David Boaz

Is this the last blog in America that hasn't commented on the Charlie Sheen meltdown? There isn't much of a public policy angle, of course. Oh sure, employment-law analysts are looking at whether Warner Bros. has the right to fire Charlie Sheen. John Stossel and Bill O'Reilly talked about that question Tuesday night. But I've got another contribution. If Sheen is gone, Warner Bros. is going to need another actor -- and a new "situation" -- to keep its hit show "Two and a Half Men" on the air. Here's my treatment:

A womanizing actor (John Stamos) is delighted to buy a Malibu beach house at a fire-sale price when the owner (Charlie Sheen) suddenly leaves town. Then he's shocked to discover that the brother and nephew of the previous owner are living in the house, not paying rent, and refusing to leave. He tells them to get out, but Stamos brings in a lawyer (Julianna Margulies) who tells him that under California lawyer-tenant law he can't evict the people who are living there.

Warner Bros. might want to seek out the writer of  Pacific Heights, a 1990 thriller that is almost a documentary on the horrors of landlord-tenant law. A young couple (Matthew Modine and Melanie Griffith) buy a big house in San Francisco and then rent an apartment to a young man (Michael Keaton). He never pays them, and they can't get him out, and then things get really scary. The lawyer lectures the couple -- and the audience -- on how "of course you're right, but you'll never win." I just knew this happened to someone -- maybe the screenwriter or someone he knew. Sure enough, when Cato published William Tucker's book Rent Control, Zoning, and Affordable Housing, and I asked the director of Pacific Heights, the legendary John Schlesinger, for a jacket blurb, he readily agreed to say "If you thought Pacific Heights was fiction, you need to read this book"; and he told me that the screenwriter had a relative who had gone through a tenant nightmare. Of course, Warner Bros. might prefer to hire that screenwriter for a movie about a company that hires a charming and handsome new employee (Charlie Sheen) who brings in lots of money but turns out to be a nightmare to work with. Can they fire him? Hilarity ensues.

The Wall Street Journal reports Monday:

Departing members of the House of Representatives awarded millions of dollars in extra pay to aides as they closed down their offices, according to lawmakers' spending records. The 96 lawmakers paid their employees $6.7 million, or 31%, more in the fourth quarter of 2010 than they did, on average, in the first three quarters of the year.... Because most of the departing members were Democrats, fourth-quarter salary increases in 2010 for Democratic staffers were the largest in the decade LegiStorm has been gathering such data. Republican staffers enjoyed a similar boost when many of their employers left office at the end of 2006.

And that last point sounded especially familiar. In 2007, I wrote in The Hill:

The year-end spending spree is a hallowed Washington tradition. Bureaucrats fear nothing more than the budget cuts that result if they don't spend all the funds they've been allocated. And Congress frequently asks the Government Accountability Office to investigate the extent of late-breaking spending requests. But it turns out that legislators engage in their own spending binges, especially when control of Congress is shifting to the other party. At the end of 2006, after the Democrats had won control of Congress but before they had taken office, the outgoing Republican majority voted its committee staffers unusually generous raises — with some staffers receiving significant double-digit bonuses.

After going through some specific examples from 2006 similar to those the Wall Street Journal found for 2010, I concluded:

Members of Congress are free to pay their staffers whatever they choose, up to an annual ceiling, so there's nothing illegal about year-end bonuses, even year-end, post-election, before-the-other-party-gets-in bonuses. But this pattern illustrates a big difference between the private and public sectors. In the private sector, if your customers become dissatisfied with your product, you tend to make less money. In the public sector, you get a couple of months to double-dip before you lose control of the money. For participating in a Congress that voters booted out of office, these bonuses are a handsome parting gift.

Not for the first time, you read it here first!

At the Britannica Blog I write:

Many commentators have seen a shift to the right in American politics over the past two years — the reaction to spending, bailouts, and Obamacare; the rise in conservative self-identification in polls; the 2010 elections. But there’s another trend going on as well. I described it in 2009 as a “civil liberties surge.” And this week there’s new evidence. A new study from the Pew Research Center for the People & the Press finds long-term growth in support for legal abortion, gun rights, marijuana legalization, and gay marriage.

The graphs on all these topics from Pew are pretty impressive, as is another one from the General Social Survey included in the Britannica post. I go on to note:

These new poll results should be no surprise. Part of the American project for more than 200 years has been extending the promises of the Declaration of Independence — life, liberty, and the pursuit of happiness — to more and more people. America is a country fundamentally shaped by libertarian values and attitudes. In their book It Didn’t Happen Here: Why Socialism Failed in the United States, Seymour Martin Lipset and Gary Marx write, “The American ideology, stemming from the [American] Revolution, can be subsumed in five words: antistatism, laissez-faire, individualism, populism, and egalitarianism.” If Herbert McClosky and John Zaller are right that “[t]he principle here is that every person is free to act as he pleases, so long as his exercise of freedom does not violate the equal rights of others,” then marriage equality and marijuana freedom are only a matter of time. And none of these socially liberal results challenge the general perception of a conservative trend, as long as that trend is understood as a reaction to bailouts, takeovers, and other elements of “big government.” Americans continue to tell pollsters they prefer “smaller government with fewer services” to “larger government with more services.”

In the Richmond Times-Dispatch, Barton Hinkle notes that the Virginia General Assembly has just passed "tough new regulations on abortion clinics." And

Suddenly, outraged liberals are sounding remarkably like libertarian advocates of laissez-faire capitalism and the industries they defend. For instance, abortion-rights supporters already are warning that the heavy hand of government will impose requirements so absurd and so economically burdensome that they will force clinics to close their doors. "What they'll do is put a burden of extra cost that is not backed up by sound science," said one abortion provider who spoke on condition of . . . whoops! Actually, those were the words of Alva Carter Jr., chairman of a New Mexico dairy industry group, who was protesting new groundwater pollution regulations last April. "The scale of the . . . current assault is unprecedented," complained Planned Parenthood spokes — no, that was The Wall Street Journal, raging last November against the EPA. The paper said the agency "has turned a regulatory firehose on U.S. business and the power industry in particular." "The massive red tape . . . threatens to strangle . . . the industry," complained — well, that was Investor's Business Daily, writing about the Dodd-Frank financial bill last year. The paper cited a report by the American Bankers Association warning that "the coming 'tsunami of regulations' could wipe out hundreds of smaller banks." Substitute "abortion clinics" for "smaller banks," and you have the Virginia debate in a nutshell. (And yes, let's stipulate right here that many so-called conservatives believe in limited government everywhere except the uterus.) "They could require things that are completely unnecessary." That actually was a quote from an abortion-rights supporter: Shelley Abrams, the director of A Capital Women's Clinic in Richmond. And she is entirely right. Sometimes government does require things that are not strictly necessary. And those requirements impose a heavy financial burden. This is hardly a revelation. Small-government advocates have been saying it for many years. Yelling it, actually, at the top of their lungs. To little avail. Example: Supporters of abortion rights now worry that even existing clinics might have to obtain a Certificate of Public Need from the state. To which one might reply: Why should they be different? For years, certain voices in Virginia have been suggesting that the COPN process — essentially, a government permission slip for health-care providers — creates an unnecessary market entry barrier. They have argued that government has no business deciding whether a particular community needs a particular health-care facility.

He goes on to note that

when free-marketeers and industry groups gripe about the burden of governmental regulation, they often get truth-squadded by deeply skeptical liberals. On Monday, the AP's "Spin Meter" gave the gimlet eye to predictions that the Obama administration's new smog regulations could destroy more than 7 million jobs. The news service pointed out that the researcher who came up with the number was "industry-sponsored." (Boo.) It lamented the "imprecise economic models" used. (Hiss.) And it pointed out that "those opposed to government regulations rarely mention the potential benefits to society." Amen, brother.

Hinkle hopes that people concerned about the burden that regulation imposes on abortion clinics will eventually come to recognize that regulation also imposes costs and burdens on every other business. Jerry Taylor and I have both noted in the past the differing media treatment of abortion and other science and health issues. Looking at two NPR stories on the same day, I praised one on the dangers of abortion pills:

It was a good example of careful, cautious reporting. But why are journalists seemingly much more cautious in reporting medical risks involving abortion than in reporting other kinds of risks? There are plenty of critics of the "junk science" involved in the Vioxx stories; why aren't they interviewed in Vioxx stories? The numbers were small in the Vioxx study, as in the case of the abortion drugs, but that fact was dismissed in one report and emphasized in the other. Cato's Jerry Taylor noticed something similar in a Wall Street Journal column 11 years ago (January 3, 1995; not online). He noted that the Journal of the National Cancer Institute

caused quite a stir by publishing an epidemiological study suggesting that women who have abortions are 50% more likely to develop breast cancer than women who do not...."Not so fast," countered epidemiologists; a 1.5 risk ratio (as epidemiologists put it) "is not strong enough to call induced abortion a risk factor for breast cancer."

Taylor agreed that a 1.5 risk ratio is below the appropriate level of concern. But he wondered why "the same risk ratio that was so widely pooh-poohed by scientists as insignificant and inconclusive when it comes to abortion was deemed by the very same scientists an intolerable health menace when it comes to secondhand smoke. Actually, that's not quite true. The 1.3 risk factor for a single abortion was significantly greater than the really hard to detect 1.19 risk ratio for intensive, 40-year, day-in-day-out pack-a-day exposure to secondhand smoke (as figured by the EPA)."

I appeared on WFPL, the NPR affiliate in Louisville, Kentucky, today to argue for ending the federal funding for NPR and PBS. Sort of like Daniel in the lion's den. But since I survived, and since NPR stations are using all their government dollars to mount a vigorous radio and internet campaign to get more government dollars, I thought I would pull together some of my writings on the topic. You should shortly be able to listen to the show here. I made the point that we have a $1.5 trillion deficit, and every spending program has to be on the table. But more importantly, as I said in my article on the top ten reasons to privatize public broadcasting,

And the number one reason to privatize public broadcasting is: 1. The separation of news and state. We wouldn't want the federal government to publish a national newspaper. Why should we have a government television network and a government radio network? If anything should be kept separate from government and politics, it's the news and public affairs programming that Americans watch. When government brings us the news—with all the inevitable bias and spin—the government is putting its thumb on the scales of democracy. It's time for that to stop.

Here's my testimony to the Senate Appropriations Committee -- four public broadcasting CEOs and me -- which is actually more balanced than most congressional hearings. This includes data on public broadcasting demographics that I cited on the air. Here's the Cato Handbook for Policymakers chapter on "Cultural Agencies." Here's my speech, "The Separation of Art and State," delivered at the Delaware Center for Contemporary Arts. Read my reflections on the scandals in public broadcasting here.

David B. Rivkin Jr. and Lee A. Casey, prolific conservative lawyer-writers, have an op-ed in the Wall Street Journal deploring President Obama's decision not to defend the constitutionality of Section 3 of the Defense of Marriage Act. They write:

DOMA posits that the definition and regulation of marriage has always been a state issue....DOMA recognizes and protects the unique constitutional role of the states in deciding these issues.

And the subhead, which of course they didn't write and may not have seen, emphasizes,

DOMA leaves the issue of gay marriage to the states, which is exactly where it belongs.

But there's a problem here. As they well know, Section 3 of DOMA is the most controversial part, and it precisely does not leave marriage to the states. It says:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

That is, the federal government for the first time said in 1996 that it would not recognize marriage licenses lawfully issued by the several states but rather would override state decision-making on marriage in favor of a uniform national rule as it pertains to taxes, immigration, benefits, and other federal issues. Surely that was an unprecedented intervention into state authority over marriage (save for the Loving decision that barred the states from banning interracial marriages). And also, as the authors know, the very first sentence of Attorney General Holder's letter to Speaker Boehner read, "the President of the United States has made the determination that Section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment." Yet the article, deploring the administration's action, ignored Section 3, the precise section of DOMA at issue. There's a respectable federalist case for Section 2 of DOMA, which guarantees that no state will have to recognize a same-sex marriage made in another state. (There's also a respectable constitutional case for applying the logic of the Loving case to the question of gay couples seeking to marry, as Cato chairman Bob Levy argued in the Washington Post.) But Section 3 of the act, the section that Obama and Holder consider unconstitutional, is not federalist, it is centralist. Rivkin and Casey should at least have addressed that point, rather than criticizing the president by dodging the actual issue at stake. Footnote: Rivkin and Casey have done noble work recently in defense of limited government and federalism with regard to President Obama's health care law. And in 2006 they warned conservatives against taking marriage law out of the state legislatures and enshrining rules in state constitutions. It's too bad they didn't bring the same acuity to their analysis of DOMA and the president's bold but narrow decision.