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America has cancer.

I’m not talking about the various forms of deadly and debilitating biological cancer that many American’s suffer and die from, like those often related to years of smoking. No, I am talking about a cancer affecting the impersonal host that is our country, our government, and our economy. We have a cancer just as debilitating and dangerous, and just as difficult to treat, as any form of biological cancer. The cancer I speak of is crony capitalism.

At our recent Liberty Forum, Utah businessman Jonathan Johnson, an executive at Overstock.com, spoke of the debilitating effects of over-regulation and how the burden of compliance with government mandates threatens business at all levels, but is particularly deadly for small businesses.

Too often this debilitating regulation is by design—not the necessary function of government, but rather the tactic of private interests who have captured government power and wield it like a hammer to flatten their competitors. This nefarious use of government power is crony capitalism, a brand of capitalism that is anything but. Instead of free and fair competition in an open and level marketplace, the well connected few curry government favors, subsidies, and regulations to rig the game in favor of the influential.

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Today the Eleventh Circuit Court of Appeals issued an opinion in the case of United States v. Quartavious Davis that may impact the policy landscape relative to fourth amendment application in the digital age.

The case was brought about after government agents obtained the cell phone location information of four people over a two month period in 2010 as part of a criminal investigation in Florida. The records were obtained without a warrant. Police received 11,606 location records of one of the suspects, Quartavious Davis, averaging 173 location points each day. Davis was convicted at trial based on this information, and appealed his ruling to the Eleventh Circuit Court. Today’s opinion is the first time a federal appeals court has ruled that a warrant is required to obtain cell phone location data.

“There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute,” the three-judge panel wrote in a unanimous opinion. “In short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.” While the court’s ruling applies only to Florida, Georgia, and Alabama, it may very well be referenced and used in other court cases navigating through the judicial system.

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Plenty of attention has been given in recent years to the newspaper industry, suffering one loss after another as advertisers flee to new markets and new technologies outpace old systems. This market disruption is nothing new, nor confined primarily to one or a few industries. It was satirized 170 years ago by Frédéric Bastiat in his humorous petition whereby candlemakers, whose livelihoods are threatened by the sun, call for its free and abundant light to be shut out.

The same disruption is now occurring in public transit. Enter Lyft and Uber, two young companies bringing the social networking revolution to transportation. These services pair drivers up with those who need a ride using geolocation on their mobile devices.

And because these emerging services pose a threat to longstanding institutions replete with their unionized and politically connected employees, it’s no surprise to see conflict. In Virginia, both companies were served a cease and desist last week by the state’s Department of Motor Vehicles because “the companies are illegal and have not received proper authorization from the DMV to operate in the state.” Both companies are wonderfully defiant of this order. For its part, Uber publicly announced its resistance, providing the following context:

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I was recently speaking with a very politically active friend who has served in key, influential decision-making positions within the Republican Party. We both cynically remarked in the past how difficult it is to move the needle within the party system (note: Libertas Institute is politically neutral and not affiliated with any specific party or its platform.). We discussed how politics always ended up trumping principle, and re-election had become the end in itself, rather than the means to political change.  As we spoke he conceded that his time could probably be better allocated fighting for liberty within an organization dedicated to that ideal. I couldn’t agree more.

I have spent my entire adult life involved, in some respect, in the political process. I have served in precincts, as a state delegate, fundraiser, and volunteer for different candidates or causes… and I’ve always voted.  In none of these endeavors have I received as much satisfaction as in my involvement with Libertas Institute.  If you’re wondering why, it’s all about the return on investment.  Do you ever wonder why someone would spend millions of dollars trying to get elected to a position that lasts for a couple years and pays a fraction of the amount spent to get elected?  If not for pride, most aspiring politicians would realize that the best bang for the buck is in lobbying.

A 2009 University of Kansas study found that lobbying efforts netted firms a 22,000% return on investment. This is the sort of thing that drives regular folks crazy.  It’s understandable, then, to see corporations pour money into PACs and K-Street lobbyists in a bid for political favors, contracts, or tax breaks—it’s their most lucrative investment!  Over the last five years the sugar industry spent $50 million on lobbying efforts, which seems like a lot until you see the $278 million spent last year alone in direct government aid to sugar companies.

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Libertas Institute received word yesterday from a concerned citizen that there was a Mine Resistant Ambush Protected (MRAP) vehicle sitting in a parking lot in Provo.

The military vehicle, seen in the photo above, arrived just days ago at the Utah County Public Works facility, to soon be delivered to the sheriff’s office.

Like other MRAPs being distributed by the Pentagon to communities around the country, this one was obtained through the “1033 program” whereby the federal government provides local law enforcement agencies with surplus military gear—everything from MRAPS and helicopters to automatic weapons, handguns, and first aid gear.

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Utah’s judicial system includes a variety of courts, including the so-called “justice court.” Unlike the other courts, these fall outside the judicial branch and are controlled and operated entirely by municipalities. They are tasked with handling “class B and C misdemeanors, violations of ordinances, small claims, and infractions committed within their territorial jurisdiction.” The judges are city employees, and need not be trained in the law to become a judge of the law.

In this past legislative session, Representative Jeremy Peterson sponsored a bill to reform this system. The concerns he expressed were articulated last fall in a blog post he wrote. For example:

These courts were intended to handle rather mundane cases. As such, they were designated as “not of record”. So what does that mean? It means that in the eyes of the other pillars of our legal system, these cases are ‘invisible’ to them.

This ‘Not of Record’ status held by Justice Courts also means that there is no appellate oversight of their work as there is in the District Courts courts. Disputed cases in District Courts are sent to the Appellate Courts. Disputes in the Appellate Courts are sent to the Supreme Court. Each court can overrule its subordinate court. But in Justice Courts, there is no appeal and no higher court. This is unfortunate because the judicial review and oversight that is present through the appeals process acts as a kind of quality control for the court system. Questionable verdicts solicit second opinions through an appeal. This secondary review acts as a check on the lower courts who may stray from standard and accepted sentencing practices or findings. Justice Courts, as they are constituted today, lack this appellate oversight. Thus, the volatile and inconsistent sentencing we see today across Justice Courts in Utah should not surprise us.

Inefficiency is just one of the many problems this system creates—cases in justice court are granted the right of “trial de novo” (trial anew) which allows a complete retrial in a district court rather than a more traditional appeal. This increases the cost to taxpayers by having to deal with one case twice.

Perhaps one of the more objectionable issues at the heart of the justice court system has been their role in boosting municipal budgets. As Representative Peterson explained:

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Utah is surrounded by six states, four of which have legalized the possession and use of cannabis to some degree. This means that on a daily basis, drivers from these states pass through Utah’s borders—and in doing so, unwittingly subject themselves to being charged with a class B misdemeanor (up to six months in jail and/or up to a $1,000 fine).

While many people believe that a person should be prohibited from driving while under the influence (of alcohol or drugs), Utah’s law goes much further. It says that “a person may not operate or be in actual physical control of a motor vehicle within this state if the person has any measurable controlled substance or metabolite of a controlled substance in the person’s body.”

A metabolite is the molecular byproduct of your body’s processing of a substance. Though derived from a psychoactive substance, a metabolite may not necessarily be psychoactive itself. The presence of metabolites—and not the presence of the original drug itself—is the primary indicator of drug use for drug testing programs such as urinalysis or hair testing.

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Tuesday, May 20, 2014 | No comments

Liberty Forum Report

Last week was our first Liberty Forum — a new, annual event we’ll be holding going forward. The purpose of this event is to report on the recent legislative session, present awards to legislators who scored 85% or higher on our legislator index, and hear from guest speakers on important topics.

This year we heard from State Auditor John Dougall (winner of our Liberty Cap Award), Overstock chairman Jonathan Johnson, and historian, author, and prolific libertarian commentator Tom Woods. Below is the video:

Our photographer also captured a variety of fun pictures of the event. Click here to view the album.

Over 350 people attended the event — a smashing success for our first event of this type. We look forward to next year and already have a lengthy list of potential speakers! Thanks to all of our donors and supporters for helping us continue this important work.

The Controlled Substance Advisory Committee in Utah recently discussed regulatory implementation of the bill allowing the use of hemp extract for persons with intractable epilepsy. Libertas Institute was in attendance to hear about the proposed rules. You can listen to the public recording of the meeting here. (The discussion of HB 105 begins at minute 5:00 and goes until minute 35:00.)

This past legislative session, a bill overwhelmingly passed allowing Utahns affected by intractable epileptic seizures, like that of Dravet syndrome, to possess and use an oil extract from hemp plants for therapeutic self-treatment. The bill, HB 105 Plant Extract Amendments, was sponsored by Representative Gage Froerer and comes on the coattails of the federal farm bill which addresses the distinction between cannabis plant varieties used for the psychoactive drug concentration of THC (aka “marijuana”) and the cannabis plant varieties low in THC used instead for their fibrous stalks and seed-based health supplements (aka “industrial hemp”). While the DEA remains confused about the distinction and blindly departs from the rest of the developed world by banning all cannabis plants—including hemp—many states are now recognizing the economic and health benefits of agricultural development in industrial hemp. Libertas recently interviewed the first farmer in the nation to commercially cultivate non-psychoactive industrial hemp in Colorado since the ban was enacted.

The oil extract allowed by HB105 is one such beneficial product from industrial hemp. The oil is high in a substance from hemp plants called cannabidiol (CBD) but is low in the psychoactive substance tetrahydrocannabinol (THC). In fact, those researching the oil believe it is the particular ratio of high levels of CBD to low levels of THC that gives the oil its effectiveness in treating seizures.

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Thursday, May 15, 2014 | One comment

Tax Dollars for a Gun Range?

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During the recent legislative session, word broke out that the financially failing Swanson Tactical Training Center in Ogden, Utah, was looking for an easy exit. Having appraised the facility for north of $11 million, the Swansons were willing to sell to the county for under $4 million.

The problem facing the county was that they didn’t have the money. So, in unsurprising fashion, they ramped up their lobbying efforts in search of state funds. In late January, a free dinner and shooting event was held at the facility to dazzle legislators and encourage their support of an appropriation of tax dollars to help make the sale a reality.

Senator Allen Christensen, a proponent of the expenditure of tax dollars on the gun range, remarked: “This is a fantastic deal. You’re talking about tens of millions of dollars that have been expended on this whole facility, and we’re getting it for a fraction of that.” (Somehow we’re to believe that a price being discounted is sufficient to justify the government’s acquisition and ownership of something…)

It should also be noted that this wasn’t Swanson’s first attempt at approaching the legislature; in 2008, the Senate unanimously voted for a $2 million appropriation to the Tactical center, laundering our tax dollars through the Division of Housing and Community Development. The appropriation was never considered in the House, and therefore was not approved. 

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