Statement for Hearing on “Agricultural Guestworkers: Meeting the Growing Needs of American Agriculture”

PDF here

Statement for the Record
of David Bier of the Cato Institute[1]
Submitted to Subcommittee on Immigration and Border Security,
House Committee on the Judiciary 
Hearing on
“Agricultural Guestworkers: Meeting the Growing Needs of American Agriculture”
July 18, 2017

Foreign agricultural workers allow farms to expand production, lower prices, and raise incomes for most workers in the United States. Government intervention in the labor market inhibits the ability of farmers to plan the planting and harvesting of crops appropriately, leading to a reduction in production at the start of the season or crops rotting at the end. This government-created uncertainty also makes it more difficult for U.S. companies that rely on U.S. agricultural products to expand. At the same time, unnecessary regulations on agricultural guest workers limit their availability, incentivizing illegal immigration.

To fix these problems and end the regulatory uncertainty, Congress should grant a lawful status to the existing unauthorized immigrant workforce—a disproportionate share of which works in agriculture—and it should reform the current H-2A temporary worker program for future agricultural workers. Excessive regulatory costs and arbitrary limitations on the occupations that H-2A workers may perform limit the use of the program. Any revised H-2A program should allow guest workers to change employers without ex ante government permission and to freely negotiate wages or other benefits without fear of losing their status.

The Blurred Lines of Copyright Infringement

It’s been two years since the “Blurred Lines” verdict, but the daze has just begun. According to a BBC report last week, recording artists are now being instructed not to talk publicly about their musical influences for fear of exposure to copyright infringement claims.

“Blurred Lines” was a chart-topping 2013 pop song by Pharrell Williams, Robin Thicke, and Calvin “T.I.” Harris. Marvin Gaye’s family successfully claimed that the track infringed on Gaye’s 1977 song, “Got To Give It Up,” winning $5.3 million in damages and 50 percent running royalties. The case is now on appeal at the Ninth Circuit.

If copyright law was focused on actual, you know, copying, this case would have never gone to the jury. The Gaye family holds the copyright to the sheet music, not the actual recording, so its claim should stand or fall based on the notes on the page. Which is to say, it should fall: the two songs are set in different keys and use different sets of chords (see good analyses here and here). Accordingly, “they sound similar” shouldn’t even be a relevant argument, much less a winning one.  

The Gaye family based its case on shared “elements” in both songs, as well as Pharrell Williams’ admissions that he was inspired by Gaye and that the song captured the “feel” of Gaye’s earlier tune. The trial court allowed the case to go to the jury and included an instruction that “substantial similarities” between elements of the two songs was evidence of infringement.

This way lies mayhem. If the liability standard set in this case were generally followed, the normal processes of musical creation—and artistic creation more generally—would be illegal. Artistic creation is inherently a social endeavor, each new work part of an ongoing conversation with other artists and the audience. Artists naturally pick up on what has been said previously in that conversation, borrowing elements from the past and rearranging them and adding to them to create something new. The existence of distinctive styles, genres, and movements in the arts is possible precisely because of the ubiquity of artists’ drawing on what has come before.

This unfortunate case demonstrates how copyright’s expansive coverage of “derivative works” is antithetical to the stated purposes of the law. Copyright is supposed to incentivize artistic expression, but now we have come to the point where artists are being urged to muzzle themselves to keep themselves away from the law’s reach. A decision by the Ninth Circuit to toss out the verdict would be welcome news—but only a small, first step toward reining in a law run amok.

This post was coauthored with Rachel Chiu.

Air Traffic Control: Remote Towers

Momentum is building for air traffic control (ATC) reform. With health care reform prospects dashed for now, and tax reform facing a difficult path, ATC reform could be an area for legislative progress in coming months. The Trump administration and House leadership are on-board with an ATC privatization plan passed through the lower chamber’s transportation committee. And while the Senate is always a hurdle for fiscally conservative reforms, privatization supporters have leverage because current funding for the ATC system runs out at the end of September.

Why do we need major ATC reform? This is a high-tech industry that is rapidly evolving, yet our system is trapped inside of the hopelessly sluggish Federal Aviation Administration (FAA). In other countries, independent ATC systems are moving ahead with an array of innovations. We are falling behind in a very real way, which has important ramifications for airport congestion, flight delays, and aviation safety.

Consider one cool new ATC technology: “remote” or “virtual” control towers. The iconic airport towers that have the big windows for controllers to see runways are likely on the way out. They will be replaced by visual and infrared cameras on runways able to pan and zoom, with the electronic feed going to control centers either nearby or hundreds of miles away. The feed will be displayed on wall-sized high-definition monitors that will be overlaid with electronic flight and sensor information.

The United States is behind on remote towers, as we are on many ATC technologies. The first remote tower was built by Saab and put in operation in Sweden in 2015, as shown in the photo. The company describes some of the advantages of remote towers here, including superior performance at nighttime and during bad weather. 

Is Trump Putting Us Back on the Road to War with Iran?

On Monday, the Trump administration once again officially certified that Iran is in compliance with the Joint Comprehensive Plan of Action (JCPOA), the agreement that rolled back Iran’s nuclear program and subjected it to unprecedented levels of inspections and monitoring in exchange for sanctions relief. But, according to multiple reports, Trump was very close to refusing to do so.

Apparently, there is a split in the administration. Some of Trump’s national security advisors, along with some hawks on Capitol Hill, are intent on torpedoing the Iran nuclear deal. And Trump was set to officially claim, contrary to the facts, that Iran was not living up to the agreement. At the last minute, another camp in the administration’s national security team, including Secretary of State Rex Tillerson, Secretary of Defense James Mattis, and national security advisor H.R. McMaster, prevailed upon the president to tell the truth and certify that Iran is indeed complying with its obligations under the JCPOA.

These are very ominous signs about the intentions of President Trump. Recall that the president has repeatedly denounced the Iran nuclear deal as a pathetic capitulation that must be reversed. That is not only wrong, but it puts the administration in a difficult spot. The other parties to the agreement – including Britain, France, Germany, China, and Russia, as well as the International Atomic Energy Agency (IAEA) – all know that Iran made major concessions and they all concede Iran is so far complying with the deal’s stringent limitations on its nuclear program.

Zoning Debate Hosted by Cato and the Urban Institute

Today through Monday, July 24th, Cato and the Urban Institute are hosting a joint online debate contemplating costs, benefits, and possible reforms to zoning regulation. Participant opinions will run the gamut, from anti-zoning to pro-zoning, which should make the conversation lively. Participants will include the following:

  • Emily Talen, professor of urbanism, University of Chicago
  • Robert Dietz, chief economist and senior vice president, National Association of Homebuilders
  • Dana Berliner, senior vice president and litigation director, Institute for Justice
  • Lance Freeman, professor of urban planning, Columbia University
  • Richard Rothstein, research associate, Economic Policy Institute; fellow of the Thurgood Marshall Institute, the NAACP Legal Defense Fund, and the Haas Institute at the University of California (Berkeley)
  • Craig Anthony Arnold, professor of law and affiliated professor of urban planning in the Department of Urban and Public Affairs, and chair of the interdisciplinary Center for Land Use and Environmental Responsibility, at the University of Louisville
  • Derek Hyra, associate professor in the School of Public Affairs, American University

I will moderate the debate alongside Rolf Pendall, co-director of the Metropolitan Housing and Communities Policy Center at the Urban Institute.

On the anti-zoning side, participants are expected to argue that zoning increases housing costs and segregation, while reducing property rights, individual liberty, and economic growth. On the pro-zoning side, participants are expected to contend that zoning is a boon to environmental justice, growth management, and community preservation.

The debate will conclude by contemplating possible reforms to zoning regulation. This portion is particularly important because there is often substantial local pressure to zone restrictively. Overcoming it often requires ingenuity.

Join us for the full conversation here.

The Economics of Amtrak

Amtrak’s co-CEO Wick Moorman has announced that the passenger railroad is thinking of offering a new service to compete with the airlines: economy seating that is crammed together as tightly as airline seats. This was immediately blasted by Senator Charles Schumer (D-NY), saying, “Amtrak should not throw out one of the best things about Amtrak and train travel — that is, you at least get a seat you can sit in and be comfortable.”

In fact, this idea makes no sense not because heavily subsidized train travelers somehow deserve more comfortable seats but because it would cost Amtrak more in lost revenues than it will save. Airlines fill 85 percent of their seats and on lots of flights they fill 100 percent. Amtrak fills only 51 percent of its seats, so cramming more seats into a railcar will simply mean more empty seats.

According to USA Today, Amtrak seat pitches–the distance from the back of one row of seats to the back of the next–are 39 inches for day trains and 50 inches for overnight trains. Airline seat pitches are 30 to 33 inches while buses are 28 to 31 inches. That means Amtrak could squeeze in four rows of seats where it now has three on day trains and five rows where it now has three on overnight trains.

Amtrak’s overnight trains rarely have more than four coaches. Substituting one economy coach for two regular coaches would save a little bit on fuel and maintenance and results in an overall loss of seating capacity. Many coach riders on the overnight trains are price sensitive, so most of the people attracted to the economy coaches would have otherwise taken the regular train. Thus, Amtrak is likely to lose more revenue than it gains by attracting few people away from buses or planes.

E-Verify Does Not Lower Unemployment

The Federation for American Immigration Reform (FAIR) released a report claiming that E-Verify lowered unemployment rates in states that implemented it.  FAIR’s report is deeply flawed.  The first section of this blog will catalog FAIR’s errors and show that states with mandatory universal E-Verify typically had higher unemployment.  The second portion of this blog will use the synthetic control method to look at E-Verify’s effect on unemployment in Arizona after the E-Verify mandate.  The flaws in FAIR’s report are important to highlight as more states are considering a universal E-Verify mandate.  There is little evidence that E-Verify mandates lower unemployment but much evidence that they raise it.   

Criticisms of FAIR’s Report

E-Verify is a taxpayer funded federal government run system that is supposed to exclude illegal immigrants from the workforce.  The system would be used at the point of hire to verify that any new worker is actually authorized to work in the United States.  FAIR attempted to show that states with E-Verify have higher employment growth relative to other states.  This is likely an attempt to overcome one of the stronger criticisms of E-Verify: It is an expensive labor market regulation that will increase unemployment by raising the cost of hiring new workers among other problems.  However, FAIR excluded the first state to mandate E-Verify and made numerous other silly methodological choices that make their results unreliable. 

First, the FAIR authors excluded Arizona from their report.  Arizona was the first state to mandate E-Verify for all new hires.  Unemployment rates as measured by U3 were lower in Arizona than in the rest of the United States prior to the implementation of E-Verify and they shot up afterward, remaining consistently above the rest of the United States (Figure 1).  The result is even more extreme for the U6 unemployment rate that the FAIR report insisted on using (Figure 2).  Narrowing the comparison to the southwestern states of California, Colorado, Nevada, New Mexico, Oklahoma, Texas, and Utah shows similar results whereby Arizona had relatively lower unemployment prior to mandating E-Verify and higher unemployment afterward (Figures 3-4).  Utah mandated E-Verify for some employers during this time but excluding that state does not affect the results.  Mandatory E-Verify did not appear to improve employment in Arizona. 

Figure 1

Arizona Unemployment Rate (U3) vs. United States Unemployment Rate (U3)

Source: Bureau of Labor Statistics.