No, really: Are the feds trying to end farm chores for kids?

Reason weighs in with round two of the debate:

Farm Bureau notes that DOL claims its “Notice of Proposed Rulemaking” will not change the “parental exemption” in the current law, but Farm Bureau says DOL’s new language would not include an exemption for farms that are incorporated or formed as family partnerships. 

“Many farm families in Pennsylvania and across the United States have incorporated or formed a family partnership for estate planning, insurance and other reasons.  They are still family farms with moms and dads making the decisions over what work duties their children have been trained to do and are capable of doing in a safe manner.  Farmers understand that there are potential dangers on the farm and they abide by existing farm labor laws,” added [PFB President Carl T.] Shaffer.

That doesn't sound right. This is what the proposed rule in the Federal Register says:

The Department interprets ``operated by'' the parent or person
standing in the place of the parent to mean that he or she exerts
active and direct control over the operation of the farm or ranch by
making day-to-day decisions affecting basic income, work assignments,
hiring and firing of employees, and exercising direct supervision of
the farm or ranch work. A ranch manager, therefore, who meets these
criteria could employ his or her own children under 16 years of age on
the ranch he or she operates without regard to the agricultural
hazardous occupations orders, even if the ranch is not owned by the
parent or a person standing in the place of the parent, provided the
work is outside school hours.

To me, that very much sounds like that if you are running a farm—even if, for legal reasons, the ownership is incorporated or in a family partnership—you can put your kid to work on the farm.

Maybe I'm misinterpreting everything I'm reading here. But everything that conservative and libertarian outlets are saying about the proposed child-labor rules for farms doesn't seem to comport with scrutiny of the actual rules.

The Daily Caller is misleading you about family farm regulations

Some of my conservative friends are angry about this story in The Daily Caller:

The Department of Labor is poised to put the finishing touches on a rule that would apply child-labor laws to children working on family farms, prohibiting them from performing a list of jobs on their own families’ land.

Well, not quite. As documentation, the Caller links to this somewhat-vague press release from the Department of Labor announcing the proposed rules. The press release then says the actual rule will be published in the Federal Register on Sept. 2. So what does the Federal Register say?

The proposed agricultural revisions would impact only hired farm workers and in no way compromise the statutory child labor parental exemption involving children working on farms owned or operated by their parents.

This is at the very outset of the rule. It's hard to miss if you're bothering to look at it directly. Which means The Daily Caller A) didn't or B) did, but chose to ignore it.

A conservative friend protests: "What about farms owned by aunts or uncles?" Well, it turns out that hasn't strictly been allowed for a few decades. As the Federal Register notes:

Accordingly, application of the parental exemption in agriculture has been for over forty years limited to the employment of children exclusively by their parent(s) on a farm owned or operated by the parent(s) or person(s) standing in their place. Any other applications would render the parental safeguard ineffective. Only the owner or operator of a farm is in a position to regulate the duties of his or her child and provide guidance.

And:

The Department has, for many years, considered that a relative, such as a grandparent or aunt or uncle, who assumes the duties and responsibilities of the parent to a child regarding all matters relating to the child's safety, rearing, support, health, and well- being, is a ``person standing in the place of'' the child's parent (see letter of Charles E. Wilson, Agricultural Safety Officer, Division of Youth Standards of April 7, 1971 to Mr. Floyd Wiedmeier). It does not matter if the assumption of the parental duties is permanent or temporary, such as a period of three months during the summer school vacation during which the youth resides with the relative (Id.). This enforcement position does not apply, however, in situations where the youth commutes to his or her relative's farm on a daily or weekend basis, or visits the farm for such short periods of time (usually less than one month) that the parental duties are not truly assumed by that relative.

Again: "None of the revisions proposed in this NPRM in any way change or diminish the statutory child labor parental exemption in agricultural employment"

In other words: If you are a farmer, and you're putting your kid to work on the farm, you can still put your kid to work on the farm. If you're a farmer and your niece comes to spend the summer with you, you can put that kid to work on the farm. According to the rules, it's been this way a very long time.

 What the rule does is make it harder to hire somebody else's under-16 kid to work on your farm. That's different. And it's worth debating the worthiness of that rule. But the idea that the Obama Administration is prohibiting kids from working on their families' farms? Not quite true.

Podcast: Timothy Noah on 'The Great Divergence' and income inequality

Ben and I have a long discussion with Tim Noah about his new book. Go here to listen to and download the podcast. It's informative! And a personal note: I haven't been blogging lately because—for me, anyway—blogging often ends up being a tribalistic "so's your old man!" exercise. I can write about why Mitt Romney's a doofus, but it's probably not going to be terribly different from the take of 100 other political bloggers. So I'm trying to figure out how to do more thoughtful and more original work. The podcast, for what it's worth, fits that goal: Rather than lining up on one side of an issue or another, we can take time with smart people to really talk through an issue. Ben and I still end up with different takes on an issue, but the distinctions seem less forced than in other formats—and in podcast form, we get to explore the distinctions a little more. I'm proud of the work we're doing on the podcast. Our hope is that it becomes a first-rate destination for authors to talk about their books on American politics, policy, and history. That's what we're trying to build. And that does feel more thoughtful and original.

Castro's 'murderous' regime

In our Scripps column about Ozzie Guillen's suspension, Ben makes the following comment about the Castro regime in Cuba:

Guillen, of course, is free to say or think anything he likes about Fidel Castro's murderous regime. (The Venezuelan native is evidently an outspoken fan of Castro wannabe Hugo Chavez, too.) This is America, after all.

Wait. Murderous?

Don't get me wrong. I don't come here to praise Fidel or Raul Castro. As I noted in my part of the column: "Fidel Castro is a bad man." He certainly oppressive of his people's rights, and as Ben noted to me offline, there are a lot of people who have tried getting off the island using little more than an innertube. Cuba may be a lot of things, but it's not a socialist paradise.

But murderous?

Here's what Human Rights Watch has to say about Cuba: "Cuba remains the only country in Latin America that represses virtually all forms of political dissent. The government enforces political conformity using harassment, invasive surveillance, threats of imprisonment, and travel restrictions."

And here is what Amnesty International said in its 2011 report on the country: "Prisoner of conscience Orlando Zapata Tamayo died on 23 February following a prolonged hunger strike. He was one of 75 people arrested during a crackdown by the authorities in March 2003, and was serving a 36-year prison term at the time of his death. A few months later, between July and December, the Cuban government released 41 prisoners of conscience following an agreement with the Spanish government and dialogue with the Catholic Church. All of those released, except one, left Cuba with their relatives."

Strikingly absent from both accounts is any real mention of executions or mass graves. Recent reports out of Cuba suggest, in fact, that when political prisoners die...it's usually the result of a hunger strike. One can respect their choice of conscience while also recognizing that it's their choice.

This doesn't mean that Fidel is to be loved, clearly. Cuba is not a democracy. Basic rights are trampled. But there's a difference between a tinpot dictator and a genocidal dictator, and the Castro regime appears to fall in the former category.

I'm long past expecting policy toward Cuba to be rational, or for conservatives to use any but the most inflammatory language about Castro. And it's easy to accept the shorthand. We don't like dictators. Dictators are often murderous. Thus, Castro must be murderous.

It's at this point I expect to hear about Castro's actions in the 1960s and 1970s, about assassinations and the like. And, fair enough. But that was then. And using "murderous" to describe a government that appears to pose little threat obscures the actual choices and options that could be available to us.

Campaign finance and rent-seeking

One of the main conservative complaints about "big government" (as I understand it) is a practice known as "rent seeking." The idea being that bigger government has more money, power, and favors to dole out—and thus will encourage individuals and businesses to bend government activities in such a way that benefits their bottom line.

But conservatives who complain about big government and rent seeking are, often, also very much in favor of loose campaign finance laws that allow big businesses and individuals to spend lots and lots of money ... trying to bend government activities in such a way that benefits their bottom line.

I thought about that a bit with a recent This American Life episode on campaign finance, which demonstrates--as observers already knew--that the pursuit of campaign cash is nearly a full-time job among members of Congress. I was particularly struck by this (paraphrased) quote from former Sen. Paul Feingold, who likened the process to legalized extortion:

"CEOs don't usually call you up and say they'd like to give you a lot of money. Usually it's the other way around."

Unlimited campaign money helps create the culture of rent seeking, in other words; it encourages senators and congressmen to solicit rent-seeking. The incentives are completely skewed.

Now, I imagine the conservative response to this is: "If government is smaller, then money people can still have their First Amendment rights to give cash to candidates they like without being a problem." But the torrent of money, it seems to me, ensures that government can't really get all that smaller; it'll just get bigger and more bloated and more interest-favoring in ways that benefit the people with money. One conservative pet cause--lifting limits on campaign contributions--almost certainly works against their declared main cause of making government smaller. I wonder which is more important to them?

A Wednesday morning poem

Read this years ago in the New Yorker, and it has stayed with me since:

IF THERE IS NO GOD

If there is no God,
Not everything is permitted to man.
He is still his brother’s keeper
And he is not permitted to sadden his brother,
By saying there is no God.

~Czeslaw Milosz

Feels appropriate today.

John Derbyshire and me: A confession of failure

By now the tale of John Derbyshire's exile from National Review for racist writings is well-known and well-told. I have little to add to the discussion, except to make a confession: I interviewed John Derbyshire two years ago. I thought his work was racist, sexist, and homophobic—but offered a chance to forcefully challenge the man and his ugly views ... I tiptoed and hid. I'm not proud of this. But it's worth recognizing.

Some context: Ben Boychuk and I have been writing a column together for Scripps Howard News Service for more than four years. He's conservative, I'm liberal, and part of the point of the project is that we can be in friendly dialogue with each other even as we disagree vigorously. This is where I got a bit tripped up.

As part of our project, we also do a regular podcast. (Or, it's getting regular again: My medical travails in 2011 sidetracked us.) And in 2009, we decided to interview Derbyshire on the occasion of his then-new book. I read the book in advance of the interview, found it well-written, even entertainingly so, but drastically wrongheaded in the usual ways that Derbyshire is wrongheaded. When it came time to chat, though, I kept my foot off the pedal.

Put it this way: I asked him about poetry. I told him I enjoyed reading his stuff. And when it came to the race stuff, I ... asked about it in an overly respectful way. Go ahead and listen to the audio linked above. I did over the weekend. It's unpleasant for me to hear.

Why did I whiff so badly?

• I didn't want to be a jerk. Though Derbyshire has cheerfully--always cheerfully!--admitted to being a racist, it's still a bit of a turd in the punchbowl to directly suggest to the person that they're chatting with that, yes, you think they're a racist. I was taking the commitment to civil dialogue seriously; maybe too seriously.

• I was underprepared: Derbyshire is very good at wielding studies and reports in such a way to back up his contentions that black folks are dumber and more violent than the rest of us. I didn't take the time to delve into those studies more deeply, or to find out how they'd been challenged. That left me out of position when it came time to challenge him. Instead, I confessed discomfort with his findings in a manner that, as I listen to it now, seems to imply uncomfortable acceptance of Derbyshire's view of things.

• I was probably a bit star-struck: This is silly, I realize, given that lots of people didn't probably even know who John Derbyshire was until this past weekend. Still. I'd read National Review and its blog, The Corner, for awhile--mostly disagreeing with it, but sometimes being entertained by it. And in 2009, I was still kind of amazed at having access to national-level people whose stuff I'd read. I was a bit of a hick.

Maybe I still am.

Listen, I'm under no illusion that a more forceful showing by me in a podcast interview in 2009 would've altered the course of Derbyshire's career. My failure in this matter affects, well, pretty much only me. But Derbyshire's writings deserved a vigorous interlocutor. I failed in that function. And I regret it.

The Constitution and 'invented rights'

After this week's Scripps column in which I pooh-poohed "judicial activism," I received several responses from conservative readers suggesting it's actually very easy to spot.

Read the constitution and uphold it. Don't manufacture "rights" not mentioned in the constitution. What does the constitution say? Don't impose your opinion, or your own political philosphy. Judicial activism is manufacturing "rights" not enumerated in the constitution.

This, I think, is a fairly common conservative view. It is also--according to the Constitution itself!--dead wrong.

Here is the text of the Ninth Amendment:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Founders were worried that by creating a Bill of Rights, they would legally imply that people didn't have other rights not named in the Constitution. This is how they covered their rights-loving butts. And yet people constantly commit the very error the Founders were trying to avoid. This is very odd for a movement supposedly so devoted to preserving the Founders' wishes and vision.

I'm not sure if this was the Founders' intent--and I don't actually think that matters--but what that amendment effectively means is that we have to continue to always be in conversation about what those rights are and what they mean. Some folks would suggest that Ninth Amendment rights are frozen at what the Founders would've understood to be rights--which is why Clarence Thomas does in-depth investigations into parenting practices of the 1780s and Antonin Scalia effectively disputes the idea that women are citizens. The rest of us understand that this is silly at best and pernicious at worst.

As those examples indicate, this kind of thinking replaces the "rule of law" with a kind of "tyrannical legalism" that dispenses entirely with common sense. Conservatives like to suggest that's a liberal problem, but I don't think it's limited to the left. One example: The authors of anti-torture laws explicitly didn't ban specific techniques because they didn't want to give the impression that other coercive, pain-inflicting methods were OK. They couldn't make an exhaustive list, so they didn't make a list at all, instead crafting laws to describe the effects of torture. The result is that we have Bush Administration conservatives tell us that waterboarding isn't actually torture.

What does all of this mean? Well, it probably means that rights evolve. And that our commitment to protecting them evolves as well. It's not something that should happen willy-nilly, and it doesn't: It's a combination of society, Congress, and (yes) the courts moving in a commonly accepted direction, and that process usually takes time. The results can sometimes be messy and controversial--not everybody is on board with the right to abortion, for example--but I'll take that messiness over the clean precision of Scalia's vision that denies women the benefits of citizenship. It doesn't mean that some rights are "invented," at least not in the sense that the rights are thus artificial. It just means that they weren't named in the Constitution. That's not as big a deal as some people think.

Small government, big banks?

One reason I've never really come around to being a small-government conservative is my belief that if we put a tight leash on the feds, that will allow other large institutions--mostly big businesses, but not limited to that--to dominate me instead. Conservatives deploy the language of liberty pretty effectively, but often it's in the service of a corporatist agenda that would wouldn't necessarily feel "free" to most of us. I'm not so much sure that "big government" is as much of a problem as is bigness itself: Outsized institutions of any sort, public or private, can have outsized impacts on our lives.

So I'm intrigued by the question raised by my friend (and occasional nemesis) Steve Hayward over at Power Line. If conservatives want small government, he asks, should they also be in favor of breaking up the big banks? 

So I think I could be persuaded that the big banks should be broken up, though this requires conservatives and pro-market libertarians to set aside their cognitive dissonance over the use of centralized political power to accomplish such an end. Discuss in the comment thread.

Me? I think it's "pro-market" to actually let the market work: When banks get too big to fail, they put taxpayers on the hook for their risk-taking. You obviously can go too far in regulating the markets, but (ahem) you can also go too far in deregulating them, as well. Markets work best when they have some boundaries.

All of which has been said--including by me--a million times before. And there are plenty of other reasons I probably still won't take up the mantle of small-government conservatism: The issues that animate me seem to be ignored by or scoffed at by my conservative friends; even if liberals don't always have the right answers, I feel more comfortable with them because they're actually trying to solve the problems that look like problems to me. But small-government conservatism will be much harder for me to argue against if it doesn't leave me "liberated" to live under the tyranny of Citibank.

The GOP version of the DREAM Act is better than nothing. Just barely.

At CNN, Ruben Navarette praises an up-and-coming GOP version of the DREAM Act. The original version, promoted by Democrats, would give sons and daughters of illegal immigrants a path to citizenship, provided they go to college or serve in the military. The GOP version apparently includes the college or military part--but not the citizenship.

But unlike the earlier version, it would not include a path to citizenship. Students could become citizens later. It's not like they'd be barred from the citizenship process. But they would have to take the initiative. It would be on them, as it should be.

As I understand it, then, all the GOP version really does is tell the sons and daughters of illegal immigrants that they won't be deported.  "We'd like to send you to Afghanistan, and if you're not killed or mutilated, maybe we'll think about making our relationship permanent." My concern is that this legislation essentially creates a permanent class of legal sub-citizens--folks who are welcome to do our dirty work and pay taxes, so long as they don't do something extreme like vote. Navarette says the only reason to oppose this is "ugly partisan politics," but one can actually object in principle to this policy.

And yet, given the immigrant-unfriendly politics of the GOP, this may be the only way to actually resolve the status of millions of young people who A) didn't come here under their own power but B) may not necessarily fit in their own home countries: Many are already, in a very real cultural sense, Americans. Removing the unlikely but still real threat of deportation would help them get scholarships, train for jobs, and contribute to our communities in ways that are denied them at the moment. If they really are eligible for citizenship after attaining legal status, then this legislation would achieve a very real good. It's not as good as the original DREAM Act. But it's better than nothing.

I, for one, would like to know much, much more about Gene Marks' private life

Gene Marks--remember him?--says employers are within their rights to ask job candidates for their Facebook info:

I don’t want your “password.” I don’t want to be able to go onto Facebook and be you. I don’t even want to monitor your activities on Facebook once you’re hired. All I want is to be “friended” for a short period of time while I’m evaluating you as a prospective employee.

He needs this, you see, because as an employer he has to feel really, really comfortable that he knows enough about you. Well screw that.

Listen: Employers have the right to know everything that's publicly knowable about you. If you have a felony record, for example, or if you've appeared in the local newspapers advocating for the Nazi Party. I've got no problem with that. But they don't have a right to your private life.

And for me, Facebook is relatively private. Not totally: I have a few hundred "friends," so I can't fool myself that the walls of privacy are high and impenetrable. Nonetheless, the people who are allowed inside those walls are carefully chosen, and my privacy settings arranged so that you can't look inside without my permission.

Gene Marks is welcome to drive by my house and see if I'm flying a freak flag from the front porch. He is not welcome to barge inside and start rummaging through my bathroom closets, trying to decide if I'm a good fit for his company. How I conduct myself in public will have a bearing on his business; what I do behind virtual or real closed doors is, simply put, none of his goddamned business.

In fact, there's one set of circumstances under which I might be tempted to let Marks in to view my Facebook page and take a look at my photo albums, status updates, notes, and the rest: If he lets me do the same with him.

Because some bosses are jerks. Some have unreasonable expectations, or are comfortable with harassing environments. Some are just no good. I, as an employee, have every right to evaluate Marks to see if I accept him as a boss. My livelihood and overall well-being are on the line.

Marks approaches this topic as though the employee owes an employer more of his or her life than the employer should reciprocate. Not so.

We've made it a few thousand years of civilization without employers entering the bedrooms of prospective employees. Despite Marks' desires, capitalism and small businesses will probably survive if he's denied entry now.