Reason Magazine - Staff > Jacob Sullum

Thomas O'Brien's MySpace Hoax

jsullum@reason.com (Jacob Sullum) — Wed, 26 Nov 2008 07:00:00 EST

A year ago, Jack Banas, prosecuting attorney for St. Charles County, Missouri, said he would not bring charges against Lori Drew for her role in a MySpace prank that apparently provoked a 13-year-old girl to kill herself. The reason was simple: Although Drew's actions were cruel, childish, and irresponsible, she had not broken any laws.

"We live in this country by the rule of law," Banas warned would-be vigilantes. Thomas O'Brien, the U.S. attorney in Los Angeles, should have taken those words to heart. Instead this grandstanding prosecutor twisted the law to punish an unpopular woman and in the process threatened to expose millions of innocent Americans to criminal liability.

This week a federal jury in L.A. is deliberating whether to convict Drew, 49, of violating a law aimed at computer hackers. Yet Drew is not a hacker, and the charges against her had very little to do with the behavior for which she was widely reviled.

It all began with the estrangement of two friends: Drew's daughter, Sarah, and Megan Meier, who lived down the street in O'Fallon, Missouri. In September 2006, according to testimony at Drew's trial, she began to worry that Megan was spreading nasty rumors about Sarah. Ashley Grills, an 18-year-old who worked for Drew's home-based advertising business, proposed a ruse through which they could learn what Megan was saying about Sarah: Grills would pose as a cute 16-year-old boy on MySpace, befriend Megan, and gain her confidence.

Megan fell for the flirtatious, fictitious boy, Josh Evans, who eventually turned on her, saying he did not want to be her friend anymore. Grills, who testified against Drew in exchange for immunity, said she was trying to end a prank that had gone too far. In her last message as Josh Evans, she told Megan, "The world would be a better place without you." Grills said Megan, who had a history of depression and suicidal thoughts, replied, "You are the kind of boy a girl would kill herself over." A half-hour later, Megan used a belt to hang herself in her bedroom closet.

Although O'Brien clearly prosecuted Drew because he wanted to blame her for Megan's suicide, his case officially made MySpace the victim. According to O'Brien, Drew violated the Computer Fraud and Abuse Act of 1986 by intentionally accessing MySpace's servers "without authorization." He claimed jurisdiction because the servers are located in Los Angeles County. The four charges he brought, conspiracy and three counts of unauthorized access, carry a total penalty of 20 years in prison.

But the charges did not fit the facts of the case. O'Brien claimed Drew's access to MySpace's computers was unauthorized because she violated the social networking site's terms of service (TOS) by providing false information and harassing another user. But he never presented any evidence that Drew saw MySpace's TOS, let alone agreed to them.

Furthermore, O'Brien's interpretation of the law would make criminals of us all. Shortly after the indictment, Orin Kerr, a George Washington University law professor who later volunteered as a pro bono attorney for Drew, noted, "Since everyone who uses computers violates dozens of different TOS every day, the theory would make everyone who uses computers a felon."

Even if breaking rules she never read amounted to unauthorized access, to fit the terms of the indictment Drew would have had to obtain information "in furtherance of" a "tortious act": the intentional infliction of emotional distress. But by the prosecution's own account, although Drew initially wanted to obtain information about rumors Megan supposedly was spreading, the emotional distress was inflicted by the insults of the make-believe boy Josh Evans, which did not hinge on any secrets learned via the fake MySpace account.

"Lori Drew decided to humiliate a child," O'Brien said in his closing argument. But humiliating a child, though reprehensible, is not a crime. By pretending otherwise, O'Brien sacrificed the rule of law to popular passions and thereby endangered anyone who uses the Internet without an attorney by his side.

Financial Reversals

jsullum@reason.com (Jacob Sullum) — Wed, 19 Nov 2008 07:00:00 EST

Remember when Treasury Secretary Henry Paulson warned us that the economy was about to collapse unless Congress immediately authorized him to spend $700 billion on "troubled assets" held by banks? Remember when he said banks would never lend again as long as they remained saddled with these bad investments?

You do remember? So it's not just me. I was beginning to think I had dreamed the whole thing, because a month and a half later the Treasury Department has yet to buy any troubled assets, and last week Paulson said it had no plans to do so. Instead the department is using its $700 billion to buy the banks themselves, which I could almost swear Paulson said was a bad idea a couple of months ago. Evidently the Bush administration is still calling the effort the Troubled Asset Relief Program for the sake of the acronym, which suggests a cover for something unsightly or embarrassing.

The TARP turnaround is not the only bewildering reversal of economic wisdom we've seen in recent months. Here are some of the more memorable:

Loose credit is bad, and so is tight credit. Loose credit encouraged people to buy houses they couldn't afford, which raised defaults and foreclosures, which undermined the value of mortgage-related assets, which made financial institutions that held such assets cut back on lending. The solution, according to the Bush administration: looser credit.

Moral hazard is bad, except when it's necessary. Government guarantees, such as the implicit commitment to bail out the congressionally created mortgage companies Fannie Mae and Freddie Mac, encouraged lenders and investors to take bigger risks than they otherwise would have, contributing to the collapse of confidence in financial institutions and the credit crunch. In response, the Bush administration has offered more bailouts—of banks, insurers, and homeowners, among others—and raised the limit on deposit insurance by 150 percent.

Rising prices are bad, and so are falling prices. As recently as mid-August, we were worried about runaway inflation. In an article headlined "Higher Costs Are Taking a Toll on Business," The New York Times reported that "rising prices have seeped into much of the economy, led by higher costs for food and energy." At the end of last month, under the headline "Fear of Deflation Lurks As Global Demand Drops," the Times warned that reduced consumer demand could lead to "persistently falling prices," "suffocating fresh investment and worsening joblessness for months or even years."

Rising home prices are bad, and so are falling home prices. As home prices rose through 2006, newspapers across the country ran stories bemoaning the lack of "affordable housing." Now that prices are falling, newspapers across the country are running stories about the disaster of negative equity, the loss of what used to be a reliable investment, and the financial havoc caused by the assumption that home values would keep climbing forever.

Rising oil prices are bad, and so are falling oil prices. Last summer, with crude oil going for more than $140 a barrel and gasoline over $4 a gallon, politicians were falling all over each other to do something about rising oil prices, which made food and a wide range of other products more expensive. Now oil is around $60 a barrel, but instead of celebrating we're supposed to worry, because the price reflects fears of a prolonged worldwide recession.

Consumer spending is bad, except when it's good. Until recently, economists bemoaned the nation's low saving rate, warning that Americans were living beyond their means, enjoying a spending spree subsidized by foreign capital. Now the problem is that Americans are spending too little, saving or paying down debt instead of buying stuff they don't need and thereby stimulating the economy.

Feeling confused, anxious, uncertain? Well, cut it out. That sort of thing is bad for the economy. If you want to shorten the recession, you'd better be confident and optimistic. Just don't overdo it.

Obama on Drugs

jsullum@reason.com (Jacob Sullum) — Wed, 12 Nov 2008 07:00:00 EST

Last week voters in Massachusetts approved a ballot initiative that eliminates criminal penalties for possessing up to an ounce of marijuana, replacing them with a $100 civil fine. Michigan, meanwhile, became the 13th state to allow the medical use of cannabis.

As Bruce Mirken of the Marijuana Policy Project noted, the percentage of voters approving those initiatives (65 and 63, respectively) exceeded Barack Obama's share of the vote in each state. Furthermore, the results in Massachusetts and Michigan seem to reflect national opinion. For years polls have indicated that a large majority of Americans think that people should not go to jail for smoking pot and that patients who can benefit from marijuana should be able to obtain it legally.

Yet President-elect Barack Obama has retreated from his support for marijuana decriminalization, and his position on medical marijuana remains ambiguous. His reticence on these issues suggests he may disappoint those who hope the Obama administration will move drug policy in a less punitive, more tolerant direction.

One cause for that hope: Obama has been more candid about his own youthful drug use than any president in U.S. history. Although he portrays his pot smoking and cocaine snorting as behavior he regrets, it would be hard for him to justify harsh treatment of drug users when he himself escaped punishment for the same actions and clearly is better off than he would have been had he been arrested.

Given his experiences, it's not surprising that during his 2004 Senate campaign Obama told students at Northwestern University, "I think we need to...decriminalize our marijuana laws." But this year he backed away from that position. His campaign claimed he really meant "we are sending far too many first-time, nonviolent drug users to prison for very long periods of time," and "we should rethink those laws."

It's one thing to say decriminalization should be limited to simple possession of small quantities, or to say that it amounts to eliminating the possibility of arrest and jail, as opposed to repealing all penalties. It's another to say decriminalization means sending a low-level drug dealer to prison for one year instead of five.

That certainly would be an improvement, and Obama should get credit for his willingness to go that far. But it defies belief to claim this was the sort of "decriminalization" he had in mind when he addressed those college students four years ago (when he also described the war on drugs as "an utter failure").

Obama's position on medical marijuana is clearer but still fuzzy around the edges. He has promised to stop the Drug Enforcement Administration's raids on patients and the growers who supply them in states that allow medical use of marijuana. At the same time, he has said the Food and Drug Administration should decide whether marijuana qualifies as a medicine, which may mean he's open to reclassifying the drug so it can be prescribed by doctors throughout the country but may also imply a federal veto over state policy in this area.

The main danger with Obama is that his history of drug use, instead of making him more open to reform, will make him anxious to show he's tough on drugs. Something like that seems to have happened with Bill Clinton, who bragged about ever-escalating drug war budgets and threatened doctors who recommended marijuana to their patients with jail, trampling the First Amendment in his rush to prove his anti-drug bona fides.

"We are going to continue to find ways within the administration to fight legalization and the notion of legalization," a key Clinton drug policy adviser said in defense of this unconstitutional policy, which ultimately was overturned by a federal appeals court. "We're against the message that [California's medical marijuana initiative] sends to children."

Who was this zealous drug warrior, eager to forcibly suppress "the notion of legalization" in the name of protecting children? Rahm Emanuel, Obama's chief of staff.

Green Herring

jsullum@reason.com (Jacob Sullum) — Wed, 05 Nov 2008 07:00:00 EST

The Apollo Alliance, a coalition of environmentalists and labor unions, wants the federal government to spend $500 billion over 10 years to "build America's 21st century clean energy economy" and thereby "create more than five million high quality green-collar jobs." Barack Obama says he can accomplish the same goal for only $150 billion, which gives you a sense of how reliable these projections are.

More fundamentally, both the Apollo Alliance and Obama, who has liberally borrowed from its ideas, mistakenly treat the manpower required to reduce greenhouse gas emissions as a measure of success, when it should be viewed as a cost to be minimized. Obama's "green jobs" rhetoric is part of his strategy to conceal the enormous expense associated with his plan to "transform our entire economy" and "build a new economy that is powered by clean and secure energy."

Obama wants to "implement an economy-wide cap-and-trade program to reduce greenhouse gas emissions 80 percent by 2050." That is even more ambitious than the goal of a cap-and-trade bill that the Department of Energy estimates would cost between $444 billion and $1.3 trillion in reduced economic growth over two decades.

Depending on how bad the effects of global warming are expected to be and how effective Obama's plan is at ameliorating them, such a sacrifice could be justified. But Obama has not made that case. Instead he has said, in essence: Sacrifice? What sacrifice?

The basic problem addressed by a cap-and-trade system, which uses tradable permits to charge companies for the greenhouse gases they generate, is that people contribute to climate change without bearing the cost of their behavior. Like a carbon tax, which achieves the same result more explicitly, a cap-and-trade system works only if it makes energy use (and the emissions associated with it) more expensive.

What are we to make, then, of Obama's promise to cushion the blow of rising gasoline prices and home heating bills by providing "emergency energy rebates"? That is exactly the opposite of what the government should do if it wants to encourage energy conservation and make alternative energy sources more competitive. "Under my plan of a cap-and-trade system," Obama admitted during an unusually candid interview with the San Francisco Chronicle in January, "electricity rates would necessarily skyrocket."

If Obama's cap-and-trade plan works as advertised, it will create incentives for businesses to achieve greenhouse gas reductions as efficiently as possible. He nevertheless cannot resist centrally planning the response—for example, by arbitrarily requiring that 25 percent of the nation's electricity come from renewable resources by 2025, instead of letting the market decide what mix of conservation and alternative energy makes the most sense.

A recent RAND Corporation study concludes that, without "dramatic progress in renewable energy technology," reaching this "25X'25" goal will mean "significantly increasing consumer costs." And the study did not consider "the transition and adjustment costs associated with initiating such a significant shift from fossil fuels to renewable energy technologies."

Those costs involve not just the loss of jobs in carbon-intense parts of the economy but the loss of jobs that would be created if the resources used to mitigate global warming were available for other purposes. Obama and other "clean energy" boosters do not take those losses into account, acting as if every "green job" is a net gain to the economy.

The Apollo Alliance goes so far as to brag that "renewable energy creates more jobs than coal," as if this were a selling point, as opposed to a sign of lower efficiency. It enthusiastically likens the creation of a "clean energy economy" to "the World War II industrial mobilization."

The analogy is more telling than the alliance realizes: Like a war, the effort to dramatically reduce greenhouse gas emissions may be justified to prevent a more costly outcome. But the economic activity it generates has to be weighed against the destruction it causes, something the president-elect so far has shown no inclination to do.

The Schnorrer State

jsullum@reason.com (Jacob Sullum) — Fri, 14 Nov 2008 12:00:00 EST

A few years ago, in the wake of Hurricane Katrina, Sen. Tom Coburn of Oklahoma suggested taking money earmarked for a notoriously extravagant "bridge to nowhere" in Alaska and using it for reconstruction in Louisiana. Sen. Ted Stevens of Alaska, a fellow Republican, angrily declared, "This is the first time I have seen any attempt by any senator to treat my state...differently from any other state."

In a tirade that included threats to behave like "a wounded bull on the floor of the Senate," to "be taken out of here on a stretcher," and to "resign from this body," Stevens' insistence that all he wanted was equal treatment for Alaska may have been the least believable thing he said. During the last four decades, no one has done more than Stevens to ensure that Alaska is treated unequally, receiving far more in federal spending than it pays in taxes.

The octogenarian senator's gift for grabbing dollars in the zero-sum game of congressional appropriations helps explain his easy victory in last summer's Republican primary, despite his indictment less than a month before on federal charges of hiding corporate gifts. Yet the "track record of delivering results for Alaskans" he brags about is more scandalous than the crimes he denies.

Federal prosecutors accused Stevens of violating the Ethics in Government Act by failing to report more than $250,000 in gifts from VECO Corp., a now-defunct oil services and construction company whose CEO has admitted bribing state officials. Stevens' trial was expected to conclude a few weeks before the November 4 general election.

Although the government said Stevens "could and did use his official position and his office on behalf of VECO," it did not charge him with accepting bribes, apparently because it did not have enough evidence of a quid pro quo. But if Stevens did help VECO with grants or contracts, it was of a piece with the "results" he has delivered for his constituents since he joined the Senate in 1968. And the amount of taxpayer money involved was a drop in the ocean compared to the billions of dollars he has directed Alaska's way.

From 2004 to 2008, Taxpayers for Common Sense reports, Stevens had a hand in 891 Alaska-benefiting earmarks worth $3.2 billion. That works out to about $4,800 per Alaskan, 18 times the national average. And earmarks represent just a fraction of federal spending in Alaska, which totaled $9 billion in 2006 alone.

According to the Tax Foundation, Alaska ranked first in federal spending per capita in 18 of the 25 years from 1981 through 2005. In 2005 Alaskans received $1.84 for every dollar they sent to Washington in taxes. Stevens has played such an important role in this northward redistribution of income that Alaskans call federal spending "Stevens money."

Alaska continues to receive these subsidies even though its government, which collects neither sales nor income tax from state residents, is flush with oil revenue and running budget surpluses. Republican vice presidential candidate Sarah Palin, portrayed by allies as a foe of old-school, money-grubbing Alaska Republicans like Stevens, has been happy to rake in the federal dollars as governor (and as mayor of Wasilla).

Although Alaskans are the biggest beneficiaries of congressional largess, Stevens, who lobbied for statehood in the 1950s, still sees them as victims of a high-handed federal government. During his 2005 tantrum over Tom Coburn's proposal to move transportation money from Alaska to hurricane-stricken Louisiana (a proposal the Senate overwhelmingly rejected), Stevens repeatedly invoked his state's "sovereign" and "equal" status, seemingly worried that his colleagues were disrespecting Alaska behind his back. His attitude was reminiscent of a beggar who not only demands a handout but insists that everyone pretend the money was his all along.

Auditing the Auditors

jsullum@reason.com (Jacob Sullum) — Sat, 01 Nov 2008 15:04:00 EDT

An August report from the Department of Health and Human Services’ inspector general casts doubt on recent claims by Medicare officials that they are finally cracking down on fraud. The report found that auditors hired by the Centers for Medicare & Medicaid Services (CMS) grossly underestimated the level of fraud in claims for medical equipment and supplies, mainly because officials told them not to look too hard.

The auditors found an error rate of 7.5 percent, amounting to $700 million in improper payments. The inspector general’s auditors, by contrast, found an error rate of nearly 29 percent, about four times as high. The primary cause of the discrepancy was that the first team ofauditors relied mainly on documentation from suppliers, while the second team also looked at medical records and interviewed patients to confirm that the products were medically necessary, had been delivered, andwere being used.

According to the inspector general’s report, official CMS guidelines tell auditors “to review beneficiaries’ medical records, including pertinent records from physicians, to support”suppliers’ claims. But “CMS orally instructed [the auditors] to deviate from written policies by (1) making determinations based primarily on the limited medical records available from suppliers, (2) applying clinical inference when reviewing supplier medical records to reasonably infer that the [equipment] provided was medically necessary, and (3) not counting lack of proof of delivery as an error if that was the only issue with a claim.”

College Dry

jsullum@reason.com (Jacob Sullum) — Sat, 01 Nov 2008 22:25:00 EDT

In August more than 100 university presidents and chancellors called for “an informed and dispassionate public debate” about lowering the drinking age. Under the banner of the Amethyst Initiative, named for the semiprecious stone said to ward off drunkenness, the administrators argued that the current minimum age of 21 undermines respect for the law, prevents faculty members from teaching and modeling responsible drinking, discourages students from seeking help when they get into alcohol-related trouble, and encourages consumption in private, unsupervised settings where excess is more likely. “How many times must we relearn the lessons of Prohibition?” they asked.

Mothers Against Drunk Driving (MADD) replied by condemning the administrators for bringing up the subject. “Parents should think twice before sending their teens to these colleges or any others that have waved the white flag on underage and binge drinking policies,” declared MADD President Laura Dean-Mooney. The same press release quoted former Secretary of Health and Human Services Donna Shalala, who said “signing this initiative…endangers young lives,” and Mark Rosenker, acting director of the National Transportation Safety Board, who said it invited “a national tragedy” that would “jeopardize the lives of more teens.”

Far from surrendering to alcohol abuse, the Amethyst Initiative’s supporters complain that their efforts to prevent it are hamstrung by drinking laws that treat college students like children. They say a drinking age of 21 is unrealistic, since the vast majority of students drink anyway;unfair, because 18-to-20-year-olds are considered adults in virtually all other respects; and counterproductive, creating “a culture of dangerous, clandestine binge-drinking.”

After MADD blasted the initiative, which was organized by Middlebury College President Emeritus John McCardell, a few signatories withdrew their names. But several more signed up, and as of early October the total stood at 130.

You Choose, You Lose

jsullum@reason.com (Jacob Sullum) — Wed, 29 Oct 2008 07:00:00 EDT

I am not, technically speaking, an undecided voter. I plan to vote for the presidential candidate whose views about the proper role of the federal government are closest to mine: Bob Barr, the Libertarian nominee. But on the question of which major-party candidate would do less damage to the country as president—by which I mean expand government and restrict liberty less—I remain undecided.

As we saw during the first six years of the Bush administration, which featured profligate spending and unchecked executive power, the White House and Congress tend to enable each other's excesses when they are controlled by the same party. Since the Democrats are expected not only to retain but to strengthen their grip on the legislative branch, this consideration counts in favor of the Republican nominee.

Another important advantage of a McCain presidency is that he would be more likely than Barack Obama to appoint judges who see their job as interpreting and applying the Constitution, rather than rewriting it to fit their policy preferences. Since the two oldest members of the Supreme Court tend toward the latter approach, McCain could have a chance to make the Court more faithful to the original understanding of the Constitution.

While McCain would be better than Obama in this respect, it's not because he cares much about legal philosophy but because the people advising him would. Likewise on economic issues, where the people McCain consults seem less interventionist and more market-oriented than Obama's advisers. Then again, McCain has cast doubt on the superiority of his economic instincts by condemning "reckless conduct" and "unbridled greed" on Wall Street while backing taxpayer-funded bailouts of reckless and greedy lenders, investors, and borrowers.

If McCain's support for these expensive adventures in moral hazard undermines his claim to fiscal conservatism, so does his continued enthusiasm for another ill-advised, Treasury-draining initiative: the five-year-old war in Iraq, the price tag for which will exceed that of the Wall Street bailout, even without taking into account the thousands of American and Iraqi lives it has cost. Obama opposed the war from the start and is likely to bring it to a quicker close than McCain would.

Overthrowing Saddam Hussein is not the only part of President Bush's War on Terror that Obama has questioned. He has been appropriately critical of other policies Bush said were necessary to fight terrorism, including illegal, warrantless surveillance; indefinite, unreviewable detention; and "enhanced interrogation techniques" that are indistinguishable from torture. With the glaring exception of the Second Amendment, which Obama supports in theory but not in practice, he has a substantially stronger record on civil liberties than McCain does.

Obama is also superior on the related issue of executive power, rejecting Bush's contention that the president may do as he pleases in matters related to terrorism or national security. McCain initially sounded better than Bush on this question, agreeing that the president is obligated to obey the law and renouncing the use of signing statements to evade that obligation. More recently, however, his campaign has indicated that McCain's view of the president's authority is broad enough to permit violation of statutes governing surveillance of people in the United States.

The extent of the president's powers, although hardly mentioned during the general election campaign, is probably the most important consideration in choosing between McCain and Obama. It is tied to all the other major issues, including the Iraq war, the fight against terrorism, and the government's response to the current economic situation.

The crucial question is which matters more: a president's theory of executive power or the political environment he faces. If the former, Obama is the less risky choice. If the latter, McCain is, since he would face a less compliant Congress. In that case, the Republicans' sorry performance during their six years in charge of the executive and legislative branches, by highlighting the virtues of divided government, may be the best argument for their nominee.

Obama's Job Fetish

jsullum@reason.com (Jacob Sullum) — Wed, 22 Oct 2008 07:00:00 EDT

Despite all the facile comparisons between the current economic situation and the conditions that preceded the Great Depression, the most recent figures show GDP continuing to grow, with unemployment at a historically modest 6.1 percent. But if, as widely expected, Barack Obama faces a recession when he takes office in January, many Americans will expect him to deliver on his promise to "create jobs."

They probably will be disappointed, because Obama seems to view job creation not only as something the government does with taxpayers' money but as an end in itself. That's a recipe for wasteful spending that will divert resources from more productive uses and ultimately result in lower employment than would otherwise occur.

Obama says he will "transform the challenge of global climate change into an opportunity to create 5 million new green jobs," which he likens to the economic activity triggered by the personal computer. This way of looking at climate change is a variation on the broken window fallacy, according to which the loss caused by a smashed window is offset by the employment it gives the glazier.

By the same logic, Obama should view war, crime, and hurricanes as opportunities to create jobs. All three generate economic activity, but we'd be better off if the resources spent on bombs, burglar alarms, and reconstruction were available for other purposes, instead of being used to inflict, prevent, or recover from losses.

Likewise, overhauling manufacturing, transportation, and power production to reduce the emission of carbon dioxide may or may not be justified, but it is properly viewed as a drag on the economy. We'd be better off if we didn't have to worry about, and use resources to minimize, climate change.

Obama wants to spend $150 billion on "developing and deploying advanced energy technologies, including solar, wind and clean coal." He says this plan "will reduce greenhouse gas emissions, decrease our dependence on foreign oil and create jobs that can't be outsourced."

Leaving aside the desirability of "energy independence" and the merits of Obama's approach to reducing carbon dioxide emissions (which has the government, rather than businesses, picking the most efficient methods), the fact that he lists "jobs that can't be outsourced" as a distinct goal is troubling. Paying people to dig holes and fill them in again also creates "jobs that can't be outsourced," but that doesn't mean it's a smart investment or an appropriate use of taxpayers' money.

Speaking of digging holes, Obama also wants to spend $60 billion to "provide financing to transportation infrastructure projects across the nation." He says "these projects will create up to two million new direct and indirect jobs and stimulate approximately $35 billion per year in new economic activity."

Fixing a bridge, widening a highway, or building a light rail system may or may not make economic sense. But the fact that it involves paying people to operate jackhammers and pour concrete does not make it any more worthwhile. If creating jobs and stimulating "new economic activity" can justify transportation projects, why not fill the country with empty airports and bridges to nowhere?

Obama also sees regulation as an engine of economic growth. He says requiring that "25 percent of American electricity be derived from renewable sources by 2025...has the potential to create hundreds of thousands of new jobs." Even if true, that projection tells us nothing about the advisability of such a mandate. If the government required that 25 percent of cars be replaced by horse-drawn carriages, that also would create certain jobs, while destroying or forestalling others.

Obama's job fetish is apparent even when he talks about spontaneous economic activity. "Businesses should live up to their responsibilities to create American jobs," he declared in his acceptance speech at the Democratic National Convention. In a free market, businesses exist because they provide goods or services that people value. A business that makes job creation its overriding goal will not be employing anyone for long.

Either a Borrower or a Lender Be

jsullum@reason.com (Jacob Sullum) — Wed, 15 Oct 2008 07:00:00 EDT

John McCain calls his promise to help millions of Americans with their mortgages the McCain Resurgence Plan. Ostensibly, the "resurgence" has something to do with home values, but his poll numbers are what he really has in mind.

This desperate ploy, unveiled at last week's presidential debate, speaks volumes about McCain's readiness to forsake his avowed principles and his supposed commitment to candor. Meant to bribe swing voters with taxpayers' money, it should repel anyone who considers its rationale, its fairness, and its fiscal implications.

Responding to a debate question about the economic insecurity of "retired and older citizens and workers," McCain said: "Home values of retirees continue to decline, and people are no longer able to afford their mortgage payments. As president...I would order the secretary of the treasury to immediately buy up the bad home loan mortgages in America and renegotiate...at the diminished value of those homes and let people be able to make...those payments and stay in their homes."

McCain thus conflated two distinct issues: declining home values and foreclosures. If a home you bought for $300,000 can now fetch only $200,000, that in itself does not affect your ability to make your monthly payment. You may not like paying off a loan that's higher than the current market value of your house, but that's the chance you took when you invested in this particular asset.

If you used an adjustable-rate mortgage to buy the house and the rate has risen, you may now have difficulty making your payments. But that's the chance you took when you picked a lower initial rate over a higher but stable rate.

McCain says he would "buy up the bad home loan mortgages." Bad from whose perspective? Does he mean mortgages that exceed the current value of the homes they were used to buy (which are bad from the borrowers' perspective) or mortgages on which the homeowners have started to miss payments (which are also bad from the lenders' perspective)?

Since preventing foreclosures is one of McCain's aims, you might think he has the latter sort of loan in mind. But according to The New York Times, McCain's chief economic adviser "noted that about 10 million Americans had mortgages that exceeded their homes' value." He said "literally millions of people" could benefit from McCain's plan, adding, "The question is how many people pick up the phone."

That suggests anyone with negative equity would be eligible, regardless of his financial position or payment history. If so, a multimillionaire whose mansion is worth less than it was when he bought it could get a fixed-rate, 30-year mortgage at 5 percent, with the principal based on the home's current value.

That's better than my mortgage, and I bet it's better than yours (especially the part where you can reduce the principal you owe). Can you get in on this deal? Only if your purchase and/or financing decisions were particularly ill-advised.

Under McCain's plan, neither the borrowers nor the lenders bear the cost of their risky choices. Taxpayers do, to the tune of $300 billion or so—his estimate of the difference between what the government will pay to buy mortgages at their face value and what it will get back at the McCain-discounted value, assuming borrowers who have already shown themselves to be bad credit risks pay off their new loans.

McCain concedes his plan will be "expensive" but says it's necessary to "stabilize home values in America." Somehow McCain knows the market price for homes is not the correct price, so he plans to artificially prop up the value of these assets, benefiting one group of Americans at the expense of others. The straight-talking maverick thereby abandons any pretense of fiscal conservatism, devotion to free market principles, or opposition to pork barrel politics—all to restore "some trust and confidence back to America."

You know, I do feel a resurgence coming. But I think it's my breakfast.

Pick Your Populism

jsullum@reason.com (Jacob Sullum) — Wed, 08 Oct 2008 07:00:00 EDT

Casting about for an explanation of the baffling resistance among Republicans in the House of Representatives to the $700 billion Wall Street bailout that every well-informed, sensible person in the country supported, The New York Times settled on populism. The Republican Party "is increasingly populist," reporter Jackie Calmes averred, and "populists do not favor bailouts of Wall Street."

Evidently that assessment was meant as a put-down, since Calmes described the House Republicans' recalcitrance as a "rigidly ideological stance at a time of economic crisis." Yet in mainstream American politics nowadays, populism is less an ideology than an attitude, a rhetorical style pitting regular people against powerful elites, and it can be adapted to diametrically opposed political causes.

While the anti-bailout movement did have a populist flavor, there were reasons to be wary of this massive economic intervention (including concerns about its cost, its fairness, its effectiveness, and the precedent it sets) that went beyond antipathy toward Wall Street fat cats. Furthermore, supporters of the Treasury Department plan to buy up mortgage-backed securities also cast their position in populist terms.

At last week's vice presidential debate, Republican nominee Sarah Palin, while paying lip service to "personal responsibility," said the "Joe Six Pack[s]" and "hockey moms" who took out mortgages they could not afford were "exploited and taken advantage of" by "predator lenders." She said "the corruption and the greed on Wall Street" created the "toxic mess" that the government must now clean up at taxpayers' expense—not to help special interests but to protect "the Main Streeters like me" who would otherwise be hurt by tight credit resulting from the degraded assets of financial institutions.

Palin also tried to put a populist spin on John McCain's tax policies, saying the government should "lessen the tax burden on our families and get out of the way and let the private sector and our families grow and thrive and prosper." She thereby obscured a point emphasized by Joe Biden, her Democratic rival: The biggest direct beneficiaries of McCain's tax cuts would be rich people.

By the same token, Biden obscured an important reason for that: Rich people pay a lot more taxes to begin with. In 2005, according to the Tax Foundation, the top 1 percent of American earners received a fifth of total income but paid two-fifths of federal income taxes. In Biden's view, making that burden even more disproportionate is "simple fairness."

It will always be easier to make a populist case for taking from the rich and giving to the "middle class" than it is to make a populist case for letting the rich keep more of their own money. But other policies that traditionally have been seen as populist, including protectionism, farm subsidies, and maintaining Social Security in its current form, can plausibly be portrayed as favoring special interests at the expense of a less affluent and less influential majority.

The relevant question is not whether a policy benefits an elite but whether the elite is thereby unjustly enriched. Whatever your political perspective, then, there are good and bad kinds of populism. But one variety we should all agree to oppose is the mindless, anti-intellectual populism to which Biden and Palin resorted during their debate.

If you want "a good barometer" for the economy's health, according to Palin, you shouldn't look at statistics or consult economists; you should "go to a kid's soccer game on Saturday, and turn to any parent there on the sideline and ask them, 'How are you feeling about the economy?'" If you want a detailed comparison of McCain's economic, educational, health care, and foreign policies with those of the Bush administration, according to Biden, you shouldn't pick up a newspaper or do research online; you should "walk into Home Depot with me" and "ask anybody in there." This is the sort of populism that insults voters' intelligence while trying to flatter it.

Follow State Law, Go Directly to Jail

jsullum@reason.com (Jacob Sullum) — Sat, 01 Nov 2008 12:17:00 EDT

When Owen Beck was 17, doctors amputated his right leg to stop the spread of bone cancer. His parents, desperate to find a drug that would relieve their son's excruciating phantom limb pain, brought him to Charlie Lynch's medical marijuana dispensary in Morro Bay, California, carrying a recommendation from a Stanford oncologist. The marijuana not only eased the pain but alleviated the nausea caused by chemotherapy.

Called to testify as a character witness at Lynch's federal marijuana trial in July, Beck did not get far. When he mentioned his cancer, U.S. District Judge George Wu cut him off. Wu decreed that there would be no talk of the symptoms cannabis relieves, no references to California's recognition of marijuana as a medicine, no mention even of the phrase medical marijuana in front of the jury.

In short, there would be no explanation of how Lynch came to operate what prosecutors called a "marijuana store" in downtown Morro Bay for a year, openly serving more than 2,000 customers. Under federal law, which forbids marijuana use for any purpose, all that was irrelevant. So it's hardly surprising that Lynch was convicted on August 5 of five drug-related offenses that carry penalties of five to 85 years in prison.

Nor is it surprising that so many self-described conservatives, including Republican presidential candidate John McCain, support the prosecution of people like Lynch, abandoning their avowed federalist principles because of a blind hostility toward a plant they associate with draft-dodging, flag-burning hippies. It's not surprising, but it's shameful.

The Drug Enforcement Administration (DEA) has raided more than 60 medical marijuana dispensaries in the last two years. Because the deck is stacked against them, dispensary operators facing federal drug charges typically plead guilty.

Lynch instead gambled on a defense known as entrapment by estoppel, which occurs when someone is arrested for actions the government assured him were legal. Before he opened Central Coast Compassionate Caregivers in 2006, Lynch called the DEA to ask about his legal exposure. He says an agent told him he should consult state and local authorities, which he took to mean he could avoid trouble as long as he complied with state and local law.

It's not hard to see why Lynch believed he was operating a legitimate business. He had the blessing of the Morro Bay Chamber of Commerce and the city council; local officials, including the mayor, posed for pictures at the dispensary's opening.

The DEA denied giving Lynch any sort of green light, or even a yellow one. But the response he says he got from the agency is the response he should have gotten, because under the U.S. Constitution the medical use of marijuana is a local matter.

At one time John McCain seemed to acknowledge as much. In April 2007 he said, "I will let states decide that issue." But he quickly abandoned that position, and this year he said he'd continue the DEA's medical marijuana raids, declaring, "It is a national issue and not a [state] issue." By contrast, McCain's Democratic opponent, Barack Obama, has promised to stop the raids.

McCain's medical marijuana position contradicts his professed allegiance to federalism. "The federal government was intended to have limited scope," he says on his website, vowing to appoint judges who "respect the proper role of local and state governments." That commitment is inconsistent with reading Congress' power to regulate interstate commerce broadly enough to cover homegrown medical marijuana, as the Supreme Court did in 2005. "If Congress can regulate this under the Commerce Clause," Justice Clarence Thomas noted in his dissent, "it can regulate virtually anything-and the Federal Government is no longer one of limited and enumerated powers."

By supporting the Bush administration's medical marijuana policy, McCain is renouncing such concerns. Worse, his promise to flout the Constitution probably will enhance his appeal among conservatives.

Senior Editor Jacob Sullum (jsullum@reason.com) writes a weekly syndicated column. © 2008 by Creators Syndicate Inc.

Back to Court

jsullum@reason.com (Jacob Sullum) — Sat, 01 Nov 2008 14:43:00 EDT

On June 26 the U.S. Supreme Court ruled that the District of Columbia had violated the Second Amendment by making armed self-defense in the home impractical and banning the most popular weapons used for that purpose. On July 15 the D.C. Council responded by unanimously approving a law that makes armed self-defense in the home impractical and bans the most popular weapons used for that purpose.

The revised law is so restrictive that Dick Heller, the Washingtonian who successfully challenged D.C.’s handgun ban and firearm storage requirements, has filed another federal lawsuit accusing the district of failing to comply with the Supreme Court’s ruling. The new law says a gun may be unlocked and loaded only “while it is being used to protect against a reasonably perceived threat of immediate harm to a person.” This provision, Heller’s complaint argues, ignores “the need to keepa firearm in useable condition for defense of self and others against an unlawful, sudden, and deadly attack.”

Heller also objects to the city’s broad interpretation of its “machine gun” ban, according to which virtually all semiautomatic handguns, the most common self-defense weapons, are prohibited. Under D.C. law, “machine guns” include not only guns that fire continuously but also guns that fire once per trigger pull if they can fire more than 12 rounds without reloading or “can be readily converted” to do so. According to the district’s interpretation, even a pistol that fires 12 or fewer rounds counts as a “machine gun” if it could accept a bigger magazine.

Heller therefore was not allowed to register his seven-shot .45-caliber pistol, which in the district’s view might as well be an Uzi. Instead he applied to register a .22-caliber revolver, mentioning along the way that he was weighing a Libertarian run against Del. Eleanor Holmes Norton (D-D.C.).

Heller’s complaint challenges the “onerous requirements to register a pistol” as well. The 12-step process, which requires multiple trips to gun dealers and government offices, includes fingerprinting, a written exam, and ballistic testing. D.C. Police Chief Cathy Lanier has said “it could take months.”

Advil Strip Search

jsullum@reason.com (Jacob Sullum) — Sat, 01 Nov 2008 18:18:00 EDT

“This is a difficult case,” wrote Judge Michael Hawkins, dissenting from a July decision by the U.S. Court of Appeals for the 9th Circuit. That is not the way most people respond when they hear about Savana Redding, who was strip-searched at age 13 by Arizona school officials looking for ibuprofen pills in her underwear.

Nor is it the way most of Hawkins’ colleagues reacted. Eight of the 11 judges who heard the case agreed that Vice Principal Kerry Wilson’s decision to order a “grossly intrusive search of a middle school girl to locate pills with the potency of two over-the-counter Advil capsules” violated Savana’s Fourth amendment rights.

Safford Middle School, where Wilson continues to work, has a “zero tolerance” policy that prohibits possession of all drugs, including not just alcohol and illegal intoxicants but unauthorized prescription and over-the-counter medications as well. In October 2003, based on an unsubstantiated allegation by another eighth-grader who was caught with ibuprofen and naproxen, Wilson instructed a secretary to strip-search Savana under the school nurse’s supervision.

Savana later called the fruitless search—during which she was forced to remove all her clothing except her underwear, then pull back her bra and panties to demonstrate that she was not concealing ibuprofen in her cleavage or crotch—“the most humiliating experience I have ever had.” As the American Civil Liberties Union noted, “there was no reason to suspect that a thirteen-year-old honor-roll student with a clean disciplinary record had adopted drug-smuggling practices associated with international narcotrafficking, or to suppose that other middle-school students would willingly consume ibuprofen that was stored in another student’s crotch.”

The school district’s lawyer disagreed, telling ABC News in March that the circumstances demanded swift, decisive action to avert a possible catastrophe. “Remember,” he said, “this was prescription-strength ibuprofen.”

Does It Take a Panic to Stop a Panic?

jsullum@reason.com (Jacob Sullum) — Wed, 01 Oct 2008 07:00:00 EDT

"Without immediate action by Congress," President Bush warned last week, "America could slip into a financial panic." Instead Bush wanted a political panic. The only way to avert "a long and painful recession" in which "millions of Americans could lose their jobs," he said, was to send the Treasury Department on an unprecedented Wall Street buying spree.

But Treasury Secretary Henry Paulson was premature in thinking the administration's scaremongering had produced "a bipartisan consensus for an urgent legislative solution." A bailout bill that reached Congress on Monday, just 10 days after Paulson first proposed using taxpayer money to relieve financial institutions of their bad investments, was narrowly defeated in the House. Still, the specter of blind bipartisanship, which may yet prevail, should give pause to anyone who hopes electing a Republican president will curb the excesses of a Democratic Congress.

The issue has hurt John McCain in more obvious ways as well. The Wall Street bailout focused voters' attention on the economy, an area where, rightly or wrongly, they trust Barack Obama more.

McCain looked like a grandstanding doofus when, trying to gain a political advantage, he melodramatically "set politics aside" and rushed to Washington, where he vainly sought to broker a bailout deal. After saying Friday night's presidential debate would have to be postponed, for the good of the country, until an agreement had been reached, he discovered the country could spare him for a few hours after all and flew to Mississippi, where he achieved the bipartisanship that had eluded him in Washington.

"We are going to have to intervene; there's no doubt about that," said Obama. "We have to move swiftly." McCain sounded even more panicky, saying there's "no doubt about the magnitude of this crisis." Unless Congress does something to "fix the greatest fiscal crisis...in our time," he said, we will see "failures on Main Street, and people who will lose their jobs, and their credits, and their homes."

McCain added that "the first thing we have to do is get spending under control in Washington." Right after letting the Treasury Department spend $1 trillion on the crappiest assets it can find. (Rounding the number up seems reasonable given the arbitrariness of the official $700 billion estimate. "It's not based on any particular data point," a Treasury Department spokeswoman told Forbes. "We just wanted to choose a really large number.")

Neither candidate wondered whether government officials spending other people's money can realistically be expected to do a better job of valuing mortgage-backed securities than myriad investors with their own money on the line. Neither worried that government ownership of so many securities, including stock in financial institutions, would create conflicts of interest and encourage politically motivated market manipulation.

Neither said it was dangerous to rescue Wall Street firms from their own mistakes instead of letting the market punish them, or unfair to make taxpayers pick up the tab. Neither mentioned the problem of moral hazard, where the expectation of a bailout leads people to take risks they otherwise would avoid. Most fundamentally, neither questioned the premise that Congress had to choose between a recklessly rushed "solution" and economic catastrophe.

More than 100 economists signed a September 23 open letter warning Congress "not to rush," saying "a subsidy to investors at taxpayers' expense" is morally and economically problematic. "Fundamentally weakening [credit] markets in order to calm short-run disruptions is desperately short-sighted," they said. Three days later, 44 economists led by former House Majority Leader Dick Armey said the bailout plan "poses a significant threat to taxpayers while failing to address fundamental problems."

Instead of heeding these warnings, Obama and McCain listened to the likes of White House spokesman Tony Fratto, who said failing to approve the bailout by the end of last week was "unthinkable." "We have to get something done," one of the candidates insisted on Sunday. "The option of doing nothing is simply not an acceptable option," the other declared.

Who said what? Does it matter?

Would President McCain Obey the Law?

jsullum@reason.com (Jacob Sullum) — Wed, 01 Oct 2008 19:13:00 EDT

When President Bush asked Congress to allow warrantless surveillance of Americans' international communications, he was seeking permission to do something he doesn't think he needs permission to do. And like the parent of a defiant teenager, Congress gave in while insisting it wasn't.

Federal law already said the government may listen to the phone calls or read the email of people in the U.S. only if it follows procedures established by statute. The Foreign Intelligence Surveillance Act (FISA) amendments approved by Congress in June say it again. Twice. In effect, Congress said, "We mean it. Seriously"

In Congress' defense (did I really say that?), it's hard to think of an effective statutory response to a president who feels free to ignore the law. The only solution to that problem is to replace Bush with a president who is more inclined to respect the rule of law and the separation of powers.

Although he may change his tune if he's elected (especially since he'll face a Democrat-controlled Congress disinclined to check his power), Barack Obama at least claims to believe in these principles. "As president," he told The Boston Globe in December, "I will follow existing law, and when it comes to U.S. citizens and residents, I will only authorize surveillance for national security purposes consistent with FISA and other federal statutes."

The Illinois senator later disappointed many of his supporters by backing the FISA amendments, which not only approved warrantless wiretaps but granted retroactive immunity to the telecommunication companies that assisted Bush's illegal post-9/11 surveillance program. Still, Obama emphasized that Congress has the authority to restrict or rescind the president's spying powers.

By contrast, John McCain has vacillated on this issue and now seems unwilling to give a straight answer to the question of whether, as president, he would obey the law. "I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is," he told the Globe in December 2007. "I don't think the president has the right to disobey any law."

Yet a McCain adviser contradicted that position in a May 2008 letter to National Review Online, saying the Arizona senator believes "neither the Administration nor the telecoms need apologize for actions that most people...understand were Constitutional and appropriate in the wake of the attacks on September 11, 2001." He added that "John McCain will do everything he can to protect Americans from [terrorist] threats, including asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution."

The reference to Article II implies that the president has constitutional authority to flout statutory restrictions on wiretaps, the very position McCain disavowed in December. Pressed by The New York Times in June to explain the contradiction, a campaign spokesman said, "To the extent that the comments of members of our staff are misinterpreted, they shouldn't be read into as anything otherwise." Thanks for clearing that up.

Responding to the Times story, McCain himself claimed "it's ambiguous as to whether the president acted within his authority" when he ordered the warrantless wiretaps. This ambiguity cries out for explication: Does McCain believe Congress might have approved warrantless domestic surveillance without realizing it, as the Bush administration initially maintained, or that the president might have inherent authority to ignore Congress on matters related to terrorism?

But according to McCain, no more need be said on the subject, because we should "move forward" instead of "looking back." The question for voters is whether they want to move forward with a president whose commitment to obey the law is ambiguous.

Senior Editor Jacob Sullum (jsullum@reason.com) is a nationally syndicated columnist.

Revenge of the Bitter Gun Owners

jsullum@reason.com (Jacob Sullum) — Wed, 24 Sep 2008 07:00:00 EDT

Last spring, after the U.S. Supreme Court ruled that the Second Amendment guarantees an individual right to arms, Democrats hoped the decision would neutralize the gun issue. Instead the ruling, by inviting debate over which kinds of gun control are constitutional, has made the issue more salient.

That's bad news for Barack Obama, who the National Rifle Association says "would be the most anti-gun president in American history." The Democratic nominee pays lip service to Second Amendment rights while calling for "commonsense," "reasonable" restrictions. But Obama's sense of what's reasonable, while common among the left-liberal politicians and activists inside his comfort zone, may seem decidedly unreasonable to the pro-gun voters the NRA is trying to mobilize against him.

Since these voters made a decisive difference in the 2000 presidential election and arguably in 2004 as well, this is a threat Obama ignores at his peril. The NRA plans to spend $15 million urging voters in battleground states of the Midwest and Mountain West to "Defend Freedom" and "Defeat Obama." Meanwhile, the Obama campaign is running radio spots in swing states such as Michigan, Ohio, Pennsylvania, and West Virginia that promise "Barack Obama and John McCain will both make sure we keep our guns."

Although Factcheck.org faults the NRA for distorting Obama's record, every falsifiable claim in its TV spots has a factual basis. In one ad, a Virginia hunter complains that Obama supports "a huge new tax on my guns and ammo," referring to a position Obama took in 1999. He adds that the Illinois senator voted to "ban virtually all deer-hunting ammunition," a reference to his 2005 vote for a federal ban on rifle ammunition "designed or marketed as having armor piercing capability," phrasing that arguably covered deer-hunting ammunition.

Finally, the hunter complains that Obama wants to ban shotguns and rifles used for hunting, alluding to his support for reinstating the federal "assault weapon" ban. That law arbitrarily prohibited firearms based mainly on cosmetic features that made them look scary to gun-naïve politicians.

In another NRA ad, an Iraq war veteran from Wisconsin complains that "Barack Obama opposes my right to own a handgun for self-defense." In a 1996 questionnaire, Obama's state Senate campaign said he supported a handgun ban. Today Obama says that was a mistake, but the questionnaire bears his handwriting, so he clearly saw it without changing the supposedly erroneous answer.

As a state legislator, Obama voted against a bill shielding people who use handguns for self-defense in their homes from prosecution for violating local gun registration rules. Most tellingly, Obama has repeatedly expressed support for local handgun bans such as the District of Columbia's, which the Supreme Court overturned, and Chicago's, which faces a constitutional challenge.

"What works in Chicago may not work in Cheyenne," Obama says. The line, meant to reassure gun owners, highlights his peculiar view that the extent of an American's constitutional rights depends on where he lives.

The specifics of Obama's views may turn out to be less important than the sense that he's an urban sophisticate who is unfamiliar with firearms and does not even understand the gun control laws he supports. In a 2004 debate, Obama explained the rationale for the "assault weapon" ban this way: "Unless you're seeing a lot of deer out there wearing bullet-proof vests, then there is no purpose for many of the guns." He thereby conflated the "assault weapon" and "armor-piercing bullet" issues, apparently not realizing that ordinary hunting ammunition can penetrate "bullet-proof vests."

The NRA ads seek to reinforce the impression of Obama's cluelessness. "Where is this guy from?" asks the hunter. "He's probably never been hunting a day in his life." Two of the ads allude to Obama's notorious comment that working-class voters in Pennsylvania and the Midwest "get bitter" during hard economic times and "cling to guns or religion." What will Obama cling to when voters question his commitment to the Second Amendment?

© Copyright by Creators Syndicate Inc.

Palin's Pot Problem

jsullum@reason.com (Jacob Sullum) — Wed, 17 Sep 2008 07:00:00 EDT

When it comes to questions about youthful marijuana use, Sarah Palin is no Slick Willie. "I can't claim a Bill Clinton and say that I never inhaled," the Republican vice presidential candidate told the Anchorage Daily News in 2006, before she was elected governor of Alaska.

Although Palin's handling of the issue scores higher on the candor meter than Clinton's, she has the same difficulty reconciling her personal experience with her policy positions, a problem also shared by former pot smoker Barack Obama. None of them has a persuasive answer to the question of why other Americans should be arrested for something they did with impunity.

Pot smokers who are arrested do not typically spend much time in jail. But as a 2007 report from the Center for Cognitive Liberty & Ethics noted, they pay a substantial cost that includes not only public humiliation and legal expenses but collateral sanctions such as "revocation or suspension of professional licenses, barriers to employment or promotion, loss of educational aid, driver's license suspension, and bars on adoption, voting and jury service."

According to figures released by the FBI this week, about 873,000 people were arrested on marijuana charges in the United States last year, a new record. Pot busts accounted for nearly half of the 1.8 million drug arrests; as usual, the vast majority, about 775,000, were for simple possession, as opposed to cultivation or sale.

This is the fifth year in a row that marijuana arrests have increased, but the upward trend began in the early 1990s. Three times as many people were arrested on marijuana charges last year as in 1991.

The increase in arrests does not correspond to an increase in use; instead, the chance that any given pot smoker will be busted (though still small) is much higher than it was two decades ago. It is also higher than when Palin attended college in the '80s, which is presumably when she tried marijuana.

By way of extenuation, the Anchorage Daily News reported, Palin noted that marijuana "was legal under state law," although "illegal under U.S. law." In 1975 the Alaska Supreme Court ruled that the state constitution, which says the "right of the people to privacy is recognized and shall not be infringed," prohibits the government from punishing people for possessing small amounts of marijuana in their homes.

A 1990 ballot initiative ostensibly recriminalized all marijuana possession, but in 2003 the Alaska Court of Appeals ruled that "a statute which purports to attach criminal penalties to constitutionally protected conduct is void." The following year, the Alaska Supreme Court declined to hear the state's appeal of that decision.

In 2006 the state legislature, at the urging of Palin's predecessor, Frank Murkowski, passed another law that supposedly made private possession of marijuana for personal use a crime. A judge found that law unconstitutional as well, and the Alaska Supreme Court is considering an appeal of her ruling.

The upshot is that smoking marijuana in the privacy of one's home is just as legal in Alaska today as it was when Palin did it. Evidently she regrets this situation.

As mayor of Wasilla in 2000, Palin championed a city council resolution opposing a ballot initiative that would have legalized marijuana for adults. Last March her administration asked the Alaska Supreme Court to reverse its 1975 decision shielding private marijuana use, arguing that the drug is more dangerous than it used to be.

In other words, Palin got to smoke pot without worrying about legal consequences and now wants to deny that assurance to fellow Alaskans doing exactly the same thing. "Palin doesn't support legalizing marijuana," the Anchorage Daily News reported in 2006, because she worries about "the message it would send to her four kids."

It's Palin's job to teach her children that certain pleasures are reserved for grownups. The government should not continue to arrest adults who are harming no one simply because her children are easily confused.

True Temperance

jsullum@reason.com (Jacob Sullum) — Fri, 12 Sep 2008 11:30:00 EDT

...

Serve, Protect, and Ignore

jsullum@reason.com (Jacob Sullum) — Wed, 10 Sep 2008 07:00:00 EDT

The Republican platform unveiled last week notes in passing that "the Constitution assigns the federal government no role in local education." Yet the same document offers opinions on all manner of local educational issues, including the virtues of phonics, the evils of sex education, the wisdom of merit pay for teachers, and the folly of social promotion.

That contradiction illustrates the hollowness of the Republican commitment to "constrain the federal government to its legitimate constitutional functions." The Republicans (like the Democrats) respect the Constitution only when it's convenient.

You might say that's old news. Yet while campaigning for president in 1980, Ronald Reagan promised to abolish the Department of Education. So did Bob Dole in 1996. After two terms of a Republican president who proudly charged in the opposite direction, the most John McCain can muster is a promise to "identify and eliminate ineffective programs"—that is, to make unconstitutional activities more efficient.

Although the Department of Education is still with us, by threatening to eliminate it Reagan and like-minded Republicans signaled that they understood some matters are beyond the purview of the federal government. It's hard to find evidence of that understanding in the current GOP platform.

In 1887 Grover Cleveland, a Democrat, vetoed a bill allocating $10,000 to help drought-stricken farmers in Texas, saying, "I can find no warrant for such an appropriation in the Constitution." Nowadays the Republican Party takes for granted the propriety of both "a natural disaster insurance policy" and an "economic safety net for farmers."

Likewise, the GOP platform does not question the legitimacy of the federal government's enormous entitlement programs, saying only that they should be "reformed" and "modernized." Regarding Social Security, McCain does not go even as far as George W. Bush, who proposed letting Americans shift some of their payroll taxes to private accounts. By contrast, the current platform calls for "personal investment accounts which are distinct from and supplemental to" the existing system of intergenerational income redistribution.

Far from shrinking the federal government, the Republicans want to enlarge it, providing "aid to those hurt by the housing crisis," solving "the energy crisis" (undeterred by the Carteresque connotations of that phrase), "expanding access to higher education," seeking "a major expansion of support" for certain kinds of stem cell research, even "returning Americans to the moon as a step toward a mission to Mars." The platform does not explain how these initiatives qualify as "legitimate constitutional functions."

The Republicans are committed to "continuing the fight against illegal drugs," even though that fight, unlike alcohol prohibition, was never authorized by a constitutional amendment. They want to impose national bans on gay marriage, human cloning, assisted suicide, and online gambling, even while declaring that "Congress must respect the limits imposed by the Tenth Amendment," which reserves to the states or the people "the powers not delegated to the United States by the Constitution." Despite their eagerness to trample individual freedom in all these areas, Republicans claim "the other party wants more government control over people's lives," but "Republicans do not."

The Republicans "lament that judges have denied the people their right to set abortion policies in the states." Yet their position that "the unborn child has a fundamental individual right to life" guaranteed by the 14th Amendment implies that the Constitution not only allows but requires a national ban on abortion, which also would override state policy choices.

Defending "the free-speech right to devote one's resources to whatever cause or candidate one supports," the Republicans say they "oppose any restrictions or conditions upon those activities that would discourage Americans from exercising their constitutional right to enter the political fray or limit their commitment to their ideals." Yet their presidential nominee is famous for pushing precisely such restrictions and conditions in the name of "campaign finance reform."

As an indicator of where McCain would take the country after eight years of big-government conservatism, the 2008 Republican platform is not just disappointing. It's incoherent.

The Subsidy State

jsullum@reason.com (Jacob Sullum) — Wed, 03 Sep 2008 07:00:00 EDT

A few years ago, in the wake of Hurricane Katrina, Sen. Tom Coburn of Oklahoma suggested taking money earmarked for a notoriously extravagant "bridge to nowhere" in Alaska and using it for reconstruction work in Louisiana. Sen. Ted Stevens of Alaska, a fellow Republican, angrily declared, "This is the first time I have seen any attempt by any senator to treat my state...differently from any other state."

In a tirade that included threats to behave like "a wounded bull on the floor of the Senate," to "be taken out of here on a stretcher," and to "resign from this body," Stevens' insistence that all he wanted was equal treatment for Alaska may have been the least believable thing he said. During the last four decades no one has done more than Stevens to ensure that Alaska is treated unequally, receiving far more in federal spending than it pays in taxes.

The octogenarian senator's gift for grabbing dollars in the zero-sum game of congressional appropriations helps explain his easy victory in last week's Republican primary, despite his recent indictment on federal charges of hiding corporate gifts. Yet the "track record of delivering results for Alaskans" he brags about is more scandalous than the crimes he denies, exemplifying a pervasive, poisonous parochialism that flouts the Constitution and drains the Treasury.

Federal prosecutors accuse Stevens of violating the Ethics in Government Act by failing to report more than $250,000 in gifts (consisting mostly of renovations to his "chalet" in Girdwood, Alaska) from VECO Corp., a now-defunct oil services and construction company whose CEO has admitted bribing state officials. Stevens' trial is scheduled to begin on September 22 and conclude shortly before the November 4 general election, so Republicans could be stuck with a convicted felon on the ballot.

Although the government says Stevens "could and did use his official position and his office on behalf of VECO," it is not charging him with accepting bribes, apparently because it does not have enough evidence of a quid pro quo. But if Stevens did help VECO with grants or contracts, it was of a piece with the "results" he has delivered for his constituents since he joined the Senate in 1968, and the amount of taxpayer money involved was a drop in the ocean compared to the billions of dollars he has directed Alaska's way.

From 2004 to 2008, Taxpayers for Common Sense reports, Stevens had a hand in 891 Alaska-oriented earmarks worth $3.2 billion. That works out to about $4,800 per Alaskan, 18 times the national average. And earmarks represent just a fraction of federal spending in Alaska, which totaled $9 billion in 2006 alone.

According to the Tax Foundation, Alaska ranked first in federal spending per capita in 18 of the 25 years from 1981 through 2005. In 2005 Alaskans received $1.84 for every dollar they sent to Washington in taxes. Stevens, who was chairman of the Senate Appropriations Committee for a dozen years and until his indictment was the senior Republican on the defense appropriations subcommittee, has played such an important role in this northward redistribution of income that federal spending in Alaska is known as "Stevens money."

Alaska continues to receive these subsidies from the rest of us even though its government, which collects neither sales nor income tax from state residents, is flush with oil revenue and running budget surpluses. Yet Stevens, who lobbied for statehood in the 1950s, still sees Alaskans, the biggest beneficiaries of congressional largess, as victims of a high-handed federal government.

During his 2005 tantrum over Tom Coburn's proposal to move transportation money from Alaska to hurricane-stricken Louisiana (a proposal the Senate overwhelmingly rejected), Stevens repeatedly invoked his state's "sovereign" and "equal" status, seemingly worried that his colleagues were disrespecting Alaska behind his back. His attitude was reminiscent of a beggar who not only demands a handout but insists that everyone pretend the money was his all along.

MADD Logic

jsullum@reason.com (Jacob Sullum) — Wed, 27 Aug 2008 07:00:00 EDT

In 1985, when New York raised its alcohol purchase age to 21 under federal pressure, I was a sophomore at Cornell. One day, I was responsible enough to order a beer; the next day, I wasn't.

Nowadays, I'm irresponsible simply for bringing up the subject. Or so it would seem, judging from the way Mothers Against Drunk Driving (MADD) has responded to the 128 (and counting) college presidents who support the Amethyst Initiative, which calls for "an informed and dispassionate public debate" about the drinking age.

"Parents should think twice before sending their teens to these colleges or any others that have waved the white flag on underage and binge drinking policies," declared MADD President Laura Dean-Mooney. The same press release quoted former Secretary of Health and Human Services Donna Shalala, who said "signing this initiative...endangers young lives," and Mark Rosenker, acting director of the National Transportation Safety Board, who said it invited "a national tragedy" that would "jeopardize the lives of more teens."

According to MADD, a lower drinking age will result in more drinking among 18-to-20-year-olds, which will result in more drunk driving, which will result in more dead teenagers. Therefore, if you favor a lower drinking age, you favor dead teenagers.

There are a couple of problems with this syllogism. First, although MADD insists research "unequivocally shows that the 21 law has reduced drunk driving and underage and binge drinking," the picture is not quite so clear.

In 1984 Congress passed a law that threatened to withhold highway money from states that did not increase their drinking ages to 21; by 1988 all of them had complied. Yet according to the government-commissioned Monitoring the Future Study, the rate of "binge" drinking (defined as five or more drinks in a row during the previous two weeks) among both high school seniors and college students peaked in the early 1980s, before the federal law took effect.

Traffic fatalities also were declining before then. In a 2007 paper published by the National Bureau of Economic Research, Harvard economist Jeffrey Miron and Yale law student Elina Tetelbaum note that the traffic fatality rate for 15-to-24-year-olds "has been decreasing steadily since 1969," while "most of the variation in the [drinking age] occurred in the 1980s."

Looking at state-level data, Miron and Tetelbaum find that "any nationwide impact" from raising the drinking age is driven by states that did so "prior to any inducement from the federal government." Even in those states, the effect "did not persist much past the year of adoption." Furthermore, raising the drinking age "appears to have only a minor impact on teen drinking." Miron and Tetelbaum conclude that a drinking age of 21 "fails to have the fatality-reducing effects that previous papers have reported."

Whether or not Miron and Tetelbaum are right, it's neither fair nor sensible to view drinking as tantamount to drunk driving. By MADD logic, if raising the drinking age to 21 saves lives, raising it to 25 or 30 would save even more. Yet when it comes to adults older than 20, the law recognizes that the problem is reckless drinking, not drinking per se.

This is the sort of distinction the Amethyst Initiative's supporters would like to reinforce. They complain that a blanket ban on alcohol consumption by 18-to-20-year-olds, who are considered adults in virtually every other respect, makes it difficult to inculcate responsible drinking habits. They argue that alcohol prohibition on campus has undermined respect for the law, since 85 percent of college students drink anyway, and created "a culture of dangerous, clandestine 'binge-drinking.'"

Treating college students like children has not made much of a dent in the rate of heavy episodic drinking on campus, which has remained around 40 percent since 1993, compared to 43 percent when the uniform drinking age was established in 1988. If the government treats people as if they're irresponsible, it should not be surprised when they behave irresponsibly.

Are You Sure You Want Fries With That?

jsullum@reason.com (Jacob Sullum) — Wed, 20 Aug 2008 07:00:00 EDT

In a 2007 survey of California voters, 84 percent said they thought the government should force restaurant chains to display calorie numbers on their menus and menu boards. That may happen soon: The state Assembly is considering a bill, already approved by the state Senate, that would make California the first state to impose such a menu mandate.

Yet the desires that people express in polls are often at odds with the preferences they reveal in the marketplace. The restaurant business is highly competitive. If customers really were clamoring for conspicuous calorie counts, restaurants would provide them voluntarily. A legal requirement is necessary not because consumers want impossible-to-ignore nutritional information but because, by and large, they don't.

Since they overestimate the demand for nutritional information, advocates of menu mandates also overestimate the impact of making it more visible. "Menu board labeling has the potential to dramatically alter the trajectory of the obesity epidemic in California," the California Center for Public Health Advocacy claims, projecting a weight loss of nearly three pounds a year per fast food consumer. The New York City Department of Health and Mental Hygiene, which began enforcing a calorie count requirement last month, predicts it will stop 150,000 people from becoming obese and prevent 30,000 cases of diabetes during the next five years.

Both estimates are based on a study conducted by New York's health department before the city's menu rule took effect. The researchers asked about 7,300 customers at fast food restaurants in the city whether they had seen and made use of nutritional information, which is typically displayed on posters, brochures, tray liners, or counter mats (as well as on the chains' websites). They also examined the customers' receipts so they could calculate the calorie content of the food they purchased.

The only chain where a substantial share of customers said they noticed nutritional information was Subway, where 32 percent reported seeing it, compared to 4 percent at the other chains. Since Subway promotes a subset of its menu as lower in calories and fat than its competitors' offerings, using a pitchman who lost hundreds of pounds while eating at the chain every day, this disparity is not surprising.

But even at Subway, calorie information seemed to make a difference for just one in eight customers. Of those who reported seeing the calorie information at Subway, 37 percent—12 percent of all Subway customers—said it affected their purchases. Subway customers who said they used calorie information bought about 100 fewer calories than those who said they didn't see it and those who said they saw it but didn't use it.

Notably, "there was no significant difference in mean calories purchased by patrons reporting seeing but not using calorie information and patrons who reported not seeing calorie information." In other words, simply making people aware of calorie content is not enough to affect their food choices.

The information's influence may be limited to people who are predisposed to count calories. If so, the impact of menu mandates will depend on the extent to which those people are not taking advantage of less obtrusive nutritional information already provided by restaurants.

The importance of pre-existing preferences also suggests that it's risky to extrapolate from Subway customers (who, given the chain's marketing, are probably especially weight-conscious) to fast food consumers in general. Another unresolved question is whether people compensate for fewer calories consumed at McDonald's or KFC by eating more at home or elsewhere.

Even if menu regulations don't make any difference on balance, Yale obesity researcher Kelly Brownell recently told the Los Angeles Times, "there's still the issue of the consumer's right to know." What about the consumer's right not to know? The same research that supporters of menu mandates like to cite indicates that most consumers prefer to avoid calorie counts, enjoying their food in blissful ignorance. There's a difference between informing people and nagging them.

Fair-Weather Federalists

jsullum@reason.com (Jacob Sullum) — Wed, 13 Aug 2008 13:00:00 EDT

Called to testify as a character witness in Lynch's federal marijuana trial, Beck did not get far. When he mentioned his cancer, U.S. District Judge George Wu cut him off and sent him packing. Wu decreed there would be no talk of the symptoms marijuana relieves, no references to California's recognition of marijuana as a medicine, no mention even of the phrase medical marijuana in front of the jury.

In short, there would be no explanation of how Lynch came to operate what prosecutors called a "marijuana store" in downtown Morro Bay for a year, openly serving more than 2,000 customers. Under federal law, which forbids marijuana use for any purpose, all that was irrelevant. So it's hardly surprising that Lynch was convicted last week of five marijuana-related offenses that carry penalties of five to 85 years in prison.

Nor is it surprising that so many self-described conservatives, including Republican presidential candidate John McCain, support the prosecution of people like Charlie Lynch, abandoning their avowed federalist principles because of blind hostility toward a plant they associate with draft-dodging, flag-burning hippies. It's not surprising, but it's shameful.

The U.S. Drug Enforcement Administration has raided more than 60 medical marijuana dispensaries in the last two years. Because the deck is stacked against them, dispensary operators facing federal drug charges typically plead guilty.

Lynch instead gambled on a defense known as entrapment by estoppel, which occurs when someone is arrested for actions the government assured him were legal. Before he opened Central Coast Compassionate Caregivers in 2006, Lynch called the DEA to ask about his legal exposure. He says an agent told him he should consult with state and local authorities, which he took to mean he could avoid trouble as long as he complied with state and local law.

It's not hard to see why Lynch believed he was operating a legitimate business. He had the blessing of the Morro Bay Chamber of Commerce and the city council; local officials, including Morro Bay's mayor, posed for pictures at the dispensary's opening; and neither his neighbors nor the city police objected.

At Lynch's trial the DEA denied giving him any sort of green light, or even a yellow one. But the response he says he got from the agency is the response he should have gotten, because under the U.S. Constitution the medical use of marijuana is a local matter.

At one time John McCain seemed to acknowledge as much. In April 2007 he said, "I will let states decide that issue." But he quickly abandoned that position, and this year he said he'd continue the DEA's medical marijuana raids, declaring, "It is a national issue and not a [state] issue." By contrast, McCain's Democratic opponent, Barack Obama, has promised to stop the raids.

McCain's medical marijuana position contradicts his professed allegiance to federalism. "The federal government was intended to have limited scope," he says on his website, vowing to appoint judges who "respect the proper role of local and state governments."

That commitment is inconsistent with reading Congress' power to regulate interstate commerce broadly enough to cover homegrown medical marijuana, as the Supreme Court did in 2005. "If Congress can regulate this under the Commerce Clause," Justice Clarence Thomas noted in his dissent, "it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

By supporting the Bush administration's medical marijuana policy, McCain is renouncing such concerns. Worse, his promise to flout the Constitution probably will enhance his appeal among conservatives.

File Keepers

jsullum@reason.com (Jacob Sullum) — Wed, 06 Aug 2008 07:00:00 EDT

If someone develops a practical mind-reading device, you can expect the Department of Homeland Security to argue that skulls are merely another "closed container" that officers guarding the border may search at will. After all, government agents have long been allowed to read documents in briefcases carried by Americans returning from abroad. Why should the medium in which information is stored make a constitutional difference?

That argument is only slightly more far-fetched than the one DHS uses to justify its policy regarding border searches of laptop computers. Given the nature and quantity of the data they contain, portable computers are in many ways extensions of our brains. Yet DHS is treating them as if they were no different from purses or fruitcake tins.

Recently publicized DHS guidelines confirm that the department for years has been examining the contents of computers at airports and other points of entry "absent individualized suspicion." The guidelines say officers "may detain documents and electronic devices, or copies thereof, for a reasonable period of time to perform a thorough border search," which "may take place on-site or at an off-site location."

In practice, this means a customs agent can seize your computer for any reason or no reason at all. He may rummage through your files while you stand there, hoping nothing embarrassing pops up, or he may take the computer to a back room. It may disappear for weeks or months as its contents are copied, analyzed, and shared with various federal agencies trying to determine whether you've broken any laws.

DHS won't say how common these searches are. But when the Association of Corporate Travel Executives surveyed its members in February, 7 percent of the respondents said their laptops or other electronic devices had been seized.

As anyone whose computer has been stolen or irreparably damaged can testify, it's a traumatic experience to suddenly lose this crucial repository of your personal and professional life, which may include confidential work in progress; sensitive financial, medical, and educational records; and years of photos, music, notes, journal entries, and correspondence. Knowing that government agents are perusing and passing around this information makes the experience even less pleasant, especially when you realize that your hard drive also contains traces of files you've deleted and websites you've visited.

But according to DHS, all that's necessary to make this enormously inconvenient and invasive search "reasonable" under the Fourth Amendment is your decision to take your computer with you to another country. In April the U.S. Court of Appeals for the 9th Circuit agreed, reversing a lower court decision that said such searches require "reasonable suspicion," a belief based on "specific and articulable facts," along with "rational inferences" drawn from them.

This standard, substantially less demanding than the "probable cause" necessary for a warrant, is not very hard to satisfy. In fact, DHS Secretary Michael Chertoff claims the department already follows it. "As a practical matter, travelers only go to secondary [examination] when there is some level of suspicion," he writes in a July 16 USA Today op-ed piece. But he warns that "legislation locking in a particular standard would have a dangerous, chilling effect as officers' often split-second assessments are second-guessed."

It's worth emphasizing that Chertoff is talking about searches for incriminating data, not searches for bombs or other imminent threats. He says computer searches have turned up "violent jihadist material" as well as "scores of instances of child pornography." He does not say how many, if any, terrorist plots have been foiled. As electronic privacy expert Peter Swire points out, even a "moderately well-informed" terrorist can easily avoid detection by emailing encrypted data to himself or using software that hides files.

Judging from Chertoff's statements and the legal record, the government is using fear of terrorism to justify extraordinarily invasive, suspicionless searches in the service of ordinary police work. In these circumstances, the real danger is the absence of second-guessing.