User fees: a betrayal of public service

With today's cynicism-as-worldview, Americans "wisely" comment that corruption is unavoidable. These people should consider when they last paid a bribe to get a driver's license. The marvel of modern governance is that a combination of real enforcement and sufficient resources to deliver services can - gradually - marginalize corrupt practices.

But this is a difficult job and takes constant effort. Now, it seems to be eroding, and a big culprit is "user fees." Take the Citizenship and Immigration Service, which has charged some significant fees since 1986:

Hooked on fees, Congress allowed the growth of a Turkish bazaar of levies, through which immigrants now pay for 90 percent of the agency's budget...

As backlogs and deficits grew, the agency ratcheted up charges to cover its budget. The longer applicants waited, the more they paid.

In 2005, it raised $230 million by charging green-card applicants for about 1 million temporary work and travel permits they needed while waiting for their cases to be processed. About 325,000 interim permits went to people whose applications were later denied, creating a security risk, Khatri said.

The agency raised another $139 million by charging a separate "premium processing" fee of $1,000 -- three times the normal fee -- that is now used by a majority of applicants to speed up the process.

This is not the behavior of a modern agency: it is the blind rapacity of the Third World mandarin, writ large. Have power over someone? Make them pay, then don't give them what they paid for, then make them pay again! In fact, the lead in the quoted article is that the CIS rejected a plan to cut costs and slash waiting times - on the stated grounds that it would deprive the agency of the fees that keep it afloat.

This overall situation was not the choice of the CIS, to be sure: it stems from the slow strangling of the federal government begun in the 80's. Reagan didn't manage to do anything really revolutionary like cut Social Security or the Department of Education in his tenure - but his lasting deficits kept almost all agencies, except the military, straining to maintain their operations with stagnant or slowly falling budgets. Many of the ones that were based on enforcement, like parts of Justice and Agriculture, stopped doing their work seriously (especially in enforcing labor and environmental laws). The ones that perform services on demand, like the INS/CIS, the Patent Office, and the FDA, turned to user fees to keep their budget adequate and growing. The Patent Office and the FDA, which work for business, are more and more in thrall to the bigger and wilier businesses as a result. On the other hand, the CIS, which works for regular people, has become a practitioner of extortion.

Its extortion is disturbingly similar to the habits of the drug companies. Since a life-saving drug is absolutely vital to the customer, why not charge as much as you can wring out of them, up to thousands a month? In the same way, an immigrant has a desperate need for legal status, and will go to any lengths to scrape up the money necessary to cover a new fee. That a public agency would abuse that desperation to line its coffers and preserve its functionaries' jobs is disgraceful. The proper measure of an agency is not whether it can pay for itself, but whether it serves the public. As such, user fees, beyond a small token, should be seen as a pernicious vampirism, incompatible with good government.

The right to arm bears

What relation does the US's right to bear arms (the Second Amendment) have to freedom more generally? Ignoring the trumped-up figures on self-defense, the party wishing to exalt freedom and the will to rebel can sometimes by swayed by the "defense against tyranny" argument. If nobody at all had guns, wouldn't they be easier to oppress?

However, that argument is bunk. Like the "self-defense" argument, it appeals to the kind of putz who faults the Virginia Tech victims for not "taking out" their attacker. (Yes, they do exist.)

Look at the history of popular warfare. In France, Russia, Algeria, China, Vietnam, they were not enabled by popular ownership of arms. Instead, their practitioners acquired arms -- by stealing or receiving them from the army (which often fractures in a true national movement), or by smuggling or manufacturing them themselves. All the gunowners in America, put in serried ranks, could not make any kind of formidable fighting force: that comes from cause and struggle, when popular violence is not a fevered fantasy but a painful necessity.

In the absence of any even hypothetical use against oppression or foreign invasion, guns are toys that magnify how people can hurt each other. Local or state governments should be able to ban or strictly license their ownership, depending on circumstances. A more systemic approach, alongside that, is to discourage their manufacture. If the supply of guns is low (as it in fact is in many countries), even criminals will use them less.

Yes, the Supreme Court has denigrated the original intent of the Second Amendment, which was (fairly unambiguously) written in a time when guns were scarcer, and the citizenry assembled could actually become an army of sorts. Yes, it has created a right to privacy that was only adumbrated in the Constitution. This is not a problem, because the former has become irrelevant while the latter has become all the more relevant.

Freedom does not change, but its manifestations do. Since our land is dedicated to the ideal of freedom, insistence on of keeping that manifestation exactly as it was centuries ago has become a standard tactic of oppression. Beware.

Vox populi

Which of the three branches of government is supreme?

The traditional civics class answer is that each checks the others, creating a balanced structure. This is evasive. Obviously, if we care anything for democracy, we must admit that Congress is the only directly elected body, and its structure represents the will of the people in a much more concrete way than the one man produced by the Electoral College could hope to. This is clearly embodied in the Constitution: if the President were meant to be dominant, he, not Congress, would have the authority to make law.

The current administration believes otherwise. Based on the specious theories put forward by their courtiers, in whatever challenge to their actions, they automatically say their opponents ignore the prerogatives and duties of the executive. This is exemplified in the signing statement to the torture bill:

The executive branch shall construe [the Act] in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power...

Since they leave this "authority" as vague as possible, but use it wherever possible, the effect is no different from an assertion of monarchy.*

One notes this belief linguistically in the current US attorney flap: where Congress wishes to subpoena and publicly question administration officials, Bush demands instead that they be interviewed. In this context, interviewing is what an inferior does to a superior, as when a reporter interviews a politician. They might as well propose "granting an audience" to Congress. And, of course, they reinforce this practically by proposing a format which gives the officials complete impunity to lie.

Why do we see this notion of omnipotence come? The pure grasping ambition of the current administration did not arise in a vacuum. Part of the blame may go to the positing of the Presidential election as almost a "referendum", being (despite its flaws) the only nationwide race. Today, at the conclusion of every election, all professional talkers say the choice is a "mandate" for the victor's policies to be carried out. When they say so, they are implying not just that the people are favorable to those policies, but that, in a sense, the people have already formally ratified them, and anything Congress does would be obstructive to this will. (One is reminded of Napoleon's plebiscites.)

More proximately, it grows from the general growth of executive power in this century. Unlike other historical movements that could be named, the popular revolt that led to the New Deal was championed by the President, not Congress, and in the process many new powers were arrogated to the executive. Today, the federal government has such reach that executive orders can have as much practical impact as laws, and the president has become a de facto legislator. Also, over the years, Presidents such as LBJ kept up the tendency of championing popular causes over Congress. The cause was noble, and the means were perhaps inevitable given what needed to be done, but what was then an exigency is now being elevated to a principle of unbridled rule.

Perhaps if Nixon had not been pardoned, it would have stayed in check; but he was, and today his story is repeating itself. We see Congress on the verge of issuing orders the President has declared he will openly defy. The law is clearly on the side of Congress, which deserves to be seen as an assembly of the people, no matter its flaws. But political culture revels in subserviency, and the meaning of the word "executive power," perhaps under influence from the tyrant-cult of the CEO, has been twisted to mean "absolute power."

The automatic belief in democracy needs translation from the abstract to the concrete - the truth that governance emerges from masses of representatives, arguing, maneuvering, and, yes, even cajoling. The President is the servant of the people; Congress is their voice.

*It has more legitimacy in foreign affairs issues, where they can misuse the term "commander-in-chief" for the same purpose, but the pattern exists everywhere.

EDIT: A talking point of Tony Snow's today has illustrated their ideals much more nakedly than I thought would happen:

"There's another principle, which is Congress doesn't have the legislative -- I mean oversight authority over the White House." (To CNN, 3/25)

Now, he is supposedly trying to distinguish the White House from the Justice Department, saying that Congress established the latter by a law but not the former. Even that is so much gobbledygook. But he came so close to slipping and saying "Congress doesn't have legislative authority."

(Via Daily Kos.)

Privilege and the Republic

In the past hundred years, we have grown used to the notion that our society will change drastically over the course of our lives. Even in 1850, everyone was keenly aware how transformative the train and telegraph had been. Then there were machine guns, effective medicines, automation, refrigeration – all coming at once, when each would have been revolutionary on its own.

As a result, when we see something successful and new, we automatically try to analyze it and jump on the bandwagon, technological or not. Success has a thousand children.

That is why we should be very worried about the new trend of profit through exclusivity.

Anyone who follows the popular blog Boing Boing for two weeks will receive a thorough indoctrination into the Doctorow worldview. In a nutshell, it says that the media and software industries are institutionally overreacting to file sharing, even though sharing increases interest in legal purchases. As a result, the industries are eagerly promulgating mechanisms to spy on, control, sue, and inconvenience their paying customers to remove all threat of piracy. This also produces a chilling effect on fair use, sharing among friends, personal recopying, and derivative-but-novel art.

Granted, the theory is partly akin to the too-clever-by-half arguments for music sharing that were rife in the Napster age. But look at some of what has happened in these industries:

• When you purchase a song or album from iTunes, you can only download it to an iPod, not to competing players (unless you go to the trouble of burning them onto an audio CD and re-copying them, using up the CD in the process).
• The Digital Millennium Copyright Act now bans the circumvention of any form of digital rights management – even if the circumvention is for an otherwise legal use, such as making versions for the blind.
• When you buy a new computer, the license won’t let you reload your previous copy of Windows onto it: you have to pony up once more.

Essentially, these industries want to extract a fee for every conceivable use of their intellectual property. They are not content with the profits of being identifiers or popularity or producers of tools: they want everything they own marketized to squeeze every possible dime out.

Let’s pause to note the role of the public sphere in this. Without copyright and patents, none of this would be possible. All of these are meant to reward invention and creativity and therefore further the public good. But with copyright being extended every time Mickey Mouse would otherwise expire, what creator benefits by letting a corporation profit off her work up to seventy years after her death?

On to another industry: pharmaceuticals. The bulk of original, breakthrough medical research is done by NIH-funded (i.e., taxpayer-funded) research. It is common sense that when the public funds research, its results should go into the public domain. But since the 80’s, universities have had the right to license their publicly-funded discoveries to private entities, giving them the patent rights. This has made a lot of businessmen and universities very rich. But when Bristol-Meyers Squibb licensed the cancer drug Taxol and charged up to $20,000 for a year’s treatment, how well was the public interest served? With intellectual property we simply have overzealous government protection of others’ creations; here, on the other hand, the government is actually giving away its golden eggs for others to sell.

The pharmaceutical and biotech industries are quite aware of how good their patent and exclusivity rights are for them: they spend huge sums on lawyers and lobbyists to preserve these rights as long as possible through arcane legal manipulations and changes to the law. They also work hard to “build brands”: when a popular drug loses its exclusivity, they make a new version with enough insignificant changes to get a new period of exclusivity, and market the hell out of it, manipulating doctors and customers to choose it even when the old version is available generically. In short, the industry is addicted to multiple ways to create revenue without creating value. This has an academic name: rent-seeking. Here, the word “rent” is used to imply revenue without commensurate effort, competition, or risk. Usually, it is used in relation to impoverished countries, referring to bribe-taking political leaders and bureaucrats, or the creation of heavily-protected, inefficient industries. But American industry is now finding new ways to go about it.

For this is by no means a limited trend: more examples continue to spring up. The Smithsonian signed a deal with Showtime to give the cable channel exclusive access to its film archive to create programming. Others are not prohibited from using its collection, but Showtime has the right of first refusal on anything marketable they make. There was also an abortive legislative effort to stop the National Weather Service from providing its weather data to the public, leaving the field to commercial enterprises – even though these enterprises themselves get their data from the NWS! At every turn, the government seems willing to do anything for the sake of connected rent-takers.

There are also alarming signs that this strategy is spreading to the industry as a whole. The Patent Office has been restructured to make rejections of patents rare, and the boundaries of “business method” patents have been extended to ridiculous extremes like online shopping carts. This practically invites businesses of all kinds to invest effort in clearing the field of competition, not for the first several years but as a continuous strategy.

If this keeps up, and companies begin to rely on exclusivity, royalties, and legal awards for all their business, what will it do to public choice and innovation at large?

There was an illustrative cultural vignette in 2005. The NFL and the Major League Baseball Players Association had just sold exclusivity on videogame use of their players’ likenesses to different software companies. The gaming comic Penny Arcade parodied this decision with a comic, “The Exquisite Flavour of Exclusivity,” announcing that they, the creators, had been awarded exclusivity in making comics about videogames. The fiction was continued in a tongue-in-cheek newspost. Tycho Brahe, the comic’s writer, was inundated with protesting emails from those who believed, despite the comic’s barely-veiled criticism, that this had actually happened. He later offered up twin explanations:

1) People Are Stupid

2) Things Really Have Gotten Out Of Hand

As companies accumulate more and more control over the commercial environment they work in, people feel increasingly at their mercy, coerced into going along with whatever they choose to do. Thus, Penny Arcade’s outrageous satire actually seemed plausible to them. In his initial newspost, Tycho said:

“I’m going to walk into an Electronic Arts retail location here in a couple years and purchase a white box with the word ‘Game’ on it, and that's going to be the industry.”

The ultimate in rent-taking is tax farming, where private people or groups bid for the right to collect taxes instead of the government, and pay their expected take in advance. We never do that, for a very good reason: it leads to hired thugs roaming the country, unchecked and unaccountable, pursuing their own private gain while cloaked in the public name. This is what old-regime France did with the General Farm, a collection of financiers which monopolized tax farming. It went so far as to build a wall around Paris for the sole purpose of collecting customs duties. Its very existence reduced the state to a collection of privileges and licenses to be handed out at powerholders' discretion. One of the most hated institutions of the Old Regime, it was disbanded permanently in 1790. Since then, governments have been scrupulous about keeping taxation private, until now:

The Internal Revenue Service should abandon its four-month-old program of sending unpaid, uncomplicated tax debts of $25,000 or less to private bill collectors, national taxpayer advocate Nina E. Olson told Congress yesterday.

If it’s only a matter of collecting money, why not have someone outside the IRS do the work? It’s outsourcing! It’s modern!

It’s not just collecting money, though: it’s preserving the state as the guardian of the public good. With that idea disappearing, we now see public protections reduced to private perks on all sides. Such abuse can carry high consequences when the people realize what they have lost. For the General Farm, the phrase “first up against the wall when the revolution comes” was quite literal.

Defeatism as policy

Last week's Economist had a special feature on "offshore financial centers" (OFCs), the new trendy term for tax havens. Its main points are as follows:

1. OFCs are indeed used to avoid taxation.
2. They offer a good deal more, though: the successful OFCs have efficient regulations, low corruption, and real expertise in providing services to global capital - reinsurers in Bermuda, for example.
3. Tough international rules and local regulations have also been put in place to keep out money-launderers, international criminals, and so forth. This is unambiguously good and should be kept up.
   
4. Allowing businesses in one country to evade taxes by using an OFC elsewhere increases their global competitiveness, and so is actually good policy.
   
5. Business is now global but tax authorities are not, so in the big picture, it is parochial and out of touch to try to pin down global, integrated operations to one country or another.
6. "...[C]lose one regulatory loophole and lawyers will open another; convince one OFC to co-operate in the fight against tax evasion or financial crime and another will take its place."
   

Items (3) and (6) invite comparison. One problem deserves serious attention, pooled efforts, perseverance. The other is, well, so darned difficult it's not worth the effort.*

Guess which of those two problems involves big business doing well for itself! This is a key element in professional pro-wealth defeatism, and indeed conservatism through the ages: if you try, you will fail, so don't try.

The people who use this rhetorical tactic will also, if you ask them, have grand visions that call for moral fortitude, steadfastness against all odds. For the Economist, it's free trade, which they are the first to admit politicians always have strong, if not good, reasons to oppose. For Bush and the war pundits, it's Iraq: they plead that we be solemnly responsible and see it through, even as they crumple at the thought of doing anything substantial to stop global warming, because it could cost businesses money!

It is a clever obstruction tactic, because, by casting doubt on the success of the enterprise, it implies that its user wants the same things as the progressive, without conceding anything in practice.

The key phrase in item (2) is "efficient regulations" (my paraphrase). The Economist seeks to inculcate by stealth the notion that laws should have business as the only constituency and the only beneficiary. Better regulators will "habitually consult local businesspeople to see how they can improve co-operation," and "'are willing to listen and change... not rigid.'" These people deliberately cloud the idea of any greater good beyond business interest. If a business avoids paying taxes, that helps the business, ergo it must be good for everyone.

The entire feature, though informative, is essentially designed a smokescreen to obscure item (1), which is not refuted at any point. Legal or not, loopholes or not, helpful to business or not, to avoid paying taxes on profits to the community where those profits were made is to reject and deny that community.

I'll take responsibility and endeavor over their brand of defeatism any day.

(For more on the transformation of public trust into private wealth-taking, WATCH THIS SPACE for a drawing-together of the strands of intellectual property, the Smithsonian, public medical research, the IRS, and weather reports! To be posted within the week.)

*I should note that the crassness of item (6) is chiefly in the introductory, summary piece: some of the detailed pieces are more thoughtful and interesting. They actually try to explain why governments tend to rattle sabers but not actually crack down on OFC use as much as they could, with particular reference to item (4).

McCain

The following is not an original observation (via unfogged which is via others), but in keeping with my last post.

For an glimpse at the America's developing militarism expressed in visual design and film production, see the John McCain website and its videos. Stirring strings, shining silver, the warrior. A constant motif of palingenesis, the erstwhile authoritarian frenzy toward, phoenix-like, reclaiming a lost strength and heritage.

It's an attempt at transmission into the mainstream of ideas circulating in the far right, on a scale potentially much greater than the current radio, print, and television practitioners (Limbaugh, Coulter, etc.).

Its legacy may hinge on whether McCain keeps it up through the campaign - and whether it is judged to hurt or hurt him. It certainly hasn't hurt others: Orcinus has repeatedly documented
that transmitters like Coulter are given a pass for calling for outright murder and terrorism, by calling it a "joke" when criticized - while their supporters take it deadly seriously.

It's different with a presidential candidate, of course. But legitimation by McCain could advance the cause of modern authoritarianism by decades.

Ne-e-eigh!

It was inevitable, in retrospect.

The "support our troops" catechism held that opposing a military mission was the same as treasonously undermining our fighting men, its teleological reasoning (the troops should be there because they are there) amounting to sanctifying goalless strife with the aura of the warrior. The President exploited that aura, defending his decisions on troop levels as obeying the advice of his generals, therefore infallible. A general sense that "the military knows best" was cultured.

Add to that the Republican Congress's willful abdication of authority, only taking interest in passing legislation insofar as it kept the campaign money flowing. In their clannish defense of the President, they even denigrate their own power, denying themselves the ability to cut off military funding, calling themselves a "committee of 535."

Now one of the counterrevolution's mindless drones has taken the evolving discourse to its natural conclusion:

[Chris] MATTHEWS: Right now, February 8, 2007, do you believe we should go to war with Iran?

[Rep. Eric] CANTOR: I‘ll leave that decision up to the commanders on the ground and those in our military ...

MATTHEWS: Commanders on the ground whether we go to war with another country?

CANTOR: I will leave the decisions in the military arena to—this is exactly the point.

We now have an elected representative who honestly believes that the choice to go to war should be made by the military, not Congress.

At this rate, we may look back on February 8, 2007 as the last day of the Republic and the first day of something new. Today, they rip down democracy in the interests of a power-hungry executive, who propounds a two-bit theory justifying his own omnipotence. But who knows whether he can tame the Monster he unleashes? What will matter, to our children, is that his party will have destroyed the principle of self-determination and replaced it with a slavish eagerness to be ruled.

Once that's accomplished, we shouldn't be surprised to see a military government or worse somewhere down the line. All the power of the unitary executive, plus a new kind of Divine Right, without the bother of elections. They can amuse themselves invading Manchuria.

(Via poputonian at Hullabaloo.)