The Fairness Doctrine Was Terrible for Broadcasting and It Would Be Terrible for the Internet

Skepticism of big tech companies is surging on both sides of the political spectrum, from Democratic Senator Elizabeth Warren calling for breaking up Amazon to Republican Senator Josh Hawley advocating rules that would prohibit online viewpoint discrimination. This wave of techno-progressivism finds its latest expression in Slate journalist April Glaser’s article, “Bring Back the Golden Age of Broadcast Regulation.”

Glaser argues that the problems of internet discourse—eg hate speech, haphazard content moderation, and conspiracy peddling—are so trenchant that government intervention is warranted. She calls for applying the rules that once governed mid-twentieth century radio and television broadcasting to the internet, the most important of which was the mandate that broadcasting be done in the “public interest, convenience, and necessity” as laid out in the 1934 Communications Act. Inspired by that mandate, reform-minded progressives at the Federal Communications Commission (FCC) enacted the Fairness Doctrine in 1949, which required broadcasters to provide multiple points of view when discussing political disagreements.

Glaser’s proposal is light on details about how exactly broadcast rules would be adapted for the internet, but it is heavy on assurances that any such regulations would be “light-touch.” Those who worry that inviting the feds to just “do something” could lead to violations of free speech need not be concerned. As Glaser argues, “For decades, radio and television followed regulations—hardly heavy-handed ones—meant to ensure they served the information needs of their audiences and did not actively harm political discourse.”

That would be lovely, if it were true, but not a single part of that statement is correct. The belief that government regulation of internet content providers will be effective and minimally-invasive is rooted in a poor understanding of the history of broadcast regulation. That history actually suggests the opposite, that these regulations will be ineffective, highly-intrusive, and will create significant unintended consequences.

Enforcement in the USMCA: The Draft SAA and the Trump Administration’s Elevation of Section 301

Enforcement of the U.S.-Mexico-Canada Agreement (USMCA) has proven to be an important stumbling block to its ratification in the United States. Democratic law makers have demanded that enforcement provisions be strengthened, particularly with regard to labor and environment provisions. Specifically, some have asked for the correction of a major flaw in the NAFTA state-to-state dispute settlement chapter, under which the appointment of dispute panels had been blocked (in part due to the absence of a roster of panelists to draw from). U.S. Trade Representative Lighthizer stated in congressional testimony that this issue had been addressed in the renegotiated text. In a response to a question from Sen. Ron Wyden (D-OR), asking “Would you be opposed to clarifying that the text of Chapter 31 of the revised NAFTA is not meant to allow panel blocking?,” Lighthizer said:

The text of Chapter 31 of the United States – Mexico – Canada Agreement (USMCA) is not meant to allow panel blocking. Indeed, panels have been successfully formed under Chapter 20 of the NAFTA (its precursor). As we move forward with Congressional consideration of the USMCA, we look forward to discussing this and any other issues related to enforcement with you and your colleagues.

However, as we have pointed out on multiple occasions, it’s not clear that the problem of panel blocking has been resolved by the new USMCA text. Notably, Lighthizer did not say it has been, instead emphasizing that the agreement “is not meant to allow panel blocking,” which is vague enough to suggest it does not preclude it.

To add another healthy dose of skepticism to Lighthizer’s claim, a draft [$] of the Statement of Administrative Action, which was submitted on May 30th (the final version of which will be part of the implementing legislation), seems to suggest he has something else in mind when it comes to enforcement.  Two relevant aspects are as follows.

First, on the problem of the roster, the draft SAA states:

b. Dispute Settlement: Nominations for Dispute Settlement Roster

Article 31.8 of the USMCA requires that by the date of entry into force of the USMCA the Parties establish a roster of up to 30 individual[sic] who are willing to serve as panelists. USTR will consult with the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate (“Trade Committees”) as it considers nominees for the roster of panelists and will provide the Trade Committees with the names of the experts it is considering, and detailed background information on each, at least 30 days before submitting the names of any nominees.

On its face, this appears to suggest that a roster will be established by the date of entry into force of the USMCA. However, there may be a problem ensuring that this happens. The problem is, there is nothing that guarantees that USTR will submit the names of nominees. Furthermore, even if they are submitted and a roster is established, there is no guarantee that the roster will be maintained.

In comments to the House Ways and Means Committee on enforcement of the agreement, we suggested two options for Congress to address this problem. First, they can call on the U.S. Trade Representative to reopen the USMCA and introduce new language to Chapter 31 that addresses the three principles we highlighted in a recent paper: the roster should not be a hurdle to appointing panelists; an independent third party can act as a facilitator in the panel appointments; and, in the absence of an independent third party, the complainant should have the power itself to appoint, in order to prevent the respondent from delaying panel formation. And second, Congress could call on the U.S. Trade Representative to work with Canada and Mexico to establish a roster of panelists right now, thus ensuring a roster is in place upon entry into force of the agreement.

Second, on the issue of enforcement more generally, the SAA devotes substantial attention to the use of Section 301 of the Trade Act of 1974 as an enforcement tool. The document states, at length:

c. Enforcement of U.S. Rights

Legislative authority currently exists for the Executive Branch fully to enforce U.S. rights under Chapter 31. Section 301 of the Trade Act of 1974, as amended, authorizes the United States Trade Representative (“USTR”) to take specific action, subject to the President’s direction, and to take all “appropriate and feasible action” in the President’s power that the President directs the USTR to take to enforce U.S. rights under trade agreements such as the USMCA.

The United States shall enforce its rights under the USMCA through consultations and the dispute settlement mechanism provided for in Chapter 31 when possible. However, a decision by Canada or Mexico to prevent or unreasonably delay formation of a dispute settlement panel would not prevent the Executive Branch from enforcing U.S. rights. In this circumstance, the USTR’s determination on whether the USMCA partner breached USMCA obligations or impaired U.S. rights under the USMCA would be based on the USTR’s evaluation of the relevant legal and factual issues, including the fact that the USMCA partner failed to cooperate in the dispute settlement process.

Once the USMCA enters into force, an interested person may file a petition with the USTR requesting section 301 action in any case in which the person considers that another USMCA government has failed to honor a provision of the Agreement or has caused the nullification or impairment of benefits that the United States could reasonably have anticipated under the Agreement. Alternatively, the USTR may, on his or her own initiative, institute a section 301 proceeding.

If the USTR decides to initiate an investigation under section 301 with respect to alleged Canadian or Mexican practices, section 303(a) of the Trade Act requires the USTR initially to attempt consultations with the government of the relevant USMCA country to resolve the matter. If the case involved a possible breach of the USMCA or impairment of U.S. rights under the USMCA, and if consultations have failed to produce a mutually acceptable solution, then section 303(a) requires that the matter be submitted to the formal dispute resolution procedures of the Agreement, or to the applicable dispute settlement procedures of another trade agreement to which the United States and the other USMCA country are parties. The USTR will seek information and advice from the private sector, including form the petitioner, if any, in preparing U.S. presentations for consultations and formal dispute resolution procedures.

Section 301 provides the USTR with authority to take appropriate retaliatory action in the event that a panel report upholds a U.S. allegation that another USMCA government has breached the Agreement or nullified or impaired U.S. benefits and the other government does not take satisfactory remedial action or provide satisfactory compensation.

There are few things worth highlighting here. First in its description of enforcement under the USMCA, USTR seems to be emphasizing and prioritizing the use of unilateral enforcement tools, as it tries to make the case that enforcement authority exists even without a functioning state-to-state dispute settlement mechanism. The contrast with the draft SAA for the Trans Pacific Partnership (TPP) is interesting, as the TPP SAA did not mention Section 301 in the context of dispute settlement at all.

Second, it is interesting that “a decision by Canada or Mexico to prevent or unreasonably delay formation of a dispute settlement panel” is singled out as the problem. As far as we know, these countries have never done this. Instead, it was the United States that prevented a panel being appointed. Thus, the key question to ask here is, what happens if the United States takes a decision to delay the formation of a panel? If the United States were to do so again, perhaps Canada or Mexico would retaliate by doing the same thing. But the real concern here is whether USTR will allow panels to be appointed.

Third, and most troubling, is the statement that a breach of the obligations “would be based on the USTR’s evaluation of the relevant legal and factual issues, including the fact that the USMCA partner failed to cooperate in the dispute settlement process.” At the core of all this, it seems as though Lighthizer is looking to create a shift away from neutral adjudication, and towards unilateral determinations and enforcement.  That would be a major step backwards for the rule of law in international trade agreements.

There is still time to address these issues before USMCA is ratified. Members of Congress are working with the administration to address these enforcement issues.  Ideally, they will be able to fix the flaws in NAFTA so that the USMCA actually works the way that it was intended: The three parties will be held to account for the obligations they have agreed to.


Mexico Deported More Central Americans Than the U.S. in 2018

President Trump has decided to blame Mexico for the border crisis, rescinding and then reiterating his threat to impose tariffs on America’s neighbor to the south if it doesn’t stop migrants from Central America’s Northern Triangle from coming. Yet Mexico’s enforcement of immigration laws against Central Americans has been more vigorous than the United States for some time.

In 2018, Mexico deported more immigrants back to the Northern Triangle than the United States did, and it deported nearly all the immigrants who it apprehended in that year. The United States did not. It’s just not true that Mexico is less vigorous in its anti-immigration efforts than the Trump administration.

Indeed, from 2004 to 2018, Mexico deported 1.7 million Central Americans back to the Northern Triangle countries of Guatemala, Honduras, and El Salvador. The comparable U.S. figure was just 1.1 million. As Figure 1 shows, the gap has narrowed in recent years, but in 2018, Mexico still deported 6,177 more Northern Triangle migrants than the United States did in that year. Mexico also deported more in 2015, 2016, and 2017.

Figure 1: Deportations to the Northern Triangle From the United States and Mexico

The United States is a richer country with a much larger immigrant population from the Northern Triangle than the Mexico (3 million compared to 80,000, according to the United Nations), yet it has still not deported nearly as many as its poorer neighbor to the south.

Moreover, Mexico deported 1.75 million of 1.85 million apprehensions during the same period, meaning that 94 percent of apprehensions are removed (Figure 3). Meanwhile, the United States has routinely apprehended at the border far more Central Americans than it has deported in recent years (Figure 2). The U.S. deported 1.1 million Central Americans from 2004 to 2018, while it apprehended 1.7 million at the border alone (about 10 percent are apprehended in the interior).

Figure 2: U.S. Border Patrol Apprehensions and U.S. Removals of Northern Triangle Migrants
Figure 3: Mexican Apprehensions and Deportations of Northern Triangle Migrants

President Trump is wrong to blame Mexico for the U.S. inability to enforce its own immigration laws or deter Central Americans. Mexico is carrying out more deportations of Central Americans than the United States is, and it is more likely to deport those who it apprehends than the United States is. The United States should work with Mexico to make legal immigration options more readily available for Central Americans to deter illegal immigration.

Elizabeth Warren Should Give Up Her Stake In A Bad Idea

Senator Elizabeth Warren’s “Plan For Economic Patriotism” is causing ideological convulsions on right and left. Yet one part of her controversial plan has so far largely gone uncommented upon: she wants taxpayers (read: government) to have stakes in companies utilizing government research and development.

Far from seeing knowledge and government R&D as some form of public good that can be freely commercialized by profit-making businesses, she wants government to benefit from its investments by being an equity investor in firms – being given shares in companies who utilize public research, retaining royalties on publicly funded innovation, or even keeping a golden share of patent revenue. The misguided idea here is essentially that there should be a return to taxpayers for their money being risked on government research projects.

Such a policy appears to have been lifted from Mariana Mazzucato’s The Entrepreneurial State. This book posits extensive evidence that public money has helped develop some of the technologies or advances that we see around us, including the internet, touch-screens, GPS, and, soon, the self-driving car.

Through its role in procurement, investments in national security technologies through DARPA, and direct support for research, government agencies no doubt have contributed to building knowledge that has then been successfully commercialized through products such as smartphones.

Is the Trump Administration Pushing for a Cold War with China?

In a Washington Post op-ed last week, Josh Rogin argued this:

Despite what you may have read, the United States’ strategy toward China does not entail launching another Cold War, imposing a zero-sum game or even winning a “clash of civilizations.” In fact, the entire objective of the Trump administration’s Asia approach is to avoid outright conflict with China. But to do that, Beijing must be deterred from continuing on its aggressive path.

The idea that the White House’s new approach to confront China’s economic aggression and military expansion represents a “Cold War mentality” is popular with pundits both in Washington and in Beijing. But that accusation misunderstands what the United States is trying to do with China. …

Perhaps I am one of the pundits he had in mind, given that I wrote the following earlier this year:

Talking Ourselves into a Cold War with China

Sometimes the latest turns of phrase in policy circles are just fleeting headlines, soon to be forgotten. As a presidential candidate, Hillary Clinton called for “smart and fair trade.” But she disappeared from the political scene before we figured out what that meant.

However, other times they lead us down the road towards real changes in policy. Soon after the 9/11 attacks, Bush administration officials were accusing Saddam Hussein of being involved. At the time, the invasion of Iraq was hardly inevitable, and may not have seemed likely, but armed with the phrase “weapons of mass destruction,” the administration got the war momentum going, and that is the direction in which the country went.

The U.S.-China relationship is facing similar attempts to define it with very serious sounding terminology, as U.S. policymakers are in the grips of the latest bout of buzzwords and groupthink. The U.S.-China relationship, we are told, may undergo a “conscious uncoupling.” The two countries could be moving towards an “economic cold war.” Actual war is unlikely (although you never know), but nevertheless a seismic geopolitical shift is supposedly upon us.

There is certainly plenty of talk in Washington about a Cold War and a “clash of civilizations.” But is any of it coming from the Trump administration, rather than from pundits? Rogin points to one piece of recent evidence and quickly dismisses it:

Those who criticize U.S. policy on China argue that the United States went looking for another enemy after the fall of the Soviet Union. Some point to the unfortunate remarks by Kiron Skinner, the State Department’s policy planning director, who clumsily called the U.S.-China competition “a fight with a really different civilization and ideology.” That was an error, not a defining statement on U.S. policy.


EPA Co-benefits Are Fine, But the Agency Must Tell the Whole Story

Should you be worried about mercury emitted from power plants?

Sure, but only if you are a pregnant woman, who during gestation consumes about 220 pounds of fish caught from exclusively the top ten percent most polluted fresh waters of the United States, despite all the signs along these rivers and lakes warning “DO NOT EAT THE FISH!

Don’t take my word for it. I’m simply relaying EPA science. And not the ‘bad” kind produced by the Trump administration; rather, I’m talking about virtuous EPA science as practiced by the Obama administration.

A little background: mercury emissions aren’t a direct threat to humans, but instead settle onto water bodies, and then make their way up the aquatic food chain. Because mercury is a neurotoxin, the fear is that pregnant women can engender developmental disorders in their offspring by eating fish that have bio-accumulated the toxin.

In the course of promulgating the Obama-era Mercury and Air Toxics Standards for power plants, the EPA stated that it considers “IQ loss estimates of 1-2 points as being clearly of public health significance,” even though this low a number rests comfortably within the error of measurement inherent to an IQ test. According to the EPA’s analysis, the Mercury Rule was necessary to prevent an IQ loss of 1.1 points supposedly suffered by children born to a putative population of pregnant women from substance families, who during their pregnancies eat 220 pounds of self-caught fish reeled in from the most polluted bodies of fresh water. Notably, the EPA failed to identify a single member of this supposed population. Instead, these women were modeled to exist.

Even under EPA’s ultra-accommodating analysis of its rules’ benefits, the agency pegged the benefits of the Mercury Rule at a mere $6 million. In stark contrast, the agency estimated that the rule would cost about $10 billion annually, making it one of the most expensive regulations ever.

NASA Spending

President Trump is tweeting about NASA today. He is worried about “all of the money we are spending” on the agency.

It is $21 billion this year. The chart shows spending on NASA since 1970 in real or inflation-adjusted dollars.

NASA Spending