing the CPSC to focus on catching paperwork errors instead of finding dangerous products. This is true even though the bill significantly increases the agency’s budget.

Even more amazing was just how easily Congress could have passed legislation that actually would have improved safety. The people I interviewed for the article agreed that one of the best things that could have been done in the wake of the toy scandal was to force the CPSC to better prioritize its enforcement responsibilities. In essence, one of the reasons so many lead-laden toys got through last year was that the agency treats most enforcement issues as being created equal (unless, of course, there’s a death involved). This encourages a focus on finding problems that are easily found, but are usually relatively harmless – things like paperwork errors, for instance. It’s the same type of problem Megan McArdle says faced the SEC with respect to the Madoff case. Instead of fixing this problem, the legislation actively makes it worse by giving CPSC more technicalities to enforce.

Another possible solution that was mentioned to me was the idea of “component testing.” Under component testing (which the CPSC actually is, apparently, considering in some form), you require testing only of individual components instead of the final product. This is less costly on a per-test basis and allows manufacturers to make multiple products using the same components. So, for instance, a small children’s book publisher would only need to test its ink, paper, and coverboard rather than having to test every single title.

Yet neither of these easy solutions was even considered by Congress. Instead, one of my sources told me that Congress’ response to just about any proposed changes or objections was, effectively, “the National Association of Manufacturers is on board, as are Hasbro and Mattel, so we don’t really care what you think.”

This presents a major problem for small business (unless one of the major parties adopts something akin to the position I advocated in my Culture11 piece), to wit: How do small businesses defend themselves against onerous laws and regs when they can’t get a seat at the table?

One obvious answer is to organize into a more focused advocacy group, but even this doesn’t always get you a seat at the table. For instance, so far as I can tell (though I’m not 100% certain), the Apparel and Footwear Association (which, unlike other advocacy groups, is not dominated by its biggest members) did spend a substantial amount of effort pushing for changes to the legislation. Yet none of those changes made it through, suggesting they received essentially the same response.

And, finally, some breaking news. I just now found out that the National Association of Manufacturers (which supported the legislation) is petitioning the CPSC to implement regs that would eliminate a lot of the hardship to be caused by this law. I have to think about what this means…but I don’t think it’s inconsistent with the explanation I gave in my C11 piece.

(Excerpts cross-posted at Publius Endures)