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'Chemical Safety Improvement Act' Not, In Fact, An Improvement, Analyst Says

Nicole Ciandella — Wed, 22 May 2013 21:29:55 +0000

WASHINGTON, D.C., May 22, 2013 — Sens. David Vitter, R-La., and Frank Lautenberg, D-N.J., surprised the Senate with their introduction of legislation to overhaul the Toxic Substances Control Act on Wednesday, and Angela Logomasini of the Competitive Enterprise Institute is not convinced this is a terrific idea.

The senators say the Chemical Safety Improvement Act of 2013 would, “for the first time, ensure that all chemicals are screened for safety protect public health and the environment …” and create “an environment where manufacturers can continue to innovate, grow and create jobs.”

Logomasini, a senior fellow in CEI’s Center for Energy and the Environment, says the current law did not need this kind of help.

“Although the legislation is unavailable at this time, I am pessimistic about what will come out. The law, as it now stands, has one of the most robust, risk- and science-based standards on the books. This standard holds regulators accountable and allows bureaucrats to regulate only when they can demonstrate -a product poses a real risk. It also prevents the Environmental Protection Agency from imposing regulations that promise to do more harm than good and requires regulators to conduct cost-benefit analyses for banning or regulating useful products.

“Modernization likely will undermine this reasonable standard and eventually harm consumer freedom, innovation, and wealth generation as EPA passes more needless regulations and chemical bans — forcing companies to engage in expensive product reformulations or abandon them altogether.”

CEI Staff

Wed, 2013-05-22

Sub Title:

Vitter-Lautenberg Measure Would Give Regulators More Power Over Toxic Control Substances Act

Another Sweet Deal for "Big Sugar" in Senate Vote

Christine Hall — Wed, 22 May 2013 21:51:52 +0000

WASHINGTON, D.C., May 22, 2013 — In a loss for consumers and taxpayers, Congress once again voted to continue the outdated, wasteful sugar program. The Senate voted 55-45 against a bipartisan amendment to the farm bill, cosponsored by Sens. Jeanne Shaheen, D-N.H., Mark Kirk, R-Ill., Patrick Toomey, R-Pa., and others that would have instituted much-needed reforms of the program. The amendment specifically addressed some add-ons in the 2008 farm bill that made the program even worse by further restrictions on imports, higher price supports and a costly sugar-to-ethanol program.

“We are extremely disappointed the Senate voted down Senate Amendment 925 to the Farm Bill that would have taken important steps to reform the costly sugar program,” said Frances B. Smith, adjunct fellow at the Competitive Enterprise Institute. “Since the Great Depression, this program has operated as a central planning scheme that sets the domestic supply, provides guaranteed and high prices to sugar producers and restricts competition.”

Before today's vote, a coalition of consumer, taxpayer and policy organizations had made their objections known through a coalition letter urging Members of Congress to put the U.S. sugar program on the "short list" for substantive reform.

Smith said the sugar program acts as a cross-subsidy to wealthy sugar producers, with consumers footing the bill for domestic sugar that has historically been two to three times the world price. Americans are hit with higher prices for a wide variety of foodstuffs, while also paying the costs of a massive regulatory bureaucracy.

“It is past time for needed reform of this program – one of the worst examples of farm policy,” Smith said.

► Read the full coalition letter here.

Christine Hall

Fran Smith

Wed, 2013-05-22

Sub Title:

Vote to Continue Outdated, Wasteful Sugar Program

CEI report: Uncle Sam loves his regulations

Clyde Wayne Crews — Wed, 22 May 2013 18:54:12 +0000

Americans spent an estimated $1.8 trillion in 2012 to comply with federal regulations, reports the Competitive Enterprise Institute.

The public policy organization has just released its 20th annual report, "Ten Thousand Commandments," which describes the cost of complying with Uncle Sam's rules.

"You have thousands of regulations coming out of the [federal] agencies. Every year it's about 3,500," says Wayne Crews, vice president for policy at the CEI.

Congress, meanwhile, passes only a "few dozen" regulations annually that are signed into law by the president, says Crews.

According to the latest report, $1.8 trillion is more than half of federal spending, and is greater than the gross domestic product in Canada and Mexico.

CEI notes the federal government funds itself through taxes and through borrowing money, and a third way is through regulations - "off-budget taxation."

Crews says he wants Congress to pass the Regulations from the Executive in Need of Scrutiny Act, or REINS Act. The legislation would require Congress to approve rules proposed by the executive branch that have an economic impact of $100 million or more.

"That way, you get Congress back in the driver's seat," Crews tells OneNewsNow. "Plus, voters have someone they can point to and hold accountable."

- See more at: http://www.onenewsnow.com/politics-govt/2013/05/22/cei-report-uncle-sam-...

Clyde Wayne Crews

Wed, 2013-05-22

Citation Source:

One News Now

http://www.onenewsnow.com/politics-govt/2013/05/22/cei-report-uncle-sam-loves-his-rules

Cost of Complying with U.S. Regulations Higher Than Canada's GDP

Clyde Wayne Crews — Wed, 22 May 2013 18:55:22 +0000

$1.8 trillion buys a lot of red tape.

That’s how much the federal regulatory machine is costing Americans each year, according to the 20^th edition of the Competitive Enterprise Institute’s Ten Thousand Commandments report.

This huge number is $50 billion more per year than what a Small Business Administration study found in 2008.

Clyde Wayne Crews

Wed, 2013-05-22

Citation Source:

Breitbart

http://www.breitbart.com/InstaBlog/2013/05/22/Cost-of-Complying-with-U-S-Regulations-Higher-Than-Canada-s-GDP

Environmental Fear-Mongering Isn't Just Silly, It Kills People

Gregory Conko — Wed, 22 May 2013 18:44:55 +0000

Dr. Henry Miller, senior fellow at the Hoover Institution, and Gregory Conko, senior fellow at the Competitive Enterprise Institute, in a Forbes article "Rachel Carson's Deadly Fantasies" (9/5/2012), wrote that her 1962 book, "Silent Spring," led to a world ban on DDT use.

The DDT ban was responsible for the loss of "tens of millions of human lives — mostly children in poor, tropical countries — have been traded for the possibility of slightly improved fertility in raptors (birds). This remains one of the monumental human tragedies of the last century."

Henry I. Miller

Gregory Conko

Tue, 2013-05-21

Citation Source:

Investor's Business Daily

http://news.investors.com/ibd-editorials-on-the-right/052113-657026-environmental-extremists-mean-well-but-are-deadly.htm

Self Help Africa: Why Only Profits Can Cure Poverty

William Frezza — Wed, 22 May 2013 19:35:19 +0000

The importance of profiting from one’s efforts ought to be an easy concept to embrace. It is why humans no longer live in caves. If an endeavor—any endeavor—produces more value than it consumes, it will not only pay for itself, but create the means for growth. In contrast, endeavors that persistently generate losses are destined to wither and die.

Africa has long been a place where charity goes to die. Developed countries have been pumping charity into Africa for as long as photos of starving children have been used to capture our sympathy. Tragically, most of this aid has been wasted, either stolen by corrupt local politicians or handed out in a way that traps people in a state of dependency that only generates more need for aid. The result? A continent mired in poverty, where economic growth seems an elusive goal.

As the Wall Street Journal reported several years ago “Over the past 60 years at least $1 trillion of development-related aid has been transferred from rich countries to Africa. Yet real per-capita income today is lower than it was in the 1970s, and more than 50% of the population—over 350 million people—live on less than a dollar a day, a figure that has nearly doubled in two decades.” The reason is clear. Most of this aid has been distributed by governments to governments, lining the pockets of kleptocrats whose benighted economic policies keep their people in poverty.

Many Non-governmental Organizations (NGOs) have learned to bypass governments and deliver aid directly to the needy. This is a good start. Yet for cultural reasons, the people that support and run these NGOs are usually wary of—and often even hostile to—free market concepts. They praise sustainability while deriding profits. Yet without profits, the ability to sustain, scale, and replicate programs is limited by donors’ willingness and ability to continue giving. Worse, the lack of the profit motive undermines the opportunity to help poor Africans help themselves by working their way out of poverty.

Fortunately, all NGOs are not created equal. Self Help Africa is an NGO of a different bent. It calls itself a “non-profit in the business of helping others to make one.” Dedicated to empowering rural Africans to achieve economic independence, the organization’s focus is on bootstrapping self-sustaining endeavors at the local level. It offers training in everything from bookkeeping to beekeeping, to help people meet not only local consumption needs but to generate cash crops and go-to-market strategies that will produce that key ingredient of sustainability—profits. Think of it as venture charity with a pay-it-forward component.

A good example is a Self Help Africa program in Malawi that is designed to help a village diversify its agricultural efforts while shifting from subsistence to cash crops. One pilot family received a loan of three pigs, two females and one male, and a crash course on hog farming. To discharge their debt, the family simply had to pass on the first litter of piglets to two other families, who signed up for the same deal. Any litter that came along after that was theirs, adding pork chops to their diet or pigs they could sell.

Meanwhile, peanut farming, a cash crop well matched to both climate and market conditions, was introduced into the village for the first time. Properly bagged nuts are largely nonperishable, travel well, and do not have to be sold at peak harvest time, so they can be held back until better prices can be obtained. Program participants, who are treated like businessmen and not beneficiaries, pay for their initial seed stock and training by returning seeds the next season. How does Self Help Africa know when it has succeeded? When it can move on to the next village with a fresh load of seeds and pigs, leaving profitable businesses behind.

Broader initiatives include training programs to help turn small scale agribusinesses into investible enterprises that can attract outside capital and generate real economic growth—the basis for advancement in other areas, including infrastructure and education. This requires the introduction of modern accounting, planning, management, and reporting practices as well as economies of scale.

When I spoke to Self Help Africa’s head of U.S. operations to compliment him not just on his programs but on his profit-centric message, he replied “I would like to get to the point where I am not just pitching venture capitalists for their philanthropic dollars. I would love to be pitching them for their investment dollars. Africa is not just a continent of need. It is a continent of opportunity.”

William Frezza

Tue, 2013-05-21

Citation Source:

Forbes

http://www.forbes.com/sites/billfrezza/2013/05/21/self-help-africa-why-only-profits-can-cure-poverty/

The Towering Federal Register

Clyde Wayne Crews, Ryan Young — Wed, 22 May 2013 18:59:44 +0000

This week marks the publication of the 20th anniversary edition of the Competitive Enterprise Institute’s annual survey of the federal regulatory state, Ten Thousand Commandments. The report takes a big-picture look at the cost and scope of federal regulations. Among other eye-popping numbers, this year’s edition estimates the total federal regulatory burden at $1.8 trillion per year and growing — the first time ever that the cost of regulation has exceeded half the size of the federal budget.

The report contains a fuller picture of how the regulatory state has come to overshadow every area of America’s economy, but for now we’d like to concentrate on one facet of the regulatory state that has grown over the last two decades: the Federal Register.

The Federal Register is a daily digest published by the federal government since 1936. It contains proposed regulations from agencies, finalized rules, notices, corrections, and presidential documents. The 1936 Federal Register was 2,620 pages long. It has grown steadily since then, with the 2012 edition weighing in at 78,961 pages (it has topped 60,000 pages every year for the last 20 years).

The Federal Register’s page count is by no means a perfect proxy for measuring regulatory burdens. A particularly onerous regulation might take up only a page or two, while one that costs relatively little could ramble on for dozens of pages. Despite this important shortcoming, it is still one of the more useful yardsticks we have, as it indicates a large and active federal government. Now let’s do some measuring.

Since the first edition of Ten Thousand Commandments was published in 1993, a touch less than 1.43 million Federal Register pages have been published. That’s an average of 71,470 pages per year. Considering that an average year has 250 workdays (the Federal Register is not published on weekends or holidays), that roughly averages out to 286 pages per day. It takes a very busy federal government to fill that many pages each and every workday.

It’s hard to wrap one’s mind around large figures like 1.43 million, other than knowing that any number with a certain number of zeroes is very, very large. So let’s make that abstraction a little more concrete. A standard ream of printer paper contains 500 pages. A standard carton of 10 reams contains 5,000 pages. Thus, to print the last 20 years’ editions of the Federal Register, you would need 286 of these cartons — enough to fill a small room.

A standard ream of 20-pound weight paper, standard for office use, is about two inches thick. From that, we can calculate that our 1.43 million-page stack would be 476 feet tall. It would also weigh more than seven tons. Fittingly, this regulatory tower would rival the Washington Monument’s 555 feet for supremacy of Washington’s skyline. In fact, if the tower were to keep growing at its 20-year average pace, it would surpass the Washington Monument in 2016.

Since the publication of the first edition of Ten Thousand Commandments, it has been a very busy 20 years in Washington. It is in everyone’s interest that the next 20 years see the growth of government slowed or even reversed. There is a wide array of reforms available to make that happen. For starters, Congress should vote on all major regulations, instead of delegating away its lawmaking authority to unelected agencies. Increased oversight of unfunded mandates would rein in regulations that impose undue costs on state governments and the private sector. The president should appoint an annual independent commission to comb through the books and send to Congress a yearly package of old, obsolete, and harmful rules slated for elimination, subject to an up-or-down vote.

Every edition of the Federal Register published since the first edition of Ten Thousand Commandments already exceeded Washington, D.C.’s height limit for buildings. It is well past time to slow its growth and bring it down to Earth.

Clyde Wayne Crews

Ryan Young

Tue, 2013-05-21

Citation Source:

The Daily Caller

http://dailycaller.com/2013/05/21/the-towering-federal-register/

Ten Thousand Commandments 2013

Clyde Wayne Crews — Tue, 21 May 2013 12:24:36 +0000

Full Document Available in PDF

The scope of federal government spending and deficits is sobering. Yet the government’s reach extends well beyond the taxes Washington collects and its deficit spending and borrowing. Federal environmental, safety and health, and economic regulations cost hundreds of billions—perhaps trillions—of dollars every year over and above the costs of the official federal outlays that dominate the policy debate.

Highlights of the report:

• Total costs for Americans to comply with federal regulations reached $1.806 trillion in 2012. For the first time, this amounts to more than half of total federal spending. It is more than the GDPs of Canada or Mexico.

• This is the 20th anniversary of Ten Thousand Commandments. In the 20 years of publication, 81,883 final rules have been issued. That’s more than 3,500 per year or about nine per day.

• The Anti-Democracy Index – the ratio of regulations issued to laws passed by Congress and signed by the president – stood at 29 for 2012. That’s 127 new laws and 3,708 new rules – or a new rule every 2 ½ hours.

• Regulatory costs amount to $14,678 per family – 23 percent of the average household income of $63,685 and 30 percent of the expenditure budget of $49,705 and more than receipts from corporate and personal income taxes combined.

• Combined with $3.53 trillion in federal spending, Washington’s share of the economy now reaches 34.4 percent.

Clyde Wayne Crews

Tue, 2013-05-21

Sub Title:

An Annual Snapshot of the Federal Regulatory State

Udall-Paul Legislation Spreads Freedom for Credit Unions and Entrepreneurs

Christine Hall — Tue, 21 May 2013 17:11:25 +0000

WASHINGTON, D.C., May 21, 2013 - The Competitive Enterprise Institute, a Washington-based free market think tank, commends legislation introduced by Sens. Mark Udall (D-Colo.) and Rand Paul (R-Ky.) that lifts regulatory barriers to credit unions making small business loans.

“The Udall-Paul bill, S.968, will lift unjustified regulatory barriers on America’s credit unions. So it shouldn’t just be cheered because it’s bipartisan, but because it spreads freedom,” says John Berlau, CEI's senior fellow for finance and access to capital.

Credit unions are currently limited to lending no more than 12.25 percent of their assets to the businesses of their members. The Udall-Paul bill, and its House companion, would raise this cap to 27.5 percent.

"Because of government barriers to credit union business lending, thousands of entrepreneurial ventures may be unnecessarily deprived of the seed capital credit unions could provide to them," Berlau explains. "This regulatory barrier is exactly what Udall-Paul would fix. The modest hike in the lending cap would pay big dividends for entrepreneurs and the economy."

Berlau cites figures from a credit union association that 138,000 jobs could be created if the business lending cap were raised. He concludes. "Let’s support Sens. Udall and Paul in lifting the foolish barriers to business lending by credit unions, as well as go after barriers to both banks and credit unions that hold back the economy and its entrepreneurs."

Read John Berlau's post in OpenMarket.org: Udall-Paul Legislation Spreads Freedom for Credit Unions and Entrepreneurs

Christine Hall

Tue, 2013-05-21

Ten Thousand Commandments 2013: A Fact Sheet

Clyde Wayne Crews — Mon, 20 May 2013 22:47:39 +0000

Full Document Available in PDF

1. This is the 20th anniversary of Ten Thousand Commandments. In that time, 81,883 final rules have been issued. That’s more than 3,500 per year or about nine per day.

2. The Anti-Democracy Index – the ratio of regulations issued to laws passed by Congress and signed by the president – stood at 29 for 2012. That’s 127 new laws and 3,708 new rules – or a new rule every 2 ½ hours.

3. Total costs for Americans to comply with federal regulations reached $1.806 trillion in 2012. For the first time, this amounts to more than half of total federal spending. It is more than the GDPs of Canada or Mexico.

4. Regulatory costs amount to $14,678 per family – 23 percent of the average household income of $63,685 and 30 percent of the expenditure budget of $49,705 and more than receipts from corporate and personal income taxes combined.

5. Combined with $3.53 trillion in federal spending, Washington’s share of the economy now reaches 34.4 percent.

6. Some 63 departments, agencies and commissions have regulations awaiting approval.

7. The 2012 Federal Register had 78,961 pages. That’s fourth highest all time. The top two all-time are the 81,405 pages in 2010 and the 81,247 pages in 2011.

8. The EPA added 223 rules in 2012 – sixth among federal agencies behind Treasury, Commerce, Interior, Agriculture and Transportation. But its 1,953 rules account for 48 percent of all federal rules, and their total compliance cost -- $353 billion – far exceeds that of all other agencies.

9. Tax compliance accounts for one-sixth the total cost of regulation – more than $300 billion.

10. Per-employee regulatory costs climb from $7,755 for 500-or-more-employee firms to $10,585 for those with fewer than 20.

View the report here.

Clyde Wayne Crews

Tue, 2013-05-21

Ten Thousand Commandments: Regulations Increasingly Used to Enact Measures Voters Wouldn't Approve

Nicole Ciandella — Mon, 20 May 2013 22:01:18 +0000

WASHINGTON, D.C., May 21, 2013 – In the twenty years since the creation of Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State, one trend has become clear: The regulatory state is growing in large part because the executive branch increasingly uses its control over rulemaking to enact policies it could not get approved by Congress.

According to the new edition of the report, released today by the Competitive Enterprise Institute, Americans spend an estimated $1.8 trillion a year to comply with federal regulations. For the first time, that’s more than half the level of total federal expenditures. Agencies spend $61 billion per year just to administer and enforce federal regulations—a 50 percent increase in the last decade.

The 2012 Federal Register ranks fourth all-time with 78,961 pages, but three of the top four years, including the top two, occurred during the Obama administration. The 2010s are on pace to average 80,000 pages per year—up from 170,000 in the 1960s and 450,000 in the ‘70s.

Completed rules reviewed in the federal Unified Agenda compilation of priority regulations went up 16 percent in the last year and 40 percent the year before.

There are more federal regulations than ever—the Code of Federal Regulations, which compiles all federal regulations, grew by more than 4,000 pages last year and now stands at 174,545 pages, spread over 238 volumes. Its index alone runs to more than 1,100 pages.

Government has added more than 80,000 regulations in the last 20 years—3,708 in the last year alone. That’s one new rule Americans must live under every 2^½ hours. Today, 4,062 sit in the pipeline. Those will add at least $22 billion in compliance costs and probably much more.

The dramatic growth in federal regulation did not begin with President Obama. The Federal Register stood at 75,606 in 2002—the sixth-highest level—and has been above 70,000 every year since except for 2009. But since then, it has recorded three of the four busiest years for regulatory activity in history.

And when it comes to economically significant rules—those expected to cost $100 million or more in compliance costs—the Obama administration is the unchallenged champion. Of the 4,062 rules in the pipeline, 224 are in this category. That level is 24 percent higher than President Bush’s most active year and far higher than any other year since 2000—except for 2010, which was tied.

The “Big Five” rulemakers—the Departments of Treasury, Commerce, the Interior, Agriculture and Transportation—account for 43 percent of that. EPA ranks sixth in rule making, but EPA regs, which are especially subject to being used to enact policies that would likely not pass muster with voters, are up 44 percent in the first Obama term and cost American taxpayers $353 billion per year—the most of any agency.

“It’s not just the politicization of the regulatory process,” said Wayne Crews, author of the report and vice president for policy at CEI. “It’s about transparency. It’s about cost and burden analysis. It’s about real outside audits of federal agencies. Asking agencies to audit themselves and identify their own weaknesses is like asking students to grade their own tests.”

The stakes are not insignificant. Americans implicitly spend nearly $15,000 per family to comply with federal regulations. That’s more than they spend on anything else except housing.

Crews cites two paths for reform. One is to enact true transparency and cost analyses. The other is to go to the source of the matter—the systematic over-delegation of rulemaking power to agencies. “Requiring expedited votes on economically significant or controversial agency rules before they become binding on the people would reestablish congressional accountability and help affirm the principle of ‘no regulation without representation,’” Crews said.

What do all these new rules do? The Department of Agriculture enacted a Rural Broadband Access Loan and Loan Guarantee program and new regulations concerning importation of unmanufactured wood articles. Health and Human Services added a spate of rules related to the Affordable Care Act and a review of what constitutes a single serving for labeling purposes.

The Department of Labor instituted a hearing conservation program for construction workers. The Department of Energy established conservation standards for wine chillers, battery chargers, TVs, residential humidifiers and mobile home furnaces. The Department of Transportation updated its regs on head restraints and rear center lap and shoulder belts. The Department of the Treasury prohibited funding of unlawful Internet gambling.

“What we’ve done for 20 years is round up the data that expose the hidden tax of regulation,” said Crews. “Government’s reach extends well beyond Washington’s taxes, deficits and borrowing. And these are costs we all pay—through higher taxes or lower wages.”

>> Read the 2013 edition of Ten Thousand Commandments

>> Read the 2013 Ten Thousand Commandments Fact Sheet

>> Browse the archive of past editions of the report

CEI Staff

Tue, 2013-05-21

Sub Title:

Obama Administration Piles On Regs In Areas Where Congress Won't Cooperate

CEI Today: Crushing regulation, investigating the EPA, and wind farms v condors

Nicole Ciandella — Mon, 20 May 2013 13:40:14 +0000

TEN THOUSAND COMMANDMENTS

Wall Street Journal: Red Tape Record Breakers

For two decades, Wayne Crews of the Competitive Enterprise Institute has tracked the growth of new federal regulations. In his 20th anniversary edition this week, he'll report that pages in the Code of Federal Regulations hit an all-time high of 174,545 in 2012, an increase of more than 21% during the last decade.

TARGETING CONSERVATIVE/LIBERTARIAN GROUPS

The Hill: EPA to review claims of bias against conservatives amid fight over IRS

The Environmental Protection Agency’s inspector general will review claims the Environmental Protection Agency (EPA) refuses to waive public records fees for conservative groups while granting the waivers for environmental organizations.

The action follows a May 14 report by the conservative Competitive Enterprise Institute (CEI) that claims the EPA waives the fees for major environmental groups more than 90 percent of the time, while often denying fee waivers for CEI, Judicial Watch and other groups.

EPA LETS WIND FARMS KILL CONDORS - MARLO LEWIS

Globalwarming.org: No Fine If Wind Farm Kills Endangered Condors — Fish and Wildlife Service

Should industrial wind facilities have to pay a $100,000 fine – as oil and gas companies do – if they kill an endangered species? Many environmental activists think so. The Fish and Wildlife Service (FWS) does not.

In a reversal of its official opinion, the FWS recently announced “it will not penalize the operator of a Southern California wind operator if its turbines kill or injure one California condor,” reports environmental journalist Chris Clarke in ReWire. > Read more >

Mon, 2013-05-20

Sub Title:

Today in the News

Obama administration demands that colleges adopt unconstitutional speech codes

Hans Bader — Mon, 20 May 2013 22:33:10 +0000

The Justice Department and the Education Department’s Office for Civil Rights have now effectively defined dating and flirting as “sexual harassment,” in addition to demanding that colleges adopt unconstitutional speech codes.

The definition is found in a May 9 Title IX Letter of Findings and Resolution Agreement involving the University of Montana. In a radical departure from Title IX jurisprudence, the federal government declares that “any” unwelcome sexual speech or other conduct is “sexual harassment,” regardless of whether it would offend a reasonable person, and regardless of whether it is severe, repeated, or pervasive.

In its findings, it rejected narrower definitions rooted in federal court rulings, declaring that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature.’” (The federal government has also effectively mandated “unconstitutional speech codes at colleges and universities nationwide,” notes the Foundation for Individual Rights in Education.)

By contrast, the Supreme Court has ruled that to constitute illegal sexual harassment, sexual advances or other verbal or physical conduct must be severe and pervasive, create a hostile environment, and be “objectively offensive” to a “reasonable person.” See, e.g., Davis v. Monroe County Board of Education (1999). According to the Supreme Court, isolated instances of trivially offensive sexual speech are not illegal, and are not considered “sexual harassment” in even the broadest possible sense: that is, the “harassment” you are entitled to complain about under federal anti-retaliation laws, which allow employees to sue when they are disciplined for reporting what they in good faith believe to be sexual harassment, even if isn’t actually bad enough to be illegal. See Clark County School District v. Breeden (2001). If speech is not offensive to a reasonable person, it cannot even fall into the general category of “sexual harassment.”

The definition of “sexual harassment” that the federal government demands that the University of Montana adopt is far broader than the sexual harassment policies declared unconstitutionally overbroad by federal appeals courts in DeJohn v. Temple University, Saxe v. State College Area School District, and McCauley v. University of the Virgin Islands, which made clear that there is no “sexual harassment” exception to the First Amendment.

The University of Montana applied federal definitions of sexual harassment, that exclude trivially offensive conduct and things that do not offend reasonable people, in its college sexual harassment policy. The Justice and Education Departments took issue with this, saying that conduct, or isolated instances of speech on sexual topics, can be harassment even if “it is” not “objectively offensive”:

Sexual Harassment Policy 406.5.1 improperly suggests that the conduct does not constitute sexual harassment unless it is objectively offensive. This policy provides examples of unwelcome conduct of a sexual nature but then states that “[w]hether conduct is sufficiently offensive to constitute sexual harassment is determined from the perspective of an objectively reasonable person of the same gender in the same situation.” Whether conduct is objectively offensive is a factor used to determine if a hostile environment has been created, but it is not the standard to determine whether conduct was “unwelcome conduct of a sexual nature” and therefore constitutes “sexual harassment.” . . .

sexual harassment should be more broadly defined as “any unwelcome conduct of a sexual nature.” (Findings at pg. 9)

It also made very clear that this broad rule reaches speech — “verbal conduct” — not just physical conduct:

Sexual harassment is unwelcome conduct of a sexual nature7 and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. (Findings, pg. 4)

Findings (May 9 letter), at pg. 4, http://www.justice.gov/opa/documents/um-ltr-findings.pdf

In short, sexual harassment is defined to include “any” speech or other verbal conduct even if it would not offend a reasonable person, but rather only is offensive from the subjective viewpoint of a hypersensitive person. Making a sexual or racial harassment policy entirely subjective makes it unconstitutionally vague on its face. See Dambrot v. Central Michigan Univ., 55 F.3d 1177 (6th Cir. 1995) (racial harassment policy void for vagueness where it required “subjective reference”); Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996) (voiding harassment policy as applied to professor’s speech on vagueness ground; policy must provide fair notice).

Banning all sexual speech that is offensive to any listener would effectively ban sex education and sexual humor, making every sex education class “sexual harassment” when it offends a squeamish student.

Some students are made uncomfortable by such topics: for example, sexual harassment charges were unsuccessfully brought after sex educator Toni Blake told a joke while demonstrating a condom. Unlike the Education Department, the courts have rejected the idea that such humor inherently constitutes “sexual harassment.” See Brown v. Hot, Sexy & Safer Products, Inc., 68 F.3d 525 (1st Cir. 1995) (students sued over comments in sex education class; court ruled that since sexual speech must be “severe” or “pervasive” and create “hostile environment” to constitute sexual harassment, the lawsuit should be dismissed; it ruled that sexual humor in the sex education lecture about “erection wear” and anal sex was not enough for liability, since a reasonable person would not have viewed the comments as intended to harass); Black v. Zaring Homes, 104 F.3d 822 (6th Cir. 1997) (jokes about “sticky buns” were not bad enough to constitute sexual harassment, despite being unwelcome.).

Defining “any” romantic overture or sexual speech as “harassment” based purely on subjective reactions has dire implications for dating. It defines a single, unrepeated, civil request to go out on a date as “sexual harassment” even if the requester never makes the request again after learning that it was “subjectively” unwelcome.

That may effectively ban dating (since no one is a mind reader, and the whole point of asking someone out on a date is because you don’t know before asking whether they would be interested without first asking). Such a de facto ban on dating violates freedom of intimate association. Even banning dating between certain people can violate freedom of intimate association; here, the definition would define all offers to go out on a date as potentially sexual harassment unless the offerer is omniscient. See Wilson v. Taylor, 733 F.2d 1539, 1544 (11th Cir. 1984) (appeals court ruled that freedom of intimate association was violated by restriction on public employee dating a single individual, the relative of a criminal suspect.).

Perversely, the government suggests that punishment may be required BEFORE a disciplinary hearing, reminiscent of Alice in Wonderland‘s “sentence first, verdict afterwards“:

a university must take immediate steps to protect the complainant from further harassment prior to the completion of the Title IX and Title IV investigation/resolution. Appropriate steps may include separating the accused harasser and the complainant, providing counseling for the complainant and/or harasser, and/or taking disciplinary action against the harasser.

Letter of Findings (May 9, 2013) (boldface added), at pg. 7, http://www.justice.gov/opa/documents/um-ltr-findings.pdf.

A passage on page 2 of the settlement may affect social conservatives. Its demand conflicts with Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001), which struck down a harassment policy challenged by an Evangelical Christian because it forbade certain criticism of homosexuality. It implies that the same zero-tolerance standard that applies to sexual speech and dating requests also applies to speech about the transgendered or LGBT people:

The term “gender-based harassment” means non-sexual harassment of a person because of the person’s sex and/or gender, including, but not limited to, harassment based on the person’s nonconformity with gender stereotypes.

See pg. 2, Resolution Agreement (May 9, 2013), http://www.justice.gov/crt/about/edu/documents/montanaagree.pdf .

While it defines a vast array of innocuous human speech and activity as “sexual harassment,” the federal government then sends contradictory signals about whether a university may have the discretion not to formally punish students for some of it, at least if it is not repeated. First, it states in footnote 11 of its Findings that “If the University is defining ‘sexual harassment’ as conduct that creates a hostile environment because a student or employee may face disciplinary consequences upon a University finding that sexual harassment occurred, then the University should clarify its discipline practices rather than define ‘sexual harassment’ too narrowly, which will likely discourage students from reporting sexual harassment until it becomes severe and pervasive.”

But then, on page 22, it condemns the the University of Montana for stating (in a verbatim quote, by the way, from the Education Department’s own 1997 definition of “sexual harassment”) in its university harassment policy that “conduct becomes sexual harassment when it is ‘sufficiently severe or pervasive’to ‘unreasonably’ interfere with a person’s work or educational performance.” The federal government complains that “this is the standard for hostile environment — not the definition of sexual harassment. Sexual harassment is unwelcome conduct of a sexual nature,” and it says that not recognizing that sexual harassment could include non-severe conduct that does not offend a reasonable person supposedly violated the University’s duty to apply “the appropriate legal standards.”

This pressure to punish people for speech that does not offend a reasonable person, and is neither severe nor pervasive, casts a dark cloud over academic freedom and the ability to discuss and debate important topics that are offensive to some listeners.

The government’s attempt to define “sexual harassment” in purely subjective terms runs afoul of the Supreme Court’s admonitions that behavior which is not “objectively offensive,” and does not offend normal people, is not “harassment” at all, and is entirely beyond the purview of sexual-harassment law, even if it involves “intersexual flirtation.” See Oncale v. Sundowner Offshore Services, 523 U.S. 75, 81 (1998) (“The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the “conditions” of the victim’s employment. ‘Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII’s purview.’. . .We have always regarded that requirement as crucial . . . to ensure that courts and juries do not mistake ordinary socializing in the workplace-such as . . . intersexual flirtation-for discriminatory “conditions of employment.”), quoting Harris v. Forklift Systems, 510 U.S. 17, 21 (1993), citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986).

Hans Bader

Mon, 2013-05-20

Citation Source:

Examiner.com

Red Tape Record Breakers

Clyde Wayne Crews — Mon, 20 May 2013 11:20:42 +0000

President Obama is opposing a bill passed by the House last week that would require the Securities and Exchange Commission to better measure the costs and benefits of new regulations. That's no surprise considering that the latest annual index of federal rules shows that Team Obama is now the red tape record holder.

Relying largely on government data, Mr. Crews estimates that in 2012 the cost of federal rules exceeded $1.8 trillion, roughly equal to the GDP of Canada. These costs are embedded in nearly everything Americans buy. Mr. Crews calculates these costs at $14,768 per household, meaning that red tape is now the second largest item in the typical family budget after housing. > Read the full editorial

Clyde Wayne Crews

Mon, 2013-05-20

Sub Title:

A new study puts the cost of regulation at $14,768 per household.

Citation Source:

The Wall Street Journal

http://online.wsj.com/article/SB10001424127887323582904578485241326184204.html

EPA Waives Fees for Some Groups, But Not Conservatives

Christopher C. Horner — Thu, 16 May 2013 14:08:04 +0000

The Environmental Protection Agency waives its fees for big "green" groups 92 percent of the time while it waives fees for major conservative groups only seven percent of the time, the Competitive Enterprise Institute said Tuesday.

EPA records provided to the CEI in response to a Freedom of Information Act lawsuit "illustrate a pattern of making it far more difficult for limited-government groups – in particular those who argue for more freedom and less EPA – to access public records," the CEI reported.

"Such groups are precisely those Congress and courts made clear FOIA was intended to protect from fees being used as a hurdle to obtaining information, without prejudice as to their perspective," CEI said. The EPA, it argues, gave favor to "the same green groups it’s been shown to be collaborating with on its agenda."

The EPA routinely waives fees when the information they are providing is requested by media outlets or by watchdog groups. But CEI said it found its own requests denied most of the time.

CEI Senior Fellow Christopher Horner reviewed letters either granting or denying fee waivers from January 2012 until spring 2013. In that time, Horner reported that "green" groups, such as the National Resources Defense Council, Sierra Club, Public Employees for Environmental Responsibility and EarthJustice, obtained waivers in 75 out of 82 cases.

In the same period, Horner's own requests for waivers were denied 14 out of 15 times. Every denial that Horner appealed was overturned. The report did not say whether he appealed all denials.

“That these denials are ritually overturned on appeal, not after I presented any new evidence or made any new point, but simply restated what was a detailed and heavily sourced legal document to begin with, reaffirms the illegitimacy of these hurdles EPA places in the way of those who cause it problems.” Horner said. “EPA’s practice is to take care of its friends and impose ridiculous obstacles to deny problematic parties’ requests for information.”

Christopher C. Horner

Thu, 2013-05-16

Citation Source:

Newsmax

http://www.newsmax.com/US/epa-fees-conservative-groups/2013/05/14/id/504524

Coalition Letter on E-Verify Amendment

David Bier — Wed, 15 May 2013 16:32:06 +0000

Full Document Available in PDF

We, the undersigned organizations, representing thousands of businesses and millions of Americans from all sides of the political spectrum, write to express our desire for greater accountability in the electronic employment verification (E-Verify) provisions of the Border Security, Economic Opportunity, and Immigration Modernization Act (Title III of S. 744). We believe that a simple reform is needed to protect small businesses and their legal employees.

David Bier

Wed, 2013-05-15

Diverse Coalition Supports E-Verify Reform

Nicole Ciandella — Wed, 15 May 2013 16:55:24 +0000

WASHINGTON, D.C., May 15, 2013 — This week, an ideologically diverse coalition of 44 organizations led by the Competitive Enterprise Institute, National Small Business Association, American Civil Liberties Union, and Service Employees International Union called on the U.S. Senate to vote in favor of a bipartisan amendment proposed by Sens. Al Franken (D-MN) and Mike Lee (R-UT) to the E-Verify portion of the Senate immigration bill (S.744) that would require the government to meet a specific accuracy standard for the system.

The coalition, representing thousands of businesses and millions of Americans, sent a letter to the Senate that explained how the system’s errors may initially deny authorization to hundreds of thousands of legal workers and require them and their employers to spend time and money correcting mistakes. “Basic accountability can protect both workers and employers,” the letter states. “We propose Congress require that E-Verify’s error rate remain at or below its current level before small businesses are forced to comply with the mandate.”

CEI Immigration Policy Analyst David Bier explained that this is exactly what the Franken-Lee Amendment would do. “This amendment would require the Department of Homeland Security (DHS) keep errors below the current rate for the next nine years before mandating the system for the smallest businesses,” Bier said. “After this initial period, penalties would be reduced for these employers in any year that DHS failed to meet this accuracy standard.”

Bier argued that this amendment is important for the bill’s final passage. “This proposal has received such broad ideological support because it is common sense that we should not impose an experimental system on every U.S. employee without safeguards to protect them,” he said. “It is time that Senators embraced accountability and voted in favor of the Franken-Lee Amendment.”

► Read the coalition letter here. Also, see CEI's E-Verify Problems and Solutions here.

CEI Staff

Wed, 2013-05-15

Sub Title:

Workers and Businesses Need to Be Protected, Says Coalition

Conservative group accuses EPA of playing favorites on FOIA fees

Christopher C. Horner — Thu, 16 May 2013 14:13:17 +0000

That’s according to an analysis of a year’s worth of FOIA requests by the Competitive Enterprise Institute, a nonprofit Washington, D.C.-based public policy group that advocates limited government, free enterprise and individual liberty. The waivers are significant since FOIA fees can run into the thousands of dollars – enough money to discourage groups from going forward with their requests for emails and other government documents. Federal agencies usually waive fees on FOIA requests by the media or public-interest groups.

CEI found that the EPA waived fees on 75 out of 82 FOIA requests made by environmental groups such as the Natural Resources Defense Council and Greenpeace. But it denied fee waivers on 14 of CEI’s 15 FOIA requests. Other conservative groups also were often denied fee waivers, according to CEI.

“EPA’s practice is to take care of their friends and impose ridiculous obstacles to deny problematic parties’ request for information,” said Christopher Horner, a senior fellow at CEI.

Christopher C. Horner

Tue, 2013-05-14

Citation Source:

The Business Journals

http://www.bizjournals.com/bizjournals/washingtonbureau/2013/05/14/conservative-group-accuses-epa-of.html

EPA makes information requests more difficult for conservatives

Nicole Ciandella — Thu, 16 May 2013 14:21:10 +0000

According to EPA records obtained by the free market Competitive Enterprise Institute, since January 2012 the agency has granted fee waivers for 75 out of 82 Freedom of Information Act requests sent by major environmental groups, denying only seven of them — meaning green groups saw their fees waived 92 percent of the time.

At the same time, the EPA frequently denied fee waivers to conservative groups. EPA records show that the agency rejected or ignored 21 out of 26 fee waiver requests from such conservative groups as the Competitive Enterprise Institute, the Institute for Energy Research, and Judicial Watch — an 81 percent rejection rate.

CEI Staff

Tue, 2013-05-14

Citation Source:

The Daily Caller

http://dailycaller.com/2013/05/14/epa-makes-information-requests-more-difficult-for-conservatives/

FCC again balks on telephone network shutdown

Fred Campbell — Thu, 16 May 2013 14:00:54 +0000

According to Fred Campbell of the Competitive Enterprise Institute and a former bureau chief at the FCC, Friday's notice is "more likely to discourage future investment in Internet infrastructure than to accelerate it."

Though Campbell notes the importance of the three issues the task force appears willing to test, he says that trials for only these specific features would "yield little, if any, data about the challenges of shutting down the technologies used by the legacy telephone network."

Fred Campbell

Tue, 2013-05-14

Citation Source:

CNET

http://news.cnet.com/8301-1023_3-57584306-93/fcc-again-balks-on-telephone-network-shutdown/?part=rss&subj=news&tag=title