The past few days have seen a flurry of advocacy and media coverage about calls to fix the Electoral Count Act. Scholars and experts across the political spectrum have joined the push to update the 19th century statute which outlines the process for casting and counting Electoral College votes. It is this law which governs, among other things, the joint session of Congress to certify the winner of each presidential election. Understandably, that’s on everyone’s mind as we approach the first anniversary of the attack on the Capitol, the tragic and grotesque culmination of the former president’s attempts to overturn his electoral defeat.
It’s a welcome development. At Cato, we’ve been making the case that the Electoral Count Act should be at the top of the agenda, both in response to what happened in the 2020 election and to avoid a similar crisis in the future. My colleague Walter Olson has addressed it more than once, and recently I made the case for why ECA reform should garner Republican support.
Other think tanks and commentators have also been making the case. The conservative American Enterprise Institute has held forums and published reports, and David French put it bluntly in a recent piece headlined “Stop Screwing Around and Fix the Electoral Count Act.” The liberal Center for American Progress just released their own report on the threats to free and fair elections, which prominently includes ECA reform among its recommendations.
On Monday, the Wall Street Journal editorial board chimed in with a piece cataloging the practical and constitutional problems with the ECA, repeating their past calls to adopt some sort of a fix. The next day in the Washington Post, an impressive bipartisan quartet of experts, including former FEC chairman Bradley Smith, authored an op-ed making their case. Also in the Post, liberal columnist Eugene Robinson cited Cato among others in urging ECA legislation to begin making its way to Biden’s desk.
And that’s just some of the ECA reform advocacy being published. What began as a trickle over the past twelve months is now a veritable torrent.
The New York Times reported last month that congressional Democrats are eyeing the ECA as part of the actions they might take in response to the January 6th attack, and Politico reports now that there is also increasing talk of interest on the Republican side of the aisle. On Wednesday, Senate Minority Leader Mitch McConnell seemed to confirm that, saying the ECA “obviously has some flaws. And it is worth, I think, discussing.”
This unusual outpouring of agreement reflects two things about the need to fix the Electoral Count Act. First, it is important. Nobody wants a repeat of the 2020 crisis or worse. That’s why the policy community is near-unanimous in treating it like a five-alarm fire, regardless of our disagreements on anything else. Second, there is very little substantive disagreement or partisan angle about what needs to be done. There are no hard irreconcilable conflicts about what the law should be, from any ideological perspective.
The law needs to make clear that Congress can only hear objections under narrow circumstances and with a high hurdle, by enumerating an exhaustive list of valid reasons and increasing the number of senators and representatives needed to trigger a debate. The role of the vice president should be spelled out to leave no doubt that his or her job is purely ceremonial. The finality of decisions made by the states and by the Electoral College itself must be respected, in line with the intent of the Framers and the text of the Constitution. The proper role of the courts, which are entirely absent from the ECA even though they will hear and decide most disputes long before they get to Congress, must be taken into account. The timeline of key dates could probably also use some consideration, including clarification of the “safe harbor” deadline intended to put electoral votes beyond congressional dispute.
To the degree there’s been any pushback, it has come not from supporters of Donald Trump but rather from some Democrats who are worried that ECA reform might distract from their own partisan election law bills. That worry is entirely misplaced. Passing ECA reform would have no effect on the chances of passing a party line “voting rights” bill, which is not looking very likely anyway. And whatever the merits of adopting new federal laws about voting procedures and elections administration, they matter for little if a narrow partisan majority in Congress or bad-faith actors at the state level can throw out any result they don’t like. The ECA is both more doable and, frankly, more important.
The ECA is a ticking time bomb at the heart of American democracy. Sooner or later, if left untouched, it will blow up in our faces. The consequences could be catastrophic. The routine clockwork of free and fair elections, the great American innovation of finite terms of office with the regular and peaceful transfer of power, can not be left hanging on a knife’s edge every four years. The Constitution and all it protects, individual rights and the rule of law, depend on getting this right. Limits on government power count for little if there isn’t even agreement on who is the real president, with the violent disputation such a scenario invites.
At Cato, we’re used to being skeptical of bipartisan consensus. We’re often opposed to the policies that result when both parties are in agreement. But in this case, Republicans and Democrats can provide a much-needed moment of unity by doing the right thing. Fixing the Electoral Count Act is one of the most important things Congress could do to pull us back from the cliff heading into the next presidential election. From the aftermath of one of America’s most shameful moments of partisan division and mutual distrust, Congress can earn a bit more faith in the system by fixing this pressing problem before it’s too late.
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What If the Chicago Teachers Union Is Doing What Parents Want?
Yesterday, I wrote that unions should not take the blame – or at least not as much as some would assign them – for school districts going virtual. It is likely that many parents would also prefer not to have in-person schooling as the Omicron COVID-19 variant runs through their communities. Last night, the Chicago Teachers Union – arguably the most infamous of teacher unions if you are not a union fan – voted to stay out of classrooms until the district hit several safety markers.
Surely this is union power run amok?
In one sense, yes: No union should dictate how education will look for everyone, and that is essentially what the CTU is doing. But peek a bit below the surface, and the union may only have the political capital to do this because its resistance to in-person schooling is in sync with a majority of parents. The union won’t face a popular backlash because what it wants is popular.
Like yesterday’s post, I could not find polling of Chicago parents taken during Omicron. But a NORC survey from June 2021, a month of very low COVID-19 cases in Cook County and nationwide, found that “only 4 in 10 parents said that they would prefer fully in-person learning over hybrid or fully-remote options for the 2021–2022 school year.” If 6 in 10 Chicago parents wanted at least some virtual education then, parental desire for it is almost certainly higher with Omicron today.
In light of this, it is misleading to put most emphasis on unions for schools not being open under Omicron. Lots of Chicago families have fears when it comes to in-person education, and likely support what the union is calling for. That is a different scenario from unions strong-arming policies against the popular will, which is often the message one could get from coverage of unions and closures. Indeed, the district would also be imposing on families, and imposition is what should most concern us.
The opposite of imposition is freedom to choose – money following children to options families select – which teacher unions have long opposed. As I wrote yesterday, for fighting that the unions deserve scorn. But when it comes to dealing with COVID-19, unions are far from alone in fearing in-person instruction. They may even be aligned with a majority of parents, and that is an important part of the Omicron closures story.
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Sure, Blame Teacher Unions. But Not for Omicron Closures
It’s a state of education affairs many people likely thought, and certainly all hoped, we would not return to. But as holiday breaks come to an end, millions of families are once again facing online-only instruction as schools try to cope with the Omicron strain of COVID-19.
Are teacher unions to blame for this disappointing return to cyber-education?
Some folks, especially on the Right, seem to think so. And they have a case. Teacher unions, which represent the largest, most easily organized interest group in education, certainly fought hard to keep schools closed to in-person instruction in many places last school year, and are battling in places like Chicago, Philadelphia, and New York City to keep kids home, at least temporarily, now. Union leaders’ primary fear is almost certainly that teachers will be exposed to COVID-19, but they may well see COVID as a serious threat to kids, too. Both are certainly understandable, but whatever their motives unions bring massive political power to bear that parents – diverse and hard to organize for sustained political warfare – simply cannot match.
But here’s the thing: Many parents almost certainly want their kids home, too.
I haven’t found any polling likely to include Omicron, but back in late-July, early-August, when COVID transmission was much lower than today but Delta was rearing its ugly head, a National Parent Teacher Association poll showed that many or most public school parents wanted their children either entirely online or in hybrid schooling rather than fully in-person. Depending on when parents were questioned – before or after CDC guidance was released telling vaccinated people to resume masking and other protective measures – desire for entirely in-person learning dropped from 58 percent to 43 percent.
![In-person or Remote Survey, NBC News Graphic](/sites/cato.org/files/styles/pubs_2x/public/2022-01/Remote%20or%20Not.png?itok=aHvxdGSn)
There is little reason to believe, with all the bad news about Omicron’s lightning spread (and even with good news about its relative severity) that support for in-person schooling is not either the same or lower than in early August. In other words, keeping schools closed may well be a popular opinion with a majority of parents. If so, it is hard to blame unions if public schools go virtual for a while.
But that does not let the unions off the hook. What our COVID experience, as well as polling, has shown is that diverse families have diverse needs and desires, including myriad ways of balancing the educational effectiveness of in-person schooling and the health risks of COVID-19. To best meet those myriad needs and desires we need an education system that offers diverse options. And that means choice – money following children to educational arrangements of their families’ choosing, not delivered directly to a single government school or district.
For decades, no one has fought more doggedly against choice than the teacher unions, doing much to put us in the low-options condition that has bitten us so hard since COVID-19 broke loose in March 2020. Especially frustrating is that a choice-based system would be better for teachers, who would themselves have more options about how they teach: More online. More small-group. More hybrid. It would also benefit their bottom lines to cease being subject to monopoly employers.
Should unions be blamed for school districts starting 2022 online? No.
Do they bear significant responsibility for an education system with too few options? Yes they do.
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Keep Facial Recognition Away from COVID-19 Response
As we begin another year of the COVID-19 pandemic, you can be forgiven for feeling plenty of frustration. Across the world, governments have responded in a variety of ways, with enough examples of incompetence and panic-mongering to fill a book. That millions of people across the world are hesitant to take effective vaccines and willing to believe nonsensical COVID-19 conspiracy theories only adds to the frustration. Lawmakers will undoubtedly continue to feel pressure from the public in 2022 to get the pandemic under control. This month, a city in South Korea will begin a facial recognition COVID-19 contact tracing trial. Lawmakers and other officials in the U.S. should reject such an approach to COVID-19 contact tracing.
Using facial recognition to tackle COVID-19 is not reserved to South Korea. Facial recognition has already been used for COVID-19 contact tracing or to monitor quarantine in China, Russia, Poland, and India. In the U.S., Molloy College and the University of Southern California installed facial recognition systems as part of their attempts to reduce the spread of COVID-19.
Facial recognition is not without its benefits, but absent appropriate constraints it can be used as a part of an invasive persistent surveillance system. Perhaps the most notable examples of facial recognition being used for surveillance can be seen in China, where facial recognition is used as part of the Chinese government’s persecution of the Muslim-majority Uyghur minority. In the U.S., facial recognition is not used to the extent it is in China, but it is nonetheless the case that tens of millions of Americans can have their photos searched by facial recognition systems. This is in large part thanks to the fact that many state DMVs allow for law enforcement to query their databases.
There is a particular concern in the U.S. that facial recognition exacerbates racial discrimination in the criminal justice system, with African Americans being among the most misidentified. This facial recognition racial disparity has resulted in many bans on police facial recognition across the country. This is not surprising given the rhetoric surrounding debates on American policing and the role of race in the history of American law enforcement. Nonetheless, we should be on guard for surveillance technology to make appearances in American towns and cities under the guise of a public health measure.
As the ACLU correctly notes, although facial recognition is rarely a part of COVID-19 measures in the U.S., overbroad contact tracing efforts could lead to a situation where facial recognition, although deployed to tackle COVID-19, would continue as a surveillance tool after the end of the pandemic:
Though these instances of campus and state overreach are far from the norm, overbroad efforts to curb and track COVID-19 leave the door open to an abiding surveillance apparatus that won’t be dissolved once the public emergency dust settles. As the Biden administration looks into the interoperability of contact tracing apps, tech companies like sp0n — the creators of the controversial neighborhood safety app Citizen — are partnering with cities for digital contact tracing, while others investigate how contact tracing apps might double as digital immunity and vaccination passports for global travel.
For the last few decades we have been accustomed to surveillance debates usually focusing on government snooping in the national security context. But terrorist attacks such as 9/11 are not the only tragedies that can lead governments to spy on citizens. Pandemics, like terrorist attacks, prompt citizens to call on lawmakers to act, and we should expect such calls to continue in 2022, especially if the new Omicron variant continues to result in lockdowns, travel bans, and other measures. Including facial recognition as a part of a COVID-19 response would risk an invasive surveillance technology becoming entrenched into American society absent appropriate controls.
(Readers interested in a more in-depth discussion of COVID and surveillance may want to check out a chapter of Cato’s Pandemics and Policy guide I wrote with my colleague Julian Sanchez on COVID, contact tracing, and privacy.)
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Marxism, Leninism, and the Crackdown in Hong Kong
In the week between Christmas and New Year’s Day, Hong Kong police officers raided the office of the pro-democracy Stand News and arrested seven editors and board members. Two editors have been charged with conspiring “to publish and/or reproduce seditious publications.”
Also last week Jimmy Lai, the former publisher of the better-known pro-democracy newspaper, Apple Daily, who was already in prison, was additionally charged with conspiracy to publish “seditious publications.” He had previously been charged with “conspiracy to collude with foreign forces” — shades of Orwell’s Snowball.
This crackdown on Hong Kong’s once-free press is repugnant to liberal values and has been condemned by scholars, newspapers, and elected officials across the political spectrum in democratic countries. But of course communist countries have never been much concerned with condemnations from “bourgeois” nations. And the rejection of press freedom in communist countries isn’t just a result of authoritarian individuals. One of the great socialist intellectuals of the 20th century, the bestselling economist Robert Heilbroner, was remarkably candid in a 1978 essay in the left-wing magazine Dissent:
Socialism…must depend for its economic direction on some form of planning, and for its culture on some form of commitment to the idea of a morally conscious collectivity….
The factories and stores and farms and shops of a socialist socioeconomic formation must be coordinated…and this coordination must entail obedience to a central plan…
The rights of individuals to their Millian liberties [are] directly opposed to the basic social commitment to a deliberately embraced collective moral goal… Under socialism, every dissenting voice raises a threat similar to that raised under a democracy by those who preach antidemocracy.
And there you have it. For decades Hong Kong, though it did not have an elected government, did mostly enjoy the “Millian liberties” of speech and press freedom, religious freedom, rule of law, and economic freedom. But now the Chinese Communist Party has asserted its control over Hong Kong. And while China’s economy is hardly Marxist anymore, its political system still justifies itself on the basis of Marxism-Leninism and “a powerful state apparatus” in the hands of a “people’s democratic dictatorship.” When “the people” have decided that the Communist Party should rule, they can hardly tolerate advocates of democracy. And so the new Hong Kong authorities declare the idea of democracy “seditious.”
Liberalism, with its commitment to “Millian liberties,” is under fire from many directions these days. Liberals aren’t likely to have much direct influence on the CCP in the near future, but liberals of many stripes need to work together to resist and roll back authoritarian illiberalism.
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Arizona Republic Report Leaves Out Important Details and Context On Universal Licensing
The Arizona Republic recently published a report entitled, “Universal Licensing: Arizona opened the doors to less qualified workers-the public bears the risk.” In its investigation of Arizona’s universal licensing recognition law enacted in 2019—a reform so successful and popular that it is being emulated by more than a third of other states—it mentioned irrelevant incidents and presented out-of-context data to malign this bold and enlightened reform.
The article begins and ends with a heart-wrenching story about a California-licensed veterinarian who received a temporary Arizona license, granted under a 1967 law, to work at a Mesa, Arizona clinic. She’s been accused of poor surgical technique while operating on a kitten brought to the clinic on death’s doorstep. The kitten died and the vertinarian was fired from the clinic. Her temporary license expired after 30 days, and she was never granted the permanent license for which she applied. Yet readers are expected to view this as an indictment of Arizona’s universal licensing law.
Universal licensing dilutes the authority of state occupational licensing boards, so it is no surprise that a spokesperson from an organization representing that constituency, the Federation of Associations of Regulatory Boards, would be quoted in the article criticizing universal licensing over the fact that Arizona grants licenses to workers from states with less onerous licensing requirements—providing their out-of-state licenses are in good standing for at least a year.
It is wrong to assume that more onerous requirements are better. In many cases, incumbent occupations lobby state licensing boards to make requirements tougher for new entrants, usually “grandfathering” those already licensed, to reduce competition. Thus, EMTs must complete, on average, 33 days of training and pass 2 exams to get a license while cosmetologists need 11 months of training and interior designers need 73.
When it comes to the medical profession, licensing requirements are virtually identical in all 50 states and the District of Columbia. They include graduating an accredited medical school, passing a standardized national licensing exam, and completing at least one year of postgraduate training. Yet few people realize that private third-party certification organizations do the heavy lifting when it comes to quality assurance.
For example, I am a general surgeon. As a licensed medical doctor, I can legally decide to switch my specialty to obstetrics and gynecology or dermatology or even psychiatry and display it on my door. However, health care facilities will not grant me practicing privileges without proof I completed postgraduate training in the specialty and will likely require board certification. Specialty boards will not grant me certification unless I complete accredited specialty training and pass their exams. Health plans will not include me on their provider panels without proof I completed the specialty training, and I will be unable to get malpractice insurance coverage for the same reason. Note how many independent, private third parties provide information and protection to consumers of already-licensed physicians. These are the real guarantors of safety.
The Republic report implies to readers that malpractice is automatically a reason to deny or revoke a license. Oftentimes, when medical or other professional malpractice cases are settled, the defendants do not stipulate to liability. Both settlements and convictions get reviewed by licensing boards. But unless convictions are repetitive or egregious, boards rarely restrict or revoke licenses. The same is true when boards investigate complaints directly lodged by customers or patients.
Yet the authors of the report infer that something must be amiss if an applicant receives a universal license from a licensing board when they have a history of a malpractice settlement in the state where they are already licensed. If every malpractice settlement justified denying or revoking a license, the entire country would have a desperate shortage of doctors, dentists, and other health care practitioners.
Historically, it has been the incumbent members of professions and occupations who lobbied state legislatures to license and regulate them—not the customers, clients, or patients. While incumbents promoted licensing under the guise of protecting the public, they were really protecting themselves by reducing competition from new entrants and, in the process, inflating prices for their services. The report’s authors cite another organization that represents the interests of incumbents, the Alliance For Responsible Professional Licensing, that defends occupational licensing by saying “licensing helps to solve problems of income disparity, boosting wages most at the bottom end of skill distribution.” But that doesn’t account for the innumerable people who are locked out of the opportunity to lift themselves from poverty by using their skills to make an honest living.
For example, at one time Arizona required African-style hair braiders to spend nearly one year and close to $10,000 to get a cosmetology license, which includes training to use chemicals to dye or treat hair, as well as hair cutting. They’re taught nothing about hair braiding. A lawsuit pushed lawmakers to end that requirement in Arizona, but such obstacles to hair braiders still exist in several other states. Louisiana florists “protected” the public from people who want to simply arrange flowers by successfully lobbying for a law that requires them to get a license. License requirements include passing a four-hour exam during which the applicant must arrange flowers while being judged by licensed florists. Louisiana is the only state that licenses flower arrangers. Does the Federation of Associations of Regulatory Boards criticize Arizona for having less onerous requirements on flower arrangers who relocate from Louisiana? The Republic’s reporters didn’t say.
The proliferation of occupational licensing laws, from interior decorators to fire alarm installers, may have boosted the income of those protected by a license, but they have prevented many people from lifting themselves out of poverty by entering such fields of endeavor. Indeed, in 2016 President Obama’s Council of Economic Advisors issued a report detailing how licensing leads to higher prices and reduced opportunity. The Obama administration convinced Congress to appropriate grants to help states “enhance the portability of occupational licensing.”
In an earlier time, licensing laws were also used to exclude racial and ethnic minorities. The Cato Institute held a policy forum on this subject in November 2020 called “Race and Medical Licensing Laws.”
Furthermore, most state licensing boards deny licenses to people who have a history of a felony conviction. With nearly one-third of Americans these days having a record in the criminal justice system, licensing laws deny many people a second chance to better themselves. In May 2021 Governor Ducey signed into law HB 2067, which provides “Certificate[s] of Second Chance” to people convicted of certain felonies, which will help them obtain occupational and business licenses. The law does not apply universally to all crimes and convictions. For example, driving with a suspended license and criminal speeding are among the convictions excluded. Nevertheless, the new law at least helps some who’ve made mistakes in the past to clear the occupational licensing hurdle and forge a new and better life.
Arizona ignited a national trend in breaking down barriers to people of all backgrounds seeking to make an honest living while expanding options and choice for consumers. Universal licensing reform has bipartisan appeal. From blue states like New Jersey to red states like Missouri, lawmakers are uniting around the goal of removing the barriers to upward mobility that occupational licensing laws erect. Sadly, by citing irrelevant narratives, cherry-picking data, and failing to provide adequate context, the Arizona Republic article did this reform a great injustice.
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My Year’s Worth Of Election Law Writing
I just compiled this list for other purposes and figured I might as well share it in light of the upcoming Jan. 6 anniversary. It’s a catalogue of my writings (together with a few podcasts) since November 2020 on topics of election law and process:
- “No, State Legislatures Aren’t Going To Override The Popular Vote on Presidential Electors” (Nov. 6, 2020)
- “The Framers Wisely Left Election Practice Decentralized” (Dec. 3, 2020)
- “Don’t Count On The Supreme Court To Hear Any Election Challenges” (Dec. 4, 2020)
- “Why Do Election Fraud Claims Fall On Receptive Ears?” (Dec. 7, 2020)
- “Trump Cannot Stay In Power By Declaring Martial Law” (Dec. 29, 2020)
- “In the Wake of the Pro‐Trump Attack on the Capitol, Let’s Clarify What ‘Sedition’ and ‘Incitement’ Mean,” Cato Daily Podcast (Jan. 8, 2021)
- “The 2020 Election and the Capitol Insurrection,” Free Thoughts Podcast (Jan. 28, 2021)
- “House Democrats Go Fox Hunting” (The Dispatch, Feb. 24, 2021)
- “Redistricting In Maryland — The Tentacled Horror of Gerrymandering,” You Don’t Have To Yell podcast, Mar. 4, 2021)
- “Is H.R. 1 a ‘Voting Rights Bill’?” (Mar. 5, 2021)
- “H.R. 1: The Overstuffed and the Skinny” (Mar. 22, 2021)
- “H.R. 1: Cracks Appear In The Coalition” (Apr. 2, 2021)
- “Why State Election Reform Bills Don’t Signal a New Jim Crow Era” (The Dispatch, Apr. 5, 2021)
- “H.R. 1: When Is It OK for Partisans To Control An Elections Panel?” (Apr. 7, 2021)
- “How Many of H.R. 1’s Provisions Are Unconstitutional?” (Apr. 20, 2021)
- “Reasons To Like Ranked‐Choice Voting” (May 7, 2021)
- “ ‘Partly Constitutional’ Isn’t Enough: Senate Should Reject the ‘For the People Act’ ” (National Review Online, May 13, 2021), and related Cato at Liberty blog post, same day)
- “Congress Should Clarify The Electoral Count Act Of 1887” (June 29, 2021)
- “Protecting Our Electoral Institutions” (The Dispatch, July 13, 2021)
- “Getting Serious About Election Reform” (July 19, 2021)
- “Do Voter ID Laws Matter Much?” (Aug. 16, 2021)
- “How Ballot Measures Fared” (Nov. 3, 2021; ranked-choice voting, other state and local election law questions)
- “Governor’s Commission Proposed Fair Maps to End Gerrymandering” (Frederick News-Post, Nov. 13, 2021)
- “A General Thought (And a Personal Update) on Gerrymandering” (Dec. 2, 2021)
- “The Dos and Don’ts of Defending Democracy” (Nov../Dec. 2021 Cato Policy Report, a longer piece)
- “In Final Weeks, Trump White House Searched For Excuses To Overturn Election Results” (Dec. 13, 2021)
The longest piece in the list happens to pull together themes and arguments found in quite a few of the others relating to election law reform as well as the aftermath of Jan. 6, 2021: it’s the one on “The Dos and Don’ts of Defending Democracy” from the recent (Nov./Dec.) Cato Policy Report.