Archive for December, 2010


Washington’s General Welfare State

   Posted by: Robert    in Law

Over in the Wall Street Journal’s opinion section, Randy Barnett and David Oedel offer an interesting take on how ObamaCare might be treated under the General Welfare Clause of the Constitution.  Their basic argument seems to be that tying compliance with ObamaCare to federal funding of Medicare is coercive to the point that it is unconstitutional.  Along the way, however, they enter into an interesting discussion about the General Welfare Clause and why, in their view, such special deals as the Louisiana Purchase and the Cornhusker Kickback should also be found unconstitutional.  I’m not sure I agree with their reading of the Clause, but the implications of their reading strike me as being nothing short of remarkable.

Their basic argument against the Cornhusker Kickback follows, essentially, from this paragraph:

Article I, Section 8 of the Constitution gives Congress the power “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.” The problem with the Cornhusker Kickback was that the citizens of 49 states would have had to pay for Nebraska’s Medicaid exemption—without getting anything in return. The special exemption exceeded Congress’s constitutional authority because it did not serve the “general welfare”—meaning, the welfare of the people of each and every state.

Put another way: If Congress spends to the benefit of some parties over others, then they have failed to act in accordance with the general welfare, so their spending is unconstitutional.

Political payoffs to buy the votes of congressmen with taxpayer dollars are not the only times we see government acting to the benefit of some parties over others.  Earmark spending follows this model as individual politicians write funding for particular projects into federal spending bills.  Much of this spending is of doubtful value to anyone but the people or organizations receiving the taxpayers’ money.  Almost none of it promotes general welfare.

Barnett and Oedel go on to note that “Normal federal spending occurs irregularly throughout the U.S. If Nebraska gets a military base, for example, making the case that it serves the “common defense and general welfare of the United States” is easy, since citizens of other states benefit from the base.”  What they seem to gloss over, however, is that Congress doesn’t build military bases under the General Welfare Clause.  The Article 1 Section 8 powers to “support Armies” and “support a Navy” are the normal (and appropriate) vehicle for military spending.  There is no Article 1 Section 8 power to fund the YMCA.

As Barnett and Oedel continue, “[t]he same general-welfare story can be told about virtually all federal spending programs, which is why Chief Justice William Rehnquist said in [South Dakota v.] Dole, “[i]n considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress.””  However, the courts are not the lone arbiters of constitutionality, and the mere fact that a court does not strike something down does not answer the constitutional question.  The structure of government, our elected representatives, and We the People all have an obligation to ensure that the government stays within its constitutional limits.

Make no mistake, most earmarks are unconstitutional.  Few have anything to do with the General Welfare, in addition to other constitutional infirmities.  The Cornhusker Kickback and Louisiana Purchase are only the most infamous recent examples.  Barnett and Oedel provide one more reason to be suspicious of earmark spending, and one more reason that the people need to be forever vigilant about how their representatives try to spend America’s money.


The FCC: A History of Failure

   Posted by: Robert    in Politics

Adding an interesting new dimension to the discussion about the FCC’s most recent power grab, Ars Technica recently ran an article discussing the FCC’s role in the history of television.  Based on what the author has written, I should think it impossible for anyone who believes in limited government to read the article without getting upset.  The story paints the entire television scene as the product of government central planning, built on the hubris of a once obscure government agency with a modest charter, and riddled with one policy failure after another.  This inept agency is the same one that now purports to have taken control of the Internet in the face of Congressional opposition, impending Congressional action, and a court which already struck down this power grab once.  God save the Internet if these fools get their way.

The story begins, modestly enough, with radio signals.  Back when radio was first being invented, the number of radio frequencies available was nowhere near the number of frequencies that we have today.  With broadcasters wanting to get into the business of broadcasting on what was then a rather limited spectrum, it suddenly became important to have some way for them to share the air without stepping on each others’ signal.  Somehow, the government ended up owning the airwaves, and the FCC (then called the Federal Radio Commission) was chartered to parcel them out to interested parties.  The FCC accomplished this by keeping ownership of the airwaves and granting licenses for their use.  With that decision, America’s first command and control economy was born.

From that point forward, the FCC has been in the business of choosing broadcasting winners and losers.  The agency began by granting licenses to nonprofit organizations, colleges, churches, and the like.  There was no advertising model back then, and organizations profited from having radio stations by using them to promote their particular causes.  That all changed when the FCC decided that advertising driven, for-profit radio was the wave of the future.  By giving higher priority in obtaining/renewing licenses to for-profit “commercial” radio, the FCC ejected nonprofit “propaganda” radio from the market (and, thus, from existence).

The FCC has been in the pocket of commercial radio broadcasters ever since.  Time and again, the FCC has conspired to kneecap or completely destroy technology which would tend to compete with its chosen winners.

In one early example, AT&T wanted in on the radio game.  They devised a technology which would allow for broadcast over its telephone network; essentially, it’d be like cable TV for radio.  The FCC kept AT&T away by offering them a monopoly over telephone service in exchange for killing their cable radio plans, then made it illegal for anyone else to ever try cable radio again.  Many years later, the FCC would try to do the same thing with cable television.  They would ultimately fail — today, most people watch TV over cable or satellite — but they effectively froze the technology for decades and continue to impose requirements designed to make the life of non-broadcast providers as difficult as possible.

Then, of course, there are the technology requirements.  Back in the earlier days of television, signals were sent on various channels of VHF or UHF frequencies.  Because of the different cost structures involved, UHF failed spectacularly.  The FCC, under the control of a chairman who couldn’t find anything on TV he wanted to watch, changed UHF licensing requirements to include a mandate for “better” programming.  He also got Congress to mandate UHF receivers on all televisions, since most at the time didn’t have one.  UHF still failed, and the FCC chairman, if he were alive, would probably still be lamenting the thousands of channels available on cable which still have almost nothing worth watching.

More modern mis-innovations also abound.  The CableCARD program is such a disaster that almost nobody even knows it exists.  The V-chip is only slightly less useless.  And the digital TV mandate was only “successful” (for the 10% of TVs that aren’t hooked up to cable or satellite) after being delayed for months an heavily subsidized by the government with taxpayer dollars.  Future possibilities also include mandating FM tuners in cell phones; technology almost guaranteed to blend in perfectly with the scrap heap of waste generated by the FCC.

In sum, the FCC promotes technology nobody wants and kills technology that’s actually useful.  The economic model is textbook command and control; even the idea of private property doesn’t exist in the FCC’s world.

The FCC has quietly been one of the most destructive bureaucracies in the history of America.  They are living proof that Marxism can take hold in America if the people are not vigilant.  They have selected winners and losers, they have decided which business models live and which models die, and they have almost always chosen wrong.  These are the people who want to take over the Internet:  Bumbling bureaucrats who have never made a correct decision, but who believe themselves to be the ultimate arbiters of an entire sector of the economy.



Seizing Freedom

   Posted by: Robert    in News

A few weeks ago, a new proposal for a federal law first came to my attention.  The Combating Online Infringement and Counterfeits Act (COICA) would give the federal government authority to police various forms of copyright infringement on the Internet.  The Act itself is not long to read, and it essentially boils down to giving the Attorney General the authority to take down domain names with a court order if whatever is located at such domain names is shown to infringe on copyright.  Though the law is brief, its implications are staggering.  What’s more, other recent events raise serious questions as to whether such a law is even necessary at all.

A law like COICA represents a radical departure from the history of copyright enforcement in the US.  The Constitution vests in the federal government the authority to create laws to promote useful creativity by protecting things such as patents and copyrights.  Congress, in turn, put together a regulatory scheme in which copyright issues can be brought to the courts, but where the government is otherwise uninvolved.  In copyright suits throughout US history, the obligation has fallen to rights holders to identify instances of patent or copyright infringement and bring an appropriate action against the infringing party.  Although laws like the Digital Millennium Copyright Act (DMCA) have fueled the debate about how much protection rights holders deserve, the basic structure of private action in a federal forum has never been greatly tampered with.

Until now.

Politicians in recent years have been under increasing pressure from Big Content (RIAA, MPAA, etc.) to change the way copyright is handled in America.  Pretty much ever since Napster, the content industry has been learning a great deal about fighting copyright infringement in the digital age.  Perhaps the most important lesson they’ve learned is that fighting copyright infringement is expensive and time consuming, with rewards for success questionable at best.  As usual when it comes to battles in a courtroom, the only people who win are the lawyers.

Big Content have, naturally, grown a bit tired of paying their attorneys to go out and sue people for huge sums of money, most of whom can’t pay even if they lose.  In their view, it makes a whole lot more sense to let the government take over.  Big Content keeps its profits while taxpayers cover their legal bills.  A bill like COICA is an appetizer to the government sponsored, taxpayer funded feast that Big Content hopes to enjoy.

Recent events, however, point out that COICA may not only be bad policy, it also may be entirely redundant.  The ability to seize and destroy domain names apparently already exists in the arsenal of weapons employed by — of all agencies — Immigration and Customs Enforcement.  Why ICE should be more concerned about protecting our recording labels than they are about protecting our borders is a mystery to me, but there it is just the same.  Best of all, it appears that they can close down domains without much legal process other than obtaining a court order — notice to the domain owner, an opportunity for the owner to challenge the takedown in court, a trial over reasonable questions of fact and law, and other legal protections usually associated with at least two amendments in the Constitution are apparently not required.

If Homeland Security can do all of this on its own authority, what does Congress need to pass laws for?  If the government can take private property (and domain names are property) without due process of law, what do we have a Constitution for?

These days, it seems like not much.


Republicans Already Forgetting November

   Posted by: Robert    in Politics

What an unbelievable spectacle it has been reading the news coming out of Capitol Hill this past week.  It was only a mere month and a half ago that American citizens, old and young, from all across the nation issued their resounding call that when it comes to big government, enough is enough.  In district after district, conservative candidates won surprise victories in primaries and in the general elections, or made strong showings in places where in elections past there would hardly have been reason to give Republican candidates a second thought.  State legislatures and executive offices also swam in the red tide as people cried for the death of big government and the return of individual liberty.  Yet, it seems, for Republicans on the Hill, with the elections gone it’s back to business as usual, with personal freedom still squarely in the crosshairs.

So much digital ink has been spilled about the Bush Tax Cuts that it’s hardly worth adding much more.  The general consensus seems to be that Republicans would have been better off dropping the deal and trying again for a better package in the new year.  That may be true, but it could also have guaranteed a tax hike.  For now, at least, I’m willing to write that episode off as a lose-lose-lose scenario for Republicans, Democrats, and the American people.  In any case, there are far clearer examples of how out of touch Republicans still are.

The first of these examples is the CALM Act, a law passed to authorize and mandate the FCC to create regulations about how loud commercials can be during television programming.  The law itself is a trifle of a thing, but it was passed by Congress and signed by the President without a single recorded vote.  The clear implication is that Republicans are still complicit in the expansion of government power.  Without objection, another tendril has been injected into American enterprise from the chambers of Congress.  Laws like this are precisely what we voted against a mere six weeks ago.

Another example is a food safety bill passed by Congress to give more authority to the FDA, supposedly to help combat food-borne illnesses.  In reality, it’s a $1.4 billion injection of 17,800 government bureaucrats into the US economy.  The bill would give the government the authority to mandate food recalls and to arbitrarily review the records of farms and food producers.  This measure could certainly be taken up in Congress next year — there is no food-borne illness crisis — but is instead being rammed through the Senate late on a Sunday one week before Christmas.  All without the benefit of a vote, and all, apparently, with Mitch McConnell’s blessing.

This past Election Day, the American people could hardly have been more clear that they are tired of seeing more government at every turn.  So far, although Harry Reid set himself up for failure, the only thing he seems to be failing at is failing.  Nothing important would have been lost had Republicans held the line and shut down the Senate until the new session next year.  Instead, they seem to be as complicit as ever in the expansion of government over the American people.

The real conservatives can’t get started soon enough.


Turning Up the Volume on Government

   Posted by: Robert    in Law, News

Congress is about to hand Americans another case of government overreach.  It appears that the House of Representatives has just approved the cutely named CALM Act, which now makes its way to President Obama for signature.  The bill, in essence, requires the FCC to enact regulations to control the volume of commercials on television to ensure that they are not too loud.  That the government has spent time on such a venture is entirely ridiculous.

To begin with the pragmatic question first, why in the world is the government wasting time on a bill like this?  When commercials are broadcast louder than the shows that are otherwise airing, it’s safe to say that what results is a minor annoyance at best.  I’m not someone who watches TV often, but I have noticed some commercials are louder than others.  Usually, though, it’s not too bad, and the thought of reaching for the remote never even crosses my mind.  Perhaps the most awful effect coming from the volume of commercials is that it wakes up people who fell asleep during a television show.  National security has never been compromised, and nobody has ever been hurt, because a commercial was louder than the TV show during which it aired.  The problem is, in sum, a minor trifle of an annoyance.

The government’s effort to “fix” this non-problem is likely to create some actual problems to be solved.  TV stations will, of course, be required to comply with whatever regulation the FCC ultimately decides to adopt.  It is likely that networks will be required to invest in hardware and software to analyze the broadcast volume of television shows and commercials to ensure that they are properly equalized.  This hurts small broadcasters who likely have much better things to spend that money on, as well as consumers who will ultimately be responsible for picking up the tab.

In the end, it’s impossible to see this bill as anything other than another example of government intervention into the everyday lives of Americans.  This legislation, quite simply, serves no greater purpose.  It is most unfortunate (though not surprising) that it was passed without a single recorded vote in either the House or the Senate; underscoring the triviality of the bill as well as the careless disregard with which Congress is willing to enact such legislation.

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