Topic: Regulatory Studies

Maryland Passes Tesla Bill

This week, people in Maryland got the news of Gov. Larry Hogan’s signature of HB 235, the so-called “Tesla Bill.” The law allows, for the first time, makers of electric cars to sell directly to consumers, bypassing traditional auto dealerships.

During the last few years, a number of states have prevented Tesla Motors from selling cars directly to consumers.  They have enforced laws that require the use of independent dealers to complete sales.

In the Summer 2014 issue of Regulation professor Daniel Crane explained that these laws are a legacy of past battles between dealers and legacy automakers like GM and Ford over the distribution of wealth losses during recessions and the number of dealerships whose fixed costs must be supported relative to Toyota and Honda.

This history has little to do with niche manufacturers like Tesla that do not want to use dealers.  But dealers do not want the possibility of non-dealer sales to spread to traditional manufacturers.     HB 235 codifies this sentiment. It allows Tesla and other electric car makers to sell directly to consumers.  But it preserves the status quo for all other traditional cars and trucks, whose dealers understood that not allowing a Tesla exception would focus undue attention on their regulatory protection and perhaps cause voters to demand more fundamental reform.

A Spurned Vendor — And a Tip To the FTC

In 2010, the Federal Trade Commission approached an Atlanta-based medical testing company, LabMD, with accusations that it had wrongfully left its customer data insecure and vulnerable to hackers. LabMD’s owner denied that the company was at fault and a giant legal battle ensued. To quote my post last year at Overlawyered:

…according to owner Michael Daugherty, allegations of data insecurity at LabMD emanated from a private firm that held a Homeland Security contract to roam the web sniffing out data privacy gaps at businesses, even as it simultaneously offered those same businesses high-priced services to plug the complained-of gaps.

Last week, finally, after five years, the case reached an administrative hearing at the FTC, which heard “bombshell” testimony given under immunity by former Tiversa employee Richard Wallace:

After LabMD CEO Michael Daugherty refused to buy Tiversa’s services, Tiversa reported false information to the FTC about an alleged security incident involving LabMD’s data, Wallace claimed in his testimony.

CNN headlined its story “Whistleblower accuses cybersecurity company of extorting clients” – that is, by threatening to turn them in to the feds if they spurned its vendor services.

To be sure, allegations are merely allegations, and we haven’t heard Tiversa’s side of the story, except for a statement from its CEO Bob Boback: “This is an overblown case of a terminated employee seeking revenge. Tiversa has received multiple awards from law enforcement for our continued efforts to help support them in cyber activities.” The advisory board of the Pittsburgh-based security services company includes former four-star Army general and former Democratic presidential candidate Wesley Clark.

ALJs and the Home Court Advantage

The SEC has come under fire lately for its use – some might say overuse – of internal administrative proceedings.  The SEC’s use of administrative proceedings and administrative law judges (ALJs) is by no means unique within the federal government.  Thirty-four agencies currently have ALJs.  Nor is the SEC the heaviest user of administrative proceedings or ALJs; the Social Security Administration has that distinction, with more than 1,300 ALJs according to the most recent data available.  The SEC, by comparison, has only five ALJ positions, two of which are recent additions. 

The SEC’s ALJs have been in the spotlight due to a provision in Dodd-Frank that expands their ability to impose fines.  In the past, the SEC could impose monetary sanctions only on individuals and entities registered with the Commission – typically brokers, investment advisors, and similar entities and their employees.  By registering with the SEC, it was reasoned, these individuals and organizations had submitted to the SEC’s jurisdiction.  Others could be brought before the SEC’s tribunals for violating federal securities laws, and the ALJs could make findings of fact (that is, decide which side’s version of the facts was correct) and issue cease and desist orders, but could not impose fines.  Instead, the SEC’s lawyers would have to bring a separate case in federal district court.  Under Dodd-Frank, registered and unregistered persons are treated the same.

Administrative proceedings have their advantages.  Like a federal judge, an ALJ can issue subpoenas, hold hearings, and decide cases.  Because an ALJ’s cases deal with a very narrow area of law – only that related directly to the ALJ’s agency – the ALJ’s knowledge of that area tends to be deeper than that of a federal judge who hears a broad range of civil and criminal cases.  The proceedings before ALJs tend to be somewhat truncated, with fewer procedural requirements than federal district court, allowing the case to be decided more quickly. 

Against Racial Preferences in Contracting

Since before the Declaration of Independence, equality under the law has long been a central feature of American identity—and was encapsulated in the Constitution. The Fourteenth Amendment expanded that constitutional precept to actions by states, not just the federal government.

For example, if a state government wants to use race as a factor in pursuing a certain policy, it must do so in the furtherance of a compelling reason—like preventing prison riots—and it must do so in as narrowly tailored a way as possible. This means, among other things, that race-neutral solutions must be considered and used as much as possible.

So if a state were to, say, set race-based quotas for its construction contracts and claim that no race-neutral alternatives will suffice—without showing why—that would fall far short of the high bar our laws set for race-conscious government action.

Yet that is precisely what Montana has done. Montana’s Disadvantaged Business Enterprise (“DBE”) program implements a federal program aimed at remedying past discrimination against minority and women contractors by granting competitive benefits to those groups. While there may be a valid government interest in remedying past discrimination, in its recent changes to the program, Montana blew through strict constitutional requirements and based its broad use of racial preferences on a single study that involved weak anecdotal evidence—a study that recommended more race-neutral alternatives, not fewer.

Announcing the Spin Cycles and Our First Award

Judging from the November electoral tsunami, whose epicenter was in coal country, people aren’t taking very kindly to the persistent exaggeration of mundane weather and climate stories that ultimately leads to, among other things, unemployment and increased cost of living. In response, we’ve decided to initiate “The Spin Cycles” based upon just how much the latest weather or climate story, policy pronouncement, or simply poo-bah blather spins the truth.

Like the popular and useful Fujita tornado ratings (“F1” through “F5”), or the oft-quoted Saffir-Simpson hurricane severity index (Category 1 through Category 5), and in the spirit of the Washington Post’s iconic “Pinocchios,”, we hereby initiate the “Spin Cycle,” using a scale of Delicates through Permanent Press. Our image will be the universal vortex symbol for tropical cyclones, intimately familiar to anyone who has ever been alive during hurricane season, being spun by a washing machine. Here’s how they stack up, with apologies to the late Ted Fujita and Bob Simpson, two of the true heroes of atmospheric science with regard to the number of lives their research ultimately saved.

And so, here we have it:

Delicates. An accidentally misleading statement by a person operating outside their area of expertise. Little harm, little foul. One spin cycle.

Failing Aviation Administration (FAA)

The federal government operates the air traffic control (ATC) system as an old-fashioned bureaucracy, even though ATC is a high-tech business. It’s as if the government took over Apple Computer and tried to design breakthrough products. The government would surely screw it up, which is the situation today with ATC run by the Federal Aviation Administration (FAA).

The Washington Post reports:

A day after the Federal Aviation Administration celebrated the latest success in its $40 billion modernization of the air-traffic control system, the agency was hit Friday by the most scathing criticism to date for the pace of its efforts.

The FAA has frustrated Congress and been subject to frequent critical reports as it struggles to roll out the massive and complex system called NextGen, but the thorough condemnation in a study released Friday by the National Academies was unprecedented.

Mincing no words, the panel of 10 academic experts brought together by the academy’s National Research Council (NRC) said the FAA was not delivering the system that had been promised and should “reset expectations” about what it is delivering to the public and the airlines that use the system.

The “success” the WaPo initially refers to is a component of NextGen that was four years behind schedule and millions of dollars over-budget. That is success for government work I suppose.

The NRC’s findings come on the heels of other critical reports and years of FAA failings. The failings have become so routine—and the potential benefits of improved ATC so large— that even moderate politicians, corporate heads, and bureaucratic insiders now support major reforms:

“We will never get there on the current path,” Rep. Bill Shuster (R-Pa.), chairman of the House Transportation Committee, said two months ago at a roundtable discussion on Capitol Hill. “We’ve spent $6 billion on NextGen, but the airlines have seen few benefits.”

American Airlines chief executive Doug Parker added, “FAA’s modernization efforts have been plagued with delays.”

And David Grizzle, former head of the FAA’s air-traffic control division, said taking that division out of FAA hands “is the only means to create a stable” future for the development of NextGen.

The reform we need is ATC privatization. Following the leads of Canada and Britain, we should move the entire ATC system to a private and self-supporting nonprofit corporation. The corporation would cover its costs by generating revenues from customers—the airlines—which would make it more responsible for delivering results.

Here is an interesting finding from the NRC report:  “Airlines are not motivated to spend money on equipment and training for NextGen.” Apparently, the airlines do not trust the government to do its part, and so progress gets stalled because companies cannot be sure their investments will pay off. So an advantage of privatization would be to create a more trustworthy ATC partner for the users of the system.

ATC privatization should be an opportunity for Democrats and Republicans to forge a bipartisan legislative success. In Canada, the successful ATC privatization was enacted by a Liberal government and supported by the subsequent Conservative government. So let’s use the Canadian system as a model, and move ahead with ATC reform and modernization.

Raise the Wage Act Is More Rhetoric than Reality

When U.S Congressman Robert C. “Bobby” Scott (D-VA) and U.S. Senator Patty Murray (D-WA) introduced the Raise the Wage Act on April 30, they promised that their bill would “raise wages for nearly 38 million American workers.” Their bill would also phase out the subminimum tipped wage and index the minimum wage to median wage growth.

With rhetorical flourish, Sen. Murray said, “Raising the minimum wage to $12 by 2020 is a key component to helping more families make ends meet, expanding economic security, and growing our economy from the middle out, not the top down.”

The fact sheet that accompanied the bill claims that passing the Raise the Wage Act would reduce poverty and benefit low-wage workers, especially minorities. Indeed, it is taken as given that the Act “would give 37 percent of African American workers a raise”—by the mere stroke of a legislative pen. It is also assumed that “putting more money into the pockets of low-wage workers stimulates consumer demand and strengthens the economy for all Americans.”

The reality is that whenever wages are artificially pushed above competitive market levels jobs will be destroyed, unemployment will increase for lower-skilled workers, and those effects will be stronger in the long run than in the short run.  The least productive workers will be harmed the most as employers substitute new techniques that require fewer low-skilled workers.  There will be less full-time employment for those workers and their benefits will be cut over time.  That is the logic of the market price system.