As a rhetorical/PR matter, it goes like this: from the little information thus far available, the common wisdom has quickly formed that the tragic death of Trayvon Martin was not the result of Mr. Martin’s aggression and Zimmerman’s defense.  The public has also quickly registered that Zimmerman has not yet been charged because he claimed self defense in one of many states with statutes allowing fairly quick-decision uses of force.

Martin’s death illustrates the horrible consequences that arguably result from those statutes; thus, proponents of those statutes will be working overtime to dissociate this case from those laws. 

On the substance, the population thus far unburdened by IP law can still stand for some hearty and honest debate, a brief outline for which follows for a few paragraphs.  But this blog frequently turns attention to public discourse, civic participation, and the general level of earnest reasoning put into lawmaking.  Sherman’s column touches those themes, and I’ll look into that after this brief SOPA intermission.

The most interesting provisions for civic debate are (1) the definitions at sec. 103(a)(1) and the (2) the preliminary injunction provision at sec. 103(c)(5). (I’m using SOPA’s provisions).

Existing copyright law generally uses a litigation scheme of copyright owner against copyright violator. SOPA allowed enforcement against a new group: sites “dedicated to the theft of US property.” That notion seems uncontroversial, so it is the definition of that phrase, at sec. 103(a)(1), that deserves good discussion. Such a site, says the bill, is “primarily designed” to violate copyrights (seems reasonable), or has little purpose other than violating copyright (a little more hazy), or “marketed … for use in, offering goods or services in a manner that engages in, enables, or facilitates” violating copyrights (hmmm?).

That last prong of the definition–marketed for services that might enable copyright violation–is I think the bone of contention for most folks opposing the bill, as a great many social media sites allow people to post originial, derivitive, and copyrighted work without pre-screening.  Easily, a lawyer could argue that fits this definition of sites “dedicated to the theft of US property.” It seems to me alot of good debate is to be had, in any event, on (1) whether we want to allow enforcement against copyright infringement facilitators and (2) how to define such actors.

And what to do with them? That is another ripe topic for debate – such as whether courts should be able to allow a website to be shut down prior to the trial that determines whether the site fits whatever definition we settle upon for sites “dedicated” to IP theft.

My sense is that about 99% of the debate could be had over those two sections. The techies can cover the remaining 1% by providing points and counterpoints on the merits of enforcing against domain names rather than an IP address to obtain copyrighted data on a particular server.

But, back to Sherman. It is predictable that the RIAA head would present an argument in favor of more stringent IP enforcement. What I found more interesting was an argument he promised in the first sentence: “how the democratic process functions in the digital age.”

Parsing out the meta-arguments regarding civic participation and social policy from the his arguments attached to SOPA/PIPA, I got this:

Hyperbolic sloganeering hinders sound public policy-making, particularly when injected by corporations with an ability to reach and sway a large audience.

And here are some of what I glean as his preferred norms, with his specific arguments in quotes:

• Civic choices should be based on reason rather than rhetoric (“We need reason, not rhetoric, in discussing how to achieve it.”);

• Companies purporting to provide information without bias should not be allowed to present an opinion (When Wikipedia and Google purport to be neutral sources of information, but then exploit their stature to present information that is not only not neutral but affirmatively incomplete and misleading ….);

• No one sector in american economy should be allowed to drown out another perspective (“Get enough of them to espouse Silicon Valley’s perspective, and tens of millions of Americans will get a one-sided view of whatever the issue may be, drowning out the other side.”);

and

• It is problematic that people can so easily spread a civic meme without being experts on the underlying issue (Sure, anybody could click on a link or tweet in outrage — but how many knew what they were supporting or opposing?).

I couldn’t agree more with what I’ve interpreted to be the basic normative assumption in Sherman’s argument.  (And I’ll be interested if someone has a conflicting interpretation – just remember to strip out SOPA, et al).  Indeed, I would be forever grateful if the Sunday morning shows and cable news anchors began their analysis of political talking points with whether they were hyperbolic, reduced to slogans, or injected into the public conscience by unduly influential corporate spending or unfair (let’s call it) pulpit-advantage.  Indeed, the civic necessity of education is, in my mind, to cause citizens to enter knowingly and thoughtfully into policy decisions affecting them and their fellow citizens.

Each of the four specific points could be the subject of some interesting debate.  I can imagine good arguments all around.  Reason seems preferable; but rhetoric, sometimes, can reach through the reasoning of self-interest for certain common goods.

Bullet two is a bit of a mess.  Companies like Google can certainly provide neutral search results and still submit a message of its own.   (And a quick note on the substantive argument – Google and Wikipedia, insofar as their webpages sent a message, are not the infrastructure providers with the ability to speed up or slow down particular content that advocates of net neutrality wish to keep neutral).

Sectors interested in particular policy tend to be more tuned to bills affecting them than the general public that might eventually be affected by the policy.  Lots of good government groups try to rectify that problem, for bills and subsequent agency regulations.  My gut cheers Sherman’s call for broader participation; but the fourth bullet point tempers that enthusiasm.

Because we undoubtedly do want some expertise going into policy and regulatory decisions.  How to balance the desire for public input and accountability with the real need for technocratic competence?

A glance at the comments section under Sherman’s column offers little hope that folks want to thoughtfully confront these broader themes of “the democratic process functions in the digital age.”  Still, I’ll stay tuned.

Say, for instance, EPA takes up a statutory duty to create a rule to reduce a certain air pollutant, but also must take into account the varying costs of doing so.  After taking in and responding to the legally required public comments, EPA staff meet with some of the President’s staff to talk about the different options for the rule.  Anything wrong if those conversations are fully off the record?  What if the President’s staff tells EPA just how it needs to analyze the options, and that, whatever the final rule, its benefits must outweigh its costs?

By now, we’re used to the White House’s Office of Management and Budget/OIRA review, and arguments against cost benefit analysis or centralized review tend to be huffed-out, hyperbolic, normative statements against politically watered down regulations.  It is far more interesting, in my mind, to read arguments proffered shortly after Reagan’s Executive Order 12291 (adopted by Clinton as the more frequently cited 12866) that set up the now-routine notion of OMB as regulatory gatekeeper.

The DC Circuit in 1981 ruled that folks from OMB could indeed talk with folks at EPA off the record after the comment period closed.  The case, Sierra Club  v.  Costle, largely stands for that proposition today; but, it is fun to read the commentary it inspired in its day.  So, I commend the article in Cato/AEI’s Regulation magazine, “Regulatory Oversight Wins in Court.”

The supporters seem to think the rulemaking process is a part of process of making the statute in the first place; so it makes perfect sense that Congress should sign off on the rules promulgated pursuant to its own initiatives. Supporters also assume the elected representatives’ quick votes on the rules provide a measure of democratic accountability. They are generally skeptical of the competence and accountability of bureaucrats.

Objectors seem to think rulemaking is a function by which Presidents impose policy and assert power as a useful opposing branch to Congress. Objectors assume voters can hold agencies accountable every four years during the Presidential elections. They are generally skeptical of the political motivations and monetary capture of Congresspeople.

I haven’t seen as much discussion on what REINS means for the process of governing, and the values we attach to the various actors within government. So, below are a few questions.

Should a current Congress be able to prevent the promulgation of statutes passed by a prior Congress, without actually repealing the statute?

Say the GOP won both houses in 2010 with a veto proof majority and promptly passed laws requiring the Occupational Safety & Health Administration to revise its regulations to prevent only the workplace hazards causing “severe or frequent injuries.” OSHA works on the new rule for a few years, researching the severity and frequency of each occupation’s injuries, and finally produces the rule to Congress in 2013. Meanwhile, Democrats swept back into control of the House in 2012. The Democrats don’t have the votes to repeal the 2010 “NOSHA Act,” but when presented with OSHA’s rule, reject it by resolution. And they do so on every revised rule.

Is it desirable to allow a representative to vote in favor of a popular bill, but against its implementation?

Obstruction by resolution might not be by a later Congress against its predecessor. As I mentioned in a prior post, a representative might vote for the “Everyone Likes it in Theory” Act, but against the “Actually Putting it into Practice” regulation. REINS, then, might afford our elected officials another tool in the trickery of campaign ads.

Certainly it is possible that a representative will sincerely believe an agency got something wrong in its rule, and want to send it back for revision. That presents its own danger–the sometimes endlessness of noodling in minutia. Until now, we’ve left it for agencies to do the fine tuning, which takes years. REINS invites politicians into that process.

What does it mean to interpret a vague piece of legislation; when agencies add the necessarily tremendously detailed rules to statutes, are they in fact legislating or implementing existing legislation?

On one end of the spectrum, if a court believes that an agency actually changed a statute through rulemaking, the rule will be overturned. On the other end, a rule carrying out a specific statutory directive will stand.

In between are those rules that inspire the most written about doctrine in administrative law, Chevron, in which the statute was a little fuzzy and the agency decided on a particular interpretation.

Or rules that apply expertise where Congress asked for such expertise: like, Congress instructing the EPA Administrator to prescribe emission standards for air pollutants “which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. 7521(a)(1).

Is a rule an executive or legislative function?
Writers commonly describe agencies as performing quasi-legislative (rulemaking) and quasi-judicial (enforcing, adjudicating) tasks. I’ve wondered whether it’s appropriate to allow the “quasi-legislative” description to place agencies within the legislative branch in a separation of powers argument. Indeed, in my mind, rulemaking is neither an executive nor legislative function.

Rulemaking is simply an agency’s placing into executable rules already existing legislation. If an agency changes the legislation in the process of making a rule, the rule is invalid.

Execution, I think, is better left to those activities that enforce rules in effect. Note, of course, that a great deal of interpretation (guidance, decisions on when to enforce, allocation of resources) goes on in the act of enforcing.

Rulemaking, though, involves an effort to take a law and apply a framework with which it will apply to the real world. The idea has long been that Congress is institutionally unable to prescribe every detailed rule, so it delegates to experts that last step, teeing up one more question for now:

What is the best structure for, and by what process can we assure, an appropriate balance of expertise and accountability in the final rules governing our day-today lives?

The Constitution failed to provide a framework for the administrative state, even though (thanks to Professor Mashaw we know that) the framers should have seen it coming. Thus, statutory law (the APA) provides our structure, and that is what REINS aims to alter.

Far more than the canards of jobs, red tape, or the benefit of having regulations generally, the discussion REINS should be inspiring is of the basic processes of lawmaking and rulemaking. Will better (whether your opinion of “better” means fewer, more, or more effective) regulations result from providing Congress an up or down vote on every promulgated rule?

Will that process add significantly to the time it takes to put any given rule into effect, and is that good or bad? Will that process push agency rulemaking staff to work with Congressional staff and lobbyists far more while drafting rules, and is that good? Will they pay more attention to politics and less to economists and scientists? Will the need to pass Congressional approval become a response to public comments?

I tend to think REINS allows for political cover and massive regualtory delay. I doubt it will ever make the President’s desk, and if it does it’ll be vetoed. However, in another time, if such a change indeed comes along, I will dream of a world in which voters pay attention to how their representatives vote (on both the bill and the rule); in which every representative has the philosophical capacity to vote for or against general principles and the technocratic capacity to vote for or against the subsequent rule; and in which every representative can speed read sufficiently to fully understand and give a fair assessment of a rule within 15 to 30 days.

Finally, a correction: when I first posted on REINS I’d only read Section 1. REINS requires both houses of Congress to approve by joint resolution any new major rule. I thought a vote wasn’t required, which would have problematically allowed Congress to kill rules through inaction. That’s not the case, but the actual provisions, which do require an up or down vote, pose some problems.

The process is roughly this, for major rules: an agency submits to Congress its rule; the majority leaders of the House and Senate introduce resolutions accepting the rule, and then pass it on to the relevant committee; that committee then has 15 days to allow the joint resolution to stand, or propose amendments to the underlying statute; the joint resolution then goes tot he calendar for an up or down vote that must happen within 15 session days, with debate limited to 2 hours.

Jonathan Adler praises REINS’ expedited review and mandatory vote, but it is a strange comfort. Agencies take several years to develop major rules, and Congress is to vote on the thing in about 30 days. If one house plays more safe than sorry, and rejects the rule, it is back to the perdurable drawing board.

Several headlines this past week provide glowing examples of the latter lesson.  The CBO issued its latest statutorily required report giving an ongoing and often changing economic analysis of the American Recovery and Reinvestment Act of 2009′s affect on outputs and employment.

According to the Washington Times and Investor’s Business Daily, the news is this, respectively: “CBO: Stimulus hurts economy in the long run” and “The CBO Quietly Downgrades Obama’s $825 Bil Stimulus.”

According to Jay Bookman at the Atlanta Journal Constitution, and Daily Kos blogger, the news is this, respectively: “CBO reports stimulus package was a major economic success” and “CBO Gives Thanks to the Stimulus.”

The Washington Times article offers the best example of lesson #1:

The Congressional Budget Office on Tuesday downgraded its estimate of the benefits of President Obama’s 2009 stimulus package, saying it may have sustained as few as 700,000 jobs at its peak last year and that over the long run it will actually be a net drag on the economy.

I suppose the lesson for the thoughtful audience of political speak is to raise a yellow card at any reference to “as few as” or any other variant suggesting a range.  Here, the Washington Times used the low end of the range of employment created, on average, during 2010 – the range was between 700,000 and 3,300,000 people.    (Another lesson for the political rhetorician facing a thoughtful crowd: aim to use the ‘opposing end’ of an estimate, and use it as a concession proving the point – like, ‘even if so and so’s best numbers come true, we’d still have such and such problem.’)

Here, anyway, is how the CBO director summarized the 2011 third quarter:

Using such analysis, CBO estimates that ARRA’s policies had the following effects in the third quarter of calendar year 2011 compared with what would have occurred otherwise:

• They raised real (inflation-adjusted) gross domestic product (GDP) by between 0.3 percent and 1.9 percent,
• They lowered the unemployment rate by between 0.2 percentage points and 1.3 percentage  points,
• They increased the number of people employed by between 0.4 million and 2.4 million, and
• They increased the number of full-time-equivalent (FTE) jobs by 0.5 million to 3.3 million. (Increases in FTE jobs include shifts from part-time to full-time work or overtime and are thus generally larger than increases in the number of employed workers.)

And here’s the full report – it’s not long.

Finally, I need to dispose of a lingering aftertaste left from my local paper, which today wrote:

 In many cases, that is, the stimulus may not have “created” jobs so much as shuffled them around.

This is backed up by research done by the Mercatus Center at George Mason University in Northern Virginia. Researchers there found that in three out of five cases, businesses receiving ARRA money hired people away from other jobs, rather than giving jobs to the unemployed.

When a person leaves a job, in many instances the left-behind job becomes vacant and refilled.  Thus, an employed person leaving a job for another job still creates a job opening.  That’s common sense, but Jon Chait nicely spelled it out a few months back.  The editors at the Times Dispatch, predictably not readers of Chait, are sadly also not patrons of common sense.

Most commentary I’ve read argues that the commerce clause does/does not provide authority to Congress to implement the individual mandate.  The tax and spending clause tends to get mentioned as the mandate being a type of tax.

I haven’t seen much debate on what would seem an easier route to Congressional authority: attaching the mandate a conditional string to health-related funding to the states.  Is that out there and I’ve just missed it?

A policy in which we choose not to have fully private health care and insurance–in other words, one in which we have chosen not to simply let those die that cannot pay for coverage–requires some government spending.  States and the federal government do most of that spending.  I suppose it could be possible for the federal government to get out of the game, and allow that basically moral decision to occur within each state–do we, as a state, wish to create programs like mandatory emergency room coverage, social security, medicare, and medicaid to help prevent death by empty pocket? For now, though, the federal government has a major role in that prevention.  Why can’t it attach conditions to its health-related spending just as the conditions of the drinking age attach to highway funds?

The condition couldn’t be the individual mandate – but could require states accepting funds to implement something that achieves the same goal, which in my mind is getting rid of the incentive to not getting insurance until sick.

(1) In a nutshell, the net neutrality rules forbid internet providers from favoring some content providers over others.  So, for instance, Verizon can’t take a bunch of money from Disney and send along blazing fast ABC programming to your monitor while non-Verizon-paying video producers get throttled.  Rather, internet providers must blindly provide equal access to the highway without special lanes for the paying preferred.

(2) It’s been widely discussed lately that resistance to “control” is at the heart of both the Tea Party and Occupy Wall Street movements, the former concerned with government control and the latter concerned with corporate control.

(3) Hutchison asserts that prohibiting companies from making deals with each other (resulting in faster or slower websites for those of us downstream from the deal-making) is harmful government control.  It is doubtlessly correct that the FCC is exercising some control.  But her comment is in a contextually, and horribly incorrect tunnel of vision looking only at the sphere of companies making deals.

(4) The rules, pretty clearly, do much more to keep control from happening than to allow control.  Net neutrality is basically a mandatory Autobahn.

(5) Thus, Hutchison very ably demonstrated the problem of rhetoric in the dearth of context.  In this case, not many folks were fooled.

Meanwhile, jobs go begging: in Alabama, which passed the nation’s harshest anti-immigrant law; in Georgia, where the governor suggested using convicts to work in the fields after 11,000 jobs went unfilled; and in the orchards of Washington, where the flow to the far north has diminished mainly because of the recession.

Well then, why not hire only people with full citizenship? One farmer in Colorado, John Harold, tried doing just that, hoping to fill harvest positions with jobless locals looking for extra cash. But as my colleague Kirk Johnson reported, many of those locals did not last even a full day; they complained of the hard work in the onion fields of Colorado.

The problem, through good times and bad, is that there are millions of jobs that Americans will not do. The solution, some combination of path to citizenship with guest worker programs, should be within the grasp of the better political minds.

A reasonable conclusion from this premise is that we should allow immigrant to perform work that, if not by law than by some social or physical prohibition, consists of conditions too treacherous for American citizens. Rather than addressing those conditions, we should let these folks seeking citizenship do it. So, before laws improved the conditions of factory jobs from, say, what we read about in Sinclaire’s The Jungle, it would have been appropriate to allow Russian folks to die in those factories that were too treacherous for Americans.

I cannot accept that conclusion.  Rather, there are only two morally appropriate conclusions that, in turn, allow fairly straightforward responses:

1) The work is too treacherous for anyone to perform.

Thus: The farm work should be better regulated.  If work is not safe enough for Americans it is not morally appropriate to benefit from such work from non-Americans, and it is especially inappropriate to allow Americans to facilitate such work.

2) American citizens are too weak or snobbish to perform perfectly acceptable and available work.

Thus: Social norms need to adjust toward acceptance and appreciation of farm work.  If people seek unemployment benefits where farm work is available, they should be required to accept the work or not accept benefits if that work is otherwise within whatever parameters the unemployment folks set out.

As for immigration policy, it should be reasonable and be enforced.  So, regarding those not already in the country, we should debate the policy for entrance.

One last premise with which I disagree: the conflation of immigration and deportation policies.

Immigration policy is different than deportation policy.  So we should also have a clear headed deportation debate.  My proposal: folks that are are fairly established in the country should be allowed to seek legal citizenship if willing to do so.  In that respect, I agree with Timothy Egan’s conclusion while disagreeing with the premise.

The non-codified meaning of a “job creator” is any person that creates a job.  Of course, jobs are not created by people they are created by demand.  People certainly make decisions regarding who to hire and how much to pay them.  But without a duty to perform, there is no job to be done.  Owners and hiring managers can have as money available to them as they want; they will not hire unless there is unmet demand.  The real creation, then, occurs when anything happens that creates the need for paid work.   Restaurant patrons, book buyers, students, litigants, and patients are job creators.

To be sure, people making over $250,000 create jobs because they, too, usually have to pay for goods and services.  But, then, so is everyone else a job creator.   The person making $0 is a job creator when he turns up in an emergency room and gets treated (there’s the job) by a physician that is then paid with tax money (there’re some more jobs – tax collectors, fund administrators, and hospital administrators).

In any event, I searched the news for some quotes to back up the first paragraph’s claim.  Turns out there’re quite a few folks out there irked with the “job creator” talking point.  Some just want to point out that lower tax rates for top income-earners doesn’t create jobs.  Fair enough on the economic point.

But, more to the accuracy of “job creators,”  Robert Friedman wrote a column in The Hill touting the job creation of new businesses:

“Tax cuts for job creators!” It is a rallying cry echoing these days from both ends of Pennsylvania Avenue. For Republicans in Congress it means never raising taxes on the wealthiest 2 percent of the population. The White House, meanwhile, is considering a general reduction in payroll taxes for all.

Both scenarios, however, miss the real job creators: new businesses under one year old and typically unincorporated, which have added an average of 3 million net new jobs a year to the American economy. That’s more than all other categories of business combined, according to recent studies by the National Bureau of Economic Research and the Ewing Marion Kauffman Foundation.

And Mary Sanchez at the Kansas City Star argued that real job creators are those in the middle class:

This middle class is a vast middle tier of those who work to live, and strive to work a little harder to get a little more in life. Middle class people may save, but they don’t accumulate enough wealth to live off. Almost every buck they get, they spend.

That point matters: Spending creates jobs. In our economy, middle class consumers are the real job creators. Depress their income, and you depress employment.

We’ll never get around to holding politicians truly accountable unless this fuzzy middle demographic — a massive one as a potential voting bloc — gets wise about where it came from in the first place, and how it foundered.

The great prosperity of the American middle class in the late 20th century didn’t just magically transpire. The important groundwork was laid by the federal government via investment. Consider what the creation of the federal highway system did for developers and builders who created our suburban communities and all of the businesses that followed. Or the impact of the GI Bill on so many people who returned to the workforce after World War II.

…Much today is made of the massive federal deficit. I have a way we can solve that: more jobs. More jobs mean more growth, more tax revenue. But America’s job creators — middle class consumers — are tapped out. Business owners can’t hire until they have consumers to sell to. That leaves the job of stimulating demand to the government. Time for government to lay the groundwork for our future by investing in our middle class.

These arguments suffer from the same error in the GOP talking point–identifying one segment of the economy as the real job creators.  Friedman’s new businesses are obviously the part of business that will create a bunch of jobs, being that they are new and in need of staff.  And, just a guess here–new business start, fail, start up again, and fail more often than old business; so more new businesses exist each year creating jobs that may or may not last.  But while businesses, whatever the newness, literally do the hiring, the jobs are not there without demand.

Ms. Sanchez gets to the point that demand within the economic system is the trigger to job creation.  But it is a disservice to clarity to begin the analysis of how to stimulate jobs with a favored segment of society already in mind.  The actions and decisions of rich people, middle income people, or low income people may have varying and more or less important roles in the sprouting up of a new job to be done; starting the discussion with one segment of income in mind, though, distorts one’s holistic economic thinking.  Demand often stems from folks in the middle class buying things.  But, as mentioned above, it also stems from rich and poor people getting sick, and the people at the end of the causal chain of demand might not do the paying.