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I recently wrote about how ideology and confirmation bias has infiltrated research into the opioid overdose issue. I spoke about how researchers can “spin” their findings to comport with the prevailing narrative and improve the likelihood of getting published in peer-reviewed journals.

An example occurred yesterday, when the University of Michigan’s Institute for Healthcare Policy and Innovation announced, with the headline “Unwise opioids for wisdom teeth: Study shows link to long-term use in teens and young adults,” the publication of a research letter in JAMA that day by a team of its researchers.

The study of over 70,000 dental patients, ranging from 13 to 30 years in age, who had wisdom teeth extracted between 2009 and 2015 found, 

In all, 1.3 percent of 56,686 wisdom tooth patients who filled their opioid prescription between 2009 and 2015 went on to persistent opioid use, defined as two or more prescriptions filled in the next year written by any provider for any reason. That’s compared with 0.5 percent of the 14,256 wisdom tooth patients who didn’t fill a prescription.” 

Set aside the fact this study shows prolonged use is very low. Is there something inherently bad about refilling opioid prescriptions and staying on opioids longer than the average person if one is not addicted? Since we know that opioids have very few harmful effects on organs compared to alcohol, acetaminophen, or NSAIDs (with prolonged use), and since the addiction and misuse rate is somewhere around 1 percent, why are the authors so upset if some people stay on the drug longer than others. The lead author calls this a “long term ill effect.” Really?

Meanwhile, on the same day, another research letter was also published in JAMA by researchers at Brigham and Women’s Hospital in Boston that looked at 1.3 million patients who received 22 types of surgical procedures between the years 2004 and 2015. The study found a 30-day post-discharge overdose rate of 10.3 per 100,000 patients (0.01 percent), dropping to 3.2 overdoses per 100,000 patients (0.0032 percent) for those 61 to 90 days post-discharge. The authors found overdoses within 30 days post-discharge were very low in patients who were “opioid naïve”—2.8 per 100,000 patients (0.0028 percent)—as opposed to patients who were receiving opioids prior to surgery. In patients who were chronically receiving high-dose opioids prior to the operation (defined by the authors as greater than the equivalent of 100mg of morphine per day) that rate jumped to 142.5 per 100,000 patients (0.14 percent).

The authors stated in their concluding discussion:

This study demonstrated that opioid overdose after surgical discharge was rare. Patients were at risk of experiencing an overdose after leaving the hospital, especially in the first month. Furthermore, patients using high quantities of opioids preoperatively were at a heightened risk compared with those not receiving high-dose opioid therapy prior to the operation.”

The big takeaway from this study is that overdose rates in patients discharged on opioids postoperatively are extremely low—even in those who had been chronically receiving high-dose opioids preoperatively. But the authors of the study spent most of the time discussing the fact that overdoses can and do occur in patients discharged from surgery on opioids and occur more frequently in patients who had been on opioids preoperatively.

Give credit to the medical news service MedPage Today for providing dispassionate, no-spin coverage to both studies by covering them together in a story on August 7 entitled: “Post-Surgery Overdoses Are Rare—but higher odds of persistent use seen following some procedures.”

In a new op-ed I take issue Rep. Duncan Hunter (R-CA) for his unstinting support of maritime special interests and the Jones Act at the expense of average Americans. Particularly egregious is Hunter’s promotion of a recent report funded by a special interest group, the American Maritime Partnership, which makes the incredible claim that the Jones Act imposes no cost to consumers in Puerto Rico. Indeed, Hunter actually presided over a gathering of the House Subcommittee on Maritime Transportation meant to highlight its dubious findings.

While Hunter’s support for the AMP and the unseemly nexus between legislators and maritime special interests is the op-ed’s focus, the shortcomings of the AMP-funded report are worth exploring in greater detail.

From simply a theoretical perspective, the notion that the Jones Act would leave consumers in Puerto Rico unscathed is highly implausible. The Jones Act, which among other provisions prohibits foreign-flagged ships from transporting cargo between domestic ports and Puerto Rico, is a protectionist law. Keeping out competition is the entire point. It violates our understanding of economics to believe this is consequence-free for either costs or prices. Further note that competition among Jones Act carriers that provide service to Puerto Rico is sufficiently restrained that several of them were found guilty of price fixing.

Even if we were to believe that a perfectly competitive market exists in Puerto Rico despite the Jones Act’s restrictions, let us also remember that the law raises costs to those providing cargo transport by mandating the use of ships built in the United States. These ships are wildly more expensive than those constructed overseas, with a purchase price up to eight times higher. If consumers aren’t feeling the impact of these higher costs, then who is? Are we to believe that profit-maximizing companies that transport the cargo or the retailers who sell the goods in Puerto Rico happily absorb the costs of these expensive vessels?

If the theoretical underpinnings of the AMP’s claim are questionable, the methodology used to support it is doubly so. The finding that the Jones Act has no impact on consumers in Puerto Rico is in large part based on a price comparison, conducted via Walmart’s website, for 10 grocery items and three durable goods at the retailer’s locations in Jacksonville, Florida and San Juan, Puerto Rico. For these 13 items the price of each was found to be either the same or less in San Juan.

The defects of this approach are numerous. For starters, no explanation is provided for how the basket of goods was selected. Walmart sells thousands of items—why were these chosen? This is significant as it isn’t difficult to find items for sale at both locations that tell a rather different story. A 48 oz container of Breyers ice cream, for example, is priced at $2.98 in Jacksonville but $8.12 in San Juan. Numerous other price discrepancies indicating a premium paid by consumers in San Juan are easily found.

Beyond questions over how the limited basket of goods was selected, one must also wonder why Walmart should be considered representative of Puerto Rico’s retail sector and the impact that the Jones Act has on the territory’s consumers. Walmart is an extraordinarily efficient firm famous for its ability to squeeze margins from suppliers, likely including those it depends on for transportation. Do other retailers in Puerto Rico enjoy Walmart’s cost structure, or share in any discounts on ocean transport it is able to negotiate? 

Furthermore, why should retail prices be regarded as a proxy for transportation costs or evidence of their burden? As Crowley Maritime, a member of AMP and the largest carrier that provides service to Puerto Rico states, “There are many factors affecting prices on the island – energy, taxes, trucking, warehousing, rent, market size and more.” Indeed. Unless all other costs are controlled for, the impact of transportation alone is unknowable.

One retailer. Thirteen items. No explanation for how the goods are selected. No controls to isolate the cost of transportation. And yet on this basis we are offered a rather sweeping conclusion.

A conclusion, it should be added, that is at odds with respected resources on cost of living differences in the United States. According to the Instituto de Estadísticas de Puerto Rico, grocery items in the territory are the 13th most expensive out of 297 locations in the United States. The group also shows food items, contra the AMP report, as 18.4 percent higher in Puerto Rico than in Jacksonville.

Other aspects of the report’s approach are similarly questionable. To bolster its case that the Jones Act does not impose higher costs on Puerto Rico the report offers up a chart (based, it appears, on confidential data from the carriers that is unverifiable) which shows revenue per container for ships traveling between the continental United States and other ports in the northern Caribbean:

At first glance this appears to show that Puerto Ricans are getting a relative deal compared to a number of neighboring islands, but are they really? St. Croix, for example, has a smaller container port than San Juan, and likely operates with less efficiency due to its reduced scale. The fact that Puerto Rico has vastly greater trade volumes with the rest of the United States—nearly four times that of other Caribbean countries combined per a 2002 report—also likely unlocks efficiencies unavailable to other Caribbean ports.

To the extent higher revenue per container reflects the higher prices necessary to cover the higher costs of providing service on less efficient routes, this tells us nothing about the Jones Act’s impact or what freight rates between Puerto Rico and the continental United States might look like in a post-Jones Act environment. In short, it is not apparent that this is an apples-to-apples comparison or that such figures provide much in the way of relevant information.

The remainder of the report in large part consists of claims about the high level of service provided by Jones Act carriers to Puerto Rico. It cites, for example, that the use of “vessels and intermodal equipment that are uniquely designed to closely integrate the commonwealth with the advanced logistics systems of the mainland provides cargo owners with major economic and service advantages.”

But the alleged advantages and cost-effectiveness of the Jones Act carriers raises the question of why the law is then needed. If the Jones Act carriers already provide a high-quality service at a competitive price, then why should they fear a change to the status quo? If they are as competitive as they claim to be, why not open the market for sea transport with other parts of the United States to foreign competition?

The evident fear of such competition and employment of dubious analytical methods are instructive. Equally so is that pro-Jones Act politicians such as Duncan Hunter eagerly seize on this special interest-funded report despite its obvious flaws. It’s time to give the residents of Puerto Rico, and the rest of the United States, a break from this costly and outdated law.

Transit ridership has been dropping for four years and increased subsidies won’t fix the problem. Data released by the Federal Transit Administration yesterday show that nationwide ridership was 3.1 percent less in June 2018 than it had been in June 2017. Ridership fell for all major modes of transit, including commuter rail (-2.6%), heavy rail (-2.5%), light rail (-3.3%), and buses (-3.8%). 

June 2018 had one fewer work day than June 2017, which may account for part of the ridership decline. But ridership in the first six months of 2018 was 3.0 percent less than the same months of 2017, and again ridership declined for all major modes of transit.

As in previous months, I’ve posted an enhanced spreadsheet that has all of the raw monthly data from the FTA spreadsheet but includes annual totals from 2002 through 2018 in columns GZ through HP, modal totals in rows 2125 through 2131, transit agency totals in rows 2140 through 3139, and urban area totals for the nation’s 200 largest urban areas in rows 3141 through 3340. The same enhancements are included on the “VRM” or vehicle-revenue miles worksheet.

June 30 is the end of the fiscal year for many if not most transit agencies, so now we can compare transit’s 2018 fiscal year performance against 2017 (see columns HU to HW in the spreadsheet). Nationwide ridership in FY 2018 declined 2.7 percent from 2017 and of course it fell for hundreds of transit agencies.

Of the nation’s 50 largest urban areas, June ridership grew in eleven, January through June ridership grew in ten, and fiscal year ridership grew in just six. Seattle is one of the six, having grown by 1.4 percent, the others being Pittsburgh (0.2%), Providence (1.1%), Nashville (3.5%), Hartford (3.3%), and Raleigh (6.1%). Except Seattle, these urban areas have seen declines in other recent years so this increase is not a great victory and probably won’t be sustained for long in the future. 

As I’ve noted elsewhere, Seattle has enjoyed steady growth in transit ridership not because it built light rail but because it has increased downtown jobs from 216,000 in 2010 to 292,000 in 2017. Downtown jobs are the key to transit ridership because most transit agencies run hub-and-spoke systems focused on central city downtowns. But replicating Seattle’s downtown growth is impossible in most regions, as all but six American cities have far fewer downtown jobs; nor would most people agree to accept the costs Seattle is paying in terms of subsidies to new employers, traffic congestion, and high housing prices resulting from land-use restrictions that prevent jobs and housing from moving to the suburbs.

Fiscal year ridership declines in many urban areas were larger than the increases in the few regions where ridership grew. The worst were Charlotte (-15.1%), Cleveland (-11.7%), Miami (-10.3%), St. Louis (-8.2%), Memphis (-7.7%), Jacksonville (-7.0%), Baltimore (-6.6%), Richmond (-6.6%), Philadelphia (-6.5%), Cincinnati (-6.2%), Virginia Beach (-6.1%), Dallas-Ft. Worth (-5.9%), Phoenix (-5.6%), and Boston (-5.2%). This is in addition to significant declines in all of these urban areas between 2014 and 2017.

Officials at the Charlotte Area Transit System must be proud that the light-rail expansion they opened in March led to a 65 percent increase in June light-rail ridership over June 2017. Yet this was a hollow victory as the agency lost 36,000 more bus riders than it gained in rail riders.

Transit agencies get about a third of their operating funds from fare revenues, and the decline in ridership has forced many to reduce service. The vehicle-revenue miles page shows that nationwide transit service declined by 5.1 percent in June 2018 vs. 2017. While some people blame the ridership declines on the service reductions, at least one study says it is the other way around: service has declined because riders abandoned transit, forcing agencies to cut back on spending.

Transit ridership has declined in many urban areas despite increasing service. Among many others, Phoenix increased 2018 service by 11.0 percent yet lost 5.6 percent of its riders; San Jose increased service by 3.1 percent but lost 4.2 percent of its riders; Indianapolis increased service by 4.3 percent yet lost 3.9 percent of its riders; Austin increased service by 6.5 percent yet lost 1.1 percent of its riders.

It appears that ride hailing is the principal factor in ridership declines. A recent study estimates that ride hailing grew by 710 million trips in 2017. If just 36 percent of those trips were people who would otherwise would have taken transit, then ride hailing is responsible for all of the decline in 2017. Declining ridership leads to service reductions, which results in more ridership declines, producing a death spiral of revenue shortfalls followed by service reductions followed by more revenue shortfalls.

Some cities are supplementing transit revenues by taxing ride-hailing companies, which I’ve noted elsewhere is a little like taxing word processors to protect the typewriter industry or pocket calculators to protect the slide rule industry. At least one city is looking at taxing marijuana to subsidize transit.

It doesn’t really matter. The decline in transit ridership is beyond the control of transit agencies, and increasing subsidies to what is already the nation’s most-heavily-subsidized form of transportation won’t make much difference. The only question is when will appropriators realize that it is pointless to continue subsidizing a dying industry and start winding down those subsidies.

Last week the Trump administration announced its intent to freeze Corporate Average Fuel Economy standards (CAFE) at 2020 levels. Rules implemented in 2012 under the Obama administration would require a fleet average fuel economy of 54.5 miles per gallon (mpg) by 2025, but the new rule change would instead hold average fuel economy at about 37 mpg.

Predictably, the announcement created a flurry of criticism, with the New York Times editorial board characterizing the plan as reckless in the face of climate change. Much of this criticism misses a key point: CAFE has been repurposed to manage a problem for which it was not designed and is thus a very costly and imperfect remedy. 

Enacted after the 1973-74 oil shock, CAFE was a political solution to a political problem: soaring oil prices. The standards were premised on the belief that consumers would not pay more for cars that used less fuel even if the reduced fuel use more than paid for the extra initial cost. Instead, CAFE sought to force automakers to produce higher mileage cars and thereby reduce fuel use despite the supposed myopia of consumers. But subsequent economic research has shown that consumers were not myopic. Consumers’ willingness to pay for higher mileage capability approximately equals the expected future fuel cost savings without government intervention.

Even though the original rationale for CAFE has been undermined by the evidence, CAFE lives on with a new purpose: climate change. Since the 2007 Supreme Court decision in Massachusetts v. Environmental Protection Agency that the EPA has authority to regulate tailpipe greenhouse gas emissions, CAFE has become a tool for CO2 emissions reduction. But, as I have previously argued and my colleague Randal O’Toole recently discussed, CAFE is an inefficient and clumsy tool because it targets only one source of greenhouse gas emissions and it does so indirectly. Directly taxing carbon emissions would much more effectively incentivize businesses and consumers to reduce their greenhouse gas emissions.  The indirect CAFE program costs the economy at least six times as much as a carbon tax that reduces emissions equivalently. If reducing greenhouse gas emissions is a worthwhile goal, we should pursue policies that directly address the problem and utilize market forces to reduce emissions.

Another key component of the Trump administration’s plan is its proposal to revoke a waiver that allows California to set its own vehicle emissions standards and allows other states to follow  California’s lead. Currently, California standards are set to continue on the Obama 2012 path. So, if the Trump administration freezes national standards but California’s separate standards are permitted, then automakers would be forced either to sell different cars in California and the states that follow its lead or comply with California standards in all states.

The origin of the California waiver, like CAFE in general, is divorced from its original intent. The waiver’s purpose was to allow California to impose its own regulations on conventional emissions because of unique weather and geographic conditions around Los Angeles that make it especially susceptible to smog.

Smog forming pollutants and greenhouse gases are very different emissions. As I noted in the 2017 Cato Handbook for Policymakers, regulation of pollutants that affect local air quality should be decentralized because both the costs and benefits are local. But reduction of CO2 emissions is a global public good. Any benefits accrue to the world’s climate even though the costs are local. This mismatch between the geographic incidence of costs and benefits imply that a waiver that exempts one state makes no sense in the context of CO2 emissions and has the potential to unduly increase compliance costs for automakers.

CAFE should have ended a long time ago.  The problem for which it was designed (consumer myopia) never existed.  Because that is not politically possible the proposed freeze is defensible.  In contrast state control of conventional pollutants is appropriate, but the California waiver should not be repurposed for greenhouse gas emissions.    

Written with research assistance from David Kemp.

In two maps today, the New York Times illustrates the growing dependence of Americans on federal government subsidies or welfare.


This post co-authored with Rafael Fonseca, MD, Chairman of the Department of Medicine, Mayo Clinic, Phoenix, AZ

Much has been written about how politics and ideology influence research funding, suppress research in certain areas, and lead to the cherry-picking and misrepresentation of evidence in support of a narrative or agenda. Science journalist John Tierney explored “The Real War on Science” in an excellent essay in City Journal in 2016. Reflecting on this phenomenon in 2011, Patrick J. Michaels stated:

The process is synergistic and self-fulfilling. Periodicals like Science are what academia uses to define the current truth. But the monolithic leftward inclination of the reviewing   community clearly permits one interpretation (even if not supported by the results) and not another. This type of blatant politicized science is becoming the norm in the environmental arena, and probably has infiltrated most every other discipline, too.

It certainly has infiltrated research into the emotionally charged opioid overdose problem afflicting the US and many other western nations. Policy decisions have been rooted in a narrative seemingly immune to the facts: that the problem is largely the result of greedy pharmaceutical companies manipulating careless and poorly-trained doctors into “hooking” patients on highly addictive opioids and condemning them to a nightmarish life of drug addiction.

Tierney writes of confirmation bias—the tendency of people to seek out and accept information that confirms their beliefs and prejudices. He bemoans the “groupthink” that allows confirmation bias to infiltrate the peer review process. He cites a well-known study that demonstrated reviewers were more likely to find problems with a study’s methodology if the findings were contrary to their prejudices yet overlook methodological shortcomings if the findings were confirmatory.

Sometimes investigators try to “spin” their findings to make them comport to the narrative and appear confirmatory, increasing the likelihood that their research gets published. 

Both of us are practicing physicians, and each of us recently experienced reminders that research into the opioid overdose issue is not exempt from politicization and confirmation bias. We would like to present two recent examples where this confirmation bias became self-evident. 

One of us, Rafael Fonseca, recently encountered a peer reviewed publication that asserted, and concluded by conjecture, that opioid manufacturers, by providing meals to physicians at educational presentations, were skewing prescription patterns and increasing the number of opioids being prescribed. A cursory review of the published data suggested that correcting for variables such as specialty was needed to understand such putative association. After undertaking a full data analysis (reported in the Healthcare Blog with Dr. John Tucker), we were able to refute the findings of that publication. In short, we found that the influence of meals provided on prescribing was negligible, and that similar effects were seen when providers attended meals provided by companies that produce other products used for the treatment of pain, but not opioids.  We provided a compelling case that increased attendance to these meals, and opioid prescription, was more of a reflection of the practice pattern of such physicians (i.e. they treat pain patients) rather than a heinous quid pro quo.  Readers are referred to our analysis and the original paper.

We remain disappointed by the apparent ease with which such publications appear in major medical journals as well as the scarcity of detailed rebuttals.  The authors of this paper did not discuss considerations that are relevant such as multivariate analyses. Not only were these missing, but the article concluded by suggesting that policy changes are needed, and that companies should be prevented from supporting such meals. Individuals who served as peer reviewers of this article apparently missed the limitations we presented in our independent review and accepted at face value the conclusions presented. The editors of the journal did not consider confounding covariates, which as we have shown, would make the analysis questionable. Perhaps, most troubling, is that a letter to the editor was submitted with our findings and was rejected as being of “low priority.” This was problematic given that, even though our letter was an abridged version of our full analysis, it directly refuted the conclusion of the paper.  We cannot claim ill intention in the process but are surprised that even when pointed out, it seems that a prevailing narrative trumped scientific rigor. The prevailing current narrative is that greedy pharmaceutical companies duped doctors to inappropriately prescribing opioids.  If we want to curtail deaths associated with opioid overdoses we must find the correct factual context of the problem. Facts are established with science and can be distorted by heuristics serving ideology.

At the time of this blog post we have requested the primary data from the authors to resolve data inconsistencies. We have not received the data, because the authors claim they intend to make it public at some point in the future pending a publication they have submitted. Through social media channels an Associate Editor of the journal was recently made aware of our analysis and stated it should be submitted as a letter to the editor or as a publication. We offered to write it as a full report and noted that our letter had already been rejected, and we received no further response. We have also contacted the Editor but have yet to get a response.

An example of how researchers “spin” their findings to comport with the prevailing narrative and increase the likelihood of publication occurred on January 17, 2018 when Jeffrey Singer encountered a story in the Los Angeles Times touting a recently published study in the peer-reviewed medical journal BMJ, in which the principal finding was that refilling opioid prescriptions given to patients for acute pain dramatically increased their risk of addiction. The Times reporter wrote:

A study published Wednesday in the BMJ finds that for every additional week a patient takes drugs like oxycodone and hydrocodone, the chance that he or she will wind up abusing the drug increases by 20%. And every time a prescription for opioid painkillers is refilled, the risk of abuse rises by 44%.”

The reporter was accurate. The study by researchers at Harvard and Johns Hopkins looked at 568,000 opioid “naïve” patients in the Aetna health insurance data base given prescription opioids for acute postoperative pain over the period of 2008-2016. It began the conclusion to its abstract with: “Each refill and week of opioid prescription is associated with a large increase in opioid misuse among opioid naïve patients…” But what the Times reporter neglected to mention, and what the study’s authors only mentioned in passing, was the initial finding: the “total misuse rate,” i.e., rate of all opioid misuse diagnostic codes (defined separately as dependence, abuse, and overdose—a broad category within which addiction is only one component) among the 568,000 patients prescribed the opioids, was 0.6 percent. It was only upon reading the actual study as opposed to the press coverage that this rather encouraging news—opioids prescribed for acute pain have a very low misuse rate—became apparent.

Instead of emphasizing this encouraging finding, the bulk of the study investigates the effect the duration of time a patient is on opioids—expressed principally by numbers of refills—has on the misuse rate. The authors indeed found that each refill and additional week of opioid use was “associated with an adjusted increase in the rate of misuse of 44%.”

However, looking at the actual numbers behind those percentages finds the incidence of opioid misuse rose from 145 cases per 100,000 person years, or 0.15 percent per year, in patients who had no refills, to 293 cases per 100,000 person years, or 0.29 percent per year, for persons who had one refill. Indeed, that is nearly double. But if you nearly double a very low number, you still get a low number. Also, the correlation of prescription refills with an increase in misuse does not prove causation. Possible causes are debatable, with many confounding possibilities. The study lacks any discussion or exploration into matters of cause and effect.

Rather than point out that the incidence of misuse is extremely low in patients given opioids for acute postsurgical pain, even after multiple refills, the authors chose to pass over the low overall incidence of misuse and instead focus on the “large increase in opioid misuse” seen with each refill and week of opioid use.

These are just two examples of how scientific research is susceptible to the biases of the researchers and influenced by political exigencies. They both fed into the prevailing narrative animating policy toward opioid use, abuse, and overdose. Both provide good examples of how researchers as well as peer reviewers fall easy prey to confirmation bias.

Readers should approach every new “study” reported in the peer-reviewed science literature with a modicum of skepticism.

The World Trade Organization is facing an existential crisis because of bullying by President Trump. That crisis can only be resolved if the United States and the 163 other members of the World Trade Organization negotiate a solution to what is most motivating these actions: American angst over the global rules for imposing anti-dumping and other trade remedies against unfair trade practices.

Central to Trump’s assault on the longstanding liberal international order in trade is his threat to grind the settlement of international trade disputes to a halt in the WTO. He is doing this by blocking the appointment and reappointment of the WTO judges whose rulings help resolve the trade disputes. U.S. intransigence may soon reduce the WTO Appellate Body from its full roster of seven judges down to the minimum of three needed to decide an appeal.

If the U.S. continues this strategy, the appellate court will be left with only three judges in September, and only one judge by December 2019—not enough to hear an appeal. Already slowed by the current shortage of judges, the rule-based dispute settlement system that has resolved more than 500 international trade disputes since its creation in 1995, and that has prevented an untold number of additional disputes, could come then to a standstill. 

The impasse over judicial appointments in the WTO is ostensibly about what U.S. officials see as the supposed straying of WTO appellate judges from the strict bounds of their instructions into forbidden legal terrain in some of their rulings. Overlooked in the U.S. is the inconvenient fact that there are 163 other WTO members that have not professed to observe a pattern of judicial “over-reaching.”

Actually, the blockade is driven by the decades-long frustration of some within the U.S. with their failure to negotiate WTO rules that would assure the U.S. virtually unlimited latitude in imposing anti-dumping duties and other trade remedies on imported goods, and that would mandate that WTO judges largely defer in their rulings on such remedies to U.S. decisionmakers.  

Trump and his trade collaborators see America as possessing the sovereign right to impose anti-dumping tariffs and other remedies to alleged unfair trade practices with a domestic discretion akin to international legal impunity. This is not a new view—American industries challenged by foreign competitors and American protectionists representing those industries in the trade bar have long abused U.S. trade remedies to keep foreign competition out of the domestic market. Now they also hold power in the Trump Administration.

But other countries hold a different view. For decades, other countries, like American consumers and many American producers reliant on imports, have been repeatedly victimized by U.S. administrative agencies under the sway of protectionist interests. These agencies tend to rig U.S. domestic trade rules against foreign producers and then apply those rules in ways that discriminate against foreign goods under the legal pretense of fighting trade unfairness. This has happened for decades already with steel imports.

These protectionists forget that there is just one set of WTO trade remedy rules for all WTO members – not one set of rules for Americans and another set of rules for everyone else. Given this, do we want other countries to be able to use their own trade remedies laws to treat our exports the same way we treat theirs? And why should other countries eliminate their own trade abuses if we refuse to eliminate ours?

Since the establishment of the WTO in 1995, the main constraint on the unchecked use by the U.S. of trade remedies has been the WTO rules the U.S. helped negotiate and place in the WTO treaty – rules that have been consistently upheld by the Appellate Body. While the U.S. has (despite what Trump tells us) won about 86 percent of the cases it has brought against other countries before the WTO, it has lost about 75 percent of the cases other countries have brought against the U.S. (which is better than the global average of 84 percent).

Most of these losses have been in politically sensitive disputes over U.S. anti-dumping and other trade remedies. And many of them have been over repeated challenges to the same US trade actions because the U.S. has either refused to comply fully with adverse WTO rulings or has only pretended to comply.

In dumping in particular, the U.S. prefers to retain practices that find dumping where it does not exist and magnify the extent of dumping – and thus maximize the amount of anti-dumping duties – where dumping does exist. (In trade jargon, this is called “zeroing.” The U.S. has lost a long series of “zeroing” disputes.)

Fueling the U.S. foot-dragging is the belief that it has not gotten the extent of legal deference from WTO judges it thought it had secured in the WTO rules for applying anti-dumping duties. Americans who favor the unfettered use of anti-dumping measures feel they have been cheated.

Their legal problem is this:

A sentence the U.S. succeeded in putting in the WTO anti-dumping rules provides that if one of those rules “admits of more than one permissible interpretation,” then WTO judges must defer to the domestic decision “if it rests upon one of those permissible interpretations.” But the previous sentence, on which the U.S. also agreed, instructs the WTO judges to interpret the anti-dumping rules “in accordance with customary rules of interpretation of public international law.” And the use of those interpretative rules always results in a judicial finding of one ordinary meaning for international rules – never two.

Thus, the Appellate Body, in doing its job by following the rules of treaty interpretation it has been instructed by the WTO members to use in the WTO treaty, has never found that an anti-dumping rule “admits of more than one permissible interpretation,” and so it has never given the U.S. the extent of deference that it desires and still believes—wrongly—it negotiated.

Other WTO members are uncertain about how best to react to President Trump’s bullying on judicial appointments. In response, they must not yield to his intimidation by curtailing the jurisdiction of WTO judges by, in effect, allowing the U.S. to be the judge and the jury in its own cases. Instead, they should embrace a proposal that has already been made by the European Union. In exchange for an end to the U.S. blockade of WTO judicial appointments and U.S. agreement to WTO reforms that reinforce the indispensable independence and impartiality of WTO judges while also strengthening the whole WTO dispute settlement system, the 163 other WTO members should agree to negotiate anew on the true core of U.S. concern – the rules on dumping.

This does not mean acquiescing to the arrogant American ambition of having the international legal discretion to do whatever it chooses in applying trade remedies, while expecting other countries to do exactly as the U.S. wishes. It does mean resuming anti-dumping negotiations on the degree of deference owed to domestic authorities – and this time reaching an agreed solution in more precise wording of the anti-dumping rules in the WTO treaty – wording that has consistency and clarity.  

In the wake of the recent “trade agreement” between President Trump and EU Commission President Jean Claude Juncker, we have seen a surfeit of commentary heaping praise on the U.S. president for his strategic trade policy vision and tactical brilliance. Much of that praise has come from people who share the president’s flat-earth view that trade is a zero-sum game played by national governments where the objective is to promote exports, block imports, and secure a trade surplus. Trump throwing U.S. weight around to assert the rule of power over the rule of law is music to this crowd’s ears.

But then there are the apologists who know better; the enablers. They are the bigger problem. In their obsequious tones, they explain how our brilliant president is blazing his own path toward free trade and that the evidence of his success is all around us. If we just disregarded Trump’s nationalist rhetoric, ignored his belief that the trade deficit means the United States is getting ripped off, shoveled away his mounting pile of destructive, protectionist actions, and stopped believing our own lying eyes, we too would rejoice in the greatness of a man who is committed—above all else and above all others—to free trade. 

Engaging in such extreme mental contortions is no easy task, but that’s exactly what an op-ed by tax reform luminaries Steve Moore, Art Laffer, and Steve Forbes in the New York Times last week expects readers to do.

Moore, Laffer, and Forbes (MLF) portray Trump’s “gunboat diplomacy” (you open your markets fully or I’ll close ours!) as strategic genius, akin to Reagan’s nuclear arms race, which broke the Soviets’ backs.  They conclude: “Just as no one ever thought Mr. Reagan would stem nuclear proliferation, if Mr. Trump aggressively pursues this policy, he could build a legacy as the president who expanded world commerce and economic freedom by ending trade barriers rather than erecting them.” Well, yeah, maybe he could.  But so far Trump has only increased trade barriers, more are coming, and there are no negotiations underway—with anyone—aimed at lowering tariffs or other barriers to trade.  But just close your eyes and imagine.

MLF make the following claim:

President Trump won a victory for freer trade last week when he and the president of the European Commission, Jean-Claude Juncker, agreed to find ways to lower tariffs and other barriers to each other’s exports. The outlines of the deal are still sketchy, but it calls for the Europeans to buy more American petroleum, soybeans and manufactured goods and for Mr. Trump to reduce his auto and steel tariffs. We were particularly heartened that Mr. Trump and the Europeans now have a handshake agreement to aim for zero tariffs on both sides of the Atlantic.

The only accurate part of this paragraph is that “the outlines of the deal are still sketchy.” As I described last week, nothing was agreed at that meeting except that new tariffs would not be imposed for the time being. In his Rose Garden statement after meeting with Juncker, Trump said they had agreed to “work together toward zero tariffs, zero non-tariff barriers, and zero subsidies on non-auto industrial goods (my emphasis).” But there is no timetable and if there were, those discussions would exclude agricultural products, natural resources, services, and—well—automobiles and parts, which together constitute a big chunk of transatlantic trade.

Instead of moving us in the direction of lower tariffs and broader trade liberalization, a more accurate interpretation of the meeting is that Trump made clear that he is digging in for a trade war of attrition with China and that he fully expects Juncker to have his back.  The plan includes such banana republic tactics as buying the quiet of Trump’s trade war casualties ($12 billion for farmers and likely more to come for manufacturers) and compelling the EU (and other trade partners) to purchase more U.S. soy, natural gas, and other products previously destined for China, lest the steel and aluminum tariffs remain in place, and auto tariffs follow—perhaps as early as October.  Considering that the EU will have a tough time absorbing much of the U.S. supply rendered “excess” by Trump’s tariffs and the retaliation they incited, it is only a matter of time before Trump loses patience and transatlantic discord starts boiling again.


This was Mr. Trump’s idea. The night before the agreement, he proposed in a tweet that “Both the U.S. and the E.U. drop all Tariffs, Barriers and Subsidies! That would finally be called Free Market and Fair Trade!” Amen.

Of course, zero trade barriers would be great. But Trump’s idea? Hardly. In 2002, in the Doha Round, the Bush administration put forward a far more ambitious proposal for zero tariffs on industrial goods for all countries by 2015. More recently, the Transatlantic Trade and Investment Partnership (TTIP) negotiations included proposals to eliminate tariffs, non-tariff barriers, and subsidies. Neither of those efforts was successful, but the idea has been in play since well before Trump came to town and is not especially radical.


This is a winning strategy that we’ve long endorsed with our friends at the White House because it is fully consistent with what Mr. Trump has often told us: his threat of tariffs is a negotiating tactic to get to lower trade barriers and a “level playing field.”

I’m not sure where MLF have been lately, but they seem to have overlooked the fact that the president is not only “threatening” tariffs. He has already imposed them on $100 billion of imports from Europe, Canada, Mexico, Japan, China, and most of the rest of the world. In the next week or so, another $16 billion of imports from China are likely to be hit, and another $200 billion could be subject to 25 percent duties by as early as September.

Last week, Commerce Secretary Wilbur Ross wondered why there was so much handwringing over the matter of assessing 25 percent tariffs on another $200 billion of Chinese goods: “Fifty billion dollars a year on an $18 trillion or so economy is three-tenths of one percent. It’s not something that’s going to be cataclysmic.” Well, it might not be immediately cataclysmic, but a more relevant comparison is that the total value of all duties collected by U.S. Customs in 2017 was just $33 billion. Only in a George Orwell novel could this beefing up of duty collection be called free trade.


The next step should be to extend this zero tariff offer to other key allies, including Britain, Canada, Mexico and South Korea.

Again, this is willful ignorance, right?  Anyone who writes about trade in the New York Times has to know that nearly all tariffs between the United States and Canada and between the United States and Mexico are already zero today under the NAFTA, and that the Korea-U.S. free trade agreement includes a roadmap to get us almost all the way there in a decade. One major exception is Trump’s insistence on preserving the 25 percent U.S. tariff on pick-up trucks until the year 2041.


If Mr. Trump’s goal is‎ more jobs and higher wages, America comes out the big winner under the zero tariff scenario. Most of our major trading partners have higher tariffs than we do. A study by the president’s Council of Economic Advisers calculates that the average American tariff is 3.5 percent, while the average European Union rate is 5 percent, China’s is nearly 10 percent and the world average is around 10 percent. On a level playing field, American companies can compete with anyone, and our exporters will gain advantage if trade barriers are abolished.

Actually, what this tells us is that the U.S. government has been better to American businesses and households than the governments of China and the EU have been to their own domestic entities. Trump’s tack amounts to his threatening to reduce the freedoms of Americans unless and until the other governments allow their citizens to be freer. So much for America first.

Moreover, jobs and wages are linked to the performance of businesses. American workers benefit, generally, when their employers are profitable. Profits are maximized by maximizing revenues and minimizing costs.

Generally speaking, U.S. export revenues could be higher if U.S. exporters faced lower barriers abroad. But import tariffs don’t compensate for those foreign barriers. They exacerbate the problem because half of the value of U.S. imports are inputs to U.S. production and tariffs raise their costs. Threatening to raise the cost of production on U.S. businesses (and the cost of living for U.S. households) unless foreign governments reduce their own tariffs makes no economic or business sense. Higher tariffs abroad and higher tariffs at home conspire to squeeze profits from both ends, and that’s not good for U.S. employment or compensation. This back of the envelope analysis shows how Trump’s tariffs imperil the expected benefits to U.S. manufacturers from the tax reforms, which MLF were instrumental in advancing.

The optimal response to higher foreign tariffs, which work to reduce U.S. business revenues, is to lower our own tariffs, which would reduce U.S. production costs. So not only is the economics wrong, but the strategy hasn’t produced the results that MLF are celebrating. So far China and nearly every country hit with steel and aluminum tariffs has refused to negotiate under duress. What if these governments continue to remain unwilling to submit to Trump’s gunboat diplomacy?  Even if they were inclined to, why would they have any reason to believe that Trump wouldn’t use the same tactics to get more concessions next time? This is a dubious and very dangerous “strategy.”

In any case, the fact that the United States has lower average tariffs than most countries helps explain the relative success of the U.S. economy over the years. The United States remains the world’s top destination for foreign direct investment, and lower tariffs give us an advantage in the competition to attract and retain that investment. One of the arguments for corporate tax reform with which MLF presumably agree is that lower rates would free up profits to be reinvested in the U.S. economy. Lower taxes on imports have the same effect. We didn’t need agreement from Beijing or Brussels to reduce U.S. corporate rates and we certainly don’t need their consent to do the same for tariffs.


The alternative is higher tariffs on steel, aluminum, autos and hundreds of products imported from other countries, particularly China. Those actions have led to retaliatory tariffs imposed on products grown or manufactured in America. This has hurt farmers, the stock market and economic growth.

It’s difficult to fathom that MLF consider higher U.S. tariffs on these inputs and consumer goods to be leverage. Those U.S. tariffs are hurting the economy and threatening to negate the benefits of the tax reform they helped achieve. Those enduring costs, as well as the retaliation impacting U.S. farmers and others are what Trump’s trade policies have wrought.


A no-tariffs trade strategy would also allow the United States to seize the moral high ground in the debate. Mr. Trump would be transformed from the evil disrupter of international commerce to a potential savior — just as 30 years ago Mr. Reagan’s international image changed from superhawk to peacemaker almost overnight.

After insulting and bullying U.S. trade partners, imposing enormous costs on the global economy, fomenting profound business uncertainty and diplomatic angst, and snuffing out any remaining fumes of good will toward his administration, it is unlikely that President Trump would ever be considered anything more sparing than an evil disrupter. But in the final analysis, it is apparent that the intended audience for the MLF op-ed is none other than President Trump himself. 

The last few paragraphs make clear that the authors—all Trump advisors—are trying to encourage the president to end up on the right side of history. For that they deserve some credit. But they still lose more points for excusing the president’s numerous transgressions, giving intellectual cover to mercantilists and nationalists who believe the United States shouldn’t be constrained by the trade rules, and for supposing that Trump would ever read the New York Times.

The federal government dispenses unequal treatment to Americans through subsidies, regulations, and narrow tax breaks. The unequal treatment generates lobbying and corruption as the government-determined winners dig in to defend their lucre and the losers agitate for a share.

Washington is a universe of thousands of separate special-interest galaxies, each with spiraling masses of lobbyists orbiting politicians and bureaucrats whose power is a gravitational force. Scientists say that the universe is mainly filled with dark energy, and the same is true of the nation’s capital.

The Tax Cuts and Jobs Act of 2017 created a new special-interest galaxy called “Opportunity Zones.” O Zones are tax structures that infuse governors and U.S. Treasury officials with the power to divide every state in the nation into winner and loser areas. Projects in the winner areas receive capital gains tax breaks, while projects in the loser areas get the shaft.

O Zones are already generating dark energy, as a recent Washington Post story illustrates:

The Treasury Department last week reversed itself after lobbying by Nevada Republicans and agreed to let a previously ineligible county reap huge benefits from the new tax law.

The effort was led by Nevada’s governor, Brian Sandoval (R), and Sen. Dean Heller (R-Nev.), who separately spoke with Treasury Secretary Steven Mnuchin and pushed for Storey County to win designation as an “Opportunity Zone,” which was established in the law to help distressed areas attract money.

Working behind the scenes to help the effort was a Storey County brothel owner and real estate investor, Lance Gilman, who told local officials that the designation could lead to a surge of investments within the next few years. Gilman is also a major GOP donor and made a $5,000 campaign contribution to Heller in the midst of the process, the biggest contribution he had ever given to a candidate for federal office.

Treasury officials had initially deemed that Storey County’s income levels were too high to qualify, based on the metrics they had used to judge every other nomination for the special tax status. But after weeks of prodding from Nevada officials, Treasury relented and gave the designation to Storey County using new data.

The successful campaign to win this lucrative designation illustrates how political pressure can redirect billions of dollars in federal benefits, which are supposed to be distributed in a non-arbitrary manner.

It shows how the new tax law, meant to simplify the tax code when it passed in December, is creating opportunities for gamesmanship — in this case by public officials and business executives seeking to exploit the Trump administration’s discretion in interpreting the law.

…several other Nevada business owners are furious at the designation. To push Storey County for the Opportunity Zone designation, Sandoval had to withdraw the April 20 nomination of Dayton, Nev., an economically depressed neighboring community that lacks Storey County’s huge industrial center.

This has led to accusations of unfairness, and several executives said they haven’t gotten the straight story about why their nomination was pulled without their knowledge.

Unequal treatment generates bad feelings and divisions, negative forces in the universe. The dark energy of O Zone corruption was entirely predictable, and there will probably be lots more of it.

Corruption has similarly swirled around the federal LIHTC tax break, which empowers officials to make winner and loser decisions in local communities, as Vanessa Brown Calder and I discuss here and here.

Vanessa and I have further thoughts on O Zones here, here, and here.

In the summer of 1982, after the Cato Institute’s week-long seminar at Dartmouth, I drove to Boston with one of the other attendees. Touring the city, we encountered a protest rally on Boston Common. I don’t remember just what the rally was about – probably the “nuclear freeze” or a general protest against nuclear weapons, which was a strong movement then. As we watched, a young woman approached and handed us flyers calling for socialism. “Like in Russia and China?” I asked her. Unwilling to defend those disastrous results, she responded “We’re more interested in the experiments currently going on in Zimbabwe and Nicaragua.” I knew very little about those “experiments” and had nothing much to say.

Now, though, 36 years later, we know a great deal about those experiments in socialism. The photograph at right appears on the front page of Friday’s Washington Post with the caption “Paramilitary members stand guard on July 17 at a dismantled barricade after police and pro-government forces stormed the Monimbo neighborhood of Masaya, Nicaragua, which had become a center of resistance.”

I was reminded of something very candid that the socialist economist Robert Heilbroner wrote: that socialism depends on central planning and a collective moral commitment and thus on command and obedience to the plan. And that means that “The rights of individuals to their Millian liberties [are] directly opposed to the basic social commitment to a deliberately embraced collective moral goal… Under socialism, every dissenting voice raises a threat similar to that raised under a democracy by those who preach antidemocracy.” Democratic liberties like free speech and free press are an inherent threat to the planners’ control.

And of course Zimbabwe suffered for some 37 years under the increasingly authoritarian rule of Robert Mugabe, which may or may not have changed with Mugabe’s replacement by his vice president. 

Consider not just democracy but standard of living. In the 36 years since I had that conversation, Nicaragua has been under the rule of socialist Daniel Ortega for about half that time, and Zimbabwe under Mugabe for the entire period. Nicaragua’s GDP per capita is the lowest in Central America – far below market-liberal Costa Rica and 50 percent below war-torn Honduras. Zimbabwe is even poorer. These aren’t just numbers. They indicate how people live. They tell us that in 2018, in a world growing rapidly richer, where poverty is plummeting, people in these countries remain desperately in need of businesses, jobs, food, and medicine. 

I wonder if my socialist interlocutor from 1982 is still interested in the socialist experiments in Nicaragua and Zimbabwe. 

Footnote: Kristian Niemetz of IEA wrote about how socialist “experiments” always become embarrassing after a few years. Except for “very short-lived experiments, such as the Paris Commune…. Those are the Jim Morrisons of socialism. They ended before they could turn into embarrassments.”

The Treasury Department is said to be studying the idea of providing some sort of inflation-protection (indexing) for the taxation of capital gains.  Rep. Devin Nunes (R-CA) has introduced a bill  (H.R. 6444) to do just that.   Predictably, Washington Post writer Matt O’Brien instantly dismissed the idea as “Trump’s new plan to cut taxes for the rich.” 

O’Brien relies on a two-page memo from John Ricco which yanks mysterious estimates out of a black box – the closed-economy Penn-Wharton Budget Model.   The “microsimulation model” predicts that the Top 1 Percent’s share of federal income taxes paid could fall from 28.6% to 28.4% as result of taxing only real capital gains.  “That’s real money,” exclaims Matt Obrien.

No model can estimate how much revenue might be lost by indexing (if any) because that depends on such unknowable things as future asset values, future tax laws and future inflation.   Yet Mr. Rico magically “projects” future realizations to “estimate that such a policy would reduce individual tax revenues by $102 billion during the next decade [sic] from 2018-2027.”   Does that imaginary $102 billion still look like “real money” when spread over Rico’s extended 20-year “decade?”   It would be a microscopic fraction of CBO’s projected individual income taxes of $21.1 trillion over that period. 

One problem with the notion that indexing capital gains could only benefit the top 5 percent (over $225,251 in 2016) is that it wrongly assumes the capital gains tax only applies to stock market gains. Another Washington Post article said, “Researchers have estimated that the top 5 percent of households in terms of income hold about two-thirds of all stock and mutual fund investments, putting wealthier Americans in the position of benefiting much more than others from any changes to capital gains rules.”  But the capital gains most likely to be seriously exaggerated by decades of inflation are not gains from selling financial assets, but from selling real assets.  After many years of even moderate inflation, an unindexed tax may be imposed on purely illusory “gains” from the sale of real property that actually involve a loss of real purchasing power.  A 2016 report from the Congressional Budget Office and Joint Committee on Taxation, “The Distribution of Asset Holdings and Capital Gains” reports that Americans held $7.5 trillion in stocks and mutual funds in 2010, but $12.2 trillion in private businesses and $8.5 trillion in nonresidential real estate.  

A related problem with conventional distribution tables is that they add realized capital gains to income in the year in which a farm, building or business is sold, which makes it true by definition that unusually large one-time gains are received by those with “high incomes” (including those gains).

A much bigger problem is, as the first graph demonstrates, that the capital gains tax is voluntary: If you don’t sell, you pay no tax.  When the top tax rate on realized gains was 28-40%, very few gains were realized – particularly among top-bracket taxpayers. When the top tax rate fell to 20% in 1982-96 and 1997-2000, and to 15% in 2003-2007, inflation-adjusted real revenue from the capital gains tax soared for several years (market crashes in 2001 and 2009 overwhelmed taxes, of course). This is just one reason static estimates of the alleged revenue loss from indexing are not credible: The elasticity of realizations is extremely sensitive to the tax rate and indexing is one way to reduce that tax rate (and raise realizations) for assets held for a long time. 


If anyone wanted to cut taxes paid by the Top 1%, then raising the capital gains tax rate is the surest way to accomplish that.  The second graph shows the Top 1%’s share of individual income reported to the IRS (in data from Thomas Piketty and Emmanuel Saez) went way up whenever the tax rate on capital gains went down.  By contrast, top 1% income from realized gains remained depressed whenever the tax was 28% (1987-1996) or higher (1969-77).  The rush to sell before an increase in the capital gains tax in 1987 meant a third of all “income” reported by Top 1% taxpayers in 1986 was from bunching the realization of capital gains.  

The inverted idea that a higher tax on capital gains is an effective way to “soak the rich” has not even been politically successful, because it is not so much an assault on investing as it is an assault on aging.   

It is certainly true that people who have not yet accumulated much capital – which means most young people regardless of their current income – have also not yet accumulated capital gains.  It takes time to accumulate capital, so vulnerability to capital gains taxes rises with age.  And the U.S. has a rapidly-aging population.

When it comes to political arguments for high capital gains taxes on capital gains, the redistributionist left has never grasped that the people who are most fearful of high capital gains taxes are not “the rich” but seniors.  The table, from the CBO/JCT study, shows that net capital gains accounted for only 1% of income among those age 35-44, 3% at age 55-64, and 6% for taxpayers 75 or older.  This little-known fact makes the politics of advocating a high tax on capital gains more suicidal as a campaign issue than many politicians have supposed.

George McGovern’s seemingly clever 1972 campaign slogan that “money earned by money should be taxed as much as money earned by men” meant he favored a minimum tax of 75% on large capital gains (e.g., from selling the family farm or firm before retirement).  That frightened seniors who counted on selling-off accumulated savings to finance retirement.  Senator McGovern won only 36% of the vote of those age 50 or more.   A high tax on realizing capital gains turned out to be bad politics as well as bad economics.

Politicians have long known that how you frame a policy issue can determine its fate.

Consider how the term “weaponizing the First Amendment” frames the issue of speech on social media. Kara Swisher, a reporter and opinion writer at the New York Times, wrote yesterday that “Facebook, as well as Twitter and Google’s YouTube, have become the digital arms dealers of the modern age.” She continues,

They have weaponized social media. They have weaponized the First Amendment. They have weaponized civic discourse. And they have weaponized, most of all, politics.

Supreme Court Justice Elena Kagan also recently accused a majority of colleagues of “weaponizing the First Amendment.”

Let’s trace the implications of the term “weaponize” for free speech. The American Heritage Dictionary offers several definitions of “weaponize”:

To supply with weapons or deploy weapons in…

To equip (a missile or other delivery system) with an explosive or other weapon.

To place or mount (an explosive or nuclear device, for example) on a missile or other delivery system.

To produce or refine (a substance or biological agent, for example) for use as a weapon.

To deploy missiles or other delivery systems equipped with weapons.

Notice the connotation of violence? That’s important because in the United States speech is free of the government censor up to direct incitements to violence. The verb “weaponize” invites readers to see some speech on the internet as something like violence. Once that connection is made, censoring the speech becomes more acceptable, perhaps even required.

Kara Swisher’s column seeks to persuade Mark Zuckerberg, not justices on the Supreme Court. Facebook is not covered by the First Amendment. Swisher is inviting Zuckerberg to see some speech on Facebook as a kind of violence. Framed that way, such speech has no place on Facebook or anywhere, really. Zuckerberg can certainly remove it from Facebook; Congress could act if he does not. After all, Congress has the power to punish violence.

So next time you see the term “weaponize” think about the implications of the word for other people’s speech (it’s always other people’s speech). For those people whose speech is being equated with violence, the implications could be dire.

On August 2, the Department of Transportation and Environmental Protection Agency made a joint proposal to reform the corporate average fuel economy (CAFE) standards. Originally adopted in 1978, when new cars were required to average all of 18 miles per gallon, the standards were increased by the Obama administration to a target of 54.5 mpg by 2025. (This 54.5 is actually an idealized number; as a practical matter, the real target for 2025 is about 47 mpg.)

The new rule proposes to maintain the existing fuel economy standard, which rises to 37 mpg by 2020, and then freeze it at that level after that. By 2025, new automobiles meeting the Obama standard would be about 25 percent more fuel-efficient than under the Trump standard – though if fuel prices rise, consumers could end up buying more fuel-efficient cars than the standard anyway.

Another change, as pointed out in a Wall Street Journal article earlier this week by DOT secretary Elaine Chao and acting EPA administrator Andrew Wheeler, is that the administration wants “to create one national standard.” This means that California won’t be able to impose its own, stronger standards.

As the Competitive Enterprise Institute’s Marlo Lewis observes, when Congress created the CAFE program in 1975, it specially forbade states from adopting their own stronger rules because this would greatly increase the costs of compliance to manufacturers. Despite that, the Obama administration decided to exempt California from the one-national-standard rule. The Trump administration is going back to the actual law.

Obama’s adoption of the stricter standards was supported by many carmakers, including Ford, GM, and Chrysler (the latter two of which were under the government’s thumb due to corporate bailouts). However, Volkswagen strongly objected, saying that the standards were unfair to cars while overly generous to light trucks (pick ups, SUVs, and full-sized vans). This may be one reason why Ford has announced it is getting almost completely out of the car business, planning to make only light trucks plus the Mustang and a new China-made small car called the Focus Active.

The Obama standards assumed that two thirds of vehicles sold would be cars, and only a third light trucks. In fact, it has been about half and half. For that reason alone, the EPA in 2016 (when Obama was still president) concluded that standards would have to be changed no matter who was in the White House. Changing them now gives Democrats one more tool to use to bash Trump, but another president would have had to make some changes anyway.

Chao and Wheeler argue that rolling back the standards will reduce the cost of new cars by several thousand dollars and reduce total costs to consumers by $500 billion over the next 50 years. However, Americans currently spend about $1.1 trillion a year buying, operating, and insuring cars, so $500 billion over 50 years is less than a 1 percent savings on their driving bills.

However, that 1 percent isn’t equitably distributed. To meet the Obama standard, automakers would have to build electric vehicles, sell them at a loss, and then sell their other vehicles for higher prices to make up the difference. Since electric vehicles are mostly purchased by high-end buyers, this imposes a regressive tax on lower-end auto buyers.

Another important issue is that the CAFE program has suffered mission creep. When Congress created the program in 1975, the nation was suffering from politically induced energy shortages. But the standards weren’t needed to save energy; people responded to higher gas prices by buying more fuel-efficient cars without the government standards.

Today, we have an abundance of energy: after adjusting for inflation, gas prices today are much lower than they were in 1975 and much less volatile. So there’s no need to keep the standards to save energy.

Instead, environmentalists defend strict CAFE standards in order to reduce greenhouse gases. But there’s little reason to believe that the standards will have much of an effect on climate change, especially with the emphasis on electric vehicles. This is because most electricity in this country is still generated by burning fossil fuels. Due to losses in generation and transmission, it takes the combustion of three British thermal units (BTUs) of coal, gas, or other fuel to deliver one BTU of electricity to someone’s auto battery. Thus, the savings in greenhouse gas emissions will be far smaller than suggested by the differences in miles per gallon of the Obama and Trump standards.

Even if you believe that we can increase the amount of electricity generated using means that don’t produce greenhouse gas, CAFE standards aren’t the best way to reduce carbon dioxide emissions. The McKinsey Report on greenhouse gases concluded that there are many ways of reducing emissions that are far more cost effective than trying to force cars to become more fuel efficient, most of them having to do with making existing and new buildings more energy efficient.

Only Congress can repeal the law requiring the standards. In the meantime, rolling back the standards is worthwhile because it lets consumers choose how they are going to save money, save energy, and save the environment.

San Diego, CA – Over the course of my research into the conversion of former military bases, more than one person has suggested that I take a look at Liberty Station, the former Naval Training Center located in the Point Loma district of San Diego, that is now a thriving mixed-use community.

Operated for over 70 years as a Navy training base, NTC San Diego was included in the 1993 BRAC. It officially closed in April 1997. The city designated a master developer, Corky McMillan Cos. in 1999 to execute the reuse plan, and the site now hosts shops and businesses, schools, a megachurch, private homes, open spaces, and a vibrant arts district.

I visited there for the first time this week, and now I understand why the Pentagon’s Office of Economic Adjustment calls Liberty Station “one of the most successful base reuse projects in the country.”

Several people who have lived in San Diego for decades, and who have special understanding of Liberty Station’s history, were able to explain to me why that’s been the case.

“San Diego is a Navy town,” explained Jerry Selby, a program manager for the City of San Diego, and “San Diegans wanted [Liberty Station] to succeed.” There was extensive community input, and considerable planning. With some other closed bases, the local communities couldn’t come together on what they should become. “By contrast, Liberty Station was a defined piece of land. You could get your head around what it could – and should – be.”

I met Alan Ziter at The Lot, a movie theater complex in the historic Luce Auditorium, with an adjoining restaurant and bar that offers terrific views of the former base. As executive director for the NTC Foundation, the non-profit organization established in 2000 that’s responsible for the renovation and reuse of 26 historic properties in ARTS DISTRICT Liberty Station, Ziter has a unique perspective on what has been accomplished, and what remains to be done.

“This place was always about education and training,” Ziter explained as we walked among the galleries and past dance studios, “and I like to think that’s what it still does – except now for the arts.”

They do other educating, too, at Liberty Station. What started with High Tech High in the early 2000s is now the High Tech Village, a campus that also includes High Tech Middle and High Tech Elementary, all part of the San Diego Unified School District.

San Diego is home to Balboa Park, one of the finest urban parks in the country. But the flat open spaces of NTC Park on Liberty Station’s east side, along the San Diego Bay, have become popular with soccer players, picnickers, and 5K racers.

In one section of NTC Park are sets of black granite markers and trees along a paved walkway. Each set memorializes a submarine lost in World War II, 52 in all, and includes the story of how the boat was lost, and the names of those now “on eternal patrol.” It’s a simple but powerful memorial

I was tempted to read them all, but I wanted to make my way to Liberty Public Market, a throng of eateries and boutique shops reminiscent of Boston’s Faneuil Hall or Philadelphia’s Reading Terminal Market, though on a smaller scale.


One of the other big attractions in the retail area is Stone Brewing, a sprawling restaurant and brew-pub that features more than 40 beers on tap. Business was steady but not crowded on a Wednesday evening. Maggie helped me navigate the extensive menu. She came to San Diego nine years ago from Chicago, and she’s been working at Stone for five. 

She explained that it was a pretty typical weekday evening, but that it’s very busy on the weekends. People come with kids and big groups. They just say, “let’s meet at Stone,” knowing they’ll be able to seat them. You generally don’t need to reserve a room or big table, she explained, although they also have numerous rooms and meeting spaces suitable for private events. 

My favorite part of the story? When I pointed out what a really terrific space it was, and all the more remarkable for having once been a former Navy mess hall, she chuckled. “I know! My grandfather trained here during the Korean War.” 

Liberty Station has managed to preserve the historic charm of this place that hosted hundreds of thousands of sailors on their way to war. It honors the memory of those who didn’t return. And it is now one of the coolest places that I’ve ever visited, in one of my favorite American cities. You should definitely check it out.




This post follows my post yesterday about Facebook taking down fake accounts that “helped promote more than three dozen events in the last 15 months, most of them protesting the policies of President Donald Trump or promoting left-leaning causes.” The posts, thought to be supported by Russian operatives, “sought to work alongside legitimate groups organizing rallies and protests in the U.S.” 

So this is not just about the Russians. Americans also associated with the pages for political reasons. One page drew 84,000 likes. Other similar groups, supported by Americans, associated with, and spoke with the pages. (Their queries were not answered). 

As I wrote yesterday, Facebook was well within their rights to take down the pages. They did so because the accounts were fake and thus violated their community standards. Facebook would have had the right to take the pages down because of the Russian support or for “protesting the policies of Donald Trump or promoting left-leaning causes.” But to have the right is not the same as exercising it. Facebook wisely stayed away from the Russian issue and of course, did not remove the pages because of their content. 

But a fact remains: Facebook deprived Americans of their ability to associate with or speak with others for political purposes. It’s not a good look even though the neutral application of community standards does justify the takedown. 

Set Russia aside for a moment and consider the American part of the story. The deleted pages said things some Americans wanted to hear and supported. Members of Congress might find such speech “divisive” or “disinformation.” Apparently some Americans disagreed: they presumably saw the speech as informative and helpful.

In the United States, by culture and by law, we have free speech so people can learn about and evaluate politics and much else. The people who saw the deleted pages seemed to have engaged and assessed the material. “It was the truth about our people,” Victor Perez, a construction worker in Salt Lake City said of a deleted page that, the Wall Street Journal reports, “used divisive memes to promote Native American and Hispanic culture.” 

Yet the same article quotes experts who say allowing such pages will push the Victor Perezs of the world toward extremism while undercutting trust in “legitimate political activists.” In other words, speech online needs to be managed or really bad things will happen. 

But we have such a management system already. 

Individuals have the right and responsibility to inform themselves critically about politics and much else. They have the right to associate with one another to discuss ideas and to persuade others. They can reject bad ideas. Indeed, we trust that they will. Do people actually believe in these ideals? 

The Constitution prevents the government from improving social outcomes by preventing speech and association. Facebook has a right to govern its platform, but we might expect they will only remove users who violate neutral rules. After all, Mark Zuckerberg endorses the American view of free speech

The rest of us should stop expecting internet intermediaries like Facebook to be guardians of truth and wholesome speech.

As I reported last week, a new lawsuit seeks to stop the government’s illegal practice of counting spouses and minor children of EB-5 investors against the green card limits. I submitted an expert affidavit in the case explaining how the policy has affected the backlog for EB-5 investors, but as Ira Kurzban, the lead attorney on the case, noted in his interview with Stuart Anderson today, the lawsuit could set a precedent that would lead to the exemption of spouses and minor children of other legal immigrants because the same statute governing the policy toward dependents also applies to other legal immigration categories.

For this reason, if EB-5 investors can secure an exemption for their spouses and children, the others will be able to do so as well. The counting policy is relevant for spouses and minor children of employment-based immigrants, diversity lottery winners, and family-sponsored “preferences”—family members who aren’t the spouses, minor children, or parents of U.S. citizens (who have no limits at all). Employment-based categories include EB-5 investors and employer-sponsored immigrants (EB-1, EB-2, and EB-3). The law explicitly requires the counting of the family of EB-4 “special immigrants,” so this change would not affect them.

Table 1 compares current policy using 2016 figures—the most recent year with relevant information available—to the numbers available if the policy changes to correctly reflect the statute (not counting most spouses and children of immigrants). As it shows, current practices permitted almost 1.2 million immigrants in 2016. Of these, the family-sponsored, employment-based, and diversity categories admitted 425,845 immigrants, but of them, 179,772, 42 percent of the total, were the spouses and minor children (dependents) of the primary applicants (the unmarried adult children of citizens, investors, lottery winners, etc.).

Because not counting the dependents would allow 179,772 more primary applicants who then could bring in their spouses and minor children without them being counted, not counting them would increase legal immigration by 322,339, or 27 percent overall in its first year. Total legal immigration would reach 1.5 million annually under this new policy. Total employment-based immigration, including dependents, would increase 140,871, family-sponsored 134,192, and diversity 47,276.

Legal Immigration by Category Under Current Policy

This policy would dramatically decrease wait times for legal immigration and could even eliminate them entirely on the employer-sponsored categories. Total immigration under the policy would further rise in future years because the immediate relatives of U.S. citizens category—for spouses, minor children, and parents of U.S. citizens—is uncapped. After five years, all the new immigrants let in under this policy would be eligible to naturalize and then able to sponsor their parents and, if they hadn’t married already, spouses and their minor children.

Increasing legal immigration would have strongly positive effects on the U.S. economy, especially at a time when U.S. unemployment nears the lowest rate in decades and population growth has dropped to the slowest pace since the Great Depression. With Americans having fewer children than ever, the United States needs new workers, and the evidence indicates that immigrants of all types work at higher rates than the U.S.-born population. While President Trump wants to end the diversity lottery and “chain migration” (i.e. the family-sponsored preferences), these categories provide needed workers at all skill levels. Indeed, they are on average much better educated than the average American today.

Ultimately, the outcome of the lawsuit should be decided on the merits of the law, not its effects on legal immigration or the economy. Nonetheless, should the lawsuit succeed, Americans will be freer to associate, contract, and trade with people born in other countries, and that will be a benefit for both sides.

I am saddened to report that my dear friend Andrea Millen Rich died this morning at her home in Philadelphia at the age of 79 after a 19-year battle with lung cancer. She was, among many other things, the proprietor of Laissez Faire Books and the wife for 41 years of Howard Rich, the Cato Institute’s longest-serving Board member.

For more than 40 years Andrea was at the center of the libertarian movement, a mentor, counselor, friend, supporter, facilitator, networker, and gracious hostess to hundreds of freedom lovers – young, old, well-known, obscure, successful, down-on-their-luck, didn’t matter. 

She was the first chair of the New York Libertarian Party in 1973-74. The vice chair was Howard S. Rich, whom she soon married. From 1974 to 1977 she was vice chair of the national Libertarian Party, and in 1980 she played a key role in developing television advertising for the campaign of Ed Clark, the Libertarian presidential nominee.

From 1982 to 2005 she was the president of Laissez-Faire Books, which billed itself as “the world’s largest collection of books on liberty.” It had a retail location on Mercer Street in Greenwich Village, described in Radicals for Capitalism by Brian Doherty as “an important social center for the movement in America’s biggest city, a place for any traveling libertarian to stop for company and succor.” But in those pre-Amazon days, it was far better known for its monthly catalog that reached libertarians around the world. Through its Fox & Wilkes publishing imprint it brought many classic libertarian books back into print. (Brian Doherty’s own reflections, along with those of Nick Gillespie, can be found at Reason.)

Andrea often negotiated with publishers to make books more affordable, and some books only found publishers because Laissez-Faire could guarantee an audience beyond the small academic market. She even taught me how to negotiate with publishers. Through her work with Laissez-Faire she became friendly with leading libertarian writers including Milton and Rose Friedman, Robert Nozick, Thomas Sowell, Nathaniel Branden, Thomas Szasz, Charles Murray, Richard Epstein, David Kelley, and Margit von Mises, widow of economist Ludwig von Mises.

As president of the Center for Independent Thought, the parent organization of Laissez-Faire Books, she also launched and managed the Thomas S. Szasz Award for Outstanding Contributions to the Cause of Civil Liberties and the Roy A. Childs Fund for Independent Scholars. CIT’s biggest project was Stossel in the Classroom, which repackaged ABC News and Fox Business videos on economics and public policy by John Stossel for classroom use. The videos have been viewed by tens of millions of high school students – according to Stossel, reaching more people than ABC News and Fox News.

Along the way she also helped to found the Center for Libertarian Studies in 1976 and served on the boards of the Foundation for Economic Education, the oldest free-market think tank, and the Atlas Network, an international association of think tanks. She traveled as far as Russia and Kenya to meet libertarians and spread the ideas of freedom.

Andrea Millen was born February 8, 1939, to the late Louis and Vera Millen of Johnson City, Tennessee. She graduated from Science Hill High School and attended the University of Alabama. After she got a summer job at CBS answering fan mail for Mighty Mouse and Heckle and Jeckle (“my handwriting was perfect for it, they said”), she never went back to school. For 18 years, she worked in television, including for Sid Caesar, Joe Pyne, and the NBC News election unit.

She lived most of her life in Manhattan and Orangeburg, NY, but moved to Philadelphia in 2009.

She is survived by her husband of 41 years, Howard Rich, her sister Elaine Millen of Charlotte, NC, stepsons Joseph Rich and Dan Rich, Dan’s wife Maureen, and granddaughters Cati and Samantha.

Today, the Federal Reserve’s policy setting body decided to hold interest rates steady—a policy move that was predicted with near certainty by financial markets. Because this Federal Open Market Committee (FOMC) meeting was not a “live” one, that is Fed Chairman Powell did not follow it with a press conference, the only news comes from the press release. And the news there is basically no news at all—except for calling economic growth “strong” instead of “solid.” 

But this slightly more bullish tone on economic growth is not license to ignore other potential issues in the economy.

One concern is escalating trade tensions. The increasing levels of protectionism emanating from the U.S. and reverberating across the globe could dampen the economic outlook. Powell, fortunately, is aware of the risks of higher trade barriers—but it remains debatable what precisely the Fed can or should do in light of mounting protectionism.

Another concern is the flattening yield curve, where yields on short-term Treasury bonds have been inching higher and closer to yields on long-term Treasury bonds. If short-term yields exceed long-term yields, we end up with a yield curve inversion. Yield curve inversions often portend a recession, as they indicate market uncertainty about short-term prospects. While the flattening has abated this month—and while some Fed watchers rightly point out that if the curve stays relatively flat without inverting, there is less reason to worry—the Fed should continue to monitor important feedback from the bond market.

But the real issue the FOMC ought to be focused on is the Fed’s operating framework. I discussed the FOMC’s tinkering with the mechanics of monetary policy last month, highlighting that the current operating system was an experiment that grew out of the financial crisis and that it remains a framework with which the Fed has little experience. Of course, my colleague George Selgin has been the leader on this issue, bringing much needed attention to the myriad problems the “leaky floor” system poses. When the minutes from this FOMC meeting are released in three weeks, we can only hope they reveal the members giving this topic its rightful due.

It’s all well and good for the FOMC to adjust its language in the wake of positive GDP figures, but the Fed still has a very large question to address. It’s past time that they begin to do so in earnest.  

Today was a busy day for financial regulatory policy. In the morning, the Department of the Treasury released its long-awaited report on nonbank financials, fintech, and innovation. A few hours later, the Office of the Comptroller of the Currency announced that it will start taking applications for a special purpose charter for “fintech companies engaged in the business of banking.”

Over the eighteen months since President Trump signed an executive order outlining the core principles for financial regulation under his watch, the fintech sector has been gripped by policy uncertainty and the looming threat of regulation by enforcement. Today’s events bring much-needed clarity on the Trump administration’s outlook for financial innovation, and the likely way forward.

At 222 pages, the Treasury report is a mammoth document. However, in grappling with the chief ailments of the U.S. financial regulatory framework, the report starts a discussion that will hopefully lead to major revision of existing rules and regulatory approaches.

Three problems afflict the current edifice of the financial regulatory system. Firstly, it was largely designed at a time when most of the technologies that are changing financial services provision did not exist. Secondly, there is a great deal of fragmentation, both horizontal—with rulemaking, supervisory, and enforcement power dispersed across many federal agencies—and vertical—with competences distributed between states and the federal government. Thirdly, it is by design a precautionary system, focused on protecting consumers at all costs, often at the expense of beneficial innovation.

Comprehensively addressing these three problem areas will take more than a sympathetic attitude from the executive. However, the report helpfully points the way forward in seven areas.

1. Clarity about how financial providers talk to consumers

The rules governing communications between financial providers and their customers stem from the Fair Debt Collection Practices Act (FDCPA) and the Telephone Consumer Protection Act (TCPA), passed respectively in 1977 and 1991. Unsurprisingly, both laws fail to take account of the increasing reliance on text and email communication via smartphones—and the Federal Communications Commission has given a wide interpretation to statutory provisions, constraining providers’ ability to reach their customers using new media. The Treasury report finds that the reach of current regulations is overly broad, an assessment vindicated by recent court rulings. It recommends changes to the FDCPA and TCPA to make it easier for consumers to revoke consent to be contacted. It also calls for greater clarity about the ways in which providers can reach consumers and the information they can disclose over email and voicemail services.

2. Data access and use by fintech firms

More people are making use of technology platforms for budgeting, saving, investment, and debt management. Enabling fintech applications to gain access to one’s financial data can improve consumer welfare by making it easier and cheaper to refinance loans, manage bank accounts, and learn about suitable new financial products. But banks and other established financial firms are reluctant to give access to customer data to third parties—partly because it is a competitive threat but also because it can compromise the confidentiality of those data, for which banks could be found liable. The Treasury report calls for increased efforts to improve data aggregation. It favors private-sector action and standardization of applications to make data-sharing easier and more secure but doesn’t rule out federal standards.

3. Credit scoring

One of the key ways that financial innovation is improving consumer welfare is by helping to model risk and predict default in more accurate ways. This lowers the cost of credit and expands access to marginal borrowers. For instance, a recent Federal Reserve paper finds fintech credit scoring to lead to better default estimates and lower interest spreads than FICO scores. The Treasury recognizes the value of alternative data use for better credit scoring, but it is wary of potential discrimination. Growing empirical evidence, on the other hand, suggests that better outcomes can be achieved without undermining equal treatment laws.

4. Harmonizing or federalizing money transmitter and nonbank lender licensing

As Brian Knight from the Mercatus Center has discussed at length, a key weakness of existing financial regulation is its fragmentation across states. The Treasury is aware of the onerous licensing and compliance costs that such fragmentation imposes on providers, and its report encourages voluntary harmonization by states, via passporting rules. If states cannot achieve the requisite degree of equivalence, the Treasury advocates federal action. Given New York’s fierce opposition to any perceived dilution of its financial rules, it looks like federal preemption will come sooner or later. Federalization would foreclose healthy regulatory competition, but in light of the operating costs imposed by fragmentation, the trade-off may redound to the benefit of consumers.

5. Codifying valid-when-made for banks and nonbank lenders

Legal precedent for two hundred years has established that, if a loan extended by a national bank did not violate usury laws at the time or location of its issue, then it is valid at a subsequent time and location within the United States. More recent judicial decisions have expanded the application of this doctrine to nonbanks, but a recent case involving defaulted credit card debt questioned the principle, throwing interstate marketplace lending into disarray. The Treasury rightly calls on Congress to codify the valid-when-made doctrine. In fact, the House already passed a bill that does exactly that.

6. Rescind the BCFP’s payday rule

Nobody likes high-cost short-term credit, but the accumulated evidence—contrary to popular wisdom—shows that payday loans serve many customers much of the time—especially those with urgent need for funds and no access to alternatives. Despite this evidence, the Bureau of Consumer Financial Protection (BCFP) under its previous director sought to apply new rules on payday lenders that would have required them to verify the borrower’s ability repay. These checks would be inappropriate precisely because payday loans are a last-resort emergency product, meaning that some non-negligible proportion of borrowers will indeed end up not paying them back. That makes payday loans costly to extend, but it does not mean they do not help the typical borrower. The Treasury recommends that this draconian BCFP rule be rescinded. Instead, the emphasis should be on removing regulation to encourage a broader spectrum of lower-cost small-dollar products provided by banks and nonbanks alike.

7. Adopt regulatory sandboxes as a spur to innovation

Existing rules aiming to protect consumers may not pose a threat to established institutions, but they do raise barriers to entry for challenger firms, reducing competition. A pragmatic way to maintain existing protections—even though the case to do so is often dubious—while encouraging innovation is to allow for regulatory sandboxes: in which new firms can begin operations under regulatory supervision, but without being subject to the full corpus of regulation. Leading financial jurisdictions such as Britain and Singapore have implemented sandbox programs. The Treasury report calls for similar policies from U.S. regulators, and, if needed, congressional action to facilitate innovation and preempt state barriers. While the sandbox approach eschews the broader question of whether existing rules are appropriate, it almost surely will improve the environment for innovators.

The above is not a comprehensive discussion of the report, but a summary of its key proposals. The tenor of the Treasury’s recommendations is laudable and many of the specific reforms much-needed. However, perhaps the thorniest of issues goes unmentioned, namely, whether the sheer number of regulators and regulatory restrictions placed on financial services firms is making the financial services industry less dynamic and innovative than it could be. That is the question underlying present efforts, however modest, at regulatory relief for banks, nonbank lenders and new players such as cryptocurrency issuers and exchanges.

The tone of the Treasury’s report suggests an answer, but it remains to be seen whether executive and legislative action will measure up to the challenge.

[Cross-posted from]

Since the 2016 election Facebook has faced several problems, some related to the election, some not. In 2016 Russian agents bought ads on Facebook and posted messages related to the election. Facebook has been blamed for not preventing the Russians from doing this. Many people may believe the Russian efforts led to Donald Trump’s election. That view remains unproven and highly implausible.

Beset by other problems, Facebook seeks to avoid a replay of 2016 after the 2018 elections. Yesterday Facebook tried to take the offensive by removing 32 false pages and profiles from its platform; the pages had 16,000 to 18,000 followers, all connected to an upcoming event “No Unite the Right 2 – DC”.  

Facebook stated the pages engaged in “coordinated inauthentic behavior [which] is not allowed on Facebook because we don’t want people or organizations creating networks of accounts to mislead others about who they are, or what they’re doing.” Facebook does not allow anonymity on its platform at least in the United States. They appear to be enforcing their community standards.

Most people might not worry too much about what Facebook did. The speech at issue was said to be divisive disinformation supported by a traditional adversary of the United States. Who worries about the speech of hostile foreigners? Still a reasonable person might be concerned for other reasons.

The source of the Facebook pages, not the company’s policies, seemed of most interest in Washington. Sen. Mark Warner said that “the Kremlin” had exploited Facebook “to sow division and spread disinformation.” Warner’s confidence seems unwarranted. The Washington Post reported that Facebook “couldn’t tie the activity to Russia.” Facebook’s chief security officer called the Russian link “interesting but not determinant.” The company did say “the profiles shared a pattern of behavior with the [2016] Russian disinformation campaign.”

The takedown also affected some Americans. Ars Technica said the event on the removed page “attracted a lot of organic support, including the recruitment of legitimate Page admins to join and advertise the effort.” Perhaps Russian operatives have no protections for their speech. But the Americans affected by the takedown do or at least would have had such protections if the government had ordered Facebook to take down the page in question.

But the source of the speech was not the only problem. As noted earlier, Sen. Warner thought two kinds of speech deserved suppression: divisive speech and disinformation. But, as a member of Congress, he cannot act on that belief. Courts almost always prevent public officials from discriminating against speech based on its content. For example, the First Amendment protects “abusive invective” related to “race, color, creed, religion or gender.” The Supreme Court has also said false statements are not an exception to the First Amendment.

In contrast, Facebook can remove speech from their private forum. The First Amendment does not govern their actions. But Facebook’s freedom in this regard might one day threaten everyone else’s.

Here’s how. Facebook might have removed the page for purely business reasons. Or they have acted more or less as agents of the federal government. The New York Times reported that Sen. Warner “has exerted intense pressure on the social media companies.” His colleague Sen. Diane Feinstein told social media companies last year “You’ve created these platforms, and now they are being misused, and you have to be the ones to do something about it. Or we will.” Free speech would fare poorly if social media were both free of constitutional constraints and effectively under the thumb of public officials.

Facebook officials may see business reasons to resist Russian efforts on their platform, a goal served by enforcing existing rules. At the same time Facebook wishes to be seen by Congress as responsive to congressional bullying. But being too responsive would only encourage more threats later, and in general, giving elected officials even partial control over your business is not a good idea. So Facebook is both careful about Russian influence and responsive to congressional concerns, a good citizen rather than an enthusiastic conscript in defense of the nation.

Facebook’s efforts may yet keep Congress at a safe distance. But members of Congress may be learning they can get they want from the tech companies. In the future federal officials free of constitutional constraints may indirectly but effectively decide the meaning of “divisive speech” and “disinformation” on Facebook and elsewhere. Their definitions would be unlikely to affect only the speech of America’s adversaries.