Virginia's Road Rage

Virginians keep getting more and more upset with the state's new "abusive driver fees," first reported by the Washington Post back in June. Under the new system, drivers convicted of certain traffic offenses will get hit up with an extra "fee" on top of the ordinary fine they're assessed by the judge. And the fees are hefty: if you drive more than 20 miles an hour over the speed limit, you'll pay the ordinary $200 fine and then get assessed a "fee" of $1,050 by the state. Quite an unhappy surprise.

And, oh, by the way, the fees apply only to Virginians -- out-of-state bad drivers don't have to pay them.

Since the fees were first reported by the Post they've led to a long series of articles about how upset Virginians are: first there was a report of a "growing backlash," then an "outcry" and a claim that some of the fees were "mistakes," then a petition for repeal that got over 100,000 signatures. The latest word is a report on the unintended consequences of similar fees in other states that have adopted them, such as an increase in unlicensed drivers (people who've had their licenses suspended because they can't afford to pay the fees), and a suggestion that the fees haven't done much to improve safety in those states.

The fundamental problem, I would say, is that once fees become detached from their original purpose, it's impossible to deal with them properly. The purpose of fines for speeding and other driving offenses should be to punish and deter bad driving. The fees should be set at a level sufficient to make people think twice about speeding or doing something else that's hazardous. The goal should be to improve safety on the roads.

It's clear, however, that the purpose of the new Virginia fees is to raise revenue. The fees originated as a substitute for a statewide tax increase. Once that becomes the goal, there's no stopping point. Why not charge speeders $5,000? And $10,000 for drivers running a red light?

Once fees become primarily about revenue, their ability to serve their original function can be greatly reduced. The best example, I think, is the rush-hour times on Washington's subway, the Metro. When I arrived in town, evening rush hour was defined as ending at 7 pm. In 1995, it was extended to 8 pm.

Now, that was ridiculous. The purpose of rush hour (during which the fares are higher) is to spread out passenger traffic by giving people an incentive to leave work later. Rush hour ending at 7 pm can do that with some success. But if rush hour goes until 8, the number of people willing to wait is going to decrease pretty sharply.

The obvious problem was that Metro's board had detached rush hour from its purpose. They didn't extend it until 8 because that made sense in terms of spreading out passenger traffic; they just needed more money, and so they decided to hit up more riders -- basically, almost all the commuters -- for the rush hour fares. But once they did that, rush hour couldn't serve its function of spreading out passengers, because people wouldn't want to wait until 8. I presume the trains got a lot more crowded from 5:30 - 6:30, as the people who used to wait until 7 just went home when they really wanted to. Today, the rush hour fare (officially known as the "regular fare," isn't that nice) has returned to its more sensible 7 pm ending time.

Virginia will, doubtless, experience a similar fate if it keeps its "abusive driver" fees. They may sound like a safety measure, but so long as they are really a revenue measure, I doubt they will be set at a level that will best serve the safety function. They'll be too high, they will have unintended consequences, and you'll see a lot of unsmiling Virginians on the roads.

Making Nice -- Too Nice

What's the point of scheduling an all-night Senate debate if you guarantee that there won't be any votes during the night? The whole point of the exercise is to force the filibustering minority to stay on their feet through the small hours -- to see if they've got the fortitude to filibuster for real. When they get too tired and cranky to keep debating, you hold the vote.

It seems that the Republicans were right after all -- the all-night debate was just a piece of political theater. Majority Leaer Reid wasn't really putting the minority to the test; he just wanted a good show.

Time for a Real Filibuster

Senate Majority Leader Harry Reid plans an all-night session to highlight Republican intransigence on allowing Iraq war measures to come to a vote. And about time, too! It's bad enough that the filibuster has become such a routine mechanism that basically nothing can get through the Senate without a 60-vote supermajority. Even worse is the practice of allowing the filibustering minority to keep bankers' hours.

If the Republicans want to filibuster the Democrats' proposals to bring our troops home from Iraq, they have they power under the rules, but let's make them really do it. Let's see them on their feet all night, in good, old-fashioned, real filibuster form. Maybe holding their feet to the floor long enough will inspire a little compromise on actually bringing matters to a vote.

Risky Business

I guess the District of Columbia (my home) has little choice but to seek Supreme Court review of the D.C. Circuit's decision striking down its gun-control law, but it's a risky business. As things stand, the D.C. Circuit's decision is an unusual interpretation of the Second Amendment that will only affect the nation's capital. The Supreme Court might reverse it, but it could also affirm, and then gun control will be revolutionized nationwide.

The Second Amendment was a sleepy constitutional backwater until pretty recently, starting, I would say, with Sanford Levinson's article, The Embarrassing Second Amendment. Prof. Levinson pointed out that perhaps the Amendment really does mean that there is an individual right to bear arms. Ever since, the debate has gotten more lively.

I'm kind of agnostic on gun control. My old friend Eugene Volokh has written quite a lot about it and suggests that the statistics really do show that widespread gun ownership makes society safer. I've never investigated the matter thoroughly, but I have a lot of respect for Eugene.

In any event, the District is taking on a big project and a big risk. If the Supreme Court grants cert, watch for the sparks to fly.

Tax Protestor Gets Off!

Here's an oddball story: Tommy K. Cryer, a man who proudly proclaims that he hasn't paid his income taxes in ten years, and who made a series of videos explaining that there's no law requiring most people to pay taxes, is prosecuted for failing to file and is acquitted! His analysis: "The court could not find a law that makes me liable or makes my revenues taxable." Could it be true?

Of course not. Criminal income tax cases are subject to a special rule: the government has the burden of proving, not only that the defendant didn't pay his taxes, but that the defendant knew he had to pay his taxes. This is very unusual. Usually, in the criminal law, if you do the thing that constitutes the crime, and you know what you're doing, whether you know that your conduct is illegal is irrelevant. But in tax cases specifically, the government has to prove that you knew you were breaking the law. So if you really believe all this tax protestor nonsense about there being no law requiring people to pay income tax, it's not a crime for you to fail to pay.

But, I hasten to add for anyone getting any ideas here, you still owe the money. Crazy beliefs may keep you out of jail, but they don't change the fact that you owe your taxes, plus the interest, plus the penalties -- which can add a whole lot to your tax bill. It's cheaper to pay what you owe. The government, one can be confident, will be coming down on Mr. Cryer for a pile of cash.

In any event, his acquittal, of course, doesn't show that there's no law requiring people to pay taxes. It just means he convinced the jury that he really believes he doesn't have to pay -- or really, only that the government failed to prove, beyond a reasonable doubt, that he knows he does have to pay. Every few years a protestor gets off on this ground, and justice goes on -- another protestor was convicted yesterday.

The sad thing is that Tommy Cryer is an attorney. He even went to a decent law school (LSU) and graduated with honors. It's inconceivable that such a person could really believe tax protestor theories.

Although perhaps I shouldn't rule it out -- Cryer's had his share of trouble in the past. In the 1980s, he was hauled before a bar disciplinary committee for neglecting a professional matter (he failed to record a deed properly, and continued to fail for two years after the client called the matter to his attention, and also delayed reimbursing the client for the damages it suffered as a result), and he had his penalty reduced on the ground that he "suffered from a depressive illness" and "was on the brink of an emotional breakdown and also in severe financial straits" because his father had died while he was still young (only 28) and because he had "entered into the private practice of law without adequate funds or business." Louisiana State Bar Ass'n v. Cryer, 441 So.2d 734 (La. 1983). So, even though a doctor concluded that "recurrence of the depressive condition is unlikely," perhaps Cryer still has some mental condition that causes him, an apparently intelligent attorney, to fall for tax protestor nonsense.

Still, it's an embarrassment that an attorney is so associated with the tax protestor movement. The man should be disbarred. If he's giving his income tax theory as advice to actual clients, then he's violating the requirement of competence, and even if he isn't, he's still engaging in conduct that involves "deceit or misrepresentation" and "conduct that is prejudicial to the administration of justice", which also violates the rules.

Schadenfreude Follow-Up

Of course it was a given that more juicy stories would come out of the release of phone records from D.C. Madam Jeane Palfrey, and somehow one knew that the more strait-laced, Republican, and outwardly pious a politician was, the more likely his phone number was on the list. That's why it's hardly a surprise to learn that Senator Vitter (R-La.) has confessed to "a very serious sin" in his past. Vitter bills himself as "a conservative who opposes radically redefining marriage, the most important social institution in human history," so naturally he would prefer to handle marriage the tradiational way -- by cheating on his wife with call girls.

Funny, isn't it, that so many of the Republican defenders of marriage are on their second or third wives or caught up in extramarital sex scandals. Oh, I know there have been equally guilty Democrats, but it's more fun when the Republicans get gored on their own stakes.

The Surgeon General Speaks Out

I complained previously that President Bush's stem cell decisions seemed to be driven by politics, not public health concerns. It turns out that someone else shares my view -- and it's only Bush's own former Surgeon General.

Richard H. Carmona, Surgeon General form 2002 to 2006, says that the Bush Administration "routinely" screened his speeches for political sensitivity and prevented him from speaking out on public health issues for politicial -- and even theological -- reasons. Carmona was blocked on the basis of what he called "preconceived beliefs that were scientifically incorrect."

The Bush Administration has long had a reputation for muzzling its own scientists for political reasons. Now one of Bush's own top political appointees confirms this practice.

The Bush response? You know, of course, that the White House will try to blame and discredit Dr. Carmona. But even knowing that in advance, the chutzpah of White House spokesman Tony Fratto takes one's breath away. He said: "As surgeon general, Dr. Carmona was given the authority and had the obligation to be the leading voice for the health of all Americans. It's disappointing to us if he failed to use his position to the fullest extent in advocating for policies he thought were in the best interests of the nation."

First muzzle him, then blame him for being muzzled.