Malo periculosam, libertatem quam quietam servitutem.

Legislation Archive



January 2017



Three Cheers for Process Reform

Written by , Posted in Legislation, Liberty & Limited Government, The Nanny State & A Regulated Society

Outside of election season, few people really pay attention to what happens in Washington DC. Start talking about “process reform” and the average citizen completely tunes out. That’s unfortunate because the how of policymaking is often more important than the who.

Public choice teaches us to look at the incentives and institutional constraints placed on elected (and unelected) officials in order to understand how they are likely to behave. This is of practical import. If we want to compel government to live within its means, for instance, then applying public choice theory we know to direct our efforts toward the creation of a debt break or other spending cap, rather than naively thinking it is sufficient simply to elect politicians claiming they will be more responsible. The reason the latter doesn’t work is because politicians are incentivized to seek reelection, and showering various constituencies with taxpayer dollars remains the best way to go about it (we could drill down deeper, if we desired, into things like the problem of concentrated benefits and dispersed costs to further understand why electoral mechanisms are unlikely to enforce spending restraint).

There are a great many reforms that are needed if the nation’s many policy-related problems are ever to be solved. Thankfully, there seems to be enough awareness of this fact that some key process reforms are moving forward. One of them is the REINS Act, which was passed by the House last week, and attempts to solve the issue of excessively expensive and numerous regulations. Recognizing the fact that career bureaucrats have an incentive to grow their power and to ignore the costs imposed on society by doing so, the REINS Act requires Congress and the president to approve regulations with significant economic impact before they are finalized.

It understandably has the left freaking out, as the REINS Act would return to Congress a bit of the lawmaking power that has long been delegated to unaccountable regulators–power which the left has exploited to insert government into every aspect of our lives. And while Congress carries its own set of perverse incentives, looping legislators into the rule-making process adds an obstacle to the promulgation of new regulations that should hopefully prevent some of the more onerous and destructive rules from ever coming to fruition.

The REINS Act reforms Congress as much as it does regulatory agencies. Under the current system, legislators can hide from electoral accountability by delegating more and more of their responsibilities to unelected bureaucrats, who they then campaign against. By restoring the role of Congress in filling in the details for new laws, legislators cannot as easily duck electoral responsibility for agency actions.

Other regulatory reform efforts are also proceeding concurrently. But there are other areas that can improve from process reforms as well.

One of those is the electoral system. There’s been renewed interest in the topic post-election, though most of it is motivated by the particular partisan circumstance of recent elections and directed in unhelpful ways.

Hillary supporters are focused on the fact that she won the popular vote but lost in the electoral college. Ignoring that we don’t actually know how the campaign would have unfolded were the goal different from the beginning, they are focused on the wrong reform. The real tragedy of 2016 is that despite two major party candidates with historic unfavorables, and an electorate in which a plurality of 43% choose not to belong to either major party, the major party nominees still secured 94.3% of the vote.

Why did this happen? Because the voting system we have chosen compels it to. See Duverger’s law for the full explanation, but the short of it is that our first-past-the-post voting system (pick one, winner take all) incentives voters to vote against their most hated candidate instead of for their most liked one.

Interestingly, this same election also produced a tiny step toward a new (and I’d argue better) system. Maine passed a ballot initiative to implement ranked-choice voting for all statewide elections (though not federal House, Senate, or presidential campaigns). It works by having voters rank their top choices in order. If no candidate breaks 50 percent, the candidate with the least first choice votes is dropped and the ballots recounted. This continues to happen until a candidate reaches a majority. If such an approach had been used in the presidential election, as an example, voters could have supported a candidate outside the Republican-Democrat duopoly without fear that they were inadvertently supporting Hillary or Trump depending on which they loathed more.

But that’s not our voting system, and so we are left with the most unpopular president ever elected. Process is destiny.




January 2015



The Case for Criminal Justice Reform in the 114th

Written by , Posted in Legislation, The Courts, Criminal Justice & Tort

I don’t see much getting done in the next two years in terms of major legislation. The reforms Republicans want aren’t likely to be signed by President Obama, and his proposals will have a hard time finding traction in Congress, even among Democrats. That said, there’s one major issue that has at least a slim chance of advancing. I explain why in my most recent column at EveryJoe.

…Recognition of serious problems in the criminal justice system spans the ideological spectrum. The left has long had its concerns, though often narrowly focused on issues of race. Libertarians, too, have been consistent in criticizing the excesses of the drug war and the police militarization it has enabled, as well as the appalling practice of civil asset forfeiture. Gross abuse of the latter, which allows police to seize property without ever charging – much less convicting – an individual with a crime, has also contributed to a growing conservative awareness of the need to address the nation’s criminal code and its enforcement.

…The organization Right on Crime has made strong inroads among conservatives in making the case for reform…

Meanwhile, libertarian Charles Koch has  trained his sights, and deep pockets, on criminal justice reform, and has stated plans to ramp up his efforts in 2015. Typically treated as a boogie-man by the left, Koch has even forged alliances with the more liberal ACLU and progressive king-maker George Soros to bolster his efforts.

Taken altogether, these groups represent a rare and potent coalition.

The rest is available here.



February 2012



Federalism vs. Eminent Domain

Written by , Posted in Big Government, Legislation, Liberty & Limited Government

The issue of eminent domain and the outrageous Kelo decision are what first drove me to start blogging. The idea that government goons could legally force people off their property for the benefit of private entities was enough to get my blood boiling – and still does. Thankfully, most states reacted to the troubled decision by enacting eminent domain protections, though not all were effective and many problems still remain.

Being debated before Congress today is the Private Property Rights Protection Act of 2012, a bill with bipartisan support which would prohibit a state “from exercising its power of eminent domain … over property to be used for economic development … if the state or political subdivision receives federal economic development funds during any fiscal year in which the property is so used or intended to be used.” Sounds wonderful, right? Well, not really.

I’ve written many times about both the benefits of federalism and the dangers of granting the federal government the right to use the disbursement of dollars to force states into specific policy choices. Such use of taxpayer money undermines the idea of separate jurisdictions of government authority, and the benefits we derive from it (the separation of powers between state and federal governments is equally as important as that between the executive, legislative and judicial branches), rendering the states as little more than regional magistrates of a central authority on which they are financially dependent. Ideally, the federal government should be sending no money to the states.

Without the jurisdictional competition of federalism, most people would see the majority of political decisions impacting their lives as being made in a far off Capitol completely out of touch with the challenges they face on a daily basis. The bill also “prohibits the federal government from exercising its power of eminent domain for economic development,” which I wholeheartedly support, but it is not the place of the federal government to force states to do the same. That is the responsibility of the citizens and elected bodies of the respective states.



December 2009



Leftists Decry Lack Of Dictatorship In America

Written by , Posted in Legislation, Liberty & Limited Government

Matt Yglesias is upset and considers America to be “ungovernable” because Obama can’t just wave his hand and have his agenda pass without opposition:

We’re suffering from an incoherent institutional set-up in the senate. You can have a system in which a defeated minority still gets a share of governing authority and participates constructively in the victorious majority’s governing agenda, shaping policy around the margins in ways more to their liking. Or you can have a system in which a defeated minority rejects the majority’s governing agenda out of hand, seeks opening for attack, and hopes that failure on the part of the majority will bring them to power. But right now we have both simultaneously. It’s a system in which the minority benefits if the government fails, and the minority has the power to ensure failure. It’s insane, and it needs to be changed.

No, it doesn’t.  What we have is a system that protects itself from the whims of fanciful, but ill-considered change.

The guardian has also taken up the cause of whining about America’s “broken” system, which just refuses to allow the immediate and thoughtless adoption of a sweeping, radical agenda.

This is not Latin America, where any colorful demagogue can rise to power and immediately reshape an entire nation in his imagine.  Where Matt Yglesias and the hard-left see a bug, those more concerned about the nature of American democracy than the ability to ram through radical legislation see a feature.

The Senate is the only body in the government which protects minority rights from the trampling of the majority. It was designed specifically for that purpose, and although the nature of how it does so has changed, it continues to serve that purpose today.  We should not undo our governing model on the basis of the dictatorial impulses of Matt Yglesias.



November 2009



It’s Bipartisan!

Written by , Posted in Health Care, Welfare & Entitlements, Legislation

Two-hundred and nineteen Democrats and a single Republican voted to pass the health care monstrosity PelosiCare.  The Republican was Anh “Joseph” Cao, recently elected to fill William “Frozen Money” Jefferson’s seat.  He’s one of the most liberal Republicans in the House in a very blue district. So there isn’t much point getting worked up over his vote, beyond the amusement of listening to the spinners claim use it to claim bipartisanship.

The real bipartisan vote was the opposition, where 39 Democrats defected to oppose the bill.  But let’s not kid ourselves, many (like Dennis Kucinich) did it because they think it didn’t offer enough socialism.



November 2009



The Latest Health Care Monstrosity

Written by , Posted in Health Care, Welfare & Entitlements, Legislation

Weighing in at 1990 pages, the latest health care legislation (H.R. 3962) is a  familiar collection of big government policies. Misleadingly touted by Democrats and media as costing $894 billion, the bill is actually “a $725 billion tax increase and a $1.5 trillion spending program,” according to Jim Capretta.  CBO once again warns that its analysis is colored by rosy and politically unlikely assumptions, rendering it highly unlikely that the deficit reductions they find will actually materialize.

The bill contains a plethora of tax increases, which is reflected by its language.  Words like “taxes,” “fee,” and “penalty” are sprinkled liberally throughout.  Americans for Tax Reform counts 13 new taxes or increases, including an employer mandate and excise taxes on medical devices.

The only thing this massive tome of big government statism doesn’t have is any actual policy to help bring down costs or make health care more responsive to consumers.



September 2009



Congress Looks To Muzzle Internet Over Cyber Bullying

Written by , Posted in Legislation, The Nanny State & A Regulated Society

The biggest bullies in America, collective referred to as Congress, are tackling the issue of cyber bullying.  Their solution? An all out assault on the first amendment via the Megan Meier Cyberbullying Prevention Act:

‘(a) Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.

‘(b) As used in this section–

‘(1) the term ‘communication’ means the electronic transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received; and

‘(2) the term ‘electronic means’ means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.’.

What could possibly go wrong with such a broad piece of legislation? Some of the things I seek to do with this blog could hypothetically be described as: intimidating politicians into actually obeying their oath to defend the Constitution, harassing corrupt officials into complying with the law, and causing substantial emotional distress to those politicos who think that mortgaging our children’s future is a viable means to achieve reelection.

In other words, you can pry the keyboard from my cold, dead fingers.



August 2009



Cash For Clunkers "Success" Provides No Benefit To Economy

Written by , Posted in Economics & the Economy, Legislation

The cash for clunkers program, which created an incentive (via handouts) for people to destroy perfectly usable cars, is being hailed as a giant success after blowing through its initial allocation of $1 billion.  Of course it’s a success if the measure of success is no more sophisticated than the government’s ability to get people to take money in exchange for doing something they were likely going to do in the near future anyway.  Congratulations, you’ve proved people like money.

Nothing about this “success” provides support for the claim made by the program’s proponents that it helps the economy.  That is, and always has been, pure nonsense.

This is an example of the classic broken window fallacy.  The economically illiterate would see a broken window as doing some good by providing business for window makers, glass suppliers, etc.  What these people ignore are the opportunity costs.  Money spent replacing a broken window can’t be spent on anything else, such as new clothes.  All that’s happened economically is that the business that would have gone to a clothing store instead went to a window maker. Meanwhile, total wealth has been reduced by one window.

Cash for clunkers is just like the broken window. Government has shifted business away from some sectors and toward new car dealers.  Meanwhile, every working car destroyed is a net loss for the economy.  To those who continue to insist that there are economic benefits to destroying perfectly useful (and thus valuable) goods, I offer to come over and burn your house down tonight so we can help the economy a little bit more. Think of the new construction work we’ll be creating!

The reality is that every dollar spent destroying and replacing working cars is a dollar that can’t be spent buying other new products.  People are more than welcome to argue that there are environmental gains that make it worth the cost (personally I don’t buy that), but when politicians claim that it benefits the economy they are either ignorant or lying.



July 2009



“Just Say No” To “Just Do It”

Written by , Posted in Energy and the Environment, Legislation

I recently sent the following letter to the New York Times:

To the Editor:

Intelligent people like Thomas Friedman shouldn’t encourage their government to behave recklessly (“Just Do It,” Op-ed, July 1st). Despite finding ample reason to criticize the “cap and trade” legislation, he calls for it to be passed anyway. His reasoning is disturbing. We must pass this bad bill because, by golly, the world needs to see that we’re serious.

Don’t we have enough examples of what happens when Congress rushes through major legislation? The Patriot Act had to be revisited and fixed years later, the massive stimulus has not done any stimulating, and no one in Congress knows what’s going on with the TARP funds.

Chicken Littles always demand that government act now and do something – anything. But our legislature, via the deliberative and detached Senate crafted by our Founders, was designed to work much slower, and for good reason. “Just do it” is a fine slogan for a shoe company, but it has no place in politics.


Brian Garst



June 2009



We're All Gonna Die! Pt. 20

Written by , Posted in Energy and the Environment, Legislation

We’re All Gonna Die, White House edition:

Man-made climate change threatens to stress water resources, challenge crops and livestock, raise sea levels and adversely affect human health, according to a report released by the Obama administration on Tuesday.

The nearly 200-page document on global climate change — released by the White House science adviser and mandated by Congress — does not include new research, but encompasses several recent studies on the effects of global warming over the last half century.

In other words, the White House has rehashed the usual scare-mongering in order to drum up “support” for the upcoming vote on the Waxman-Markey, cap and trade disaster.  In a press release, Sen. Inhofe correctly noted “that despite millions of dollars spent on alarmist advertising, the American public remains rightly skeptical of the so-called ‘consensus’ on global warming.”

Right on cue, the White House’s propaganda arm (MSM) made sure you aren’t being fooled by the nice weather and, you know, general lack of anything approaching Armageddon.

With a cooler-than-usual winter and a mild temperatures leading up to the beginning of summer, global warming alarmists are finding they are losing steam in the debate. But “NBC Nightly News” won’t give up the fight.

…”This less-than-beach-like weather may have you wondering about global warming,” Thompson said. “This cold spell is a snapshot, just a couple of weeks. Global warming is something that happens over decades and centuries. So hang in there, summer and its warmth is on the horizon.”

That news of warm weather and theory of global warming was reassuring for Williams. “Glad to hear that. I was beginning to worry,” he said.

Lest you get too worked up, I am pleased to be able to inform you that our generous leader has a solution: money for the Chicoms!

U.S. Special Envoy for Climate Change Todd Stern said that there was “no question” that China would receive both financial and technological assistance from the United States as part of upcoming climate change talks to be conducted in Copenhagen, Denmark.

“This is a developing country issue, which includes China,” Stern told reporters on Friday.  “I think there is no question that a Copenhagen agreement is going to have to include mechanisms to provide the financial flows and technological assistance to developing countries.”