Some of the biggest Environmental Protection Agency abuses of property rights (see last term’s Sackett case and this term’s Koontz case) stem from expansive interpretations of the Clean Water Act. The EPA imposes huge costs on people who want to do anything on their property, claiming the agency has the authority to regulate “wetlands.” The agency is only supposed to have authority to regulate discharges to “navigable” waters, but the jurisprudence here is so confused that it’s become an area ripe for federal overreach. This week a group of Republican senators (Rand Paul, Mike Lee, Marco Rubio, David Vitter, and Mitch McConnell) introduced a bill that’s an excellent step to addressing the federal government’s endemic property rights violations. The Defense of Environment and Property Act of 2013 does a number of very good things:

1. Narrows the definition of “navigable waters” to waters that are “navigable-in-fact” or “permanent, standing, or continuously flowing bodies of water … that are connected to waters that are navigable-in-fact,” with explicit exclusions for such things as rainfall drainage channels and wetlands without a continuous connection to “waters of the United States”;
2. Directs that the EPA and Army Corps of Engineers shall not impinge on the primary power of states over land and water use;
3. Gives landowners judicial review in federal court within 30 days of any claim of federal authority over their land or water resources;
4. Makes clear that ground water is state, not federal water;
5. Eliminates the so-called “signficant nexus test” that the EPA often uses to assert jurisdiction over otherwise non-federal lands;
6. Strikes down various regulations and agency guidances;
7. Requires a landowner’s consent before federal agents can enter his property to collect information regarding navigable waters;
8. Defines as a regulatory taking any loss of value of land due to navigable-water-related regulation and compensates the landowner twice the value of that loss.

Unlike most legislation before Congress, this bill would help a lot of people very quickly in a very direct way. I hope Congress acts on it.

Last week I discussed the tendency for policymakers to treat the Pentagon like a giant jobs program. It was prompted by an article from the Associated Press on members of Congress shoving unwanted upgraded Abrams tanks down taxpayers’ throats because retooling tanks sustains jobs back in the district. As it turns out, former Reagan budget director David Stockman touches on the Abrams tank situation in his new book, The Great Deformation. 

In Chapter 5, “Triumph of the Warfare State,” Stockman gives an account of the behind-the-scenes dealings that resulted in the massive military buildup during the Reagan administration. Stockman says political calculations—and not “one scintilla of bottoms-up program detail or even a single hour of professional analysis”—drove the new Reagan administration to champion 7 percent (real) growth in defense spending every year for five years (1982–1986), and from an already elevated level. According to Stockman, the “7 percent real growth top line” was a “blank check” for the Pentagon to go on a spending binge, much to the pleasure of the military-industrial complex. 

From p. 74: 

No fresh start or strategically coherent defense plan was ever developed by the Reagan administration. This immense, content-free “top line” was simply backfilled by the greatest stampede of Pentagon log-rolling and budget aggrandizement by the military-industrial complex ever recorded. 

In a process that went on week after week for the better part of a year, the huge swaths of empty budget space under the new defense “top line” were converted into more and more of virtually everything that inhabited the Pentagon’s vasty deep. Much of it, which had languished for years and decades on the wish lists of the brass and military contractors, now got funded without much ado. 

With defense funds being virtually slopped onto the waiting plates of the four military services, it is not surprising that much of it went to the conventional forces. Notwithstanding all the scary stories about the nascent Soviet nuclear first-strike capabilities, there really weren’t many concrete programs to counter it except for a new strategic bomber and an MX missile upgrade. 

At the heart of the Reagan defense buildup, therefore, was a great double shuffle. The war drums were sounding a strategic nuclear threat that virtually imperiled American civilization. Yet the money was actually being allocated to tanks, amphibious landing craft, close air support helicopters, and a vast conventional armada of ships and planes. 

These weapons were of little use in the existing nuclear standoff, but were well suited to imperialistic missions of invasion and occupation. Ironically, therefore, the Reagan defense buildup was justified by an Evil Empire that was rapidly fading but was eventually used to launch elective wars against an Axis of Evil which didn’t even exist. 

That leads to the Abrams tank. 

From pp. 77–78: 

The two big land war programs launched during the Reagan build-up—the upgraded Abrams Tank and the Bradley Fighting Vehicle—experienced a similar untoward evolution. At the time of the Reagan top line windfall in 1981, there was ferocious debate among the experts as to whether a new, more expensive generation of the M1 tank should be developed. 

Yet issues of cost and efficiency were no longer even debatable after the 7 percent growth top line became operative on January 30, 1981. The empty space in DOD’s new $1.46 trillion plan was so vast that both programs were sucked into its budget like air rushing into a vacuum. Over the next decade 7,000 Bradley’s and 6,000 M1 Abrams tanks were procured—useless weapons against a Soviet nuclear strike, but ideal missions of invasion and occupation. 

Moreover, once Bradley and Abrams production lines were open, the odds of closing them down were between slim and none. Armored battlefield vehicles consist of an intensive mix of iron, precision machining, and complex electronic components and circuitry—which is to say, they are a “jobs program” par excellence. 

The case can be seen in Lima, Ohio, where the M1 tank line refuses to shut down—40 years after the 7 percent top line brought it unnecessarily to life. Since then all of the nation’s industrial enemies have either expired, as in the case of the Soviets, or retired to civilian life, as in the case of China. 

What passes for a state-based enemy is [Iran,] a nation of 78 million deeply unhappy citizens ruled by twelfth-century mullahs, whose major act of aggression over the past thirty years was to repel an attack by its Iraqi neighbor with twelve-year-old soldiers carrying stick rifles. Still, the military-industrial complex manages to keep retooling, upgrading, and modernizing its fleet of 9,000 Abrams tanks as if the Berlin crisis of 1961 never ended.  

Agree with Stockman or not, one can’t deny that he’s a colorful writer! 

A new study this week finds that school mothers overwhelmingly support school choice. According to the Friedman Foundation’s survey, 69 percent of American mothers of school-aged children supported scholarship tax credit (STC) programs while only 19 percent opposed them. Americans in general support STC programs by a margin of 66 percent to 24 percent and non-schoolers support them 64 percent to 26 percent.

The survey found even higher support for STC programs among political independents, middle-income families, and African Americans (72 percent each). The greatest opposition (35 percent) came from high-income families who are already financially able to live in a district with a high-performing public school or to pay for their children to attend a private school.

The high level of public support for school choice is consistent with the findings of Harvard University’s Program on Education Policy and Governance, which conducts an annual survey measuring public support of various education policies. Harvard’s 2012 survey found that 72 percent of Americans favor STC programs. 

Voucher programs, which entail direct government expenditures of tax dollars to provide school choice, were less popular than STC programs but still supported by a plurality of mothers. When asked about their support for voucher programs without providing a definition for “voucher,” 43 percent of mothers supported vouchers and 22 percent were opposed. When provided with a definition for “voucher,” support increased to 66 percent and opposition increased to 26 percent. These findings are also consistent with the 2012 Harvard survey, which found 43 percent of the general public supported vouchers with 29 percent opposed and 28 percent neutral. When the “neutral” option was eliminated, the support-to-opposition ratio was 50–50.

Some of the Friedman study’s other findings include:

• If given the choice, a plurality of school moms would select private schools for their children (42 percent) compared with public schools (36 percent), charter schools (9 percent), or homeschooling (9 percent).
• School moms are almost twice as likely to support universal eligibility (66 percent) compared to school choice programs based on financial need (35 percent).
• School moms support education savings accounts by 65 percent to 25 percent.
• School moms support charter schools by a margin of 45 percent to 19 percent. When supplied with a definition of “charter school,” support increased to 63 percent with 25 percent opposed.
• Nearly twice as many school moms think that U.S. education is on the wrong track (61 percent) versus the right track (32 percent).
• More than four times as many school moms rate the federal government’s involvement in the education system as “fair” or “poor” (79 percent) compared with “good” or “excellent” (17 percent).
• A majority of school moms and the general public underestimate the amount that federal, state, and local governments spend per pupil in the public schools.*

[*Note: The Friedman Foundation’s survey uses operating per pupil expenditures as its point of comparison, but these figures omit significant expenditures such as buildings. A more accurate figure would be total per pupil expenditures.]

The great popularity of TED talks is one of the most encouraging signs that, despite our fossilized school systems, humanity still wants to learn. No one is assigned to watch TED talks. We watch them because they often present a compelling learning experience that excites and entertains. While such experiences sometimes occur in “the dominant education culture” of modern schooling, they occur “in spite of that culture, and not because of it.”

Those quotes are from the final segment of a series of TED talks on education that aired this week on PBS thanks to the New York member station, WNET. The speaker was Ken Robinson, and if you’ve never seen one of his lectures, you’re missing out.

Some highlights of the show:

Management consultant, turned teacher, turned research psychologist Angela Lee Duckworth on the prime importance of Grit in academic and life success. Duckworth explains that Grit is in fact a stronger predictor of such success than IQ—which is interesting because it echoes some very old and it seems mostly forgotten research by Edward Webb, a doctoral student of the intelligence measurement pioneer Charles Spearman. Spearman coined the term “g factor” for the strong intercorrelation that each individual shows across a diverse range of mental tests. It is this g that IQ tests attempt to measure. To make a long story short, Webb went looking for a bunch of personality traits that were also correlated with g. He failed. Instead, he found a completely separate set of intercorrelated traits, which he called w (for “Will”), that basically amount to what Duckworth refers to as Grit. Four of the those w traits were: perseverance, kindness on principle, trustworthiness, and conscientiousness. [For more on this, see Arthur Jensen’s “The g Factor”.] Duckworth’s segment begins at 13:30.

Geoffrey Canada is eloquent about the need to simultaneously encourage innovation and abandon failed approaches; and Ken Robinson is equally so on the failure of the dominant approach to schooling to promote a diversity of methods and curricula, or to stimulate curiosity and creativity, due to its excessive reliance on centralized command-and-control. Of course both of the preceding observations are consistent with the fact that markets are better than monopolies in providing products and services, in education as in other fields, but it’s not clear that either speaker would put the matter in those terms.

And for the artistically inclined, there’s a quite good young poet, 19-year-old Malcolm London, at the 35 minute mark, and a lovely rendition of Cyndi Lauper’s “True Colors” by the host, singer John Legend, at 41:58.

Were I asked to pick the most significant developing story about federal regulation that the press has not really caught onto yet, I might nominate the Obama administration’s apparent intent to publish new interpretations of the Americans with Disabilities Act (ADA) requiring that website operators make their sites “accessible” to users who are blind, deaf, intellectually disabled, or lacking in motor skills, to name but a few categories. While disabled advocates have been pursuing such interpretations of the ADA for more than a decade, several adverse federal court decisions greatly slowed down their momentum; now, those precedents notwithstanding, the administration seems to have decided to throw its weight behind the proposition that websites, like brick-and-mortar restaurants or movie theaters, are “public accommodations” under an obligation to provide the online equivalent of ramps, rails, sign-language translators, captioning, and much, much, more.

I’ve been on this issue for a long time, and the other day at Overlawyered I assembled a few links on the re-emerging story. Now our friend Hans Bader of the Competitive Enterprise Institute has published an excellent write-up at CEI’s “Open Market” (also Examiner):

Can websites be forced to change to accommodate the disabled — by using “simpler language” to appeal to the “intellectually disabled,” or by making them accessible to the blind and deaf at considerable expense?

Generally, the First Amendment gives you the right to choose who to talk to and how, without government interference. There is no obligation to make your message accessible to the whole world, and the government can’t force you to make your speech accessible to everyone, much less appealing to them. The government couldn’t require you to give speeches in English rather than Spanish …

But now, the Obama administration appears to be planning to use the Americans with Disabilities Act (ADA) to force many web sites to either accommodate the disabled, or shut down.

When the regs come out, the associated public advocacy campaign will no doubt focus on very large web vendors (Wal-Mart, airlines, Amazon, Netflix, and so forth), who (it will be argued) can well afford to bring their e‑commerce operations into line with accessibility prescriptions. But as the law is written, the same principles will be applied to smaller businesses’ websites and indeed to many small private sites whose primary purpose is writing, persuasion, or communication, at least where there is a commercial nexus such as ad revenue or an affiliate bookstore.

If you think this is an extremely bad idea, as I do, the time to educate yourself on the issue is now.

There’s a powerful irony lurking underneath the executive order and OMB memorandum on open data that the White House released in tandem today: We don’t have data that tells us what agencies will carry out these policies.

It’s nice that the federal government will work more assiduously to make available the data it collects and creates. And what President Obama’s executive order says is true: “making information resources easy to find, accessible, and usable can fuel entrepreneurship, innovation, and scientific discovery that improves Americans’ lives and contributes significantly to job creation.” GPS and weather data are the premier examples.

But government transparency was the crux of the president’s 2008 campaign promises, and it is still the rightful expectation of the public. Government transparency is not produced by making interesting data sets available. It’s produced by publishing data about the government’s deliberations, management, and results.

Today’s releases make few, if any, nods to that priority. They don’t go to the heart of transparency, but threaten to draw attention away from the fact that basic data about our government, including things as fundamental as the organization of the executive branch of government, are not available as open data.

Yes, there is still no machine-readable government organization chart. This was one of the glaring faults we found when we graded the publication practices of Congress and the executive branch last year, and this fault remains. The coders who may sift through data published by various agencies, bureaus, programs, and projects can’t sift through data reflecting what those organizational units of government are.

Compare today’s policy announcements to events coming up on Capitol Hill in the next two weeks.

On Thursday next week (May 16), the House Committee on Oversight and Government Reform will host a “DATA Demonstration Day” to illustrate to Congress and the media how technology may cut waste and improve oversight if federal spending data is structured and transparent. (That would include my hobby-horse, the machine-readable federal government organization chart.) We’ll be there demo-ing how we add data to the bills Congress publishes.

On May 22nd, the House Administration Committee is hosting its 2013 Legislative Data and Transparency Conference. This is an event at which various service providers to the House will announce not just policies, but recent, new, and upcoming improvements in publication of data about the House and its deliberations. (We’ll be there, too.)

The administration’s open data announcements are entirely welcome. Some good may come from these policies, and they certainly do no harm (barring procurement boondoggles–which, alas, is a major caveat). But I hope this won’t distract from the effort to produce government transparency, which I view as quite different from the subject of the new executive order and memorandum. The House of Representatives still seems to be moving forward on government transparency with more alacrity.

Earlier this week, farming and some conservation groups announced that they had come to a deal to link eligibility for crop insurance premium subsidies to compliance with conservation measures. In return, in one of the great sell-outs in modern times, the conservation groups agreed not to push for payment limits or means testing on farm subsidies.

But it seems that the new link between conservation and government support for crop insurance has angered the House Agriculture Committee Chairman, Frank Lucas. From the DTN Ag Policy Blog yesterday:

Lucas, a Republican from Oklahoma, told DTN off the House floor Wednesday that he has a philosophical problem with various lobby groups “tying strings to how farmers farm” and dictating terms to producers when the farm bill is supposed to be about raising food and fiber.

“My perspective has always been, very sincerely, if a farm bill is about raising food — and I know 80% of it now is about making sure people have enough to eat, helping them buy their food — but if it is about raising food, farmers should have the tools to raise the food and fiber,” Lucas said. “And if you engage in whole series of things, such as you can’t get crop insurance unless you plant in a certain way, on a certain day, in a certain direction, or you can’t access a variety of other programs, then we aren’t having a farm bill that helps farmers raise food and fiber, but we have a social tool here that’s used to direct how farmers use their lives and conduct their business.” [emphasis added]

You’ll excuse me if I am having trouble summoning much sympathy for your special interest friends, Mr Lucas. It’s just that I feel that having to accept inconvenient conditions should be expected when you suck at the government teat. The Farm Bill was designed as a social tool, and you and your colleagues over the years have added more “social tools” like food stamps, environmental programs and energy subsidies in order to secure sufficient votes for your pork. Complaining now that all these other people are ruining your party is, to say the least, a bit rich.

If farmers don’t want to be directed on “how [they] use their lives and conduct their business,” then I suggest they start sending their cheques back. Ending farm programs will truly Free the Farm.