Month: August 2020

Early in Wednesday night’s Republican National Convention broadcast, South Dakota Gov. Kristi Noem reeled off a list of reasons she thinks voters should reward President Donald Trump with a second term. Among them: “He shrunk government.”

Alas, that statement isn’t close to being true.

The most traditional way to measure the size of government is to count how much money it spends. In Barack Obama’s last full fiscal year of 2016 (covering, as fiscal years do, the period from October 1 the previous year to September 30 of the annum in question), the federal government spent $3.85 trillion—$2.43 trillion on “mandatory” items (Social Security, Medicare, Medicaid, etc.), $1.16 trillion on discretionary outlays (more than half of which went to the Pentagon), and $230 billion on debt service. (I’m using here numbers compiled by The Balance, which differ slightly from those of the Congressional Budget Office but are broken out in more detail.)

In fiscal year 2020, before the coronavirus pandemic triggered a record amount of spending, the federal government was on course to cough up $4.79 trillion—$2.98 trillion mandatory, $1.44 trillion discretionary, and $380 billion in interest.

So under Trump’s signature, before any true crisis hit, the annual price tag of government went up by $937 billion in less than four years—more than the $870 billion price hike Obama produced in an eight-year span that included a massive federal response to a financial meltdown.

Ah, comes the inevitable rejoinder, but it’s Congress that has the power of the purse! Quite so. And that Congress was controlled by the president’s political party for 54 percent of his tenure, during which time Republicans jointly agreed through a series of continuing resolutions and must-pass, little-read “omnibus” packages to lift Obama-era spending caps, wave away the debt ceiling limit on federal borrowing, and fulfill Trump’s campaign pledge to “save,” rather than reform, old-age entitlement programs.

Trump came into office promising to “prime the pump” at the tail end of a historically long economic expansion and stock market bull run, rather than use the opportunity of comparative prosperity to prepare for a rainy day and/or address the long-term fiscal unsustainability that the government’s own economists have been warning about for well over a decade. Any case that he has been shrinking government must lie elsewhere.

So how about executive branch employment? According to the St. Louis Fed, crunching numbers from the Bureau of Labor Statistics, Trump inherited a civilian workforce of 2.815 million and kept that basically flat until it started rising around last July, presumably because the 2020 Census started to jack the number northward. No cuts.

In a March report, the Office of Personnel Management (OPM) and Office of Management and Budget (OMB) produced similar numbers—essentially flat executive branch employment, very mild growth, and expected 2020 uptick. No cuts.

That leaves us with Trump’s best case: Did he cut the regulatory state?

Not according to our friends at the Competitive Enterprise Institute (CEI), a free-market think tank that seeks the reform of the administrative state. CEI produces a valuable annual survey each spring titled Ten Thousand Commandments, which attempts to measure the number, scope, trajectory, and economic impact of Washington’s regulatory apparatus.

Here are that report’s estimates over the past five years across five categories: overall cost of regulations on the economy, amount of money spent by the federal government to administer the regulatory state, number of new economically significant regulations (with an annual impact of $100 million-plus), the ratio of regulations made to laws enacted (dubbed the “Unconstitutionality Index”), and the number of final rules in the Federal Register.

2015: $1.885 trillion economic impact ($14,832 per household), $63 billion in administration costs, 3,410 final new rules, 30 regulatory rules per law, 61 economically significant rules, 80,260 pages in the Federal Register.

2016: $1.9 trillion impact ($14,809 per household), $63 billion administration, 3,853 new rules, 18 rules per law, 83 economically significant rules, 95,894 Federal Register pages.

2017: $1.9 trillion impact ($14,666 per household), $66 billion administration, 3,281 new rules, 34 rules per law, 68 economically significant rules, 61,308 Federal Register pages.

2018: $1.9 trillion impact (now called a “placeholder estimate,” due to the “limited available federal government data and reports…and the illegal neglect on the part of the federal government to provide a regularly updated estimate of the aggregate costs of regulation”), $71 billion administration, 3,368 rules, 11 rules per law, 35 economically significant rules, 63,645 Federal Register pages.

2019: $1.9 trillion placeholder estimated impact, 2,964 new rules (“the lowest count since records began being kept in the 1970s”), $72 billion administration, 28 rules per law, 70 economically significant rules, 70,938 Federal Register pages.

So: Estimated regulatory costs are flat, not shrunk (though the per capita amount is slightly lower), and administrative costs are slightly higher. The two metrics that are noticeably down are the number of pages in the Federal Register (a somewhat symbolic measure) and the annual growth in regulations.

The aggregate total of regulations issued since 1976 (when the Federal Register began itemizing them) has increased from 195,189 at the end of Obama’s tenure to 204,802 now.

The Trump administration, as I have documented in the past, has taken more concrete deregulatory steps than any presidency since Ronald Reagan’s. But that doesn’t mean he has “shrunk” the regulatory state.

More worrying, there have been many signs in the past two years that the president is going to overwhelm any modest deregulatory victories with an increasingly interventionist industrial policy. CEI, which has been somewhat rosier toward the 45th president than I have, sounded some ominous warnings in its annual report this May. “Trump cuts,” the authors observe. “But Trump also adds”:

Trump sports regulatory impulses of his own that could derail or even eclipse the rollback agenda not just in 2020 but for years beyond….Trump’s proclivity for trade restrictions and his ad hoc zeal for antitrust and media regulation (such as swipes at Amazon and the AT&T–Time Warner merger) are well known. There are additional less well-known warning signs of regulatory initiatives that have emerged or heightened during the Trump tenure, such as the president’s approval of a permanent reauthorization of the Land and Water Conservation Fund, and his boasting of “the largest public lands package in a decade, designating 1.3 million acres…of new wilderness” for a federal government that already owns a large portion of the continent….

Trump’s own regulatory impulses have become the most pertinent concern, particularly where he exhibits substantial agreement with regulatory advocates on issues such as antitrust policy, regulatory action against tech firms and traditional media companies, and industrial and social policy.

Much more in that vein at this link.

You can argue plausibly that Joe Biden and the Democratic Party will grow the government more. But the fact is, the guy railing against socialism night after night this week has grown spending faster than his predecessor and shown considerably less interest in confronting the entitlement bomb, all while cutting neither the federal workforce nor the size of the regulatory state.

There’s only one presidential candidate campaigning every day to shrink government. It’s certainly not the Republican.

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This matter came up on another thread, so I thought I’d briefly discuss it in more detail.

In Beauharnais v. Illinois (1952), the Supreme Court upheld a “group libel” law that outlawed statements that expose racial or religious groups to contempt or hatred, unless the speaker could show that the statements were true and were said with “good motives” and for “justifiable ends.” The Court’s rationale was that (1) libel was constitutionally unprotected, and (2),

[T]he Illinois legislature may warrantably believe that a man’s job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs, as on his own merits. This being so, we are precluded from saying that speech concededly punishable when immediately directed at individuals cannot be outlawed if directed at groups with whose position and esteem in society the affiliated individual may be inextricably involved.

The Court therefore upheld Beauharnais’ conviction for distributing leaflets that called on the Chicago Mayor and City Council “to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro,” called for “One million self respecting white people in Chicago to unite,” and stated that, “If persuasion and the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressions … rapes, robberies, knives, guns and marijuana of the negro, surely will.”

Like some other old cases, such as Schenck v. U.S. (1919), Abrams v. U.S. (1919), Gilbert v. Minnesota (1920), and Gitlow v. New York (1925) (which upheld restrictions on speech sharply critical of the war and the draft, and speech expressing support for overthrowing the government), Beauharnais has never been formally overruled. But several appellate courts have held or strongly suggested that it’s no longer binding precedent. See Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668, 672 (7th Cir. 2008); Am. Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323, 331 n.3 (7th Cir. 1985) (likewise); Collin v. Smith, 578 F.2d 1197, 1205 (7th Cir. 1978); Tollett v. United States, 485 F.2d 1087, 1094 n.14 (8th Cir. 1973); Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1200 (9th Cir. 1989). No courts, to my knowledge, have applied it in recent decades. Leading First Amendment scholars have taken the same view, Erwin Chemerinsky, Constitutional Law: Principles and Policies 1043-45 (4th ed. 2011); Laurence Tribe, Constitutional Law, § 12-17, at 926; Toni M. Massaro, Equality and Freedom of Expression: The Hate Speech Dilemma, 32 Wm. & Mary L. Rev. 211, 219 (1991); Robert C. Post, Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment, 76 Calif. L. Rev. 297, 330-31 (1988); some others disagree, but the dominant view here is clear.

And I think those authorities are correct, because post-Beauharnais cases have firmly rejected the reasoning of the case (just as cases such as Brandenburg v. Ohio have rejected the reasoning of Schenck, Abrams, Gilbert, and Gitlow).

[1.] New York Times Co. v. Sullivan (1964), rejected the view that libel is categorically unprotected. Recall that the premise of Beauharnais was that libel was just unprotected, and therefore group libel is as punishable as individual libel.

[2.] To be sure, New York Times Co. v. Sullivan recognized that knowing or reckless falsehoods can be punished; but Garrison v. Louisiana (1964) made clear that, for statements on matters of public concern, truth has to be an absolute defense, regardless of whether the statements are made for “good motives” and for “justifiable ends.” Beauharnais upheld a law that didn’t make truth a complete defense, reasoning that,

As to the defense of truth, Illinois in common with many States requires a showing not only that the utterance state the facts, but also that the publication be made “with good motives and for justifiable ends.” … What has been called “the common sense of American criminal law” … has been adopted in terms by Illinois. The teaching of a century and a half of criminal libel prosecutions in this country would go by the board if we were to hold that Illinois was not within her rights in making this combined requirement.

But that “teaching of a century and a half of criminal libel prosecutions in this country”—that good motives and justifiable ends could be required for a truth defense to prevail—did indeed go by the board in Garrison, which reasoned,

We next consider whether the historical limitation of the defense of truth in criminal libel to utterances published “with good motives and for justifiable ends” should be incorporated into the New York Times rule as it applies to criminal libel statutes; in particular, we must ask whether this history permits negating the truth defense, as the Louisiana statute does, on a showing of malice in the sense of ill-will. The “good motives” restriction … liberalized the common-law rule denying any defense for truth. We need not be concerned whether this limitation serves a legitimate state interest to the extent that it reflects abhorrence that “a man’s forgotten misconduct, or the misconduct of a relation, in which the public had no interest, should be wantonly raked up, and published to the world, on the ground of its being true.” In any event, where the criticism is of public officials and their conduct of public business, the interest in private reputation is overborne by the larger public interest, secured by the Constitution, in the dissemination of truth.

“If upon a lawful occasion for making a publication, he has published the truth, and no more, there is no sound principle which can make him liable, even if he was actuated by express malice…. It has been said that it is lawful to publish truth from good motives, and for justifiable ends. But this rule is too narrow. If there is a lawful occasion —a legal right to make a publication—and the matter true, the end is justifiable, and that, in such case, must be sufficient.”

Moreover, even where the utterance is false, the great principles of the Constitution which secure freedom of expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood. Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth…. [P]ermitting a finding of malice based on an intent merely to inflict harm, rather than an intent to inflict harm through falsehood, “it becomes a hazardous matter to speak out against a popular politician, with the result that the dishonest and incompetent will be shielded.”

[3.] New York Times dealt with libel of public officials; Garrison also mentioned public officials, though also talked more broadly about “[d]ebate on public issues”; but Gertz v. Robert Welch, Inc. (1974) made clear that the First Amendment protections against punishment of libel apply to all speech about matters of public concern, whether it touches on public or private figures. Gertz did allow proven compensatory damages to be recovered by private figures on a showing merely of negligence, but presumed damages and punitive damages could only be awarded on a showing of knowing or reckless falsehood, just as for public officials and public figures. It’s even clearer that criminal punishment for statements on matters of public concern likewise requires knowing or reckless falsehood.

[4.] Gertz also reaffirmed that libel law doesn’t apply to true statements; the Court’s reasoning began with the premise that “there is no constitutional value in false statements of fact.” And Philadelphia Newspapers, Inc. v. Hepps (1986) made clear that, on matters of public concern, the plaintiff (whether a public or private figure) had to prove falsehood, rather than requiring the defendant to prove truth. That is even more clearly so for criminal punishment; here again the statute in Beauharnais would be deficient under modern law.

[5.] Now that still leaves the question: What if the statute in Beauharnais were limited to false statements of fact about a racial or religious group that tended to expose it to contempt or hatred, which the defendant said knowing that they were false or likely false?

Even that statute, though, would be inconsistent with current law.

[A.] R.A.V. v. City of St. Paul (1992) held that, even within a zone of unprotected speech (there, fighting words), the government generally can’t single out certain kinds of speech for special punishment, especially viewpoint-based punishment. Just as the Court in R.A.V. struck down a law that was read as specially banning bigoted “fighting words”—face-to-face personal insults that tend to provoke a violent reaction—so a law that specially bans bigoted libels would be unconstitutional, too. This is an oversimplification, given the complexity of R.A.V. and of Virginia v. Black (2003), and certain exemptions that they contain. But it’s pretty clear that a law banning libel of races and religions would be seen as closely analogous to the R.A.V. law banning race- and religion-based fighting words. (R.A.V. did cite Beauharnais, but only for its general statement that there is a defamation exception, since that was the Court’s first libel case that expressly so held.)

[B.] Finally, in U.S. v. Alvarez (2012), five Justices (two in the concurrence and three in the dissent) agreed that

there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech

and gave as examples of those areas, “false statements about philosophy, religion, history, the social sciences, the arts, and the like.” In the words of the dissent,

The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.

Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal. Today’s accepted wisdom sometimes turns out to be mistaken. And in these contexts, “[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.'”

The plurality didn’t disagree, and if anything supported even broader protection for false statements.

Statements about race and crime (the statements involved in Beauharnais itself) would likely qualify as being “about … the social sciences … and the like,” and thus would be categorically protected under Alvarez.

[* * *]

For all these reasons, I think that lower courts should feel no more bound by the reasoning of Beauharnais than they are by Schenck, Abrams, Gilbert, and Gitlow. But even if a court concludes that Beauharnais has to be applied as to a group libel statute identical to Illinois’ until it’s expressly reversed by the Court, to my knowledge there are no such criminal statutes remaining, except for a seemingly never-used one in Massachusetts; and the common-law tort of libel likewise doesn’t extend to such large groups (see, e.g., Mikolinski v. Burt Reynolds Prod. Co. (Mass. App. Ct. 1980)).

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Speaker Nancy Pelosi (D–Calif.) today advised Democratic presidential nominee Joe Biden to skip any debates with the incumbent. “I do not think that the president of the United States has comported himself in a way that has any association with truth, evidence, data, and facts,” says Pelosi.

Speaker Pelosi: “Don't tell Joe Biden. I don’t think there should be any debates … I wouldn’t legitimize a conversation with him, nor a debate in terms of the presidency of the United States." pic.twitter.com/Pvrz2uAUVZ

— The Recount (@therecount) August 27, 2020

Biden has rightly rejected the suggestion. He’s right to do so: Pelosi’s position is risible, especially for the whopping 41 percent of us who identify as something other than Republican (26 percent) or Democrat (31 percent). Last week’s Democratic National Convention was more inward-looking than 16th-century China and this week’s Republican counterpart is similarly aimed almost completely at people who are already going to vote for their party’s guy.

Presidential debates offer nonpartisan voters an opportunity to get a better sense of the candidates and what they think. Even from a tactical perspective, Pelosi’s advice is dumb. Anyone who has is following the election has legitimate doubts about Joe Biden’s mental state—and Donald Trump’s too. They are 77 years and 74 years old, respectively, and neither of them inspires much confidence that they have all their marbles. It was only a few weeks ago that Biden was asking a reporter if he was a “junkie,” while Trump, who himself mused about skipping the debates earlier this year, has faced inquiries about his physical condition.

Ideally, the debates would also be open to any other candidates who are on the ballot in enough states that it is mathematically possible win the election, a standard met by the Libertarian Party’s Jo Jorgensen and the Green Party’s Howie Hawkins. According to Gallup, 57 percent of Americans agree that a “third major party is needed.” Adding such candidates to the debates would both make the events far more popular and hugely improve politics.

As it stands, Biden and Trump have tentatively agreed to three debates before the November 3 election. While there’s no reason to expect Biden to change his mind and follow Nancy Pelosi’s advice, there’s zero hope that the Commission on Presidential Debates, which is run jointly by the Democratic and Republican parties, will allow electorally viable third parties to participate. Because if there’s one thing that Democrats and Republicans hate more than each other, it’s every other party that’s on the ballot.

Bonus video: In 2016, I offered four reasons why Libertarian nominee Gary Johnson should have been included in the presidential debates:

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