Month: January 2021

This week’s runoff elections in Georgia will determine whether Republicans can escape from the Trump era with a Senate majority intact or if President-elect Joe Biden will have a much friendlier Democratic majority in both chambers of Congress.

The two races, which conclude with in-person voting on Tuesday, will set the table for the first two years of the Biden administration. If Democratic candidates Jon Ossoff, a former journalist and political activist, and Raphael Warnock, a pastor, prevail in their races, the Senate will be evenly divided, 50–50, with incoming Vice President Kamala Harris set to be the tie-breaking vote. Meanwhile, Sen. David Perdue (R–Ga.) and Kelly Loeffler, a businesswoman, are hoping to maintain the GOP majority.

Under normal circumstances, Americans who care about limiting the size and power of the federal government would be rooting for at least one Republican victory on Tuesday. That’s not because Republicans are actually committed to limiting the size and power of the federal government, of course. It’s because a divided government means more opportunities for gridlock. The results of November’s general election weren’t so bad for anyone who likes to see both major parties lose, and Republican victories on Tuesday would keep that theme going.

But Republicans seem determined to convince voters that they ought to be exiled from political power.

Consider just the past few days. A group of Republicans led by Sen. Ted Cruz (R–Texas) announced over the weekend that they plan to object on Wednesday when the Senate goes through the usually-routine process of certifying the Electoral College vote. They are making this doomed, last-gasp bid to block Biden’s victory not because they have serious evidence of voter fraud but because they are prioritizing the outgoing president’s unhinged allegations of a stolen election over the actual functioning of the democratic process.

Meanwhile, The Washington Post has published a recording of a phone call in which Trump pressured Georgia Secretary of State Brad Raffensperger to “find” enough votes to reverse the election’s outcome. The call is appalling conduct for a sitting president, but it also isn’t surprising. For months, Trump has been trying to sow doubts about the election’s outcome and has behaved as if all Republican officials should help him achieve victory no matter what the results actually say.

Trump’s battle against reality has spilled over into the Georgia run-off elections in strange ways. As The Bulwark‘s Amanda Carpenter explained last week, Perdue and Loeffler have been forced into the awkward position of embracing Trump—the first Republican to lose a presidential election in Georgia since 1992—for fear of alienating his supporters, whose votes they will need on Tuesday. “It’s the perfect distillation of the dead-end conundrum of Trumpism: Republicans know that they can’t win without the kooks,” Carpenter wrote. “Republicans also know that they definitely might lose with them.”

In fact, Republicans might have already secured a Senate majority if not for Trump’s ill-advised campaign against voting by mail. Raffensperger, a Republican, has said as much. In November, he told Atlanta’s WSB-TV that roughly 24,000 Republicans who voted via absentee ballot in the state’s primary election did not vote at all in the general election. While they might have had other reasons for doing that, Raffensperger said Trump’s campaign to delegitimize mail-in voting likely “suppressed his own voting base.”

If those voters had participated in November. Perdue may very well have won his race without needing a run-off. Under Georgia election law, candidates must get more than 50 percent of the vote to win. Perdue got 49.73 percent.

Any political party that engages in deliberate attempts to undermine the democratic system deserves to lose. And a political party that rallies around a leader who seems to be undermining its own success is too stupid to be trusted with power.

So maybe the ideal outcome—even if an unlikely one—is a split decision.

If Republicans emerge from this run-off election with a 51–49 majority, that would still allow Senate Majority Leader Mitch McConnell (R–Ky.) to act as a needed roadblock. With a Democrat in the White House and a Democratic majority in the House, Republicans will probably rediscover their interest in fiscal conservatism. But putting that into practice—perhaps with a resurrection of the Obama-era spending caps that the Trump-era Republicans shattered—will require at least a slim GOP majority in the Senate.

A split decision Tuesday, pairing a single Republican victory with a single Republican loss, might do more to break the party’s Trump fever than a wipeout loss would. A slim Republican Senate majority would maximize the leverage of moderate Republicans like Sens. Susan Collins (R–Maine) and Mitt Romney (R–Utah)—who happen to be some of the senators least corrupted by Trumpism.

Being in the minority, on the other hand, would elevate a different set of Republican senators. Rather than feeling like they’ve narrowly survived a bout with Trumpism, the party might sink further into that morass under the weight of Trump’s grievances and (in his hardcore supporters’ eyes) political martyrdom.

It’s tempting to wish for Republicans to get swept on Tuesday. It’s what they probably deserve after the past two months, to say nothing of the past four years. But for reasons centered in politics and policy, I’ll spend Tuesday rooting—as usual—for both parties to lose.

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Libertarians are sure to be unhappy with plenty of incoming President Joe Biden’s judicial picks. But there is one glimmer of hope on the courtroom front. The Huffington Post reports that the Biden team is looking to bring some much-needed professional diversity to the federal bench:

In a letter obtained by HuffPost, Biden’s incoming White House counsel Dana Remus tells Democratic senators to try to find public defenders and civil rights attorneys in their states who they think would be a good fit for a federal judgeship.

“With respect to U.S. District Court positions, we are particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life,” reads the Dec. 22 letter.

That is welcome news. As Cato Institute criminal justice scholar Clark Neily has pointed out, there is a “wild imbalance” on the federal bench “between judges who used to represent the government in court and judges who used to challenge the government in court.” Given that “nearly every court case pitting a lone citizen against the state represents a David-versus-Goliath fight for justice,” Neily noted, “to further stack the deck with judges who are far more likely to have earned their spurs representing Goliath than David is unfair to individual litigants and a bad look for the justice system as a whole.”

This is one point on which libertarians and progressives can agree. “The federal courts have largely become peopled with lawyers who are former prosecutors, which has entirely skewed the lens through which the law is seen. Public defenders have essentially been shut out,” Sherrilyn Ifill, the head of the NAACP Legal Defense Fund, told an interviewer last month. “I’m not interested in a lot of Black prosecutors being appointed to the federal bench,” she continued. “I’m not interested in cosmetic diversity. I’m interested in substantive diversity.”

To say the least, Joe Biden is not the most promising figure from the standpoint of criminal justice reform. During his long career in politics, he stood out as an inveterate drug warrior and law enforcement booster. But it is never too late to make amends. If Biden is even remotely serious about pursuing criminal justice reform, one positive thing he can do as president is to nominate more judges whose experience includes battling the government in court.

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Today a United Kingdom judge denied a United States request to extradite WikiLeaks founder Julian Assange to face conspiracy and espionage charges for publishing secret Iraq and Afghanistan war documents.

Unfortunately, the judge’s explanation is not the victory for press freedom that it should be. It’s instead rooted in concerns that the harshness of America’s prison system might drive a mentally ailing Assange to commit suicide while in detention.

Assange, for his role in encouraging Chelsea Manning to leak military and intelligence documents back in 2009 and 2010, was indicted in 2019 on 18 charges of espionage and additional charges of violating the Computer Fraud and Abuse Act by giving Manning some minor suggestions on how to crack a password.

The decision to prosecute Assange for his role in publishing classified information crossed a critical threshold—never before had a media figure or journalist been charged with espionage for such an act. Leakers themselves have certainly been charged and have served prison time. But until Assange, the Department of Justice had not charged those who had published the classified information with crimes.

As such, a number of journalists (including many of us here at Reason) and organizations representing journalists have been critical of the charges against Assange. During the extradition hearings, Assange’s lawyers brought forth media experts to argue that what Assange had been doing is normal and widely permitted behavior by journalists and that the public had the right to know the information that he published.

The judge, Vanessa Baraitser of Westminister Magistrates’ Court, ultimately agreed with the Justice Department’s arguments that Assange’s actions went above and beyond journalism and into the realm of criminal conspiracy, looking not just at U.S. law, but British and European Union precedents determining when press freedom may be constrained:

The defence submits that, by disclosing Ms. Manning’s materials, Mr. Assange was acting within the parameters of responsible journalism. The difficulty with this argument is that it vests in Mr. Assange the right to make the decision to sacrifice the safety of these few individuals, knowing nothing of their circumstances or the dangers they faced, in the name of free speech. In the modern digital age, vast amounts of information can be indiscriminately disclosed to a global audience, almost instantly, by anyone with access to a computer and an internet connection. Unlike the traditional press, those who choose to use the internet to disclose sensitive information in this way are not bound by a professional code or ethical journalistic duty or practice. Those who post information on the internet have no obligation to act responsibly or to exercise judgment in their decisions. In the modern era, where “dumps” of vast amounts of data onto the internet can be carried out by almost anyone, it is difficult to see how a concept of “responsible journalism” can sensibly be applied.

Baraitser found that Assange would have been charged with similar crimes for his actions had they taken place in England or Wales, rejecting the defense claims that Assange’s indictment was political in nature.

Nevertheless, the judge rejected the extradition request because of how America’s federal prison system operates. She noted that Assange, given the nature of the charges, faces a high likelihood of “restrictive special administrative measures” that could potentially leave him in isolation, unable to communicate with the outside world, while the charges make their way through the court. Baraitser’s ruling quotes at length several accounts of the cruel isolation and its impacts on those who are subjected to solitary confinement in prison, and Jeffrey Epstein’s suicide last year is mentioned.

Assange has been diagnosed with depression, and according to the ruling, has claimed to be experiencing visual hallucinations and to be regularly thinking about suicide. Multiple doctors testified about his poor mental state. A psychiatrist who visited Assange testified that segregation or solitary confinement in prison could lead to further psychological decline. The judge determined “Mr. Assange’s risk of committing suicide, if an extradition order were to be made, [would] be substantial.”

And so for that reason, and only that reason, was the request to extradite Assange rejected. The United States is appealing the decision. In a statement, representatives from the Justice Department said it was “gratified that the United States prevailed on every point of law raised.”

While Assange is protected (at the moment) from facing trial in the United States for publishing leaked information, there is absolutely nothing in Baraitser’s ruling that suggests she thinks that Assange’s behavior amounted to legitimate journalism. She accepted every single argument presented by the federal government that Assange’s behavior was not protected speech.

The Knight First Amendment Institute at Columbia University very quickly put out a statement after the ruling warning people that the Assange ruling was not, in fact, a win for the freedom of the press.

“The court makes clear that it would have granted the U.S. extradition request if not for concerns about Assange’s mental health, and about the severe conditions in which the U.S. would likely imprison him,” Jameel Jaffer said. “In other words, the court endorses the U.S. prosecution even as it rejects the U.S. extradition request. The result is that the U.S. indictment of Assange will continue to cast a dark shadow over investigative journalism. Of particular concern are the indictment’s counts that focus on pure publication—the counts that charge Assange with having violated the Espionage Act merely by publishing classified secrets. Those counts are an unprecedented attack on press freedom, one calculated to deter journalists and publishers from exercising rights that the First Amendment should be understood to protect.”

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With the economy taking it in the teeth from mandatory social distancing and restrictions on “non-essential” businesses, the Congressional Budget Office (CBO) worries that small firms may be unable to step into their traditional roles as drivers of economic recovery and growth. While a recent surge in applications for employer identification numbers may be a positive sign, it also may indicate failed businesses changing hands rather than a reversal of four decades of declining entrepreneurship. And while the CBO dances around the role that government plays in discouraging start-ups, other sources are clear that regulatory reform is needed if small businesses are to exit the endangered species list and return to creating jobs and rebuilding prosperity.

“Several measures of entrepreneurship have declined since the early 1980s,” the CBO notes in a report published last week. “During that period, new firms’ share of employment fell by a third, from 14 percent to 9 percent.”

That’s important because entrepreneurs allocate resources more efficiently than established firms, introduce new products, and boost economic activity. “The decline in entrepreneurship is associated with a falloff in labor productivity from at least 3 percent to 4 percent in the mid-2010s,” the CBO estimates.

Unfortunately, small businesses that have launched are being devastated by pandemic lockdowns that limit or eliminate their ability to serve customers. “The economic contraction that initially chilled the formation of firms at the beginning of the pandemic also threatened the viability of businesses started in the past few years… from mid-February to late April, employment fell among them by more than it did among large firms,” according to the report.

Before the latest round of restrictions, Yelp, the review service, reported that business conditions had improved since the early days of the pandemic, but that “in the wake of COVID-19 cases increasing and local restrictions continuing to change in many states we’re seeing both permanent and temporary closures rise across the nation, with 60% of those closed businesses not reopening.”

If you suspect that an environment like this is a morale-killer for entrepreneurs, you’re right. Last month, Gallup reported its latest survey of small business optimism across multiple dimensions:

While up slightly from a score of 60 in the third quarter, the current Small Business Index score of 72 remains dramatically lower than the pre-pandemic high of 142 a year ago… signifying continued concern on the part of small-business owners about what they are seeing day to day.

As mentioned, even before COVID-19 and draconian public health reactions hit the scene, entrepreneurship was on the decline. The CBO report reviews several factors that impede business creation, including relatively vague references to financing constraints, economic conditions, and demographic trends. It also acknowledges that “an increasingly burdensome regulatory regime is often cited as a factor in the decline in new businesses” but insists “the available evidence is not clear” about the impact of red tape on small businesses.

Business owners themselves are more certain about the barriers posed by burdensome regulations. Pre-pandemic, entrepreneurs told the National Federation of Independent Business’s 2016 Small Business Problems and Priorities survey that they placed “unreasonable government regulations” as their second concern, after the cost of health insurance (which itself is made much more expensive by government regulation). Amidst the chaos of the pandemic, regulatory concerns continue to rank in the top ten in the 2020 survey, with tax concerns taking four other slots and “uncertainty over government actions” yet another.

Likewise, National Small Business Association (NSBA) President and CEO Todd McCracken warned in 2017 that “the average small-business owner is spending at least $12,000 every year dealing with regulations. This has real-world implications: more than half of small businesses have held off on hiring a new employee due to regulatory burdens.” In the NSBA’s 2017 Small Business Regulations Survey, 58 percent of small business owners said federal rules were the most burdensome to their business, with a specific emphasis on the tax code and the Affordable Care Act.

Small business owners have every reason to especially resent red tape. “As of 2008, small businesses face an annual regulatory cost of $10,585 per employee, which is 36 percent higher than the regulatory cost facing large firms,” according to a 2010 study published by the U.S. Small Business Administration (the higher NSBA estimate of compliance costs came almost a decade later).

Not surprisingly, small business trade groups support regulatory reform. “Congress and the administration must step in and curtail costly regulations, particularly those that disproportionately affect small businesses,” insists the NFIB. The NSBA emphasizes “the need to greatly reduce regulatory complexity, streamline the web of federal, state and local regulations, and adhere to plain language statutes”

The Kauffman Foundation, which studies and encourages entrepreneurship, agrees in its Guidelines for Local and State Governments to Promote Entrepreneurship that, among other approaches, governments must “revisit the regulatory environment.” Specifically, Kauffman recommends that governments consider alternatives to occupational licensing, simplify tax codes, rewrite laws regarding non-compete agreements, streamline zoning, and ease the way for new immigrants.

Despite much hemming and hawing, the CBO comes to similar conclusions. After lengthy discussion of expanded federal financial support, and some chatter about (newly popular in political circles) antitrust rules, the report concedes that “Congress could further lighten the burden of federal regulations on entrepreneurship by expanding the requirements for federal agencies to limit the impact of regulations on small firms.”

The CBO also points to the state-level push to reclassify independent contractors as employees as a threat to gig work. “Those changes raised the cost of employing such workers and limited their ability to work flexible hours or part time—a hallmark of the gig economy.”

That said, after a sharp initial drop during the early days of the pandemic, there has been a resurgence in applications to the Internal Revenue Service for employer identification numbers. That might be good news indicating a revival of entrepreneurialism as people seek new opportunities in an economy that has seen so many thrown out of work. But, as the CBO points out, the applications could instead indicate bankrupt businesses are just changing hands or represent fraudulent attempts to secure pandemic-related disaster-relief money. Honestly, it’s probably a combination of all of the above as people scramble to survive a difficult environment.

But governments could make that environment less difficult. After a year in which officials ordered businesses closed and reopened, and then shifted rules in ways that almost seem designed to impose costs on struggling entrepreneurs, there’s one obvious thing they could do to make life easier for small firms: they could get out of the way.

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