My colleagues David Bier and Ryan Radia contributed to this post.

Per the scenario in a previous post, it’s April 2012. You are a conscientious congressional staffer who still takes seriously the need to be a steward of taxpayers’ money. (Yes, I know for a fact, there are more than a few of these folks around on Capitol Hill.) You are watching closely events surrounding an “omnibus” or “minibus” spending bill deemed even by conservative Republican members as “must-pass” because it funds the military as well as other parts of government.

Suddenly, you hear about an outrageous earmark about to be slipped into the bill that would enrich a Fortune 500 company. You decide to alert a network of fiscal watchdogs you’ve met with over the years to wage an instant campaign against this piece of corporate welfare.

You have all the information in the e-mail and are about to hit “send.” But then you remember something from a briefing you attended a couple days ago. The subject was the STOCK (Stop Trading on Congressional Knowledge) Act – aimed at stopping “insider trading” by members and employees of Congress – that your boss and nearly every other member of Congress voted into law in February.

At the time, you didn’t think the law would affect you since the only trading you do is indirect, through your mutual funds and pension. You were surprised to learn, however, that you now have a broad “duty of confidentiality” that encompasses not just trading on “material, nonpublic information,” but disclosing information to those who might.

You sit back and think, “It is indeed possible that someone I send this to could buy stock in the company, or could short the company based on the coming outrage.” You stare at the computer screen wondering how virtually no one noticed how this law could have potentially criminalized an act of whistleblowing as abetting “insider trading.”

Such a scenario is almost certain if House and Senate versions of the STOCK Act are not modified before a final bill is sent to President Obama. The House passed the bill yesterday with a 417-2 vote after a similarly overwhelming 96-3 Senate vote last week.  Both bills must go to “conference” to produce a final identical bill to be voted on by both houses, giving members an opportunity for a fix to help make sure that whistleblowing and routine communication with outside groups from being caught in the law’s web.

The legislation gained steam after a series of revelations in conservative author Peter Schweizer’s best-selling book, Throw Them All Out, that pointed out that many members of Congress regularly trade stocks and options, sometimes after receiving sensitive information. A “60 Minutes” report based on some of Schweizer’s findings propelled the issue into the spotlight, with President Obama calling on Congress in the State of the Union to ban “insider trading” among its members and staff.

But lost in the justifiable outrage about politicians’ perks is discussion about how provisions in the bills would actually work. Among the most important things to know about the STOCK Act is that  by specifically applying “material, nonpublic information” rules that govern officers and directors of a corporation to Congress, the  bill would bar in many instances the disclosure of such information as well as trading on it.

The bills specifically impose a “duty of confidentiality” on members of Congress and their staffs. They state that “each Member of Congress or employee of Congress owes a duty arising from a relationship of trust and confidence [emphasis added] to the Congress, the United States Government, and the citizens of the United States with respect to material, nonpublic information.”

The term “confidence” in the context of securities law does not mean faith in a particular institution — indeed it would be difficult to legislate confidence in Congress or any branch of government — but rather keeping matters in confidence. And under the “duty of confidentiality” imposed with regard to publicly-traded companies, many have been prosecuted for sharing information as well as trading on it.

A so-called “tipper,” wrote attorney Nelson Ebaugh in the Texas Journal of Business Law, “is exposed to insider trading liability for simply communicating material, nonpublic information even if he did not personally use the information to trade in the company’s securities.” Ebaugh added that courts are split on whether a “personal benefit” is even required for guilt.

Ebaugh and other experts have argued that insider trading rules have been applied so broadly to such “tippers” of corporate information that they inhibit disclosure about corporate wrongdoing. If these rules were applied to information about upcoming congressional action, it would have serious, if not more severe, effects in muzzling whistleblowers.

In addition to the e-mail to activists from the beginning of this article, conference calls and off-the-record meetings with ideological activists, such as the famed “Wednesday meeting” created by conservative activist Grover Norquist and similar gatherings organized by liberals, could also be curtailed. In the corporate word, the Securities and Exchange Commission has cracked down on what it calls “selective disclosure” to analysts. As a result, under Regulation Full Disclosure, most public companies put information about conference calls on their web site and/or post the recorded call for all to hear.

Following this precedent, if the STOCK Act is passed, the SEC may require meetings and calls in which Congress members and staffers participate to be open to the public or not occur at all. The result would be less outflow of information from Congress and a less-informed public.

Fortunately, some simple language — a “mens rea” or “guilty mind” requirement — could be added in conference to help ensure the new rules don’t inhibit the free flow of information necessary for accountability in Congress. A clause could be added stating something like:

“Nothing in this subsection shall be construed to impose liability on Members of Congress or employees of Congress for acts of disclosing material, nonpublic information to nonaffiliated third parties, unless the Member of Congress or employee of Congress discloses the information to a nonaffiliated third party:

(A)               As a means for making a private profit;

(B)               With knowledge that the recipient of the information, or persons acting in concert with the recipient of the information, intend to use the information for purposes of making a private profit;”

The First Amendment is also threatened by a measure added to the Senate bill by Sen. Charles Grassley (R-Iowa) that would require so-called political intelligence (an oxymoron if there ever was one!) firms to register as lobbyists.  But these firms do not lobby for legislation, but merely gather information for investors, businesses, and sometimes, as University of Minnesota law professor Richard Painter points out, non-profits such as churches and unions. The work that they do is not that different from the news gathering of high-priced investment magazines and newsletters for wealthy subscribers, which no one doubts have First Amendment protection.

As Sen. Joseph Lieberman (I-Conn.) said on the Senate floor, “We are ultimately dealing with First Amendment rights here, and ought not to legislate until we are prepared to do so in a reasoned way.” Fortunately, the House bill did not contain Grassley’s amendment, but Grassley and Democrats will fight to reinsert the measure in the conference bill.

The exposes of Schweizer and others raise serious issues about power and privilege that need to be addressed. The STOCK Act contains some sensible measures, such as more rapid and specific disclosure of investment holdings. Unfortunately, the “political intelligence” provision of the Senate bill and the “duty of confidence” in both bills would muzzle the communication necessary for sunlight and reform. For the sake of transparency and accountability, this potential muzzle must be lifted.

“It launched a hundred ‘anti-bullying’ initiatives at all levels of government, but much of what you think you know about” the Tyler Clementi case “is probably wrong,” notes legal commentator Walter Olson at Overlawyered, the world’s oldest law blog. Andrew Sullivan discusses this as well, linking to Ian Parker’s article in The New Yorker.

We wrote earlier about how the current panic over bullying is leading to attacks on free speech, political debate, and free association in the schools; political pandering; dishonest stretching of existing federal laws by federal officials; and violations of basic principles of federalism.

Reason’s Jacob Sullum writes about New Jersey’s massively-long “Anti-Bullying Bill of Rights,” enacted after Clementi’s suicide at New Jersey’s Rutgers University, and how it infringes on free speech and imposes illegal unfunded mandates. When New Jersey passed this incredibly complicated anti-bullying law, which contains 18 pages of “required components,” that gave a huge boost to a burgeoning “anti-bullying” industry that seeks to define bullying as broadly as possible (to include things like “eye-rolling,” or always associating with the same group of friends) in order to create demand for its services. Hundreds of New Jersey schools “snapped up a $1,295 package put together by a consulting firm that includes a 100-page manual.”

Rod Dreher sees a lesson from the Clementi case about jumping to conclusions:

I too thought that Clementi had been outed after Ravi filmed him having sex. As Parker shows, Clementi was not closeted, and he wasn’t filmed having sex. And yes, Dharun Ravi [who is being prosecuted for hate crimes over the filming that allegedly caused Clementi's suicide] is an ass. But he is not facing criminal trial for being an ass. This is what moral panic does. . .It is hard for me to be fair [to the defendant] in these particular cases, but it is necessary to fight against my own instincts in this case and in every case. You too.

The Obama administration’s StopBullying.gov website defines bullying incredibly broadly in ways that conflict with freedom of speech and common sense. It defines “teasing” as a form of “bullying,” and “rude” or “hurtful” “text messages” as “cyberbullying.” Since “creating web sites” that “make fun of others” also is deemed “cyberbullying,” conservative websites that poke fun at the president are presumably guilty of cyberbullying under this strange definition. (Law professors like UCLA’s Eugene Volokh have criticized bills by liberal lawmakers like Congresswoman Linda Sanchez (D-Calif.) that would ban some criticism of politicians as cyberbullying.)

Anti-bullying regulations can backfire and have bad consequences for child development. As a school official noted after passage of New Jersey’s sweeping anti-bullying law, “The anti-bullying law also may not be appropriate for our youngest students, such as kindergartners who are just learning how to socialize with their peers. Previously, name-calling or shoving on the playground could be handled on the spot as a teachable moment, with the teacher reinforcing the appropriate behavior. That’s no longer the case. Now it has to be documented, reviewed and resolved by everyone from the teacher to the anti-bullying specialist, principal, superintendent and local board of education.”

It’s April 2012. You are a conscientious congressional staffer who still takes seriously the need to be a steward of taxpayers’ money. (Yes, I know for a fact, there are more than a few of these folks around on Capitol Hill.) You are watching closely events surrounding an “omnibus” or “minibus” spending bill deemed even by conservative Republican members as “must-pass” because it funds the military as well as other parts of government.

Suddenly, you hear about an outrageous earmark about to be slipped into the bill that would enrich a Fortune 500 company. You know how these things work; once the bill hits the floor, it’s very hard to excise one provision. So you decide to alert a network of fiscal watchdogs you’ve met with over the years to wage an instant campaign against this piece of corporate welfare.

You have all the information in the e-mail and are about to hit “send.” But then you remember something from a briefing you attended a couple days ago. The subject was the STOCK (Stop Trading on Congressional Knowledge) Act – aimed at stopping “insider trading” by members and employees of Congress – that your boss and nearly every other member of Congress voted into law in February.

At the time, you didn’t think the law would affect you since the only trading you do is indirect, through your mutual funds and pension. You were surprised to learn, however, that you now have a broad “duty of confidentiality” that encompasses not just trading on “material, nonpublic information,” but disclosing information to those who might.

You sit back and think, “It is indeed possible that someone I send this to could buy stock in the company, or could short the company based on the coming outrage.” You stare at the computer screen wondering how virtually no one noticed how this law could have potentially criminalized an act of whistleblowing as abetting “insider trading.”

Such a scenario is almost certain if the House enacts anything similar to the STOCK Act that passed the Senate last week by a whopping 96-3 vote. House Majority Whip Eric Cantor told reporters on Friday that the House plans to vote on a similar measure next week, saying only that “we intend to strengthen” the Senate bill.

The bill gained steam after a series of revelations in conservative author Peter Schweizer’s best-selling book, Throw Them All Out, that pointed out that many members of Congress routinely trade individual stocks and options, sometimes after receiving sensitive information. (Though how “privileged” and “nonpublic” the economic data they had received actually was has been a subject of debate.) A “60 Minutes” report based on some of Schweizer’s findings propelled the issue into the spotlight, with President Obama calling on Congress in the State of the Union to ban “insider trading” among its members and staff.

But lost in the justifiable outrage about politicians’ perks is discussion about how provisions in the Senate bill would actually work. Like the Stop Online Piracy Act (SOPA), another bipartisan bill with aims that nearly everyone agreed on, the proverbial devil is in the details of the legislative language. In fact, if the STOCK Act were in effect, the campaign against SOPA might have failed, because communication between Congress and outside groups would have been severely curbed.

Among the most important things to know about the STOCK Act is that  by specifically applying “material, nonpublic information” rules that govern officers and directors of a corporation to Congress, the  bill would bar in many instances the disclosure of such information as well as trading on it. In a press release describing the House version of the STOCK Act they sponsored, House Rules Committee Ranking Member Louise Slaughter (D-N.Y.) and Rep. Tim Walz (D-Minn.) declare that the bill “amends House ethics rules to prohibit Members and their employees from disclosing any non-public information about any pending or prospective legislative action for investment purposes.” [emphasis added]

But members and staffers have no practical way of assuring that those to whom they spread information won’t use it “for investment purposes.” As a result, communication about important matters with outside groups may decrease markedly, and the very aim of transparency in government that was an impetus for this bill would be undermined. Slaughter, already a champion of curbing grassroots speech through her call for restoration of the Fairness Doctrine, has actually implied that cutting off communication could be one the results of the law.

In a “fact check” she released on an earlier version of her bill, Slaughter conceded a fact that is often misreported – that there is no congressional exemption from insider trading laws. “Just as anyone else, Members of Congress and staffers are subject to current insider trading laws,” she wrote, giving an example of a CEO telling a member about a product recall that has yet to be announced. If it can be proven that the member sold his or her stock based on this info, this action would be “illegal under current insider trading laws.”

The problem, Slaughter argued, is that “current insider trading laws do not apply to nonpublic information about current or upcoming congressional activity.” A big part of the reason for this, Slaughter acknowledged, is that “insider trading” prohibitions stem from the “duty of confidentiality” in securities laws imposed on executives, directors, and others who deal with information regarding a publicly traded company.

By contrast, she noted, “The work of Congress depends on open lines of communication between Members and constituents and organizations.” Therefore, she concluded, ”we must create a broader prohibition that does not require a duty of confidentiality.”

Yet the Senate bill (S. 2038) would specifically impose a “duty of confidentiality” on members of Congress and their staffs. Section 4(g) of the Senate bill states that “each Member of Congress or employee of Congress owes a duty arising from a relationship of trust and confidence to the Congress, the United States Government, and the citizens of the United States with respect to material, nonpublic information.” [emphasis added]

The term “confidence” in the context of securities law does not mean faith in a particular institution — indeed it would be difficult to legislate confidence in Congress or any branch of government — but rather keeping matters in confidence. And under the “duty of confidentiality” imposed with regard to publicly-traded companies, many have been prosecuted for sharing information as well as trading on it.

A so-called “tipper,” wrote attorney Nelson Ebaugh in the Texas Journal of Business Law, “is exposed to insider trading liability for simply communicating material, nonpublic information even if he did not personally use the information to trade in the company’s securities.” Ebaugh added that courts are split on whether a “personal benefit” is even required for guilt.

Ebaugh and other experts have argued that insider trading rules have been applied so broadly to such “tippers” of corporate information that they inhibit disclosure about corporate wrongdoing. If these rules were applied to information about upcoming congressional action, it would have serious, if not more severe, effects in muzzling whistleblowers.

In addition to the e-mail to activists from the beginning of this article, conference calls and off-the-record meetings with ideological activists, such as the famed “Wednesday meeting” created by Grover Norquist, could also be curtailed. In the corporate word, the Securities and Exchange Commission has cracked down on what it calls “selective disclosure” to analysts. As a result, under Regulation Full Disclosure, most public companies put information about conference calls on their web site and/or post the recorded call for all to hear.

Following this precedent, if the STOCK Act is passed, the SEC may require meetings and calls in which Congress members and staffers participate to be open to the public or not occur at all. The result would be less outflow of information from Congress and a less-informed public.

The exposes of Schweizer and others raise serious issues that about power and privilege need to be addressed. Sensible measures, such as prohibiting members and their spouses from participating in initial public offering (which is not in the STOCK Act) as well as more rapid disclosure of stock trades (which is), should be enacted. Unfortunately, the bulk of the STOCK Act bills currently before the House and Senate would muzzle much of the communication necessary for sunlight and reform.

As a Bloomberg News commentary notes, large numbers of people who are not poor are getting food stamps, due to perverse incentives that encourage states to deliberately classify people as eligible in order to draw federal money to their state.  People are eligible in some states even if they are not poor at all, but merely received an “informational brochure” for welfare, or a tiny amount of state money that the state deliberately gave them that they didn’t even need, in order to qualify them for food stamps:

As the article notes, food stamp rolls have risen by 29 million people in recent years:

[A] troubling reason for the increase is that state governments have found it easy to get their constituents federal money — that is, money mostly raised from current and future taxpayers in other states — by making more people eligible for food stamps. According to a mid-2010 report from the Government Accountability Office, 35 states have no limit on the amount of assets a food-stamp recipient can possess. More and more states — the count was 36 at the time of the report — are providing “categorical eligibility” for food stamps to anyone who receives welfare services. Merely getting an informational brochure from the Temporary Assistance for Needy Families program counts as receiving a service.

Another way that states and localities can get federal money flowing to them is by providing token amounts of assistance with home heating bills. Even a dollar of energy subsidies can make someone eligible for food stamps, or increase the benefit level for someone already on SNAP. Vermont, for example, sends $5 checks to public-housing residents, even though their subsidized rent already covers heating, to qualify them for food stamps. Liberal activists call this strategy for getting federal money “heat and eat.”

The Obama administration didn’t create these perverse incentives, but it did magnify them (in legislation such as the $800 billion stimulus package, which largely repealed the 1996 welfare-reform law, as Slate’s Mickey Kaus and the Heritage Foundation have noted). The Obama administration is busy cracking down on states that attempt to reduce food stamp fraud, as James Bovard noted in The Wall Street Journal. Food stamp fraud costs America billions of dollars. This is remarkable, since eligibility requirements are so lax that no fraud is even needed for many undeserving people to collect food stamps. As Bovard noted in the Journal, the Obama administration has encouraged states to abolish asset tests for food stamps, leaving even unemployed millionaires able to qualify: “Millionaires are now legally entitled to collect food stamps as long as they have little or no monthly income. Thirty-five states have abolished asset tests for most food-stamp recipients. These and similar ‘paperwork reduction’ reforms advocated by the United States Department of Agriculture (USDA) are turning the food-stamp program into a magnet for abuses and absurdities.” There are now a record 47 million people on food stamps.

As the Bloomberg article notes, some Republican lawmakers want able-bodied adult food stamp recipients “to abide by work requirements,” “but the Obama administration hasn’t been interested.”

If food stamp handouts were low in dollar value — just enough to avoid hunger — middle-class people who don’t need them wouldn’t find it worthwhile to apply for them. But food stamps are not stingy, which is why growing numbers of people who are in no danger of ever going hungry have applied for them, and now receive them. Recently, “The average food stamp benefit was $133.80 per person” — which is more than I spent on food as a bachelor — “and $283.65 per household”  — which is more than my family typically spends on food in a month.

Earlier, I wrote about how it is not difficult to live on a food stamps budget. The Washington Post ran a story in its health section about how various people, such as the chef for a law firm and a natural foods store owner, were able to live quite well on a food stamps budget. For example, Rick Hindle, executive chef for the Skadden, Arps law firm “showed recently that you don’t have to spend hours in the kitchen to prepare healthful food for $1 or less per meal.”

To divert attention from this fact, liberal groups have created something called the “Food Stamp Challenge.” This “challenge” is a misleading PR exercise where a wealthy liberal like a high-paid bureaucrat or congressman who is used to spending huge amounts on food, lives for a week on a food stamp budget and stupidly buys junk food (or nothing but bread or pasta) rather than cheaper nutritious foods (like potatoes) in order to falsely make it seem like it is hard to eat on a food stamps budget (even though, as Warren Kozak notes in the Wall Street Journal, hunger is virtually non-existent in America). The only thing this bogus “food stamp challenge” actually shows is that privileged people who eat out in restaurants all the time are often unaware of what nutritious foods are cheapest; or they stupidly think that cheap  nutritious foods, like baked potatoes, are unhealthy, or not as good as white bread or pasta, even though baked potatoes, unlike white bread or pasta, have all 8 essential amino acids, and lots of vitamins and minerals, like 40 percent of your day’s supply of vitamin C, potassium, and B vitamins. This ignorance about food is shared by the Obama administration:  So great is its nutritional ignorance that it banned white potatoes from the WIC program, even as it permitted food stamps to be used for sugary sodas, and used tax dollars to subsidize junk food and fatty and sugary foods.

Meanwhile, the cost of the food stamp program has exploded.  As Bovard pointed out, the costs of the food stamp program have more than doubled since 2007 to $77 billion from $33 billion even as fraud has soared:

Wisconsin food-stamp recipients routinely sell their benefit cards on Facebook . . . ‘nearly 2,000 recipients claimed they lost their card six or more times in 2010 and requested replacements.’ USDA rules require that lost cards be speedily replaced . . . Thirty percent of the inmates in the Polk County, Iowa, jail were collecting food stamps that were being sent to their non-jail mailing addresses in 2009 . . . The Obama administration is responding by cracking down on state governments’ antifraud measures. The administration is seeking to compel California, New York and Texas to cease requiring food-stamp applicants to provide finger images. The food-stamp poster boy of 2011 is 59-year-old Leroy Fick. After Mr. Fick won a $2 million lottery jackpot, the Michigan Department of Human Services ruled he could continue receiving food stamps . . . ‘the winnings were considered ‘assets’ [rather than income] and aren’t counted in determining food stamp eligibility.’

In his State of the Union address, President Obama decried skyrocketing college tuition, attempting to take advantage of public anger over the steadily-worsening college tuition bubble. This was ironic, since his own administration has done much to foster rising college tuitions.

For example, it imposed the 90-10 rule, which forced low-cost educational institutions to raise their tuition to comply with a new federal regulation requiring them to charge enough over federal financial aid so that at least 10 percent of education costs don’t come from financial aid. For example, Corinthian College had diploma programs in health care and other fields that can be completed in a year or less. Until 2011, many of those programs had a total cost of about $15,000, which meant that federal grants and loans could cover nearly 100 percent of their cost. In response to the Education Department’s rule, the college raised tuition to comply with the 90/10 rule. The net result of the Obama Education Department’s rule was to “create a perverse, no-win ‘Catch-22’ that could prevent low-income students from attending college,” by encouraging such colleges to raise tuition to outstrip rising financial aid by more than ten percent. Administration allies like Senator Richard Durbin (D-Ill.) are now pushing a new rule, the 85-15 rule, that would require low-cost institutions to further raise tuition so that at least 15 percent of education costs aren’t covered by financial aid. (With this kind of mentality, it is no wonder that college graduation rates have actually “fallen somewhat since the 1970s” “among poor and working-class students.”)

As George Leef of the Pope Center for Higher Education Policy notes, “Obama’s talk about getting tough with colleges over tuition is pure political blather. One reason costs keep going up, thus necessitating tuition increases, is that schools keep adding administrative positions like Chief Diversity Officer. College spending is responsible for the jobs of a great many of Obama’s most zealous supporters. It’s easy to demagogue college costs, but this is nothing more than theatrics.” There are now more college administrators than faculty at California State University, and colleges, partly to comply with bureaucratic mandates, are creating new positions for liberal bureaucrats even as they raise student tuition to record levels:

The University of California at San Diego, for example, is creating a new full-time “vice chancellor for equity, diversity, and inclusion.” This position would augment UC San Diego’s already massive diversity apparatus, which includes the Chancellor’s Diversity Office, the associate vice chancellor for faculty equity, the assistant vice chancellor for diversity, the faculty equity advisors, the graduate diversity coordinators, the staff diversity liaison, the undergraduate student diversity liaison, the graduate student diversity liaison, the chief diversity officer, the director of development for diversity initiatives, the Office of Academic Diversity and Equal Opportunity, the Committee on Gender Identity and Sexual Orientation Issues, the Committee on the Status of Women, the Campus Council on Climate, Culture and Inclusion, the Diversity Council, and the directors of the Cross-Cultural Center, the Lesbian Gay Bisexual Transgender Resource Center, and the Women’s Center.

Other colleges raised spending on administrators as much as 600 percent in recent years.

As a result of increasing federal financial aid, colleges have been able to increase tuition faster than inflation, year after year, secure in the knowledge that they can rake in ever-rising government subsidies and skyrocketing tuition. College students are learning less and less even as higher education spending explodes.

Students have little choice but to pay inflated tuition bills into the education industrial-complex, as they vie with each other for scarce entry-level jobs by acquiring ever more degrees that show their ability to jump through hoops and master difficult (but largely useless) skills. The net result is an educational arms race in which people compete to see who can acquire the most paper credentials. There are now 8,000 waiters and 5,057 janitors with PhD’s or other advanced degrees, and millions of Americans have useless college degrees.

Obama’s State of the Union address also contained false claims about outsourcing and corporate taxes, as well as a misguided proposal that could undermine discipline and order in inner-city schools that have high drop-out rates, and another proposal that could shrink Americans’ 401(k)s and increase the cost of mortgage financing in the future.

The Education Department recently made college officials’ lives more difficult by trying to alter the burden of proof long used by many colleges in sexual harassment cases (despite the lack of any legal basis for doing so), and by seeking to discourage procedures such as cross-examination that safeguard accuracy and due process in campus disciplinary proceedings.

There has been much waxing in the last few days about how unfair it supposedly is that Mitt Romney was taxed at around 15 percent. And that Warren Buffett supposedly pays a lower tax rate than his beleaguered secretary does.

Welcome to CEI’s coverage of this year’s State of the Union address. Live coverage will begin at about 8:30 EST, so please check in then. If there’s an issue you’d like us to pay special attention to, please let us know in the comments.

Some things should not be up for a vote. Among those things is whether consenting adults should be required to use condoms when they have sex. For many years, the AIDS Healthcare Foundation (AHF) has called for a mandate on condoms in adult films and recently collected enough signatures to add their legislation to the next city ballot. And last week the LA city council voted in favor of denying permits to adult films that do not abide by the condom requirement. While these efforts may be well-intentioned, a condom mandate violates actors’ rights to free speech, association, and choice—and likely will be counterproductive.

Current national workplace safety standards, as stipulated by the Occupational Safety and Health Administration (OSHA), require employers to provide personal protective equipment (PPE) for workers in hazardous situations—for example, hard hats for construction workers. Notably, OSHA laws provide exemptions for workers who refuse to use the PPE on religious grounds. Unlike many other OSHA protection rules, this condom mandate does not allow for any flexibility in the type of protection workers may use: it requires some form of barrier protection and would not allow actors to voluntarily not use the protection (though I doubt any actor would seek a religious exemption). While sexually transmitted infection is certainly a risk on adult film sets, a condom mandate is a one-size-fits-all solution that certainly doesn’t “fit all”.

As many in and out of adult film industry have noted, the mandate prevents actors and filmmakers from expressing themselves as they wish—a clear violation of the First Amendment. While “obscene” speech is not guaranteed the same constitutional protection as other types of expression, the adult industry as a whole cannot be lumped into the obscenity category. The “Miller Test,” which is used to determine obscenity based on the 1973 Supreme Court case, Miller v California, would have to be applied to every film before the state of California would have the right to restrict their expression.

Tying the issuance of film permits for adult films to a condom mandate would mean that for every film LA wanted to stop, the state would need to prove that “the average person, applying contemporary community standards,” would find that the work, taken as a whole, “appeals to the prurient interest,” and “depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,” and “lacks serious literary, artistic, political or scientific value.”  It’s unlikely that the city of Los Angeles would spend the time and money investigating the artistic merits of each film and less likely that producers will be willing to spend the money to fight a court battle over each movie.

Producers of adult films, like employers in other industries, are not obligated to hire workers who refuse to do the tasks they ask for. Condom mandate proponents argue that this has resulted in actors being pressured into not using condoms. Yet, the mandate assumes that if producers had no problem with it all actors would choose to utilize barrier protection. Statements from many adult film actors show that this is not the case. As Justine Joli, an adult film actress specializing in all-female films noted, the mandate would likely bring an end to her genre, rendering the films “unsexy” and unmarketable.

Actors have also stated their belief that condom usage on set is counterproductive in preventing disease transmission. As director Ernest Greene commented on his blog, condoms could increase the chances of transmitting sexually transmitted infections (STIs). “A single scene amounts to over two hours of intercourse…condoms frequently tear or unravel and the degree of latex abrasion on the internal membranes of female performers’ vaginas lead to micro-abrasions that make them more vulnerable to all kinds of STIs,” he states.

Furthermore, the condom mandate would likely do away with an industry safety measure that has proven effective in reducing STI transmission. The measure seeks to have adult film permits depend on whether producers comply with California employee safety standards. This would change actors’ status to employee from independent contractor. Such a change worries actress Ela Darling, who believes the change would end industry self-imposed STD testing procedures, which would then be considered “workplace discrimination,” as the Americans with Disability Act (ADA) generally prohibits employers from requiring HIV tests prior to making a job offer.

The AIDS Healthcare Foundation’s campaign, however well-intentioned, has not improved the safety of adult film actors. If anything, it has backfired. One of the organization’s most recent “victories” was in forcing the closure of the Adult Industry Medical Health Care Foundation, a health clinic that would conduct testing and maintain a database of adult actors’ health status. While it didn’t stop every case, it significantly reduced STI transmission in the industry more than any regulation ever could.

If the measure passes or the city of LA chooses to enforce a condom mandate on its own, the increased cost and burden on production will certainly drive many producers to other states, while others will simply produce “amateur” films, which have fewer health and safety procedures than the current industry.

This effort to force condoms onto the adult film industry is waste of time and money. Worst of all, it hurts the people it supposedly aims to protect and threatens to chip away at our most fundamental rights, the freedom of expression and individual choice.

Photo Credit: Medical Daily, Mario Anzuoni

With the State of the Union coming up, I’ve been wondering whether, or how, President Obama might address the Plan B fiasco I blogged about here. After all, Obama has addressed science issues in his previous State of the Union addresses. And, in his inaugural address, he pledged to “restore science to its rightful place.” More importantly, he entered office promising the most transparent administration in history and vowing that, unlike previous administrations, he and his appointees would “not suppress or alter scientific or technological findings and conclusions” for political gain. But those promises were forgotten or ignored as soon as they were made.

From Obama’s March 2009 decision to fund only politically favorable types of human embryo research to his administration’s Plan B birth control decision last month, he has shown that he is every bit as willing to politicize science when it’s expedient as earlier presidents have been. The highly politicized December 7 decision by Secretary of Health and Human Services Kathleen Sebelius to over-ride a decision by Food and Drug Administration scientists to approve the Plan B emergency contraceptive for over-the-counter use has gotten plenty of attention. But for science policy experts, that case of politicized science came as no surprise given the administration’s willingness to subvert the advice of scientific experts on any number of critical issues.

Just to give a couple of examples: White House Energy Czar Carol Browner improperly altered a scientific report on oil spill remediation in order to support a ban on off-shore drilling. Then there was the administration’s rejection of Yucca Mountain as a nuclear waste depository as Nuclear Regulatory Commission scientists accused senior administration officials of politicizing their work. And there are scores of other cases — ranging from the significant to the petty — in which the Obama Administration has chosen to subvert scientific integrity for political gain.

According to a July 2010 investigation by the Los Angeles Times, one organization that represents scientific whistleblowers has been “getting complaints from government scientists now at the same rate [it was] during the Bush administration.” And because the Obama administration routinely ignores public disclosure requirements and Freedom Of Information Act requests, who knows how many more cases of politicization have not yet been revealed?

I would rather like to see the President explain how to square this behavior with his public boasting. So, here’s a challenge. Obama should take the opportunity at this State of the Union Address to own up to his presidency’s failings on scientific integrity, and re-commit his administration to reject the politicization of science. And this time, let us all hope he means it.

Senate Majority Whip Dick Durbin (D-Ill.) wants banks and credit unions to know that he’s all about transparency and “honesty” in consumer fees.

In his recent letter hectoring the Illinois Bankers Association and the Illinois Credit Union League, Durbin proclaimed that  ”consumers in Illinois and across America have made clear their desire for honest information about banking fees.” He urged the banks to “be transparent about fees” by adopting a checking account disclosure form he favors.

Yet when it comes to disclosing to consumers what’s causing these bank fees to rise, Durbin has told these same institutions to just shut up. That’s because honesty and transparency would require that banks and credit unions disclose to consumers the Durbin Amendment to the Dodd-Frank financial “reform.” That measure by Durbin puts price controls on the interchange fees banks can charge merchants for debit card purchases, shifting the costs of debit card processing to consumers.

The contrast is evident in two of Durbin’s interactions with financial firm JPMorgan Chase. Late last week Durbin and many others lauded the firm’s Chase bank unit for adopting a simplified checking account fee disclosure form based on a model developed by the Pew Charitable Trusts’ “Safe Checking” project. The new form contains an upfront three-page schedule of different types of fees. Though there are still lengthy disclosures of terms and conditions — which are effectively mandated by longstanding regulations from laws like the Truth in Lending Act and from excessive litigation — these will now be embedded in Internet links on online copies of the form, a Chase spokesman tells Reuters.

Durbin praised the new forms, saying that “Chase’s decision to voluntarily adopt a simple and clear fee disclosure form will help consumers and shows that transparency and fairness are a good business plan.”

But Durbin was singing a different tune about transparency earlier this year when JPMorgan Chase CEO Jamie Dimon  disclosed to the company’s shareholders and customers the reason why so many new checking account fees were proliferating at Chase and other banks. In his letter to shareholders, Dimon wrote: “The harm will fall largely on consumers; banks will be forced to lose money on debit interchange transactions and likely will compensate by increasing fees in some way for deposit customers. … The Durbin Amendment undoes a generation of hard work to decrease the cost and increase the efficiencies of banking for ordinary Americans and to reduce the ranks of the unbanked.”

“Just shut up!” was essentially the reaction of the senator who now fashions himself as the champion of “honesty” and “transparency” in consumer finance. “I recognize that Chase will likely see decreased revenue from interchange reform, but I urge you to keep some perspective.” Durbin wrote in a scathing letter to Dimon in April. “There is no need for you to threaten your customers with higher fees when you and your bank are already making money hand-over-fist. And there is no need to make such threats in response to reform that simply tries to spare consumers from bearing the cost of interchange fees.”

But consumers have not been spared anything as the Durbin Amendment has shifted $12 billion hand-over-fist to some of the nation’s wealthiest retailers, such as Walmart, Home Depot and Walgreens — firms that all lobbied for the price controls to fatten their own pocketbooks. Durbin even invoked lobbying from Walgreens — based in Deerfield, Ill. — as a reason he introduced the Durbin Amendment, relating on the Senate floor that CEO of the nation’s largest pharmacy chain told him that interchange fees were the firm’s fourth largest cost.

Left undisclosed by Durbin is why he apparently believes that retailer profits — and Walgreens earns about $2 billion a year — must be protected by making banks and credit unions charge retailers debit card fees that are below the cost of processing. As implemented by the Federal Reserve, a retailer can never be charged more than 21 cents per transaction, with 5 cents added on in some cases for the costs of fighting fraud. Before, interchange would typically run around 1 percent of the purchase price, correlating to the higher risks of fraud or overdraft that come with a large purchase.

These  price controls mean that card issuers cannot even recover basic costs from the fees they charge merchants. According to a comment sent to the Federal Reserve by associations representing banks and credit unions of all sizes, the average variable cost — not even including fixed costs such as computer equipment — of processing debit cards is 27 cents per transaction. So at the very least, card issuers lose one penny per transaction from the price controls on what they can charge Walmart, Home Depot, and Walgreens.

Since the costs of processing debit cards,  including the upkeep of sophisticated technology and combating fraud and identity theft, do not go away, it was always inevitable that they would be shifted to consumers who use the cards. In setting the price controls, the Fed almost invited banks and credit unions to engage in this cost shifting, “helpfully” pointing out that “the interchange fee standard would not limit the ability of an issuer to earn revenue from other sources, such as charging fees to cardholders.”

And so they did. True, Bank of America and other banks did withdraw the monthly $5 debit card fee, in part because politicians like Durbin and President Obama worried that these fees were too transparent and consumers would (rightly) blame government policies they enacted. That’s why Obama sternly lectured at a press conference against “using financial regulation as an excuse to charge consumers more.”

But fees will rise even if politicians intimidate more banks and credit unions into silence about the cause.  Even before BofA announced the debit fee in September, a Bankrate.com survey found that in the year since passage of Dodd-Frank and the Durbin Amendment, just 45 percent of non-interest bank checking accounts were free, down 76 percent from two years earlier, and that the average monthly fee for a non-interest account was $4.37, up 75 percent from a year earlier.

When backed into a corner on bank fees, Durbin and the retailers lobbying for the price controls have implied that any consumer costs would be offset by retailer savings being passed on through lower prices for customers — a big-government “trickle down” theory. Yet since the price controls went into effect in October, there has been no evidence of consumers reaping any “Durbin discounts” from the retailers’ billion-dollar windfall. “Companies are exploring it” was the only answer given by National Retail Federation General Counsel Mallory Duncan when asked by Politico where the consumer savings were.

And a new report by the Electronic Payments Coalition finds no downward movement in retail prices since Durbin was enacted, and cites a survey showing 97 percent of retail executives saying they would not pass on the savings to consumers or were undecided. For more on this research, as well as a look at specific promises of consumer savings made by Durbin Amendment supporters, go to WheresMyDebitDiscount.com

Before the Durbin Amendment went into effect, Chase CEO Dimon had warned, “If you’re a restaurant and you can’t charge for the soda, you’re going to charge more for the burger.” It turned out Dimon underestimated the negative consequences of Durbin’s provision in Dodd-Frank. Consumers are paying way more for their burgers, without seeing any discounts on soda.

JPMorgan Chase should be heralded for its transparency with consumers both in its new up-front fee disclosure and its prescient warnings about the Durbin Amendment’s effects. Politicians like Durbin should follow the lead of Chase and other private-sector firms in providing “honest information” on consumer finance.

So that consumers can “bill” the parties responsible for their new checking fees, CEI has created the “Durbin dollar,” downloadable here.