The Birth Control Mess

True or false: an ounce of prevention is worth about 7 lbs. 6 oz. of cure. Somewhere buried in the dust-up over contraception as a health benefit is the the claim that it pays for itself in economic terms. As a result, insurance companies "forced" to give it away will be like Br'er Rabbit hurled mercilessly into the briar patch. As will those Catholic institutions which, their hands clean of actually endorsing contraception, will have lower health insurance bills on account of the preventive benefits that the insurance companies with which they deal are compelled by Big Brother to provide.


So, in effect, The Church is willing to pay for its employees to eschew contraception; indeed, it will help them do so by not paying for contraception. But if an employee chooses to get it on her own, the Church will, presumably, receive the savings as the preventive benefits reduce the cost of the employer's insurance. Moreover, because using contraception saves money, the employee can get it at no charge from the insurance company - which will provide it at no charge only because it is also providing coverage to the employer. In a logical universe, that "only," not to mention the cash benefit, would somehow implicate the institution in the provision of the services. But, fortunately, we're not in a logical universe. We're in church.

Gingrich for Candidate

I'm supporting Newt Gingrich for the Republican nomination in 2012. I don't want any of the current Republican crop to win the election. They don't understand economics worse than BHO doesn't understand economics. Of the two candidates with serious prospects, Romney has disqualified himself as a candidate by his ads that quote BHO out of context, ads that Romney defends, apparently, on the grounds that two wrongs make a right. He's a liar, and as I heard Grover Norquist say just this morning, we shouldn't elect people who lie their way into office.

Actually, that not right. What I don't want is a candidate who lies his way to the nomination, because such a candidate will not be any fun at all to watch try to get elected. What I want is an interesting campaign, and Newt and Barack will bring an intellectual depth to the proceedings that will be refreshing for those of us who have endured nearly a lifetime of brain-dead politics. It won't be Olympian, or even Phialdelphian, but it will be substantive, with at least the possibility of the candidates raising some of the right questions. That's really all one can hope for in a national campaign, and G-d knows, we can't expect the media to ask them.

So if you get a chance, see if you can't get Newt on the ticket, even if you want the GOP to lose (or maybe, especially if you want the GOP to lose). The civics lesson will be worth the price of admission.

2 Broke Girls is Broke

A brief TV review.

I decided to check out 2 Broke Girls on CBS last night.  It's not very good, but that's hardly news.  What is news is a bit of dialog.  The two young women to whom the title refers were shopping in a Good Will Thrift Store.  One picks up a pair of shoes marked at $8 and asks the cashier for a discount.  The other girl says to the first: "I can't believe you're trying to shoe her down."  At the GOOD WILL store, yet.  Oy.

Arizona Christian School Tuition Organization v. Winn

I don't like this case. I don't mind the outcome - the tax credit doesn't bother me. But the Supreme Court has screwed the pooch on standing in Establishment clause cases, and now it is so tied up in knots it can't think straight.

The question in this case is whether the plaintiffs have standing to challenge a tax credit that Arizona is giving to private school donors. most of whom are contributing to religious schools. Let's ignore stare decisis for a moment. No one relies on "standing" jurisdiction in ordering their affairs, so observing precedent isn't terribly important. Suppose, instead that our "standing" jurisprudence consists of (i) the "case or controversy" language in Article III and a prudential notion that a citizen, qua citizen, has no standing to complain of governmental action. One good reason for such a rule is that someone who is actually aggrieved by the government action is a better representative of his side of the argument than a citizen who is merely, allegedly, opposed to it. I mean, how do we know that the complaining citizen is really not just shilling for the government, that he won't lie down and play dead once the case is brought? Moreover, the courts are too busy to waste time on complaints without real complainants. If no one is hurt enough to complain, why bother to address the alleged problem? (I'm sure all of this has been covered ad nauseam in the relevant authorities, but we're just a couple of guys talking here, not legal scholars, so we'll leave reading the authorities to people who get paid.)

In most constitutional matters, the challenged action does affect someone directly. Someone is held liable for exercising free speech, or denied a permit to assemble peaceably, or not allowed to bear arms, or searched unreasonably, or not Mirandized, or denied counsel, or sentenced cruelly and unusually. But is the same thing true of the Establishment clause?

Suppose that Arizona, instead of allowing a tax credit for donations, had gone right out and declared Shinto the "State religion," but only in the sense that the saguaro cactus flower is the state flower, i.e., with no legal consequence to anyone. Who could complain? Who is hurt? Suppose some guy is denied a job by a private employer on the grounds that he is not a follower of Shinto, the employer reasoning, and admitting, that he believes it's good politics and customer relations for him to hire someone of the state's "official" religion. Our victim might then have a case. But doesn't he already have one under Title VII of the Civil Rights Act? Would he ever get to the Establishment clause? Indeed, is it possible to envision a violation of the Establishment clause that prejudices an individual but does not give rise to a complaint under the "equal protection" provision of the Fourteenth Amendment or some civil rights statute or other?

So, as a practical matter, it may well be that the only violations of the Establishment clause that don't have a remedy outside the Establishment clause are those that involve spending public money to favor one metaphysical worldview over one or more others. As a result, perhaps, the chosen avenue of attack has been the taxpayer suit, wherein someone alleges that the government has misspent his money in violation of the Establishment clause, even without a demonstrable link between such action and any individual harm to the complaining taxpayer.

Enter Flast v. Cohen. In that case, the Court held that a taxpayer, qua taxpayer, can contest Congress's exercise of the taxing and spending power, and because any taxing or spending done in violation of the Establishment clause necessarily exceeds Congress's authority to act, a taxpayer can challenge an Establishment clause breach that involves spending or taxing. That may sound narrow, but recall that any other violation of the Establishment clause would almost certainly create an individual harm that would support standing by an actual aggrieved party, under some other provision of law. Thus, Flast effectively created a taxpayer's remedy for "victimless" Establishment clause violations. Or, so it seemed until Arizona Christian STO came along.

Flast seems to me to rely on the legal fiction that the plaintiff taxpayer is aggrieved because it's his money being spent. If, as Chief Justice Warren argued in Flast, standing is required to assure that the parties are "sufficiently adversarial," the tenuous interest of an individual taxpayer in an insignificant government expenditure - the plaintiff's share of which would surely be de minimis in any other context - seems weaker than that of an atheist to be protected from the consequence of that spending. It does not appear that the plaintiffs in Flast complained of harm as non-religious persons, so I don't know what would have happened if they had. Nor does it appear that the plaintiffs in Arizona Christian STO claimed anything beyond taxpayer status. Still, that seems to me the only acceptable basis for an objection to government establishmentarianism.

Arizona Christian STO points up the weakness in Flast as the only basis for standing in Establishment clause cases. Flast opens a back door, and not everyone fits through it. Non-taxpayers don't fit through it, although they may be aggrieved as members of a derogated religious minority. And now, we find, tax credits don't fit through it either. There is something ironically theological about the dispute over whether a tax credit somehow causes the state's income tax to be unconstitutional. Is forgiving a tax the same thing as spending it? The tax laws routinely allow deductions for gifts to religious organizations. Why not a credit? But I won't be lured into counting the angels on that pinhead. The question should never have arisen. Where an Establishment clause issue exists, a plaintiff should be required to show only that he is objecting on the basis of his religious views being denigrated by the state, and not on the general, problematic basis that the taxing authority has overstepped its bounds.

Flast's kludginess also raises an issue of Federalism that bothers me. I get how the Establishment clause is incorporated into the Fourteenth Amendment's guaranty of liberty, but I'm not sure whether the issue of standing to protest the misuse of state funds under a taxing power that does not arise under the U.S. Constitution is governed by Flast. Imagine a state law that, to save the state money, provides that no taxpayer suit may be brought to contest any tax or expenditure where the taxpayer plaintiff's pecuniary interest in the matter is less than $10 per year. Would such a law be unconstitutional? Would it magically become unconstitutional if applied to a case where the bad taxing or spending violated the Establishment clause? If so, would that not, er, establish that Flast is a dodge?

I believe that the plaintiffs in Arizona Christian STO v. Winn should have had standing to press their claim as members of a group disadvantaged by the law, if they could credibly make that claim. I don't know enough about the group to say. Otherwise, they should be denied standing, not because a credit is different from an expenditure - which I suspect it is, but I don't have to decide yet - but because their interest as taxpayers is de minimis and, therefore, their adversarial bona fides are not sufficient under Article III.

Euphemasia – Huck Finn and the Founding Fathers

There’s an Op-Ed this morning in the NYT by Adam Kirsch, Editor of The New Republic, protesting the racial Bowdlerization of The Adventures of Huckleberry Finn (replacing “nigger” with “slave” throughout) and the omission of the so-called “three-fifths compromise” from the reading of the Constitution when Congress opened this week.  Mr. Kirsch called his piece “First Drafts of American History,” and, in that context, I think he is right to complain of the changes.  But life is full of contexts.

First, the more trivial problem of the Constitution.  That document’s text is hardly in danger.  It is the organic law of the land, and it will always be available in its original version for lawyers and scholars and anyone else to read.  What happened in the House of Representatives on opening day was not a reading of the Constitution; it was political theater featuring a reading of the parts of the Constitution that were relevant to the theatrics.  I see absolutely nothing wrong with omitting from that reading whatever cannot be called legally misleading, and if the three-fifths compromise is no longer operative, the House does not advance the project of comparing government’s recent actions to the current version of its authorizing law by including it in a reading of that law. 

The object of the deletion is not to rewrite history.  (I would say “whitewash,” but the unintentional puns and allusions would be confusing.)  The purpose is to shine the light of current organic law on the actions of Congress.  I’m not here to protest any Congressional action as unconstitutional, especially the mandatory aspects of Obamacare, which are fine by me.  But I would defend the decision not to read parts of the original document that are both offensive or embarrassing and no longer operative.  I would be very much against an attempt to publish what purports to be the text of the Constitution without all of its original verbiage, but what the House Republicans did in reading the House’s marching orders seems to me exactly right.

Then there’s Twain.  The problem with Huck Finn is that it’s taught too early.  If it’s as great a book as the experts say – who am I to judge such things? – why isn’t it first taught late enough in school to make ‘nigger” bearable?  On the other hand, if there is a good reason to teach Huck to youngsters, the subtleties of Twain’s views on racism embodied in his method are beyond their ken (which, of course calls into question the reason to read the book in the first place), and they should, indeed, be protected from the surface-level nastiness.

The danger in fiddling with Huck  is not that kids won’t get its anti-racist drift without its real words.  Kids won’t get its drift with its real words.  The problem is that the kids’ text will somehow become the text, that editions that include the original wording will be shunned by libraries now that there’s an anodyne version available, that politically correct colleges will take the easy way out and teach the inoffensive Twain.  What the House of Representative read last week does not purport to be the ur-text of their governing document.  But euphemizing Huck Finn seems to me a dangerous precedent.

The change to Huck Finn is of a piece with other accommodations to dullness and decay in our national way of going.  Should class size be calibrated to an historically high level of absence so that each teacher gets to teach a full classroom?  Should we drop caveat emptor because consumers are too dumb to protect themselves from deceit?  Is the revision of Huck Finn not just the nanny state assuming we aren’t smart enough to read the original?  And is the nanny state right?  Or should we work on toughening our skins?  Will we become too dumb to govern ourselves?   Have we already?

Anyway, I’m fine with that the House did and not fine with what they did to poor Huck. 

The Coming Post-Job Economy

According to The St. Louis Fed, American manufacturing employment, as a percentage of total employment, has been falling for more than sixty years.

(Enlarge.)
Because the American economy grew so rapidly after WWII, manufacturing employment here grew, in absolute numbers, into the 1970’s. In more recent years, however, the decline has been both absolute and relative, and there has been a tremendous increase in the number of jobs created in low-wage countries such as Mexico, China, and India. There is a natural tendency to attribute this shift to competition from low-wage workers. Some of it is, but the problem is not that simple.

American jobs are lost to the cheapest alternative to American labor. Sometimes, that alternative is labor somewhere else; sometimes it’s machinery right here. Domestic labor, foreign labor, and automation compete for the opportunity to produce things for American consumption. Unless American labor is the cheapest alternative, the jobs will be lost to one of the alternatives or the other. “Blaming” only one of those competitors sets us on the wrong path to dealing with our employment woes. If we could eliminate all competition from low wages, we would still have to compete with the machines.

The rise of automation can be seen in the way the loss of manufacturing jobs has affected manufacturing output. Over the past twenty-five years, American manufacturing production actually increased, at least until the 2008 recession hit. The growth has not been spectacular, but clearly, the volume of things our people make has not decreased nearly as fast as the number of our people employed in making them. Free-traders argue from these graphs that automation accounts for most of our job losses (since the volume of outputs has grown) and automation is a good thing because it frees up labor to do other things. I don’t buy either the inference or the platitude.

Clearly, automation has not displaced workers in every industry that has lost jobs. If automation accounted for all of the job loss in America, we’d still be making the same things we were making before, but with fewer workers. Instead, many of those things are being made by cheaper workers somewhere else, and we are making different things, things that rely so heavily on capital and technology to produce that labor is not a factor in their cost. Automation has not displaced workers; it has simply filled the trade vacuum created by poorer countries’ comparative advantage in labor services.

I do think, though, that many of the jobs lost to cheap labor would have been lost to automation if the cheap labor had not been available. If cheaper people had not come along to make the things we used to make, cheaper machines might well have done so. If that’s the case, the problem we face goes well beyond leveling the international playing field.

I do not mean to minimize the effect of cheap foreign labor on our economy. Globalization has eliminated natural barriers between labor pools, creating a trade in labor on a scale probably not seen since the days of slavery.

Labor is a Special Commodity

In David Ricardo’s classic example of comparative advantage, the English made cloth and the Portuguese made wine; in effect, they were trading English rainfall for Portuguese sunshine, capturing economies of scale with respect to each of those resources. Optimizing the use of these non-labor-resources enabled labor in each trading partner to flow to the local industry where it could add the most value. It may have taken a long time for the benefits of trade to “trickle down” to the average worker, but trade created jobs in both countries.

In contrast, much modern trade, especially US trade with Asia, is built on sharing the latter’s human resources, i.e., cheap foreign labor. All of the ordinary implications of trade still hold: prices are lower everywhere, and (first order) aggregate wealth is greater than without the trade. But whereas the cloth/wine trade created jobs in both partners’ export sectors, the man-made/machine-made trade creates few jobs in the high-wage country’s export industries. That sector, by hypothesis, requires fewer people, which means that former manufacturing workers have to find work making something that the high-wage country neither imports nor exports. That’d be sales, personal services and construction labor.

Free traders argue that we are endlessly creative, that we will think of things to pay each other to do that can only be done locally. All trade-based dislocations, they say, require adjustments. In making this argument, they offer an amazing example of chutzpah, citing as a reason for optimism the statistic that we have the most productive workers in the world. Look, they say, at how our productivity has grown:

But this chart can be inferred from the earlier ones: if we are making more things by employing fewer people, the ones still working in manufacturing must be very productive. This type of productivity says nothing about the displaced workers themselves other than that they were less productive than the machines and foreigners who replaced them. Someone has to push the buttons at the robotic factory. That person’s “productivity” does not reflect the skills of the American workforce. All it shows is that, consistent with Ricardo’s observation, the trading partner with a comparative advantage in capital (that’d be us) will trade capital-intensive goods for labor-intensive goods, and vice versa.
Such trade may free up people in the capital-intensive economy to do local work, but it does not create jobs for them in export industries. Every other form of trade creates jobs, but trade for labor does not. That’s why labor is a special commodity and why trade creates the current unemployment problem instead of solving it.

Why all else fails

The capital intensity of our manufacturing sector explains why traditional (Keynesian) efforts to stimulate the economy cannot reduce unemployment here.

Good, old fashioned fiscal stimulus does nothing for our local economy because stimulus spending is about the multiplier – the tendency of spending to create business for suppliers of suppliers of suppliers ad infinitum. Most of those suppliers are assumed to employ people in the economy where the money is spent. Today, however, the supply chain always leads abroad. When we say that something will have an effect on “the economy,” the economy we talking about is global. If we’re importing a lot of labor-intensive goods, we can expect our stimulus to create jobs where those imports are made.

Take a look at our trade with China for 2010, and see how well our stimulus is “working” – for China:

All figures are in millions of U.S. dollars on a nominal basis, not seasonally adjusted unless otherwise specified.

Month	Exports	Imports	Balance
January 2010	6,888.8	25,185.1	-18,296.3
February 2010	6,855.1	23,363.8	-16,508.8
March 2010	7,403.6	24,300.2	-16,896.6
April 2010	6,591.2	25,905.7	-19,314.5
May 2010	6,752.7	29,036.8	-22,284.1
June 2010	6,715.0	32,866.5	-26,151.5
July 2010	7,344.7	33,260.0	-25,915.3
August 2010	7,253.5	35,288.5	-28,035.0
September 2010	7,168.2	34,999.2	-27,830.9
TOTAL	62,972.8	264,205.9	-201,233.1

• 'TOTAL' may not add due to rounding.
• Table reflects only those months for which there was trade.
• SOURCE: U.S. Census Bureau, Foreign Trade Division, Data Dissemination Branch, Washington, D.C. 20233

Spending in the US by anyone – Americans, American governments, or the Chinese sovereign wealth fund – stimulates the economy in China (and, of course, in OPEC’s oilfields, but this post is long enough without dragging them into it). The Chinese recycle our money by lending it to us at low interest rates, but when we spend it here, we spend too much of it on imports, if not on the first go-round, then when the multiplier kicks in and the guy with the new job buys a flat screen TV.

Balancing trade – important as that may be – won’t solve our unemployment problem either. Even if our exports kept pace with our imports, the hours worked would not. By definition, a capital intensive trading partner needs fewer workers than a labor-intensive one to produce the same value of outputs.
By all means, we should try to balance our trade and to end Chinese mercantilist currency manipulation. The trade deficit transfers national wealth, which has strategic implications, and it distorts our capital markets with disastrous consequences. But doing so will not bring back a level of manufacturing employment in the US anything like that of twenty years ago, and any politician who promises that it will do so is doomed to disappoint.

What about infrastructure projects? In boom periods, labor isn’t available to work on the infrastructure, so there is plenty to do when things get tough. But infrastructure work alone is not enough. It might be enough if the multiplier effect were great, but today, it isn’t. Like reducing our trade deficit, we need to enhance our infrastructure, and we should have no qualms about borrowing to do it, but it will only create the direct jobs required to do the actual work. The multiplier will have too much of its effect abroad.

Historically, new industries have sprung up to take advantage of abundant labor. But that was when there was no hole in the employment bucket. If an American had a bright idea, he hired Americans to execute it. Now, we invent it here and build it there. It is in the nature of globalized trade that if an invention generates jobs, it generates them where the labor is cheap. Exceptions exist for things that can only be done locally, but we cannot build an economy on outliers. Every logical avenue ends at the capital intensity of domestic manufacturing. There may always be something new for actual humans to make, but there is no reason to believe under current conditions that those people will be Americans.

So, for now, the jobs that remain here – jobs outside the manufacturing sector, which has either been outsourced our automated – are in the personal service sector, where productivity is much lower than in manufacturing. Those jobs pay lower wages than US manufacturing jobs, a problem exacerbated by the oversupply of people available to do them. Training may put people back to work at these jobs, but it won’t send them and their families to Disney World.

And so we come to the place where classical economic theory meets political reality. The theory says that in the long run, we will adjust. We will find something to do. How long that will take, and with what alterations in our way of life are questions to which the theory is wholly indifferent. We cannot logically argue against the eventual outcome if the system is given enough time to sort things out. But Keynes wasn’t kidding when he said that in the long run we are all dead. There is no guaranty that we will, or should, have the patience to let the system sort things out. The system will not sort things out if social unrest destroys our democracy before it does.

When all else fails…

Having ruled out the usual job-creating suspects, we need to think outside the box. I think that means making our economic life as capital intensive as our manufacturing, to require only as much work from people as the economy has good work to offer, and to find away to share the benefits of the work others and machines are willing to do.

The recommendation that we not have to work all our lives to live all our lives does not imply that talents and energy should be wasted. But it does recognize that to get back to anything like full employment, we will have to put some very square pegs into some very round holes. Specifically, would-be manufacturing workers will have to become healthcare workers. There are other things that can only be done locally – construction and oil-drilling, for example – but the opportunities are limited. What cheap foreign labor has freed us up to do, and what we need lots of, is healthcare. But it seems fair to at least ask how well the actual human resources that America has to offer match up with these jobs that Americans need done.

The issue is fraught with gender politics. The only thing we need more of that lends itself to male proclivities is military service. It’s never a good thing when a country’s outlet for its excess testosterone is the battlefield. Temporarily, we are in the opposite situation: too many wars and not enough fighters. But if we can get past Iraq and Afghanistan, we really don’t want war to be the most attractive option for our young men.

In contrast, healthcare is essentially a feminine pursuit. Doctors have historically been men, but that’s changing, and a political and social consensus exists that women can do the job as well as men. I suppose there’s a certain amount of machismo in the operating room, but, again, the issue isn’t super-surgeons; it’s “ordinary” physicians and nurses and aides and technicians – jobs that there are a lot of, jobs whose salaries make the future of Medicare so daunting. Not having to manufacture has freed “us” up to do these jobs. What’s not clear, though, is exactly who will do them, with what implications for our social structure.

Toward a Post-Job Economy

Maybe we need to go back to the premise behind our jobs-based economy. At the end of the day, using jobs to allocate goods and services is simply one technology for doing so. There are others. Capitalism allocates goods and services to those who risk their capital. Communism allocates goods and services based on need. As a practical matter, we cannot all be capitalists: nothing would get done if no one labors. And if money needn’t be earned, nothing gets done either. So Jobs are how we make things, and jobs are how we get things.

The key, I think, is to recognize that our manufacturing sector will be permanently capital intensive. It may be capital intensive now because foreign labor is cheap, but even if foreign labor becomes more expensive, our inventors will step up and take their place. We are already seeing a concentration of wealth in the hands of those who own highly productive businesses. That concentration is unhealthy, and I believe we need to divert the flow of some of that wealth to people who have worked a “full” career, as adjusted to reflect the capital intensity of our industry.

Obviously, this is radical medicine, as it denies the ethical supremacy of the market and the associated degree of autonomy in the business sector. The anti-trust laws offer a good intellectual model for tampering with the “free” market. Those laws interfere tremendously in the unfettered activities of business titans. Why not allow a cartel? Lots of economies of scale, no destructive price wars, one-stop shopping. And yet, history teaches that the corrupting effect of power trumps the efficiencies of focus. Competition is good for consumers, but it is not good for monopolists. Competition requires meddling in the way business is done. So we meddle.

The same arguments apply to the concentration of wealth resulting from a capital-intensive economy. In a labor-intensive industry, the assets go home at night, and nobody owns them. In a capital-intensive industry, the assets are turned off at night (sometimes), and as few as one person may own them. So long as we have a mix of industry types, the workers do all right. But when workers, as a group, have nothing to sell, because foreigners or machines are under-pricing them, ownership of manufacturing assets shifts to the few who own capital-intensive businesses, and that is not a politically acceptable equilibrium.

Sadly, diagnosis does not always result in useful prescription. Marx understood the ills of capitalism quite well, but he didn’t have clue how to set up a better arrangement. The Europeans are in a mess now because they tried to do what I’m saying must be done – pay people not to work. They have proved either that it can’t be done, or that it can’t be done the way they tried to do it. I’m not sure what happens in France when they raise the early retirement age. If people work longer, other people won’t work at all, unless the austerity creates jobs, which is not how such things usually play out.

I do not know enough about the capital-intensity or concentration of wealth in Europe to draw strong inferences from those countries’ woes. I do understand, though, that a government can promise too much and tax too heavily. Still, if we are to allow trade or automation, we will have a capital-intensive economy, which means that we must do something about the concentration of wealth, and we must either find a way for low-productivity local jobs to pay what high-productivity jobs pay or for jobs to not be the way goods and services are allocated in our economy.

One way to reduce unemployment is to restore the one-earner family as the national business model. That would cut the (paid) adult workforce almost in half. The one-earner family has advantages over simply shortening working lives to thin the workforce: it allows people to work longer, which means that talents and skills are not wasted in early retirement, and it frees up one member of the family to rear the children, which is not a bad thing. But that sounds like trying to put Jeannie back in the bottle even before we look at the job the one earner would be doing. If that job is nursing, … well, as I said, the problem is fraught with gender politics. (If the one-earner thing happens, it will not be by political action but by peer pressure from out-of-work families on their two-job neighbors.)

In a labor-intensive society, people must work for a living. But in a capital-intensive society, we must all become capitalists. Since we cannot do that directly – the allocation of capital is a skill with enormous economies of scale – we must do the next best thing: tax the actual capitalists enough to keep the rest of us well fed (but not so much that they lose interest). Taxes, of course, take lots of forms, and not all taxes discourage economic activity. The Obamacare provision allowing “children” to stay on their parents’ health plans to age 26, which pays young people not to work, imposes a tax through the employers whose healthcare costs rise accordingly. Happily, 22-26 year olds are the cheapest to insure, so the tax does its job very efficiently.

I admit that what I am describing has an annoying European feel. Haven’t we seen this movie, and doesn’t it end badly? I’m inclined to a more granular view. The social democracies of Western Europe may have been too generous for their specific capital bases – too much cargo, too little engine. Giving displacement of American workers the best possible spin, let’s just say that our economy has achieved unprecedented productivity. Of course, the “natural” equilibrium of such an economy features concentrated, dynastic wealth. We must make that equilibrium something else – a level of general prosperity similar to when one manufacturing paycheck could support a family very nicely.

There is no logical or doctrinal obstacle to that result. I’m not proposing a communistic redistribution of wealth or a needs-based allocation of goods and services (although I would means-test all benefits by taxing them in the hands of high earners). People should work productively at some time in their lives, and, most important, their post-work lives (and, maybe the pre-work lives of their children) should reflect their actual contribution to the economy. I just believe that a larger portion of commercial revenues should go to compensation, not as wages, but as pensions and other benefits paid to people for leaving the playing field to the next generation of workers in the increasingly shrinking workforce. (Yes, this is wasteful of talent and skill, so feel free to support the one-earner-per-family alternative if you have the, er, courage.)

It may turn out that we cannot prosper in our two-earner model unless most of our people are employed in making the things we use. If so, we’re in trouble, because competition from cheap labor (and tariff-nullifying machines) will not go away. But everything turns on specific, contingent facts. The question cannot be answered with generalities or lazy inferences from others’ failures. Everyone who tried to invent a flying machine before the Wright Brothers failed, but none proved that a flying machine could not be built. We are not going to become less capital-intensive anytime soon. We should at least try to treat the challenge as opportunity.

Corporations and Free Speech

As the election approaches, some thoughts about Citizens United v Federal Election Commission, 558 U.S. 50 (2010).

I don’t want to get into jurisprudential issues raised by the decision. I’m more interested in what this aspect of our law should be than in what it actually may be. I tend to agree with Justice Stevens that the issue of corporate speech per se should probably have waited for a better fact situation, but such procedural business, like the proper respect for stare decisis in Constitutional cases, are not what I’m here about. I want to talk about corporate-sponsored political speech.

I think the whole “corporate speech” issue is a red herring. Corporations don’t “speak” any more than they pay taxes. People do both. The only question in the matter of corporate speech is whose money is being spent with what authorization. Instead of asking whether a “corporation” is a person, we should be asking whether a person’s right to free speech is affected by how he funds his soapbox. I cannot fathom how that should make a difference.

If I can stand on the street corner and declaim my distaste for Hillary Clinton’s candidacy to anyone who will listen, I don’t see why I should lose that right when the street corner is a web site, or I pay someone to record my message in stentorian tones, or I add pictures, or I decide to sell copies of my production, or I create a corporation to provide limited liability with respect to my (non-tortious) activities, or I raise money for the whole thing from people or companies. It’s still me “speaking.”

Nor do I lose my protection if I wear a mask when I speak. Anonymity is part of free speech. If you want to distrust me because I won’t reveal my identity or agenda, feel free. That’s your privilege. Mine is to choose to pay for my anonymity by sacrificing such credibility as it may lose me. If the KKK can wear hoods to its marches, I can wear a corporate veil on my website.

I really dislike the “electioneering communication” device involved in Citizens United. The relevant statute restricts corporate speech in the last few days of a campaign for reasons presumably – why else use the term “electioneering”? – analogous to those that justify banning last-minute speech at polling sites. I haven’t researched the electioneering cases, but I can easily see how “speech” at the polling place can be intimidating, so I fully agree with restrictions being placed upon it. But publication, as opposed to actual physical presence, cannot intimidate. It can mislead – in the same way that the term “electioneering communication” misleads – but that’s a risk we have always run, and I don’t see how we can say that we will risk having people who spend their money themselves mislead us but not those who authorize others (e.g., the managers of their corporate wealth) to do so. So the whole “electioneering communication” concept just smells bad.

The seminal case overruled by Citizens United is Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990). Austin was not about intimidation so much as the fear of corruption, or the appearance thereof. The syllabus to that case states:

Although 54(1)'s requirements burden the Chamber's exercise of political expression, see FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 252 (MCFL), they are justified by a compelling state interest: preventing corruption or the appearance of corruption in the political arena by reducing the threat that huge corporate treasuries, which are amassed with the aid of favorable state laws and have little or no correlation to the public's support for the corporation's political ideas, will be used to influence unfairly election outcomes.

This argument misconstrues the very nature of politics itself in a way unique, I think, to liberal censors. What are we to make of “the threat that huge corporate treasuries, which are amassed with the aid of favorable state laws and have little or no correlation to the public's support for the corporation's political ideas, will be used to influence unfairly election outcomes.”? Let’s break it down.

Does size matter? Certainly, not all corporations have “huge” treasuries. Most do not. But under the laws at issue in Austin and Citizens United, all corporations are restricted by virtue of their form and not their size. And what possible relevance does the fact that the these treasuries were “amassed” with favorable state laws have to do with the matter? Can you imagine removing that fact and coming out with a different Constitutional result? Isn’t all private property “amassed with the aid of favorable state laws”? Indeed, doesn’t the corporation’s reliance on state laws give it a political interest in what those laws will be?

And that’s where Austin goes entirely off the rails. What does the public’s support for a corporation’s political ideas have to do with free speech? Politics is not about ideas; it’s about interests. The corporation’s treasury is the collective wealth of its owners. Advocacy of the owners’ political interests, not the public’s support for the “corporation’s political ideas,” whatever those might be, is what the Constitution protects. If the owners of the corporation’s treasury have authorized the corporation's management to speak on the owners’ behalf, what business is it of anyone to say “no”?

I don’t believe the PAC exception solves this problem. I have political interests as a shareholder that it seems entirely proper for my corporate managers to pursue on my behalf. That’s why a corporation can hire lobbyists to promote its shareholders’ interests. I don’t have to agree with the view that my corporation’s lobbyists espouse, and I don’t have to pony up more of my own money to enable the corporation to lobby on my behalf. Why should the election of officials be any different?

That leaves the question of what it means to influence election outcomes “unfairly.” We are not talking about voting early and often. We’re talking about one set of interest-holders being heard disproportionately because of the access to advertising that their money can buy. Where’s the unfairness? Is “equal time” a Constitutionally protected right of all interest-holders?

How many of the people one can fool how much of the time is important, but when the answer is “too many, too often,” the solution is not to restrain those who would do the fooling. The solution is a more savvy citizenry. Teach you children well, and all the bluster in the world will not avail the charlatans. McCain-Feingold and its supporters say, in effect, that the American people are too stupid for full-throated democracy.

In short, nothing in this lynchpin description of the rationale for suppressing corporate speech makes a whit of Constitutional sense. So I don’t believe Austin will be missed. Requiescat in pace.