Zeitgeist

Argentina President Cristina Kirchner

Argentina President Cristina Kirchner

Can a country seeking to welsh on its debts invoke sovereign immunity to evade not just court orders to pay those debts, but also post-judgment discovery aimed at collecting on those judgments? Can it do so to prevent not just discovery directed at it, but also at third-party banks? Most importantly, perhaps, can it do so even though it contractually waived sovereign immunity? The answer is yes, according to Argentina, which is seeking to stiff many of its bondholders. Thankfully, the U.S. Court of Appeals for the Second Circuit disagreed with this attack on property and contract rights in a 2012 decision.

But amazingly enough, the Obama administration has taken Argentina’s side at the Supreme Court, It is joined by the government of France, which has experienced downgrades in its credit rating due to stubbornly-high government spending under Socialist Francois Hollande that consumes well over half of France’s economy. The willingness of the Obama administration to take Argentina’s extreme position is disturbing given that the Second Circuit’s ruling was unanimous.

CEI and several former State Department officials have filed an amicus brief asking the Supreme Court to uphold the appeals court’s ruling, and reaffirm the availability of the post-judgment discovery needed to protect property and contractual rights. The former State Department officials include counsel of record John Norton Moore, former Counselor on International Law to the Department of State; Robert F. Turner, former Deputy Assistant Secretary of State for Legislative Affairs; Abraham D. Sofaer, a former federal judge and former Legal Adviser to the Department of State; Professor Malvina Halberstam, former Counselor on International Law to the State Department; and Davis R. Robinson, former Legal Adviser to the State Department. John Norton Moore, who teaches international law and national-security law at the University of Virginia, was extensively involved in drafting the Foreign Sovereign Immunities Act (FSIA) involved in the case. Judge Sofaer was appointed by President Carter to the federal bench in 1979.

[click to continue…]

NLRB Ambush Election HearingOn three separate panels, I testified last week against the flaws inherent in the National Labor Relations Board’s (NLRB) latest proposed rule.

The NLRB benignly purports to re-examine “Representation Case Procedures.” The rulemaking is commonly known as the ambush elections rule, as a result of a key component that could require elections in as few as ten days.

FIRST PANEL

On the first panel, I addressed the election date at the heart of the proposal. Approvingly quoting a letter from eighteen United States Senators who commented against the proposed rule, I noted that, “then-Senator John F. Kennedy stated that it was essential to allow ‘at least a 30-day interval between the request for an election and the hold of an election’ in order to ‘safeguard against rushing employees into an election where they are unfamiliar with the issues.’”

The crux of then-Senator Kennedy’s statement is a focus on safeguarding employees and on ensuring that effectively educating employees remains the Board’s focus.

ANALOGY TO STUDENTS’ STUDIES

Pointing out that the median times for elections are on the order of 40 days and that the proposal could call for elections in as few as ten days, I asked, “Would your students benefit from a 75-percent reduction in study time?”

I pointed out that workers, who already have a job and many of whom have families and hobbies, are challenged with essentially learning a crash course in labor law and labor economics—two arcane and intricate areas normally pursued by highly trained specialists with advanced degrees.

An absolute minimum of 30 days and really a routine minimum of sixty days are appropriate to learn such material.

[click to continue…]

Post image for First Ever Constitutional Ruling against Dodd-Frank Voids Destructive “Conflict Minerals” Section

Today’s ruling of the D.C. Circuit Court of Appeals that Dodd-Frank’s “conflict minerals” disclosure mandate violates the First Amendment is the first time ever a court has ruled that a provision of Dodd-Frank violates the Constitution. Regulations issued under Dodd-Frank have been struck down for reasons such as inadequate cost-benefit analysis and other procedural violations, but this is first time a provision has been found to be unconstitutional.

And it couldn’t happen to a more misguided and destructive provision of the law! As my Competitive Enterprise Institute colleague Hans Bader and I have written in blog posts, articles, and regulatory comments, the conflict disclosure mandate creates a compliance nightmare, hurts American miners and manufacturers, and does the greatest harm to those it was intended to help — the struggling worker in and nearby the Democratic Republic of Congo.

As explained by Mercatus Center scholars Hester Peirce and James Broughel in their book Dodd-Frank: What It Does and Why It’s Flawed, the “conflict minerals” mandate of Section 1502 is one the law’s many “miscellaneous provisions” that offer “a clear example of how a statute invoked as the answer to the financial crisis is, in reality, an odd conglomeration of responses to issues, many of which had nothing to do with the financial crisis.” Section 1502, championed by celebrities, including Ashley Judd and Ben Affleck, requires all types of firms to disclose their products’ use of five “conflict minerals” — including gold, tin, and tungsten — that can be sourced to war-torn regions of the Congo.

[click to continue…]

Post image for Encouraging News about Honeybee Health

A recently released study in Europe reports some good news about honeybee health, which should prompt public officials to reexamine a recent ban on some agricultural products. “It’s the first major study of pests and diseases that affect honeybees. A lot of it seems very encouraging,” honeybee researcher Tom Breeze, says in a Reuters news story.

The study examines honeybee populations in Europe after recent disappearances of entire bee colonies during the winter—a phenomenon called colony collapse disorder—which began in 2006 and has continued to be a problem with large losses reported after the winter of 2012-2013.

After hives suffered considerable losses in some places in Europe, the EU took a knee jerk response by banning a class of pesticides that makes food production more affordable. Ironically, the ban is supposed to ensure agricultural productivity by protecting these pollinators, but elimination of crop protection products may undermine food production, and it’s not likely to solve colony collapse disorder.

The chemicals, called neonicotinoids, are systemic products that can be applied to seeds, which eventually produce plants that systemically can fight off pests without the need for regular spraying. There are many reasons to doubt claims that neonicotinoids cause, or significantly contribute to, colony collapse disorder in any case. For more details, read Jon Entine’s superb Forbes.com series on the topic, as well as the many articles posted on SafeChemicalPolicy.org.

This latest study adds another wrinkle to the debate, indicating that the problem is not as widespread as people think, and that other factors are in play, such as cold weather. It underscores why we need to continue to study the issue rather than push rash and unhelpful bans.

Specifically, it examines bee mortality during the winter of 2012-2013 when many beekeepers reported missing colonies.

[click to continue…]

Post image for CEI’s Battered Business Bureau: The Week in Regulation

Two new economically significant regulations last week will impose more than half a billion dollars in compliance costs on the economy. The additional 57 regulations agencies finalized last week will hopefully be less impactful.

On to the data:

  • Last week, 59 new final regulations were published in the Federal Register. There were 79 new final rules the previous week.
  • That’s the equivalent of a new regulation every 2 hours and 51 minutes.
  • So far in 2014, 868 final regulations have been published in the Federal Register. At that pace, there will be a total of 3,100 new regulations this year. This would be the lowest total in decades; this will likely change as the year goes on.
  • Last week, 1,766 new pages were added to the Federal Register.
  • Currently at 20,727 pages, the 2014 Federal Register is on pace for 74,025 pages, which would be the lowest total since 2009.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. 12 such rules have been published so far this year, two of them in the past week.
  • The total estimated compliance costs of 2014’s economically significant regulations currently ranges from $1.64 billion to $2.01 billion. They also affect several billion dollars of government spending.
  • Seventy-seven final rules meeting the broader definition of “significant” have been published so far this year.
  • So far in 2014, 184 new rules affect small businesses; 26 of them are classified as significant.

Highlights from selected final rules published last week:

For more data, see Ten Thousand Commandments and follow @10KC and @RegoftheDay on Twitter.

Post image for CEI’s WorkplaceChoice.org Scores Paycheck Fairness Act

The Competitive Enterprise Institute scored Wednesday’s vote in the U.S. Senate on the passage of S. 3772, The Paycheck Fairness Act, a bill that would fundamentally change the Equal Pay Act of 1963, which prohibits employers from paying women less than men for performing the same work in the same workplace.

The score will be incorporated into CEI’s Congressional Labor Scorecard that can be seen in full on CEI’s labor policy website, WorkplaceChoice.org.

CEI opposes numerous provisions of the proposed bill:

  • Sections 3(a) and (b) proposes to sharply curtail employers’ defense to discrimination claims based on “any factor other than sex,” and their ability to discipline employees.
  • Section 3(c) would expose employers for the first time to compensatory and punitive damages for unintentional sex discrimination and promote class action lawsuits. It would also broaden a “loser-pays-all” attorney’s fees provision against the defendant employer, though the same does not and would not apply to an unsuccessful employee plaintiff.
  • Section (4) would mandate that the EEOC and the Office of Federal Contract Compliance Programs “provide training to Commission employees and affected individuals and entities on matters involving discrimination in the payment of wages.” A plain reading could afford plaintiffs and their attorneys training in how to sue employers.
  • Sections (6) and (7) would require the Secretary of Labor to tell employers, unions, and the general public how to eliminate pay disparities between men and women, rewarding compliant ones. The Secretary would conduct studies, publish materials, convene a national summit, and become involved in state and community education on the topic.
  • Section (8) and (9) would require new federal regulations “for the collection of pay information data from employers as described by the sex, race, and national origin of employees.” Data would be mined in the Current Employment Statistics survey and re-instated Equal Opportunity Survey, taking limits off the Office of Federal Contract Compliance Programs in use of the data for enforcing against employers. Public availability of the data appears to be aimed at helping the plaintiffs’ trial bar sue employers.

This bill would make America more litigious and saddle virtually all the nation’s businesses with more red tape and costs, even though gender-based employment discrimination is already illegal. The same legislation received a vote last Congress—during an election year—and there was scant reason to believe Senators would change their position. As expected, this political stunt was voted down.

For the 113th Congress’ Senate vote 103 on cloture on the motion to proceed to the Paycheck Fairness Act, S. 2199, the vote was 53 Yeas to 44 Nays, with three Senators (Coburn, Cornyn, and Cruz) not voting. Sixty votes were needed for cloture to proceed to the bill, and thus the bill will not be discussed on the Senate floor.

Only Senator King, an Independent of Maine who caucuses with the Democrats, split with his caucus on this vote. All Republicans opposed cloture, and all Democrats supported cloture, with the lone exception of Majority Leader Harry Reid who opposed cloture for the procedural reason that he is thereby afforded the opportunity to resurrect the cloture motion.

Obama RacineAlthough President Obama occasionally clings to the claim that his administration is the “most transparent” in history, with more and more revelations, this gets farther and farther from the truth. Clearly, we have an epidemic on our hands.

Over the past couple years, I have uncovered case after case of federal government officials, particularly those at the Environmental Protection Agency (EPA), knowingly and willingly moving select correspondence “off-line”, away from required, official email accounts. We have even found senior appointees at EPA, Department of Energy, and the White House Office of Science and Technology Policy using email accounts controlled by environmental pressure groups.

Regardless of intent, although I would argue these practices on their face indicate a desire to evade disclosure, the use of non-official email accounts for work purposes circumvents federal-recordkeeping responsibilities. Since employees have chosen to not search them in response to Freedom of Information Act (FOIA) requests or congressional oversight requests, this allows government officials to avoid revealing their actions to taxpayers who finance their salaries.

These corrupt practices are not isolated to the federal government. In requests the Competitive Enterprise Institute (CEI), assisted Colorado’s Independence Institute with, we show the practice extends to activists employed in state government. In Colorado, this means Gov. John Hickenlooper’s Chief-of-Staff, the governor’s Chief Strategy Officer and Director of the Office of Policy and Research to Colorado, Alan Salazar, and the Director of Environmental Programs for the Colorado Department of Public Health and Environment (DPHE), Martha Rudolph.

On October 15, 2013, I filed a FOIA request on behalf of CEI for all non-official account emails of former EPA Region 8 (Rocky Mountain West) administrator James Martin, a former Environmental Defense (ED) lawyer who we had already showed was using a private account to correspond on work-related issues with former ED colleagues and state officials. After these revelations, like another high-level EPA official — former administrator Lisa Jackson, also known as “Richard Windsor” in a false-identity account I also discovered — Martin resigned from his post in February 2013. Under congressional scrutiny after these revelations, he turned over more emails, which I obtained from the EPA.

[click to continue…]

Post image for Professional Licensing: A Risk to the Free Markets and Freedom of Speech

From physicians to dentists to lawyers, the licensing requirements of many professions are well known—but for bloggers? A recent case in North Carolina demonstrates the dangers that mandatory occupational licensing poses to liberty and how established interests use such requirements to protect their bottom line.

North Carolina resident Steve Cooksey was ill, obese, and struggling with type 2 diabetes. In 2009, after being rushed to the hospital, nearly in a coma, he decided to do everything in his power to get healthy. By following a low-carbohydrate diet, Cooksey claims he was able to drop 45 pounds and get off insulin and drugs. He documented his story on his personal blog, where he provided advice to others practicing the “paleo” diet that he believes saved his life.

That sounds like a win-win situation, but not according to the North Carolina Board of Dietetics and Nutrition (NCBDN), which decided to go after Cooksey for the “crime” of offering nutritional advice without a dietitian’s license. In 2011, it sent Cooksey a letter, claiming that his blog, by giving readers “unlicensed dietetic advice,” even for free, violated North Carolina law. The NCBDN included a 19-page copy of his online writings with comments in red ink pointing out what he could and could not say.

Even more surprising, the notice asserted that Cooksey’s private conversations with readers and friends via email and telephone also constituted a violation of the state’s dietitian licensing law!

Unfortunately, Cooksey’s case is far from an isolated incident. In just about every state, there is a dizzyingly long list of jobs that require would-be workers to go through a long, expensive, and sometimes arduous process to earn the privilege of entering into a given profession. While the stated reason for requiring occupational licenses is public safety, established players operating under existing licensing schemes usually fight tooth and nail to maintain occupational license requirement in place, to make it harder for potential competitors to enter the market.

Today, roughly 30 percent of jobs in the U.S. require some form of license (a sharp increase from a low back in 1950, when the share was only 5 percent). Fortunately, some workers are fighting these licensing regime—and many are winning.

[click to continue…]

Post image for Food Policy Fight: Junk Study on Vegetarian Diet

Log on to Twitter and you might read: “A vegetarian diet is associated with poorer health, a higher need for health care, and poorer quality of life.” Here we have junk science going viral! And its fanning the flames between meat-eating and vegetarian advocates. But it shouldn’t.

You can’t really blame the person pushing out this tweet too much, however, because her source is a study published in a PLOS One research paper. It highlights some of the pitfalls associated with paying too much attention to isolated studies that rely on questionable methodology and overblown claims.

This study is another example of how junk science adversely impacts public policy debates, which is why I recently developed A Consumer’s Guide to Chemical Risk: Deciphering the “Science” Behind Chemical Scares.” As this study on vegetarian diets shows, it’s not just chemical policy that’s negatively impacted by bad science. Personal choice, should rule the day when it comes to dietary choices, but because government is so involved — setting guidelines and telling us what we should and shouldn’t eat — food politics are unavoidable. Accordingly, meat-eaters might use this dumb study to push their agenda, but the facts do not really support them.

This study placed all vegetarians into one category, but there is no such thing as a single vegetarian diet. For example, some vegetarian diets might include mostly processed food and french fries, while others consist of nuts, beans grains, and fresh vegetables. It makes no sense to lump these diets into one category. Yet there are no more details in this study about what the vegetarian participants’ diets included and when the participants began them. Nor does the study include any empirical medical data; just reports from individuals about their perceived health profile.

Apparently, assessing the value of any particular diet was not really the point of this study, despite its conclusions. Rather it addresses the subjects lifestyles’ and perceptions about them, and it found that vegetarians (at least the Austrians in this survey) worry more about their health and report having more health problems than do meat eaters. It does not demonstrate that a vegetarian diet can’t be as healthy as or healthier than a diet that includes meat.

Yet the authors somehow conclude:

Moreover, our results showed that a vegetarian diet is associated with poorer health (higher incidences of cancer, allergies, and mental health disorders), a higher need for health care, and poorer quality of life. Therefore, public health programs are needed in order to reduce the health risk due to nutritional factors.

This conclusion offers lots of opportunity for anti-vegetarian soundbites, but the study really doesn’t show what this conclusion says. First the “association” does not prove cause-and-effect; and second it’s not a vegetarian diet that causes these problems. It’s the alleged lifestyles of the vegetarians, such as not getting vaccinated as often and not pursuing preventative health check-ups.

[click to continue…]

Post image for CEI’s Battered Business Bureau: The Week in Regulation

After a slow start to the year, regulations are now coming out at their usual pace, with nearly 80 rules last week. The Federal Register will likely exceed 20,000 pages this week.

On to the data:

  • Last week, 79 new final regulations were published in the Federal Register. There were 64 new final rules the previous week.
  • That’s the equivalent of a new regulation every 2 hours and 8 minutes.
  • So far in 2014, 809 final regulations have been published in the Federal Register. At that pace, there will be a total of 3,112 new regulations this year. This would be the lowest total in decades; this will likely change as the year goes on.
  • Last week, 1,134 new pages were added to the Federal Register.
  • Currently at 18,961 pages, the 2014 Federal Register is on pace for 72,927 pages, which would be the lowest total since 2009.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. 10 such rules have been published so far this year, none of them in the past week.
  • The total estimated compliance costs of 2014’s economically significant regulations currently ranges from $1.05 billion to $1.34 billion. They also affect several billion dollars of government spending.
  • Seventy-three final rules meeting the broader definition of “significant” have been published so far this year.
  • So far in 2014, 174 new rules affect small businesses; 24 of them are classified as significant.

Highlights from selected final rules published last week:

For more data, see Ten Thousand Commandments and follow @10KC and @RegoftheDay on Twitter.