Social Security Isn’t Going Away — But It Is Going to Get Worse

Michael D. Tanner

Seventy-five years ago, Ida Mae Fuller of Ludlow, Vermont received the first American Social Security check. Ida, who lived to be 100, ultimately collected $22,888 in benefits. Because she had paid only $24.75 in Social Security taxes, the national retirement program turned out to be a very good deal for her.

Unfortunately, it’s not such a good deal for today’s young workers. Thirty year olds now will be lucky to receive a 1.5 percent return on what they pay into the system, far below what they could earn from investing that money privately. In fact, many will die before they get back what they paid in, let alone collect any extra return.

To pay all the benefits promised in the future, Social Security would have to increase the payroll tax by as much as half, or slash benefits by 23 percent.”

That’s because Social Security operates very much like a pyramid scheme. When you pay your Social Security taxes, none of that money is saved for your retirement or invested. Instead, every cent you pay in is used to provide the benefits to those who are already collecting. When you finally retire, your benefits will come from the taxes paid by the next generation of workers — your children and grandchildren.

Like any pyramid scheme, Social Security was able to deliver a windfall to early recipients like Ida Mae, who received their benefits when there were lots of workers and only a few retirees. Today, however, Americans are living longer and not having as many babies, meaning there are more retirees and fewer workers to support them. In 1950, there were 16.5 workers supporting every retiree. Today, there are 2.8. And by the time today’s young workers retire, there will be just over two.

Does that mean Social Security won’t be there when they’re ready to collect? No. As long as there are people paying into the program, retirees will be able to take benefits out. Unlike a pyramid scheme, Social Security cannot go broke as long as the government can make future generations pay taxes.

But if fewer young workers are there to support each retiree, one of two things will have to happen: Either those young workers will have to pay more (tax increases) or retirees will have to get less (benefit cuts).

To pay all the benefits promised in the future, Social Security would have to increase the payroll tax by as much as half, or slash benefits by 23 percent.

The government has already raised Social Security taxes more than 40 times since the program began. Initially, the maximum tax anyone had to pay was $60, or 2 percent of the first $3,000 in wages paid by both the employer and employee. Today, people pay 12.4 percent of their first $118,500 in wages. Even after inflation, that’s a roughly 1,490 percent increase.

To pay all the benefits promised in the future, Social Security would have to increase the payroll tax by as much as half, or find that revenue elsewhere. The government can always cut benefits, but without a tax increase those benefits would have to eventually be slashed by 23 percent. That would be very hard for seniors who depend on the program to get by.

Until recently Social Security ran a surplus, taking in more in taxes than it paid out in benefits. That extra money was used to purchase government bonds, which became so-called Trust Funds to pay future benefits. Of course, once a bond was purchased, the money used to buy it became general revenue and was spent by the government. So the Trust Funds are simply an accounting measure of how much money the Social Security system is owed by the federal government. The bonds are basically IOUs.

That’s not to say that the government won’t make good on that debt. It always has and likely always will. But the money needed to redeem the $2.8 trillion in bonds currently in the Trust Funds comes from the government’s general revenue — that is, the taxes being paid by today’s workers. There’s no free lunch.

The Trust Funds will be empty by 2033. That’s the point at which Social Security will either have to make that 23 percent cut to benefits, or raise taxes by about half.

There is only one other answer to Social Security’s growing crisis: Let young workers who wish to get out of this pyramid scheme to do so, and save a portion of their taxes for their own retirement through personal accounts. Allow that money to be invested in assets that earn a return, such as stocks, bonds, annuities, and so forth. The average annual return on US capital investment over the last century has been roughly 7.28 percent after adjusting for inflation, far better than what young people can expect from Social Security.

The program will have to change in the future. But as we debate Social Security, it is vital that young people be involved. They have the most at stake.

Michael Tanner is a senior fellow at the Cato Institute.

Did Global Warming Juice Winter Storm Juno?

Patrick J. Michaels

The day prior to Juno hitting southern New England (and not New York), Governor Andrew Cuomo blamed “the changing climate.” Is there any evidence global warming buried southern New England?

According to Jeff Halverson of the Capital Weather Gang, the recent storm (named winter storm Juno by The Weather Channel) was a textbook example of what is technically known as a Miller-B cyclone, and colloquially known as a ‘noreaster, as the primary winds are from the Northeast when the snow is flying. Noreasters are, by far, the major cause of snow along the Atlantic Coast, all the way from North Carolina to Maine.

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There’s no denying climate change, as average surface temperatures are about 1.4°F warmer than they were in the 1860’s, when there were enough reliable weather stations to make an accurate estimate. A fraction of that warming is in the Northern Atlantic Ocean, and some of this Atlantic warming is from other causes such as internal ocean circulation cycles decades in length.

Onshore temperatures where Juno spun up are about 2°F above average—but don’t necessarily relate that to climate change as there is a big patch of water about 1000 miles to the northeast just as below average temperature. It seems logical a slightly warmer ocean will yield a tad more moisture which, if significant, should show as increased snowfall in our coastal cities. It turns out there are other things that go along with a warmer ocean that compensate for this effect.

This last storm was, as Halverson said, a Miller-B cyclone in extremis. When these really wind up (and that happens every year or two), they develop what is called a “warm seclusion” at their center, and for twelve hours or so they look a lot like hurricanes to the untrained eye, complete with a cleared-out center.

The sum-total of the newly revealed climatic truths from Juno is zero.”

Ryan Maue, a hotshot meteorologist for WeatherBell Analytics, recently won his PhD with a dissertation entitled “Warm Seclusion Extratropical Cyclones.” As Maue tweeted the afternoon before the storm, Juno was going to be one. The rules of the PhD game are that your dissertation must fundamentally advance the state of knowledge on a given subject, so Maue knows more than just about anyone in the world about big-time noreasters.

The afternoon before the storm, Maue had a Twitter field day, pretty much demolishing any claim that a warmer ocean was going to enhance Juno. Ultimately he concluded that it is “easy to make case that global warming weakened this blizzard significantly due to warmer SSTs [sea-surfaced temperatures].”

Because the vast majority of Atlantic Coast snow is from noreasters, there’s an even simpler way to test Cuomo’s statement—how about we just look to see if snowfall is increasing?

It is not. Below is the annual snow history for New York’s Central Park, which hasn’t missed a storm since the fall of 1869. It is obvious: there is no upward trend whatsoever. Given that noreasters cause almost all of its snow, there’s no way that climate change is enhancing their snow production.

The sum-total of the newly revealed climatic truths from Juno is zero. It was a very strong noreaster, similar to ones that occur every year or two. It produced a heckuva lot of snow, like other warm-seclusion storms in the winter, and there’s no evidence it is being juiced by global warming.

Patrick J. Michaels is Director, of the Cato Institute’s Center for the Study of Science.

Petrostates Have a Cheap Oil Malady

Emma Ashford

While consumers in the United States and Europe are cheering low prices at the pump, a variety of states that depend on oil revenue are expecting a period of uncertain income and budget shortfalls. Unfortunately, rather than encourage reform in these typically corrupt and authoritarian countries, the pressure of low oil prices is likely to result in increased instability.

Oil has halved in price in the last six months, dropping to just under $50 per barrel. This plunge is driven by contracting global demand as well as efforts by Saudi Arabia to curtail growing oil production by the United States, Russia and other nonmembers of OPEC. The death of Saudi Arabia’s King Abdullah is unlikely to alter this situation, as newly crowned King Salman has been careful to emphasize continuity with his predecessor’s policies. As a result, oil prices should remain low for a while. Though oil was less than $20 per barrel for much of the 1980s and 1990s, today’s prices mark a break from the more recent past, when prices had soared as high as $147 per barrel.

In recent years, oil wealth has had a massive effect on petrostates. Oil revenue contributed to continued authoritarianism in some states and encouraged corruption and poor governance. Leaders had little reason to pursue economic development and diversification, resulting in weak economies reliant on oil income and leading many political scientists to describe oil as a curse.

Countries with oil-focused economies face uncertainty and unrest.”

Given the often odious regimes at the helm of the world’s largest oil-producing countries — Saudi Arabia, Iran, Venezuela, Russia — we may be inclined to welcome falling oil prices in hopes that price pressure may finally encourage reform. Unfortunately, these maladies cannot be easily fixed. An oil-focused economy cannot be turned overnight into a diversified economy that appeals to international investors. Rampant, institutionalized corruption cannot be stamped out quickly once it has taken root. And leaders who rely on oil wealth to prop up their authoritarian regimes are unlikely to seek democratic reforms.

Instead, falling oil prices are more likely to breed instability, though not all petrostates will be affected equally. Saudi leaders, for example, can fall back on massive cash stockpiles to see them through the lean times. Instability among OPEC’s Gulf members is unlikely unless oil prices remain low for several years. But other OPEC members and non-OPEC states are less fortunate. 

Venezuela is the most likely to see problems, with a state budget based on oil prices of $117 per barrel. Moody’s recently cut Venezuela’s debt rating, giving it a negative outlook. The Venezuelan economy was already rocky, largely because of extremely poor economic management and overreliance on oil-funded social programs. But falling oil prices have made this crisis acute, so much so that President Nicolás Maduro recently traveled to China and Saudi Arabia seeking aid. Venezuela may even default on its debt in 2015. The effects of the crisis will be felt increasingly by average Venezuelans and could trigger further violent protests such as those that rocked Caracas last year.

Iran and Russia face similar though less acute budgetary pressures, amplified by Western sanctions. Tehran recently revised its budget to account for the fall in oil prices, with the majority of cuts coming from infrastructure funds. As in Venezuela, the worsening economy will make popular unrest a possibility.

While sanctions have done some damage to the Russian economy, low oil prices are far more problematic for the Kremlin, which announced spending cuts of 10 percent across the board for this year (with the exception of the military). Although the concomitant collapse of the ruble has, ironically, helped reduce the effect of falling oil prices, the government expects to see inflation of 15 to 17 percent in 2015. This is not likely to lead to popular unrest, as Russians are accustomed to tightening their belts. Instead, dissatisfaction among elites could lead to tensions with President Vladimir Putin’s regime or to further domestic repression.

In Nigeria the government depends on crude oil exports for 70 percent of its revenue. Thanks to falling oil prices, inflation has risen to 8 percent, and Nigerian bonds continue to perform poorly. The state suffers from bureaucratic and military corruption even as it faces armed insurgency from Boko Haram. Elections on Feb. 14 may see President Goodluck Jonathan’s government out of power. Yet a new government would probably be unable to address these problems, and the low price of oil will only make it harder for Nigeria’s corrupt army to succeed in its battle against Boko Haram.

While it’s extremely difficult to accurately predict political instability, falling oil prices raise the potential for such instability in petrostates by worsening their existing economic and political problems. So rather than celebrate low prices at the pump, we should be wary: Petrostates are already in bad shape, but cheap oil may throw them into deeper disarray.

Emma Ashford is a visiting fellow in foreign policy studies at the Cato Institute and a recent Ph.D. from the University of Virginia. Her research focuses on the foreign policy of oil-rich states, particularly Russia and other states of the former Soviet Union.

Improving Educational Options for Georgia Children

Andrew J. Coulson

Like a dozen or so other states, Georgia has a K-12 scholarship tax credit program. It allows individuals and businesses to donate to non-profit Student Scholarship Organizations (SSOs), and the SSOs help families pay tuition at their preferred private elementary and high schools. The donors receive a state tax cut in the amount of their donation, in return for having made a host of new educational options available to children.

One catch is that the program’s total size is tightly capped at $58 million, limiting the number of children who can be served. This year, that cap was reached within a few hours on January 1st. Legislators will debate in the coming session whether or not to raise the cap. There is good reason for them to do so.

Studies of a similar program in Florida have found that it improves the academic achievement of students who switch from public to independent schools and that it also improves achievement among students remaining in public schools. Moreover, the program has been found to save taxpayers tens of millions of dollars every year because the private sector educates students more economically than does the public sector.

It is the freest and most market-like systems that best serve families.”

In recognition of these advantages, the Florida legislature has repeatedly raised the cap on its scholarship tax credit program. In fact, it has added an automatic growth provision to the law. As a result, the program’s cap now rises annually so long as total donations in the preceding year either closely approached or hit the cap.

In doing this, Florida has been following the consensus of international research on education system quality. Several years ago I reviewed the research from all over the world comparing alternative approaches to running and funding schools. A key challenge in drawing lessons from foreign studies is that there are many economic and cultural factors that also affect student achievement, besides the design of the school system itself. Fortunately, many countries have different types of school systems operating side-by-side within their own borders.

By focusing on studies of these within-country differences in education systems, I discovered a clear pattern: it is the freest and most market-like systems that best serve families. These systems treat both educators and parents with respect. Educators are free to use the curricula and methods they deem best, and parents are free to choose among them according to their own values and the needs of their children.

Another ingredient of the best-performing systems is that parents directly pay at least a fraction of the cost of their own children’s education. When they do so, schools are more responsive to their demands and they also operate more efficiently—delivering higher student performance per dollar spent. In India, for example, government-funded schools (whether public or private) tend to teach in the local language despite widespread parental preference for instruction to be given in English. By contrast, parent-funded schools teach in English across the curriculum, to meet parent demand.

While there are other school choice policies in the U.S. besides education tax credits, a careful statistical analysis shows that tax credits impose less red tape on educators than other programs. This is crucially important given that parental choice becomes meaningless if all schools are regulated into conformity by the state.

Heavy-handed regulation also restrains the cycle of innovation we have enjoyed in the truly free enterprise sectors of our economy. The improvements we’ve seen in everything from television sets to grocery stores have not been driven by state or federal mandates. They have been the result of entrepreneurs freely competing with one another to discover new and better ways of meeting our needs. Educators have too long been shut out of this free enterprise sector, straight-jacketed by reams of regulation, and unrewarded (or even punished) for successful innovations.

Raising the cap on Georgia’s scholarship tax credit program is thus an ideal way to bring freedom and excellence to K-12 education. Of course if Georgia fails to do so, its citizens and businesses will still have the option of relocating to Florida.

Andrew J. Coulson directs the Cato Institute’s Center for Educational Freedom and is author of “Market Education: The Unknown History”.

Border Surveillance Follies

Patrick G. Eddington

For more than a decade, the Department of Homeland Security has employed some of the same kinds of drones used by our military. The ostensible purpose of having unarmed Predator drones was to give U.S. Customs and Border Protection additional aerial surveillance capabilities along the Southern border. Homeland Security officials argued the drones were cost-effective and needed. As a cost-savings measure, the Obama administration proposed major cuts to the DHS drone program in 2010, but House Appropriations Committee leaders, who supported the program and felt the expansion should continue, shot that proposal down. They should’ve thought through that decision far more carefully.

On Christmas Eve 2014, the DHS’s inspector general released a report on the department’s drone surveillance program, and it is an indictment of the program.

The DHS’s inspector general released a report on the department’s drone surveillance program, and it is an indictment of the program.”

The DHS IG found that “ …  after 8 years, CBP cannot prove that the program is effective.” Worse, the CBP low-balled the per-hour cost of operating its drones. Instead of the claimed $2,468 per flight hour, the DHS IG found the cost was $12,255 per hour — nearly five times as much as CBP officials have claimed. Almost no illegal border crossing apprehensions could be attributed to information from the drones, and the CBP could not show the drones actually reduced the cost of border surveillance. Despite these findings, the CBP has not abandoned plans to spend nearly half a billion dollars more to expand its drone program.

These are the kind of audit results that should spur Congress to terminate a wasteful, ineffective government program. Instead, this week Congress is poised to pass legislation that would direct the DHS to double-down on the use of drones for border surveillance.

The so-called Secure Our Borders First Act (HR 399), sponsored by the House Homeland Security Chairman Michael McCaul, R-Texas, directs on virtually a sector-by-sector basis the employment of drones for aerial surveillance — either the larger drones like Predator for “maritime surveillance” or man-portable drones for more overland aerial surveillance. It’s worth noting that the kind of man-portable drones McCaul is instructing the DHS to use have vastly shorter aerial loiter times than the larger Predator drone, and cannot carry the full range of the most sophisticated, capable surveillance technologies available to the U.S. government — the very technologies that the DHS IG has found to be virtually useless for detecting or deterring illegal crossings even when employed by Predator drones.

Directing a federal agency that has already squandered hundreds of millions of taxpayer dollars on failed surveillance technologies and policies to engage in more of the same reinforces the image of Congress being a dysfunctional institution.

Over the past decade, Congress has wasted hundreds of millions of dollars on other useless DHS projects, including worthless airport body scanners and explosive detection equipment that does not work. Program audits by federal watch dogs like the DHS IG are commissioned for a reason: to prevent waste, fraud and abuse. The Homeland Security and Appropriations committees should heed the findings of the DHS IG and stop wasting still more federal tax dollars on drones.

Patrick G. Eddington is a policy analyst in homeland security and civil liberties at the Cato Institute.

No, Mass Surveillance Won’t Stop Terrorist Attacks

Patrick G. Eddington

The recent terrorist attack on the office of French satirical magazine Charlie Hebdo generated a now-familiar meme: Another terrorist attack means we need more surveillance.

The continued use of digital dragnets is a virtual guarantee of more lethal intelligence failures.”

Sen. Bob Corker (R-Tenn.) said that while “Congress having oversight certainly is important … what is more important relative to these types of events is ensuring we don’t overly hamstring the NSA’s ability to collect this kind of information in advance and keep these kinds of activities from occurring.” Similarly, Sen. Lindsey Graham (R-S.C.) spoke of his “fear” that “our intelligence capabilities, those designed to prevent such an attack from taking place on our shores, are quickly eroding,” adding that the government surveillance “designed to prevent these types of attacks from occurring is under siege.”

A recent poll demonstrates that their sentiments are widely shared in the wake of the attack.

But would more mass surveillance have prevented the assault on the Charlie Hebdo office? Events from 9/11 to the present help provide the answer:

  • 2009: Umar Farouk Abdulmutallab—i.e., the “underwear bomber”—nearly succeeded in downing the airline he was on over Detroit because, according to then-National Counterterrorism Center (NCC) director Michael Leiter, the federal Intelligence Community (IC) failed “to connect, integrate, and fully understand the intelligence“ it had collected.
  • 2009: Army Major Nidal Hasan was able to conduct his deadly, Anwar al-Awlaki-inspired rampage at Ft. Hood, Texas, because the FBI bungled its Hasan investigation.
  • 2013: The Boston Marathon bombing happened, at least in part, because the CIA, Department of Homeland Security (DHS), FBI, NCC, and National Security Agency (NSA) failed to properly coordinate and share information about Tamerlan Tsarnaev and his family, associations, and travel to and from Russia in 2012. Those failures were detailed in a 2014 report prepared by the Inspectors General of the IC, Department of Justice, CIA, and DHS.
  • 2014: The Charlie Hebdo and French grocery store attackers were not only known to French and U.S. authorities but one had a prior terrorism conviction and another was monitored for years by French authorities until less than a year before the attack on the magazine.

No, mass surveillance does not prevent terrorist attacks.

It’s worth remembering that the mass surveillance programs initiated by the U.S. government after the 9/11 attacks—the legal ones and the constitutionally-dubious ones—were premised on the belief that bin Laden’s hijacker-terrorists were able to pull off the attacks because of a failure to collect enough data. Yet in their subsequent reports on the attacks, the Congressional Joint Inquiry (2002) and the 9/11 Commission found exactly the opposite. The data to detect (and thus foil) the plots was in the U.S. government’s hands prior to the attacks; the failures were ones of sharing, analysis, and dissemination. That malady perfectly describes every intelligence failure from Pearl Harbor to the present day.

The Office of the Director of National Intelligence (created by Congress in 2004) was supposed to be the answer to the “failure-to-connect-the-dots” problem. Ten years on, the problem remains, the IC bureaucracy is bigger than ever, and our government is continuing to rely on mass surveillance programs that have failed time and again to stop terrorists while simultaneously undermining the civil liberties and personal privacy of every American. The quest to “collect it all,” to borrow a phrase from NSA Director Keith Alexander, only leads to the accumulation of masses of useless information, making it harder to find real threats and costing billions to store.

A recent Guardian editorial noted that such mass-surveillance myopia is spreading among European political leaders as well, despite the fact that “terrorists, from 9/11 to the Woolwich jihadists and the neo-Nazi Anders Breivik, have almost always come to the authorities’ attention before murdering.”

Mass surveillance is not only destructive of our liberties, its continued use is a virtual guarantee of more lethal intelligence failures. And our continued will to disbelieve those facts is a mental dodge we engage in at our peril.

Patrick G. Eddington is a policy analyst in homeland security and civil liberties at the Cato Institute. He was formerly a senior policy advisor to Rep. Rush Holt (D-N.J.) and a military imagery analyst at the CIA’s National Photographic Interpretation Center.

Currency Manipulation and the Trans-Pacific Partnership: What Art Laffer, Fred Bergsten, and Other Hawks Get Wrong

Daniel J. Ikenson

U.S. Trade Representative Michael Froman is bullish on the trade agenda. But his estimate of completing the Trans-Pacific Partnership (TPP) negotiations in March discounts the possibility that Congress will issue any tough demands in its Trade Promotion Authority (TPA) legislation. A congressional mandate to include enforceable “currency manipulation” provisions in trade agreements, for example, would push completion of the TPP into the next administration or kill it altogether.

Just like green energy subsidies, “Buy American” laws, 25 percent pick-up truck tariffs, and industry bailouts, currency manipulation distorts markets. Global resources would be more efficiently allocated if currency values were market-determined. But does currency manipulation stand out among the hodgepodge of popular interventions as a big enough problem with a net beneficial solution to warrant delaying or killing TPP?

Some industries, led by the K Street-savvy Detroit automakers and U.S. steel producers, think so and have pledged to work against the agreement unless it includes tough provisions to deter a particular brand of currency manipulation. (Of course, Detroit has been opposed to the TPP from the outset and even more so since its attempt to block Japan from joining the talks failed, so the conditional threat of non-support rings a bit hollow.) Their position seems to be buttressed by the views of supply-side favorite Arthur Laffer, establishment economist Fred Bergsten, and some of his colleagues at the Peterson Institute, who argue that currency manipulation demands an aggressive U.S. policy response. But their arguments for enforceable currency provisions, whether inside or independent of trade agreements, are unconvincing.

Saddling the TPP, the TTIP, and other trade agreements with provocative and unnecessary currency provisions would be a grave mistake.”

The question of whether and how to respond to foreign currency manipulation has been vexing policymakers since 2003 when Sen. Chuck Schumer (D-NY) first introduced a bill calling for a 27.5 percent tariff on all imports from China to compel the Chinese government to permit the Yuan to appreciate. Currency manipulation — in this context — is said to occur when governments take actions to suppress the values of their currencies, effectively taxing imports and subsidizing exports, to give advantages to their country’s producers.

That may certainly seem unfair to U.S. producers, but Schumer’s idea was roundly rejected as a massive consumption tax on the American people — and World Trade Organization-illegal to boot. But that didn’t stop him from re-introducing the same bill in subsequent Congresses with Sen. Lindsey Graham (R-SC) — also, to no avail. The measure, which was welcomed by domestic auto and steel producers (and other trough regulars), would have been a disaster for U.S. consumers, who would have had less to spend even on US-made goods and services, and for export-oriented U.S. producers and their workers, who would have suffered the wrath of foreign retaliation.

Since then other proposals have come and gone and come again, including the idea that currency manipulation should be treated as a subsidy and remedied under the U.S. Countervailing Duty law. Even though any benefits conferred by suppressing a currency’s value are available broadly to producers in the “offending” country, which is an attribute that disqualifies the “offense” as a countervailable subsidy under U.S. law and according to the WTO Agreement on Subsidies and Countervailing Measures, there is support for this approach in Congress. Bergsten has been hot, cold, and recently hot again on this idea, lending support to it in a Foreign Affairs piece published January 18th:

[T]he administration should authorize the imposition of countervailing duties on imports from countries that manipulate their currencies, whether or not they are members of trade agreements with the United States. Such manipulation is as much an export subsidy as any other against which the United States would normally countervail, and failure to do so is an absurd anomaly.

This endorsement comes after Bergsten all but rejected the idea in a Peterson Policy Brief in January 2014:

Determining the existence and extent of currency misalignment, especially as a possible trigger for remedial action [i.e., specifically, the application of countervailing duties under the Countervailing Duty law], has proven enormously difficult, however, both intellectually and politically. Numerous conceptual approaches to defining and measuring currency “misalignment” have been attempted. The IMF uses three different measures that often produce very different results. Most official discussions, and even many academic efforts, have foundered at this initial level.

To be sure, that was not the first time Bergsten changed his mind on this issue. He expressed support for countervailing duties as part of an aggressive four point plan a little more than one year prior in a December 2012 Peterson Policy Brief with his colleague Joseph Gagnon. But a review of how Sen. Schumer came to choose 27.5 percent as his magic number illustrates why Bergsten’s January 2014 skepticism about applying countervailing duties continues to be warranted.

When Schumer introduced his bill, economists were generally in consensus that the Chinese currency was undervalued. But they disagreed widely about the magnitude. Economists from the IMF, the OECD, the Federal Reserve, the U.S Treasury, think tanks, and academia were all producing different estimates of undervaluation. Schumer chose 27.5 percent because it was the midpoint in a range of dozens of these estimates spanning from 10 percent to 45 percent. More important than the obvious imprecision in Schumer’s approach is the fact that reputable economists from esteemed institutions disagreed widely in their estimates of undervaluation. This meant that they took different approaches to estimating the difference between the yuan’s actual value and its true market value, which reveals what Bergsten implies in his January 2014 quote above: that there is no consensus among economists about how to estimate currency undervaluation because there is disagreement about how to ascertain the true market value of a currency unless it is free-floating and determined by its supply and demand. This conclusion yields some important implications.

First, without knowing the true market value of a currency, it is impossible to calculate accurate countervailing duties to offset the effects of currency manipulation. A 10 percent countervailing duty implies that the currency is priced below its actual market value by 10 percent or that the manipulation amounts to a 10 percent subsidy for exports. But at best, a countervailing duty could only be an estimate of the value of a subsidy conferred through manipulation of the currency. Considering that economists’ estimates of Chinese currency undervaluation varied by as much as 35 percentage points, and that any methodology employed by the U.S. Department of Commerce — in its zeal to protect domestic producers above all else — would certainly differ from one employed by an MIT or IMF economist, countervailing duties would likely worsen any distortions caused by currency manipulation and inflict collateral damage on consumers and import-using producers.

Second, countervailing duties would address only the export subsidy portion of the distortion, leaving in place the import tax effect of the currency manipulation, even magnifying its adverse impact on U.S. exporters by keeping foreign products that would have been bound for the United States, but for the countervailing duty, in the foreign market, increasing the supply and suppressing prices. There might also be overt retaliation. U.S. exporters, in other words, would get no relief and, in fact, would be punished by CVD measures.

Third, if a currency’s true market value is determined by the intersection of its supply and demand curves, it is important to recognize that those curves (their shapes and positions) are affected by underlying economic activity, as well as public policy — monetary, fiscal, and regulatory. In other words, currency values reflect all sorts of policy decisions that it would be improper to indict direct manipulation occurring through currency market interventions, but not indirect manipulation delivered through other policy channels. After all, it is the effect of policy and not its intent that matters to the real economy. It is the effect of policy and not just its intent that is evaluated in WTO dispute settlement.

Accordingly, the Federal Reserve’s policy of quantitative easing, which drove down the value of the dollar by increasing the supply of dollars in circulation had no practical difference in consequence from Chinese or Japanese government currency market interventions, which likely will be indistinguishable from the consequences of the European Central Bank’s decision last week to cut interest rates. Each set of policies has similar depreciating effects on the currencies of the governments engaging in those policies. Though the intent of direct currency market intervention may be to drive down the value of the currency, and the intent of monetary easing may be to stimulate demand, both have the effect of reducing the value of the currency. It is that consequence that matters.

Acknowledging — as Bergsten did, before changing his mind, again — the distortions and other shortcomings of treating currency manipulation as a countervailable subsidy, the American Automotive Policy Council (Detroit’s auto lobby), last year, put forth a different solution based on the recommendations in Bergsten’s January 2014 piece. Rather than attempt to calculate undervaluation and then apply countervailing duties, the AAPC side-stepped the measurement problem and proposed that currency manipulation be inferred from certain actions taken by governments. If a country has a current account surplus over a six-month period, adds to its foreign exchange reserves over that period, and has more than adequate foreign exchange reserves (defined as more than enough to cover three months of normal imports), then that country is manipulating its currency.

Economist Arthur Laffer lent his support to this inferential approach to identifying currency manipulators in a recent paper published by the Laffer Center, which the AAPC has seized upon in its efforts to convince free market types that they, too, should support measures to rein in currency manipulation. But Laffer’s paper is less a convincing exposition that currency manipulation requires a response than it is a lesson in the virtues of floating exchange rates. His failure to acknowledge that indirect currency manipulation through other policy channels can have the same effect as direct intervention lends itself to the remedy prescribed by the AAPC — forfeiture of trade agreement benefits for one year — without really endorsing that solution. But the AAPC’s proposed conditionality test and remedy are both problematic.

First, as a trade agreement provision this would never fly because its terms are asymmetric. As the issuer of the world’s primary reserve currency, the United States has little need to accumulate reserves. Likewise, the United States hasn’t had a current account surplus in decades and, barring a collapse in demand and a massive increase in savings rates, won’t anytime soon. Under the AAPC’s definition of manipulation, the United States would be free to engage in additional rounds of quantitative easing or other policies that depress the dollar’s value without meeting the triggering criteria of the provision, as long as its current account remains in deficit. However, countries that traditionally run current account surpluses — such as Japan, Singapore, Vietnam, Malaysia, and Brunei among TPP countries — would already be one third of the way toward losing their tariff benefits.

Second, the proposal whiffs of financial imperialism and is an affront to national sovereignty. Governments engage in foreign reserve accumulation for a variety of reasons — as insurance against capital outflows, to attract foreign investment, to prepare for leaner economic conditions, to share today’s exhaustible bounty (in the case of commodity-dependent economies) with future generations, and so on. Reserve accumulation far in excess of “three-times imports” is not at all uncommon. Governments that accumulate reserves also tend to run current account surpluses. By targeting conditions that may also reflect benign intentions, these rules would impose de facto limitations on the policy options available to foreign governments to exercise their domestic sovereignty. Therefore, it is certain to be opposed by other TPP negotiating partners, causing delay or derailment of the deal.

Third, the penalty of withdrawing trade agreement benefits is anything but targeted. It would hurt U.S. businesses that have begun cultivating relationships with foreign suppliers, disrupt production and supply chains, deter inward foreign direct investment, and penalize consumers, rendering the cure worse than the ailment.

Fourth, the measures would do nothing to remedy the distortions on the export side. Currency manipulation is said to pose a de facto tax on U.S. exports, but none of the remedies considered by the currency hawks does anything to alleviate that burden, as if these producers are interested only in protecting their home markets and not in competing for market access abroad. Why else would they content themselves with the remedies they support?

Fifth, currency hawks have exaggerated the impact of currency values on trade flows. Of course they matter, but with the proliferation of global supply chains and cross-border investment, the overwhelming majority of trade flows today are intermediate goods, so the effect of currency values on final prices cuts in different directions. That’s why, despite a 38 percent appreciation of the Chinese Renminbi vis-à-vis the dollar between 2005 and 2013, the bilateral U.S. trade deficit with China didn’t decrease, but rather increased by 46 percent. That’s why Yen depreciation, by increasing the cost of imported inputs priced in foreign currencies, raises the cost of production in Japan and can make Japanese producers less competitive in the global economy, not more. If only 50 percent of the value of a country’s exports reflects domestic value (and the other 50 percent reflects foreign value), as is the approximate case with China, a depreciating yuan cuts in both directions. Globalization is the best remedy for currency manipulation.

Finally, the claims of Bergsten, Laffer and others that currency manipulation, through a persistently high current account deficit, has led to lower GDP and fewer jobs belies the facts of a strongly positive relationship between deficits and jobs and between deficits and GDP. Why is it that in times of rising trade and current account deficits we tend to see faster economic growth and job creation? It must have something to do with the fact that a current account deficit is matched by a capital account surplus, which means that the net outflow of dollars that occurs when Americans buy more goods and services from abroad than they sell to foreigners is matched by a net inflow of dollars from foreigners who invest more in the United States than Americans invest abroad. In other words, there is no “leakage” of economic activity. Foreign investment in the United States (direct, equity, debt) contributes to U.S. economic activity and job creation here. So, for those who claim that foreign currency manipulation drains the economy through a persistent trade deficit, the problem would seem to be self-regulating through the capital account surplus and global supply chains.

The TPP, the TTIP, and other trade agreements represent opportunities for economic growth. Saddling them with provocative and unnecessary currency provisions would be a grave mistake.

Daniel J. Ikenson is the director of Cato’s Herbert A. Stiefel Center for Trade Policy Studies

Saudi Arabia: New Leader, Same Medieval State

Emma Ashford

The death of Saudi Arabia’s King Abdullah, though not unexpected, caused a spike in oil prices, and a frenzied interest in the succession process and the future rulers of Saudi Arabia, owing much to the state’s outsized role in global markets and Middle Eastern affairs. The succession was in fact painless. But the process highlights the archaic nature of the Saudi regime, and should prompt us to think more closely about why the United States still regards Saudi Arabia as one of its closest allies, despite the nation’s objectionable domestic politics and its foreign meddling.

The succession itself was smooth, elevating Crown Prince Salman to King, and Deputy Crown Prince Muqrin to replace him. Though Salman’s health has been regularly questioned by western commentators – it has even been suggested that he has Alzheimer’s or dementia — he seemed relatively healthy in his first broadcast to the nation. Regardless, he is 79, and the appointment of his half-brother Muqrin, who is ten years younger, as Crown Prince, was key for longer term stability.

The succession will bring no major policy changes, a fact Salman was at painsto point out in his first television address. This is also unsurprising: although Saudi Arabia is nominally an absolute monarchy, in fact most decisions are made by a consensus among a number of senior princes. As King Abdullah’s health worsened in recent months, Salman appears to have been increasingly involved in policy decisions. Saudi policies on a number of key issues, including Syria, Iran and OPEC production levels, are therefore likely to remain entirely unchanged.

The most interesting development is the appointment of Muhammed bin Nayef to deputy Crown Prince, the first third-generation Saudi prince to be placed in the direct line of succession. As the date when the crown will pass to the third generation approaches, internal family politics play an increasing role:  Muhammed is Salman’s full-blood nephew, son of his brother Nayef. Salman and Nayef were members of the Sudairi Seven, the largest group of full brothers born to King Abdulaziz. As such, while they all lived, they formed a powerful bloc within the ruling family. The appointment by Salman of his nephew within the line of succession is likely not due only to Muhammed’s experience as head of the powerful Interior Ministry, but also to a desire to keep the crown within the Sudairi branch of the family. It remains to be seen whether Muhammed’s appointment would be maintained by new Crown Prince Muqrin should he ascend to the throne.

King Salman’s ascent to the throne in Saudi Arabia won’t change much in the Kingdom. And that is precisely the problem.”

Though all these facts are important, they obscure the fact that the succession system itself is completely archaic. Even the recently created Allegiance Council, designed to codify the transfer of power, is merely a more formalized family conference to choose the next heir. In the 21st century, Saudi Arabia is still governed in a way more reminiscent of medieval Europe than any modern state. King Abdullah was lauded as a reformer, but change has been at best incremental: the recent flogging of blogger Raif Badawi illustrates the Saudi state’s stance on freedom of speech, while Saudi women are still neither permitted to drive nor to perform a variety of basic tasks without permission from a male “guardian.”

It is true that good foreign policy often requires working with allies which have domestic politics that are distasteful, and U.S. leaders’ tributes to King Abdullah tended to highlight his role as a U.S. ally in the Middle East. Secretary of State John Kerry described him as a “man of vision and wisdom,” and the White House statement noted that ”the closeness and strength of the partnership between our two countries is part of King Abdullah’s legacy.”

Yet these tributes ignore not only unsavory Saudi domestic politics, but also the many destabilizing actions the country has taken in recent years. Saudi Arabia was the key player in efforts to roll back the protests of the Arab Spring, including military intervention in Bahrain. The Saudis were also instrumental in the early growth of the Syrian civil war, funding and arming anti-regime rebels, often with little attention to where such arms ended up. Today, Saudi leaders are vehemently opposed to a U.S. nuclear deal with Iran, as the long-running Saudi rivalry with Iran would not be well-served by a ratcheting down of tensions. Even the current instability in Yemen is partly due to Saudi meddling in Yemeni tribal politics.

Ultimately, the succession will not alter Saudi foreign policy or the Saudi stance on other major issues like the price of oil. If there is a succession crisis, it is many years away, and the royal family remains firmly ensconced in power. However, the transfer of power can perhaps serve to highlight our often reflexive support for the Saudi government. The system by which a new king is chosen may seem outdated, but it is just one facet of Saudi Arabia’s distasteful domestic politics. Rather than simply welcoming a new monarch, it might be good for U.S. leaders to look more closely at our relationship with Saudi Arabia and their recent foreign policy actions. It’s time to ask whether we should really continue to describe such a regime as one of our closest allies.

Emma Ashford is a visiting research fellow at the Cato Institute with expertise in international security and the foreign policies of petrostates.

Washington and the World According to Mac Thornberry

Christopher A. Preble

The newly installed chairman of the House Armed Services Committee, Rep. Mac Thornberry (R-Texas), discussed the role of Congress in national security during a recent speech at theAmerican Enterprise Institute. There were no big surprises. For example, few would dispute Thornberry’s assertion that the federal government’s first responsibility is to defend the homeland; and most agree that Congress has a vital role in making national security decisions.

But while it’s oddly refreshing to hear a congressional leader defend the legislature’s role in national defense, the chairman’s frame is unduly narrow. He defines Congress’ responsibility for determining the “size, shape, and soul of the military,” but omits Congress’ equally crucial role in authorizing or sustaining military operations abroad. Indeed, Thornberry suggests that the president was essentially free to use the military that the Congress hands to him, which turns the Constitution on its head. At a minimum, Chairman Thornberry might have spelled out his views on the need for a new Authorization to Use Military Force to fight ISIS in Iraq and Syria.

The other point that stood out from the speech is Thornberry’s view of the world, and America’s role in it. Thornberry, echoing many of his colleagues, believes that the world is dangerous, and getting more so. He contends that none of his “predecessors [as HASC committee chairman] had to face such a wide array of serious, complex threats to our security as we do today.”

The just-departed HASC chairman Rep. Buck McKeon (R-Calif.) might agree with that assessment, but former Rep. Carl Vinson (D-Ga. and HASC chair 1949-1953; 1955-1965) or former Rep. Charles Melvin Price (D-Ill. and HASC chair 1975-1985), were they still alive, probably would not.

Thornberry, like many of his colleagues, would be well advised to question the assumptions that drive his views on national security issues.”

For example, Thornberry incredibly claims that “the thought of the Capitol burning as in 1812 was inconceivable for two centuries” and that “only the courage of passengers on United Flight 93 stopped it from happening again on 9/11.” To be clear, no one should doubt the bravery of the Flight 93 passengers, and the role that they played in stopping a genuine disaster. But it is curiously myopic to claim that the very thought of direct attacks on Washington, DC had disappeared from the nation’s collective consciousness for more than 200 years. Tell that to those who lived through the Cold War. Vinson and Price every day pondered a massive thermonuclear strike by Soviet planes and missiles, one that wouldn’t merely destroy the Capitol building, but the entire capital city — and, much of surrounding Maryland and Virginia.

Thornberry’s answer to the threats posed by a supposedly more dangerous world is primacy: a foreign policy that hinges on a forward-deployed military geared to stopping prospective threats before they materialize. But primacy requires a large and costly military, far larger and more expensive than can be supported by $496 billion in 2015 dollars in annual Pentagon spending (the average called for by the Budget Control Act) and more expensive, even, than the military that contended with the Soviets and their supposed clients and proxies for decades (U.S. military spending during the Cold War averaged $458 billion per year, in 2015 dollars).

While Thornberry correctly understands that the resources provided to the U.S. military are insufficient to execute an ambitious global policing mission in the 21st Century, he wrongly sees increased spending as the only solution. We could, and should, revisit the military’s mission, especially by calling on other countries to defend themselves and their interests, and relieve the crushing burden on U.S. troops and taxpayers. How much more U.S. spending would it take if we don’t change course? He doesn’t say. In response to a question from AEI’s Tom Donnelly, Thornberry refused to commit to a minimum floor below which Pentagon spending could not safely fall. In the meantime, the new chairman seems adamant about removing the BCA spending caps (i.e. sequester) and has left open all options — including possible tax increases — in order to get a deal.

It is encouraging that Thornberry is sober-minded enough to realize the need for compromise, and that he won’t be able to get everything he wants for the Pentagon without making difficult or politically painful trade-offs elsewhere. He also wants to remove the slush fund known as Overseas Contingency Operations (OCO). The chairman should stick to his guns on that one.

But overall, Thornberry, like many of his colleagues, would be well advised to question the assumptions that drive his views on national security issues. If the world is not as dangerous as the news tells us it is, if our wealthy allies can do more to protect themselves and their interests, and if we can identify and implement meaningful reforms within the Pentagon’s budget, we need not bust the BCA spending caps in order to maintain the world’s preeminent military.

Christopher Preble is vice president for defense and foreign policy studies at the Cato Institute.

America’s Frightening “Policing for Profit” Nightmare

Roger Pilon

In a move to check certain abuses inherent in the nation’s asset forfeiture law, Attorney General Eric Holder announced last Friday that the Justice Department would limit its practice of “adopting” state and local law-enforcement seizures of property for subsequent forfeiture to the government. Under the practice, to circumvent state laws that limit forfeitures or direct forfeited proceeds to the state’s general treasury, state or local officials who seize property suspected of being “involved” in crime ask the Justice Department to adopt the seizure, after which the proceeds, once forfeited pursuant to federal law, are then split between the two agencies, with 20 percent usually kept by Justice and 80 percent returned to the local police department that initiated the seizure.

If that sounds like “policing for profit,” that’s because it is. And the abuses engendered by this law’s perverse incentives are stunning. In Volusia County, Florida, police stop motorists going south on I-95 and seize amounts of cash in excess of $100 on suspicion that it’s money to buy drugs. New York City police make DUI arrests and then seize drivers’ cars. District of Columbia police seized a grandmother’s home after her grandson comes from next door and makes a call from the home to consummate a drug deal. Officials seized a home used for prostitution and the previous owner, who took back a second mortgage when he sold the home, loses the mortgage. In each case, the property is seized for forfeiture to the government not because the owner has been found guilty of a crime — charges are rarely even brought — but because it’s said to “facilitate” a crime. And if the owner does try to get his property back, the cost of litigation, to say nothing of the threat of a criminal prosecution, often puts an end to that.

So bizarre is this area of our law — when lawyers first stumble on a forfeiture case they’re often heard to say “This can’t be right” — that a little background is necessary to understand how it ever came to be. American asset-forfeiture lawhas two branches. One, criminal asset forfeiture, is usually fairly straightforward, whether it concerns contraband, which as such may be seized and forfeited to the government, or ill-gotten gain, instrumentalities or statutorily determined forfeitures. Pursuant to a criminal prosecution, any proceeds or instrumentalities of the alleged crime are subject to seizure and, upon conviction, forfeiture to the government. Courts may have to weigh the scope of proceeds or instrumentalities. Or they may have to limit statutes that provide for excessive forfeitures. But forfeiture follows conviction, with the usual procedural safeguards of the criminal law.

Not so with civil asset forfeiture, where most of the abuses today occur. Here, law-enforcement officials often simply seize property for forfeiture on mere suspicion of a crime, leaving it to the owner to try to prove the property’s“innocence,” where that is allowed. Unlike in personam criminal actions, brought against the person, civil forfeiture actions, if they are even brought, are in rem, brought against “the thing,” on the theory that it “facilitated” a crime and thus is “guilty.”

Grounded in the “deodand” theories of the Middle Ages, when the “goring ox” was subject to forfeiture because it was “guilty,” this practice first arose in America in admiralty law. Thus, if a ship owner abroad and hence beyond the reach of an in personam action failed to pay duties on goods he shipped to America, officials seized the goods through in rem actions. But except for such uses, forfeiture was fairly rare until Prohibition. With the war on drugs, it again came to life, although officials today use forfeiture well beyond the drug war. And as revenue from forfeitures has increased, the practice has become a veritable addiction for federal, state and local officials across the country, despite periodic exposés in the media.

Civil asset forfeiture is a big challenge. While the Justice Department has recently stepped up to limit the scope of this problem, it is time for Congress to act.”

Thus, behind all of this is a perverse set of incentives, since the police themselves or other law-enforcement agencies usually keep the forfeited property — an arrangement rationalized as a cost-efficient way to fight crime. The incentives are thus skewed toward ever more forfeitures. Vast state and local seizures aside, Justice Department seizures alone went from $27 million in 1985 to $556 million in 1993 to nearly $4.2 billion in 2012. And since 2001,the federal government has seized $2.5 billion without either bringing a criminal action or issuing a warrant.

There will be some cases, of course, in which the use of civil asset forfeiture might be justified simply on the facts, as in the admiralty case just noted. Or perhaps a drug dealer, knowing his guilt, but knowing also that the state’s evidence is inconclusive, will agree to forfeit cash that police have seized, thereby to avoid prosecution and possible conviction. That outcome is simply a bow to the uncertainties of prosecution, as with any ordinary plea bargain. But the rationale for the forfeiture in such a case is not facilitation — it’s alleged ill-gotten-gain. By contrast, when police or prosecutors, for acquisitive reasons, use the same tactics with innocent owners who insist on their innocence — “Abandon your property or we’ll prosecute you,” at which point the costs and risks surrounding prosecution surface — it’s the facilitation doctrine they’re employing to justify putting the innocent owner to such a choice. In such cases, the doctrine is pernicious: it’s simply a ruse — a fiction — serving to coerce acquiescence.

Because it lends itself to such abuse, therefore, the facilitation doctrine should be unavailable to any law-enforcement agency once an owner challenges a seizure of his property. And once he does, the government should bear the burden of showing not that the property is guilty, but that the owner is and, therefore, his property may be subject to forfeiture if it constitutes ill-gotten-gain or was an instrumentality of the crime, narrowly construed (e.g., burglary tools, but not cars in DUI arrests or houses from which drug calls were made). In other words, once an owner challenges a seizure, criminal forfeiture procedures should be required. Indeed, “civil” asset forfeiture, arising from an allegation that there was a crime, is essentially an oxymoron in such cases. The government should prove the allegation, under the standard criminal law procedures, before any property is forfeited.

Short of such a fundamental reform, Holder’s move is welcomed, but it makes only a dent in the problem. As the Department’s press release said, “adoptions currently constitute a very small slice of the federal asset forfeiture program. Over the last six years, adoptions accounted for roughly three percent of the value of forfeitures in the Department of Justice Asset Forfeiture Program.” Moreover, the new policy does not apply to seizures resulting from joint federal-state task forces, joint investigations or coordination, or federal seizure warrants obtained from federal courts to take custody of assets originally seized under state law. And of course the reform does not limit the ability of state and local officials to seize assets under their state laws.

Regrettably, many if not most of the abuses today take place at the state level, yet changes in federal law, which often serves as a model for state law, can affect state law as well. In his recent statement, Holder said that “this is the first step in a comprehensive review that we have launched of the federal asset forfeiture program.” Members of Congress from both parties, already working on forfeiture reform, welcomed that news. Conceivably, then, this is one area in which the new Republican Congress can work with the administration to bring about further reforms. And in that, they would do well to study the course taken by the late Henry J. Hyde of Illinois, who paved the way for the Civil Asset Forfeiture Reform Act of 2000. That act made several procedural reforms, but it left in place the basic substantive problem — the “facilitation” doctrine. The abuses have thus continued, so much so that two former directors of the Justice Department’s civil asset forfeiture program recentlywrote in the Washington Post that “[t]he program began with good intentions but now, having failed in both purpose and execution, it should be abolished.”

If that is not possible, Congress should make fundamental changes in the program. In particular, if a crime is alleged, federal law-enforcement officials should have power to seize property for subsequent forfeiture under only four conditions: first, when the property is contraband; second, when in personam jurisdiction is not available, as in the admiralty example above; third, when, in the judgment of the officials, the evidence indicates that a successful prosecution is uncertain but there is a high probability that the property at issue is ill-gotten-gain from the alleged crime and the target does not object to the forfeiture, as in the drug-dealer example above; and fourth, when the property would be subject to forfeiture following a successful prosecution and there is a substantial risk that it will be moved beyond the government’s reach or otherwise dissipated prior to conviction — but such seizures or freezes should not preclude the availability of funds sufficient to enable the defendant to mount a proper legal defense against the charges, even though some or all of the assets may be dissipated for that purpose.

Those reforms would effectively eliminate the facilitation doctrine, except for a narrow reading of “instrumentalities,” and would largely replace civil forfeiture proceedings with criminal proceedings. Consistent with last Friday’s reform, however, Congress should put an end to the underlying incentive structure by requiring that forfeited assets be assigned to the federal treasury, rather than to the Justice Department, which should not be allowed, in effect, to “police for profit.” In 2013, the federal Asset Forfeiture Fund exceeded $2 billion, having more than doubled since 2008 and increased twenty-fold since it was created in 1986. Not coincidentally, the growth in civil asset forfeiture closely parallels the ability of law enforcement agencies to profit from their activities. In fact, a veritable cottage industry has arisen that instructs officers how to stretch their legal authority to the absolute limit and beyond. It’s a system that more resembles piracy than law enforcement.

At the least, if the reforms above are not made, Congress should require the government to show, if challenged, that the property subject to forfeiture had a significant and direct connection to the alleged underlying crime, not simply that it was somehow “involved” in the crime, as now. And the standard of proof should be raised from a mere preponderance of the evidence, again as now, to clear and convincing evidence. Similarly, a proportionality requirement should be imposed to ensure that the government does not seize property out of proportion to the offense. Congress should require officials to consider the seriousness of the offense, the hardship to the owner, the value of the property, and the extent of a nexus to criminal activity. If a son living in his parents’ home is convicted of selling $40 worth of heroin and officials try to take the home, as recently happened in Philadelphia, a proportionality requirement would ensure that prosecutors cannot take a home for a $40 crime.

Finally, assuming that the facilitation doctrine is not eliminated, current law affords an innocent owner defense, but the burden is on the owner to prove his innocence by a preponderance of the evidence. Just as people enjoy the presumption of innocence in a criminal trial, property owners never convicted or even charged with a crime should not be presumed guilty in civil asset forfeiture proceedings. The burden of proof should be on the government to prove, by clear and convincing evidence, that the owner knew or reasonably should have known that the property facilitated a crime and he did nothing to mitigate the situation or that the property reflected the proceeds of a crime.

The Civil Asset Forfeiture Reform Act of 2000 has proven inadequate for curbing abuses, as countless Americans across the nation, having done nothing wrong, continue to lose their homes, businesses, and, sometimes, their very lives to the aggressive, acquisitive policing that this law encourages. There is broad agreement today that Congress should act quickly and decisively to fix a system that is badly in need of reform.

Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato’s Center for Constitutional Studies.