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Michael Moore in TrumpLand Might Have Been Illegal before Citizens United?—?It’s All Incredibly Complex, and That’s One Problem with Our Campaign Finance Laws

Trevor Burrus

If you’re a politically minded filmmaker, then you should be able to freely make films, advertise them, and try to influence how people think about political issues, right? This is America, after all, and the freedom to try to influence other people’s opinions, especially on vital questions of political importance, is precisely what the First Amendment is supposed to protect. And this has to be doubly true close to an election, especially an election where so much is at stake for the future of our country. Right?

I imagine Michael Moore believes something like the foregoing. The man has dedicated his life to trying to influence the political opinions of others through film, and it would seem absurd to prohibit him from doing that or to require him to register with the government in order to speak about salient political issues. Yet, if Michael Moore’s new surprise film Michael Moore in TrumpLane is distributed in a certain way, he and his company may be required to register with the government and disclose their funding sources. And, before the Citizens United case, the film might have been forbidden entirely. It’s all very unclear, and that’s a huge part of the problem with our modern campaign finance laws.

In order to understand this, or to even get a basic grasp of the issues, we’re going to have to wade into the arcane world of campaign finance regulation, which is more confusing and surreal than you probably imagine. Bear with me.

Who Can “Influence Our Elections”?

People talk about “money” influencing our elections, but what does that mean? The New York Times has a lot of money, and they even specifically endorse candidates, so is that the kind of influence that concerns us? Or movies like Zero Dark Thirty, which is about the killing of Bin Laden and was released during the 2012 election, could be described as “money” influencing an election. After all, it cost $40 million to make, and that doesn’t include the promotion budget. Is that the type of money we’re concerned with?

While the Citizens United decision correctly made it easier for people like Michael Moore to have their opinions heard, our campaign finance laws are still a mess.

Most people would say “no,” but defining the difference between the New York Times, Zero Dark Thirty, and Michael Moore’s Fahrenheit 9/11 is more difficult than you might think. In fact, thousands of lawyers in this country are engaged in trying to figure that out and to help clients avoid run-ins with the Federal Election Commission (FEC).

Have you heard of the Supreme Court case Michael Moore v. FEC, when the Court opened up the floodgates of dark money and allowed for-profit corporations to spend unlimited amounts of money to influence our elections? No, you haven’t, because that case goes by a different name, the infamous Citizens United v. FEC. But Michael Moore and his Dog Eat Dog Films almost ended up as the catalyst for deciding the same issue that the Court would eventually resolve in Citizens United, namely, whether corporations can spend independently to advocate for or against a candidate.

Before Citizens United, corporations and unions were prohibited from independently funding political speech that was for or against candidates for federal office. This meant ads, movies, or anything else that could be considered a “broadcast.” In 2004, David N. Bossie, president of the conservative activist organization Citizens United and current deputy campaign manager for Donald Trump, filed a complaint with the FEC about the movie Fahrenheit 9/11. The ads for the movie, according to the complaint, were prohibited “electioneering communications” — meaning they clearly referred to George W. Bush, a candidate for federal office — that were illegally funded by corporate money.

Citizens United went after the ads for the movie because the ads were “broadcast,” whereas the movie itself would not be broadcast, at least as that term was generally construed. This was a crucial distinction that would be relevant in the later case of Citizens United v. FEC and is still relevant today. Campaign finance laws generally focus on communications that people might encounter accidentally, particularly television and radio ads, because those are seen as a unique threat to our electoral system.

Another complaint was also filed attacking the movie itself, its website, and its affiliated websites. The FEC dismissed the complaints against the movie, the trailers, and website because they were deemed “bona fide commercial activity” rather than campaign speech. Thus, Michael Moore avoided having to fight for his movie in higher courts.

Let’s take a step back. Campaign finance laws are premised on the idea that some types of spending on political speech that influences elections need to be monitored and regulated in order to ensure that candidate bribery isn’t occurring and that our citizens know who is funding certain ads so, presumably, they can make more informed decisions. But the very existence of such a capacious concept as “spending money to influence elections,” coupled with the First Amendment, means that certain groups and certain communications must be exempted from federal oversight. Speech that is political but not specifically election related, for example, is exempt. The press is exempt because a press that must register with the government before criticizing candidates is not a truly free press. And, finally, some entities that produce “bona fide commercial activity,” such as filmmakers, are generally exempt. Nevertheless, it is possible that certain movies could be essentially political endorsements or de facto attack ads, and then the FEC might decide that a filmmaker has gone too far.

Where’s that line? No one exactly knows.

How Can People and Organizations “Influence our Elections”?

Citizens United was emboldened by the FEC’s decision not to go after Michael Moore and Fahrenheit 9/11. As a non-profit corporation that took money from for-profit corporations, they understood the law prohibited corporations from spending independently to advocate for or against federal candidates. But the corporately-funded Fahrenheit 9/11 got a pass, and that was basically a 1.5 hour attack ad. Moreover, it was important that Fahrenheit 9/11 wasn’t broadcast to the general public and that people had to actively and purposefully travel to the theater to see it. That meant that the movie would only be “influencing” people who want to be influenced, which arguably takes it out of the FEC’s purview.

When the 2008 election rolled around and Hillary Clinton, public enemy number one in the eyes Citizens United and David Bossie, was contending for the democratic nomination, they felt they were free to make a Fahrenheit 9/11 of their own — that is, a de facto 1.5 hour attack ad funded by a corporation that was not going to be generally broadcast. So, they made Hillary: The Movie.

But the FEC disagreed. Hillary: The Movie, they said, was essentially an attack ad in a way that Fahrenheit 9/11 wasn’t. They weren’t going to get the “bona fide commercial activity” exemption or any other exemption. Moreover, even though the movie was to be on a video-on-demand service — pay-per-view — this was still a “broadcast” in a way going to a theater wasn’t. Through such subtle distinctions, the FEC determined which organizations were allowed to “influence our elections” and how they were allowed to do it. But, as I said previously, the very existence of our convoluted campaign finance laws necessitates such distinctions.

The Supreme Court Hears Citizens United v. FEC not Michael Moore v. FEC

Citizens United was understandably miffed. Why does Michael Moore get to influence elections and they couldn’t? Was there really that big of difference between Fahrenheit 9/11 and Hillary: The Movie? True, one was made by a better filmmaker and distributed broadly, but do we really think that our freedom to make political movies should hinge on how good of director you can find or how much promotional investment you can raise? That seems just silly, so they took their case to the Supreme Court.

Originally, the Court was asked to decide whether the prohibition on corporate-funded election speech was unconstitutional as applied to what Citizens United did. A video-on-demand service, after all, while technically a “broadcast,” seems hardly what the FEC should be focused on. Moreover, Citizens United argued, a movie that merely lambastes a candidate while not endorsing any other candidate is not exactly a campaign ad, it’s just basic political speech.

When the Supreme Court heard oral arguments in Citizens United, the case quickly turned into something bigger than merely how campaign finance laws apply to political movies shown on pay-per-view. It changed when Chief Justice John Roberts asked Deputy Solicitor General Malcolm Stewart if it was the government’s position that the prohibition on corporately funded campaign speech applied to books. “A 500-page book,” for example, “and at the end it says, and so vote for X, the government could ban that?” Stewart responded, “we could prohibit the publication of the book using the corporate treasury funds.”

The government’s attorney looked into the faces of the justices of the Supreme Court and said that the government could ban books. It is not surprising that the Court was somewhat taken aback. They asked for the case to be reheard, but not on the narrow question of whether there is a pay-per-view exemption to the ban on corporate spending. Instead they asked whether the entire prohibition on corporate spending violated the First Amendment. That was eventually what the Court held.

This move was controversial, and it’s still controversial today. Many people who understand the nuances of the Citizens United case believe that striking down the entire law was where the Court went wrong. Citizens United should have won, they argue, on the narrow question of whether pay-per-view videos were exempt from the law, but the Court went too far striking down the whole law.

The Chief Justice wrote separately to explain why the Court went as far as it did. Essentially, Roberts explained what I’ve written in this article: that there was no rhyme or reason anymore to which entities were allowed to influence elections and which weren’t. According to the government, Michael Moore can but Citizens United couldn’t. The New York Times (a corporation) can but other corporations couldn’t. There were so many holes and exceptions to the law organizations had been essentially reduced to asking the government for permission to criticize it, and that is contrary to the essential purpose of the First Amendment. No more narrow exceptions given to one group but not another, the whole thing must go.

Michael Moore in TrumpLand in a Post-Citizens United World

Things are simpler now, but still incredibly complex. Corporations like Citizens United and Michael Moore’s Dog Eat Dog films can now spend money on political advocacy. Yet the Citizens United decision left in place the reporting and disclosure requirements for independent political spending. Generally speaking, individuals or corporations that spend more than $250 on election speech must disclose the names and addresses of those who funded the communications. Yet it is still fuzzy what constitutes “election speech,” what’s a “broadcast,” and how to count whether something is worth $250.

We still don’t know if disclosure is triggered by using video-on-demand services, which now might include things like buying the movie over iTunes. If Moore decided to put his movie on YouTube, is that more like broadcast media or like video-on-demand? Some members of the FEC want to say it is more like broadcast media, but others are trying to keep the commission from sticking its nose too far into the internet. Asking people to consult a lawyer before posting a political rant on YouTube seems like too much.

Unfortunately, people like Michael Moore are still hamstrung by our convoluted and bizarre campaign finance laws. Moore sees Trump as a unique and dangerous threat to the United States, and he would like to influence as many people as possible with his movie. If he put it on YouTube, however, it is possible that the FEC could determine that it is essentially a corporate-funded campaign ad that is being widely broadcast to the general public. In that situation, Moore and his companies would have to register with the government and report the names and addresses of those who funded the movie. This may seem like a minor inconvenience, but the failure to report can actually have criminal penalties.

And why wouldn’t Moore want to have to register with the government and disclose who funded his movie? Well, possibly because the candidate that his movie criticizes has shown himself to be thin-skinned and litigious. As president, he could destroy the lives of those who displease him with a simple call to the IRS.

What’s certainly clear is that Moore and his company needed to consult campaign finance attorneys before distributing his film. He also presumably had his attorneys watch the film to ensure that there weren’t too many explicit endorsements to vote for specific candidates. His attorneys also likely explained that, even in the post-Citizens United world, there are many possible legal landmines and it is unclear where they are buried.


With the release of this new film, the Michael Moore/Citizens United saga now has a new chapter. While the Citizens United decision correctly made it easier for people like Michael Moore to have their opinions heard, our campaign finance laws are still a mess. The vague restrictions and unclear definitions can ensnare even the most casual political actor. The laws are so complex, that it is good advice to retain a lawyer before engaging in any political speech that might come close to triggering certain requirements. Even more frustratingly, there are many types of seemingly benign political speech that can trigger legal repercussions.

Thankfully, Michael Moore has enough money and enough lawyers to effectively negotiate the laws. But speaking out on political issues is becoming increasingly dangerous, and that by itself is contrary to the First Amendment.

Trevor Burrus is a Research Fellow at the Cato Institute Center for Constitutional Studies

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Does Hillary Believe in an Individual Right to Bear Arms or Not?

Adam Bates

In last night’s third and final presidential debate, Hillary Clinton made two seemingly conflicting assertions about the Second Amendment: that she supports an individual right to bear arms and that the Heller case was wrongly decided.

Here’s the problem for Secretary Clinton: The Supreme Court held in District of Columbia v. Heller that the Second Amendment protects an individual right to own a handgun for self-defense in the home. There were two dissents to the case. One by Justice Stephens, which rejected a self-defense justification for the Second Amendment, and another by Justice Breyer arguing that even if there is a right to self-defense, it does not include the right to keep a handgun or immediately operable long gun in the home. Each dissent received votes from the same four justices.

So what does Secretary Clinton mean when she says that Heller was wrongly decided? Both dissents in Heller would have upheld a law that effectively banned handguns. Both dissents would have upheld a law that rejects the ability to defend yourself from criminals in your own home as a fundamental right. Or would Secretary Clinton reject both dissents in favor of some fourth view of the case?

How can Clinton possibly reject Heller but believe in an ‘individual right to bear arms’?

Her position is vague and ambiguous. To say that you accept an individual right to bear arms but also believe that the government can ban individuals from owning handguns or operable long guns in the home raises the question of exactly what this individual right does protect.

This ambiguity is unfortunately a common phenomenon in the gun debate. Gun-control advocates and supporters of gun rights often seem to be speaking entirely different languages.

The discussion around so-called assault weapons is instructive. To the gun-rights advocate, the mere term causes the eyes to roll. Virtually every gun owner recognizes the term “assault rifle.” It refers to a medium-powered rifle with select-fire capability (i.e., the ability to switch between at least two modes of fire, such as single shot and automatic or single shot and burst). The M16 rifle is a popular example of an assault rifle. Its civilian equivalent, the popular AR15, is not an assault rifle because it only has one mode of fire: single shot.

The term “assault weapons,” on the other hand, has no concrete meaning. It refers to a process by which legislators simply label certain weapons or features as “assault weapons.” In short, assault weapons are whatever the people writing the law say they are. When such laws have been written by people who lack experience with firearms, the results have occasionally been ridiculous, as the banned features are often cosmetic and bear no relation to the lethality of the weapon.

Assault rifles are heavily regulated in the United States and have been for generations, so much so that calling it a “ban” would be fair. But when Senator Ron Johnson of Wisconsin said exactly that, PolitiFact rated his statement mostly false. I spoke to the author of that “fact check” and he insisted repeatedly that while Senator Johnson might be “technically correct,” the average person on the street conflates the terms assault rifle and assault weapon. The irony of a respected media outlet continuing to perpetuate that confusion was lost.

Occasionally it’s the policy, rather than the principle, advocated by gun-control supporters that is overly vague. Control advocates such as President Obama often insist that they support the right to bear arms and oppose confiscation. But President Obama also has a habit of invoking as exemplars countries such as Australia and Great Britain where there is no individual right to bear arms and confiscation is a fact of life.

The incoherence can also be found in the federal government’s incomprehensible ban on suppressors. For recreational shooters, a suppressor is a device that lowers the risk of serious hearing damage from extended shooting. For gun-control advocates who’ve seen too many movies and played too many video games, a suppressor turns an otherwise detectable gunshot into a silent killing device. The reality is much different.

Before we can have a coherent discussion about gun policy in America, let alone a compromise or policy solution, it’s vital to first agree about the meaning of the terms and be clear about our positions. Unfortunately, Secretary Clinton’s comments last night, along with her surging in the polls, suggests that it may yet be years before the national discourse on gun rights becomes any more mutually intelligible.

Adam Bates is a policy analyst with the Cato Institute’s Project on Criminal Justice.

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Last Night’s Presidential Debate: a Warning to the Foreign Policy Establishment

A. Trevor Thrall

In the third and final presidential debate of the campaign Trump and Clinton clashed again over immigration, ISIS, and Syria. Sort of.

Unfortunately for foreign policy wonks there wasn’t much new to learn. From a broader perspective, though, the debate was another piece of evidence illustrating a fundamental shift in the role of foreign policy in American politics.

During the Cold War, political leaders certainly clashed over national security and foreign policy, but they did so within a shared framework. The central goal of U.S. foreign policy — containing the Soviet Union — was never in question on either side of the aisle. As a result, presidents could talk about the “national interest” and expect the public to agree on what that was. Since the end of the Cold War, however, the national interest has steadily disintegrated into a stew of competing interests. With the United States facing few meaningful external threats, foreign policy debates have come to look more and more like debates over domestic issues. Americans have become more polarized over foreign policy in the past fifteen years. Not even the tragedy of 9/11 could reverse the trend for long.

Trump’s rhetoric and Clinton’s defense of the mainstream liberal internationalist view sharpened the emerging tribal divisions over foreign policy.

In that sense last night’s debate was a warning to the foreign policy establishment. Though foreign policy analysts often act as if foreign policy were simply a matter of coolly assessing costs and benefits in light of “national interests,” this election has made it clear that this is not how the average American forms opinions about what to do about immigration, terrorism, or how to deal with Russia. The stark contrast between the Trump and Clinton campaigns reveals that foreign policy today is not simply a question of keeping America safe, but also a clash between competing visions of morality, culture, and identity.

Despite the fact that these foreign policy fault lines have been clear for some time, most pundits (including myself) imagined that this election’s foreign policy debate would look very different. Back in early 2015 it looked like we were headed for a more typical debate between a defender of the status quo in Clinton and a more hawkish challenger from the Republican side. That debate would likely have centered on criticism of Obama’s foreign policy toward Russia, Syria, ISIS, and Iran, but like many Cold War debates, the debate would have been about the means, not the ends.

The rise of Trump, however, changed everything. In a way that few would have predicted, foreign policy helped Donald Trump push his way to the front of the Republican pack. Thanks to hisunorthodox positions on immigration, terrorism, trade, and America’s interventions in the Middle East, Trump stood out in a crowded field of candidates, the rest of whom were eager to showcase more traditional conservative bona fides.

The question, of course, is why was Trump’s challenge to mainstream foreign policy so successful this year? Trump, after all, has never held office, has no foreign policy experience, and started the campaign blissfully ignorant of a wide range of foreign policy and national security issues. The answer lies in Trump’s ability to take advantage of the fact that people’s opinions on foreign policy no longer have very much to do with foreign policy. Instead, Trump’s “America first” rhetoric, replete with nativist appeals, is tapping into the economic and cultural fears of many voters. As Max Fisher and Amanda Taubwrote in the New York Times recently, Trump “is using international issues as a medium to connect with voters’ gut-level fears and desires, an approach that works precisely because his foreign agenda falls far outside the mainstream.”

Trump’s rhetoric and Clinton’s defense of the mainstream liberal internationalist view have sharpened the emerging tribal divisions over foreign policy. Trump continues to enjoy an advantage primarily among white men and women without college degrees. Trump’s core supporters, in general, are more worried about the rest of the world, much more pessimistic about globalization, and less interested in playing a leadership role abroad. Clinton’s appeal, on the other hand, is strongest among non-whites and among those with more than a college education, and among people who are comfortable with the rest of the world, who see clear benefits from globalization, and believe that the United States has an important moral leadership role to play within the international community.

Polling data make clear the stark differences between the tribes on the key issues of last night’s debate. On the question of immigration, for example, the latest survey from the Chicago Council on Global Affairs found that 80 percent of Trump supporters believe immigrants and refugees represent a critical threat, while just 27 percent of Democrats do. Moreover, 92 percent of Trump supporters back the proposal for a wall on the Mexican border, while 71 percent of Democrats oppose the wall. On the question of international trade, 68 percent of Democrats see international trade as good for the U.S. economy and 72 percent see it as good for their own standard of living, but just 42 percent of Trump supporters see trade as good for the economy and only 49 percent see it as good for their standard of living.

When viewed from this perspective, then, last night’s debate wasn’t about the differences between Donald Trump and Hillary Clinton, or about competing visions of how to secure the nation and pursue the national interest. Instead, it was a contest over what values should motivate American foreign policy in the first place. And given the state of public opinion today, we can expect that debate to continue long after the next president takes the oath of office.

A. Trevor Thrall a senior fellow for the Cato Institute’s Defense and Foreign Policy Department.

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In the Final Debate, the Candidates Ought to Answer Questions about Ideas

Michael D. Tanner

No doubt tonight’s third and final presidential debate will make for good television. But there is a marked difference between entertainment and substance. We can expect this debate to once again be dominated by talk of Trump’s (or Bill Clinton’s) treatment of women, Hillary Clinton’s (or Trump’s) duplicity, plus the usual barbs and insults. Yet, the next president will have to do more than not be his or her opponent. There are real issues out there, and it would be nice if the candidates actually mentioned them.

With that in mind, might I suggest a few questions that I’d like to hear answered.

Is there anything that you think government should not do? Both of you have advocated a very expansive view of the role of government. You both agree that it is the government’s responsibility to provide health care, create jobs, prop up wages, pay for child care and college, and generally solve every problem faced by anyone in this country. (In fact, not just this country: Both of you, especially you, Secretary Clinton, seem all too willing to intervene in every international dispute.) Granted, such promises are standard stuff for most elections, but should either of you follow through, your promises are a recipe for a much bigger, costlier, and more intrusive government. But beyond the details and efficacy of specific programs, there is a more fundamental question: What is the legitimate role of government? Can either of you name something that, however desirable, is beyond the authority of government? Is there any area of our lives where government should simply leave us alone

With so many voters deeply disillusioned, even depressed, by this election, we might well benefit from a civil, substantive discussion of the issues that will face the next president.

Can you name one program you would cut or eliminate? Along the same lines, both of you have proposed massive new government spending. Mr. Trump, even a partial reckoning of your proposals suggest that they would add $5.3 trillion to the debt over a decade. And, Secretary Clinton, you have called for more than $1.65 trillion in new spending over that same period, and even with your substantial tax increases you would still add hundreds of billions to the debt. Yet, this country already faces a $19.7 trillion national debt. This year’s budget deficit will approach $600 billion, up almost $150 billion from last year. Simply put, we are out of money, and we couldn’t raise taxes enough to pay for all this even if that wouldn’t devastate the U.S. economy. Nor will cutting “fraud, waste, and abuse” balance the budget or reduce the debt. Real cuts will be necessary. With that in mind, can either of you name a single program that you would eliminate or reduce funding for

How would you pay for the unfunded liabilities of Social Security and Medicare? The two biggest drivers of the national debt are Social Security and Medicare. Social Security is facing future shortfalls of more than $32 trillion. Medicare is even deeper in the red, with unfunded liabilities of more than $55 trillion. Mr. Trump, you have said that you are opposed to making any changes to these programs. Secretary Clinton, you have actually called for increasing Social Security benefits and want to add people ages 55–65 to Medicare. How do you plan to pay for these programs going forward

What would you do to reduce poverty? Discussion of poverty has largely been absent from this campaign. We have more than 100 federal anti-poverty programs today. Since 1965, we have spent more than $22 trillion fighting poverty. Federal and state spending on poverty last year alone totaled nearly $1 trillion. Yet, more than 43 million Americans still live in poverty. Mr. Trump, you have hardly mentioned the issue. Secretary Clinton, your policies largely involve throwing more money at programs that have failed in the past. On the other hand, we know that policies like education reform, criminal-justice reform, and creating more jobs in high-poverty areas can make a big difference. What will you do to implement such reforms, and what will you do that we haven’t done before

This campaign has deeply divided the American people. How would you bring us back together and unite the country? In the wake of this campaign, America is clearly divided along racial, gender, and class lines. Mr. Trump, you have tolerated, and even encouraged, some of the darkest forces on the American right. Racism and other forms of bigotry have become all too common in your wake. Now you have questioned the legitimacy of the election itself. Secretary Clinton, you have denigrated broad swaths of the American electorate, and once called Republicans your enemies on par with terrorists. Your “forward together” slogan is belied by your visible contempt for your political opponents. On both sides of this campaign, violence and threats of violence have become increasingly common, from near riots outside of campaign rallies to the firebombing of a Republican campaign headquarters in North Carolina. Mercifully, this campaign will soon be over. One of you will soon become president. What specifically will you do at that point to reach out to your opponent’s supporters and ensure that all Americans are treated with equal dignity

With so many voters deeply disillusioned, even depressed, by this election, we might well benefit from a civil, substantive discussion of the issues that will face the next president. Alas, I’m not holding my breath.

Michael Tanner is a senior fellow at the Cato Institute and the author of Going for Broke: Deficits, Debt, and the Entitlement Crisis.

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Recapturing Mosul Is Just a Beginning

Brad Stapleton

On Monday, a coalition of Iraqi security forces, Kurdish Peshmerga fighters, Sunni tribal fighters, and Shiite militias launched a much-anticipated offensive to liberate Mosul, the largest city in Iraq, from the Islamic State, which has occupied the northern Iraqi metropolis since June 2014. The offensive marks a crucial turning point in the campaign to degrade and destroy the Islamic State, since Mosul represents the group’s last major stronghold in Iraq. Yet the liberation of Mosul should not be conceived of as an endgame, but an early step in a decades-long process to stabilize Iraq.

Retaking Mosul will certainly not be easy. The Islamic State has constructed concrete blast walls, dug trenches, and rigged booby traps that will slow efforts to penetrate the city. Moreover, since more than one million civilians remain in the city, coalition forces will need to slowly clear the city block by block to minimize collateral damage. With the assistance of U.S. combat advisers and air support, however, the coalition should be able to secure the city over the next few months.

Unfortunately, following the liberation of Mosul, the ethno-political fragmentation that spawned the rise of the Islamic State will remain. The simple fact that the force advancing on Mosul is comprised of government security forces as well as ethno-sectarian militias exemplifies that reality. In fact, sectarian suspicions remain so intense that prior to launching the Mosul offensive, the Iraqi government felt compelled to secure a commitment from Shiite militias not to enter the majority Sunni city, but to remain on the outskirts.

Given those ongoing divisions, securing Iraq will therefore require more than simply seizing territory from the Islamic State. Establishing stability demands the construction of an inclusive state that, over the long-term, gradually erodes the sectarian rivalries that continue to divide the country.

The construction of strong, inclusive government security forces is indispensable to that process. And that is an area where the United States can help. Over the past decade, the U.S. military has significantly improved its capability to build the capacity of partner military forces. Yet the rise and spread of the Islamic State demonstrated that although the United States can effectively train and equip partner forces, those forces often have difficulty sustaining a high level of competence without ongoing U.S. support. The United States must therefore recognize that constructing strong Iraqi security forces will require a long-term U.S. commitment to train and equip those forces.

Although strong security forces are necessary, they are not sufficient. The construction of a stable Iraqi state requires an enduring political settlement, which provides rival factions with a mutual interest in participating in a democratic governance process. The United States can prod Iraqis toward such settlement and provide various types of governance assistance. Ultimately, though, establishing a durable political settlement is something the Iraqis must accomplish on their own.

Haider al-Abadi, Iraq’s current prime minister, deserves a great deal of credit for striving to foster an inclusive Iraqi government. Whereas his predecessor, Nouri al-Maliki, entrenched his Shiite Dawa party at the expense of Iraq’s other ethnic groups, Abadi has actively sought to enlist greater Sunni and Kurdish participation in Iraqi governance. In addition, he has attempted to crack down on endemic corruption that has primarily benefited Shiites. Yet those efforts have encountered fierce resistance$mdash;from domestic constituents who benefit from the existing system as well as foreign players (most notably Iran) who have an interest in ensuring that Iraq remains fragmented and weak. In the face of such resistance, crafting a durable political settlement will take time.

The beginning of the offensive to retake Mosul is certainly a welcome development. It may mark the beginning of the end for the Islamic State—at least in Iraq. But recapturing Mosul will merely constitute the end of the beginning of a long process of political development in Iraq. To ensure that another insurgent movement is unable to seize large swaths of Iraqi territory in the same manner as the Islamic State, it would be wise for the United States to establish a long-term program to build and maintain the capacity of the Iraqi security forces. Over the next few decades, such a program can provide the breathing room necessary for Iraqis to construct—in fits and starts—a stable political order.

Brad Stapleton is a Visiting Research Fellow in Defense and Foreign Policy Studies at the Cato Institute.

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Real ID Decisions

Jim Harper

Do presidential nominees Donald Trump and Hillary Clinton support having a U.S. national ID card? By quirk of fate, that question may be one of the first issues to land on the new president’s desk after inauguration day, when U.S. Department of Homeland Security efforts to implement a national ID kick into high gear.

DHS announced recently that it will refuse Americans’ access to federal facilities beginning on Jan. 30, 2017, if they carry drivers’ licenses or IDs from states that don’t comply with the Real ID Act. This hardball tactic will be carried out in the new president’s name.

Congress passed Real ID in 2005. It seeks to coerce states into issuing ID cards and licenses with nationally standardized data elements. It also requires states to share their databases of driver information across a national data network. This national ID system would be run by the states for the federal government. The law calls on federal agencies led by DHS to refuse IDs and drivers’ licenses from non-compliant states.

Many states have resisted these federal dictates, so starting in January military families from those states will be turned away from their sons’ and daughters’ boot camp graduations if they can’t find suitable alternative identification. Other elements of DHS’s enforcement plan include turning travelers from non-compliant states away at airports starting in 2018. By 2020, DHS expects every domestic air traveler to present a Real ID-compliant license or some other federal or federally-approved identification. This will make the next president the national-ID president.

Whoever wins the presidential election is going to face big choices regarding the national Real ID law.

Though more than 10 years old, the Real ID law has not been fully implemented because of the original, firm refusal of many states. Congress passed Real ID in haste, in the process repealing identity security legislation that responded to a brief mention of the topic in the 9/11 Commission report. Soon after, in the “Real ID Rebellion,” states across the country, of all political stripes, passed bills refusing to implement the law and asking their congressional delegations to revisit Real ID. Congress has done nothing to address this state-federal pain point.

DHS has recently begun ramping up efforts to force state leaders’ hands. Last spring, for example, spooked by threats from DHS bureaucrats, the Minnesota legislature created a special “Legislative Working Group on Real ID.” A few weeks ago, a Kentucky legislative committee called in the commissioner of the Department of Vehicle Regulation for an update because of the threat that DHS would disrupt life for Kentuckians. The governor there rightly vetoed compliance legislation earlier this year, drawing the ire of the DHS and pro-national ID advocates.

Resistance to Real ID is well-founded because it is a national ID that threatens Americans’ privacy and data security. Though issued by states, the data printed on Real ID licenses and IDs would be nationally standardized, and all cards could be scanned using the same readers and software. Though no law currently requires people to carry ID cards, it is a practical requirement for most people to have their drivers’ licenses with them.

If Real ID is implemented, Americans will be more commonly asked to show ID, and ID scans will collect more personal data, a significant blow to privacy. Scanned copies of basic documents like birth certificates and social security cards, which Real ID requires states to warehouse, could be accessed by hackers and identity thieves. The nationwide data-sharing system that Real ID requires creates additional risks. The DHS’s own estimate when it finalized its Real ID regulations in 2008 was that it would cost $17 billion dollars to implement – the vast majority of the costs to be borne by states and individuals.

The national security benefits of a national ID card are widely assumed but scant. Had Real ID been a fully implemented law prior to the terror attacks of Sept. 11, 2001, it might have presented only minor inconveniences to the terrorists. The current challenge of lone wolf (or stray dog) terrorists would be unaffected by a national ID.

In the current presidential race, there is deep distrust on each side for the other party’s candidate. Republicans can imagine a national ID being used for gun control, financial surveillance and increased federal government control over health care. Democrats can easily envision a national ID system used in religious checks and round-ups of illegal immigrants.

All presidential candidates should reassure the public they stand by America’s true ideals. They should disavow the national ID project and join the many states and people that have called for Congress to repeal the Real ID Act.

Jim Harper is a senior fellow at the Cato Institute.

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The Housing Crunch Is Our Fault. We Can Fix It.

Randal O’Toole

Housing prices are rapidly rising in many urban areas. Prices in the San Francisco Bay Area are higher today — even after adjusting for inflation — than they were at the height of the 2006 bubble. Data from the Federal Housing Finance Agency bears this out:


Yet this is not a nationwide problem. Prices in many other areas remain quite reasonable. Houston and Dallas/Fort Worth are the nation’s fastest-growing urban areas, yet they remain affordable (which is one reason they are growing so fast). Here are home prices for areas that don’t try to control urban sprawl (again, the data comes from the Federal Housing Finance Agency):


The difference is that the urban areas with high housing prices have almost all tried to contain urban “sprawl” by limiting the amount of land around the cities that can be developed, using policies such as urban-growth boundaries, urban-service boundaries or concurrency requirements that limit new growth until infrastructure is totally financed. Anyone who understands supply and demand knows that limiting supply in the face of rising demand leads to higher prices.

The only real solution is to repeal the state laws and local plans that created the problem in the first place.

The next president should learn from these trends and realize that federal housing policies that increase demand, such as down-payment assistance, will only raise housing prices even more in areas with supply restrictions. The best approach for the federal government would be to encourage state and local governments to reduce land-use constraints.

Supposedly, we need to contain urban growth to protect farms, forests and open spaces. But America uses just one-third of its agricultural lands for growing crops, and only 3 percent of the country has been urbanized; the rest is rural open space.

To protect resources we have in abundance, growth constraints create artificial and costly shortages of housing and other real estate. These constraints not only make housing more expensive but also make housing prices more volatile (meaning bubbles and crashes).

Growth constraints are also one of the main causes of increasing wealth inequality, as they give huge windfalls to existing homeowners while impoverishing renters and first-time home buyers. Census data shows that high housing prices are pushing low-income black families out of many urban areas.

The San Francisco/Oakland urban area, for example, had 10 percent more people in 2010 than in 2000, but 14 percent fewer blacks. Putting growth constraints around your city is like putting up a sign saying, “No blacks or working-class people allowed.”

The White House and others have proposed to make housing more affordable by “building up,” that is, by rezoning existing neighborhoods to higher densities and subsidizing developers who will build those densities. But this never works; the densest urban areas tend to be the least affordable, due partly to higher land costs and partly because higher-density housing costs more to build per square foot than single-family homes. Data from the 2010 Census illustrates this well:


The only real solution is to repeal the state laws and local plans that created the problem in the first place. That means abolishing growth boundaries and other constraints and allowing developers to build and sell homes outside of existing urban areas.

Randal O’Toole is a senior fellow at the Cato Institute and author of American Nightmare: How Government Undermines the Dream of Homeownership.

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Neither Trump nor His Message Is Built to Win a National Election

Michael D. Tanner

Let the precriminations begin.

Somehow Donald Trump has survived to fight another day. But with each passing hour, it becomes more obvious that he is going to lose this election, and most likely take a Republican Senate down with him. Even Republican control of the House is now in jeopardy. And this epic disaster is taking place against the backdrop of the most flawed and disliked Democratic presidential candidate since George McGovern.

How could this have happened?

As Republicans begin to pick up the pieces, it will be all too easy for them to learn the wrong lessons from this debacle. Already, some can be heard suggesting that Trump might have won if only it weren’t for that darn tape. Others suggest that the “establishment” stabbed him in the back or blame Never Trumpers.

More dangerously, some suggest that the problem is not Trump’s message but the messenger. Perhaps if there were a candidate who could peddle Trumpism without being a narcissistic vulgarian who brags about committing sexual assault, the outcome would be different? Undoubtedly in 2020, Republican primaries will be crowded with candidates trying to tap into Trump’s fervent base, with messages of working-class nationalism and populism. That would be a big mistake.

We already have one party committed to big government.

The problem is not just Trump, awful candidate though he may be, but Trumpism itself.

To start with, it’s a losing message. The voting population of today is not the voting population of the 1950s, or even the 1990s. White voters have declined from 78 percent of the electorate as recently as 2000 to just 69 percent today. Already minority voters are a majority of eligible voters in three states (California, Hawaii, and New Mexico), and more than 40 percent of eligible voters in three more (Georgia, Maryland, and Texas). And those demographics are not going to change in ways that are favorable to Trump’s message. By 2032, another 14 states will cross the 40 percent threshold.

In addition, women make up 52 percent of registered voters, and unmarried women, who are traditionally more likely than married women to vote Democratic, make up 31 percent of eligible women voters. On top of that, people younger than 30 make up 16 percent of registered voters. That’s a lot of voters to write off.

One cannot win an election by running for president of Breitbart Nation.

Besides, we already have one political party committed to big government. If history should teach Republicans anything, it is that they can’t win a bidding war with Democrats. Indeed, the biggest victories that Republicans have had, from Ronald Reagan to the Tea Party–fueled midterm of 2010, have been driven by a clear alternative of limited government and individual liberty. Trump has all but completely disavowed this type of conservatism. His campaign has been one long string of promises for government to do and spend more. How are voters to tell a Trumpian GOP from the Democrats?

But beyond political strategy, Trumpism is wrong for the country. We are faced with massive debts and unsustainable entitlements that our children will have to pay for. Economic growth is barely above water, meaning fewer jobs and lower wages. Poverty remains too high. Obamacare is falling apart.

Trumpism is less about solving these problems than about dividing up the spoils. It is about using government to benefit Trump’s constituency. It is a fixed-pie view of the economy, concerned about how the pie is divvied up, rather than about growing the pie.

Republicans need to reject this view of the world and, instead, embrace an open and optimistic message of growth and opportunity. We need an America open to the world and frugal at home. Republicans need to articulate policies that welcome and appeal to the new electorate, not cling to the old. They need to remain a free-market party, but to become one that accepts social justice, too.

There’s still a month until the election, but it’s never too early to start thinking about what comes next.

Michael Tanner is a senior fellow at the Cato Institute and the author of Going for Broke: Deficits, Debt, and the Entitlement Crisis.

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Worried Neighbors Move to Balance Beijing

Ted Galen Carpenter

Chinese leaders harbor suspicions that the United States is pursuing a policy to contain China’s growing power and influence. Those suspicions are warranted. U.S. actions contributing to those suspicions include direct measures, such as the freedom of navigation patrols in the South China Sea, and the deployment of the THAAD system in South Korea—both over Beijing’s vehement protests. Washington’s anti-China containment policy, however, includes more subtle and indirect measures. These policies include the lifting of long-standing arms embargo on Vietnam and the development of an increasingly cozy strategic relationship with Hanoi. Another item would be the return of U.S. military forces to the Philippines, along with Washington’s unsubtle backing of Manila’s legal case before the International Court of Arbitration regarding the South China Sea territorial dispute with China. Yet another policy would include the series of arms sales and signing of a military logistics agreement with India. Finally, there are the ongoing efforts to transform Washington’s alliances with Japan and South Korea from purely bilateral defense pacts into arrangements to handle unspecified “regional contingencies.”

Although the United States is the principal source of containment—or balancing actor —directed against China, it is not the only one. And Beijing needs to consider how its own conduct has caused some of its neighbors to adopt such measures even with little or no direct involvement from the United States.

Chinese policymakers need to ask themselves why so many diverse nations seem to be receptive to measures that translate into balancing behavior against China even when the United States is in the background.

The evidence of such independent initiatives, of which Japan is the epicenter, is substantial and growing. As early as 2013 and 2014, Tokyo was clearly backing the Association of Southeast Asian Nations (ASEAN) in its South China Sea territorial disputes with China. Japan’s involvement in the South China Sea has since escalated on multiple fronts. Japanese ships will now join U.S. naval vessels in conducting so-called freedom of navigation patrols in that body of water.

In addition to that step, Tokyo has agreed to provide patrol ships to Vietnam, one of Beijing’s most intense rival claimants. In late September, Tokyo agreed to do the same for Malaysia, another rival claimant. Japan also offered maritime support, including used military hardware, to the Philippines, and Tokyo has developed a variety of security ties with Indonesia. When it comes to the South China Sea, Japan’s attitude appears to be “anybody but China.”

Perhaps most disturbing to Beijing is that Tokyo’s ambitions do not seem confined within the South China Sea. Prime Minister Shinzo Abe’s government continues to negotiate a $1.65 billion deal to sell amphibious military aircrafts to India and seek closer maritime security ties. Indo-Japanese security cooperation developed to the point that Columbian University Professor Rajan Menon, a respected expert on international affairs, published an article with the provocative title: “An India-Japan Alliance Brewing?” in the pages of the National Interest.

India seems to display growing worries about China’s ambitions and intentions, thus forging new security links with the United States as well as Japan. Delhi also approved an $8 billion warship project to counter China’s growing naval power. Other nations seem to regard this move favorably. Indeed, Singapore explicitly urged India to play a bigger role in the South China Sea.

Perhaps more surprisingly, small East Asian nations that suffered at Japan’s hands during the first half of the twentieth century now seem receptive to Tokyo playing a much more active security role. The change in attitude suggests how much smaller nations are worried about Beijing’s power and inclinations. Even before the election of the more anti-China, pro-independence government of the Democratic Progressive Party’s Tsai Ing-wen, Taiwan sought to boost maritime cooperation with both the Philippines and Japan. Former Taiwanese President Lee Teng-hui openly stated that Japan needed to play a bigger security role in East Asia—in part to offset what he saw as the decline of U.S. clout. Lame duck President Ma Ying-jeou urged his countrymen to remember the good things that Japan did as well as the bad during the decades of colonial rule. Tsai has already opened up an informal security dialogue between Taipei and Tokyo.

All of this activity is balancing behavior indicative of neighbors that are uneasy, at the very least, about Beijing’ conduct. Chinese officials may complain all they wish that the United States has sought to foment paranoia among East Asian countries and drive them into an alliance against China. There may be some truth to that argument. There is little doubt that U.S. leaders want to preserve America’s strategic primacy in the region, and they worry about China as a possible challenger. But Chinese policymakers need to ask themselves why so many perse nations seem to be receptive to measures that translate into balancing behavior against China even when the United States is in the background. Perhaps some of Beijing’s own actions, including the overly broad territorial claims in the South China Sea and the extremely pronounced buildup of military capabilities over the past decade, might have something to do with it. In any case, the neighbors are nervous and that is not boding terribly well for Chinese interests.

Ted Galen Carpenter, a senior fellow at the Cato Institute, is the author of 10 books and more than 600 articles on international affairs.

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What Duterte Demonstrates about US Security Commitments Abroad

Ted Galen Carpenter

By every measure, both economic and military, the United States is the most powerful nation on the planet. And most of the time it acts that way, sometimes to the benefit of humanity and sometimes not.

But there are occasions involving Washington’s mushrooming network of global security dependents when the United States plays the role of supplicant superpower. At those times, U.S. leaders act as though allies, even small, utterly dependent allies, are doing America a favor by maintaining a close relationship.

That point has become apparent most recently in Washington’s reaction to the behavior of Philippines President Rodrigo Duterte. In rapid succession during September and early October, Duterte allegedly called President Barack Obama a “son of a bitch,” stressing that he had no intention of following Washington’s foreign policy lead, indicated that he was open to alliances with Russia and China, proclaimed his admiration for Adolf Hitler, and emphasized that he was prepared to purchase weapons from Russia or China rather than the United States.

There is little reason why the U.S. government should accept cynical free-riding behavior on the part of so-called allies.

What was Washington’s response to all of this? The White House did cancel a meeting between Obama and Duterte following the s.o.b. epithet, but that has been about the extent of the substantive displays of displeasure.

The Obama administration carried out the bilateral joint military exercises as scheduled, even as Duterte flirted with military purchases from U.S. geostrategic rivals. Following his embrace of Hitler, U.S. officials professed to be “troubled,” and even “deeply troubled,” but they took no further action, not even recalling the U.S. ambassador.

Indeed, Secretary of Defense Ashton Carter went out of his way to stress that Washington’s alliance with the Philippines was “ironclad.” Duterte was the one who actually escalated the confrontation, ordering an end to joint U.S.-Philippine naval operations in the South China Sea and indicating that he might terminate the alliance.

It would be bad enough if Washington’s squishy behavior toward Manila was an aberration, but it is not. A succession of administrations since the early 1950s have admonished the NATO allies that the United States was upset with their lack of burden sharing regarding the common defense effort. However, virtually all of those expressions of dissatisfaction were accompanied by statements that U.S. leaders regarded Europe’s security and well-being as essential to America’s own.

Needless to say, such comments vitiated any implied or even explicit warnings that the United States might scale back its defense commitment to NATO if the allies did not make more substantial contributions. The European powers have concluded correctly that they could continue underinvesting in defense, diverting financial resources to bloated welfare states, and free ride on America’s security exertions.

Washington just does a poor job of bargaining with allies. However much the United States might need Europe, democratic Europe has always needed the United States a lot more. America could have survived even a worst case scenario (a Europe dominated by the Soviet Union). By definition, democratic Europe would not have survived such an outcome.

Yet in its dealings with the NATO allies, U.S. officials acted as though America needed a friendly Europe more than Europe needed U.S. protection. A similar dynamic is taking place as professed fears about Russia’s intentions under Vladimir Putin are voiced throughout NATO’s Central and Eastern European members. Despite the agitation, their principal response has been to press Washington to station troops and weapon systems in the most vulnerable alliance members.

On the other hand, even getting those same countries to fulfill the commitment they made following the 2006 NATO summit to devote at least two percent of their annual Gross Domestic Product (GDP) to defense has been an uphill struggle.

A solid argument can be made that the United States has far too many security commitments in far too many regions around the world and that an aggressive pruning is in order. But at a minimum, Washington should recognize the value of the protection that it provides to security dependents in East Asia, Europe, and other regions.

There is little reason why the U.S. government should accept cynical free-riding behavior on the part of so-called allies. There is even less reason to tolerate insulting and duplicitous behavior. Yet we are currently experiencing the former from the NATO members and the latter from the Philippines. One does not have to be a Donald Trump supporter to conclude that he is correct when he argues that some new, more equitable, bargains are long overdue.

Ted Galen Carpenter, a senior fellow at the Cato Institute, is the author of 10 books and more than 600 articles on international affairs.