Category: reason

A federal grand jury has indicted Cleveland, Ohio, City Council member Kenneth Johnson on corruption charges. Johnson is accused of engaging in two separate schemes: one involved improper reimbursement for expenses and the second involved steering federal grant money to political and personal allies.

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This post is adapted from our new book, Mine!: How the Hidden Rules of Ownership Control Our Lives, available March 2. To learn more about the book, visit minethebook.com.

Yesterday, we introduced Al Appleton and showed how he persuaded New York City to invest in green rather than gray infrastructure, trees instead of concrete. The result: impressively clean drinking water.  Today, we explain what all this has to do with ownership.

We tend not to think about ownership when talking about the environment.  The benefits we receive from nature—the clean air we breathe, a stable climate, fish schooling in the ocean, scenic vistas across landscapes—seem like they must be goods common to all.  That’s a lovely notion, but it’s also a problem.

Common ownership works well when resources are abundant, but often fails as populations grow and technology changes.  When valuable resources are free for the taking, we tend to take too much.  The result of common ownership is that we’re overfishing the world’s oceans, cutting down tropical forests, and over-using the atmosphere by emitting greenhouse gases at historically high levels, driving climate change.  At this rate, the world of our children and grandchildren will be very different from the one we grew up in, and not for the better.

Just as the Catskills watershed provides clean drinking water, nature provides all kinds of critical services that we take for granted.  Insects pollinate our crops.  Microbes in soils break down waste and create fertile fields for farming.  Coastal marshes protect against storm surges and provide habitat for young fish.  These are all examples of common resources that benefit everyone and are owned by none.  We all enjoy the wild birds and butterflies flying around us.  But the people whose lands provide the habitat for this wildlife receive no compensation in exchange.  If they don’t own the resources and can’t charge for them, then they have little reason to protect or invest in them.

Wetlands, for example, may protect towns by slowing storm surges or filtering drinking water.  If landowners convert wetlands into homes or farms, they may benefit financially but the community is made far worse off by flooding and dirty water.  Because no one owns wetlands’ services like flood prevention and water purification, landowners don’t take the value of those services into account when deciding how to use their land.  If the choice is to earn a living by farming the wetland or earn nothing by preserving it, then the choice is simple.  Fill the wetland.

Appleton’s great insight was to innovate around ownership design.  He told Catskills landowners that New York City would deal with them as if they owned the environmental services attached to their land.  We don’t think twice paying for potatoes or coal attached to land, so why not pay farmers for improved water quality?  Appleton crafted an ownership tool where wealthier downstate city dwellers could pay poorer upstate farmers to preserve a clean environment.  He showed how to motivate farmers, even in the absence of state law giving them ownership over the environmental benefits their lands provide.

This approach—of creating what we call as-if ownership in nature’s bounty—has exploded in recent decades.  James Salzman has been working with governments around the globe since 2000 to develop payment schemes that compensate landowners for providing natural services.  In recent work, he identified over 550 active “ecosystem services” programs around the globe with an estimated $42 billion in annual transactions.

The strategy is being used to try to save the world’s rainforests.  Tropical forests contain most of the world’s species diversity and capture vast amounts of carbon from the atmosphere, playing a critical role in slowing climate change.  Deforestation is responsible for up to 20 percent of global warming.  Today, swaths of the Amazon forests, often called “the lungs of the planet,” are burning.

The basic problem is that people who live in these forests don’t own the environmental benefits they provide.  They can’t charge for wildlife habitat or storing carbon.  Even though these resources are critical to humanity, we receive them for free.  Not surprisingly, owners and squatters in forests focus instead on things they can sell.  They burn forests to clear them for grazing, logging and agriculture.  The challenge is to make trees worth more standing than cut down.

Norway is doing just that, trying to offset some of the climate harm it has caused by extracting North Sea oil.  Thanks to its “sovereign wealth fund”—profits the country accumulated from oil sales—Norway has been able to spend tens of billions of dollars paying people in the Amazon, Indonesia, and Mexico for their efforts to reduce local deforestation rates.  If the rate of forest loss slows, more trees are left standing and more carbon is captured from the atmosphere.

China has made an even larger investment.  Ecosystem service payments have become a central component of the country’s nationwide environmental protection strategy.  China has already paid over $50 billion to farmers and households to increase forest cover.  By planting trees instead of chopping them down, China gets flood protection, wildlife habitat and water quality—all shared goods that come along with investing in trees.

So, can we use ownership to steer people to conserve nature rather than despoil it?  Absolutely.  Around the world, new types of ownership to promote environmental goods are changing the behavior of farmers and forest dwellers, timber companies and big land owners—they now compete to protect the environment and make money in the process.

With a billion-dollar program here, a billion there, ecosystem services ownership begins to add up.  While substantial already, these programs are not yet nearly big enough.  The key to addressing some of the world’s greatest environmental challenges may be to encourage people to call ever more aspects of nature mine.

Tomorrow we wrap up our week as guest bloggers on the Volokh Conspiracy by bringing all these stories together.

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That’s from a John McWhorter column on the Kilborn controversy, which came out in late January but which I somehow missed; here’s the introduction:

Law professor Jason Kilborn cited the N-word (and the B-word) on an exam thusly: n****, b****. It was in a question about an employment discrimination case. He has done so for years previously to no comment – as all reading this but a sliver would expect.

But this year, a group of black students initiated a protest against him for harming them in exposing them to this expurgated rendition of the N-word. That is, in a class training them in litigation in the real world.

One black student claimed that they experienced heart palpitations upon reading the words. During an hours-long Zoom talk with a black student representing the protesters, Kilborn made a flippant remark to the effect that the law school dean may suppose that he is some kind of “homicidal maniac” – upon which the student reported to the dean that Kilborn indeed may be one. Kilborn is no longer teaching the class, is relieved of his administrative duties, and because of the possible physical threat he poses to black students because of the Hyde-like tendency he referred to, he is barred from campus.

No, this is not an SNL parody or a heightened storyline on a show like The Good Wife or Law and Order. This has actually happened, to and with and by real human beings here and now….

(For a relatively new version of Randy Kennedy’s and my draft article on this general subject, see here.)

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Sixty-three years ago, in a case challenging Alabama’s requirement that the National Association for the Advancement of Colored People (NAACP) disclose its membership lists, the Supreme Court recognized that such demands can pose a grave threat to freedom of association. In that case and subsequent decisions, the Court established a test for compelled disclosure of organizational information that may result in “reprisals against and hostility to the members”: The requirement must be “substantially related” to a “compelling” government interest, and it must be “narrowly tailored” to serve that interest.

As a federal judge recognized in 2016, California’s requirement that all nonprofit organizations disclose information about their donors plainly fails that test. But two years later, a panel of the U.S. Court of Appeals for the 9th Circuit reversed that decision, concluding that California’s policy passed constitutional muster based on a weaker standard that usually applies only in the context of campaign finance regulation. In Americans for Prosperity Foundation v. Becerra, which the Supreme Court will hear later this term, two conservative organizations are asking the justices to overturn the 9th Circuit’s decision. They are joined by a remarkably wide range of groups from across the political spectrum, reflecting the significance of the First Amendment threat posed by California’s nosiness.

California has long required that charitable organizations registered in the state submit federal tax forms revealing the names and addresses of supporters who have donated more than $5,000. But it did not start aggressively enforcing that requirement until 2010, when the California Attorney General’s Office began demanding donor information as a condition of registration. The Americans for Prosperity Foundation (AFPF) objected to that demand, leading to years of litigation that culminated in this Supreme Court case.

The information collected by California, which is listed on an IRS form known as Schedule B, is supposed to be confidential. But in practice, it is not.

As Sandra Segal Ikuta and four other 9th Circuit judges noted in 2018, when they dissented from the appeals court’s refusal to rehear the case, the trial evidence “provided overwhelming support” for AFPF’s fear that donor data would be publicly revealed, exposing the organization’s supporters to harassment for their political views. “State employees were shown to have an established history of disclosing confidential information inadvertently, usually by incorrectly uploading confidential documents to the state website such that they were publicly posted,” the dissenting judges said. “Such mistakes resulted in the public posting of around 1,800 confidential Schedule Bs, left clickable for anyone who stumbled upon them.” In 2012, for example, “Planned Parenthood become aware that a complete Schedule B for Planned Parenthood Affiliates of California, Inc., for the 2009 fiscal year was publicly posted; the document included the names and addresses of hundreds of donors.”

Even when such information was not publicly posted, it could be readily discovered, as AFPF showed by hiring a consultant to test the security of California’s Registry of Charitable Trusts. “He was readily able to access every confidential document in the registry—more than 350,000 confidential documents—merely by changing a single digit at the end of the website’s URL,” Ikuta et al. noted. Even after the state was alerted to this vulnerability and supposedly fixed it, “the expert used the exact same method the week before trial to test the registry” and “was able to find 40 more Schedule Bs that should have been confidential.”

Controversial organizations like Planned Parenthood and AFPF have good reason to worry about the consequences of the state’s incompetence. “People publicly affiliated with the Foundation have often faced harassment, hostility, and violence,” the 9th Circuit dissenters noted. “Supporters have received threatening messages and packages, had their addresses and children’s school addresses posted online in an effort to intimidate them, and received death threats.”

At a rally in Michigan, “several hundred protestors wielding knives and box cutters surrounded the Foundation’s tent and sawed at the tent ropes until they were severed. Foundation supporters were caught under the tent when it collapsed, including elderly supporters who could not get out on their own. At least one supporter was punched by the protestors.”

In addition to harassment and violence, AFPF supporters have faced economic reprisals. “After an article published by Mother Jones magazine in February 2013 revealed donor information,” Ikuta et al. noted, “protesters called for boycotts of the businesses run by six individuals mentioned in the article. Similarly, Art Pope, who served on the Foundation’s board of directors, suffered boycotts of his business.”

These threats represent exactly the sort of fallout that the Supreme Court understood could have a chilling effect on the First Amendment rights of NAACP members. That is why the Court said disclosure requirements like Alabama’s and California’s should be subject to heightened scrutiny. In this case, California did not come close to showing that its blanket demand for Schedule B forms was substantially related to a compelling government interest, let alone that it was narrowly tailored.

California says it needs those forms to guard against fraud. But that contention is hard to reconcile with the fact that state officials let the disclosure requirement lie dormant for many years before they began demanding donor information. AFPF itself was allowed to register in California from 2001 to 2010 without submitting the forms that were notionally required.

“The state requires blanket Schedule B disclosure from every registered charity when few are ever investigated,” Ikuta et al. noted. They suggested that the Attorney General’s Office could instead “obtain an organization’s Schedule B through a subpoena or a request in an audit letter once an investigation is underway without any harm to the government’s interest in policing charitable fraud.” Since “the state failed to provide any example of an investigation obscured by a charity’s evasive activity after receipt of an audit letter or subpoena requesting a Schedule B,” they said, it is hard to see why that much more narrowly tailored approach is inadequate to satisfy the government’s interest in preventing charitable fraud.

In its Supreme Court brief, AFPF argues that the 9th Circuit panel “misread this Court’s precedents as permitting compulsion of donor identities without the need for narrow tailoring.” It warns that “upholding California’s disclosure requirement would effectively abandon this Court’s seminal precedents and let law enforcement prevail virtually every time in demanding donor information.” The brief notes that preserving supporters’ anonymity “protected the NAACP’s members from intimidation by State officials in the Jim Crow South” and reassured “large donors to LGBTQ causes” who “feared the consequences” of being publicly identified.

The Thomas More Law Center, which joins AFPF in challenging California’s policy, likewise argues that “all Americans should be free to support causes they believe in without fear of harassment.” Yet “the California Attorney General’s Office demands that all nonprofits fundraising in the State turn over major donors’ names and addresses, then leaks that data like a sieve.” In fact, “the Office admits it cannot ensure donor confidentiality, though technology makes it easier than ever to harass, threaten, and defame.”

The challenge to California’s disclosure requirement is supported by a strikingly wide range of organizations, including a long list of socially conservative groups and nonprofits of every description, ranging from the Animal Legal Defense Fund to the Zionist Organization of America. The supporters also include the American Civil Liberties Union, the Electronic Frontier Foundation, the Institute for Justice, the Cato Institute, the Goldwater Institute, the Pacific Legal Foundation, the National Taxpayers Union, the American Legislative Exchange Council, several gun rights groups, Democracy 21, the Philanthropy Roundtable, the U.S. Chamber of Commerce, the National Association of Manufacturers, the Hispanic Leadership Fund, and the Council on American-Islamic Relations.

This broad coalition, representing all sorts of causes and political preferences, is powerful evidence of the constitutional interests at stake in this case. At a time of bitter partisan differences and seemingly unbridgeable cultural divisions, people on different sides of many issues can at least see eye to eye on the necessity of preventing the government from arming their opponents with confidential information that can be used to punish Americans for exercising their First Amendment rights.

“This is not the time or the climate to weaken First Amendment rights to anonymity,” AFPF says. “Social and political discord have reached a nationwide fever. Perceived ideological opponents are hunted, vilified, and targeted in ways that were unthinkable before the dawn of the Internet. As partisan pendulums swing back and forth in governmental offices, and as online campaigns rage against perceived ideological foes, donors to causes spanning the spectrum predictably fear that exposure of their identities will trigger harassment and retaliation far surpassing anything reasonable people would choose to bear. Vindicating freedom of association in this context will therefore mean the difference between preserving a robust culture and practice of private association and charitable giving, versus opening the door to chilling governmental intrusion.”

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A majority of California’s K-12 schools have been closed for in-person instruction for an entire year. During this time, the federal government has given California schools about $8 billion to retrofit buildings for better ventilation, to stock up on masks and sanitation gear, to create rapid COVID testing procedures, and to reconfigure classrooms to maintain more distance between students.

Even California Governor Gavin Newsom, who has overseen one of the strictest lockdowns in the nation, says it’s time for schools to re-open for in-person instruction—now.

“If everybody has to be vaccinated we might as well just tell people the truth,” Newsom said during an online symposium with school administrators. “There will be no in-person instruction in the state of California.”

The state government has also earmarked an additional $2 billion for school districts willing to re-open K-2 classrooms by the end of March. That’s still not enough to appease California teachers unions, many of which continue to oppose in-person instruction despite a growing scientific consensus that it can be done safely.  

“If you condition funding on the reopening of schools,” said United Teachers Los Angeles (UTLA) President Cecily Myart-Cruz on the union’s YouTube channel, “that money will only go to white and wealthier schools that do not have the transmission rates that low-income black and brown communities do.” UTLA didn’t respond to Reason‘s interview requests. 

California’s resistance to re-opening is part of a national movement, backed by organized labor, to keep American school children at home until all teachers, staff, and—in some people’s opinion—even students are offered the chance to be fully vaccinated. It’s a requirement that many scientists say is far too stringent. Continuing to keep schools closed, they argue, poses a bigger risk to children. 

“As difficult as it was to close school classrooms, reopening is even harder,” said Austin Beutner, Los Angeles’s top education official. “We cannot, and will not, compromise on health and safety.” 

Beutner, who declined to be interviewed by Reason, has said that schools will not reopen until all of the district’s faculty and staff are offered vaccines, and even then the union doesn’t want to reopen until community spread is much lower.

Los Angeles County recently made all of its approximately 85,000 school district employees eligible for vaccination but, because of supply shortages, it isn’t clear whether the health department can reach that benchmark before the school year is over.

Anthony Fauci and the Centers for Disease Control and Prevention agree that 100 percent vaccination shouldn’t be a prerequisite for school reopening. 

“[It is] rather impractical to make that a sine qua non [without which, not] of opening the schools,” Fauci said in a February 17 White House briefing. 

Ernesto Falcon is the father of a 3- and a 5-year-old and a member of Open Schools California, a coalition of parents pushing for schools to reopen in person without delay. 

“The damage to the kids is enormous,” Falcon tells Reason. “They don’t have a powerful political constituency, with millions of dollars at their hands in Sacramento. They have us, they have parents.”

The California Teachers Association, which didn’t respond to our interview request, has been running ads with a safety-first message.

“COVID’s still a threat,” one ad’s narrator says over images of headlines reporting hundreds of cases in California schools. “And on reopening schools, we know what happens when we don’t put safety first.”

Brown University economist Emily Oster believes that, for the most part, transmission is not occurring in schools. Oster created a national database that tracks the spread of the disease in schools. Its evidence suggests it is possible to operate your school safely even without a vaccine.

“There are many, many districts, including districts in dense urban areas, serving a lot of students of color that have been open since September, without teacher vaccinations, and have been operating safely,” Oster tells Reason. “To say that somehow it is only possible to operate schools safely once teachers have been vaccinated—I just don’t think the data supports that.”

The teachers union is misleading the public about what the evidence actually says. A headline that says “San Diego County had 283 school COVID-19 cases in two months” appears in its TV ad. The headline did appear in The San-Diego Union Tribune, but the end, which said “but data are limited,” was cut out. 

The cases referenced were merely “associated” with K-12 schools, and there is no evidence that they were contracted in classrooms. The article goes on to explain that although 237 students district-wide tested positive, that’s out of 500,000 students—a positivity rate of 0.05 percent. 

Another headline in the ad reports of an outbreak of COVID-19 at a high school, which forced hundreds of students into quarantine. The headline did appear in The Sacramento Bee, but the outbreak saw a total of 33 students test positive for COVID in a district of 11,500—a positivity rate of 0.2 percent. 

Another claim that union and school district representatives often make is that reopening schools without vaccines will place racial and ethnic minorities disproportionately at risk. Oster says that these are the very communities that are disproportionately harmed by school closures.

“Kids who live in richer districts are getting a much different schooling environment than many kids who live in worse off districts and COVID has only made that worse,” she says. “The differences in the quality of the remote education in the spring, the differences in the reopening rates in the fall, the differences in the quality of remote education in the fall, all of these things have contributed to highlight these very bad inequities.”

Falcon says he’s offended by talk of equity, given that students at most of California’s private schools have had in-person instruction for months. This includes the governor’s children.

“All the private schools are open in this area,” says Falcon. “All the public schools for the wealthy are open now, and it’s the middle class and poor that don’t have their constitutional right to free education.”

“I’m a first-generation American. My parents are immigrants. They grew up poor in South America,” Falcon says. “If it wasn’t for education and access to education for them, they would not be professionals and live the comfortable life [they live today].”

Falcon, a public advocacy attorney and a longtime proponent of public education, says he’s been shocked by the teachers unions’ efforts to obfuscate the evidence on school reopening.  

He was also outraged when board members at one Bay Area school district suggested that parents wanted in-person schooling so they wouldn’t have to watch after their own kids and could stay home smoking weed. The board members didn’t realize that the meeting had started broadcasting, and they ended up resigning. 

“I actually started my own union where I work, and so I know exactly what collective bargaining is for,” says Falcon. “To use that power to keep the schools closed longer than the health and science authorities say is safe and right is really an abuse of collective bargaining.”

Recent polls suggest that a majority of Americans favor fully vaccinating all teachers before reopening, but Oster predicts that public opinion will shift as more schools reopen and Americans see for themselves that it’s not particularly dangerous. 

“I think the thing we need to recognize is the first moments of going back are going to be the most nerve-racking,” says Oster. “Once people see that this is something we can do safely, they will be interested in opting in.”

Despite the $6.6 billion earmarked for reopening, many unions, including United Teachers Los Angeles, continue to oppose reopening until all teachers who want the vaccine have received it. But the state’s agreement doesn’t require local districts to negotiate with unions on reopening.

Falcon says that his faith in the public school system is shaken and that he is seriously considering sending his kids to private school. 

“The teachers unions are not understanding the extent they are losing more and more parents who are going to private school right now, who are not going to look back,” Falcon says. “And when different politicians will say, ‘Hey, we need to boost private schooling instead of public schooling,’ they’re going to have more people supporting that idea than less.”

Falcon says he wants to support public education, “but if my kid is going to be denied and screwed by the way the system works, what am I supposed to do?”

Produced by Zach Weissmueller. Graphics by Paul Detrick. 

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