To Hell With Pubic (sic) Policy - No On Measure B

DO WE REALLY WANT THE LA COUNTY DEPT. OF PUBLIC HEALTH IN CHARGE OF OUR PUBIC POLICY?

(Actual text of proposed measure heading from yesonb website)

Polls reportedly show LA County voters 63% in favor of Measure B, which is being sold to votes as a requirement for porn actors to wear condoms.  That's not really what the measure is about.  Sadly too many voters are being fooled, once again, to vote for increases in taxes and regulations in the guise of protecting some supposedly helpless group.  As the measure itself notes, California regulations already require porn actors to wear condoms.  So there is absolutely no need for the County to enact its own condom requirement, even if one believes such regulations are needed.  In actuality, the main effect of Measure B would be to impose yet another occupational licensing requirement and potentially unlimited permit fees on anybody still foolish enough to produce porn flicks within L.A. County. 

Here is the part that imposes an unlimited permit fee on film producers:

So the sky is the limit on what may be charged; enough to pay salaries, overhead, expenses, health insurance, pensions, vacations, and other benefits for an untold number of County employees to trundle around the County making sure all of the rapidly dwindling number of porn shoots in the County have completed the proper written plans, posted the required notices on the set, and are all wearing the proper County-mandated condoms.  Are requirements for full-body condoms far behind?

Porn movies are not highly elaborate affairs and do not require the resources of a major studio to produce.  It's easy enough to throw a few cameras in a truck and drive to a nearby County with less onerous regulations, if only to avoid the burden of obtaining an L.A. County public health permit.  But that's not the only problem.  In the highly competitive world of porn production, the condom requirement changes the quality of the finished products.  Porn with condoms, shot in L.A. County, will be less desirable to most consumers of porn than porn sans condoms shot outside of the County.  People consume porn as escapist fantasy, and the presence of condoms only serves as a reminder that the promiscuous, no-strings attached sex being depicted is not as free and wild as the viewer might wish to fantasize.  One can deplore the escapist desires of porn consumers, but that is missing the point.  Fully-permitted porn with condoms is likely to be a money-losing proposition, and the proponents of Measure B are indulging their own statist fantasies to think otherwise.

So the main economic effect of passing Measure B will be to drive most of what remains of the porn movie industry out of the County.  Those who tolerate governmental interference in the free market might find this acceptable, if L.A. County were experiencing economic growth in other areas.  Obviously the County is generally speaking in the doldrums with no real relief in sight, and the effect of passing the Measure will be to further depress the local economy while swelling the County bureaucracy, even if only a little.

Another economic effect will be to discourage smaller producers from producing these sorts of films.  In general, regulatory burdens are regressive because they fall most heavily on smaller and less well-financed business.  Big businesses typically influence and support added regulatory burdens, because such burdens reduce competition and cement the dominance of the established players, as well as discourage innovation.  So if you are an anti-big business sort, you should not be comfortable voting for this measure.

Economic issues aside, there is also the matter of individual freedom.  Porn actors are adults engaging in consensual sex.  Their motivation may be unusual, in that most people do not engage in sex professionally and are not comfortable in making a public performance out of their sexual escapades.  But the motivations of the actors are personal to them and do not alter the essential character of the act.  So if the County or state can regulate sexual intercourse between consenting adults who happen to be filming their activity, what sexual behavior will it seek to regulate next?  Could the county regulate the wearing of condoms in other circumstances?  Because the vast majority of sexually transmitted disease is NOT spread by actors working in porn production, it would seem that the imposition of condom requirements in more general circumstances can't be far off.  I say, keep the county out of our pubic policy.  If you are going to vote, vote NO on Measure B.

Jake's Libertarian Voter's Guide To The 2012 California Propositions

There's a whole raft of propositions to vote against this November.  None of these were written by libertarians or for libertarians, and most of them deserve a vigorous punch of the "no" chad -- don't leave those chads a-hangin'!  Here's why, in numerical order:

Prop 30: Jerry Brown's Tax Increases.  Raises sales taxes .25% (3.45% increase over existing rates) and income taxes on those earning more than $250,000 a year by about 10 to 33% over present rates, depending on the bracket.  Obviously, this is a horrible idea that will only serve to make California less likely to attract any investment or economic growth, with no offsetting benefits for the taxpayer.   Vote NO.

Prop 30: Two-Year Budget Cycle.  This is sponsored by the tax-loving technocrats at "California Forward" who are in favor of abolishing the 2/3 super-majority requirement for the legislature to increase taxes.  That's not in this bill, but these people can't be trusted.  This is a bill by Sacramento bureaucrats for Sacramento bureaucrats.  One, it would spare them the pain of dealing with state budgets on an annual basis by making budgeting a biennial process -- so, even less transparency, flexibility and accountability will attend the process.  More importantly, it sets up additional administrative requirements for local budgeting, and an optional "Community Strategic Action Plan" system in the California constitution, by which local governments that kowtow most effectively to Sacramento can achieve additional funding from a newly established "Performance and Accountability Trust Fund" funded out of general revenue.  This law just makes California governance more Byzantine and burdensome. It would increase administrative burdens at all levels of local government, and increase the power and influence of Sacramento at the local level.  A resounding NO!

Prop 32: Ban on corporate and union contributions to state and local candidates.  Hmm . . just look at the parties for and against this measure.  Currently about $8 million has been raised in support, $37 million opposing, almost all of the opposition money from various public sector unions.  This measure would bar any organization from extracting political donations from wages paid to the organizations members, without each member's individual consent.  Unions hate it because it would decrease their power and influence in politics, but it would not prevent any union members from voluntarily deducting from their paychecks to contribute to their union's favored political causes.  Don't believe the barrage of attack ads -- the only reason this won't reduce corporate political donations is because presently, ONLY unions are allowed to use mandatory dues for political contributions.  This proposition would give union members more control over their paychecks, so what's not to like?  A firm YES YES YES and say a prayer too.  Divine intervention may be needed to overcome the disparity in funding to get this proposition passed.

Prop 33: Car insurance rates can be based on a person's history of insurance coverage ("persistency discounts").  This could be viewed as a pro-free market rule, because it would remove one of the restrictions placed on California insurers by Proposition 103 in 1988, that is, the prohibition against loyalty ("persistency") discounts.  I don't know why insurers see this as important enough to put on the ballot a second time, after a similar measure (Prop. 17) lost narrowly in 2010.  Obviously, the restriction has impaired insurers (or some insurers) profitability somehow.  Sure, a gap in coverage correlates statistically to higher risk of an insurance claim being made, but why can't insurers compensate for that just by raising everybody's rates a little?  On the other hand, there is no reason why insurance companies should not be allowed to set rates that reflect actuarial risks.  Plus, the full text of the changes to the California Insurance Code is clear and concise, and without any apparent trapdoors that might reduce competition in the insurance markets.  A reasonably confident YES on this one.  But I will be very interested to hear Ted Brown's thoughts on this one before punching the ballot.

Prop. 34: End The Death Penalty.  This does a little more than its title says, but most of the curlicues seem acceptable, like requiring convicted murderers receiving life sentences to work, with money being paid into a victims' restitution fund.  Sure, this is institutionalized slavery, but only for convicted murderers, and at least nominally for the benefit of victim's families.  There is some justice in that.  "Give me liberty or give me death" is a fine slogan for violent revolutionaries and passionate martyrs, but in reality, state-sanctioned slavery conditioned on a murder conviction by a unanimous jury seems less offensive than state-sanctioned murder under the same conditions.  On the negative side, the proposition includes a gratuitous $100 million slush fund to the police state "to help solve more homicide and rape cases."  Forgive me if I am skeptical.  Why does a bill to eliminate the death penalty need to be accompanied by spending increases?  Isn't the California government in a budget crisis?  Nobody is getting executed in California anyway, so I am surprising myself by considering voting NO as a protest against the increased spending.  Still, I am leaning towards YES as it is long past time to strip California of the merely theatrical power to deliberately and sanctimoniously, with painstaking forethought, murder its citizens.   On balance, YES.

Prop. 35: Prohibition on Human Trafficking and Sex Slavery.  Funny thing, human trafficking and sex slavery is already criminally illegal, so why do we need this proposition?  Norma Jean Almodovar and Starchild are among the very few opposed, so it might be reasonable for a libertarian to base one's opposition on the title alone plus the wisdom of Norma Jean and Starchild as against the madness of the herd.  The arguments in favor simply cite an unverified litany of horrors supposedly from "sex trafficking," none of which I have ever encountered or heard of from personal experience during a relatively long and unsheltered life in California.  On its face the proposition seems suspiciously like a power grab against anyone in any way involved with the sex trade, which has become a significant free-market activity in the state.  The vast majority of participants, however, are consenting adults.  Most of the actual text of the law seems more narrowly focused.  The most worrisome change may be in the definition of human trafficking: "Any person who deprives or violates the personal liberty of another with the intent to obtain forced labor or services, is guilty of human trafficking." This is a new and much broader definition than formerly applied.  What does it mean to "violate the personal liberty of another" and what is "forced labor or services"? Would any "violation of personal liberty" in connection with the providing of some service cause the person receiving the service to become a human trafficker?  For example, suppose an employer requires employees to report to work promptly at a certain time and remain on the job for certain hours, or else be fired, even though an employee protests.  Does that not involve a "violation of personal liberty"?  What about being required to wear a silly uniform?  Etc., etc.  The point is, the statute could be construed to make any employer or purchaser of services a human trafficker.  On the flip side, the rest of the law seems fairly narrowly focused, and could well be used against corrupt police who coerce prostitutes into sex acts in exchange for leniency.  However, the broad and ambiguous new definition of "human trafficking" is reason enough to oppose it.  Vote NO.

Prop. 36: Repeal of the "Three Strikes" Law.  This will restore more discretion in sentencing by limiting the third strike to "serious and violent" offenses.  The main arguments in favor are based on a supposed correlation to lower crime rates in California since the original three strikes law was passed.  I'm sorry, even if locking up some people for 25 years for petty offenses has reduced crime in California (which is doubtful), that doesn't make it good social policy or morally correct.  One could just as well justify locking up every other random person on the same basis.  "Restore the Three Strikes law to the public's original understanding by requiring life sentences only when a defendant's current conviction is for a violent or serious crime" seems like a fair characterization of this proposition.  Vote YES.

Prop. 37: Mandatory Labeling of Genetically Engineered Food.  Perhaps the most controversial proposition on the ballot for libertarians.  Many support it as a truth-in-advertising requirement.  I've read the proposed statute and it does not seem that complex or onerous at first glance.  But read it carefully. I will not be voting for it, because it forces retailers to label food a certain way, and creates yet another civil enforcement industry suing businesses in California for reasons that have nothing to do with any actual harm to consumers.  Sure, there are already a host of labeling regulations on the books, and this would just be perhaps only another small requirement.  But that does not create a principled excuse to lay another straw on the camel's back.  Proponents of the requirement overlook the difficulty that many producers or sellers of food products, especially small ones, will encounter when importing food from jurisdictions that have no GMO labeling requirement.  How are all the ethnic food groceries and non-chain eateries in California going to comply with this requirement?  My guess is, not at all. Which will make them subject to civil enforcement wherein "the consumer bringing the action need not establish any specific damage from, or prove any reliance on, the alleged violation." Breathtaking.  This will be the ADA all over again, only magnified, and no doubt raise costs for consumers, drive small business and variety in food choices away from California, and enrich plaintiff's attorneys at the expense of small businesses and consumers.  A far better way to handle this issue is to simply allow producers to advertise their products as "GMO free" if they choose to do so.  False advertisers would be subject to existing laws against false advertising, fraud, and unfair business practices.  The free market would supply GMO-free labeled products to those consumers who demand them, without raising costs for consumers who don't really care.  A firm and principled NO.

Prop. 38: Molly Munger's State Income Tax Increase.  A proposition curiously sponsored by confirmed tax raiser for California state schools.   Would increase income taxes even more than Jerry Brown's measure, and on a much broader base, and throw the newly taxed revenue all down the public education rat hole.  That's the ticket!  A reflexive NO vote, no analysis required.

Prop 39: Income Tax Increase for Multistate Businesses.  If this passes, it will actually be known as the "California Clean Energy Job Act" the major feature of which is the creation of a $550,000,000 slush fund called the "Clean Energy Job Creation Fund."   Obviously, this is merely another exercise in crony capitalism and government displacement of the free market.  I was going to analyze the details of the tax law change to see if a principled argument could be made for or against it on the basis of the non-aggression principle.  But spotting this prominent bit of pork at the top of the text just spared me the trouble of such a tedious exercise.  Clearly, a NO.

Prop. 40: Referendum on the State Senate Redistricting Plan.  From Ballotpedia: "A 'Yes' vote approves, and a 'No' vote rejects, new State Senate districts drawn by the Citizens Redistricting Commission.  If the new districts are rejected, the State Senate district boundary lines will be adjusted by officials supervised by the California Supreme Court."  There is no discernible liberty interest either way.  Feel free to vote yes, no, or abstain on the slightest whim.

So what's the tally?  Eleven propositions, six recommended NO votes, four recommended YES votes, and one DON'T CARE.  That's more YES votes than I am accustomed to.  Perhaps I'll have to give some of those more thought.  I recommend www.ballotpedia.org as a place to start your own research, if you are so inclined.

Why I Blog

An element of vanity,
A smattering of mirth,
A stab at sifting sanity,
An accident of birth.

Like a lemming I join
that theater of voice;
Just hoping to coin
a phrasing of choice.

Expressing the contemporary,
Uncovering the obscure;
For dialogue giving sanctuary,
Or just blithering in pure.

Such are the reasons I blog;
If it seem not enough,
To endure such a slog,
Please don't leave in a huff.

Don't follow the herd;
Perhaps you may parse
In the blogging of a nerd
Profundity strolling with farce.

My Thoughts on GMOs

The Libertarian Party does not take an official position on Genetically Modified Organisms (GMOs), but perhaps it should.  There are movements afoot to regulate and control the use of GMOs through top-down regulation imposed by the violent power of the state.  Such an approach is not likely to end well.  There are other ways to address the risks and moral issues posed by GMOs, through a bottom-up approach founded in natural rights, voluntary cooperation, and the rule of law.  It is worth thinking about what a voluntarist approach to regulation of GMOs might look like, or what regulation, if any, is really necessary.

For the purposes of this article, a GMO is defined as an organism resulting from the artificial insertion of a genetic material into the organism's genome.  "Artificial" means using gene splicing or a similar technique to achieve a result that cannot be obtained through selective breeding.  For example, a mule obtained by mating a horse to a donkey is not a GMO, but a goat that has had a gene for producing spider silk inserted into her DNA using a laboratory technique is a GMO.

Although judicious uses of GMOs can produce amazing and desirable benefits, such uses may pose tangible risks of harm to persons, property, and the environment.  The creation of GMOs may also implicate moral questions for some people.  GMOs therefore pose both easy questions and hard questions for libertarians.  The easy questions concern assigning responsibility for harms caused by GMOs to the persons responsible for causing those harms, though civil liability.  The hard and perhaps irresolvable questions concern morality.

First, the easy questions, concerning regulation of GMOs in the marketplace.  GMOs may be divided into two streams of commerce: products made from GMOs, and the GMOs themselves.  Flour made from genetically modified wheat, spider silk from a genetically modified goat, or corn syrup from genetically modified corn are examples of products whose qualities may be affected by having been derived from a genetically modified source, but that do not pose any special risk to the environment such as genetic contamination of non-GMOs.  There should be little debate among libertarians that a free-market approach to GMO products is the best approach.  Simply put, individuals should be free to purchase or refuse to purchase GMO products as they deem best.  This means that sellers passing off GMO products as coming from non-GMO sources, or vice-versa, must be held liable for fraud.  Specific product labeling is not necessary, and should neither be required nor forbidden.  If a seller declines, for whatever reason, to disclose whether or not a product is from a GMO source, that should be permitted.  Individuals who want to avoid consuming any GMO products can do so by purchasing only from sellers who are willing to warranty that their products come from non-GMO sources.  The free market will  quickly drive out unsafe or unduly risky GMO products, while allowing for development of safe and effective GMO products for applications where non-GMO products are not available, more expensive, or of inferior quality.

Commerce in living GMOs is a more difficult area, that may be approached by dividing GMOs into classes based on level of risk to humans and the environment.  At the highest level of risk are living GMOs that pose a direct risk to human life or health, such as weaponized pathogens.  These organisms pose an uncontrollable risk of serious harm.  There is no conceivable justification for the creation of new deadly and uncontrollable organisms under libertarian principles.  Such activity creates unreasonable risks for others without any offsetting benefits, tantamount to an unprovoked act of aggression.  Therefore, the creation of such GMOs whether by government or private entities should generally be regarded as a crime.  It may be morally defensible to experiment with GMOs for the purpose of creating vaccines or antidotes to known biological weapons held by an enemy.  This justification  fails when the organism is entirely new and therefore not known to be possessed by an enemy, as in the case of a GMO.  A voluntarist society could enter into treaties with its neighbors banning any development or use of biological weapons, just as statist societies do.

At the lowest levels of risk are GMOs that are incapable of reproducing or exchanging any genetic material with non-GMOs.  Such organisms pose no discernible environmental risk, because in the event these GMOs escape into the environment, they will simply die out without causing any long-term effects.  Of course, an escaped GMO could cause harm just as an escaped non-GMO can, and owners of GMOs should be held responsible for any harm or damages caused by their escaped organisms just as owners of non-GMOs are.  These types of low-risk GMO's should not require any special consideration insofar as civil liability goes.  Their creation may implicate moral questions, which are touched on later. 

At intermediate levels of risks are GMOs that do not pose any severe risk to human life or health, but that are capable of reproducing or interbreeding with non-GMO organisms, and may have some harmful environmental effects.  The damages caused by such organisms, once escaped into the environment, may far exceed the ability of any entity to compensate for or repair.  On the other hand, actual damages caused by escapes into the environment may sometimes or even usually be quite manageable or immaterial.  The key point that should be recognized is that the possibility of indefinite and widespread replication of genetic material from GMOs calls for a different analysis than classical liberal views of environmental pollution as advanced by Rothbard, Coase, and others.  Self-replicating GMOs represent a Pandora's box of unknown risks that may spread far beyond an area of initial introduction.

This aspect of GMO's does not mean that the state should control introduction of GMOs, picking winners and losers to achieve its political ends.  It just means recognizing that potential harm caused by introduction of a GMO may extend indefinitely far beyond the adjacent property owners, in both space and time.  Therefore, a bottom-up regulatory scheme may operate by recognizing a right of non-adjacent stake holders to know about and oppose the introduction of a particular GMO prior to its introduction into the environment.  For example, it may be made a crime to introduce a GMO into the environment without prior public notice and opportunity to oppose.  If opposition is filed, the GMO-introducing party may be assigned the burden of proof (after a burden of production is satisfied by an opposing party) to show one of the following circumstances applies: (a) the GMO cannot reproduce or exchange genetic material with non-GMOs; (b) the introducing party is capable of and will prevent release of the GMO into the environment through some reliable technological means; or (c) release of the GMO into the environment will not cause any harm that cannot be repaired or compensated for by the introducer.  Unless the introducer could prove that one of the foregoing circumstances applies in a particular case, any introduction of the GMO at issue would remain subject to criminal as well as civil liability.

A body of law and civil procedure would have to be developed to address these highly fact-based questions, the details of which would exceed the scope of this article.  Such an adversarial private law approach to sifting the risks and benefits of GMOs would prove far superior to essentially arbitrary regulation by the state.  A private negotiating process under the rule of law would drive out projects wherein the risks of a particular GMO cannot be shown to be manageable.  Meanwhile, the most economically worthy projects, wherein the GMO is of sufficient value to justify the costs of the adversarial approval process plus subsequent risk mitigation and insurance costs in addition to development costs, would enjoy a much higher probability of passing the opposition process.  Introducers of GMOs would remain liable for any actual damages caused by introduction of GMOs into the environment, regardless of whether or not criminal liability also applies.

There are some worthy counterarguments to use of a proactive private opposition procedure to regulate the introduction of GMOs.  For one, a too stringent opposition procedure would merely shift research and use of GMOs to jurisdictions with laxer regulations.  Thus the opening of the GMO Pandora's box cannot be prevented; and if it cannot be prevented anyway, why bother with proactive regulation at all?  A further objection is that a proactive opposition procedure unfairly singles out one type of activity; after all, any activity may cause damages beyond the ability of the economic actor to repay or repair.  These arguments may appeal to the purist advocate of the free market, but will do nothing to allay the concerns of  many who fear untrammeled use of GMO technology.  A private opposition procedure is admittedly a compromise position roughly midway between total state control of GMO activity and no prior restraints at all.  For a potential Pandora's box type of technology, some mechanism for prior restraint may be politically unavoidable and prudent for practical reasons, unless and until the technology is shown not to pose a risk of irreparable environmental harm.  Until then, mitigation of  such Pandora's risks should as much as possible be privately negotiated directly between stakeholders each acting in their own respective economic self-interest.

Statists will meanwhile argue that nothing short of total state control of GMO activity will do.  The FDA stands as Exhibit A for why this will not work.  Leaving aside the strongly held beliefs of libertarians that government control of the pharmaceutical markets violates natural rights to life, liberty and the pursuit of happiness, and is economically unnecessary besides, the FDA has not proven effective as a regulator of medicines.  It is too beholden to the large pharmaceutical interests and too eager to stamp out cost-effective alternatives such as nutritional therapies. Lacking any competition in the United States, it imposes overly burdensome requirements on new remedies and stifles innovation in health care.  Instead of acting in the public interest, it acts in its own self-interest by seeking to expand its own importance and budget, rewarding political cronies and punishing political enemies along the way.  Government control of GMOs would have a similar deleterious and distorting effect, and interfere with the economic process of encouraging development of the most valuable applications for GMOs while preventing the riskiest. 

Regarding moral questions, some may believe that the creation of GMOs is an offense to God or Nature, a violation of the rights of animals, or a violation of human rights, and should be banned entirely or subject to tight control by the state as an enforcer of morals.  Others believe that all forms of genetic manipulation should be permissible and are even inevitable, perhaps excepting the development of biological weapons.  Naturally, a libertarian political philosophy should not advocate for the state as the decider or enforcer of such moral questions, to the extent no forcible harm or fraud is involved.  Some may also believe that any use of GMOs is inherently too risky to be permissible under any circumstances, but such abject fear is logically unsound.  All economic activity or inactivity entails risks and consequences, which can be better understood by unbiased and reasoned examination.

Perhaps the most difficult moral issues involve modification of the human genome.  Because the individual whose genome is modified cannot know about or give consent to the modification (assuming that the modification is performed on a zygote before the individual is formed), some may view this as an impermissible use of force against the individual.  Others may believe it permissible so long as the decision is made by the parent (or parents) or legal guardian, perhaps in limited circumstances such as to eliminate known genetic defects.  The ethics of human genetic manipulation are certainly worthy of thoughtful consideration.  At the margins, the ethical issues may become extremely provocative.  For example, is a creation of a clearly non-human chimera (human-animal genetic combination) a criminal act?  What about modifying the genome of a zygote to make a person with fins and gills? However, unless and until radical modifications of the human genome prove possible, such questions, being merely hypothetical, are unlikely to be a great source of controversy among libertarians.