Incentives

One of my colleagues told me she had to leave work early today in order to pick up her son from school at 11:30, because the school was having a "minimum day." "Minimum day?" I asked. "What's that?" She then explained that the state pays public school teachers by the day. A "minimum day" is a day where the teachers are at work just long enough to get one whole day's pay.

Don't ever let anyone tell you incentives don't matter.

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Beef Imbroglio

It took me a while to suss out the relevant facts in this article about the case of Charter v. USDA, but I think I've finally figured it out. First, some background: The Supreme Court ruled in the case of United States v. United Foods (2001) that individual firms cannot be forced to make contributions for generic advertising. For example, milk producers and distributors can't be forced to help pay for those "Got Milk?" ads that you see all the time. The justification for this decision -- and I think it's a good one -- is that freedom of expression includes more than the right to say what you want to say; it also includes the right *not* to say things you *don't* want to say. And as a corollary, you also have a right not to be forced to subsidize others who are saying those things you don't want to say.

The issue at hand in Charter v. USDA: Major beef producers lobbied for the Beef Act (don't know what year it was passed), which creates a "checkoff" on tax returns. If you check that box, you're agreeing to let the government keep a little more of your money and use it to advertise and promote beef. For reasons that I cannot fathom, lots of taxpayers actually check that box, creating revenues of $80 million annually. But running the program requires funding, and the funding comes from a $1 "assessment" per head of cattle sold. Independent cattle producers have argued, I think correctly, that this is virtually indistinguishable from what the Supreme Court ruled unconstitutional last year.

But the USDA (and the beef associations that lobbied for the Beef Act) defend this program on grounds that the speech in question is "government speech" protected under the First Amendment. The idea is that the government has a right to express ideas, just as private parties do. In this case, the government is simply employing private parties to express the government's message. A federal district court judge bought this argument and ruled in favor of the government. There will be an appeal, of course.

The problem with the "government speech" position, as I understand it, is that it relies on the notion that government actors have the same rights that private citizens do. Yet there are many things private actors can do that are forbidden to government, and rightly so. The Bill of Rights is not there to protect government action, but to limit it. The fact that the funds in question are acquired coercively by the state makes all the difference in the world. Using the First Amendment to justify forcing people to support views they don't necessarily agree with turns the Bill of Rights on its head, allowing it to be used against private citizens for the benefit of government.

Moreover, accepting the "government speech" argument in this case creates a perverse incentive for private interests to lobby for special-interest legislation, because it opens a gaping loophole to the prohibition on forced speech enunciated in U.S. v. United Foods: get the government to do the talking for you.

My non-expert opinion: the district court's decision will be overturned on appeal. But I'd like to hear the opinions of some actual lawyers.

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Escape from Bondage

I have a certain affection for initiatives and referenda, if only because they avoid the bundling problem that arises from voting on candidates and party platforms instead of specific issues. Bundling is one (though by no means the only) reason that special-interest legislation is so common. A politician can alter his minor policy positions just enough to accommodate special interests, thus attracting their votes and campaign dollars, while maintaining his visible policy positions to avoid alienating the rest of the voting public. (Even if you knew your representative supported the ridiculous honeybee subsidy, would that be important enough to outweigh his position on abortion and the death penalty?) By treating issues separately, ballot measures let voters deal with each issue on its own merits. They can also allow the voters to take positions that spook politicians, like legalizing medical marijuana.

But as always, there is a downside. Ballot measures can mislead voters into thinking they can have a free lunch, instead of realizing the trade-offs entailed by "good causes." Yesterday, Californians approved a whole slew of bond issues for "good causes" like school construction and maintenance (see my post below), after school programs for kids, housing and emergency shelter, etc. Sure, there was a dollar amount on each bond issue, with fine print explaining that all this money would eventually have to be paid back by the state. But what do those dollar figures even mean? To the average person (who doesn't even know the size of the yearly state budget - I sure don't), $13 billion spent by the state might as well be $1.3 billion or $130 billion. The real significance of the dollar figure is what the money could have been spent on, such as other government programs or (good heavens!) the personal spending choices of future taxpayers. That information, of course, is not included on the ballot.

Hence my agreement with the following sentiment expressed by Gary North in an article about the pure entertainment value of voting: "I love any election in which there is a bond issue on the ballot. I get to vote 'no.' The more worthy the cause appears to be in the minds of its supporters, the more I enjoy voting 'no.' … So, every other year, I get to go into a voting booth, close the curtains, pick up the hole-puncher, and punch chad-free holes into the 'no' slots of every bond issue. Pop, pop, pop: I love that sound!"

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A More Thoreau Analysis

And as long as I'm quoting from 19th century philosophers, I might as well give the floor to my man Henry David Thoreau for a moment. "All voting is a sort of gaming, like checkers or backgammon, with a slight moral tinge to it, a playing with right and wrong, with moral questions; and betting naturally accompanies it. The character of the voters is not staked. I cast my vote, perchance, as I think right; but I am not vitally concerned that that right should prevail. I am willing to leave it to the majority. Its obligation, therefore, never exceeds that of expediency. Even voting *for the right* is *doing* nothing for it. It is only expressing to men feebly your desire that it should prevail." -- from "Civil Disobedience," 1849.

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Government by Consent of Some of the Governed

I am not an anarchist. I am not an anarchist. I am not an anarchist. There are some days I have to repeat that mantra more often than others, and this is one of them, for on this day we allegedly consent to the policies of our government. Lest anyone think this form of consent is anything like (say) the consent that distinguishes consensual sex from rape, let us hearken to words of Herbert Spencer: "Perhaps it will be said that this consent is not a specific, but a general one, and that the citizen is understood to have assented to everything his representative may do when he voted for him. But suppose he did not vote for him, and on the contrary did all in his power to get elected someone holding opposite views -- what then? The reply will probably be that, by taking part in such an election, he tacitly agreed to abide by the decision of the majority. And how if he did not vote at all? Why, then he cannot justly complain of any tax, seeing that he made no protest against its imposition. So, curiously enough, it seems that he gave his consent in whatever way he acted -- whether he said yes, whether he said no, or whether he remained neuter! A rather awkward doctrine, this." - from "The Right to Ignore the State," 1851.

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