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October 1, 2013 4:50PM
The Government Shutdown on the Web
If you’ve tried to reach a government site today, you may have noticed that the “shutdown” applies to the virtual homes and social media accounts of federal agencies no less than their brick-and-mortar offices… at least some them. It’s a bit hard to make sense of why some sites remain up (some with a “no new updates” banner) while others are redirected to a shutdown notice page—and in many cases it’s puzzling why a shutdown would be necessary at all. With the offices closed, you might not have personnel on hand to add new content or other updates, but is pulling the existing content down strictly necessary?
For agencies that directly run their own Web sites on in-house servers, shutting down might make sense if the agency’s “essential” and “inessential” systems are suitably segregated. Running the site in those cases eats up electricity and bandwidth that the agency is paying for, not to mention the IT and security personnel who need to monitor the site for attacks and other problems. Fair enough in those cases. But those functions are, at least in the private sector, often outsourced and paid for up front: if you’ve contracted with an outside firm to host your site, shutting it down for a few days or weeks may not save any money at all. And that might indeed explain why some goverment sites remain operational, even though they don’t exactly seem “essential,” while others have been pulled down.
That doesn’t seem to account for some of the weird patterns we see, however. The main page at NASA.gov redirects to a page saying the site is unavailable, but lots of subdomains that, however cool, seem “inessential” remain up and running: the “Solar System Exploration” page at solarsystem.nasa.gov; the Climate Kids website at climatekids.nasa.gov; and the large photo archive at images.jsc.nasa.gov, to name a few. There are any number of good reasons some of those subdomains might be hosted separately, and therefore unaffected by the shutdown—but it seems odd they can keep all of these running without additional expenditures, yet aren’t able to redirect to a co-located mirror of the landing page.
Still weirder is the status of the Federal Trade Commission’s site. Browse to any of their pages and you’ll see, for a split second, the full content of the page you want—only to be redirected to a shutdown notice page also hosted at FTC.gov. But that means… their servers are still up and running and actually serving all the same content. In fact they’re serving more content: first the real page, then the shutdown notice page. If you’re using Firefox or Chrome and don’t mind browsing in HTML-cluttered text, you can even use this link to navigate to the FTC site map and navigate from page to page in source-code view without triggering the redirect. Again, it’s entirely possible I’m missing something, but if the full site is actually still running, it’s hard to see how a redirect after the real page is served could be avoiding any expenditures.
One possible answer can be found in the policy governing shuttering of government Web sites—which, as blogger Jon Christian noted, stipulates that:
The determination of which services continue during an appropriations lapse is not affected by whether the costs of shutdown exceed the costs of maintaining services.
It’s easy to imagine how this might often be the case: if the “inessential” public-facing Web pages are hosted on the same systems you’ve got to keep up and running for other “essential” back-end purposes—meaning you don’t get to save the security or electricity overhead— then the cost of having IT go through and disable public access to the “inessential” sites could easily be higher than any marginal cost of actually serving the content. But the guidance here seems to require agencies to pull down “inessential” public-facing content even when this requires spending more money than leaving it up would. In the extreme case, you get the bizarre solution implemented on the FTC site: serve the content, then prevent the user from seeing it!
I don’t know enough about the rules of government shutdowns to say whether this strange result is a bit of Washington Monument Syndrome in action or a perverse but unavoidable consequence of the Antideficiency Act, but either way it seems like an awfully strange approach.
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October 1, 2013 12:10PM
Protecting the Rights of Workers Against Forced Association
The Labor Management Relations Act (a.k.a. the Taft-Hartley Act) was passed in 1947 in order to curb the tide of unfair labor practices that had arisen since the National Labor Relations Act (NLRA) was passed in 1935. The NLRA established a legal regime that was friendly to unions and unfriendly to the rights of workers who dissented from attempts to unionize workplaces. Unions have many tools at their disposal to ease the path to unionization, but the government should not prefer the rights of those who wish to be unionized at the expense of those who do not.
One part of Taft-Hartley, Section 302, addresses the problem of corruption between unions and employers by prohibiting employers from giving “any money or thing of value” to a union seeking to represent its employees. Martin Mulhall is a 40-year employee for the Mardi Gras greyhound racetrack and casino in Hollywood, Florida, and he opposes the efforts of Local 355 to unionize Mardi Gras’s employees. Mr. Mulhall’s desire not to be unionized is no less valid or constitutionally protected than those who push for unionization, and thus he is a perfect example of an employee for whom the Taft-Hartley Act passed to protect.
Mr. Mulhall alleges that, in violation of Section 302, Local 355 and Mardi Gras exchanged “things of value” in order to smooth the path to unionization. In exchange for the union agreeing not to picket, boycott, or strike against Mardi Gras, as well as for financially supporting a ballot initiative that legalized slot machine gambling, Mardi Gras agreed to support Local 355’s efforts to organize its employees. Specifically, Mardi Gras gave the union access to employee records and to its facilities in order to engage in organizing efforts during non-working hours. Additionally, and most crucially, Mardi Gras agreed to waive its right to a secret-ballot election supervised by the National Labor Relations Board as well as its right to contest any unfair labor practices committed by the union during the process of organizing the workers.
The question before the Supreme Court is whether these are “things of value” exchanged in violation of Section 302. Cato, joined by the National Federation for Independent Business, has filed an amicus brief in support of Mr. Mulhall. We argue that, not only are Mardi Gras’s concessions clearly “things of value,” they are the types of exchanges that the Taft-Hartley Act was passed to prohibit. The union exchanged a promise of “peace” from strikes and boycotts for concessions from the casino that compromised Mr. Mulhall’s right to dissent from unionization. The “exchange” was little better than extortion. Allowing such transactions would enable unions to coerce business owners into waiving protected constitutional rights—including the First Amendment right to voice opposition to unionization efforts and the fundamental right to exclude the public from private property. Moreover, this is a particularly serious concern for small business owners because they are especially vulnerable to coercive union demands. Small businesses generally lack the resources to survive a targeted corporate campaign when a union threatens economic war.
Unions are free to try to organize employees, but they should not be allowed to override the rights of dissenters in the process.
October 1, 2013 10:23AM
“Why Liberty?”
Need something to read during the shutdown? You’re in luck, because Students for Liberty and the Atlas Network have released a new book of original essays on the question, “Why Liberty?” It includes a piece on the humble case for liberty by yours truly, and is packed with great stuff. But you don’t have to take my word for it. Here’s the book’s editor, Cato senior fellow Tom G. Palmer:
You can order a copy online or snag a free PDF.
October 1, 2013 9:26AM
Eric Holder Files Another Baseless Voting Rights Lawsuit
Eric Holder has been busy playing his racial games. Not only did his Justice Department issue a joint guidance with the Education Department on how best to ignore the Supreme Court’s recent affirmative action ruling, but yesterday the attorney general announced a new lawsuit challenging North Carolina’s new election laws, which include voter-identification requirements. This action follows on the heels of lawsuits already filed against the Tarheel State by such groups as the ACLU and NAACP.
Never mind that the Supreme Court approved the constitutionality of voter-ID as recently as 2008 in the case of Crawford v. Marion County (Indiana) Election Board — in a 6–3 opinion written by the liberal Justice John Paul Stevens — but just last year Holder had to back off a similar suit in South Carolina. The formula for valid voter-ID laws is clear: don’t put obstacles (be they monetary or geographical) in the way of someone’s ability to get an approved form of identification and you’ll sail through the courts.
These regulations simply shouldn’t be a partisan issue. Requirements to show proof of identity before voting have been around for decades in all parts of the country. There’s no constitutional right to early voting — many states, including blue ones like New York, don’t have it at all — and North Carolina kept total hours constant anyway, just reducing the number of days of early voting.
And forget partisan divides; the DOJ’s argument that voter-ID laws and other attempts at orderly election administration disproportionately hurt minorities — on top of being offensive — don’t even seem to make sense to those they purport to support. For example, a Washington Post poll last year found that 65 percent of blacks and 64 percent of Latinos support voter-ID.
In our TSA-NSA-show-ID-to-get-into-an-Eric-Holder-speech world, shouldn’t we have the most basic safeguards for the machinery of democracy? And even if most voter fraud comes in through absentee and other mail-in ballots rather than in-person, shouldn’t we at least put in simple measures that demonstrably increase confidence in elections?
While too many so-called civil rights leaders are stuck in the 196Os — memo to Al Sharpton and Jesse Jackson: Jim Crow is dead and he ain’t coming back — government officials should know better. It’s shameful to fan the flames of racial division for personal and political gain.
October 1, 2013 9:24AM
Obama Administration Ignores Supreme Court, Encourages Racial Preferences
Two months ago I wrote about the University of Texas’s attempts to delay the final reckoning from the Supreme Court’s near-unanimous ruling in the Fisher case that public institutions must overcome a high constitutional bar when they use race in admissions decisions. Courts must make “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”
“The university must prove,” Justice Kennedy wrote for the 7‑justice majority, “that the means chosen by the university to attain diversity are narrowly tailored.” Far from attempting to prove that, however, UT-Austin is playing lawyer games and trying to re-litigate previously decided procedural issues.
But at least UT-Austin recognizes that its back is against the wall. The Obama administration, for its part, is pretending that nothing has changed, that colleges can continue discriminating based on skin color to achieve their elusive “diversity.”
On Friday, the federal Justice and Education Departments issued a joint “guidance” on the meaning of Fisher v. UT-Austin. This advice, consisting of a platitudinal cover letter and a superficial Q & A. The government’s position, remarkably, is that Fisher simply reaffirmed 2003’s ruling in Grutter v. Bollinger, which held that educational diversity could be a compelling interest that justified racial preferences at the University of Michigan. “Run along, nothing to see here,” the various civil-rights-division bureaucrats seem to say, “the Supreme Court just vacated the lower court’s decision because it didn’t check all the procedural boxes.
To say that the government is being disingenuous here would be like saying that Ted Cruz has a mild distaste for Obamacare. As Richard Kahlenberg comments at the blog of The Chronicle of Higher Education:
This reading of the two Supreme Court cases as essentially identical would presumably be surprising to the justices of the court. Five Supreme Court justices participated in both Grutter and Fisher, yet four of them switched sides in the two cases. Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas dissented in Grutter, in part because universities were not made to demonstrate that race-neutral strategies were insufficient to produce racial diversity, yet those justices were in the majority in Fisher.
Meanwhile, Justice Ruth Bader Ginsburg switched in the other direction, from the majority in Grutter to the dissent in Fisher. Her dissent complained that the majority would push universities to adopt race-neutral strategies like Texas’ top 10-percent plan, which she viewed as disingenuous. (Justice Stephen G. Breyer, alone, was in the majority in both cases.)
Moreover, the government is green-lighting any and all diversity initiatives rather than giving actual guidance about how to survive the legal minefield that administrators now inhabit. As Roger Clegg put it at National Review Online:
The fact is that this guidance is designed not to help schools follow the law, but to push them to adopt dubious race-based policies that the Supreme Court has warned against, and that have prompted lawsuits in the past, but that the Obama administration and its political allies stubbornly support. The whole tone of the new guidance is to offer encouragement to schools that want to engage in racial and ethnic discrimination: The administration promises that it “will continue to be a resource” for such schools.
It is as if the FBI offered eager encouragement to state and local police that wanted to engage in racial profiling without violating the law. Whether such discrimination may sometimes be legally permissible or not, why should the federal government issue a document the tone of which is not a stern warning about the many legal pitfalls, but cheerful encouragement to the police to do as much of it as they can get away with? Why urge schools to get as close to the legal line as they can, when it is unnecessary and bad policy for them to approach it at all?
In short, the government not only pretends that the Supreme Court didn’t mean what it said, but is encouraging college officials in their massive resistance to yet another Supreme Court ruling on civil rights. These actions enable the type of “holistic” racial balancing that results in greater racial-achievement gaps than illegal quotas ever did. Racial preferences today, racial preferences tomorrow, racial preferences forever.
It would be comical if it weren’t so sad — and if it weren’t backed by the full force of the nation’s chief law enforcement officers.
October 1, 2013 8:42AM
Thoughts on the Government Shutdown
All eyes are on the government shutdown battle over Obamacare. Here are a few thoughts:
- House Republicans had six months to strategize since the last budget battle, so why did they leave it until the last minute to figure out what to do? They seem to have been unified in recent votes to defund and delay Obamacare. So why didn’t they announce their strategy months ago, draw a hard line, and then spend the summer building public support for their plan? The Democrats have a stronger hand because they have been giving a consistent message.
- The lack of leadership from the House created a void that Senator Cruz filled. Some House members didn’t like Cruz getting the spotlight and telling them what to do, but they should have had their act together.
- Obamacare opposition has been rising steadily this year. Even if Republicans don’t succeed with defunding Obamacare at this point, the polls may convince them to try again later. This battle could have been just a warm-up for a future battle if the polls get even worse for Obamacare.
- Why might the polls get worse? Some reasons are: more employers dropping health benefits, more employers cutting worker hours, more insurers cutting doctors out of their plans, premiums continuing to rise, individuals rebelling against the mandates and penalties, health exchanges suffering glitches and meltdowns, rising privacy concerns from the massive government data grab created by the law, etc, etc. See Mike and Mike for more.
- Obama and the Democrats brought the Obamacare backlash onto themselves, not only by imposing a very bad law, but also by slamming it through Congress in a very partisan manner. No Republican voted for it in either the House or the Senate. If you want a law to garner sustained political support, it is much better to pass it in a bipartisan manner, as was the case with welfare reform in 1996 and tax reform in 1986.
- The 2001 Bush tax cuts garnered 28 House Democratic votes and 12 Senate Democratic votes. Yet even with that bipartisanship, Democratic leaders spent the subsequent decade relentlessly demonizing the law and trying to repeal parts of it. So for Democrats to say that it is unfair for Republicans to try and repeal Obamacare just because the president was reelected is ridiculous.
- Democrats say that it is irresponsible to hold the economy and budget “hostage” to Obamacare repeal efforts. I don’t think so. Unless repealed, Obamacare is a huge issue for the nation’s health care system and the economy in coming years, so any short-term unpleasantness is a trifle compared to what’s at stake. As for the economy, the stock market rose during the last shutdown period in 1995/1996.
- It is not fair for media stories to say that it is just a few “extremists” who want to delay or defund Obamacare. The House delay vote garnered all the Republicans except two, which made for a substantial majority in the people’s chamber. Indeed, Republicans probably wouldn’t be trying to defund Obamacare without the people’s strong and consistent opposition.
- The way to limit Washington’s battles from harming the economy is to untether the economy from Washington. We should, for example, privatize many of the national parks or hand them over to the states and privatize air traffic control. Washington budget battles will likely get even more disruptive in the years ahead, so let’s start privatizing and devolving as many federal activities as we can right now. The problem isn’t the GOP taking the budget “hostage” to repeal Obamacare, it is the government taking hostage far too much of the American economy.
- So I favor government shut-downs. That is, permanent shut-downs of federal activities that ought to be funded by state governments, the private sector, or nobody at all.