Author: Pat Borchers

Pat Borchers is a contributing writer on Leavenworth St.

Margins of Error

screen-shot-2016-10-04-at-7-04-59-amPatrick J. Borchers is a contributing writer on Leavenworth St. You can read more from him at his blog, The Way I See It.

This is driving me batty with regard to polls and margins of error. I know that a lot of people don’t like math, but you’d think that self-professed political reporters would take some time to educate themselves on the topic.

Polling involves a universe of roughly binary samples. Are you going to vote for Trump? Yes or no are the two options (we’ll put those who are undecided to the side for the sake of simplicity).

Are you going to vote for Clinton? Again, yes or no. Binary. Two choices.

Based upon the sample size one can calculate a “confidence interval” for each. The most commonly used one is 95%, meaning that one can say with 95% certainty that the true value is between the two ends of the confidence interval.

This requires the calculation of a standard deviation. One standard deviation each direction from the observed value and you can say the true value is lies within this range to 68% confidence, two standard deviations 95%, three 99%.

The size of the confidence interval goes as the square root of the number of samples. So polling 200 voters instead of 100 voters will shrink the confidence interval by about 1.4 times. This is the reason that the number sampled often seems low. National polls of the presidential race might only involve 400 or 500 likely voters. Polling 5,000 would shrink the confidence intervals, but not by 10 times — more like just over 3 times, and cost a lot more.

If you don’t want to do the math, here’s one of many calculators available on the web.

Of course, pollsters have to avoid “sample bias.” Polling only Democrats or only Republicans in the presidential race would introduce massive sample bias. There’s also confirmation bias — if you already like a particular candidate the chances are vastly greater that you believe your candidate won the debate.

Pollsters have different ways to trying to account for bias and they don’t all agree. The LA Times/USC tracking polls have consistently showed Trump with a narrow lead while Reuters, Fox and the others show Clinton with a narrow lead. They must have different sampling methodologies because it has persisted so long (well over a month) that it’s extremely unlikely it’s a random occurrence

Let’s use a real life example. NE-2 is getting some attention because of Nebraska’s district method for allocating electoral votes. Emerson ran a poll last week that showed Trump up 49-40 in the second district. Yesterday the Omaha World-Herald offered the opinion (it’s not a fact, as I’m about to discuss) that this was a “tie” because it was within the margin of error.

Without having seen all the detail (cross-tabs and such) my guess is that the so-called margin of error was plus or minus 5% on each so Clinton could be as high at 45 and Trump as low as 44. So it’s tied, right?

Hardly. The distribution for each candidate is the bell curve with which most are familiar. It peaks in the middle (49 for Trump and 40 for Clinton) with what are called “tails” on each side. So the low side tail of Trump would just barely touch the high side tail for Clinton.

Assuming I’m right about confidence intervals, the chances of Clinton being ahead or tied are very low and there’s a better chance that Trump is actually up by over 15 points.

My point is that if a poll shows one candidate up 49-47 — and the reported margin of error is 4% — having that lead is not insignificant. The 49-47 result is the most probable value. It’s just that (in this very close scenario) there’s a reasonable chance the candidates may be tied or the one behind may actually be ahead. But there’s a much better chance that the candidate at 49 is actually ahead.

The pollsters, of course, have more sophisticated algorithms to account for the fact that the choices are not completely binary – undecided voters and those expressing a preference for Johnson or Stein muddy the waters a bit. Nor are the choices truly independent because a voter who says “yes” on Trump likely won’t say “yes” on Clinton too.

A fun game to play is to guess where Johnson’s and Stein’s voters will go when he inevitably drops down to three or four percent and she to under one percent, because voters become more pragmatic as election day draws near and they realize that only Clinton or Trump will win. The pollsters seem to recognize this as so many polls report the race with just Clinton and Trump and then Clinton-Trump-Johnson-Stein.

Thus far the margins between Clinton and Trump stay about the same, it’s just their totals go up. So, to take a couple of examples from last week: Reuters had it (Clinton-Trump-Johnson-Stein and then Clinton-Trump) 42-38-7-2 and 44-38 (so Clinton plus four and plus six) and PPP had it 44-40-6-1 and 49-45 (so Clinton plus four in both).

Of course, polls can be “wrong” because people can (and do) change their minds driving to the polling place, sample bias or what have you. But in the last race, Real Clear Politics’ aggregation of the polls had Romney with a less than a percent lead with about a week to go but then the tide turned in the last week (I think Obama was helped by Super Storm Sandy, but pick your own theory) and on election eve the aggregation of polls showed Obama with a three point lead, which was on the money.

The point is that a three point lead meant something, no matter the blather about the margin of error.

It’s not Ideology, stupid

TrumpBClintonPat Borchers is a contributing writer on Leavenworth St.

Of course, the title is a play on Bill Clinton’s line about the economy. But as someone who spent several months campaigning locally, and several months in denial about Trump’s and Sanders’s prospects, it applies to me.

I began by thinking that Trump was a passing fad. As someone who cares a lot about policy, I thought his debate performances were disasters. He didn’t seem to have any clear positions except that the U.S. is going to build a wall on its southern border and Mexico is going to pay for it.

Other than that, he seemed to be all over the map. He once was pro-abortion and now he’s anti-abortion. The economy does better under Democrats, oh wait it doesn’t. He had a plan to pay off the national debt (which would require 24% economic growth for each of eight years, the record being 19% at the start of World War II).

When Cruz beat Trump in the Iowa caucuses I figured it was over for him and the real race was Cruz and Rubio. Then Trump won New Hampshire and kept winning and winning.

In the other corner is Bernie Sanders, the irascible Vermont Senator who is a self-described Socialist and has been a member of the Democratic Party since way back in 2015. Surely he’s not going to get any traction, I thought. With over 20 state primary and caucus victories, and within striking distance of Mrs. Clinton in California, he refuses to go away.

It’s very unlikely that Sanders will get the Democratic nomination and virtually certain that Trump will get the Republican nomination. But the two of them have really hit a nerve.

Campaigning unsuccessfully for the state legislature, I was struck by the number of people who were favorable on both Trump and Sanders. People who had caucused for Sanders put up my yard signs even with me carefully explaining that I am both a social and fiscal conservative.

The short of it is that a lot of people just hate the federal government. They see the Clintons and the Bushes and even guys like Cruz — who tried to position himself as an anti-Establishment candidate but had trouble because he is a sitting Senator — as anathema. It’s 4th and 21 early in the fourth quarter and we’re down by 17 and a huge chuck of the electorate doesn’t want to punt. They want to run a fake punt, or throw long or do something other than make the “safe” play.

These disaffected voters aren’t really sure what the problem is, they aren’t really sure what the solution might be, but they know for darn sure that things aren’t going well and they don’t trust anyone from the Washington elite to fix it. The sources of anxiety are legion. Unemployment is allegedly low, but it sure doesn’t feel like a robust recovery from the Great Recession. They don’t feel safe for all sorts of reason, from the San Bernardino shootings to the bombings of nightclubs in western democracies abroad. They don’t think the long security lines at airports are really doing them any good. And in real terms, they’re paying more tax than they ever have while the national debt pushes $19 trillion.

I’ll make the following prediction. Mrs. Clinton (whom I think is virtually certain to be the Democratic nominee, scandals be darned) won’t get 50% of the popular vote. She may get elected, but it will be because the opposition to her gets divided between Trump, the Libertarians and French-fry-guy (assuming he gets on any significant number of state ballots).

I wish there were a simple answer, but there’s not one.

Are polls relevant?

Pat Borchers 01Pat Borchers is a contributing writer on Leavenworth St.

Robynn Tysver (the most senior of the Omaha World-Herald political reporters) and I are professional acquaintances. She has quoted me in various stories. In case you’re wondering, I don’t go “off the record.” I figure that if someone wants to give me grief over something I’ve said that I should get the grief and not her.

But in our professional acquaintance, she said something that has stuck with me. She said that polls aren’t worth much until about 30 days before the election. She’s right.

The context in which she said it to me was the GOP primary for the Senate in 2014. If you rolled back the polls to about 60 days before the primary, Shane Osborn (whom I supported in the primary) looked like a certain winner. But 30 days out, Ben Sasse (for whom I worked hard in the general) clearly had caught an updraft and Sid Dinsdale had gotten some traction.

As it turned out, Sasse won the primary with 49% (carrying 92 of 93 counties) and Dinsdale and Osborn were in the low 20’s.

So far, it’s hard to argue with the voters. Sasse, with his formidable intellect and charisma, is likely to be a force in the Senate for years unless he gets dragged into a national election (in which case he might be something bigger).

So what’s the point? Locally, incumbent Congressman Brad Ashford is likely to poll ahead of any likely GOP opponent in the NE-2 election. Two years ago, the Nebraska Democratic Party was doing handsprings over the fact that polling showed that Lee Terry had only a small lead over Pete Festersen. Oh wait. You mean that Festersen didn’t run? But Terry still lost? Unimaginable.

I’m sure that any poll would show Ashford with a big lead over any of the likely GOP nominees to oppose him. But it doesn’t matter. At this point, polls are little more than a name identification test. Ashford, who has been around the political block a time (or two, or three, or four), has a huge name identification advantage over any likely opponent.

The same is true at the presidential level. Mrs. Clinton has a double-digit advantage over any of the likely GOP nominees for President. It. Doesn’t. Matter.

The presidential election will be won or lost on whether the GOP nominee can put forward a comprehensible plan that’s better than the slow-motion “recovery” that President Obama is touting as economic “success” and whether the GOP nominee can put forward a plan that offers a foreign policy that is something other than a Neville Chamberlain-esque attempted appeasement of our enemies.

So work hard for your preferred candidate. Rally around the nominee of your party even if he or she isn’t your dream date.

Not much is at stake. Just the future of our nation and the world. No pressure.

The “State Exchange” Case: The Federal Government Shouldn’t Win, but it Probably Will

Patrick Borchers is a contributing writer on Leavenworth St.

PatBorchers01This won’t come as a shock to most of you, but the so-called Patient Protection and Affordable Care Act (“ACA”) is a mess.

It’s not just that it’s a mess in that its mechanisms don’t match the stated goal of universal and affordable care. It’s a mess from a craftsmanship standpoint.

It’s been made messier yet by the Supreme Court. In 2012, the Supreme Court upheld the individual mandate on a tortured rationale. Most people thought that Justice Kennedy would be the swing vote in that case, but I was confident that he’d vote that the individual mandate was beyond Congress’s power. After listening to the tapes of the oral argument, the vote I was worried about was Justice Roberts’s and, as it turned out, with good reason.

Roberts managed to construe the individual mandate as a “tax” (an argument that the other eight Justices rejected) and joining with the Court’s four liberals (who said it was “commerce”) upheld the individual mandate.

The Court, however, struck down the mandatory Medicaid provision as being too coercive. The ACA as written would have required states to cover everyone up to 133% of the poverty line or lose all of their Medicaid funding. The Court ruled that states must be given a choice as to whether to accept the additional Medicaid funding offered and many, including Nebraska, have refused on the ground that even if Congress holds to its promise to cover 90% of the increased cost it will be ruinously expensive.

But buried in the ACA’s thousands of pages of text is a ticking time bomb and it has to do with the “exchanges” on which persons who don’t otherwise have coverage are to buy their policies. The ACA clearly gives states the choice of either creating their own exchange or allowing their residents to buy on the federally created exchange (the notoriously buggy site).

Part and parcel of the ACA’s redistributive economics is that persons between 100% and 400% of the federal poverty line are entitled to gradually diminishing subsidies the closer they get to the 400% ceiling. But the flawed Medicaid aspect of the law makes a mess out of the scheme. For states like Nebraska that have opted out, there are people who don’t qualify for Medicaid and are too poor to receive a subsidy.

But back to the exchanges.

Most states (34 at this point), including Nebraska, have opted not to create their own exchange. Then someone noticed something odd about the subsidies. The ACA says that the subsidies are available to those who are “enrolled in through an Exchange established by the State under section 1311.” But the federal exchange is created by a different provision, section 1321. And the federal exchange makes no mention of subsidies.

So it appears that under the plain language of the ACA the subsidies are only to go to those who signed up under a state exchange created under section 1311. Moreover, there are other apparent downstream consequences, such as the employer mandate disappearing in states that don’t have their own exchange.

The theory advanced by most commentators is that this was just a drafting boo boo born of the fact that the state and federal exchanges appeared in different versions of the bill and that nobody noticed the gap before it went to the President’s desk. However, the talkative Prof. Gruber (remember him of the “stupidity of the American voter” quote?) was filmed saying that it was an intentional strategy to force states to create their own exchanges.

The lower courts, predictably, arrived at conflicting results. The U.S. Court of Appeals for the Fourth Circuit (centered in Richmond, Virginia) applied what I call the “we know what you meant” theory of statutory interpretation and ruled that the subsidies extend to those who signed up on the federal exchange. The U.S. Court of Appeals for the District of Columbia applied what I call the “you’re stuck with what you wrote” theory of statutory interpretation and held that they did not.

A couple of weeks ago, the case was argued before the U.S. Supreme Court. The verbal gymnastics performed by the lawyer for the federal government, egged on by the Court’s four liberals, were something to behold. The government has at least three main theories as to why the subsidies should attach to the federal exchange. First, read “in context” Congress meant to extend the subsidies to the federal exchange, because otherwise the statute would unravel. Second, the reference to “state exchange” isn’t really that – it’s a reference to whatever exchange the state uses (never mind that stuff about “created under section 1311.”) Third, the statute is “ambiguous” and therefore administrative agencies (here the IRS) are entitled to “clarify” the statute through administrative regulations.

It’s clear beyond any doubt that the four liberals will vote with the government. In fact, they left so little chance for challengers’ lawyer to speak that Chief Justice Roberts gave him 10 extra minutes. If I had been the lawyer for the federal government, I think I might’ve just said “what she said,” pointing to Justice Kagan, who ran point for that wing, and sat down.

Conservatives Scalia and Alito pushed back mightily. Justice Scalia was nearly taunting the government’s lawyer daring him to cite to a case where the Supreme Court has “rewritten” a statute to make it make more sense. Justice Thomas, who doesn’t ask questions, is a good bet to vote with Scalia and Alito because Thomas has little patience for others’ mistakes.

Which brings us to Justices Roberts and Kennedy. Roberts, normally an aggressive questioner, didn’t say much. Kennedy was hard on both lawyers. At times he seemed worried that interpreting the statute to only extend subsidies to states with their own exchanges would be unduly coercive, like the Medicaid trap that Congress tried to build. At other junctures he was highly skeptical of the government’s argument that the statute was “ambiguous” and that the IRS could be trusted to fix it.

Roberts’s near silence is hard to interpret.

Predicting the outcome of these cases is difficult. On the one hand, I was very surprised that the Supreme Court agreed to hear the case. It seemed very likely that the full D.C. Circuit would reverse the three judge panel that read the statute literally, which avoid the split in the lower courts and allow the Supreme Court to stay out of it.

But the simple math is that the federal government clearly has four rock solid votes. The challengers have two in Scalia and Alito, and probably a third in Thomas. So the government only needs to get one of Kennedy and Roberts. I hope to be proved wrong, but I think the government will get the vote it needs.

Our Constitutional Crisis

Patrick Borchers is a contributing writer on Leavenworth St.

PatBorchers01It hadn’t occurred to me to attach the word “crisis” to the Constitution until Ben Sasse did so in one of his Youtube videos during the Republican Senate primary in 2014. The video went sort of viral after it was linked on the Drudge Report.

Sasse was referring then to one of Obama’s executive pronouncements delaying a date in the Affordable Care Act. (Obama did so 28 times, so it’s hard to keep them straight.)

At first I thought Sasse’s characterization was overblown, but the more I have thought about it the more I think he’s right. The odd thing about crises is that sometimes it’s harder to see them from the inside than it is looking at the long arc of history.

The United States, by my reckoning, goes through one about every 75 years and this one has arrived right on schedule. In each case the response has been the further consolidation of power in the federal government, and lately pulling it in even further into the White House.

Sometimes the strengthening of federal power has been for the better, but lately I think for the worse.

The first crisis brought us the original Constitution, which was drafted in 1787. It replaced the weak Articles of Confederation with a much more robust federal government.

Rolling forward roughly 75 years brings us to the Civil War. The southern states believed that they had a sovereign right to secede and imagined themselves to be fighting the second American Revolution, but with the North as the enemy rather than Britain.

Of course, the social issue of the time was slavery, though several border slave states did not secede. With the Union’s military victory secured in 1865, the Civil War Amendments (the 13th, 14th and 15th) were ratified. Most obviously they abolished slavery, but they gave Congress considerable new legislative authority.

Rolling forward another 75 years brings us to the Great Depression. FDR’s New Deal depended on a massive expansion in the interpretation of the Commerce Clause to provide federal power for national welfare and regulatory structures. When the Supreme Court proved recalcitrant, FDR proposed packing the Court by adding up to six new Justices (taking the Court to 15 Justices). Although the Court packing plan wasn’t adopted, the Court got the message and started voting to uphold most of the New Deal legislation.

If we roll forward roughly another 75 years, we come to the Great Recession and Obama’s election. Again the response has been a dramatic increase in the power of the federal government, and lately in the White House.

In the two-year window from 2009 to 2011 when the Democrats controlled both houses of Congress and the White House, two enormous pieces of legislation passed – Dodd-Frank and the ACA. Although the scope of the legislation in each case is breathtaking, what’s even more remarkable is the power delegated to regulatory agencies.

What’s equally stunning, however, is that President Obama has claimed both that Congressional action and inaction give him the authority to essentially legislate by Executive Decree. In the case of the ACA – as mentioned above – he 28 times unilaterally delayed implementation of various facets of the act.

In Representative Trey Gowdy’s epic speech on the House floor, he reminded the President that Congress doesn’t pass suggestions; it passes laws.

But even when Congress doesn’t pass anything, President Obama claims the right to act unilaterally. In announcing his Executive action on immigration, Obama said defiantly: “To those in Congress who question my authority to act . . . I have one response. Pass a bill.”

A moment’s consideration is all that is needed to see the patent danger in this line of reasoning. Congress has passed a lot of laws on immigration and there has thus far been no political consensus to pass any more. In the scheme of separated government that we have, the President is to “Take Care” to see that the laws that are on the books are faithfully executed.

But President Obama’s position is that he and the rest of the Executive Branch can decide to enforce the immigration laws it likes and ignore the others, at least until Congress passes an immigration bill that he’s willing to sign. This is, quite literally, Hobson’s choice.

Looking back, I think few now would quarrel with the decision to adopt the Constitution or Lincoln’s resolve in preserving the Union and the Civil War Amendments.

As to the New Deal, in hindsight it provoked only tepid progress against rampant unemployment. In 1938, six years into FDR’s presidency, unemployment spiked at 19%, almost as high as it was when FDR took office. The event that really pulled the United States out of the Depression was entry into World War II. Of course some features of the New Deal, notably Social Security, are stitched into the fabric of most Americans’ expectations of the federal government. But Social Security is actuarially doomed absent significant changes in eligibility and benefits.

In my view, Obama’s expansion and consolidation of power is a bridge much, much too far. He has run roughshod over the Constitution, but perversely the magnitude of his actions has made it difficult to challenge them in court because of the standing doctrine, which requires an individualized injury to sue.

Of course this poses the question of what to do about it. There are more vocal calls for a Constitutional Convention and detailed proposals have been made for amendments that would mandate shrinking of the government, the most prominent of which is Mark Levin’s proposal for the “Liberty Amendments.” While many of these are worth pursuing – I particularly like his redefined Commerce Clause – these are a long-run project.

The more immediate project is to win more elections with candidates who truly believe in a limited government. Unfortunately, the proponents of expanded government have succeeded in capturing the flag of “action” and labeling others as “obstructionist.”

But restoring the size of government to that envisioned by the Constitution is hardly obstructionist; it is greatest imperative of our time.

The Clarence Thomas I Know

Patrick Borchers is a contributing writer on Leavenworth St.

Thomas and BorchersSupreme Court Justice Clarence Thomas might be the most misunderstood public figure in the United States. But he doesn’t care.

All of this should come with a bias warning that he and I are friends. The fact that he and I are friends is due to a series of serendipitous events rather than some grand achievement on my part. But I’ll get to that in a bit.

When President George H.W. Bush nominated Thomas to the U.S. Supreme Court in 1991, I knew little about him. He had been a judge on the influential D.C. Circuit for a bit over a year. Prior to his stint on the D.C. Circuit he had been named by President Reagan to be the head of the Equal Employment Opportunity Commission.

It was obvious to me that he was judicially conservative, as that term is generally defined. Time has shown that he has perhaps the most consistent commitment on the Supreme Court to interpreting the Constitution in accordance with its original intent.

In case you think that this is a cover for a politically conservative agenda, it doesn’t always work this way. For instance, originalists have shunned constitutional limits on punitive damages and often sided with criminal defendants against sentencing enhancements and the like that are not determined by juries.

Of course, most remember Thomas from the explosive confirmation hearings in which Thomas was under fire based on the testimony of Professor Anita Hill. Opinion polls then and now show that people are deeply divided about which one was telling the truth, to the extent that they contradicted each other.

I can’t tell you what went on between them, because I wasn’t the proverbial fly on the wall. It’s easy for an interaction between two people to result in different understandings about what happened. Thomas has told me things that make me think that there are more aspects to the story than generally known. But I’ll leave it at that.

Thomas has always had a special relationship with Creighton Law School. His wife, Virginia (Ginni) Lamp Thomas, is a graduate. He gave the address at the Law School’s centennial anniversary in 2004. He is a huge Husker football fan; he can tell you where the recruiting class ranks and what he thinks of the coaches. He loves Creighton basketball; he and I went to a game and he was booing the refs and still has a t-shirt that the student section gave him. Oh, and he teaches for a week at Creighton Law School in February every other year.

When I was Dean of Creighton Law School he started teaching a seminar on constitutional adjudication in alternate years. A lot of his desire to keep coming back has to do with his friendship with Creighton Professor Michael Fenner (with whom Thomas co-teaches), who stuck by him when other people were abandoning him in droves during the confirmation hearings.

The public perception of him is that he’s dour and grumpy – scarred by the confirmation hearings – and thus doesn’t ask questions during Supreme Court arguments.

This is so silly that it’s hard to know where to begin. I’ve asked him about his lack of desire to ask questions, and he harkens back to – as he calls them – “giants” of the Court like Rehnquist and White and notes that they asked questions much less often than does the current crop of Justices. Besides, he says – gasp – he’s more interested in hearing the lawyers make their arguments than getting a preview of what his colleagues will say in conference.

As to the “dour” impression, I wish everyone in the world could hear his belly laugh. It echoes through the Law School. If anyone wants a cure for the winter blues, just drop by and listen to him.

Thomas one of the most astute lawyers I’ve ever met. His Supreme Court opinions are on average 25% shorter than those of his colleagues. Why? As he says: “I’m not interested in gum flapping.”

Last week, when Thomas was at Creighton, he noticed a young man who appeared to be nervous about to be going into an interview with a law firm. So Thomas sat down in the chair next to him and asked him what was bothering him. The student explained and Thomas went through likely interview questions and offered advice on how to answer them.

This wasn’t an “I’m on camera and I know it” moment. I wouldn’t know about it except that the student told me.

So here’s a Supreme Court Justice helping a young law student he doesn’t know do his best to get a job.

That’s the Clarence Thomas I know.

Cigar Bars and Government Paternalism

PatBorchers01This is the first post as a new contributing writer on Leavenworth St. by Pat Borchers. He has written attributed guest columns here previously. You can read his bio in the “Writers” tab above.

I have a good friend who has varied hobbies and one of them is smoking cigars.  I’ve never been a smoker of any sort and allure of cigars is a mystery to me.

But a lot of people enjoy them.  My friend wanted to watch one of the NFL playoff games and invited me to an Omaha cigar bar.  The smoke wasn’t too bad because the air handling system is good, but I don’t really want to go back.

However, as my mother used to say, “that’s why they make chocolate and vanilla.”  My friend enjoys cigars and the comfortable surroundings of his favorite cigar bar.  Nobody’s forcing me to go into a cigar bar.

In Nebraska, cigar bars have gotten to be big news as of late.  The Nebraska Supreme Court, in a weirdly reasoned opinion, held that the exemption for cigar bars to the Indoor Clean Air Act was unconstitutional “special legislation.”  However, the court held that the exemption for hotel rooms designated as “smoking” was constitutional.

The reasoning was bizarre because the function of a legislature is to engage in line drawing.  The Nebraska Supreme Court’s opinion read as though it was acting as a second house of the legislature by second-guessing the policy rationale for cigar bars, even to the point of quoting from legislative debates.

State Senator Tyson Larson is sponsoring a bill to reintroduce the cigar bar exemption and the bill goes to considerable lengths to spell out the rationale for it, and I believe that if it’s enacted it will withstand a constitutional challenge. 

Good on Senator Larson.

As should be clear, I don’t have a personal dog in the fight.  But my generally libertarian instincts cause me to chafe at government paternalism.

Debates about the political legitimacy of paternalist behavior by governments date back at least to Plato.  Paternalistic laws are those that the government imposes on you because it believes that certain behaviors are harmful to you, but not necessarily anyone else.

It’s sometimes hard to classify laws as paternalistic.  Very few laws are purely paternalistic. Laws requiring the use of seat belts were decried as paternalistic when they began to be enacted by states, and there’s no doubt that there is a large degree of paternalism in them. 

But failure to use a seat belt runs a significant risk of imposing burdens on others.  Injuries in car accidents are undeniably more serious on average if the occupant isn’t wearing a seat belt.  Consequently, costs are imposed on other people through increased insurance premiums, increased numbers who need government assistance through disability payments and the like.  Besides that, the burden imposed is trivial.  All you have to do is take 3 seconds to put on a seat belt.

But the burden in not allowing cigar bars is much more significant.  Of course, there’s nothing that prevents my friend from smoking a cigar at home.  But likely the air handling isn’t as good there and he’d miss out on the opportunity to be with others who enjoy cigars.  Denying someone a significant pleasure is not a small cost.

Of course, there are some external costs involved.  I haven’t looked into it, but probably there are health risks associated with cigar smoking, so in theory there might be costs that the rest of us would assume.  But unlike seat belt laws – where the burden is trivial and the risk significant – with cigar bars the reverse is true.

The biggest experiment in paternalism in the United States – Prohibition – was rife with unintended consequences.  It created a huge black market for liquor that made gangsters like Al Capone rich.  The covertly brewed alcohol that was consumed during Prohibition – moonshine as it was called – was dangerous, because it often included more than the alcohol (EtOH) that we associate with drinking, leading often to blindness.  Moreover, it turned the United States into a nation of hard drinkers (rather than consuming mostly beer), because the smaller volume and higher potency of hard liquor made it easier to smuggle.

Of course, all of this has implications for other behaviors that are prohibited or heavily regulated, such as gambling and the use of controlled substances.  The calculus for each one varies.

But I’m quite confident that banning cigar bars is unjustified government paternalism.