Over at Downsizing the Federal Government, we focused on the following issues this past week:

• The “government efficiency” snake-oil salesmanship from politicians has become tiresome, especially when it comes from high-profile Republicans like Mitt Romney.
• An establishment commission is planning to “reform the nation’s housing policy by crafting a package of realistic and actionable policy recommendations” for the Beltway establishment’s consideration. Hold onto your wallets, taxpayers.
• Certain people saw the “Christmas Tree Tax” as an opportunity to further partisan aims rather than provoke a discussion and debate on the proper role of the federal government.
• On so-called shallow loss proposals to provide subsidies for farms in cases when farm revenues fall slightly below the record high levels of the past few years.
• Politicians who fixate on “government efficiency” probably aren’t truly interested in reducing the size and scope of government.

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I’m not a fan of international bureaucracies.

I’ve criticized the United Nations for wanting global taxes. I’ve condemned the International Monetary Fund for promoting bigger government. I’ve even excoriated the largely unknown Basel Committee on Banking Supervision for misguided regulations that contributed to the financial crisis.

But the worse international bureaucracy, at least when measured on a per-dollar-spent basis, has to be the Paris-based Organization for Economic Cooperation and Development.

[caption align=right]

OECD Headquarters: Living the good life at US expense[/caption]

American taxpayers finance nearly one-fourth of the OECD’s budget, at a cost of more than $100 million per year, and in exchange we get a never-ending stream of bad policy recommendations.

This Center for Freedom and Prosperity study has all the gory details. The OECD bureaucrats (who get tax-free salaries, by the way) endorsed Obamacare, supported the failed stimulus, and are big advocates of a value-added tax for America.

What’s especially frustrating is that the OECD initially was designed to be a relatively innocuous bureaucracy that focused on statistics. Indeed, it was even viewed as a free-market counterpart to the Soviet Bloc’s Council for Mutual Economic Assistance.

My, how things change.

Perhaps the most odious example of bad OECD policy is the campaign against tax competition. Beginning during the 1990s, the OECD has attacked low-tax jurisdiction for the supposed crime of having good tax laws that attract jobs and capital from high-tax nations such as France and Greece.

So why did the OECD launch this project to prop up Europe’s welfare states? The answer can be found in an excellent new study from Professor Andrew Morriss at the University of Alabama Law School and Lotta Moberg, a Ph.D student in economics at George Mason University.

It’s a publication designed for academic journals, but it avoids jargon and gibberish, so a regular person can read and understand how the OECD has morphed from a harmless (though presumably still wasteful) bureaucracy into a force for global statism. Here are some of the key findings in the study.

[T]his transition was in part the result of entrepreneurship by a group of OECD staff, who spotted an opportunity to expand their mission, bringing with it a concomitant increase in resources and prestige. They accomplished this by providing a framework for interests within a group of high tax states to create a cartel that would channel competition in tax policy away from areas where those states had a competitive disadvantage and toward areas in which they had a competitive advantage. …These states then sought to restrict tax competition, which in turn required them to create a means of delegitimizing such competition and by preventing each other from defecting from the cartel by lowering tax rates unilaterally. …The French … realized that single-country financial controls were unworkable within a global financial system.

In other words, the bureaucrats at the OECD and governments from decrepit welfare states like France both saw a benefit in creating a tax cartel.

This “OPEC for politicians” is grossly contrary to good tax policy, international comity, and national sovereignty. But those factors didn’t matter.

Unfortunately, it’s quite likely that we will see further schemes from the OECD and other international bureaucracies. The politicians have learned that transnational cartels increase their power.

[T]he evolution of the OECD from a facilitator of economic competition to a cartel enforcer represents something new in international organization behavior. …The cartelization of tax policy is an important effort to hold off the impact of the forces unleashed by competition on a more level playing field, but it is certainly not the only one. …If the opportunity is provided, it may be better from a politician’s point of view to form a cartel on taxation as a protection. With a cartel, there are fewer constraints on domestic policy, improving the politicians’ welfare by increasing the degrees of freedom available to satisfy domestic constituents and win re-election.

This video has more information on why the OECD is contrary to the interests of American taxpayers.

Needless to say, it is outrageous that the politicians in Washington are sending more than $100 million to Paris every year to subsidize this bureaucracy. For all intents and purposes, we are being coerced into paying for a bunch of European bureaucrats so they can then advocate even bigger government in the United States.

And those bureaucrats get tax-free salaries while pushing for higher taxes for the rest of us!

Can anyone think of a more destructive item in the federal budget, at least when measured on a per-dollar-spent basis? I can’t. That’s why I’ve been fighting the OECD for years, even to the point that the bureaucrats threatened to put me in a Mexican jail for the “crime” of standing in the public lobby of a public hotel.

By the time I stopped working for Sen. Tom Coburn (R‑OK), I had concluded that the pursuance of so-called “government efficiency” was largely a misguided waste of time for a politician who was interested in achieving smaller government. (I’ve been pleased to see my old boss spend more time trying to cut and eliminate programs since my departure.)

By the time I stopped working for Gov. Mitch Daniels, I had concluded that most politicians probably just pursue “government efficiency” for cheap p.r. purposes: take care of the special interests first, buy votes, and tell the suckers taxpayers that you care deeply about how their money is being spent. And as I’ve discussed in the past, to the degree that the governor’s office was really interested in saving money, it was because they wanted to free up funds to spend on Mitch’s “priorities.”

Put President Obama in the Daniels category. From the New York Times:

Cutting wasteful government spending is one of those exercises that even the most ardent political opponents agree is a good thing. But what one does with those savings is quite another matter.

On Wednesday, President Obama signed an executive order cutting federal spending on things like promotional plaques and mugs, cellphones and iPads, official travel, and chauffeured cars for senior officials.

‘It doesn’t replace the importance of the work that Congress needs to do in coming up with a balanced, bold plan to reduce our deficit,’ Mr. Obama said in a ceremony in the Oval Office, ‘but it indicates once again that there are things we can do right now that will actually deliver better government more efficiently.’

In fact, the administration said, only a small portion of the $4 billion in annual savings will go toward reducing the deficit. Rather, the money will be spent on other programs, like helping veterans re-enter the work force or improving the nation’s infrastructure, which the White House contends are more worthwhile.

As Forrest Gump might have put it, “Republicans and Democrats goes together like peas and carrots.”

This post was co-authored by Cato legal associate Chaim Gordon.

Freedom-loving lawyers everywhere recoil in horror at the mere mention of “footnote four.” In that infamous citation in the 1938 case of Carolene Products, the Supreme Court officially renounced judicial review of laws that infringe on economic liberty. This week, in his dissent from the D.C. Circuit opinion that upheld the individual mandate on Commerce Clause grounds, Judge Brett Kavanaugh added his own dubious “footnote four.”

Judge Kavanaugh’s 65-page dissent was devoted to his parsimonious reading of various provisions in the Internal Revenue Code, culminating in the conclusion that the Anti-Injunction Act robbed federal courts of jurisdiction to hear the case until the mandate penalty is actually enforced. As Judge Kavanaugh noted, “the Tax Code is never a walk in the park.” But the Tax Code is even more grueling when you are given lousy legal advice. And that is why footnote four — in which Judge Kavanaugh inexplicably decides to publicly thank former IRS commissioners Mortimer Caplin and Sheldon Cohen and their counsel for their amicus brief — is so troubling. Here is his footnote four:

Both sides before us want this case decided now and contend that the Anti-Injunction Act does not bar this suit. The amicus brief of former IRS Commissioners Mortimer Caplin and Sheldon Cohen, submitted by able counsel Alan Morrison, cogently argued the opposite position. The Court is grateful to amici and counsel for their assistance.

But it is entirely unclear why Commissioners Caplin and Cohen and Counsel Morrison deserve the court’s thanks. For starters, the Caplin and Cohen brief was not advocating either of Judge Kavanaugh’s nuanced readings — be they correct or not — of various provisions in the Internal Revenue Code. (It did, however, make one of Kavanaugh’s main arguments in response to one of the government’s arguments toards the end of the brief.) Rather, the Caplin and Cohen brief broadly asserts that the AIA “prevents courts from reviewing all claims involving payments under the Code, not just those labeled taxes.”

The problem is that, in support of this broad, sweeping assertion, the Caplin and Cohen brief misleadingly cites cases that do not support its claim. That is, almost all the cases cited by the Caplin and Cohen brief specifically relied upon the fact that the penalties at issue were found in chapter 68 of the IRC or were part of a larger taxing scheme (as in the Mobile Republican case). But you would not know that from reading the Caplin and Cohen brief.

Take, for example, the Caplin and Cohen brief’s citation to Shaw v. United States and Botta v. Scanlon as “perhaps the best illustration of the breadth of the applicability of” the AIA. What the Caplin and Cohen brief does not say is that both of these cases specifically rely upon provisions in the IRC that define the penalty at issue in those cases (under section 6672) as taxes for the purposes of the AIA. Those provisions, by their own terms, only apply to penalties under chapter 68 of the Code, and the penalty for violating the individual mandate is in chapter 48.

This is really green-eyshade stuff, we know, but that’s what this litigation has come to — and it’s why tax lawyers are not suffering the higher rates of unemployment of their peers in other specialties.

To make matters worse, Caplin and Cohen filed essentially the same amicus brief with the Supreme Court in one of the cases that the Court will take up at its cert petition conference this week. This is especially alarming because the government has urged the Court to appoint an amicus counsel to argue for the position that the AIA applies to the penalty for violating the individual mandate (even though the government now agrees with the mandate’s challengers that the AIA does not apply).

We think the justices’ clerks are fully capable of advising their bosses on the pro-AIA arguments, which in any event does not apply to the 26 state plaintiffs in the Eleventh Circuit case. Plus the Court has the Fourth Circuit’s and now Judge Kavanaugh’s thorough “briefs.” If the Court does decide to appoint an amicus to argue that issue, however, let’s hope that it receives better legal advice than the D.C. Circuit got from Caplin and Cohen.

The Drudge Report’s headlining of a Heritage Foundation story titled “Obama Couldn’t Wait: His New Christmas Tree Tax” has created quite a stir. In fact, it is being reported that the administration is now going to delay its implementation due to the outcry. Conservatives and Republicans are particularly incensed. However, it appears that they might want to rethink their Obama-as-Grinch narrative.

The National Taxpayer Union’s Demian Brady posted a link on his Facebook page to the 1996 bill that enabled the U.S. Department of Agriculture to implement a “Christmas Tree Tax.” As it turns out, the legislation was sponsored by then Rep. Pat Roberts – a Kansas Republican. John Boehner, the current Republican Speaker of the House, was one of the bill’s co-sponsors. The vote in the House was 318 to 89 with most of the “no” votes coming from Democrats. In the Senate, the vote was 74 to 26. Sen. John McCain was the only Republican to vote “no.”

As for the “Christmas Tree Tax” itself, my colleague Jim Harper is correct that it is indeed a tax (see also Ilya Shapiro’s post). It’s another example of how special interests – in this case, the Christmas tree lobby (!) – dominate policymaking in Washington, regardless of which party is in control. I would argue that there is no good practical, moral, or constitutional justification for the federal government to be involved in the marketing campaigns of business interests. Unfortunately, certain people saw the “Christmas Tree Tax” as an opportunity to further partisan aims rather than provoke a discussion and debate on the proper role of the federal government.

There has been much written recently about the so-called shallow loss proposals to provide subsidies for farms in cases when farm revenues fall slightly below the record high levels of the past few years. The proposals come from a bi-partisan collection of influential farm state legislators, such as Rep. Collin Peterson (D., MN) and Senator Richard Lugar (R, IN) et al., and commodity groups such as the National Cotton Council. (The Congressional Research Service has prepared a helpful summary of the proposals). All suggest that new and expanded subsidy programs are needed to help farmers manage untoward risks of farming. These ideas have even gotten support from some long time advocates for farm policy reform such as the distinguished former Agriculture Secretary and U.S. Trade Representative Clayton Yeutter.

Let us take a step back and put these proposed programs in context. First, since the middle of the last decade farm prices for the major grains, oil seeds and cotton have doubled or more than doubled and are expected to remain elevated. This has meant that the long-standing support programs with their fixed congressionally mandated support prices no longer trigger payments. Projections for the next decade suggest that prices are unlikely to drop back to below the established support prices. Since there is no support for simply raising the government set minimum prices, and simply paying farmers and farmland owners based on their history of having political clout (as was established in 1996) now seems infeasible, commodity groups needed another formulation to continue to receive significant government payments.

One way to ratchet up supports and lock in high revenues is to tie payments not to price per se, but to revenue. Hence the new proposals each include variants of the idea that when revenue declines by 5 or ten percent below what farmers of a particular commodity have come to expect, the taxpayer would make payments to fill the gap. Thus, this year, with harvest time price of soybeans about 10 percent below the futures price established last winter, government payments would kick in under some proposals. Even now under subsidized crop insurance programs, farms or county yields as little as 5 percent below average would be enough to trigger crop insurance payments in some cases. Notice this would happen with a price of soybeans of more than $12 per bushel when the average farm price from 2004 to 2006 (not a particularly low-price period) was below $6.00 per bushel. In other words, historically high prices have become the new “benchmark” for support. Talk about a ratchet effect.

We can use insurance information to get a sense of how much the proposed programs are designed to satisfy farmers latent demand for “risk management.” Under the current crop insurance program with more than 50% premium subsidies, additional subsidies for program delivery, and subsidies to cover losses of insurance companies, relatively few farmers buy insurance to cover losses above 20 percent. And, as premium subsidies decline farmers abandon insurance altogether. Farmers employ many risk management strategies from diversification and crop rotation to storage and use of forward contracts. Given these options, they do not choose to buy more risk management when asked to pay a major share of the costs. The opportunity to lock in high revenues with expected payoffs likely to be in the billions of dollars is not about risk but about higher returns, and no operation can afford to turn down higher returns with little or no risk.

Finally, there are two further problems with the argument that farming is especially risky and therefore taxpayers must continue to provide payments whenever revenue targets are not met.

First, notice that this idea only seems to apply to that subset of farm commodities that have received the traditional farm subsidies since the 1930s. There are no proposals for massive “shallow loss” subsidies for industries such as fruits, vegetables, tree nuts, broilers, hay, hogs, beef cattle, greenhouse and nursery products, eggs or seeds. These industries are at least as risky as corn and soybeans, but they have not traditionally been subsidized to the degree to which some crops have become accustomed. (As an aside, there is no evidence that the long term prosperity or productivity of the heavily subsidized industries is higher than the less subsidized farm commodity industries.)

Second, the debt to equity ratio of the subsidized farm sectors does not make them particularly vulnerable. In fact farm debt is well below 15 percent of equity. Moreover, most farms have substantial non-farm income and most farmers work off the farm or get retirement income from non-farm occupations. The farmers that are least likely to work off the farm operate the largest farms and practice a number of risk management strategies. Thus, relatively few farms are in danger going under. Farming is a risky business, but, given how they are organized, there is nothing particularly risky about farming compared to other businesses.

Under the new “risk management” proposals, any individual farm would gain from access to government payments when market revenue falls below some recent average or pre-set target. That said, there is simply no evidence or consistent reasoning for subsidies whether rationalized by “risk management” or one of the other dozen or so common claims (see page 12 of this book by Stanford University’s Woods Institute). Furthermore, there is no evidence that the long term prosperity of agriculture is enhanced by government subsidies or that U.S. farming is more productive or that Americans eat better because we have spent trillions of dollars on farm subsidies over the past seven decades. The best argument for farm subsidies is that we have always had them and change is hard. But, that argument has been stretched a bit thin and this period of record farm profits and record government budget deficits is an ideal time to finally cut the cord.

(Other papers critical of recent “risk management” proposals and well worth your time are a piece written by Bruce Babcock for the Environmental Working Group and one by Barry Goodwin and Vince Smith for AEI. For a recent broader evaluation of farm subsidies visit my paper written jointly with Barry and Vince and published by AEI).

Forced to cut its budget, the Agriculture Department has decided to eliminate dozens of reports, including the annual goat census (current population: three million), and the number of catfish on the nation’s fish farms (177 million, not counting the small fry).

[New York Times, Business Day section]