The Bob Zadek Show

“Justice is an immeasurably precious thing, and due process is an essential part of justice.” – – FIRE's Guide to Due Process and Campus Justice

Joe Cohn is the Director of Legislative Policy at FIRE, the Foundation for Individual Rights and Expression. Joe is a 2004 graduate from the University of Pennsylvania Law School and the Fels Institute of government administration. In this episode, Joe and I discuss sexual harassment and discrimination on college campuses, the role of the federal government in general – and the United States Department of Education, in particular – in regulating the protection of victims of sexual harassment, as well as the violators of those rights with specific attention to the due process rights of the accused or the absence of those rights. Trigger warning everyone, what you hear during this next hour will not make you very happy.

Links & Resources:

* theFIRE.org

* @JoeatFIRE on Twitter

* FIRE's Guide to Due Process and Campus Justice

The Bob Zadek Show is the country's longest running libertarian broadcast – nationally streamed at 8 AM PT Sundays. Subscribe for weekly transcripts, book summaries and additional resources:

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Transcript

Bob Zadek: Now, Joe, you are the Director of Legislative and Policy at FIRE, Foundation for Individual Rights and Expression – the former name before you broadened your mandate was the Foundation for Individual Rights in Education.

Tell us about the mission of FIRE – what you hope to accomplish in your work on college campuses?

Joe Cohn: Well, we were founded in 1999 to be a fair and effective advocate for the civil liberties of students and faculty at institutions of higher education. Since 1999, we've been on the frontlines of those issues, advocacy on the ground at schools themselves, and advocacy in the media.

I was brought on in 2012 to add advocacy in the halls of government, because we were seeing that government actors – members of Congress, or state legislators, or the White House, or federal agencies – were starting to tell colleges and universities what they needed to do, and they weren't always telling them to do the right thing that complied with the constitutional rights.

Breach of Contract: Defending Your Rights Against a Private Party

Bob Zadek: Now, you mentioned that very important phrase and concept, civil liberties. When one thinks of civil liberties, one thinks of those rights, those liberties that all of us would like to think we hold and are protected against encroachment by government. Yet, when you are talking about protecting civil liberties on college campuses, the adverse party is another private party – putting aside governmental institutions like state colleges and the like.

So, tell us what you mean by civil liberties, where the counter-party who may be depriving one of civil liberties is a private actor, acting in the same way a business might react? One does not think about protecting civil liberties from encroachment by Walmart. So, why colleges and universities?

Joe Cohn: With respect to the public institutions of higher education, they themselves and their employees are government actors. When a university expels someone for protected speech or punishes them without due process under another charge, it is government action that is implicating to deprive all of the civil liberties.

Now, we've seen a trend on college campuses over the last six or seven years roughly of more campaigns for censorship being led by fellow students. That's a little bit of a depressing thought when historically, the students themselves had been the leaders in fighting for free speech. They have, by and large, embraced a new tactic of appealing to administrators to silence their adversaries. There is an element of what you're describing in terms of, in some instances, having fellow students – private actors – as the adversary.

The related context here is that we also do our advocacy at private institutions of higher education, who are not government actors. There, the courts have for years protected concepts like academic freedom and free speech – not on the basis of the constitutional protections that are correlated with those concepts, but instead, with respect to contract law. So, if you apply to go to school at Harvard, a private institution, and Harvard promises you'll have free speech rights, but they don't live up to those promises, then the courts have been willing to say, "They breached their contract with you and enforce those rights in that way."

Bob Zadek: When I first started learning about FIRE and other institutions, I came up with a theory that I often wondered about: What cause of action would one have if you felt that a private institution, which can basically do what it wants, is depriving you of rights? They're allowed to do that. The concept of using breach of contract certainly was brilliant. It gave you a perfect tool to use where your adverse party is a private college rather than a public that is a state owned a university or college.

Joe Cohn: I'd love to take credit for that tactic, but it predated FIRE's existence. We've utilized those cases and been some of the more frequent advocates, at least in the public sphere, making those arguments since our founding. But we weren't the ones who came up with the idea. 

Title IX & the Dear Colleague Letter

Bob Zadek: We'll start with something which civil libertarians will all know as the “Dear Colleague” letter.

Way back in 1972, an important federal statute was enacted to protect rights of various subgroups against encroachment. Included in that statute was a section called Title IX, which dealt with the protection of those who are abused by dint of their sex So, we start there with a well-meaning bit of legislation. The first real activity under Title IX was making colleges and universities rethink how they allocated economic resources between men's athletics activities and women's athletic activities. When most of the attention was going to men's activities, that was felt unfair to women athletes. I'm sure that there was a good point to be made and that was the first center of gravity.

Then, we fast forward to the Dear Colleague letter. The Dear Colleague letter was nothing other than a letter from a bureaucrat to some college administrators. Why did this letter – not a statute, not a subpoena – from a bureaucrat to a bunch of college administrators have so much significance.

Joe Cohn: I want the audience to for a moment consider the operative kind of language of Title IX, which was, "No person in the United States shall on the basis of sex be excluded from participation and be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance, except that-," and then the language goes on. But the key there was that you're looking at the late 1970s when courts started tackling the question of whether or not a school is living up to that promise to eliminate discrimination, if it's allowing their campuses to be permeated with sex-based harassment, whether it's faculty members harassing students or students harassing each other.

The courts over a number of years conclude that a school can't be deliberately indifferent (which is a legal phrase of art we might talk about more later on in this conversation) to known instances of sex-based harassment between students. They go on to carefully craft definitions of standards for when things cross the line. The theory there was a smart one, which is, if there really is a tremendous amount of sexual harassment, and under that umbrella – I'm going to include sexual violence, because the courts have said that sexual violence is a form of harassment as well – and just do nothing about it, you can see how female students would feel less comfortable going to school. That's really the main aim of Title IX – to make sure that universities and K-12 schools are environments where students can learn free of this sex-based discrimination. 

Courts have told schools, "You have an obligation to address complaints." Here, you fast forward to 2011 and you have the Department of Education Office for Civil Rights (OCR) sending this Dear Colleague letter, which is an informal letter telling all of the schools that they regulate its views on what's required under Title IX. 

Now, the structure of Title IX says, "You're not eligible for federal funds if you have this sex-based discrimination on campuses." The penalty for violating Title IX is you could lose all of your federal funds. When the Department of Education, which is the agency chiefly responsible for figuring out if there are violations says, "Here's how we will measure whether you're in compliance: even if it's not a binding document like a court case, or a law or statute, if you're a general counsel representing an institution and you ignore that warning, this is what we will be looking at when deciding whether or not we're going to take action against you.”

You'd be committing malpractice. So, you have a letter to every school saying, "If you don't do this, we might go after you for all of your federal dollars."

How Federal Funding with Strings Attached Makes DOE Regulations Binding on Private Colleges

Bob Zadek: I just want to remind the audience that the Department of Education decides who gets federal funding. For the most part, the very purpose of the Department of Education is to decide who gets the money. They are nothing other than a disbursement office with the teeth being that they hold back the money. They do not have a SWAT team associated with the Department of Education, they do not have a police force, but they have the dollars. So, notice in the big picture, the federal government on the one hand accumulates a lot of money – federal income tax. Now, it uses the money as a source of power. Not statute itself, not police power, not criminal law. It uses money which it has collected through taxing states and localities. 

In the first instance, it accumulates the money. The money gives them the power, and then the power is then used to coerce private colleges who are not per se subject to federal regulation – they’re private colleges. But they all do need the money, so the money is the hook that gives the federal government the power. I just wanted to mention that dynamic, Joe, because it's so important in so much of what I've discussed.

Joe Cohn: There are two forms of jurisdiction here for the federal government. The primary one is one that we've just been discussing – the broader one. It's the Spending Clause. If you want access to these dollars, here are the conditions.

Condition one: you're not going to have forms of prohibited unlawful discrimination on campus.

Now, Title IX deals with sex-based discrimination, but there are other titles. Title VI to race, national, origin, etc.. You have the Anti-Rehabilitation Act and you have the Americans with Disabilities Act protecting people from discrimination on basis of other disabilities. 

It's a way for the federal government to tell institutions that you're not going to allow discrimination to permeate on your campuses and that mirrors the framework of the Civil Rights Act that was trying to deal with those issues with respect to contexts like employment.

You have two things going on. At public institutions, you're talking about an anti-discrimination rationale to give the jurisdiction. And at private institutions, you're talking about spending jurisdiction, of course, public institutions have both.

Bob Zadek: So, now we have the Dear Colleague letter where the Department of Education says, "In case you're interested colleges and universities, when we dispense financial goodies, we care about this stuff.” Well, so, that's akin to the choice ‘your money or your life,’ when a gun is pointed at your head in an alleyway. Yes, you have a choice, but you tend towards one answer rather than the other.

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Standards of Evidence

Bob Zadek: So, now what flowed from something as unenforceable per se, as a Dear Colleague letter?

Joe Cohn: The April 4th, 2011 Dear Colleague letter was pretty interesting, because it was trying to shed a light on what the government viewed at time as a lack of sufficient attention towards the problem of sexual harassment on college campuses. But one of the things that it ordered institutions to do was to use the lowest standard of evidence when done citing an allegation against a student and deciding in an expulsion or suspension hearing whether or not the student was going to be punished. Whereas for many years, the norm across the country had been in campus disciplinary procedures to use an intermediate or a mid-level standard, which is called the clear and convincing evidence standard, which I'll break down the different standard choices in a moment.

The Department of Education ordered schools to use instead the preponderance of the evidence standard. So, just break this out, so that the audience can think this through in a criminal proceeding, in order to be found guilty, you need to be found responsible beyond a reasonable doubt, which is, "We're pretty darn certain that you did it and it's unreasonable to think that you didn't do it."

The next standard down, which is still a high one, but not nearly as high as clear and convincing, which there isn't a numerical score you can give. But if you're just thinking about it in general terms, it's like being 70% sure this really probably happened. Then, the next is preponderance. Now, preponderance of the evidence standard is what's used in a civil lawsuit. If you sue someone else in a court and it says, the jury has asked, "Who do you believe more – 50.01%?”

No matter how close a call it is, if you think one side is right, that's the one you rule with.

Then, the only other standard below that is, "Is there any substantial evidence? Show me anything that supports this particular point of view," which is near complete deference to the entity that's making the decision. 

The Department of Education reasons in this letter, they say, "If you were to sue someone in court for a violation of your civil rights, the court would decide it using that 50.01% preponderance standard. We think it's the only standard that is appropriate to use in these disciplinary proceedings.”

Of course, there are a lot of real consequences to that and real flaws to that logic. For example, and I think one of the primary flaws here is that when you do have a lawsuit in court and a jury is asked to make the decision, at the end, it's after a process that has significant rules and protections. Both sides have the right to have lawyers. Well, that doesn't exist on college campuses, by and large.

There's discovery. So, you get to find out what the other sides know and get access to documents. That doesn't exist in the same way on college campuses.

There's rights to cross examination. That's not there. There's a judge who knows what the heck they're doing and has been legally trained. Let's assume that the judge knows what they're doing. But that's not there, either.

So, at the end of a court case, when you asked 50.01% to a jury, who do you believe more, there were these other guardrails in place. They're just not there on campus.

The High Stakes of Campus Tribunals

Bob Zadek: It's one thing for the Department of Education to say appropriately, "Okay, college campuses, you better not have out of control of sexual harassment or else this is going to cost you." Fair enough. But the Dear Colleague letter not only said that, but it said, "And in reaching that goal of no sexual harassment, here's the way you must reach the goal."

It doesn't say, "Any way you want to reach the goal so long as it's lawful is okay with us." But they said, "We don't trust you even to pick the right process." So, it is a statement that the colleges are incapable of figuring out how to achieve the desired result. 

You drew this important parallel explaining the Dear Colleague letter: do we use a civil litigation standard or a criminal litigation standard in deciding which standard is proper? As you explained using a civil standard lacks the guardrails. You're exactly right about that. That was an important point. But in addition, in a civil litigation, what's often at stake is money. Money is money. You have more, you have less. In a criminal trial, what's at stake is your liberty. There's much more at stake than just dollars and cents. 

Now, if you consider the adverse consequences of a bad finding that you, often a male, are guilty of sexual harassment, the consequences are profound on the rest of the life of that convicted person, although it's not a criminal trial.

I would ask the audience to think, is the effect of the adverse result on the accused more akin to the dramatic effect of a criminal conviction or more akin to the effect of a civil lawsuit in which you lost? I think it's inescapable to me. It's much more like a criminal trial and therefore, that should be the standard.

Joe Cohn: I largely agree. Courts have looked at the context of what's at stake in civil proceedings all of the time and been able to make distinctions between things where you could just settle. You can just pay your way out of it, if you want. You can't settle a claim that you're accused of engaged in sexual harassment, which also includes sexual violence. You're also talking allegations, regardless of what label they want to apply to it in their code of conduct. You're talking about allegations of rape. You can't just settle that to move on. The consequences of getting expelled from school are significant and lifelong. More on par with getting removed in a deportation proceeding or losing all of your benefits, if you rely on public benefits to survive or more akin to losing your housing and an eviction than being sued by someone else for a car accident or who you'll figure out who has to pay. So, that's why we think that the middle standard of clear and convincing is more appropriate. 

It's true that at the end of a campus proceeding the Dean isn't going to sentence an accused student to 20 years in jail. But most people don't realize that the statements that students make in campus proceedings are often admissible against them in later criminal trials. There's a movement to remove statutes of limitations or extend them decades for sex-based criminal acts. So, you have 18- and 19-year-olds being asked to defend themselves without lawyers who are allowed to actively participate in proceedings where they're being asked about the factual specific details of events that could be the factual predicate for convictions, which across the country have penalties ranging from life in prison on the high end to only one state that has a maximum penalty of less than 10 years. Meaning, that in 49 states, you can be sent away for more than 10 years, if they find you guilty of the same fact pattern that you're being asked to talk about on the record on in a college proceeding.

How Colleges Responded to the Dear Colleague Letter

Bob Zadek: So, now we have the Dear Colleague letter, which sets in motion these more aggressive prosecution-like proceedings, where typically a student who is accused of bad acts – sexual harassment, something akin to rape, unwelcome contact. Then, as a direct result of the Dear Colleague letter, tell us what happens now. Universities have a problem. They are required to take steps to limit the degree of sexual harassment and the frequency. They are told how they must do it by the Dear Colleague letter. What were the consequences of the letter?

Joe Cohn: Yeah, the consequences were pretty stark on college campuses, which is that schools tripped over themselves to demonstrate to the federal government that they were really going to be tough on sexual harassment. They looked at their policies and they brought them right in line with what the Department was saying. Another provision, the Department said that schools shouldn't allow the students who are parties to these cases to cross examine each other. So, during this Dear Colleague letter era, schools were undermining due process left and right in these campus sex assault proceedings. 

The picture was not always and is still not rosy in other kinds of allegations that schools are adjudicating. They adjudicate other serious things too from fistfights to drugs in the dorms, etc. But this is the only context where the federal government was telling schools, "You’d better provide fewer due process protections or your federal dollars might be at stake."

Bob Zadek: That was important, because this show is about, in part, the relationship between the federal government, due process rights of students, and that dynamic of how that all works.

There was a clear, direct, powerful change in behavior by universities as a result of a letter, which had no force of law whatsoever. In other words, assuming the author of the letter or the Department had decided this was a good idea to reduce due process rights, assuming the agency itself made that decision, what they could have done is drafted a regulation, which does give it the force of law more or less, by going through an entire process of the Administrative Procedures Act, another federal statute where the process itself has rules and protections, if you will. There are hearings and public comment. So, that's what a regulation looks like. A letter is unregulated.

What you have explained, Joe, is this regulation – this letter– had perhaps even greater impact, but certainly no less impact than a regulation except it bypassed all of the protections under the Administrative Procedures Act and other laws.

Joe Cohn: That's right.

Bob Zadek: That's important for the audience to follow. The Department says, "What's the big deal? We just wrote a letter. We're allowed to write letters." Yeah, but it's "your money or your life" kind of letter. That's not "just a letter."

Joe Cohn: I've made that same argument that you're making in a number of different settings. The Department of Education in that period was trying to have it both ways. They were telling members of Congress who are grilling them on these points that they recognize the difference between regulations and guidance.

Regulations are binding as a matter of law. You have to follow it or when the government tries to take an action, they will cite the violation of the regulation as what you're being measured against to take its action.

Whereas here, they were saying, "We're just telling schools our perspective on what we consider a violation. So, we'll choose to go after you on." That did not impress then Chairman of the Senate Health, Education, Labor and Pensions Committee, Lamar Alexander, who had himself been the Secretary of Education and had been a University President. He saw right through that immediately and a number of his colleagues just- He was asking the head of OCR at the time under oath, "So, are you planning on going after schools that don't follow your interpretation or advice?"

They matter of fact said, "Absolutely."

They plan on going after people, because they think that that's what the law requires, and that was just not right.

Was there a “Rape Culture” on Campus?

Joe Cohn: Let’s fast forward into the next era here, because FIRE works incredibly hard to get the Department of Education to change its tune. We filed a lawsuit back in the final days of the Obama administration over the Dear Colleague letter and it was eventually mooted out when President Trump's Department of Education agreed with us, withdrew the letter voluntarily, and initiated the binding process of creating regulations that do have notice in common procedures to make them legally binding. So, that started in 2017 when the Dear Colleague letter was rescinded. Then they spent a couple of years trying to figure out what a binding regulation should look like and writing it, and then completed that in 2020.

Bob Zadek: One observation with respect to FIRE's great work in attacking the letter. By the way, it's rather strange to talk about rescinding a letter. I don't even know what that means to rescind a letter. A letter is not refundable. It's just a letter. But that shows how the letter was really a regulation dressed up as a letter. You don't have to rescind the letter. You have to rescind the regulations. Okay, just an observation. So, we get to the golden era when due process to a substantial degree is restored to campuses around the country, at least on paper.

In fact, all of this started because of the perception about the rape culture. We remember that phrase. You don't hear it much anymore. There was a concern that on college campuses, there was rampant sexual harassment, rape in the extreme cases on college campuses. 

Now, tell us if you can, what the facts were. Was there a rape epidemic on college campuses around the time as the letter? Did the letter have any effect upon that and what about after the letter was rescinded? Now, we're back in the Betsy DeVos era. On the ground, what was going on in terms of statistics during the letter era and the post-letter era after FIRE was able to encourage Betsy DeVos and the Department of Education to rescind the letter?

Joe Cohn: Well, those are all very interesting questions. There were studies that claimed as many as one in five and then later, as many as one in four students enrolled in institutions of higher education across the country would be subjected to some form of sexual harassment and misconduct before they had graduated. Now, of course, that rolls everything together from rape into verbal harassment, but even more broadly than that, the terms defined in those studies were so broad that they could even include someone trying to attempt good night kiss after a first date.

It was based on those numbers that you see advocates claiming that it's particularly rampant on college campuses. Now, the Department of Justice using much narrower definitions found that the incidence and rates of sexual violence on college campuses were actually a bit lower in on college campuses than they were with women of similar demographics off of campus and it was well under 2%. 

Now, I'm not a social scientist. I'm not going to weigh in on trying to figure out whose methodology was more sound than the other. But what I will say is that to some degree, it's a dog and pony show on the side. Because whether it's frequent or it's rare, I would hope that our policies would be focused on effectively addressing instances when they are brought to the school's attention, but without cutting corners and sacrificing due process. So, I want every student who feels like they're a victim of sexual misconduct to know how to report it and how to get resources even at 2am morning on Saturday, if that's when it happens. I want the school to have adequate resources to respond to it properly. But then, I don't want to have a rush to judgment on the facts either, because you don't have to be put in this false dichotomy of choosing whether you support complainants or support accused students. You can support them both and you should.

Bob Zadek: So, we have the Betsy DeVos-Donald Trump presidency era, which adopts a more due process oriented, protective regulations. The regulations themselves are protective of due process without, of course, compromising in any way the rights of the victim. There's no suggestion the rights of the victim to be protected were diminished. All that happened was the rights of the accused caught up to civil society.

Fast Forward to the Present

Bob Zadek: So, to bring us to the current situation, now, Biden is elected. Trump and Betsy DeVos are out. They inherited a situation where there are due process protections for the accused. No suggestion that the victim is more at risk or that women are more risk. I've seen nothing that suggests that's the concern. So, things seem to be balanced. I'm not asserting a statistical comment, just what I've observed from reading. Things seemed to be quiet and in balance. Bad guys are being punished and everybody is protected. So, now we have the Biden administration and now, we have current events. So, where are we today and how does FIRE view the current circumstances and what are you doing if to the extent that you're unhappy with them? 

Joe Cohn: Well, Bob, I agree with you on your conclusions at the Trump era rules were fair and did set the right balance. We strongly supported them for that reason. But when they were issued, you saw people like Catherine Lhamon, who was the head of the Office for Civil Rights during the second half of the Obama administration and then she was nominated to retake the helm of OCR for under Biden. She immediately tweeted that the new regulations take us back to the bad old days where women could be raped with impunity.

So, there was the allegation that due process itself undermined fundamental abilities for complainants to come forward. I wholesale reject that argument. I don't think they have strong evidence to support it. But it's on that basis that the President Biden on the campaign trail promised that he would make short order of the regulations and resend them. He, through Catherine Lhamon leading OCR, again started the process by resending them earlier this summer and offering new proposed regulations, which strongly roll back a number of the protections that were put in place during the Trump era.

For example, you no longer have the right to have a live hearing to contest the charges. Now, when you lose a live hearing, and you go to what's called an investigator model, that's one where an investigator interviews both parties or whoever else they want. They might turn over a summary of their conclusions to the other side and say, "Let me know if you think I got anything wrong."

You lose the ability to cross examine people in real time. See how they actually answered things, because an investigator could miss the significance of a detail, because they didn't live through it even if they're trying to do it with integrity. So, you lose the ability to cross examine when you lose the right to live hearing. The Trump administration regulations that we fought for gave students the right to see all of the evidence that was in the institution's possession, not just the evidence that they planned on using. The distinction being that if you only need to turn over the evidence you plan on using, you can conceal exculpatory evidence, because it doesn't help the school make its own case.

Bob Zadek: I should mention that in a criminal trial, it is prosecutorial misconduct for the prosecutor who is seeking a conviction to withhold exculpatory evidence. Trials are set aside and convictions are reversed if that ever happens. So, in our system of jurisprudence, for the prosecutor to withhold evidence is, to use non-legal words, a very big deal. As Joe just explained, it de rigueur, it's standard operating procedure in these quasi-criminal proceedings. Not on college campus.

Joe Cohn: I think it underscores how something as simple as a change to turn over all the evidence you plan on using has real consequences on the ground and that's part of the proposal. Once a regulation is offered, which has happened this time, because they learned their lesson from last time and didn't go the direction of guidance, they're trying to do new binding regulations to replace the Trump-era ones. They offered to public comment. We got a chance to point out all of the flaws that we saw in it.

Our comment turned out to be 89 pages worth of mostly flaws. Well, we will have to wait several months until they release a final version. But we're hopeful that on things like that, they'll say, "Yeah, we can fix that problem." But we're not optimistic that they'll fix the big picture ones. Give us the right to have a live hearing itself. It's so crucial. Make sure that cross examination is meaningful. 

They also, in addition to allowing it to be done with investigations, greenlight schools using what's called a single investigator, ehen it's only one person serves all of the roles, investigator, judge, and jury. The flaws of that are so obvious and numerous courts have weighed in on how inappropriate that is and unconstitutional that is because of how easily it injects someone's bias, whether it's conscious or subconscious into the process.

Bob Zadek: We always have learned in any discussion on how civil society should operate that there's no need to protect the rights of people who are speaking about banal things. It's the rights of the most disfavored speech that has to be protected. That's where we test whether we are sincere about free speech rights. Here, it is the rights of the accused. There's not a very strong lobby.

In general, there are classes in our society, which are held in disfavor. That's one thing. But denied the rights that they are still entitled to. They haven't surrendered those rights and you are pointing out that there's not much of a lobby for – it's usually males, not always, but numerically much more. Males accused of sexual harassment don't have a very strong lobby in their favor. And FIRE, while that is not your constituency, your constituency is the Constitution and the principles that regulate our country, but you are fighting a battle where absence of work of FIRE, there's nobody to do it. You're the last line of defense just to preserve the due process rights that all of us are entitled to on college campuses.

Now, we only have a minute or two left. Before we do our closing, how active has FIRE been in guiding or in trying to guide the Biden Department of Education to get to the right place?

Joe Cohn: Well, we have engaged them in a number of ways. Immediately after the election, we have a history for after each presidential election of writing a letter to the President on their Inauguration Day introducing ourselves and highlighting some issues we want to bring to their attention. You can rest assured that overbroad sexual harassment definitions that threatened free speech were amongst the issues that we raised as well as the rights of the accused. We met with officials in the Department of Education. In the weeks to follow before, a proposed regulation was offered to give some top-level general thoughts on why we think the current rules. At that time, the 2022 rules made sense to talk to them about some of their criticisms of them. And then, of course, we submitted our formal comment which as I said was a really in detail piece going into a deep dive. And of course, we do a lot of public speaking, and articles, and op-eds as well to make the case. 

We're really proud of the leadership role we've played and the extent of our work. A number of Harvard law professors, for example, wrote instrumental pieces defending due process rights, as did a number of faculty members in the University of Pennsylvania. Lara Bazelon, the professor who leads the Racial Justice Clinic at University of California Hastings has just been instrumental here as have a bunch of parents who formed organizations like FACE, Families Advocating for Campus Equality – parents who have had their families torn apart because of this – and other organizations as well of course. But we've worked very hard to make sure that the due process arguments aren't left by the wayside.

Bob Zadek: We've been speaking with Joe Cohn. Joe is the Director of FIRE's Legislative and Policy Department – thefire.org.

Joe, thank you so much for the work for the work yourself and for the work of your organization.

This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.bobzadek.com/subscribe

“Innocent until proven guilty” has been the rule of the American justice system since its inception. It still is today. Unless, that is, you happen to be accused of wrongdoing on a college campus. In that case, you might as well be dragged before the modern-day equivalent of the Star Chamber, where campus administrators hardly even pay lip service to your due process rights.

As we explored last week with Carissa Hessick, it is a far graver injustice to deprive an innocent person of the liberty than to let a guilty person go free. That is why the founders gave the accused so many protections in the Constitution and Bill of Rights.

The Foundation for Individual Rights and Expression (FIRE) was created to uphold these protections against rules passed under the Title IX legislation that require colleges to effectively prosecute students outside of the criminal justice system. In these campus tribunals, those accused of serious misconduct like sexual assault have been denied basic protections like the right to a live hearing, to cross examine witnesses, and even to hear the full charges being levied against them.

Joe Cohn, director of FIRE’s Legislative and Policy department, joins me this Sunday to discuss a proposed rule change from the same administrative office behind the infamous 2011 “Dear Colleague” letter. The new language would turn certain kinds of constitutionally-protected free speech into a punishable offense under the broad umbrella of “sexual harassment.” Under the new rule, the “trial” that results from alleged misconduct would be conducted by a single college administrator acting as judge, jury, and prosecutor.

Anyone connected with an American university that receives federal funding (aka, virtually all colleges) should tune in to this important broadcast. The first step to protecting your rights is to know what they are. Be sure to share this with any college students who may not know their rights, and check out FIRE’s free Guide to Due Process and Campus Justice.

This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.bobzadek.com/subscribe

This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.bobzadek.com/subscribe

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” – Eighth Amendment to the Constitution

The 8th Amendment to the Constitution protects prisoners from being subjected to cruel and unusual punishment. Can you imagine a system where a prisoner might be able to accept a steak dinner in exchange for a waiver of these precious 8th Amendment rights? Of course not. Our constitutional rights are too dear to be waived. How about a criminal suspect who waives the right to a fair trial in exchange for a promise of a reduced sentence. In America today, that's just fine. The right to a fair trial is a throwaway right – basically, nonexistent.

Want to know more?

Carissa Hessick is the Ransdell Distinguished Professor of Law at the University of North Carolina School of Law. She has written Punishment Without Trial: Why Plea Bargaining is a Bad Deal, which will explain how we got here.

This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.bobzadek.com/subscribe

“How do you plea?”

It’s the first question the judge asks you in a criminal trial. But before the accused even has a chance to answer “guilty” or “not guilty,” there is another, prior legal proceeding that rarely gets talked about – even though it pre-empts the need for a trial in 97% of convictions. Jury trials were one of the founders’ critical safeguards against the tyranny of overzealous government prosecutors. Thomas Jefferson viewed the institution as the most vital form of democracy – above the ability to vote for legislators. And yet the American legal system has largely abandoned this bedrock principle in favor of the “efficiency” of the plea bargain.

Carissa Hessick is the director of the Prosecutors and Politics Project, Professor of Law at the University of North Carolina School of Law, and author of an important new book, Punishment Without Trial: Why Plea Bargaining Is a Bad Deal.

Professor Hessick joins me to explain how this practice persists as the norm, while jury trials have been turned into a rare exception. What would the Founders say about this state of affairs? And why hasn’t the Supreme Court done something about it?

This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.bobzadek.com/subscribe

What do landscape architects, manicurists, kickboxing trainers, and yoga instructors from California all have in common? Besides making our state healthier and better looking, all of these professions require an occupational license.

What's wrong with that, you might wonder? Licensing might sound like an important form of consumer protection. But does licensing actually increase the safety and quality of services offered? To answer that, we need data.

Dick M. Carpenter, II, senior director of strategic research at the Institute for Justice, recently published a report analyzing Yelp! reviews for six occupations across several states – some with licensing requirements and others without.

Unsurprisingly to anyone who understands the nature of licensing, the license made no difference to the service quality according to Yelp’s ratings.

In some cases, licensing actually seems to correlate with inferior service. The reality is that it represents a barrier to competition promoted by industry insiders to earn more profit.

Carpenter joins me this Sunday to explain how good intent by legislators backfires when lobbyists get their way.

We will discuss the constitutionality of various licensing requirements through Randy Barnett's "presumption of liberty" framework, and review the voluntary alternatives to licensing that actually improve service quality. Barnett argues that people should be presumed to have economic rights – i.e., the ability to work without government permission – unless there is a very compelling reason for the restriction.

However, the Supreme Court has often decided in favor of a “presumption of constitutionality” – giving states the authority to interfere with our personal and economic liberties for virtually no reason at all. Hence licensing laws. Thankfully, the IJ is fighting for our rights every day in court and in the arena of public opinion.

Read the IJ’s report and tune in Sunday from 8-9am PACIFIC to the show of ideas – not attitude.

This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.bobzadek.com/subscribe

The Bob Zadek Show is the country's longest running libertarian broadcast – nationally streamed at 8 AM Pacific Time Sundays on 860 AM, the Answer.

Visit BobZadek.com for more than a decade of archived shows, resources, and a library of libertarian book summaries. We strive to offer in-depth content on social, political, and economic issues that really matter, and always with the ideal guest – accessible and entertaining. Our rule: ideas, not attitude. 

Do you have a right to earn an honest living? The founders thought so, and the Institute for Justice is defending it – both in the actual courts as well as the court of public opinion.

Enjoy my conversation with Dick Carpenter on the threats to our rights to earn a living, in the form of occupational licensing. What is it, and who asked for it? Most importantly, does it do anything to increase the quality of service in the licensed professions, or is it all about keeping the competition out?

Find out and subscribe, below.

Quote of the Week:

“[T]he general government is not to be charged with the whole power of making and administering laws: its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any.” – James Madison, Federalist 14, 1787

Links & Resources:

* The Institute for Justice - ij.org

* Read the report

* A Welfare Analysis of Occupational Licensing in U.S. States, by Morris M. Kleiner & Evan J. Soltas (2019)

* Free to Choose – Milton Friedman's wonderful book and PBS series

* Regulatory Capture - Econlib.org, by Arnold Kling

* Bottleneckers: Gaming the Government for Power and Private Profit by William Mellor and Dick M. Carpenter II

Essential Liberty is a reader-supported publication. To receive new transcripts, podcasts, and concise book summaries, consider becoming a free or paid subscriber.

Transcript

Bob Zadek: Have you ever sought to hire an interior decorator? I assume you relied upon a recommendation of a friend or someone else whose judgment you trust. You might have even checked Yelp or other online screening devices. We have more resources than ever before. You would then look at sample of decorators work and perhaps had a meeting with a decorator.

I bet the first question you did not ask is, “Hold it, Ms. Decorator, are you licensed?”

The same is true regarding your barber or your yoga instructor. Since no one relies upon the massive (and some would say unconstitutional) occupational licensing regime why does it exist?

These are all important questions. The answers are all bad. 

Today, we examine this issue in depth with Dick Carpenter, senior director of strategic research at the Institute for Justice. Of particular interest to me during this show is a study which the Institute for Justice did to provide hard data to support what I – along with most libertarians and other thinking Americans – know about occupational licensing: that there is no economic, political, or social reason to have so many perfectly lawful, relatively harmless, low-threat activities require the permission of a bureaucrat.

Why can't two consenting adults enter into a transaction, where one consenting adult makes a decision to hire another consenting adult based upon whatever information the one hiring has that this person is the best one for the job? That's the way the country was built. It's not the way it operates today. With that introduction, and I can't wait to get started. Dick, welcome to the show this afternoon.

Dick Carpenter: Thank you, Bob. My pleasure.

Defending Economic Liberties

Bob Zadek: Now, Dick, tell us a bit about your organization, my favorite organization, the Institute for Justice. Tell us if you will, the mission of IJ and how you go about fulfilling the mission for which so much of us rely?

Dick Carpenter: Yes. IJ is a nonprofit public interest law firm. It is dedicated to representing individual's pro bono, so we don't charge any fees to our clients. We represent individuals whose rights are being violated by government. We're particularly interested in litigating in four areas. One that we're talking about today, economic liberty, but also in property rights, free speech and educational choice.

IJ seeks to create change that is expand individual liberty through the courts as a law firm and also through the court of public opinion. Our research team produces original cutting-edge social science research to help judges and those in the court of public opinion understand that the issues our clients face are not idiosyncratic, but they're emblematic of a much larger issue. So, it's not something just our clients are facing, but it's an issue that affects many, many people across the country and occupational licensing most certainly fits that description.

Bob Zadek: Now, you said a moment ago, economic liberty. That's a phrase that when one hears it, if you're among not paying attention, it doesn't have much meaning that the two words have meaning standing alone, but one would think we live in a predominantly or mostly free market system. That's the phrase our listeners would use in describing our economic system. So, since we live in a free market system, where are we deprived economic liberty and distinguish economic liberty from other types of liberty, so the audience can appreciate the focus of today's show.

Dick Carpenter: Economic liberty is basically the right to earn an honest living, free from unnecessary government intervention. What we're talking about today is occupational licensing. That is, you should be free to pursue the occupation of your choice without the government permission slip in order to do so. That's what an occupational license is. An occupational license is a government permission slip to work. With a license, you have to satisfy the requirements established by a government bureaucracy, a licensing board. So, rather than please a consumer or rather than please an employer, you have to satisfy the requirements set forth by a board or a government agency. 

This right to earn an honest living is something that we think is fundamental to living in the United States as a free person and that we have any other rights that we often just take for granted. We're free to come and go as we please, by and large, we're free to say what we want, we're free in many ways to associate with whom we want and pursue all kinds of other activities in our lives, and we never think that we have to satisfy the government in order to do so or they have to get permission in order to do so. But with occupational licensing, you in fact have to get permission in order to engage in the occupation of your choice. And these licenses now affect about 25% of the workforce in the United States.

The Harms of Occupational Licensing

Bob Zadek: Now, you said in your answer to my question, "We think people ought to be free to earn an honest living without government intervention." I'm paraphrasing what you said. It's more than what IJ thinks. It certainly is what you think and what I think. But I dare say that it's what the founders thought. The political history of our country shows us that this is not some late to the table theory that just sprouted, this was part of the core of in our country's founding. Occupational licensing is a relative economic newcomer, if you trace political history. 

There are wonderful quotations from the founders showing how strongly they believed one ought to have the right to the fruits of their labor, people ought to be free to transact business with whomever they wish, so long as some basic laws and morality is not put into question as a result. I want to remind the audience that most of those who were building our country believe the same thing. This is not a new theory. This has always been with us. And for a while we never had occupational licensing, it's a relative newcomer. 

You said 25% of the workforce requires a license.

What are the societal negative consequences of licensing, and before you answer that question, give us examples of the type of commercial activities, which would seem to be totally benign, but for some irrational reason government has felt it has to be the subject of a license.

Dick Carpenter: Most people know that their doctor is licensed or their attorney is licensed. I think most people know when they go to the barber shop, their barber is licensed, their cosmetologist is licensed. But many people don't realize that there are many, many occupations that require licenses that they never even dreamed would require it. So, for instance, Louisiana requires you must have a license to work as a florist. There are a number of states require you have to have a license to work as a funeral attendant. Not a funeral director, [chuckles] a funeral attendant.

Milk samplers have to have a license; log scalers have to have a license. You mentioned one early on: interior designers have to have a license. Tree trimmers must be licensed. So, this list includes many occupations that people would never believe would require a license. 

In fact, we actually did a study. We have the third edition of our study called License to Work that's coming out this month. In that study, we examine the requirements of 102 low to moderate income occupations in all 50 states and DC. And we show just how burdensome these licensing laws are for this sample of 102 low to moderate income occupations. So, yes, I think we all recognize there are certain occupations that have licenses, but there are many, many more that people just can never imagine would require a license. 

Now, the negative consequences of licensing are borne by various different people or types of people, groups of people. One is the aspiring worker – somebody who wants to enter an occupation. They might have a skill, they might have a particular interest, a real passion to work in a particular occupation, but they are prohibited from doing so, because they're unable to clear the hurdle in order to work in that occupation. The hurdle is the license required to work in that occupation. A classic example that we have litigated for years now is African hair braiders. African hair braiders most often learn how to do hair braiding through their family or through friends.

This is a skill that they have learned over time as a child and into young adulthood, but states, for years required that they must have a cosmetology license to work as a hair braider. Hair braiding is not cosmetology. It doesn't have anything to do with cosmetology. A hair braider doesn't cut your hair, she doesn't wash your hair, she doesn't put rollers in your hair, all she does is braid the hair. 

Bob Zadek: She doesn't use chemicals for dyeing the hair. 

Dick Carpenter: No chemicals. 

Bob Zadek: Yes, correct.

Dick Carpenter: No chemicals for straightening the hair. But nonetheless, states require that you have this full cosmetology license, which requires in some places more than a year of education and training, completing two or more examinations, and learning all kinds of content that has nothing to do with hair braiding. So, that's a classic example of somebody who wants to work in an occupation, but has to satisfy the licensing requirements that are unrelated to the work that they want to do.

Bob Zadek: You said they have to study a thousand hours perhaps, but that studying is not free. The cost of getting a hair braiding license is imposed upon people who don't aspire to make a fortune, but they aspire to be just a middle-class worker and they have to pay a fortune just for permission to earn an average living. 

Dick, as to the educational requirement, we'll get to the irrationality of the rules in a moment, but the sheer cost means there's a huge charge that has to be paid upfront for the privilege of earning an average middle class, perhaps, lower middle-class income. And the rules have no basis. To put the best gloss we can, if you were on the governmental side and defending the licensing regime, tell us the claimed benefit which government offers for the licensing regime, what is it supposed to accomplish? And we will decide for the rest of our show whether it succeeds in that.

Dick Carpenter: There are two claims. I put these in purposeful order. The first is that licenses increase public health and safety. That is, the license keeps those out of the occupation who might provide services that would put the public at harm or, put differently, it prevents people from providing shoddy work or perhaps dangerous work, and therefore, it increases public health and safety. That is the primary argument that is made. I should say, it's made when advocates go to the legislature and ask for a license. Those advocates are almost always professional associations or people representing the occupation. They go and they say, "We need to protect public health and safety, and the way to do that is to adopt a license."

They use that same argument when they attempt to defend a license that is being considered for reform or that is being litigated in court. The argument is always the same: we have to protect public health and safety. 

The second argument is, we need to increase the quality of service. The logic is essentially the same. We're going to increase quality of service by keeping low skilled workers out. And therefore, because we have kept those individuals out and because we have required that people complete a certain amount of education and training, and completed examinations that will increase their skills, and therefore, increase the quality of service in a particular occupation. So, those are the two primary arguments that people make in support of licensing.

“The argument is always the same: we have to protect public health and safety.”

Why the Market Solution is Rejected

Bob Zadek: Now, so it's to protect against shoddy work – that ignores the marketplace. The marketplace is a foolproof way to prevent bad actors from selling a shoddy service or a product. They go out of business. And today more than ever, with so much information available, either from other customers of the good or service, or from independent organizations who evaluate goods and services, nobody has any difficulty right now of obtaining all of the information they need. So, the marketplace is very efficient at getting rid of bad actors quite fast. 

Now, the licensing regime. While that's the stated purpose, Dick, as we know, that's really the political cover. The history has shown us and perhaps you could give an example or two. Let's take interior decorators license to protect us from having bad wallpaper and dying of cancer from bad wallpaper. What are we being protected from other than by having somebody do a bad job? And the answer is not much.

Has there ever been an incident? Do you imagine that the reason Louisiana has licensing regime for florists is because there was at some time in Louisiana a public outcry? There were citizens storming the Capitol saying, "We demand protection from bad florist. I bought a dead rose and I want a licensing regime." Well, no. 

Tell us, Dick, in the political process, how does activity become eligible for licensing? Because we're not yet there that every single activity on the planet is licensed, but that certainly is a trend. But how does an unlicensed activity get to be licensed since there never is a public demand for that?

Dick Carpenter: Yeah. Overwhelmingly, a license is created at the request of those who are in the occupation already. My colleague and I wrote an entire book about this. The book's called Bottleneckers. And we examine the history of how licenses were created across various different occupations. And one occupation after another, chapter after chapter after chapter, we show the story is the same. A professional association or an organization representing the occupation will go to the legislature with their handout and they will say, "Please license our occupation." 

“Overwhelmingly, a license is created at the request of those who are in the occupation already.”

Just as you said, it's not consumers breaking down the door of the legislature begging for a license. It is those in the occupation who go and ask for a license of their own occupation. That seems counterintuitive to people – why would you want more government regulation? Why would you want more government in your life? But there is an economic benefit that accrues from the license. If I work in an occupation, and I'm able to erect a fence around my occupation, and I can patrol that fence and I can ensure that only a certain number of people come into my occupation through that fence, that means I can enjoy an economic benefit by artificially inflating my prices and wages because I don't have as much competition. 

Now, those who are going to the legislature and asking for the license, they will never be so bold as to say, "We want an economic privilege."

No. Instead, they go to the legislature and they say, "We want to protect public health and safety." And the way to do that is by adopting a license. We see this in one occupation after another throughout history. This is how licenses are created. We just completed a study not too long-ago examining sunrise laws. Sunrise laws are a mechanism – a procedure by which proposed bills, proposed regulations, in this case, licenses are examined by a government body. Often an auditor's office, for instance, that will examine for purported need for the license and then they'll make a recommendation to the legislature about whether this license is really necessary. This is called a Sunrise Process and the recommendation to the legislature is produced in a Sunrise Report. 

We looked at the Sunrise Reports and one of the questions we were interested in knowing was, who asks for these licenses? Who asks for these sunrise reviews? It is overwhelmingly people in the occupations. It's rarely consumers and rarely legislators, it's almost always people in the occupation who want to be licensed.

Bob Zadek: So, licensing is just a series of statutes that are by definition, anti-competitive. It says, an activity is hereby declared to unsusceptible to competition. Now, yes, others can get the license, but as Dick explained, the cost and the time and the standards, we'll get into the standards in a moment, are not designed to invite people into the activity. It's designed to do the opposite to discourage them.

Thank you for reading Essential Liberty. This post is public so feel free to share it.

Licensing Boards and Regulatory Capture

Now, Dick, another part of this sinister activity, you've mentioned the phrase licensing boards. Now, I don't recall. You'll know the case I'm talking about. Was it an IJ case that did the teeth whitening in, I think it was North or South Carolina?

Dick Carpenter: Yes, correct. 

Bob Zadek: Okay. So, help us understand. Licensing boards sound governmental. Therefore, objective, just a bunch of benign bureaucrats moving papers around and being overpaid. But they're not that. This is the group that sets the rules on what you need to do to get a license. They are the gatekeepers who gets to do the activity. So, tell us about these licensing boards and how are they typically organized and of whom are they comprised?

Dick Carpenter: The licensing board oversees everything about the license itself, the requirements, the fees, the policing of the fence, the gatekeeping function, as you just mentioned. The licensing board is created by the enabling legislation. When a bill is passed and signed by a governor, that bill will, among other things, establish a board to oversee the license. That board then is immediately populated by people who are already in the occupation – often by the same people who have lobbied for the creation of the license. The economics term is Regulatory Capture. You have the occupation captured by people from the occupation itself and who are overseeing their competitors. So, it's people in the occupation who have the ability to keep their competitors out through the function of the license. 

Now, these boards will have 5, 9, 11 members on them. Almost always, the boards are comprised of people who are already the occupation or after some period of time, people who are licensed in that occupation. They might have one or two non-occupational members on their board. So, for instance, they might have, what's called, a public member of the board, for instance, or maybe a couple of public members who serve on the board. But by and large, it's populated by people from within the occupation and that gives them enormous power. So, essentially, it's people from the occupation who are given government power in order to regulate who is able to come in to their occupation.

The Case of Tooth Whitening & Scope of Practice Regulations

Bob Zadek: Now, before we get into your study, which I want the audience to learn about and only because I did a cruel thing. I mentioned the teeth whitening case, which the audience may not know about or have forgotten about, because it's a perfect example of how all of this comes together. Tell us very briefly the facts in the teeth whitening case. What was IJ's involvement and what was the result?

Dick Carpenter: Teeth whitening is a process that uses very mild chemicals that you can buy, by the way, in the grocery store or in a department store over the counter. Well, people began actually opening businesses to provide teeth whitening services. Some listeners may have seen them operating in mall kiosks, for instance. So, entrepreneurs were starting to open these small businesses that would actually do the teeth whitening for you. They were using the exact same materials that you could buy over the counter in a store. But what they were doing is providing a place for you to sit in a chair. They were providing a convenience – a service that you could do by yourself at home, but they're doing it for you – and making a little business of this. 

Well, as you can imagine, dentists did not like this, because for a number of years, dentists have been making a pretty good living doing teeth whitening in addition to regular dental services. So, the dentists saw this as a threat. They then use what we call “Scope of Practice.” What scope of practice says, what defines this practice? What are the services that somebody who does this job are able to provide? And by defining the scope of practice, they can essentially say not only what does a dentist do, for instance, but what is it that someone else cannot do, because that service is reserved only for the person who has a license. 

So, the dentist, therefore, said, “We're going to call teeth whitening within the exclusive scope of practice of dentist and anyone who engages in teeth whitening, like these entrepreneurs, they're engaged in dentistry without a license, and therefore, they have to cease and desist, or the consequences they would be fined, or other civil penalties as a result.”

Bob Zadek: Now, let's just stop for one moment, if I may, Dick. When you say the dentists decided that, they went to the dentistry licensing board and they had them declare or reach a finding that that was part of dentistry. They use the board which as you said, they had captured. They didn't have to persuade the legislature, they only had to persuade their fellow dentists at the dental board. So, I wanted to just make that point because you had mentioned licensing boards as part of your presentation and I wanted to show how it all comes together.

Dick Carpenter: Yeah. 

Bob Zadek: So, please continue.

Dick Carpenter: Yeah, this is not just dental boards. This is boards of all kinds across the country. They count on people in the occupation going to the board and essentially reporting on people who are engaged in providing the service who are unlicensed. Cosmetologists do it, interior designers do it, dieticians do it – it's all over the place with all kinds of boards where they police their fence in part by having people in the occupation essentially report on others who are engaged in the occupation who are unlicensed. And that's exactly what happened with the dental board as well. 

Bob Zadek: So, Dick, you introduced to our audience to the phrase Regulatory Capture. This example you have just explained to us shows us that the dental board exist not to protect the public, but to protect the dentists. And that's important takeaway from this whole conversation. So, now, IJ gets involved, because that process is protectionist prevents the entrepreneurs from earning an honest living in a mall providing a zero-risk service to the public. What happened? And if you can recall, what did the Supreme Court, the US Supreme Court, not the state Supreme Court find in that case, when you brought it all the way up to the US Supreme Court?

Dick Carpenter: Basically, the Supreme Court found that the dental board was in fact engaged in anti-competitive activity. By definition, that's what an occupational license is. It is anti-competitive. We say by definition – it's one of the rare public policies that does exactly what it's designed to do. Most public policies either fail entirely or fail in part to reach their intended goal. Occupational licensing is one of the rare policies that achieves exactly what it intends to do. It keeps people out. It is anti-competitive, by definition, and in part, that's what the court found about the activities of the dental board in North Carolina.

“Occupational licensing is one of the rare policies that achieves exactly what it intends to do. It keeps people out.”

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Does Licensing Work? A Study in Yelp! Reviews

Bob Zadek: Now, Dick, you led a study which IJ just published challenging with data, which I'll ask you to explain with objective data driven analysis to show that the most significant claim in defense of licensing boards as you said in your opening comments was to protect the public from bad service as if the marketplace is not effective in doing that. Now, so, let's examine that core purpose, because if the licensing does not accomplish that purpose, the whole reason for licensing falls. So, tell us about the study that IJ did that you led. How was it conducted and what were your conclusions?

Dick Carpenter: One of the things that people claim as you said is that licensing is going to increase quality of service. And that is a testable proposition. We can actually test that now with data. And the data that we used was Yelp data. As you mentioned some number of minutes ago, unlike any point in history, we now have the ability to through crowdsourcing, basically, Yelp data is kind of a form of that. We have the ability to hear from other consumers their experiences, and even rate the quality of those services through something like Yelp. So, we use those data to examine differences in quality of service within six different occupations between states that had a license and states that didn't have a license or states that had a more severe licensing requirement as compared to states that had a less severe licensing requirement. 

We were actually putting the argument of licensee proponents to the test. And we do that a lot in our research. We say, “Okay, we're going to give you the benefit of the doubt.”

We're going to say, “All right, if that is true, we should expect to see the quality of service in a licensed occupation, in a licensed state, we should expect to see the quality of service to be greater, higher in that occupation as compared to a bordering state, a neighboring state in which there is no license or in which the licensing requirement is not as severe.”

So, that was the comparison we made. Same occupations, but in two different states with different regulatory schemes. 

We did this across six different occupations and nine comparisons, because we had some occupations that had multiple states, multiple comparisons. From one occupation to another in all of our comparisons, we found consistently, licensing did not improve quality of service. It was consistent across all of our comparisons. I should note that our findings were very similar to the findings of other researchers who have asked very similar questions and use very similar types of analyses in different occupations and sometimes the same occupations. It is very consistent. Licensing does not improve quality of service. 

“From one occupation to another in all of our comparisons, we found consistently, licensing did not improve quality of service.”

We examined interior designers, locksmiths, manicurists, tree trimmers, barbers, and cosmetologists and we never found that licensing produced greater quality of service. In fact, in two of our comparisons, we found that licensing actually produced less quality. The quality was less in the more burdensome licensed state as compared to the less burdensome licensed state.

Bob Zadek: To have our audience understand the quality of your data, drill down one notch, when you said, "we compared," what exactly did you do? What did you look for? What were the data points that you compared one against the other? I'm asking the question, not so the audience can do it at home with their own tests, but only because this is like the closest we can come to peer review. I would like you to explain to our audience how carefully this test was thought out that, yes, they will learn, it was very carefully done, and therefore, the results must be given great weight.

Dick Carpenter: I mentioned we use Yelp data. We gathered thousands and thousands of Yelp reviews for the firms in those occupations. I mentioned interior designers, locksmiths, and so forth. We gathered the Yelp reviews for all of these firms that were on the borders of states that we compared. So, just as an example, we looked at locksmiths in Pennsylvania and New Jersey. We looked at the locksmith companies that were within a small number of miles around the state border between those two states. We compare the Yelp ratings of the firms in the licensed state, in this case, New Jersey to the unlicensed state, which was in Pennsylvania. And because those firms are within a small bandwidth of miles, we can essentially say that all of the other characteristics that might affect the quality of service are going to be similar, because those firms are all operating in a pretty tight geographical region. 

Now, if we were to compare some locksmith firm on the opposite end of New Jersey, one end of New Jersey, all the way to the other opposite end of Pennsylvania, there might be economic considerations or economic characteristics that might affect the quality of service. But that's not what we have here. We have firms that are very close to each other geographically. So, consequently, they're probably serving a very similar population, they have very similar economic characteristics within the area that they work.

Therefore, that enables us to especially isolate the one characteristic – the one difference that is most important that we care about– that is whether they have to earn a license in order to do the work. And then we compared them through a statistical procedure called Regression Discontinuity that essentially enables us to say, "Is there a difference? And if there is a difference, is it greater than what we might expect to see by just random chance or noise, statistical noise?" So, that's in a nutshell what we examined.

Bob Zadek: Now, my fantasy is that your study becomes admissible evidence as you go about one after the other, like those little ducks in the shooting gallery. You've have given a BB gun and you shoot at the little ducks, that one at the time you pick off state licensing statutes as clearly having, as with a teeth whitening, an anti-competitive effect. But now, you remove any presumption government can have that it accomplishes appropriate governmental purpose. This becomes, if not irrebuttable, at least persuasive evidence will which arms you to one at the time, strike down licensing statutes. 

The Loss to Consumers

Bob Zadek: Now, why do I pick a fight with licensing regimes and licensing boards? Because there are lots of profoundly negative consequences that I want to spend the few minutes we have left examining, because IJ has been such a strong advocate for those which Frederic Bastiat would call "The Unseen." All of the people, all of the citizens who want to do nothing more than earn a living, they are harmed, but they don't make the headlines. One at a time, somebody is denied, because they don't get permission. They are denied by a bureaucrat or by somebody in the occupation, we will not permit you to sell your services at a price somebody is willing to pay. So, I want to spend a few minutes on the economic harm, individually and collectively, to those in our country. 

You spent a fair amount of time focusing on the fact that it is protectionist. It protects the people in the occupation and how bad that is. But what about the customers? I want our audience to appreciate that that law prevents me from doing something lawful as well. I make a decision with my own money to hire you to whiten my teeth. I know you're probably not that skilled, but I want to do it and you want to do it. 

Dick Carpenter: [laughs] 

Bob Zadek: What's wrong with my making that decision, on an informed basis, I don't have a conservator for my assets. I'm allowed to make decisions. The government doesn't care if I buy a bad car or an overpriced anything. The government doesn't care if I overpay for lots of other things. Why do they care if I overpay you, because you're really not worth what you're charging me? So, focus on in your comment, the infringement of the freedom of the rest of society who doesn't get to hire who they want.

Dick Carpenter: Yeah. There are couple of thoughts on this. There are costs that one can quantify economically, and we released a study several years ago by Morris Kleiner, professor at the University of Minnesota and his coauthor. And they examine the quantitative cost, the economic costs that accrue from occupational licensing. So, one can talk about the costs, the societal costs, the consumer costs in quantitative terms, but then there are other costs that are one might find more difficult to quantify, but are nonetheless still costs that we bear as consumers on an individual basis. 

If we think about the second one first, a licensing regime creates what Milton Friedman called the Cadillac effect. And that is, it forces every consumer to buy a Cadillac in a licensed occupation. If I'm a consumer and I want to buy a service, I may not want to buy the gold plated. I may not want to buy the Cadillac of service. I may be okay to buy the Chevrolet of service. I may be okay with having somebody who provides, not the highest quality of service, but a quality of service that's what I can afford and is acceptable to me. A license prevents that from happening. From the consumer standpoint, everyone is forced to buy the highest quality, if you will, of that service. 

Now, what that means is there's a disproportionate effect, because there is a certain group of consumers who cannot afford to buy that service, because the license puts it out of their reach. So, they're forced to do either A) to do without that service, or B) try to do the service themselves.

There was a great classic study that came out about 40 years ago that found licensing actually increases threats to public health and safety, because people are forced or compelled to engage in certain types of their services. They can't afford to hire a service provider, so they engage in DIY service, like electrical services. They do their own electrical work, and therefore, they cause harm to themselves, because they can't afford to hire the fully licensed electrician. And so, they're forced to either go without or to try to do it themselves. 

Without a license, what you end up with is an occupation that has multiple tiers of service providers. And then the consumer is free to choose what tier of service they want to buy and what they can afford to buy as well. So, the consumer is free to make that choice. Whereas with the license, they're not.

Bob Zadek: You just mentioned Free to Choose – Milton Friedman's wonderful book and PBS series. So, I just wanted to mention, you even sneak that one by, we all notice Milton Friedman and Free to Choose in the same one-hour podcast. Please go on, Dick.

Dick Carpenter: [laughs] Yes. So, now in the larger sense, the greater economy suffers from licensing as well. And this is the work that Professor Kleiner did for us several years ago, where he examined the aggregate costs of licensing. What does that mean? The aggregate costs are these. What is it that we as consumers all together, what are we forced to pay for the licensed services? What are we forced to pay that we would not have to pay if it were not for the license? Because as I said earlier, a license artificially inflates prices and wages. So, if there were no license, what would we pay and what now are we forced to pay as a result of the license artificially inflating the prices? So, what does that look like collectively? 

What they did was they looked at this state by state and then they combined across all the states to look at what these costs are nationally. They looked in the states that had good data available. They found that in about 36 states, the lost economic output ranged anywhere from about $28 million in Rhode Island to $840 million in California. When we look at it nationally, licensing costs the economy somewhere between $6.2 and $7 billion. That's the drag on the economy that is created by licensing in the form of lost output. That's just one measure. 

A second measure is misallocation. Misallocation costs also are accrued from licensing. And the idea here is that we have a pool of labor in the United States. We have millions of people who want to work and they have certain skills and interests. If there were no licensing anywhere, people would select into the occupation that they wish to work in, based on their skills and their interests. But a license distorts that. It misallocates labor. It says, "Just because you have that particular skill or just because you have that particular interest, it doesn't mean you can work in this occupation."

And so, you are forced to then work in something else that is not as well tailored to your skill or to your interest. So, there's a misallocation of labor that's created as a result. This misallocation of labor can actually be aggregated up into a number as well. These found that the misallocation cost was anywhere from $675 million in Rhode Island to $22 billion in California. And nationally, the misallocation costs was between $184 and $197 billion. So, the costs from licensing are staggering to our economy. And these are annual numbers.

“The costs from licensing are staggering to our economy.”

Bob Zadek: There's also the cost – not so easy to measure – of workers who want to earn a living. Let's say they are on welfare or some other assistance program, and they want to earn money, and they have a skill, but they don't have a license. And therefore, they have a barrier where they can't start to move up the economic ladder, because they can't afford the tuition, or the licensing, or even worse. Remember, licenses are designed not to help people get into an activity, but to keep them out.

Licensing Moral Character

Dick, we only have a few seconds left, but I'm going to say a couple of words to you and please explain to our friends, what this has to do with licensing. The words I'm going to say are “good, moral character.” Now, throw that into our discussion and explain the damage done by those three words.

Dick Carpenter: This most often comes up with people who have some sort of criminal background. What happens is you're convicted, you go to jail, or you go to prison, and upon your release, you wish to reenter society, which off typically means you want to work in an occupation. And if you want to work in an occupation that requires a license, in some occupations across many states, the licensing law says that you cannot earn the license if you have a criminal background or if you have something in your background that would be inconsistent with good, moral, character, like a criminal conviction, for instance. So, what we end up having then is people who have a criminal background, they want to work in an occupation that prevented from doing so because they have a criminal background and that has a violation in this good moral character provision. 

Now, the cruelest aspect of this, and I mean it, it is cruel, is when we train people in prison to learn an occupation and then they leave prison. And we tell them, they cannot practice that occupation for which they were trained in prison because of a license, and the license with a good moral character.

Bob Zadek: The quick anecdote I'm going to add to that is in California, where we have a very well known a forest fire problem, we have a program where prisoners might qualify to be released from prison to fight forest fires. They get paid a very small amount, but they also learn how to do it. It's a highly skilled activity. They do that and they earn early release credits, they earn money, then they go out and they say, "I like fighting forest fires." But they can't get a job, because they don't get a forest fighters license because of bad, moral, character.

Now, Dick, please tell us how our friends out there can follow all of the good work that you are doing at IJ and how they can follow and support the wonderful work that my favorite nonprofit law firm does, the Institute of Justice. We have only a few minutes, Dick.

Dick Carpenter: You can visit ij.org, and you can see all kinds of information about our cases, our clients, you can read our research that we've been talking about today. You can also sign up for our newsletter, and you can get that electronically, you can get it hardcopy. If you wish to support the work of IJ, you can donate to IJ right on the website. And I should say, we take no government money of any kind. We are supported entirely by private donors, just like you, Bob, and like others.

I should qualify that we actually do get one form of government money, and that is attorney's fees when we win. Otherwise, the only support we receive is from generous donors like you and others, and you can do that right on the website.

Bob Zadek: Dick, thank you so much for sharing your thoughts with us. And please express my profound gratitude to the work that all of your colleagues at IJ do. Thank you so much, Dick, and thank you to IJ, and of course, thank you to my friends who has given me an hour of your precious time today. I hope you have found it worthwhile. Thank you so much.

This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.bobzadek.com/subscribe

When things aren’t going well, people always look for a scapegoat. When it comes to the opioid epidemic, the CDC’s preferred scapegoat has been pharmaceutical companies. Meanwhile, the DEA blames doctors for over-prescribing pain medication, and has tightened regulations on the quantity that can be prescribed. As we’ve learned from Dr. Jeffrey Singer over the years, the crackdown on prescription opioids has missed the mark and made the problem worse: addicted patients have turned to the black market to satisfy their demand, and gotten hooked on far more dangerous drugs like illicit heroin and synthetic Fentanyl. Singer calls the misguided war on opioids a “war on pain patients” with no end in sight.

More recently, Republican politicians have tried to score points against the Biden administration by scapegoating illegal immigrants for the problem of Fentanyl smuggling. Smuggling has indeed increased. However, a Washington Post op-ed by Cato scholars Singer and David Bier (associate director of immigration studies) reveals the folly of the Republicans’ accusations. Illegal immigrants are not the ones bringing Fentanyl across the border, they note. It’s mostly US citizens doing the smuggling. Ever since border enforcement has tightened, it has become more common for smugglers to conceal small amounts of the much more potent Fentanyl in otherwise legal border crossings.

David and Jeff join the show of ideas to discuss the inevitable unintended consequences of both the war on drugs and the war on immigrants. We investigate the issue from the angle of the failure of drug prohibition, as well as the failure of strict immigration policy. Both of these problems share a common root cause – they seek to interfere with free markets. The laws of supply and demand don’t stop functioning just because an artificial legal boundary is erected – whether you’re talking about drugs or people.

The solution is simpler than you think – but first, we must assign the blame correctly.

Will politicians examine their own role in creating the crisis and reform the system, or will they continue to scapegoat innocent people?

Transcript

Bob Zadek: Hello, everyone. I'm Bob Zadek, host of the country's longest running libertarian broadcast. Nationally streamed 8 AM Pacific Time Sundays on the 860 AM app. My podcast contains more than a decade of historical issues. bobzadek.com offers resource material, book lists, other topical podcasts, and much, much more. We strive to offer in-depth content on social, political, and economic issues that really matter always and always with the ideal guest, accessible and entertaining. Our rule - ideas, not attitude

In today's show, I'll seek the help of two experts to understand and perhaps solve two surprisingly related but intractable nationwide problems, which seem to justify solutions and are laden with misunderstanding. The flood of black-market fentanyl on the one hand and our open southern border, in fact, all of our borders on the other hand. Is there a connection with the crisis at the border and with street fentanyl seeming to flood cities large and small in our country? Is there a connection, is one the cause of the other? We have to find this out. I'd like to welcome back to the show, Dr. Jeffrey singer.

Jeff is a senior fellow at the Cato Institute and a practicing general surgeon. And also, welcome to the show, yes, we have two guests today, David Bier. David is associate director of immigration studies at the Cato Institute. Gentlemen, welcome to the show this morning.

Jeffrey A. Singer: Thank you.

David J. Bier: Thanks for having me.

Why Fentanyl Smuggling Doesn’t Come from Illegal Immigrants

Bob Zadek: Now, my first question to David. We're going to try to help our audience unpack these somewhat complex issues. And we're going to try to undo a lot of the, and the word that we hear in the news all the time, much of the misinformation about the border, in general, the open border and specifically whether or not the open border contributes to or has any relationship to the fentanyl crisis.

So, David, you have written quite a bit on this. What, in your view, as you observe what commentators are saying and what bloggers are writing, is the claimed relationship between the crisis at the border, our inability to control our borders, and the flood of black-market fentanyl? What is the perception in the public as you see it about the connection between open borders, immigration, and fentanyl?

David J. Bier: Well, it's pretty clearly stated that illegal immigrants are bringing fentanyl into the United States and selling it to Americans who are dying as a consequence of that. And it's because we don't have enough Border Patrol, it's because we're not enforcing our immigration law strictly enough that people are dying in the streets, or in their homes, or wherever as a result of this surge in production, and trafficking, and fentanyl.

Bob Zadek: So, as a result of that perception or misperception, are you concerned that there might be some animus directed towards open borders in general? That is to say open borders or welcoming immigrants are in and of itself as a policy contributing to the fentanyl crisis. Does that seem to be the perception that our thought leaders and bloggers or many of them are presenting and is there any connection between the two in your studied opinion?

David J. Bier: Well, first of all, yes, I think members of the public are being told that asylum seekers, people who are seeking asylum in the United States because they have a fear of return to their home country are contributing to the fentanyl crisis and that we need to end asylum in this country immediately, expel people back to either Mexico or to the country that they're fleeing from. We've seen this repeatedly used as a justification for policies that are not talking about, whether we stop someone from crossing illegally. It's about whether they can actually apply for a status in this country once they're already in custody. And if they're in custody, obviously, they search for fentanyl.

At the base of it, there is the truth underlying this narrative is that most of the fentanyl coming into the United States now is coming from Mexico. The misperception is that it is primarily being trafficked into the United States by illegal immigrants crossing the border illegally. That is entirely untrue. This is supported by the department-- Every law enforcement agency in the federal government knows that this is the case. They testified before Congress on this issue this year – every single Customs and Border Protection, the Drug Enforcement Administration, the FBI – they all agree that the way that fentanyl and almost all other hard drugs enter the United States is through legal ports of entry where legal travelers are bringing fentanyl in their luggage, in cargo.

It's really easy, because fentanyl is so potent that it's easy to conceal. Whether with your luggage, or in a package, or as part of a large shipment in legal cargo, it's very easy to bring it in. And so, that is why it makes more sense from the standpoint of a cartel or a drug trafficker to try to bring it in through these legal entry points, then it is to try to sneak across the border with it on your back, because the rate of apprehension, the rate of detection of people crossing the border illegally is actually much higher than people think it is. We have actually very good surveillance now. We have drones 24/7 in the skies, we have cameras all along the border. Of course, we don't catch everyone, but we actually do have a pretty good idea about the total flow.

The rate of apprehension is greater than 50% and the rate at which we're intercepting fentanyl coming into this country is below 5% and it has been for years. And so, it doesn't make sense from the standpoint of a drug trafficker to choose trying to sneak into the country with fentanyl compared to trying to sneak it in through a legal crossing as part of their luggage.

The Iron Law of Prohibition

Bob Zadek: Now, Jeff. Dr. Singer – fentanyl, there is so much misunderstanding about what fentanyl is, why it's a crisis, and why are we reading about fentanyl, all of a sudden, so much in the news. There was a time fentanyl was never spoken anywhere. So, help us understand, first of all, the big picture of why fentanyl became in the news at all? Was it filling an unfulfilled need?

After all, we had lots of stimulants, lots of other illegal drugs before there was fentanyl. So, why all of a sudden is fentanyl in news to the exclusion it seems of other of the drugs we're accustomed to reading about such as heroin, marijuana to some degree, cocaine and the like? How did fentanyl get to be in the news so much?

Jeffrey A. Singer: Well, I think I'd like to start off by saying for those of your listeners who haven't heard of this term, drug policy experts use the term “the iron law of prohibition.” Basically, any economist understands this, but in shorthand, the harder the law enforcement, the harder the drug. So, fentanyl has been around since the 1960s. It's a synthetic opioid, which means there's nothing derived from the pop opium plant. It's made in the lab. So, very useful, effective opioid that we use in the operating room, we use for anesthetics, we use people in intensive care, we use it usually in an injectable form, sometimes this is a skin patch called Duragesic that we use, which is slowly absorbed through the skin over a few days. So, it's a very useful painkiller.

Fentanyl is about maybe 50 times the potency of heroin. And heroin is about twice the potency of morphine. So, it's about hundred times the potency of morphine. Very potent. And therefore, a very small amount can get a lot of bang for the buck. When drug prohibition tends to make people who are in the business of making or dealing drugs try to come up with more potent forms of the drug, because it makes economic sense. If it's potent, they could smuggle it in smaller mass- [crosstalk]

Bob Zadek: Jeff, I want to interrupt in just so the audience can follow. You say it's a potent drug. It's more potent than morphine. Potent in what extent? What does it do better or stronger or more effectively than other drugs? Potency at doing what?

Jeffrey A. Singer: Okay. It's a much stronger narcotic. It gives you a much more rapid euphoria, but it also because it's so strong, a small dose could be enough to make you stop breathing, whereas less potent opioid would require a much greater dose to reach the level where you would stop breathing. But because of prohibition, it makes sense economically. If you can figure out a way to make something more potent, then you can smuggle it in more easily, because a much more effective amount of it could be made in a smaller size, so you could sneak it in.

For example, in your suitcase, illegal border crossing, and show them your US passport, and just get right in. And also, when you finally get across the other side, since it's so potent, it can be subdivided into multiple amounts and sold. And therefore, we can get more bang for the buck. It's because of the iron law in prohibition that marijuana has gotten stronger – THC concentration over the years – it’s why cocaine use developed into crack cocaine and it's why heroin has now become fentanyl.

Particularly, it was exacerbated during the COVID pandemic, because supply chain issues developed and heroin is processed from the opium poppy. There are certain chemicals that you need to process it, you have to grow it, it was much harder to move it across the normal supply chains during the pandemic. That made fentanyl even more attractive to drug dealers, because the ingredients to make fentanyl were available and can be much more easily made in a lab more quickly. So, it's quickly became the go to substitute for heroin. And I've got to give everybody a warning. In a year or two, we're going to be talking about nitazenes, because that's how the iron law of prohibition works. Already, since 2019, we see increasing reports of overdoses from a class of synthetic opioids called nitazenes, which were developed in 1950s by Ciba-Geigy in Switzerland and it's about 20 times more potent than fentanyl and it never went to market in this country. Lately, we're starting to see that appear in a large number of overdose deaths. Just recently, a state of Tennessee Department of Health reported on it and it's being seen in Europe.

“It's because of the iron law in prohibition that marijuana has gotten stronger. It’s why cocaine use developed into crack cocaine and it's why heroin has now become Fentanyl.” – Dr. Jeffrey Singer

Again, the iron law is continuously making drug dealers want to find an event more potent forms of the drug. If you really want to put the blame for the fentanyl crossing into our country and flooding the United States, it should really put the blame on prohibition.

David J. Bier: I just wanted to add one thing to that that really highlights this transition during the pandemic that Customs and Border Protection tracks their seizures of fentanyl and heroin. Basically, these are feeding into the same market. At the beginning of the pandemic, about a third of their seizures were fentanyl. By the end of the restrictions on trade and travel with Mexico, 90% were being intercepted was fentanyl. The restrictions at the border preventing trade, and travel, and free crossings really had a huge effect in shifting that black market away from heroin, which is less potent to something that could supply the same market with 50 fewer trips. And that's what makes sense from an economic perspective for the drug trafficking organizations. So, we played right into their hands in creating this crisis.

What Caused the Rise of Fentanyl

Bob Zadek: Now, a question to either one of you, perhaps to Jeff first and then David. What was the externality that invited fentanyl into the marketplace? Because there was a period of time that, when you heard about or read about the drug problem, the nouns were cocaine and heroin. 20 years ago, my dates could be off, you weren't hearing about fentanyl at all. Was there an external event, either a change in demand or was there governmental action or inaction that causes fentanyl to enter the marketplace after all supply exists to satisfy a demand?

Is it in only public taste or fashion, or is there something that caused fentanyl to become so much in demand? Because after all, it's the demand that creates the supply coming into as we all know.

Jeffrey A. Singer: Well, actually, Professor Dan Ciccarone at UC San Francisco Medical School, he's an addiction specialist. He has been doing a lot of research for the NIH. It is a project called The Heroin in Transition project, where they're actually interviewing intravenous heroin users on the street. What he reported was that most IV drug users prefer heroin. That's a completely different feeling you get. To quote him, he spoke at Cato conference, I'm paraphrasing now that he said, "Heroin is warm and fuzzy, whereas fentanyl is bold and brash."

Most people seek heroin, I mentioned before the iron law of prohibition and then exacerbated by the border restrictions, it's gradually become more economical for the cartels to supply the market with fentanyl. And now, over time, some heroin users have just gotten used to using fentanyl instead, but most of them, if you gave them a choice, they prefer heroin and they'd like to know if there's fentanyl and heroin, because they want to adjust their dose accordingly.

Another interesting phenomenon, and this I learned recently from somebody here in Arizona, who runs a Harm Reduction Organization, that a lot of the fentanyl coming across the border here in Arizona and probably in California is in a pill form now. They're making them as pills. They used to come more in powder or mixed in with heroin so they can make the heroin more potent and smuggle in smaller sizes. A lot of the drug users find that it's not very easy for them to make those pills into an injectable form. So, they've gone to smoking them. In fact, this person I spoke to operates a needle exchange program and she says, "We need fewer needles and more safe smoking equipment, because the users tend to share glass pipes that are cracked, and they give each other cuts, and spread infection."

But on the other hand, from a doctor's perspective, it's actually safer to smoke it, because usually you calibrate the dose you get to the desired effect. When you take it, take a couple of ventilations and when you reach the desired level of effect, you stop. Whereas when you inject, it's all in you. If it's more than you needed, it's too late.

The COVID Shift: When Fentanyl Started Coming from Mexico

Bob Zadek: Now, David, in the relationship between the influx of fentanyl through all say the southern border, I suppose that's the more active place. If you were to chart out the influx, was it at one time heavier and enforcement made it less likely to occur, because the likelihood of getting caught was greater? Or was the alleged flow of fentanyl through the southern border never very much and the fear that's flowing through this open spigot was that manufactured? So, tell us if you will, by quantity, a brief history of the relationship between the flow of fentanyl over time.

David J. Bier: About five or six years ago, most of the fentanyl that was coming into the country seemed to be coming in from China through the mail. China really cracked down on fentanyl production and its country made it more difficult. So, supply shifted directly to Mexico and really ramped up since then, because it was easier to shift bulk for Mexico than it was to bring it in through the mail. It seemed that had an effect on shifting the market. And so, we saw every year from 2015 to this last year, increasing rates of fentanyl being intercepted at the border. Again, 90% of it at the illegal crossing points, maybe 10% or so coming across the border illegally, but both heading north every year.

“We saw deaths from fentanyl double from 2019 to 2021, when this policy of restricting immigration started, as a result of this shift in the market.” – David Bier

But in 2020, there was a fundamental shift and it happened at almost immediately, April, May, June, July of that year, when basically illegal immigration plummeted at the beginning of the pandemic. The South American, Central American countries had locked down their populations. There was very little movement. There are no jobs in the United States to go to. So, illegal immigration was almost eliminated in May of 2020. But the flow of drugs didn't stop. Obviously, people are still demanding drugs. They had also at the same time restricted legal entry, only what they deemed essential travel was permitted from Mexico into the United States. As a consequence, legal crossings plummeted as well.

What the cartels did is they shifted overwhelmingly to using fentanyl and supplying fentanyl, because they could supply the same market with 50 fewer trips and that's a very powerful economic incentive. It happened at the same time that illegal immigration plummeted. We saw deaths from 2019 when this policy of restricting immigration started until 2021, deaths from fentanyl double tragically as a result of this shift in the market.

What Counts as Essential Immigration?

Bob Zadek: David, you're an immigration expert. So, it's appropriate for me to ask you this question. In your last comment a moment ago, you mentioned that there came a time that immigration was restricted only to, and here comes the word, essential immigration. Now, I perked up when I heard that. I had an immediate PTSD flashback to the COVID epidemic. And all of a sudden, the only stores that could be opened were those providing essential services. Essential became this word to hide behind in imposing irrational governmental restrictions and policies. And as you said it, David, I said to myself, "What in the world qualifies as essential immigration?" I must ask you that because I can't answer the question myself. Essential to the immigrant, or essential to the country, or essential to what exactly? And share with us, if you will, what could possibly be the standards by which essential immigration is measured?

David J. Bier: Yeah, at the end of the day, it really just came down to- noneconomic migration was basically prohibited. If you were coming to visit a family member, or to wine and dine in San Diego, or see a wedding, or any normal activities that people would have engaged in before this was banned. Of course, seeking asylum in the United States was deemed non-essential to even those people who might die if they couldn't cross the border. So, they eliminated about 75% of all the entries at the Southwest border over that summer. And that's when the fentanyl trafficking really picked up because it was much more difficult to bring in the same quantity of heroin as in the past. But ultimately, the market found a way to supply the same users as before. It was just a different substance and it had pretty tragic consequences, because no one was prepared for that shift in the marketplace.

The Tragedy of Shifting Demand to Fentanyl

Jeffrey A. Singer: Now that those restrictions have been lifted, it's not as if the cartel's going to go back to, "Oh, good. Now, we can start moving heroin across the border," because they've learned that it's much more economical for them to move fentanyl. And even though many users in the United States might prefer heroin, they've gotten accustomed to using fentanyl. If you gave them a choice, they may choose the heroin over the fentanyl, but fentanyl, at this point they've just adjusted to it.

Bob Zadek: Now, perhaps, a naïve question. Is so much of the fentanyl imported, brought across the border illegally, because if you try to manufacture it in the US, you're likely to get caught or is it because it's cheaper to manufacture outside the US? Why is fentanyl not like moonshine just grown in the hollows or manufactured in the hollows? Why imported versus manufactured in the US?

Jeffrey A. Singer: Well, first of all, of course, illicit fentanyl is manufactured in the US. There are pharmaceutical companies that make fentanyl for use in a hospital in the medical setting. And the Drug Enforcement Administration sets quotas on how much of every single category of painkiller of controlled substance whether it's fentanyl, or morphine, or oxycodone, they actually are charged with having to decide for the next year just how much of every single one of these things. The United States with a population of 330 million people will be needing that year and they tell each company this is how much you can make that year, which of course is an impossible thing to be able to figure out. But it's obviously easier to make more cheaply and out of the view of law enforcement outside of this country and you can cobble together the ingredients you need to make it there.

Bob Zadek: So, Jeff, that sounds like a counterproductive policy. I'm sure it is. But the somewhat obvious question is, if that limitation were not imposed, if the government did not limit how much could be manufactured creating an artificial shortage by governmental action. Do you imagine that the amount of imported fentanyl across the border would diminish?

Jeffrey A. Singer: No.

Bob Zadek: So, there is no relationship between- [crosstalk]

Jeffrey A. Singer: No, I was just saying that it is made in United States, the illicit fentanyl.

Bob Zadek: Then why import it?

Jeffrey A. Singer: The same reason that methamphetamine which is by the way a legal drug that's made in the United States, it's used to treat ADHD. The brand name is Desoxyn. But methamphetamine is made in meth labs mostly in Mexico now. Originally, there were a lot of local domestic meth labs, but it's easy to do it out of the purview, out of the sight of law enforcement when you go south of the border or not necessarily even southward – elsewhere, outside of the country offshore, because otherwise, law enforcement is always trying to surveil you. So, it's for that reason that it's been driven out of this country.

The Need to Manufacture an Illegal Immigration Crisis

Bob Zadek: Now, David, Is there any relationship between what we do at the border, what our policy is as a nation on and on the quantity of fentanyl that ends up on the streets? I started my show by inquiring into the link, if any, between immigration and fentanyl. Many of the public and a lot of policy makers would have us believe there's a relationship. Is there any relationship whatsoever or is fentanyl merely being used as another argument to support restrictive drug policy, but in reality, it's a false argument?

David J. Bier: Yes, it's absolutely a false argument. We already mentioned examples of how border policy can make the problem worse. Restricting it to essential travel, reduce the number of crossings which made it more likely that fentanyl would be smuggled. But the reality is that 86% of drug traffickers who are convicted are US citizens. And that statistic is people poo-poo that and they say, "Well, the immigrants all get away with it." I laugh. There aren't magical immigrants out there. If there was some way to get away with it, you’d see US citizens crossing the border illegally with fentanyl rather than trying to smuggle it through a port of entry, if it was so easy to do that and they're not.

I think it's people who are so committed to making this tie and wanting to impose restrictive immigration policies that they're willing to latch on to this argument to make it more serious. It doesn't seem very serious to people. If someone comes across the border and takes a job at a farm and picks fruit to supply the US market, that doesn't seem like a crisis that justifies radical action against immigration. And so, people have to come up with this fentanyl tie in in order to make people upset about people who are trying to help this country, produce more things, and bring down inflation, and accomplish a lot for this nation. And yet, they latch on to this unrelated phenomenon largely driven by US consumers, traffic by US citizens. Yeah, it's fear mongering and it's based on really an incomplete picture or an absence of knowledge about the facts of the situation.

“If we had actual open borders, we would not have a Fentanyl crisis. It wouldn't exist. There was no natural demand for it initially and it only exists as a method to avoid being intercepted at the US border.” – David Bier

Jeffrey A. Singer: What's driving the fentanyl is the market. There's a demand for drugs and we have drug prohibition. So, the demand is going to be met through the black market rather than through the legal market, period. Now, the only way that immigration ties in is that restrictive immigration activates the iron law of prohibition. Were it not for such restrictive immigration, perhaps fentanyl would not have emerged as a practical substitute for heroin. The tighter we make the immigration, the more we're giving an incentive for the drug makers and dealers to try to come up with something that they could even make in smaller quantities and get much more economic value for smuggling. So, in that respect, our current restrictive immigration policy is stimulating the development of drugs like fentanyl or even stronger drugs.

Bob Zadek: Oh, that's such an interesting link that you pointed out, Jeff.

David J. Bier: If we had actual open borders, we would not have a fentanyl crisis. It wouldn't exist. There was no natural demand for it initially and it only exists as a method to avoid being intercepted at the US border.

A Case Study in Unintended Consequences

Bob Zadek: David, it seems to me that those who oppose a more liberal immigration policy reach into their toolbox and they raise as many arguments as they can, none accurate. For example, we all have heard, "They take our jobs." How absurd is that? That's one argument.

Another argument is, "They create more crime." We know that's not true. Another argument is they dilute American culture. I hate that argument more than others. There's this litany of all fake arguments. Is fentanyl just another one in a series of bad arguments used to justify a policy that cannot otherwise be justified on the merits or is there any truth at all to the fentanyl or is it proper to lump it up with all the other phony arguments against immigration?

David J. Bier: Oh, it's even more phony than the others, because the restrictive immigration policy as we mentioned makes the problem worse. They're actually making the situation that they claim they want to solve even worse by restricting immigration. It's even more absurd and inaccurate than those other ones that you listed. At least restricting immigration, I don't even know what the good comparison would be. But this idea that fentanyl is a reason to restrict immigration makes no sense. It's not logical. And at the end of the day, if you want to clean the slate of border patrol, so they can surveil every hour of every minute, let people come into the country legally. But they don't want that policy. They don't want people to check in and cross the border illegally and come in and contribute to this country.

Bob Zadek: The hardest question I have, I'm speaking personally now about those who oppose immigration or more liberal immigration policy, is there one identifiable group, some unifying factor that describes why so many people are appeared to be opposed to a humane, rational, liberal immigration policy? To be sure, unions have an interest appear to be protecting American jobs. It's fake, but they have it. But that's a clear, defined economic interest. But the opposition and I'm really asking you deep question, David. The opposition is broader than just union members. Is it simply a question of Bootleggers and Baptists, a whole bunch of disparate groups find this unifying issue of open borders, or can you identify the source of all of the energy against immigration, or is there simply a whole bunch of separate sources?

David J. Bier: Well, I think there are a lot of separate sources, but I do think the unifying energy is in the chaotic images that cable news and social media spread. It looks like these people are criminals. They're sneaking across the border. They're evading Border Patrol and law enforcement. That doesn't seem like a good thing. It's not a good thing, but the reaction should be that we should be have a policy where people get vetted before they come, they fly on a visa, they get on a plane, they answer like anyone else, they go to a job legally where they're not paid under the table, and they can contribute like anyone else to this country. Not to close the border and crack down even harder, which only creates even more chaos, and more smuggling, and more problems with law enforcement and government spending.

There are so many stories. I see stories every single day where I think that's a real story that's government is spending how much money on people who crossed the border illegally, but it's only because they had to cross the border illegally that were spending this money. And so, people get outraged when they see stories like we're spending $10 billion to house illegal immigrants who just crossed the border. And it's only because they crossed the border illegally that we're spending this money. And so, it's really a self-reinforcing phenomenon. We start with the restrictive policy, it has chaotic elements, we waste a lot of money, people get mad about it, and then they want more restrictive policy rather than curing the problem by focusing on the underlying immigration issue.

What part of illegal immigration do you oppose?

Bob Zadek: The way I like to explain it, if I'm having a chat with somebody who says the platitude, "I oppose illegal immigration," well, that's a tough one. Okay. I oppose illegal immigration. My retort is, do you oppose the illegal part or the immigrant part? If you oppose the illegal part, in other words, once you change the law, then you're there with a basket of doughnuts as they cross the border, because you're now welcoming them, because they just became legal? Or is it the immigrant part that you oppose and you use in defense of your position the fact that it's illegal? You have just expanded upon, I think, that issue.

People take refuge in the fact they're breaking the law. Well, they're breaking the law, because the law that tries to alter natural human behavior that doesn't hurt anybody, those laws will always be broken, because they are contrary to the nature of humans. I think that seems to be your answer that there isn't one cabal. Not one unifying anti-immigrant party that simply is looking for a whole lot of arguments to justify that position. Everybody has a different reason, perhaps because it's so easy, "Hey, it's illegal and that's why I oppose it." That's why they select that.

Now, Jeff, you studied the fentanyl crisis and more broadly, the opioid crisis. We've talked about it on my show many times. Do you say to yourself or to your readers or to those in the audience when you speak, do you point to immigration policy? Does it come up as one of the elements of your discussion of the fentanyl crisis as--? If immigration policy is fixed, then what I'm here to speaking about yourself declines in significance?

Jeffrey A. Singer: No, actually, I don't. To me, immigration is beside the point. Although, like I said, a little bit ago, that restrictive immigration may help fuel the development of more potent forms of drugs to be smuggled. But really the drug overdose problem- I consider it, by the way, it's a drug overdose problem, not a drug problem. It’s also maybe an HIV and hepatitis problem. At bottom, it's really a prohibition problem. Is prohibition that makes all of this dangerous? When we had alcohol prohibition, we had people dying from drinking denatured alcohol and tainted alcohol. We had the development of be gangsters and gang wars. It's the same thing all over again.

Alcohol, it is a very dangerous drug. Actually, pharmacologically speaking, it's much more dangerous than opioids. Opioids don't cause cirrhosis, heart damage, brain damage, or cancer, but alcohol does. And yet, when it was made legal, it's made so much more safe, because you could go into a store, you could see on the bottle what the ingredients are. There's recourse if the manufacturer was lying and it was a higher strength of alcohol or it had impurities in it. So, the whole overdose crisis is a direct result of drug prohibition. And all these other issues are basically exercises in deflection that tried to deflect the blame.

“The whole overdose crisis is a direct result of drug prohibition.”

We said in Washington Post article a few weeks ago, first, they were blaming the doctors and the pharmaceutical companies for causing the overdose crisis. And then when it became fentanyl coming across the border, they're blaming illegal immigrants and a porous border. But that's not going to fix it either. You could build an entire wall around this country just look for something much more potent than fentanyl to emerge very quickly. It's all about prohibition.

Bob Zadek: What I have learned from you, Jeff, and I'd like the audience to learn from you as I have, is that part of the health problem, the fentanyl-related deaths in this country is in part because with legal fentanyl manufactured under the controls that our country imposes upon the manufacture and the labeling, very important component, and the labeling of fentanyl as to what it is and the potency, when you have legal fentanyl, the user will be able to make a more informed decision including quantity.

The issue is not to make it more convenient to be addicted or to abuse the product but simply as you had said, the phrase I learned from you quite a while ago, "harm reduction." That by opening up the marketplace to creating the demand, we talked about earlier, for fentanyl which cannot be satisfied with the drug manufactured under the proper controls. You bring in unlabeled who only manufactured fentanyl which means the user is uninformed and cannot control the quantity as much. Explain for a bit as you have for me so many times the relationship when the street is forced to use imported, it could be domestic with but as you pointed out, imported black market fentanyl manufacturing without controls, how that plays out in the abuse and death of fentanyl users?

Jeffrey A. Singer: Well, because it's on the black market, that's what makes it dangerous. You could see what's happened in a number of states now when they legalized marijuana recreationally and there are actually stores you can go into. So, just like nowadays in a liquor store, if you want to talk to the proprietor and ask them about how much alcohol is in this particular product and you could ask all sorts of questions, well, if you go into a marijuana store, you could go up to somebody behind the counter and say, and I've seen this, where you can say, "Look, I'm a lightweight. I haven't really used marijuana in 40 years. So, consider me a beginner. What do you recommend I buy here?" And they'll say, "Okay, well, let me take you over to this case over here. This is very mild, lower THC concentration." And they actually will give you advice on how to use it. That's what happens when things are legal. Then, people can openly share information with one another, they could make arrangements like we all do with- For example, if you're going to be going to a party and you're planning to drink heavily, so you get a designated driver or you call an Uber to get home rather than driving, these are all forms of harm reduction.

Basically, harm reduction is nonjudgmental. The idea behind it is that regardless of whether or not I approve of your choices, I want to see your choices do less harm to you. As a doctor, I say to a lot of my colleagues, you may not realize this, but in an affluent developed country like United States, the overwhelming majority of things that we do is practice harm reduction. If you have a patient who has high blood pressure, mild diabetes, high cholesterol, they're heading down the highway towards a major heart attack, or something like that and you tell them, "If I can get you on a diet and exercise program, get your weight down, and get your blood pressure under control, get your cholesterol down, you won't even need anything for your diabetes." And the person says, "Yeah, I know, but I can't. I love to eat. I hate to exercise. I know I'll stay on any diet for a couple of weeks and then I'll start to revert back to my habits." So, what do you do? You prescribe a blood pressure pill and a drug to keep their blood sugar under better control like metformin and a statin drug to lower their cholesterol. Well, what you're doing is you're practicing harm reduction. I'm not necessarily approving of your lifestyle choices, but I can't control your lifestyle choices and I also have no right to. So, let me do what I can to make it less likely that you're going to harm yourself by continuing to live your life this way. That's what harm reduction is.

The people in this country, particularly you see on cable news who are decrying the overdose crisis and they say 100,000 people died of overdoses this year, the biggest ever, another record. It's going to be a bigger one next year. It's continuing to grow. Well. If you don't want people to die, then you should allow groups to give out things like clean syringes and needles. Obviously, you should legalize drugs. But if you're not going to do that, at least allow people to give out clean needles and syringes, to allow doctors to prescribe methadone directly to patients instead of having to go to prison like clinics. There are a whole host of harm reduction measures that are prohibited by laws in this country, because the lawmakers say, "I don't want to be seen as enabling or endorsing your choice." But really that's not what you should be concerned about. You should be concerned about that these people are dying. And so, that's where the efforts should be placed.

Fixing Our Failed-immigration-policy

Bob Zadek: Now, David, we have only a few minutes left. So, it's time for me to ask the most provocative question of the century, which would take you about a semester to answer. That's my usual trap that I do with guests. I'll try not to do that. But, David, the immigration policy in this country is, looking at the past, unsolvable. Congress is unable to act, deferring to the president using alleged executive powers. Now at Cato, you publish so much valuable information about what's wrong with immigration policy. Now, what is the low hanging fruit? The somewhat attainable changes that you can see so that our listeners, when they understand the contribution to the fentanyl problem and to a lot of the country's ills, it's almost a hyphenated word "failed-immigration-policy". What are the some of the easy solutions that are attainable that you would recommend that we focus on?

David J. Bier: If I could tell you what is attainable, then I would be a very, very-- [crosstalk]

Bob Zadek: You'll be a guest on my show.

David J. Bier: Look, there's problems all along the immigration spectrum. The physician shortage in the United States is severe. Everyone knows it, everyone agrees on it. This should be something that Congress should be able to take care of it. It ties into the health care crisis, mental health crisis in the United States. We do nothing about it year after year after year. We have the same number of green cards for employer sponsored immigrants that we had in 1990, over 30 years ago, we're using the same cap on employer sponsored immigrants, which includes everything from geniuses to physicians, all along the spectrum. There is no way to get into this country and contribute in a meaningful way. The United States has half as many physicians per capita as most developed countries. It's a consequence of our outdated immigration laws, also our licensure laws at the state level. Jeff can speak more to that.

I think the healthcare workforce issues on immigration should be something that every American cares about. It should be easy for Congress to address. If you look at it, it's not just physicians, it's also nurses that we have a need for. We have no work visa that enables nurses to enter right away. They're not eligible for the H1B visa. They are only eligible if they get a green card right away, which is a great disincentive for employers to sponsor people, because that process is so costly and the nurse can leave immediately after they've been hired. Some hospitals, they still do it. They'll go through that process, even though they know the nurse can leave them right away. But it's a big disincentive to getting people into the country when you have that kind of process.

Healthcare physicians all the way down to home health aides, a desperate need. We're an aging population, we need to get that done. At the border, unfortunately, we were not anywhere close to a consensus about how to handle that, but we need to work out a deal at least with Mexico on some guest workers who can come in and work in some of these open positions in the United States without having to cross the border illegally. The situation is untenable. We can't keep filling jobs in this country by letting people cross the Rio Grande and have a thousand die every year.

Bob Zadek: And what you just proposed as a course, a starting point, what I found in your solution doctors, nurses, guest workers is there are no victims of that policy. There is no group who will feel threatened by that type of proposal. So, to hope for widespread immigration reform, it's unattainable. But taking the shots one at a time and just going for, as I said, the low hanging fruit, it's so easy to obtain. And once you do, we get used to incrementally a more enlightened immigration policy.

I'll close by pointing out to our listeners that I use the phrase, we all use the phrase immigration reform. Rhetorical question. Did you ever notice that whenever we use the word "reform in public policy," what we are reforming is another policy? It's a bad policy that creates the reform business. How about not messing up to begin with and then there's less to reform?

That's for another show, another day. Thank you so much, David Bier and Dr. Jeff Singer, for sharing with us your thoughts on fentanyl and its relationship, if any, to the open borders, if they are in fact open, which they probably are not. They're just chaotic and most of equal importance. Thanks so much to your wonderful colleagues at the Cato Institute for all of the wonderful work they do. Every time I read a blog or open up a publication from Cato, I can't help but feel smarter and more informed. So, thank you so much, my friends, and thank you to Cato, and thank you to my listeners to giving us that hour of your valuable time. I hope you have found it worthwhile. Thanks so much.

This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.bobzadek.com/subscribe

When things aren’t going well, people always look for a scapegoat. When it comes to the opioid epidemic, the CDC’s preferred scapegoat has been pharmaceutical companies. Meanwhile, the DEA blames doctors for over-prescribing pain medication, and has tightened regulations on the quantity that can be prescribed. As we’ve learned from Dr. Jeffrey Singer over the years, the crackdown on prescription opioids has missed the mark and made the problem worse: addicted patients have turned to the black market to satisfy their demand, and gotten hooked on far more dangerous drugs like illicit heroin and synthetic Fentanyl. Singer calls the misguided war on opioids a “war on pain patients” with no end in sight.

More recently, Republican politicians have tried to score points against the Biden administration by scapegoating illegal immigrants for the problem of Fentanyl smuggling. Smuggling has indeed increased. However, a Washington Post op-ed by Cato scholars Singer and David Bier (associate director of immigration studies) reveals the folly of the Republicans’ accusations. Illegal immigrants are not the ones bringing Fentanyl across the border, they note. It’s mostly US citizens doing the smuggling. Ever since border enforcement has tightened, it has become more common for smugglers to conceal small amounts of the much more potent Fentanyl in otherwise legal border crossings.

David and Jeff join the show of ideas to discuss the inevitable unintended consequences of both the war on drugs and the war on immigrants. We will investigate the issue from the angle of the failure of drug prohibition, as well as the failure of strict immigration policy. Both of these problems share a common root cause – they seek to interfere with free markets. The laws of supply and demand don’t stop functioning just because an artificial legal boundary is erected – whether you’re talking about drugs or people.

The solution is simpler than you think – but first, we must assign the blame correctly. Will politicians examine their own role in creating the crisis, or will they continue to scapegoat innocent people?

This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.bobzadek.com/subscribe

The essence of democracy is that voters pick their leaders. In America today, our leaders get to pick their voters as a result of the pernicious practice of gerrymandering. Gerrymandering has a fascinating history and has become a major threat to majority rule. Even worse, it seems to defy any solution. Or does it?

Nick Seabrook, the author of just published One Person, One Vote, recently joined me to discuss the history, the problems, and the solution for gerrymandering before it is too late.

Nick is a Professor of Political Science and Public Administration at the University of North Florida. His book was recently named one of the best books of the year by The New Yorker – an honor which is well-deserved.

Every student of American democracy should read the book. If you don’t have time, read the key concepts and transcript below:

TRANSCRIPT

Bob Zadek: Nick, welcome to the show.

Nick Seabrook: Thank you, Bob. It's great to be here.

What is the Threat of Gerrymandering?

Bob Zadek: Now, we'll discuss in the course of discussing the history, where this funny-sounding word came from, which itself has a rich history. But tell us first, what gerrymandering is and how it takes place. And in doing so, tell us in broad strokes, is it a threat to democracy?

Nick Seabrook: Gerrymandering refers to the practice where the people who are responsible for drawing the districts in which candidates will run – in which campaigns will be conducted, in which voters will elect their representatives in government – manipulate the drawing and the boundaries of those districts in order to achieve their preferred political outcome.

Often, not surprisingly, their preferred political outcome is that they themselves get reelected along with their cronies in the legislature. But gerrymandering is also often used by the party that is in power to keep their majority – to guarantee that however the people end up voting in subsequent elections (whether it's for them or against them) they get to stay in power. They get to continue to implement their policy agenda without having to worry about whether that agenda is popular with the constituents that they are supposed to represent.

Bob Zadek: You use the phrase, 'districts'. Now, help us understand, in the mechanics of democracy, the purpose of districts. I will start off the conversation by suggesting the theoretical purpose of districts is so that a representative knows who he or she is representing and so that we get representatives representing relatively small units of society so that the specific goals of a small segment can be represented in Congress. It's designed to make sure that each segment has its person in office so that the representative knows what his electorate or her electorate expects of them and the electorate can operate as one to pick the right representative. So, I think it's fair to say that the whole concept of districts is to give a vote more meaning. Is that a reasonable starting point?

Nick Seabrook: Yeah, I think that's a very good way to think about it. There are essentially two ways that you can structure a representative democracy, where the people have a voice in who represents them in government. You can have some kind of proportional representation system, where instead of voting for a specific candidate, you're voting for a political party, whose agenda you presumably support. Based on the results of the election, a certain number of representatives from that party and usually, they'll have a list that's prepared ahead of the election, however many seats they win, the first x names on that list become members of the legislature. 

But as you point out, in such a system, there's no fundamental connection between you, and your community, and your neighborhood, and the identity of the person who is representing your interests in government, which is why a lot of countries – including the United States – use districts as a mechanism for forging a greater link between politicians and their voters. So, you divide the jurisdiction into a certain number of discrete geographical units corresponding to voters who have a shared identity, who live in a common community, who have a consensus of interest and opinions. The job of that elected representative is to serve their constituents, to pay attention to what the people they represent would like to happen, and to vote accordingly in the legislature. 

A lot of the antidemocratic effects of gerrymandering stems from the fact that it either disrupts or sometimes severs that link between elected representatives and the people who they are supposed to represent.

The Rotten Borough

Bob Zadek: Okay, you said it perfectly – there is a connection between the elected official and those who elected them. The elected official knows what the people who elected him expect of him or her based upon the geography, where they live, their demographics, and the like. A wonderful place to start.

I guess we would have imagined that going back to when districts are first drawn, first, you have the state of New York and somebody says, "Let's make it into districts." You quite naturally look for natural boundaries and you look for commonality of the ethnicity, perhaps economic status, and cities as a unit, and you try to combine people who had something in common into a district. In the pure sense of the word, it never happened. But as a starting point, they sit down with a feather with a point on it and so they think and they start to draw stuff on a map, they're trying to make districts that the people in the district have a lot in common. Is that how districts would have started, if in Adams's words, all men were in fact angels?

Nick Seabrook: Yes, I think that is the Platonic ideal of how a district-based system of political representation is supposed to function.

In the book, I trace the origins of gerrymandering all the way back to before the United States back into the mists of English political history to the creation of the Parliament of England after the Magna Carta. The Magna Carta, of course, was a negotiated settlement between the British monarchy and the groups who had attempted to overthrow it in order to provide some kind of modicum of check and democratic representation into the British system. But what it turned out to be is a veneer of democracy that was grafted onto a system that still allowed the aristocracy and the elites to dictate policy and politics. And they did so by configuring the districts in such a way that they could keep control of the levers of power. 

The earliest manifestations of something that looks a lot like modern gerrymandering is in this British tradition of the so-called rotten borough, which fairly quickly came about as soon as districts started to be used in British politics. The districts would be configured in such a way that it included a very small number of inhabitants. The districts were, in some cases, sufficiently small – less than a dozen voters – that the landowners, the aristocrats were able to use bribery and patronage to essentially bribe their constituents into electing candidates of their choice. 

While this has been the ideal of a district-based system, I would certainly say that as long as we have had districts, we have had those in power manipulating districts in order to keep that power, that's been something that has occurred all the way back throughout US history back into British history. It would be nice if we could move closer to the connection between politicians and their constituencies. But gerrymandering has always been the tool by which politicians try to push back against those demographic checks and democratic checks.

The Infamous Gerry-Mander of 1812

Bob Zadek: Our founders certainly studied with a passion, with diligence, with intensity the political history of the world as they sat down to create the foundation, the two-by-fours of our country. They knew British history quite well. Now the standings are the rotten borough system that developed in England would they had to have been aware of, of course. They designed a system of districts, which was susceptible to the same – I'll say corruption, but corruption is perhaps too strong. Gaming the system is better, because corruption doesn't really nail it. So, we'll say gaming the system. They were aware of the ability of those who aspire to stay in office of being able to game the system. Did they attempt to draft away – whether in the Constitution, in statutes or behavior – any of those evils, or did they just assume it came with the product of democracy?

Nick Seabrook: I think they did take steps to try and address some of the problems that they had identified in the British system and the British Parliament. But the problem with gerrymandering is that it's a many-headed monster. As soon as you cut one of those heads off, because politicians are strategic and they can come up with creative solutions to these problems, immediately, another head pops up and you're playing whack-a-mole with whatever the latest technique that's being used to gerrymander and to manipulate district.

There were a couple of things that the framer’s did in the Constitution – most notably was the allocation of seats in the House of Representatives between states on the basis of population guarantee to ensure that representation in Congress would be based not on patronage necessarily or on the rotten borough type system from the UK, but a system where each state would receive a number of seats that was proportional to the number of people who lived there. There was also early legislation passed by Congress, which said that these members of Congress had to be elected from districts and that these districts, instead of being drawn in the rotten borough style, should be configured so that they had roughly equal numbers of inhabitants. But that then led to the early gerrymandering that we saw in the wake of the Constitution – most famously, the example from which the practice gained its name – from the governor of Massachusetts, Elbridge Gerry.

There was a lot more to the story that I discovered when I was researching the book than I had anticipated. But the common origin story of gerrymandering is that this governor of Massachusetts, Elbridge Gerry, was attempting to consolidate his own power over the state. He was worried about the Federalists and the fact that the State Senate was thwarting his legislative agenda. And so, he drew the boundaries of the state senate districts in Essex County, in order to ensure that the maximum number of Democratic-Republican candidates would be elected. He did so not by manipulating the populations of the districts and placing a lot more people in this one and a lot fewer people in that one. He did so by instead manipulating who lived in particular districts. He found that by packing as many Federalists as possible into a single district in Essex County, where they represented an overwhelming majority of the population, that would allow his political party, the Democratic-Republicans to win all of the other districts in the area.

That is one of the most common techniques in gerrymandering, known as packing, where you reduce the influence of your opponents by cramming them together into as few districts as possible, where they make up massive super majorities and that then allows you to win the rest of the seats by smaller majorities. I would say that, yes, the framers did try to create a system that would not be as susceptible to the same kinds of manipulations that were present in the British system. But in so doing, they opened the door to a different gerrymandering, one that can operate even when the populations of districts are approximately equal.

Bob Zadek: There is a gerrymandering issue that I don't believe you discussed in your book. None of your reviewers have caught you, but I'll put it to you now. The name of the governor of Massachusetts is Elbridge Gerry (with a hard G). He was an interesting fellow. He was one of the three representatives in the Continental Congress who refused to sign the Constitution. He didn't like it. That's not my point. It's just a slight footnote. My point is, his name is Elbridge Gerry (with a hard G). Now, the process we're talking about is called gerrymandering. Shouldn't it be gerrymandering (with a hard G)? I'm not going to ask you to explain why everybody reads that word as 'gerrymandering', even though the guy's name is Gerry (with a hard G) and not Gerry. But that's a question which is 100% rhetorical. Your next book, maybe you can discuss that.

Tell us about the 'mandering.' It's just an interesting story. The word was invented around 1812 by, I believe a reporter, a newspaper reporter at the time, but why the “mandering” in gerrymandering?

Nick Seabrook: Well, on the question of the pronunciation, this was actually something that I looked into for the book, because not just the term 'gerrymandering', but indeed Elbridge Gerry's last name is something that is often mispronounced by people. When the term was first coined, it was in fact pronounced gerrymandering (with a hard G). And so, I looked back to see if I could find any historical references to the pronunciation of the word, which is obviously difficult to do, because this was an era where we don't have recordings of people pronouncing things. But I did find an obscure reference in the transcripts of the Indiana state constitutional convention from the mid-19th century. There was a reference by one of the delegates while they were considering a proposed amendment that would have banned gerrymandering in the state of Indiana as part of their constitution. 

One of the delegates during those deliberations turns to one of his opponents on the other side of the aisle and says, "You're constantly gerrymandering the state, or ‘jerrymandering,’ as I maintain it should be pronounced, the G being soft. That was the earliest reference I could find to someone preferring the gerrymandering pronunciation over-- [crosstalk] 

Bob Zadek: Oh, my God, you're my idol, Nick. You're my idol. Now, tell us about the mandering. 

Nick Seabrook: The manner in part of the word stems from a famous cartoon that was published in a newspaper called The Boston Gazette in 1812. Immediately after Governor Gerry unveiled his new state senate map and the legislature started considering it. It was ridiculed by his political opponents in the tabloids as being a naked and transparent power grab. As the story goes, an editor from the Boston Gazette put a map of the districts up on his wall and drew a salamander shape on one particular district that snakes around the border of Essex County. This was the district into which his federalist foes had been packed in order to reduce their political influence.

One of his associates is supposed to have remarked, "Well, it looks like a salamander," and he said, "Well, better say a gerrymander." That was the origin of the term, the cartoon that was published in the newspaper the next day depicting this district as this somewhat sad-looking salamander.

The portmanteau of 'gerry' and 'salamander', which gives us gerrymander became something of a phenomenon in 1812, the cartoon, which had run in the Boston Gazette was reprinted in more than 80 different newspapers across the country in the six months following this original incident in Massachusetts and went viral to the extent that something could be said to do so in 1812. It was the trending topic of the political debates of the time. Within a year in Maryland, the politicians there were being accused by their own local newspaper of gerrymandering, of manipulating the districts in the true gerrymander style. So, it was something that very, very quickly caught on and came to be referenced, not just in Massachusetts, but within a year in other states as well.

Contemporary Gerrymandering

Bob Zadek: Now, fast forward to more contemporary times. We have now a two-party system. Each party has two goals: to retain political power to the extent that they have it and they retain political power by having more members of their representative bodies – by having more of their people in than the other party's team. And since we have a district election system that you have to win the most test districts, not the most votes statewide. It's not a statewide ballot. It's a district-by-district ballot.

Therefore, if you represent a minority of the people, but a majority of the districts, it's your state and not the other guy's state. So, tell us about how the party is in contemporary times, how it's decided, who designs the districts, how often they are designed and redesigned, and how do states retain either their permanent red color or their permanent blue color as a direct result of gerrymandering?

Nick Seabrook: In the book, I distinguish between historical gerrymandering, which was something that certainly happened, but it didn't happen all the time. It was something that politicians did, infrequently, and not especially effectively. The gerrymander from Massachusetts, basically worked for one election, and then the Democratic-Republicans immediately lost their majority in the next election. The map that they had created was swiftly repealed. This is something that recurs frequently in the historical gerrymanders that I analyze in the book that they were not especially effective, largely because the tools that they were using to create them were fairly blunt and fairly ineffective. You could use census data, certainly. But these were times when districts were drawn using pen and paper or Quill and parchment. You're patching together districts from these reams of census statistics and making your best guess about how those districts might vote in the future. 

I distinguish those types of gerrymanders from what I call in the book, the modern era of gerrymandering, which began in the 1960s with a series of Supreme Court decisions that established the constitutional principle of ‘one person, one vote,’ which is, of course, what the book is named after. Those Supreme Court decisions required that all 50 states – after every census – have to redraw all of their districts at every level of government, because those decisions require that those districts have to have almost precisely equal populations in order for everyone's vote to count the same. That development was followed fairly soon thereafter in the 1970s and the 1980s by the first computer software programs that could be used to draw districts much more efficiently, quickly, and effectively than had been possible before. Of course, since then, those tools have only become more sophisticated. 

The politicians of today have access to reams of incredibly granular data on the voting public, and exactly where they live, and their preferences, and their histories. But they also have access to powerful software that is able to simulate how districts will perform in future elections. It's largely because of those tools that gerrymandering today is a very different beast than the kinds of gerrymanders we saw back in 1812, Massachusetts. They can be fine-tuned and tinkered with in such a way that they don't just allow a party to keep its majority for one or sometimes, two elections. They can be figured in such a way that they're robust throughout, sometimes an entire decade. You can have situations, as you say, where a party loses the popular vote overall by a fairly significant amount and is able to maintain its majority, because that was something that they had planned for. 

This was one of the conceivable eventualities that they had anticipated and that they had fine-tuned their gerrymander to be robust in the face of a variety of plausible future scenarios. And that is the state of things as I see it today and that's the reason why I wrote the book, because I think we're at a crossroads where gerrymandering has become a tool that is effective enough that it threatens not just the fairness of democracy, but also whether we can meaningfully say that number of states are ever or even really democratic anymore.

An Intractable Problem?

Bob Zadek: Doesn't that mean, given the art of gerrymandering, that once a party has designed districts that assure their continued success, it's impossible for them to lose that success, because once they are in control, there's no way the other party can gain statewide control? The party may be able to flip a district now and again. But if we say the Democratic Party is in control of Illinois and they continue with that power to draw the districts every 10 years, it's impossible for Illinois to ever become Republican unless the population shift was so profound that there simply weren't enough Democrats to get 51% of enough districts. So, it's permanent-absent some external cure. 

It can't be cured by the operation of the democratic process alone. It'll just never happen. So, that brings us to we have a situation that cannot be fixed in the ballot box, given the software. Whatever the status quo was, when this software was refined, that got baked in, or am I exaggerating, forever, absent some extra democratic solution as in the courts or we'll get to the solutions in a moment. But am I correct so far or am I overstating it?

Nick Seabrook: I certainly think that there are some places where that is true. You mentioned Illinois. The state of Wisconsin is another good example. My home state of Florida is another one. What's notable about places like Florida and Wisconsin is that these are not heavily Republican or heavily Democratic states – somewhere like Illinois, or New York, or California on the Democratic side or some of the red states that you find on the other side. These are purple states. These are states that have been competitive at the national level – that have voted for both Republicans and Democrats for presidents, for Senate, for governor. And yet the districts in their state legislatures have been configured in such a way that as you say, absent a shock to the system, it's essentially impossible without seeing the kind of landslide popular votes that we really don't see anymore in American politics in this era where things are so polarized between Republicans and Democrats. 

It will take something like the opposition party's candidate winning the election and being Governor at the time of the next redistricting, so that they might be in a position to veto the map that the legislature creates to try and roll back that gerrymander for a second decade. It may be that the state Supreme Court exercises checks and balances over the legislature and maybe strikes down an extreme partisan gerrymander as a violation of the state constitution. We saw that happen, for instance, in New York, where the Democrats in the legislature tried to gerrymander New York's congressional districts to ensure that they would win the vast majority of those seats. And the New York judiciary fought back and struck down that plan and replaced it with a new map that was considerably more fair. 

But those external shocks don't always happen. You don't always get a governor elected from the opposition at the time of gerrymandering, who can exercise that check. You don't always have a state Supreme Court that is willing to exercise judicial review. You don't always have the option of citizens putting initiatives on the ballot to try and reform the system as happened in Michigan. And for states like Wisconsin, that is my concern that gerrymandering is something that can be used to effectively install a political party into a permanent single-party rule in the legislature. And once that happens, absent one of those external shocks, it's extremely difficult to break that control. When the problem is the subversion of democracy, you can't vote your way out of that problem.

Bob Zadek: We seem to have concluded that if this problem is to be fixed-- Before I go on, I want to make sure our audience appreciates what the problem is. It's a district-related problem. It doesn't affect presidential elections. It affects the House of Representatives for the most part, but they have a lot of power collectively. The problem is, Illinois could have 60% Democrat and 40% Republican by registered voters. But yet, the political affiliation of the elected officials is much more skewered to the Democrat than 60/40. One would think that in a more perfect world, the political breakdown in the legislature would more or less equal the political party breakdown among the population. But gerrymandering assures that's not going to be the case. So, there's no connection between the political party profile of the population and the profile of their elected officials.

The related problem is that if you are in the minority – you're in California and you happen to be a Republican – then you have been disenfranchised, because you know, as a result of gerrymandering, not as a result of the will of the people, as a result of gerrymandering, you will never have your state. California never represents your point of view. Your choice is to live unrepresented or move to Florida. Those are the choices.

If you don't consider that to be a problem, touch your dial, turn somewhere else, listen to a different podcast.

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The Solution: Remove Politicians from the Process

So, Nick, where might the voters look in the hope of finding a solution? Where would the solution come from, if not from the legislature, who would have to be voting against their self-interest?

Nick Seabrook: This was a problem as I talked about that was imported to the United States from Great Britain. I think we can also look to Great Britain, to England for our solution, because England did eventually figure out how to fix its problem with gerrymandering. That was to fundamentally restructure the incentives and to avoid the fundamental conflict of interest that you're talking about.

You say, "All men are not angels, politicians are rational actors." If there's some legal way that they can put their thumbs on the scale of democracy in order to keep their jobs, in order to maintain their power, it's unreasonable to expect them not to take advantage of it. 

They've done it throughout US history, whether they were Democrats, Republicans, Whigs, Federalists, Democratic-Republicans – it's happened across every political party and across every ideological persuasion. What the Brits eventually figured out was that the fundamental problem here was the involvement of politicians in this process and that fundamental conflict of interest. Once you removed them from the equation entirely – once you took away their responsibility for drawing districts from the politicians who will then run for reelection in those districts – you ended up with a process that was considerably fairer. 

Now, it's not always going to be perfect. It's not always going to produce results that are perfectly proportional to the breakdown of opinions and partisanship in your state, but when the districts are drawn by some independent entity. The first country to experiment with this was New Zealand in the late 19th century, back when it was still a part of the British colonial empire. They created an entity known as a Boundaries Commission, which was an independent agency separate from the elected branches of the government that had its own independent authority and was staffed by people that were not beholden to the politicians for their positions, who didn't have the same kinds of incentives to favor one side or the other, when it came to the drawing of districts. And that system spread throughout the British Commonwealth to Australia, to Great Britain itself, to Canada. 

Pretty much every other nation that uses districts for its elections has some kind of independent agency, a commission, a government board, something that is independent to some extent of political control and influence, and which doesn't have that fundamental conflict of interest. Whatever that solution looks like, I think the fundamental thing that we have to be doing is simply removing politicians from this process. Politicians can't choose their voters if the politicians are not the ones who are drawing the districts in the first place. 

Bob Zadek: In this country, we have experimented with getting politicians out of the political process about a decade or so ago. In the House of Representatives, they knew they had too many military bases costing too much money, but no congressman who wanted to get reelected could ever vote to close a vase in his or her district, but they had close districts. They appointed an independent commission and Congress by statute said, "We agree to be bound up or down by whatever the commission does." And the commission closed districts, Congress voted, they achieved the result by doing just what Nick had pointed out. Get politicians out of the political process and you succeed. So, we have a successful history of doing that in this country, which gives politicians political cover, because they're voting for a bill in total that closes bases and saves money, so they can't be criticized, but they didn't specifically agree to close a base in their district. It was a pretty interesting solution and it worked perfectly given the goals. 

Now, Nick, a question that I can't really answer for myself. Assuming there was an independent commission and they were told to redesign districts, what would be the test or what would be the standard by which they would design a district? Would they ignore everything and just do geometry and just draw a lot of hexagons in a state and call it a day with the right number of people? If you wanted to do it the right way, what would be your two or three requirements for what makes a district properly drawn?

Nick Seabrook: Well, this I think brings us quite nicely back to the kinds of first principles that we began this discussion with, because when you're starting from scratch in that way, you have the opportunity to emphasize the drawing of districts that do what districts are supposed to be. I think the best way to approach this is, when you have this commission and you're deciding what kinds of instructions you want to give to it, what types of things that you want it to emphasize or deemphasize is to say, when you're going about this, pay no attention to where the incumbents live. Pay no attention to where the district lines may have been gerrymandered to exist before. Pay no attention to the partisanship of the people that you're drawing into one place or another. 

Ask the people in these places, what their community looks like. Ask the people who live in the cities, what the neighborhoods are, and then draw districts that group together citizens, and neighborhoods, and communities that have shared interests, that have a shared culture, whatever variables you're going to include there. I think part of the problem is that we've become entrenched in this churning system, where every 10 years, we tinker with the districts here in order to achieve this political goal, we tinker with the districts over here in order to make sure that this incumbent gets reelected. And over time, those districts get further and further away from the underlying communities that they are supposed to be there to represent. 

I think you wipe the slate clean and I think you say to this independent commission, don't pay attention to politics whatsoever. We're going to have hearings, we're going to hear from members of these communities, and they're going to tell us what the interests are that need to be represented. They're going to tell us what the communities are and then you start building districts from there grouping together neighborhoods and communities that have something in common rather than starting from the opposite direction and saying, "Well, what types of people do I have to cram into this district over here, no matter how different their circumstances might be in order to save my job or in order to ensure that my party gets to keep power?" You go back to those first principles and you draw districts based on what it is that these districts are supposed to be and the role that they are supposed to play in our political system.

Bob Zadek: Now, Nick, I had given gerrymandering a lot of thought. In the few minutes we have left, I'm going to share with you my solution, so you can critique it. I abhor a district being drafted so that a representative can pick their voters obviously. I also happen to abhor the process in the House of Representatives of earmarking of bringing money back to the district, bringing home the pork to get reelected, putting an airport, or road, whatever. Given those principles, my system would be, you do not draw districts on a map. They do not have any geographic identity. But rather, you take the state, you decide how many voters are to be in each district. 

Let's say, it's 400,000 in California, and you decide California has 55 districts. You then randomly throughout the state, take every voter scattered throughout the state and randomly assign them to a district. In effect, there is no place. It's just an arbitrary 400,000 people who have only one thing in common. The computer put them in the same district. And anybody who wants to run for office can run in any district, because there's no in. You just take a district, I'm going to run as a Democratic candidate in the 53rd district, which really means a 400,000 randomly selected voters. That would be my goal. No gerrymandering. 

I say now, Nick, to you as a political scientist, if you were running for office in the 53rd district in California and all you knew was there were 400,000 randomly selected people scattered throughout the state. How would you organize your campaign? What would be your campaign issue? You couldn't pander, you couldn't say, how you feel about abortion, because you don't know if you're in a religious district, or a not religious district. In fact, there is no in. The only way to run for office is to say who you are, what you stand for, and hope 50.1% of the people in your district like it. That would bring all elections into the middle. Primaries don't matter, nothing matters, except that you have to appeal to a majority of the vote without even knowing who they are. Therefore, you just present yourself stark naked. This is who I am, please elect me.

Nick Seabrook: I think that there are both good things and perhaps, downsides to your idea here.

Bob Zadek: We only have time for the good things, Nick. We only- [crosstalk] 

Nick Seabrook: [laughs] The good thing is that it is incredibly fair because it's random.

Bob Zadek: And pure.

Nick Seabrook: There's no way to manipulate things, there's no way to put your thumbs on the scale. I will say that there are likely to be some logistical challenges when you're randomly assigning 400,000 people to a district. Did they still vote in their local polling places? Maybe you have some online voting system that works with that thing? I think my main issue with it is that when you're assigning those districts at random, let's say, using your hypothetical of California. While you may not know precisely who ended up in your randomly selected district, you can be pretty sure in California that any randomly selected district of 400,000 people is likely to have far more Democrats in it than Republicans. If I'm a candidate running in that district, I figured the odds are in my favor. If I run a campaign, that appeals more to Democrats than Republicans, because it's more likely than not that the district I ended up drawing by random is one that has a majority of Democrats.

Bob Zadek: But you use '"more likely than not". Today, it's absolutely true, if you're a Democrat, you will win. Therefore, I removed automatic to more likely than not, which means a bad Democrat candidate will lose to a good Republican candidate under my system. And as you say, logistical issues, Nick, I'm an important guy, I leave that stuff to my staff. 

Nick Seabrook: [laughs] 

The Hope of a Redistricting Commission

Bob Zadek: I don't know where they're going to vote or how. So, I'll leave my hand with those low-level problems. Nick, we have a couple of minutes left. The prospects for the future, are we likely to continue to suffer under your metaphor earlier, under the thumb on the scale of gerrymandering? Is there a reason for hope and what do we have to look forward to in the next five years will say?

Nick Seabrook: Well, I try not to make the conclusion of this book too pessimistic, because while a lot of things are bad right now when it comes to gerrymandering, I do think that there is hope for the future. And that hope comes from the fact that every time you give the people the opportunity to vote on this question – red states, blue states, swing states – they decide that they want to get rid of gerrymandering, whatever the proposed solution might be. In the last few years, we've had redistricting reform measures that have passed in places like New York, in Michigan, and in Utah, red state-- [crosstalk] 

Bob Zadek: California. California has a redistricting commission as well.

Nick Seabrook: Right, exactly. I like the California model, because it's a citizen's commission. You're a fan of random selection. The actual members of the Commission are selected through this application process and then there's a random component to that selection. So, it's impossible- [crosstalk] 

Bob Zadek: Random selection doesn't work, because I applied and they rejected me.

Nick Seabrook: [laughs] But that's the silver lining that I see in this whole debate that momentum seems to be picking up. Congress has debated legislation to require independent commissions for redistricting in the US House of Representatives elections. And more and more states have adopted some form of a redistricting commission or some kind of procedure that tries to constrain the worst impulses of politicians who are conducting this process. So, my hope is that the people are much wiser on this subject than the politicians are.

The Role of the Courts

Bob Zadek: Nick, you discuss in great detail and a beautiful discussion of the role or the absence of the role of the courts. The courts have not been especially effective. They've created a confusing series of cases that are a bit contradictory. A lot of well-known judges have weighed in over the decades. But the Supreme Court tends to avoid what are called political questions. They don't like to wade into the political process deferring to the political process itself – the ballot box and the electoral process. So, they haven't been especially helpful and they're also not helped by the fact that the Constitution gives very little guidance to the minutiae of government.

We have a blank slate and the Supreme Court doesn't have ultimate guidance. If we're going to find help as Nick says, the help is going to come from voters, either from politicians who can put political party below good government, lots of luck. Or, from citizens using perhaps, the proposition process, or the like, or moral suasion to cause there to be a bottom-up change in the system of district drawings that we have now. But right now, drawing of districts has a profound effect on the composition of the lower house usually. So, the help has to come from those of us who had the wisdom to listen to my conversation with Nick. 

I spent the last hour speaking with Nick Seabrook. Nick has written One Person, One Vote, a history, a discussion, and a prognosis for the evil of gerrymandering or, if you will, gerrymandering (with a hard G). Nick, thank you so much for your time. Good luck with your book, which has just been published to, I might add, very wonderful reviews, especially a very recent review in The New Yorker magazine. Congratulations for that. Nick, thank you so much and thank you to my friends out there for giving us generously an hour of your time. 

Nick Seabrook: Thank you, Bob.

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