Thursday, March 07, 2013

Some beautiful music

I know that few people share my love of early music.  Maybe this piece will persuade someone


Now Hiring Ex-Cons

My column for Defining Ideas last week stressed that antidiscrimination laws can wreak havoc on job creation. The Equal Opportunity Employment Commission, a federal agency tasked with enforcing antidiscrimination laws, has demonstrated just how destructive such laws can be. One instance of its folly is its “Enforcement Guidance” of April 2012, which has come to prominence after recent public hearings before the U.S. Commission on Civil Rights.

With the Enforcement Guidance, all private employers and all state employers must use detailed and particularized inquiries before turning down a minority applicant who has a criminal arrest or conviction on his record, even though employers can turn down a white applicant with the same past record without going through such hoops.

An Upside Down Civil Rights Case

To the unpracticed eye, the EEOC ruling looks genuinely perverse. The law that was intended to end discrimination by private parties now institutionalizes it by government. Title VII of the 1964 Civil Rights Act has, as its purpose, to make it “an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual…because of such individual’s race, color, religion, sex, or national origin.”

Thus, the newest confection out of the EEOC orders most employers to do exactly what the law forbids. It introduces an explicit classification into the hiring equation by imposing a higher standard for refusing to hire minority workers than for others. The Enforcement Guidance also applies even when it is clear that the employer’s refusal to hire certain workers is not because of race but because of the evident risk that a criminal record could present to the employer, its other employees, and its customers.

The EEOC introduces what is termed “disparate treatment” by race in its supposed effort to prevent discrimination. The results are perverse at best. To take just one example, James Bovard, writing in the Wall Street Journal, reports that in 2010, the EEOC initiated litigation against G4S Secure Solutions “after the company refused to hire a twice-convicted Pennsylvania thief as a security guard.” Needless to say, the EEOC did not offer to indemnify G4S should they be held liable for any torts of their employee while on the job.

The legislative history makes it painfully clear that in order to overcome political opposition, the Act did nothing to prevent an employer from using whatever tests it liked to select those employees whom it thought best for the job. Indeed the law contained an explicit protection for any employer “to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race…”

Owing to the major differences in education and job history, most tests do have disparate impact by race. Under the Griggs rule, the employer could use that test only if some “business necessity” required its use, and then only if it had a near-perfect predictive power, which virtually no test ever has.

Unfortunately, this pattern of facts gives no indication of how to treat potential security guards who have committed violent crimes. The EEOC’s useless Enforcement Guidance only offers far-fetched examples at best. Additionally, the guidance neglects to tell an employer, who may receive hundreds of applications for a single position, how to make a detailed “individuated assessment” of each applicant and still remain economically viable. Nor does it say whether an employer remains in violation of Title VII by turning down ten minority applicants with criminal records after hiring the eleventh.

What makes this entire approach even more bizarre is that many agencies of the federal government make the same use of criminal conviction records that the EEOC demands that all states and private employers reject. At no point, however, does the EEOC claim that these federal agencies discriminate in any way. Nor does the EEOC address why it thinks these federal agencies are misguided in making their own considered judgments regarding the hiring of employees.

Who Benefits?

At the end of the day, what good does the EEOC hope to gain from this massive undertaking?

One of the great benefits of a competitive labor market is its self-corrective nature. The correct social question therefore is not whether this or that firm decides to hire a worthy applicant with a criminal record. It is whether any firm makes a positive hiring decision for a worthy candidate; if not, in competitive labor markets, any errors made by one potential employer can be corrected by favorable decisions by another.

Ironically, however, that redundancy is undercut by the EEOC’s uniform Enforcement Guidance. Some studies already suggest that firms are “much less likely to hire minority applicants when background checks are banned.” That result should not come as any surprise. The white male workers who are not protected by Title VII can offer employees this precious guarantee: the ability to hire and fire at will. Minority workers cannot waive their ill-conceived protections under Title VII, and thus are prevented from competing along this critical dimension. The EEOC Guidance may help some minority workers in a few cases, but it will hurt even more.

And by raising transaction costs, the EEOC will continue on its mindless job-killing path. Once again, the EEOC seems utterly oblivious to the harm that it causes to the groups that it most wants to help—and indeed to everyone else.



How to end overcriminalization

In June 2011, 11-year-old Skylar Capo saved a baby woodpecker from her family's cat. "I've just always loved animals," the aspiring veterinarian told her local news station. "I couldn't stand to watch it be eaten."

After rescuing the bird, Capo kept it by her side in a small cage for a few days to make sure it wasn't injured. She even took it along on a family trip to the local Lowe's hardware store. With the hot sun beating down overhead, Capo decided to carry the cage inside the store so the tiny woodpecker wouldn't get overheated in her car.

Little did she know, these acts of compassion violated a federal statute against the "possession" or "transport" of a migratory bird -- or that a Virginia game warden would be on her family's doorstep days later demanding payment of a $535 fine.

Because this story involved a little girl and a baby bird it made national headlines. But the underlying problem of overcriminalization rarely receives such attention -- which is just how big government likes it.

The proliferation of needless criminal statutes makes lawbreakers of ordinary people who have no ill intentions. As Tim Lynch of the Cato Institute puts it, they "find themselves on the wrong side the law without even realizing it."

Take Eddie Leroy Anderson, a retired logger from Idaho whose only crime was loaning his son "some tools to dig for arrowheads near a favorite campground of theirs," according to the Wall Street Journal. Anderson and his son found no arrowheads, but because they were unknowingly on federal land at the time they were judged to be in violation of an obscure Carter-era law called the Archaeological Resources Protection Act.

The government showed no mercy. Wendy Olson, the Obama appointee prosecuting the case, saw to it that father and son were fined $1,500 apiece and each sentenced to a year's probation. "Folks do need to pay attention to where they are," she said.

Statutory law in America has expanded to the point that government's primary activity is no longer to protect, preserve and defend our lives, liberty and property, but rather to stalk and entrap normal American citizens doing everyday things.

After identifying three federal offenses in the U.S. Constitution -- treason, piracy and counterfeiting -- the federal government left most matters of law enforcement to the states. By the time President Obama took office in 2009, however, there were more than 4,500 federal criminal statutes on the books.

"Too many people in Washington seem to think that the more laws Congress enacts, the better the job performance of the policymakers," Lynch notes. "That's twisted."

Not long after Skyler Capo's battle with Virginia game wardens, former U.S. Attorney General Edwin Meese joined Lynch in testifying before a House committee exploring the problem of overcriminalization. "The federal criminal code is overly extensive," Meese testified. "There are more laws than are needed or could possibly be enforced. There are too many redundant, superfluous and unnecessary criminal laws. They should be consolidated and/or eliminated."

A compelling new study on overcriminalization by University of Tennessee professor Glenn Reynolds (of Instapundit fame) shows that there are many solutions to this problem, including an end to prosecutorial immunity, "loser pays" legislation and a ban on plea bargains.

But more drastic measures may be required. Reformers should really begin by going through the entire body of federal criminal law -- starting with all statutes that carry jail time -- operating under the presumption that every statute should be eliminated unless it can be justified as essential. The federal government, especially, has no business duplicating state functions or applying criminal penalties to advance mere social engineering objectives.



Chris Christie and the future of the GOP

It's a safe bet that most conservative Republicans would rush to support a political leader with the following record, especially in a traditionally Democratic state:

-- Reversed a $2.2 billion deficit and brought it into balance without raising taxes, largely by reduced spending and eliminating wasteful and unaffordable programs, allowing for a projected fiscal 2014 budget surplus of $300 million.

-- Bipartisan pension and benefits reforms, saving the state $120 billion over 30 years.

-- Streamlining government by eliminating 5,200 government jobs.
-- Vetoing tax increase bills three times while cutting taxes for job creators.

-- Reforming the nation's oldest teacher tenure law by making it conditional on teacher performance in the classroom.

-- Reduced property tax increases to a 21-year low and capped them at a maximum 2 percent.

There's more, but shouldn't conservative Republicans be ecstatic by this record compiled by New Jersey Republican Governor Chris Christie?

Not the folks at the Conservative Political Action Conference (CPAC), which decided not to invite one of the party's superstars to its annual gathering in Washington. Apparently, the reason had to do with Christie upsetting conservative orthodoxy by saying something nice about President Obama for approving emergency aid to distressed New Jerseyans affected by Super Storm Sandy.

I'm all for orthodoxy, which some call principle. I am orthodox in many things, but in politics compromise in the pursuit of ultimate goals does not necessarily make one a compromiser.

Gov. Chris Christie is no liberal. He is proving his ideas work, which is why, according to a recent Quinnipiac University poll, he has a 74 percent approval rating in one of the bluest states in the country.

Most politicians would, as they say, "kill" for a number like that, but instead CPAC organizers "killed" Christie from their list of speakers.

Conservative Republicans have a unique opportunity to present a positive, forward-looking and reform-minded agenda at a time when most voters' approval of government is scraping rock bottom. Americans are aware of the current dysfunction in Washington and may be ready for a creative message if Republicans could show them how a 21st-century model would mutually benefit themselves and the nation.

Former George W. Bush aide Peter Wehner offers some suggestions in a Time magazine essay:

"First, Republicans should make front-and-center their plans to reform public institutions that were designed for the needs of the mid-20th century. Our health-care and entitlement system, tax code, schools, immigration policies and regulatory regime are outdated, breaking down, and creating substantial wreckage. If I had to boil it down to a single sentence, I'd urge the GOP to develop its reputation as the party of reform and modernization. Second, Republican leaders at every level need to conduct themselves in a manner that not just reassures voters but appeals to them. As former Indiana Governor Mitch Daniels has put it, 'as we ask Americans to join us on such a boldly different course, it would help if they liked us, just a bit.' ... Third, Republicans must resist the temptation of defeatism, enervation, and turning against the country. It is entirely within the power of the GOP to both remain principled and appeal to a majority of Americans. An intellectually self-confident party would, in fact, be energized by a challenge of this scale."

Read this line again: "It is entirely within the power of the GOP to both remain principled and appeal to a majority of Americans."

A bold agenda that does these things reflects Gov. Christie's record in New Jersey. By not inviting him to speak, CPAC invites comparison with a pessimistic and hypercritical political environment of the past. If the Republican "tent" isn't large enough for Chris Christie, then it will resemble a pup tent for some time to come.

Republicans should be focused on deconstructing failed liberalism and styling their alternative in positive terms, not rejecting one of their own. Hating President Obama is not a policy. Intellectually defeating his policies is.



The campaign against free and fair elections

The elections are only a few months behind us, but Democrats are already busy working to ensure citizens and non-citizens, the dead, felons and those registered in two or more states can cast a ballot in the next political contests.

These “new Americans,” as Democratic rising star and Maryland Gov. Martin O’Malley calls illegal immigrants, used-to-be Americans, those who gave up their voting rights after committing a crime and those extra-engaged citizens have one thing in common. They like Democrats.

That is why the left is busy pushing voter “access” from the top down. President Barack Obama said in his inauguration speech that, “Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote.” And in his state of the union speech he proposed a commission to study electoral reform to make voting faster and easier.

But that is really not the mission. The average wait time around the country is 14 minutes, hardly an overwhelming burden.

The real issue is finding ways to ensure Democratic hegemony for decades to come. That is why the party and liberal activists want federal and state reforms allowing same day registration and voting and expanded early voting – but go postal over laws requiring voter identification and refuse to acknowledge fraud and election security issues.

Instead, they say the real problem is a vast conservative conspiracy to prevent minorities and the poor from voting.

There is plenty of evidence of fraud, however. Wendy Rosen, a Democrat who ran for Congress in Maryland last year, withdrew from her race after news broke that she voted in both Florida and Maryland. The New York Daily News found that 46,000 snowbirds, mostly Democrats, were registered in both New York City and Florida. Its analysis exposed that up to 1,000 of them voted in both states in multiple elections. As the paper wrote, “The finding is even more stunning given the pivotal role Florida played in the 2000 presidential election, when a margin there of 537 votes tipped a victory to George W. Bush.” And a group in Minnesota found by comparing criminal records with voting rolls that over 1,000 ineligible felons voted in the state’s 2008 election where the U.S. Senate seat, won by Democrat Al Franken, was decided by 312 votes.

Waiting in line to vote is an inconvenience, but reducing the wait time to zero is not worth it if it jeopardizes the integrity of elections across the United States. If those on the left truly cared about free and fair elections, they would focus their efforts on ensuring those allowed to vote have appropriate identification and that voter rolls do not allow people to vote in multiple states.

Couching the lie of “voter suppression” in the guise of “voter access” makes it no less dangerous




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