Monthly Archives: April 2012

Better regulation through competition

Monopolies are bad. The supposed truth of that axiom is nearly universally accepted. Government demonstrates its adherence to this precept through such devices as anti-trust legislation. Curiously though, government itself is the biggest monopolist like entity. I say “monopolist like” because even the so-called monopolies of Standard Oil or AT&T could not force people to purchase their goods via legally imposed violent coercion. Government is monopoly at the barrel of a gun. So, if the truism that monopolies are bad is generally accepted, why is the public so willing to blithely accept the monopolist enterprises the government imposes on us? For some reason the public holds those in government to be members of a class of altruistic super humans that think only upon the betterment of society and never upon themselves, that they are selfless servants of their fellow man (angels?). To quote John Stossel, “Give me a break!” Those in government are humans, just like us, with the same weaknesses, foibles and strengths (witness the recent GSA convention debacle). They are not magically transformed upon taking an oath of office or employment within the government. To persist in such a belief is as delusional as believing in the Tooth Fairy or Santa Claus.

the public holds those in government to be members of a class of altruistic super humans that think only upon the betterment of society and never upon themselves

If all humans are the same, whether they are employed in “public” monopolies or private firms why do private firms consistently deliver better, more effective, more efficient and less expensive results? Competition. When private firms compete the ones that deliver what the customer wants survive, and the ones that can’t deliver do not. So when there are calls for less regulation or elimination of the FDA or EPA do not confuse that with a desire for actually no checks on safety and efficacy. Rather it is a call for a free and open market based regulation. In order to have such a free regulatory system, entities like the FDA and EPA must be stripped of their legal government backed authority so that all may engage in fair competition. The reason there are currently no other “FDA” like entities is that there is no incentive to start such a business. Why do so if your customers must use your competition? Without legal stricture, firms addressing the role the FDA plays in the market (insurance risk mitigation) would arise (just as Underwriters Laboratory did for electronics).

For example, if a company wants to produce drugs it may do so without any insurance or oversight. Those drugs would be quite inexpensive. Purchasers of those drugs would be trading an increased risk of deleterious effects for a lower price. The company is trading its competitive advantage of low price for the increased risk that it will be put out of business by the first lawsuit from an injured customer. So virtually all such firms would purchase insurance. Insurance companies, thus having an incentive to not pay out claims, would require their insured to be inspected (regulated) by any of a number of private drug regulators. Those drug regulators would likewise be legally liable, so they too (unlike the current FDA which has no accountability) would be highly motivated to do a good job. Those private regulators that are effective would grow due to their good reputation; those that do a poor job would disappear due to their poor reputation (and lawsuits). The FDA does a poor job but there is no mechanism to drive it out of business… they get more money when they do a bad job. Drug makers and insurers would preferentially use the regulators that approve and examine drugs quickly and effectively. So rather than waiting 10 years for a lifesaving drug we might only need to wait 1-2 years. Not only does this save lives but it dramatically lowers cost. The FDA is likely responsible for more deaths by the drugs it has kept off the market for too long then the bad drugs it let slip through. That is the unseen harm of government mandated legalized monopolies.

The market will never be perfect because it is composed of imperfect humans, but competition allows society to shed those imperfections, not some utopian concept of the selfless government servant who can do no wrong.

Education is your responsibility, not society’s

On the front page of the April 19, 2012 issue of the Morgan County Citizen there were two(1,2) apparently unrelated articles juxtaposed. They actually were as deeply related to each other as the eternal ying and yang of taxing and spending. The first pertained to a $4.8 million projected shortfall in the FY2012 budget for the Morgan County School System (MCSS). The second concerned a proposal to exempt seniors from paying ad valorem property taxes that fund the school system. The rationale for the exemption is that seniors have no children in the school system so why should they bear that cost burden. Why indeed? According to Madison city councilman Michael Naples, “the education of the local youth was the community’s responsibility” and that such support “has been a long standing practice in this country.” Hmmm… perhaps this “community responsibility” is part of this so-called “social contract” I keep hearing about but have yet to actually see anywhere?

Perhaps this “community responsibility” is part of this so-called “social contract” I keep hearing about but have yet to actually see anywhere?

“Community responsibility” is an oxymoronic notion predicated on the notion that we are born into this world burdened by an obligation to support our fellow man under threat of violence and/or loss of liberty to ourselves if we refuse that obligation. Communities or groups do not have rights or responsibilities; only individuals do. Furthermore, to justify this practice based on the longevity of its existence is tautological! That’s the same argument that was used to justify maintaining slavery: “well, we can’t do away with slavery sir, it’s a long standing tradition in these parts!”

Seniors should be exempted from paying for the education of the youth. As should businesses. As should the childless. Other people’s children are not my responsibility. My children are my responsibility. But, this begs the question. What of those that can’t afford to educate their children? Cost would not be an issue were schools not run as government mandated monopolies. Like healthcare, which has also been subsidized and manipulated by government mandates, the reasons for increased education costs are too numerous to delve into here, however one of the principle reasons is the notion that a smaller student:teacher ratio is the solution to the declining educational standing of the US. When I was in the public school system in the 70’s and 80s class sizes were always right at 30 students to 1 teacher… and yet somehow I and the rest of my generation all managed to somehow get an education and become productive citizens. Using the MCSS as an example (see this document and MCMS website), I determined the approximate student:teacher ratio is anywhere from 18:1 to 10:1 (depending on whether or not you count educational support staff). If the county were to simply move that ratio back to 30:1 (i.e. terminate 2/3 of the teaching staff), the county would save approximately $14 million/year. Since 1970 we have more than tripled (see this link and this link ) the cost of education per student in this country with absolutely no change in test results, so clearly the 10:1 ratio is not paying off.

Education does not need to be subsidized by the state any more than day care does. Using simple calculations based on raw labor value inputs, I compute that monthly education costs per student (including administrative support and capital costs) should be around $200/month (using an annual teacher salary of $67k/year and 30 students per teacher + overhead). If you subtract what most are already paying in property taxes and state income taxes this would basically be a wash or net gain for most. Absent property and income taxes imposed on businesses the “poor” could demand higher wages and lower rents. One of the primary reasons private schools currently cater to the wealthy is that only they can afford to subsidize the education of multiple other children AND their own. If all were released from this subsidization requirement you would see a range of new private schools at different price points (just as we see a range of car options from Kia to BMW).  Doing the same thing over and over and expecting a different result is the definition of insanity. Let’s try something else, because clearly the last 40 years of government monopolized school systems have yielded no improvements.

What does that “L” stand for again?

On July 31, 2012 there will be a statewide vote on whether to adopt yet another 1¢ sales tax (bringing us to 8%! ) This new tax is known as the “TSPLOST” (Transportation Special Purpose Local Option Sales Tax – authorized by the 2010 “Transportation Investment Act”). This SPLOST tax is unique from all prior SPLOST initiatives in that it represents the first step toward loss of local sovereignty. The TSPLOST breaks Georgia up into 12 “economic development” regions. It is the aggregate vote within each region that determines whether the tax is implemented. This multi-county vote aggregation is unique in the history of Georgia as it violates the central tenant of “home rule” written into the Georgia constitution. This means simply that even if one county is 100% opposed, if all the other counties in a region (see map of region here) are for it, then the tax will be imposed in all counties for the next 10 years (even in the ones that did not approve it). This is a disturbing precedent toward slowly shifting political power away from the local level and towards a more centralized authority. We see the same trend today with the states versus the central authority of the federal government. The parallels are uncanny. Just as the states send money for education or highways to the federal government only to have it redistributed back to the states in a non-proportionate manner we will see counties sending TSPLOT money to the state only to have the state send back less to some counties and more to others (see this file for details). Now some might argue that unequal distribution of tax receipts is endemic to any taxing scheme in a region, whether it be city, county, or state. That is quite true. However using the fact that our current tax system is unfair is a poor justification to continue using that same system at a new level.

Those in favor of this new tax rely on the same old hackneyed Keynesian fallacy that somehow public works projects magically pump up an economy… by forcing the taxpayer to spend money on roads and bridges and bike paths (dubiously justified) when they would have otherwise spent it on other goods or services. Road construction companies will be doing quite well (an additional $19 billion over the next 10 years) to the detriment of all other businesses that will see a decline in sales of $19 billion. At best it is a zero sum game, the only difference being that with the tax we are saying we think the government is more properly suited to know how to spend our money and without the tax we are saying we should decide how to spend our money.

Ok, so by now you’re asking, “Ok, Mr. Smarty pants, how should we fund transportation infrastructure?” – Well, I’m glad you asked! Transportation more than any other government monopolized “service” is a user based service for which assessing a service use fee is easily implemented and justifiable (if you use it, then pay for it). There are a number of ways to do this and I’ll list them in increasing order of their effectiveness in terms of fairly assigning cost to usage: gasoline tax, annual odometer tax, general highway tolls, “tiered” highway tolls (i.e. pay more to drive in less congested lanes), fully private roads (where the desire for profit drives new PRIVATELY FINANCED road construction). Any of these options would be better than a general sales tax because those who are on limited or fixed incomes and who do not drive much are being forced to subsidize large businesses and freight carriers who disproportionately utilize the “public” roadways. Taxing activity directly related to road usage at least makes an attempt to fairly assign cost to those that are using them. It is a step in the right direction and it is the step we must take lest we continue sliding down the slippery slope of nebulous centralized taxation for anything that seems like it might be “good.” Vote for local control and fiscal responsibility and vote NO on TSPLOST.

Rage against the machine

Imagine that you are a pioneer of the old west. Over many years you have worked hard to establish a home and a farm. Now imagine that a marauding gang of thieves has begun to harass you. They destroy your crops. They threaten your safety in order to extort money from you. When you are away they vandalize your home and poison your livestock. Year after year it continues. You are peaceful and do not resort to violence. You follow all legal remedies attempting to end the persecution, but it is all for nothing. Judgments in you favor are simply ignored. You soon learn the marauders in fact want what you have created; they want your land for their own use. You offer to sell it to them if only to end the nightmare. They refuse. They would rather scare you off so they can simply take what is yours.

Sounds pretty terrible? Surely this is a scenario for which we need government? Sadly, it is government itself that is the villain in this story. This story is true. It took place in our own backyard in Roswell, Georgia. The gang of marauders is none other than the local code enforcement office and police department of the city of Roswell. This is the story of Andrew Wordes (aka “the chicken man”) and his fight against an intransigent bureaucracy. When you battle an implacable foe something must eventually give.

The details of this story are sufficient fodder for a feature length film. To read a more detailed account please see this report or to hear the story in Mr.Wordes own words please listen to this. In synopsis: In December 2008 Andrew Wordes was cited by the Roswell zoning department for having chickens on his property (even though the ordinance specifically permitted such chicken husbandry). The mayor of Roswell actually stepped in to help but the city bureaucratic “machine” ignored all attempts at reason. Even former Governor Roy Barnes represented Mr. Wordes in his suit against the city (being a chicken farmer Mr. Barnes was partial to his plight). They won the suit against the city. In response the city rewrote the law so that he could only keep chickens if the city fixed a drainage problem that the city itself was responsible for: they refused to fix the problem. Then the harassment really began. He was constantly in court due to numerous petty citations (e.g. improperly stacked firewood). The city’s police department routinely waited outside his house in order to follow him and issue citations for minor infraction. The city (illegally) pressured his mortgage holder to foreclose on the mortgage. Someone poisoned all his chickens when he was away one weekend. He was jailed for 3 months for minor zoning violations (grading himself to try to fix the problem the city refused to fix) and while in jail had to file bankruptcy. While jailed his home was burglarized. He spent his life savings legally fighting every instance of this unwarranted harassment. On March 26, 2012 he was to be finally evicted. The police showed up and after multi-hour standoff he instructed them all to move back. Seconds later he lit the match that ended his life and engulfed his home in a fireball.

They pushed him to the edge. And for what? Turns out that the “Roswell 2030 Plan” includes a parks area that just so happens to be centered on his property. Imagine that. Perhaps the scariest part of this story is that even with the political clout of the mayor and a former governor on his side he remained helpless against the onslaught of harassment from those truly in power: the faceless machinery of the “state”. When even elected officials cannot help the average citizen in their fight against unelected bureaucrats we are well on our way on the road to serfdom.

To regulate Commerce…

To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes. US Constitution, Article 1, Section 8

This simple phrase (aka “the commerce clause”) has been a bone of contention almost since the day it was penned. Judicial interpretation was necessary as early as 1824. The conflict surrounding this clause speaks more to the general disagreement over the proper role of government rather than to an inability to properly interpret it. That is to say, no matter how one might restate this clause, each side would forever strain to interpret it to mean that which they wish it to mean. The key to understanding it is to not even try to interpret it, but rather to take the plain language at face value within the context of the document in which it is found. The US Constitution is a simple document with simple rules. To understand it, it is necessary to recall that the states were originally separate sovereign entities (that happened to owe allegiance to the British crown). Today we tend to think of states as nothing more than large postal codes, but that was not their original character, nor was that character changed by the Constitution (why join a union that requires you give up all your authority to the new central authority?) The citizens of those states believed they would be more secure by joining together (“the United STATES”) while still remaining sovereign within their respective borders. Whenever humans come together they need rules to define the relationship so everyone knows where they stand. That is all the Constitution does. It simply says: (Articles 1-3) there are three branches of government and here is what each can do (enumerated powers) and cannot do, (Article 4) here are the responsibilities of the states to each other and the responsibility of the government to the states, (Article 5-7) general housekeeping with respect to modifying and ratifying the document itself and matters relating to clarifying jurisdictional supremacy.

So, the commerce clause, taken in the context of being part of the rules that govern the relationships among the states, is simply saying that the federal government can do what is necessary (regulate) to prevent the states from interfering in commerce (trade). It simply supplants their prior authority with a single authority so that they would not be fighting amongst themselves in endless pissing matches over who has ultimate authority in relation to trade. To be clear, it is only the states and the federal government, not the citizens, which are governed by the Constitution. This makes sense if you think about it. The Constitution was written by the citizens (“We the People…”) in order to define the role and limits of the government they desired. Yes, the government may make laws that govern the citizens but only via the authority granted in the Constitution to make such laws. If there is no authority for a law in the Constitution then it is de facto “unConstitutional” no matter how “good” we might think it is. The problem occurs when the proponents of a law want to make it “Constitutional” by redefining and broadening terms used in the Constitution so as to facilitate an interpretation conducive to their desired goal.

One of the more egregious cases of twisted logic and Constitutional redefining came into play in the seminal case of Wickard v Filburn 317 U.S. 111 (1942). The Supreme Court found that Roscoe Filburn was engaged in interstate commerce and therefore fell under the jurisdiction of the Agricultural Adjustment Act of 1938, which granted the government authority to regulate agricultural output in order to maintain price “stability”. They found that he was growing “too much” wheat on his farm – even though the wheat was entirely consumed on his farm and was never sold – and thus he had no need to purchase additional wheat. The logic being that had he not grown “too much” he would have had to buy what he needed and such purchasing would have tended to increase the interstate demand and hence price for wheat. So, not buying something is, by government logic, equivalent to engaging in interstate commerce.

Based on this precedent one might conclude the current court has no choice but to rule in favor of the individual mandate of the PPACA as its supporters justify it upon putative commerce clause grounds, i.e. not buying insurance affects the price of insurance for everyone else. However, there is a subtle wrinkle here. Mr. Filburn was engaging in activity (growing wheat), which resulted in inactivity in another arena (buying wheat). In that case the government exerted its right to regulate his ACTIVITY of growing wheat, not his INACTIVITY of not buying wheat. The AAA said he could not grow more than such and such amount. It did not say he MUST buy wheat if he needs it or face a penalty. In the current case the government is asking the court to assert that the commerce clause goes even further than in Wickard v. Filburn and can grant the government authority to compel an individual to act (buy insurance). In other words, it now wants the authority to regulate inaction by redefining inaction as a type of action.

But whether the PPACA is overturned or not is not the important issue. The critical issue is the very nature of the Constitution. Article 1, Section 8 of the Constitution lists these things called “enumerated powers.” That means, it is a list of those actions, and only those actions, that Congress may undertake. If it is NOT on the list, they may not do it. It is improper to interpret the Constitution with a mindset of “Well if they didn’t want us to do that they would have specifically said so.” They did say so, if it is not enumerated it may not be done. But even disagreement over what the enumerated powers authorize is not so important. Reasonable people can disagree about the extent to which they think government should have certain authority. The important issue is that (hopefully) there will always be agreement that there must be some limits on government. The disagreements we have today are simply about where that point is, not whether or not it should exist.

If the Supreme Court finds that the commerce clause can be used to compel citizens to do or not do something because it might tangentially affect commerce, then there is in practice no limit whatsoever on the powers of Congress and it simply makes a mockery of the enumerated powers. It would make no sense for the framers of the Constitution to say “you can only do a, b, and c, and oh by the way you can also do anything else you can possibly think of.” Why would this remove all restraint from government powers? Think about it – whenever we are doing something we are also not doing a million other things. Government would now have the authority to identify the things we are not doing but that it thinks we should be doing and codify laws that compel us to do those things. How hard is it to imagine that in the midst of a new economic downturn Congress passes a Minimum Economic Activity Act which would require all citizens to spend a certain percentage of their income on goods and services in order to keep the economy going? Or how about a law requiring a minimum level of exercise, since not exercising makes us less healthy and that means rising health care costs. Congress would now have unlimited power to order us to do any number of things we aren’t doing. What’s to stop them? Inactivity is regulated by the commerce clause.

It is naïve to comfort oneself with the thought that just because today no one is abusing that power we have nothing to worry about.