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M
Money
is
the
essential unit
of
measure
for
the
voluntary exchanges
that constitute
the
market economy.
Stable money
allows people
to
work
freely,
helps businesses
grow, facilitates
investment, supports
saving
for
retirement, and
ultimately provides
for
economic
growth. The
federal govern-
ment
has
long made
policy regarding
the
nation’s
money on
behalf of
the
people
through
their elected
representatives
in
Congress.1 Over
time,
however, Congress has
delegated that
responsibility
first
to
the
Department of
the
Treasury
and
now
to the quasi-public Federal
Reserve System.
The
Federal
Reserve was
created by
Congress in
1913 when
most Americans
lived
in
rural
areas
and
the
largest industry
was
agriculture.
The
impetus
was
a
series of
financial
crises caused
both by
irresponsible
banks
and
other
financial institutions
that
overextended
credit
and
by
poor
regulations. The
architects of
the
Federal
Reserve
believed
that
a
quasi-public clearinghouse
acting as
lender of
last resort
would reduce
financial
instability
and
end
severe recessions.
However, the
Great Depression
of
the
1930s
was
needlessly prolonged
in
part
because of
the
Federal
Reserve’s inept
manage-
ment
of
the
money supply.
More recessions
followed in
the
post–World
War
II
years. In
the decades
since the
Federal Reserve
was created,
there has
been a
down- turn
roughly
every
five
years.
This
monetary
dysfunction
is
related
in
part
to
the impossibility
of
fine-tuning the
money
supply
in
real
time,
as
well
as
to
the
moral hazard
inherent in
a political system
that has
demonstrated a history
of bailing
out
private
firms when
they engage
in
excess
speculation.
Public control of money creation
through the Federal Reserve System has
another
major
problem:
Government
can
abuse
this
authority
for
its
own
advantage
Mandate for
Leadership: The Conservative
Promise
by
printing money
to
finance
its
operations.
This necessitated
the
original
Federal Reserve’s decentralization and political
independence. Not long after the central
bank’s creation,
however, monetary
decision-making
power
was
transferred
away from
regional member
banks and
consolidated in
the Board
of Governors.
The
Federal
Reserve’s independence
is
presumably
supported by
its
mandate
to
maintain
stable prices.
Yet
central
bank independence
is
challenged
in
two
addi- tional ways.
First, like
any
other
public institution,
the
Federal
Reserve responds
to the potential
for
political
oversight when
faced with
challenges.2 Consequently,
its
independence in
conducting monetary
policy is
more assured
when the
economy is
experiencing
sustained growth
and
when
there is
low
unemployment
and
price
stabil-
ity—but
less
so
in
a
crisis.3 Additionally,
political pressure
has
led
the
Federal
Reserve to use
its
power
to
regulate
banks as
a
way
to
promote
politically favorable
initiatives
including
those
aligned
with environmental,
social, and
governance (ESG)
objectives.4 Even
formal
grants
of
power
by
Congress
have not
markedly improved
Federal Reserve
actions.
Congress gave
the
Federal
Reserve greater
regulatory authority over
banks after
the
stock
market crash
of
1929.
During the
Great Depression,
the Federal Reserve
was
given
the
power
to
set
reserve requirements
on
banks
and
to
regulate
loans for
the purchase
of securities.
During the
stagflation of
the 1970s,
Congress
expanded
the
Federal
Reserve’s
mandate
to
include
“maximum
employ- ment,
stable prices,
and moderate
long-term
interest rates.”5 In the wake
of the
2008
global financial
crisis,
the
Federal
Reserve’s
banking
and
financial
regulatory authorities
were
broadened
even further. The
Great
Recession
also
led to
innova-
tions
by
the
central bank
such as
additional large-scale
asset purchases.
Together,
these expansions
have created
significant risks
associated with
“too big
to
fail”
financial institutions
and
have
facilitated government
debt creation.6 Collec- tively,
such developments
have eroded
the
Federal
Reserve’s economic
neutrality.
In
essence, because
of
its
vastly expanded
discretionary
powers
with respect to
monetary and
regulatory policy,
the
Fed
lacks both
operational effectiveness
and
political
independence.
To
protect the
Federal Reserve’s
independence and to
improve monetary
policy outcomes,
Congress should
limit its
mandate to
the sole objective of
stable money.
This chapter
provides a number of options aimed at achieving these goals
along
with
the
costs and
benefits of
each policy
recommendation.
These
recommended
reforms
are divided
into
two
parts:
broad institutional
changes
and
changes
involv- ing the
Federal
Reserve’s management
of the
money supply.
BROAD
RECOMMENDATIONS
•
Eliminate the “dual mandate.”
The Federal Reserve was originally
created to
“furnish an
elastic
currency” and rediscount
commercial paper so
that
the
supply
of
credit
could
increase
along
with
the
demand
for
money
2025 Presidential
Transition Project
and
bank credit.
In
the
1970s, the
Federal Reserve’s
mission was
amended to
maintain
macroeconomic
stability following the abandonment
of the
gold
standard.7 This
included
making the
Federal Reserve
responsible for maintaining
full employment,
stable prices,
and
long-term
interest rates.
Supporters
of
this
more expansive
mandate claim
that monetary
policy
is
needed
to
help
the
economy avoid
or
escape
recessions. Hence,
even if
there
is a
built-in bias
toward
inflation, that bias
is worth
it to
avoid the
pain
of
economic
stagnation. This
accommodationist
view
is
wrong.
In
fact,
that
same easy
money causes
the clustering of failures
that can
lead to
a recession.
In
other
words,
the
dual
mandate
may
inadvertently
contribute to
recessions rather than fixing them.
A
far less
harmful
alternative is to
focus the
Federal Reserve
on protecting
the dollar and
restraining inflation. This
can mitigate
economic
turmoil, perhaps in
conjunction with government
spending.
Fiscal policy
can be
more
effective
if
it
is
timely,
targeted,
and
temporary.8 An
example
from the COVID-19
pandemic is
the
Paycheck
Protection Program,
which sustained
businesses
far
more
effectively than
near-zero interest
rates, which
mainly aided
asset markets
and housing
prices. It
is also
worth noting
that the
problem
of
the
dual
mandate
may
worsen
with
new
pressure
on
the
Federal Reserve
to include
environmental
or redistributionist “equity” goals
in its
policymaking, which
will
likely
enable
additional
federal
spending.9
•
Limit the Federal Reserve’s lender-of-last-resort function.
To protect
banks that
over lend
during easy
money episodes,
the Federal
Reserve
was
assigned a
“lender of
last resort”
(LOLR)
function. This
amounts to
a standing
bailout
offer
and
encourages
banks
and
nonbank
financial
institutions
to
engage
in
reckless
lending
or
even
speculation
that
both
exacerbates
the
boom-and-bust
cycle and
can
lead
to
financial
crises such
as those of 199210 and 200811 with ensuing bailouts.
This
function
should be
limited so
that banks
and other
financial institutions
behave more
prudently,
returning to their
traditional role as
conservative lenders
rather
than
taking
risks
that
are
too
large
and
lead
to
still
another
taxpayer
bailout.
Such
a
reform
should
be
given
plenty
of
lead time
so that
banks can
self-correct lending practices
without
disrupting a financial
system that
has grown
accustomed to such
activities.
•
Wind down the Federal Reserve’s balance sheet.
Until the 2008 crisis,
the
Federal
Reserve
never
held
more
than
$1
trillion
in
assets,
bought
largely
Mandate for
Leadership: The Conservative
Promise
to
influence monetary
policy.12 Since
then,
these assets
have exploded,
and the
Federal
Reserve now
owns nearly
$9 trillion
of mainly
federal debt
($5.5 trillion)13
and mortgage-backed securities ($2.6
trillion).14 There is currently
no government
oversight of the
types of
assets that
the Federal
Reserve purchases.
These
purchases have
two main
effects: They
encourage
federal deficits
and
support
politically
favored
markets,
which
include
housing
and
even
corporate
debt. Over
half
of
COVID-era
deficits
were
monetized
in
this
way by
the Federal
Reserve’s
purchase of
Treasuries, and housing
costs were
driven to historic highs
by the
Federal
Reserve’s purchase
of mortgage
securities. Together,
this policy
subsidizes government debt,
starving business
borrowing,
while
rewarding
those
who
buy
homes
and
certain
corporations at
the expense
of the
wider public.
Federal
Reserve
balance sheet
purchases
should be
limited by
Congress, and
the Federal
Reserve’s
existing
balance
sheet
should
be
wound
down
as quickly
as
is
prudent
to
levels
similar
to
what
existed
historically before
the 2008 global
financial crisis.15
•
Limit future balance sheet expansions to U.S. Treasuries.
The Federal
Reserve
should be
prohibited from picking
winners and
losers among
asset
classes. Above
all, this
means limiting
Federal Reserve
interventions in
the
mortgage-backed
securities market. It
also means
eliminating Fed interventions in
corporate and municipal
debt markets.
Restricting
the Fed’s
open market
operations to Treasuries
has strong
economic support.
The goal
of monetary
policy is
to provide markets
with
needed
liquidity
without inducing
resource
misallocations
caused by
interfering
with
relative
prices, including
rates
of
return
to
securities. However,
Fed
intervention in
longer-term
government
debt,
mortgage-
backed securities,
and corporate
and municipal
debt can
distort the
pricing process.
This more
closely
resembles credit
allocation than liquidity
provision.
The
Fed’s
mortgage-related
activities are
a
paradigmatic
case of
what monetary
policy
should
not
do.
Consider the
effects of
monetary policy
on
the
housing market.
Between February
2020 and
August 2022,
home prices
increased
42 percent.16
Residential
property
prices in
the United States
adjusted
for inflation
are
now
5.8
percent
above
the
prior
all-time
record levels
of 2006.17 The home-price-to-median-income
ratio is
now 7.68,
far
2025 Presidential
Transition Project
above
the
prior
record high
of
7.0
set
in
2005.18 The
mortgage-payment-to-
income
ratio hit
43.3 percent
in
August
2022—breaking
the
highs of
the
prior
housing
bubble in
2008.19
Mortgage
payment
on
a
median-priced
home
(with a
20 percent
down payment)
jumped to
$2,408 in
the autumn
of 2022
vs.
$1,404
just
one
year
earlier as
home prices
continued to
rise even
as
mortgage
rates
more
than doubled.
Renters have
not
been
spared: Median
apartment rental
costs have
jumped more
than 24
percent since
the start
of 2021.20 Numerous
cities experienced
rent increases
well in
excess of
30
percent.
A
primary driver
of higher
costs during
the past
three years
has been
the Federal Reserve’s purchases
of
mortgage-backed
securities (MBS). Since March
2020, the
Federal
Reserve has
driven down
mortgage
interest rates and
fueled a
rise in
housing costs
by purchasing
$1.3 trillion
of MBSs
from Fannie
Mae,
Freddie
Mac,
and
Ginnie
Mae.
The
$2.7
trillion
now
owned
by the
Federal
Reserve is
nearly double
the levels
of March
2020. The
flood of
capital
from
the
Federal
Reserve
into
MBSs
increased
the
amount
of
capital
available for
real estate
purchases while
lower interest
rates on
mortgage
borrowing—driven
down
in
part
by
the
Federal
Reserve’s
MBS
purchases—
induced and
enabled
borrowers to
take on
even larger
loans.21
The
Federal Reserve
should be
precluded
from
any
future
purchases
of
MBSs
and
should wind
down
its
holdings
either by
selling
off
the
assets
or
by
allowing
them
to mature
without replacement.
•
Stop paying interest on excess reserves.
Under this policy, also
started during
the 2008
financial crisis, the
Federal
Reserve effectively
prints money and then
“borrows” it
back from banks
rather than
those banks’
lending money to the
public. This
amounts to
a transfer
to Wall
Street at the
expense of
the American
public and
has driven
such excess
reserves to $3.1 trillion,
up seventyfold
since 2007.22
The
Federal
Reserve should
immediately
end
this
practice and
either sell
off
its
balance sheet
or
simply
stop
paying
interest so
that banks
instead lend
the
money.
Congress should
bring
back
the
pre-2008
system, founded
on
open-market
operations. This
minimizes
the Fed’s
power to
engage in
preferential
credit allocation.
MONETARY
RULE REFORM
OPTIONS
While
the
above
recommendations
would
reduce Federal
Reserve manipulation
and
subsidies,
none would
limit the
inflationary and
recessionary cycles
caused by
the
Federal
Reserve. For
that, major
reform of
the
Federal
Reserve’s core
activity of
manipulating interest rates
and money
would be
needed.
A core problem
with
government control
of monetary
policy is
its exposure to two
unavoidable political pressures:
pressure to
print money to
subsidize
Mandate for
Leadership: The Conservative
Promise
government
deficits and
pressure to
print money
to
boost
the
economy
artificially
until the
next election.
Because both
will always
exist with
self-interested
politi- cians,
the only
permanent
remedy is
to take the
monetary
steering wheel
out of the
Federal Reserve’s hands
and return
it to
the people.
This could be
done by abolishing the federal role in money altogether,
allowing
the use of
commodity money, or embracing a strict monetary-policy rule to
ward off
political
meddling. Of
course, neither
free banking
nor
a
allowing commodi-
ty-backed
money
is
currently being
discussed, so
we
have
formulated a
menu of reforms.
Each option
involves trade-offs
between how
effectively it
restrains the
Federal
Reserve and
how
difficult
each policy
would be
to
implement,
both polit-
ically
for Congress
and
economically in
terms of
disruption to
existing
financial institutions. We present these options in decreasing order of
effectiveness against inflation and boom-and-bust
recessionary cycles.
Free Banking.
In
free
banking, neither
interest rates
nor
the
supply of
money
is controlled by the government. The Federal Reserve is effectively
abolished, and
the
Department of
the
Treasury
largely limits
itself to
handling the
government’s
money. Regions
of
the
U.S. actually
had
a
similar system,
known as
the
“Suffolk
System,”
from 1824
until the
1850s, and
it
minimized
both inflation
and
economic
disruption
while allowing
lending to
flourish.23
Under free banking, banks typically
issue liabilities (for example, checking accounts)
denominated in dollars
and backed
by a
valuable
commodity. In
the 19th
century,
this
backing
was
commonly
gold
coins:
Each
dollar,
for
example,
was defined
as about
1/20 of
an ounce
of gold,
redeemable on demand
at the
issuing bank.
Today,
we
might
expect
most
banks
to
back
with
gold,
although
some
might
prefer
to
back
their
notes
with
another
currency
or
even
by
equities
or
other
assets such
as
real
estate.
Competition
would
determine
the
right
mix
of
assets
in
banks’
portfolios as backing for their liabilities.
As
in
the
Suffolk System,
competition keeps
banks from
overprinting or
lending irresponsibly.
This is
because any
bank that
issues more
paper than
it has
assets available would
be
subject
to
competitor
banks’
presenting
its
notes
for
redemp- tion.
In the
extreme, an
overissuing
bank could
be liable
to a
bank run.
Reckless banks’
competitors
have
good
incentives
to
police
risk
closely
lest
their
own
hold- ings of
competitor dollars become worthless.24
In this way,
free banking leads to stable and sound currencies and strong
finan- cial
systems
because customers
will avoid
the riskier
issuers,
driving them
out of the
market. As
a result
of this
stability and
lack of
inflation
inherent in
fully backed
currencies, free
banking
could
dramatically
strengthen
and
increase
both the
dominant role
of America’s financial
industry and
the use of
the U.S.
dollar as the
global
currency of
choice.25 In fact, under
free banking,
the norm
is for
the dollar’s purchasing power
to rise
gently over
time,
reflecting gains in
economic productivity.
This
“supply-side deflation”
does
not
cause
economic
busts.
In
fact,
2025 Presidential
Transition Project
by
ensuring
that cash
earns a
positive
(inflation-adjusted)
rate of
return, it
can
pre-
vent
households and
businesses from
holding inefficiently
small money
balances.
Further
benefits
of
free
banking include
dramatic reduction
of
economic
cycles,
an end to
indirect
financing of
federal
spending, removal
of the
“lender of
last resort”
permanent
bailout
function
of
central
banks,
and
promotion
of
currency
competition.26
This
allows
Americans many
more ways
to protect
their savings.
Because free
banking
implies that
financial services and
banking would
be gov-
erned
by
general
business
laws
against,
for
example,
fraud
or
misrepresentation,
crony
regulatory
burdens
that hurt
customers
would
be
dramatically
eased,
and innovation
would be encouraged.
Potential
downsides of
free banking
stem from
its
greatest
benefit: It
has
mas-
sive political hurdles to
clear. Economic theory predicts and economic history
confirms that free banking is
both stable and productive, but it is radically different
from
the
system
we
have
now.
Transitioning to
free
banking
would
require
polit-
ical
authorities, including
Congress
and
the
President,
to
coordinate
on
multiple
reforms simultaneously.
Getting any of them wrong could imbalance an otherwise
functional
system.
Ironically,
it
is
the
very
strength
of
a
true
free
banking
system that
makes transitioning to one so difficult.
Commodity-Backed Money.
For
most
of
U.S.
history, the
dollar was
defined in terms
of
both
gold and
silver. The
problem was
that when
the
legal
price differed
from
the
market
price,
the artificially
undervalued
currency would
disappear
from
circulation. There were
times, for instance, when this mechanism put the U.S. on
a
de
facto
silver
standard.
However,
as
a
result,
inflation
was
limited.
Given
this track
record, restoring
a
gold
standard retains
some appeal
among
monetary
reformers who
do
not
wish
to go
so
far
as
abolishing
the
Federal
Reserve. Both the 2012
and 2016 GOP platforms urged the establishment of a commis- sion to consider
the feasibility
of a
return to
the gold
standard,27
and
in October
2022,
Representative
Alexander
Mooney
(R–WV)
introduced
a
bill
to
restore
the gold
standard.28
In economic
effect, commodity-backing the dollar differs from free banking
in that
the government (via the Fed) maintains both regulatory and
bailout functions. However,
manipulation of
money and
credit is
limited because
new
dollars
are
not
costless
to
the
federal government:
They must
be
backed
by
some
hard asset
like gold. Compared
to
free
banking, then,
the
benefits
of
commodity-backed
money are
reduced, but
transition
disruptions are also
smaller.
The process of
commodity backing is
very
straightforward:
Treasury could set
the price
of a dollar at
today’s market
price of
$2,000 per
ounce of
gold. This
means
that
each
Federal
Reserve
note
could
be
redeemed
at
the
Federal
Reserve
and exchanged
for
1/2000
ounce
of
gold—about
$80,
for
example,
for
a
gold
coin
the
weight
of
a
dime.
Private
bank liabilities
would
be
redeemable
upon
their
issuers. Banks
could
send
those
traded-in
dollars to
the
Treasury
for
gold
to
replenish
their
Mandate for
Leadership: The Conservative
Promise
vaults.
This creates
a powerful
self-policing mechanism: If
the federal
govern- ment
creates
dollars
too
quickly,
more
people
will
doubt
the
peg
and
turn
in
their gold
to
banks,
which
then
will
turn
in
their
gold
and
drain
the
government’s gold.
This
forces
governments to
rein
in
spending
and
inflation
lest
their
gold
reserves become
depleted.
One
concern raised
against commodity
backing is
that there
is
not
enough gold in the
federal government for all the dollars in existence. This is
solved by making
sure
that
the
initial
peg
on
gold is
correct. Also,
in
reality,
a
very
small number
of
users
trade for
gold as
long as
they believe
the
government
will stick
to
the
price peg. The
mere fact
that people
could
exchange
dollars
for
gold
is
what
acts as
the
enforcer.
After
all,
if
one
is
confident
that a
dollar will
still be
worth 1/2000
ounce of gold
in
a
year, it
is
much
easier to
walk about
with paper
dollars and
use
credit
cards
than it
is
to
mail tiny
$80
coins.
People would
redeem en
masse only
if
they
feared
the
government
would not
be
able
control itself,
for
which
the
only
solution is for the
government to control itself.
Beyond
full backing,
alternate paths
to
gold
backing might
involve gold-con-
vertible
Treasury
instruments29
or
allowing a
parallel gold
standard to
operate temporarily
alongside the
current fiat
dollar.30 These could ease
adoption while
minimizing disruption, but
they should be temporary so that we can quickly enjoy
the
benefits
of gold’s
ability
to
police
government
spending.
In
addition,
Congress could
simply allow
individuals to
use
commodity-backed
money without
fully replacing the current system.
Among
downsides to
a
commodity
standard, there
is
no
guarantee that
the
gov-
ernment
will
stick
to
the
price
peg.
Also, allowing
a
commodity
standard
to operate
along
with
a
fiat
dollar
opens
both
up
for
a
speculative attack.
Another
downside
is
that
even
under
a
commodity
standard,
the
Federal
Reserve
can
still
influence
the
economy
via interest
rate
or
other
interventions.
Therefore,
at
best,
a
commodity
standard
is
not
a
full
solution
to
returning
to
free
banking.
We
have
good
reasons
to worry
that
central
banks
and
the
gold
standard
are
fundamentally
incompati- ble—as
the
disastrous
experience
of
the
Western
nations
on
their
“managed
gold standards”
between
World War
I
and
World
War
II
showed.
K-Percent Rule.
Under
this rule,
proposed by
Milton
Friedman in
1960,31 the Federal
Reserve would
create money
at a
fixed rate—say
3 percent
per year.
By offering
the
inflation
benefits
of
gold
without
the
potential
disruption
to
the
finan- cial
system,
a
K-Percent
Rule could
be
a
more
politically
viable
alternative
to
gold.
The principal flaw
is that
unlike
commodities, a
K-Percent Rule
is not
fixed by physical costs: It could change according to
political pressures or random economic fluctuations.
Importantly, financial innovation could destabilize the
market’s
demand for
liquidity,
as
happened
with
changes
in
consumer
credit
pat- terns in
the 1970s. When this happens, a given K-Percent Rule that
previously delivered
stability
could
become
destabilizing.
In
addition,
monetary
policy
when
2025 Presidential
Transition Project
Friedman
proposed the K-Percent Rule was very different from monetary
policy
today.
Adopting
a
K-Percent
Rule would
require considering
what transitions
need to take place.
Inflation-Targeting Rules.
Inflation targeting is the current
de facto Federal Reserve
rule.32 Under
inflation targeting, the Federal Reserve chooses a target infla-
tion
rate—essentially the highest
it thinks
the public
will accept—and
then tries
to
engineer
the
money
supply
to
achieve
that
goal.
Chairman
Jerome
Powell
and
others
before
him
have
used
2
percent
as
their
target
inflation
rate, although
some
are
now
floating
3 percent
or
4
percent.33 The
result
can
be
boom-and-bust
cycles
of
inflation
and
recession
driven by
disruptive policy
manipulations
both
because the
Federal
Reserve is
liable to
political
pressure and
because making
economic predictions
is very
difficult if
not
impossible.
Inflation and Growth–Targeting Rules.
Inflation and growth targeting is a
popular
proposal
for reforming
the
Federal
Reserve.
Two
of
the
most
prominent
versions of
inflation and growth
targeting are a
Taylor Rule
and Nominal
GDP (NGDP)
Targeting. Both
offer similar
costs and
benefits.
Economists
generally believe that the economy’s long-term real growth trend
is
determined by
non-monetary factors.
The
Fed’s
job
is
to
minimize
fluctuations around
that
trend nominal
growth rate.
Speculative booms
and
destructive
busts
caused by swings in total spending should be avoided. NGDP targeting
stabilizes total nominal spending
directly. The Taylor
Rule does
so indirectly,
operating through the federal funds rate.
NGDP
targeting keeps
total nominal
spending growth
on
a
steady path.
If
the
demand for money (liquidity)
rises, the Fed meets it by increasing the money supply;
if the
demand for
money falls,
the Fed
responds by
reducing the
money supply.
This minimizes
the
effects
of
demand
shocks
on the
economy.
For
example, if the
long-run
growth
rate
of
the
U.S.
economy
is
3
percent
and
the
Fed
has
a
5
per-
cent
NGDP
growth
target,
it
expands
the
money
supply
enough
to
boost
nominal
income
by
5
percent
each
year,
which
translates
into
3
percent
real
growth
and
2 percent
inflation.
How much
money
must
be
created
each
year
depends
on
how fast
money demand
is growing.
The Taylor Rule
works
similarly. It
says the
Fed should
raise its
policy rate
when
inflation
and
real
output
growth
are
above
trend
and
lower
its
policy
rate
when inflation and real
output growth are below trend. Whereas NGDP targeting
focuses
directly
on
stable
demand
as
an
outcome,
the
Taylor
Rule
focuses
on
the Fed’s more
reliable policy levers.
The problem with
both rules
is the
knowledge
burden they
place on
central bankers. These rules state that the Fed should
neutralize demand shocks but
not
respond
to
supply
shocks,
which
means
that
it
should
“see
through”
demand shocks
by
tolerating
higher (or
lower)
inflation.
In
theory,
this
has
much
to
recom- mend
it. In
practice, it
can be
very difficult to distinguish
between
demand-side
Mandate
for Leadership:
The
Conservative
Promise
destabilization
and
supply-side destabilization
in
real
time. There
also are
political
considerations:
Fed
officials
may
not
be
willing
to
curb
unjustified economic
booms
and
all
too
willing to
suppress necessary
economic restructuring
following a
bust. Either
rule likely
outperforms a strict
inflation target and
greatly
outperforms the
Fed’s
current
pseudo-inflation
target.
While
NGDP
targeting
and
the
Taylor Rule
have
much
to
commend
them, they
might
be
harder
to
explain
and
justify
to the
public.
Inflation
targeting
has
an
intelligibility
advantage:
Voters
know
what
it
means
to
stabilize
the dollar’s
purchasing
power.
Capable
elected
officials
must persuade
the public that the advantages of NGDP
targeting and the
Taylor Rule,
especially
in
terms
of
supporting
labor markets,
outweigh the
disadvantages.
MINIMUM EFFECTIVE REFORMS
Because
Washington operates
on two-year election
cycles, any
monetary reform must
take account
of disruption
to financial
markets and
the economy
at large.
Free
banking
and commodity-backed
money
offer
economic
benefits
by
limiting government
manipulation, inflation,
and
recessionary
cycles
while
dramatically reducing
federal
deficits,
but
given
potential
disruption
to
the
financial
system,
a K-Percent
Rule may
be a
more feasible
option. The
other rules
discussed
(infla- tion
targeting, NGDP targeting,
and the
Taylor Rule)
are more
complicated
but also more
flexible. While
their economic
benefits are
significant, public opinion
expressed
through the
lawmaking
process
in
the
Constitution
should
ultimately
determine the monetary-institutional order in a free society.
The minimum
of
effective
reforms includes
the following:
•
Eliminate “full
employment” from the
Fed’s mandate,
requiring it
to focus on price stability alone.
•
Have elected officials compel the Fed to specify its target
range for inflation
and inform the public of a concrete intended growth path.
There
should be
no more
“flexible
average inflation
targeting,”
which amounts to ex
post
justification for
bad policy.
•
Focus any
regulatory activities on
maintaining bank capital
adequacy.
Elected
officials must
clamp down
on the
Fed’s
incorporation of environmental,
social,
and
governance
factors
into
its
mandate,
including
by amending its
financial stability mandate.
•
Curb the Fed’s excessive last-resort lending practices.
These practices
are
directly
responsible for
“too big
to fail”
and the
institutionalization
of moral hazard in our financial system.
2025 Presidential
Transition Project
•
Appoint a
commission to explore
the mission
of the
Federal
Reserve, alternatives
to the
Federal Reserve
system, and
the nation’s
financial
regulatory
apparatus.
•
Prevent the institution of a central bank digital currency
(CBDC).
A CBDC
would
provide
unprecedented
surveillance
and
potential
control
of financial
transactions without providing added benefits available through
existing
technologies.34
AUTHOR’S NOTE:
The preparation of this chapter was a collective enterprise of
individuals involved in the 2025
Presidential
Transition Project. All
contributors to this
chapter are
listed at
the front
of this
volume, but
Alexander
Salter,
Judy
Shelton,
and
Peter
St
Onge,
deserve
special
mention.
The
chapter
reflects
input
from
all
the
contributors, however, no
views expressed herein should be attributed to any specific
individual.
Mandate for
Leadership: The Conservative
Promise
ENDNOTES
1.
U.S.
Constitution,
Article
1,
Section
8,
https://www.law.cornell.edu/constitution
(accessed
January
23,
2023).
2.
For
example,
Alexander
Salter
and
Daniel
Smith
(2019)
show
that
Federal
Reserve
Chairs
become
more
favorable
toward monetary
discretion
once
they
are
confirmed
compared
to
previous
stances.
Alexander
William Salter and Daniel J.
Smith, “Political
Economists
or
Political
Economists? The Role of Political
Environments
in the
Formation of
Fed Policy Under
Burns,
Greenspan, and
Bernanke,”
Quarterly Review
of Economics and
Finance, Vol. 71 (February 2019), pp. 1–13.
3.
Sarah
Binder,
“The
Federal
Reserve
as
a
‘Political’
Institution,”
American
Academy
of
Arts
and
Sciences
Bulletin,
Vol.
LXIX,
No.
3
(Spring
2016),
pp.
47–49,
https://www.amacad.org/sites/default/files/bulletin/
downloads/bulletin_Spring2016.pdf
(accessed
January
23,
2023).
See
also
Charles
L.
Weise,
“Political
Pressures on Monetary Policy
During the US Great Inflation,”
American Economic
Journal:
Macroeconomics,
Vol.
4,
No.
2
(April
2012),
pp.
33–64,
https://www.haverford.edu/sites/default/files/Department/Economics/
Weise_Political_Pressures_on%20Monetary_Policy.pdf
(accessed
January
23,
2023).
4.
The
Federal
Reserve’s
financial
stability
mandate
is
poorly
defined.
The
Fed
has
taken
advantage
of
the
statutory
vagueness
and
proceeded
as
if
it
has
the
authority
to
engage
in
these
activities,
although
it
is
highly
questionable whether this is permissible.
5.
12
U.S.C.
§
225a,
https://www.law.cornell.edu/uscode/text/12/225a
(accessed
January
23,
2023).
6.
See Peter J.
Boettke, Alexander William Salter, and Daniel J. Smith,
Money
and the
Rule of
Law:
Generality and Predictability in
Monetary
Institutions
(Cambridge, UK: Cambridge University Press, 2021).
7.
George Selgin, William D. Lastrapes,
and Lawrence H. White, “Has
the Fed Been a Failure?”
Journal
of
Macroeconomics, Vol. 34, No. 3 (September 2012), pp.
569–596,
https://www.sciencedirect.com/science/
article/abs/pii/S0164070412000304
(accessed
January
24,
2023).
8.
This includes
federal programs that automatically provide for adjustments as
the economy contracts (for example, unemployment
insurance or the Supplemental Nutrition Assistance Program).
9.
Mark
Segal,
“Fed
to
Launch
Climate
Risk
Resilience
Tests
with
Big
Banks,”
ESG
Today,
September
30,
2022,
https://www.esgtoday.com/fed-to-launch-climate-risk-resilience-tests-with-big-banks/
(accessed
January
23,
2023).
10.
Kenneth J. Robinson, “Savings and Loan Crisis 1980–1989,”
Federal Reserve Bank of St. Louis, Federal Reserve
History, November 22, 2013,
https://www.federalreservehistory.org/essays/savings-and-loan-crisis
(accessed
January
23,
2023).
11.
Russell Roberts, “Gambling with
Other
People’s Money: How Perverted
Incentives Caused the Financial Crisis,”
Mercatus
Center
at
George
Mason
University,
May
2010,
https://www.mercatus.org/system/files/RUSS-final.
pdf
(accessed January 24, 2023).
12.
Board of Governors of
the
Federal Reserve System,
Credit and Liquidity Programs Balance Sheet Data
Series, 2007–2022,
https://www.federalreserve.gov/monetarypolicy/bst_recenttrends.htm
(accessed January 24, 2023).
13.
Board of Governors of the Federal Reserve System, U.S.
Treasury Securities Data Series (TREAST), 2004–2022,
https://fred.stlouisfed.org/series/TREAST
(accessed January 24, 2023).
14.
Board of Governors of the Federal Reserve System,
Mortgage-Backed Securities Data Series (WSHOMCB), 2004–2022,
https://fred.stlouisfed.org/series/WSHOMCB
(accessed
January
24,
2023).
15.
Board of Governors of the
Federal Reserve System, Total
Assets (Less Eliminations from Consolidation) Data
Series
(WALCL),
2004–2022,
https://fred.stlouisfed.org/series/WALCL
(accessed
January
24,
2023).
16.
Federal Reserve
Bank of
St. Louis,
“S&P Dow
Jones Indices
LLC,
S&P/Case–Shiller U.S.
National Home
Price Index (CSUSHPINSA),”
https://fred.stlouisfed.org/series/CSUSHPINSA
(accessed
January
24,
2023).
The
Case–Shiller
Home
Price
Index
tracks
home
prices
given
a
constant
level
of
quality.
See
S&P
Dow
Jones
Indices,
“Real
Estate:
S&P CoreLogic Case–Shiller
Home Price Indices,”
https://www.spglobal.com/spdji/en/index-family/indicators/sp-
corelogic-case-shiller/sp-corelogic-case-shiller-composite/#overview
(accessed January 24, 2023).
17.
Federal Reserve Bank of St.
Louis, “Real Residential
Property Prices for United States (QUSR628BIS),”
https://
fred.stlouisfed.org/series/QUSR368BIS
(accessed
January
24,
2023).
18.
Longterm Trends, “Home Price
to
Income Ratio (US & UK): Home
Price to Median Household Income
Ratio (US),”
https://www.longtermtrends.net/home-price-median-annual-income-ratio/
(accessed January 24, 2023).
2025 Presidential
Transition Project
19.
Federal Reserve Bank of Atlanta, “Metro Area Home
Ownership Affordability Monitor (HOAM) Index,” October 2022,
https://www.atlantafed.org/center-for-housing-and-policy/data-and-tools/home-ownership-
affordability-monitor.aspx
(accessed January
24, 2023).
20.
Apartment List Research Team, “Apartment List National
Rent Report,” January 4, 2023,
https://www.
apartmentlist.com/research/national-rent-data
(accessed January 24,
2023).
21.
Primary drivers of rising real estate prices nationally
also include government subsidies and government guarantees through
government-sponsored enterprises (GSEs)—namely, Fannie Mae and
Freddie Mac. “The
unpriced
implicit
guarantee,
which
reduced
interest
rates
for
mortgage
borrowers,
helped
cause
more
of
the
economy’s capital to be
invested in housing than might otherwise have been the case.”
Congressional Budget
Office,
“Transitioning to
Alternative
Structures
for
Housing
Finance:
An
Update,”
August
2018,
p.
7,
https://
www.cbo.gov/system/files/2018-08/54218-GSEupdate.pdf
(accessed
January
24,
2023).
22.
Board
of
Governors
of
the
Federal
Reserve
System,
Reserves
of
Depository
Institutions
Data
Series (TOTRESNS), 1960–2022,
https://fred.stlouisfed.org/series/TOTRESNS (accessed
January 24, 2023).
23.
George
A.
Selgin,
The
Theory of
Free Banking:
Money Supply
Under
Competitive Note
Issue
(Totowa, NJ:
Rowman & Littlefield, 1998).
See also Alexander William Salter and Andrew T. Young, “A Theory
of Self- Enforcing
Monetary
Constitutions with Reference
to the
Suffolk
System, 1825–1858,”
Journal of
Economic
Behavior & Organization, Vol. 156
(December 2018), pp 13–22.
24.
Reforms
should
also
strengthen
the
incentives
of
bank
depositors
(customers)
and
bank
shareholders
(owners) to monitor bank
portfolios. Deposit insurance undermines the former, as even
President Franklin Roosevelt
recognized. Bailouts and
last-resort lending undermine
the latter.
25.
Under the
current system, banks are supplying the U.S. dollars.
Legislation would been needed that includes a mechanism
for supplying
the correct
number of
U.S. dollars
along with
their own
notes.
26.
F.
A.
Hayek,
Denationalization of Money: An Analysis of the Theory and
Current Practice of Concurrent
Currencies
(London, UK: Institute of Economic Affairs, 1976).
27.
Kate
Davidson, “GOP Platform
Includes
Proposal to
Study Return
to Gold
Standard,”
The
Wall Street
Journal, July 20, 2016,
https://www.wsj.com/articles/gop-platform-includes-proposal-to-study-return-to-gold-
standard-1469047214?mod=article_inline
(accessed
January
24,
2023).
28.
H.R.
9157,
To
Define
the
Dollar
as
a
Fixed
Weight
of
Gold,
and
for
Other
Purposes
(Gold Standard
Restoration
Act), 117th Congress,
introduced October 7, 2022,
https://www.congress.gov/117/bills/hr9157/BILLS-117hr9157ih.
pdf (accessed
January 24, 2023).
29.
Judy Shelton, “Gold and
Government,”
Cato
Journal, Vol.
32, No. 2 (Spring/Summer 2012), pp. 333–347,
https://www.cato.org/sites/cato.org/files/serials/files/cato-journal/2012/7/v32n2-9.pdf?mod=article_inline (accessed January 24, 2023).
30.
Lawrence
H.
White,
“Making
the
Transition
to
a
New
Gold
Standard,”
Cato
Journal,
Vol.
32,
No.
2
(Spring/
Summer 2012), pp. 411–421,
https://www.cato.org/sites/cato.org/files/serials/files/cato-journal/2012/7/v32n2-
14.pdf
(accessed
January
24,
2023).
31.
Juha
Kilponen
and
Kai
Leitemo,
“Model
Uncertainty
and
Delegation:
A
Case
for
Friedman’s
k-Percent
Money
Growth
Rule?”
Journal
of Money,
Credit and
Banking,
Vol. 40,
No. 2/3
(March–April 2008), pp.
547–556.
32.
Adam Shapiro and Daniel J. Wilson, “The Evolution of the
FOMC’s Explicit Inflation Target,” Federal Reserve
Bank
of San
Francisco,
FRBSF
Economic Letter
No.
2019–12, April
15, 2019,
https://www.frbsf.org/wp-content/
uploads/sites/4/el2019-12.pdf
(accessed January 24, 2023).
33.
WSJ Pro,
“Research Says
a 3% Fed
Inflation Target Could
Boost Job
Market,”
The
Wall Street
Journal, August
18, 2021,
https://www.wsj.com/articles/research-says-a-3-fed-inflation-target-could-boost-job-market-
11629308829#:~:text=Research%20Says%20a%203%25%20Fed%20Inflation%20Target%20Could%2-
0Boost%20Job%20Market,-Aug.&text=Two%20former%20high%2Dlevel%20Federal,help%20bolster%20
the%20job%20market
(accessed
January
24,
2023).
See
also
Oliver
Blanchard,
“It
Is
Time
to
Revisit
the
2% Inflation Target,”
Financial
Times,
November 28, 2022,
https://www.ft.com/content/02c8a9ac-b71d-4cef-a6ff-
cac120d25588
(accessed
January
24,
2023).
34.
Alexander
William
Salter,
“CBDC
in
the
USA:
Not
Now,
Not
Ever,”
American
Institute
for
Economic
Research, December, 13, 2022,
https://www.aier.org/article/cbdc-in-the-usa-not-now-not-ever/
(accessed
February 1,
2022).
MISSION
STATEMENT
The
U.S. Small
Business Administration
(SBA) supports
U.S.
entrepreneurship and
small
business
growth by
strengthening
free
enterprise through
policy advo-
cacy
and
facilitating programs
that help
entrepreneurs
to
launch and
grow their
businesses
and compete
effectively in
the global
marketplace.
OVERVIEW
Created almost
70 years ago, the SBA was launched under the Small Business
Act
with a
mission to
“aid, counsel,
assist and
protect,
insofar as
is possible,
the interests
of
small
business
concerns.”1 According
to
its
current mission
statement:
The
U.S. Small
Business
Administration
(SBA)
helps
Americans
start,
grow,
and build resilient businesses.
SBA
was
created
in
1953
as
an
independent
agency of
the
federal
government
to aid,
counsel,
assist and
protect the
interests of
small business
concerns; preserve
free
competitive
enterprise;
and
maintain
and
strengthen
the
overall economy
of our nation.2
The SBA’s founding mission has
evolved over time as programs have been
expanded or implemented,
subject to the philosophical grounding of each Admin-
istration as
well as
assorted
economic challenges
and the
occurrence of
natural disasters.
Because of
its distinct
role in
the federal
government, the SBA
became
Mandate for
Leadership: The Conservative
Promise
the
default agency
for
providing
disaster loans
to
small
businesses, homeowners,
renters,
and
organizations.
As
a
result, hundreds
of
billions
of
taxpayer
dollars have
been
funneled
through the
agency to
businesses and
individuals over
the
years.
Some
SBA
programs
are
effective;
others are
not. The
largest program
in
SBA’s
history,
the Paycheck
Protection
Program (PPP),
has been
credited with
saving millions of
jobs during the COVID-19 pandemic.3 A conservative Administration
would rightly
focus on
saving small
businesses during
such a
crisis. At
the
same
time,
however,
various SBA
programs have
generated waste,
fraud, and
misman- agement of
taxpayer dollars.
For
example, and
more recently,
more than
$1
trillion
in
COVID-19
relief was
distributed
through the
SBA.4 The SBA’s EIDL
(Economic Injury Disaster
Loan) Advance program in particular shows the dangers
that can come with direct government lending. EIDL Advance
provided direct cash grants and loans to
small businesses. The SBA
Office of Inspector General “identified $78.1 billion in
potentially fraudulent
EIDL
loans
and
grants
paid
to
ineligible
entities,”5 which represented
more than half of all funds spent through the program. Although
PPP
worked
through
private
lenders and
as
a
result experienced
relatively less
fraud than EIDL
experienced, it is estimated “that at least 70,000 [PPP] loans
were potentially
fraudulent.”6
ORIGIN,
HISTORY, AND
CORE
FUNCTIONS
In 1954, the agency began to execute
such core functions as “making and guaranteeing
loans for
small
businesses,” “ensuring
that small
businesses earn a ‘fair
proportion’ of government
contracts and
sales of
surplus
property,” and “provid[ing]
business
owners
with
management
and
business
training.”7
In 1970,
President Richard Nixon’s Executive Order 11518 enhanced the
agen-
cy’s
advocacy
role by
providing for
the
“increased
representation
of
the
interests of
small business
concerns before
departments and
agencies of
the
United
States
Government.”8 This
advocacy
role was
strengthened with
the
adoption
of
the
Small Business
Amendments
of
1974,9 which
established
the
Chief
Counsel for
Advocacy, and
was then
reinforced and expanded
in 1976
with the
creation of
the Office of
Advocacy,
providing
additional
resources
to
ensure
that
small
businesses
had
a voice in the
regulatory process.
In
1980, the
Regulatory Flexibility
Act
(RFA)10 further
strengthened
the
Office
of
Advocacy’s role, providing accountability across federal
agencies to ensure that they
considered the
impact of
their
rulemakings on small
businesses. The RFA requires
federal agencies “to consider the effects of their regulations
on small businesses
and other
small
entities,”11 and
the
Office
of
Advocacy
is
charged
with
ensuring that federal agencies abide by the law and is required to provide
an annual
report to the
President and the Senate and House Committees on Small Business.12 In
addition,
the
Trade
Facilitation and
Trade Enforcement
Act
(TFTEA)
of
201613
2025 Presidential
Transition Project
established
a
new
role for
the
Office
of
Advocacy:
“to
facilitate
greater consider-
ation
of
small business
economic issues
during international
trade negotiations.”14 This
small
office
has
been
relatively effective
over the
years—and more
produc-
tive
during
periods
when
a
strong Chief
Counsel for
Advocacy has
been installed
to
utilize the
Office of
Advocacy’s
authority aggressively
to provide
a check on regulatory
overreach. The
office is
one of
the bright
spots within
the SBA
that a
conservative Administration
could
supercharge
to
dismantle
extreme
regulatory
policies
and
advance
limited-government
reforms
that
promote
economic
freedom
and
opportunity.
Currently,
the
SBA’s
four core
functions include:
•
Access to capital.
SBA maintains assorted financing and lending
programs
for small
businesses,
from
microlending
to
debt
and
equity
investment capital.
•
Entrepreneurial development programs.
SBA provides “free” or low-
cost
training
at more
than
1,800
locations
and
through
online
platforms and
webinars.
•
Government contracting support programs.
Through goals
established by the SBA
for federal
departments and agencies,
the broader
goal is
to ensure that
small
businesses win 23
percent of
prime
contracts.
•
Advocacy.
This
independent office within
the SBA
works to
ensure that
federal
agencies
consider
small
businesses’
concerns
and
impact
in rulemakings.
The office
also conducts
small-business research.
BUDGETARY
FLUCTUATION
SBA’s
budget and
programs have
expanded significantly
under some
Admin-
istrations
and
have
been scaled
back under
others. President
Ronald Reagan
cut
the SBA’s budget by more than 30 percent, and his annual budgets
regularly pro- posed
to
eliminate
the
agency
altogether.15 Under
President
George W.
Bush, SBA
Administrator
Hector Barreto
said that
SBA’s goal
was “to
do more
with less,”16
but
this changed
because of
Hurricane
Katrina and
a surge
in disaster
funding. In 2016, President
Barack Obama
considered streamlining and
combining SBA
programs
and
other
business-related
agencies
and
programs
under
one
entity
at
the U.S. Department of
Commerce, but opposition within the small-business lobby
in Washington scuttled the effort.17
In
general, SBA
budget fluctuations
have been
driven by
several factors
such as efforts
by
Administrations
either to
cut
or
to
greatly
expand programs,
the
need
to
boost
disaster assistance
because of
economic or
weather-related
events,
business
Mandate for
Leadership: The Conservative
Promise
loan credit
subsidy costs, and miscellaneous program “enhancements” to
support
small
businesses
through economic
challenges or
circumstances.
As
noted by
the Congressional
Research Service:
Overall,
the
SBA’s appropriations
have
ranged
from
a
high
of
over
$761.9
billion in
FY2020 to
a low
of $571.8
million in
FY2007. Much
of this
volatility is
due to significant
variation in supplemental
appropriations for disaster
assistance
to address
economic
damages
caused
by
major
hurricanes
and
for SBA
lending program
enhancements to
help small
businesses
access capital during
and immediately following
recessions. For example,
in FY2020,
the SBA
received over
$760.9 billion
in supplemental
appropriations to assist small
businesses adversely affected
by the
novel
coronavirus (COVID-
19)
pandemic.18
The
CRS
further
notes
that
“[o]verall,
since
FY2000,
appropriations
for
SBA’s
other programs, excluding
supplemental appropriations,
have increased at a
pace that exceeds inflation.”19
In
terms of
current loan
volume, the
SBA
“reached
nearly $43
billion in
fund- ing to
small businesses,
providing more
than 62,000
traditional loans
through its
7(a),
504, and
Microloan
lending partners
and over
1,200
investments through SBA
licensed
Small
Business
Investment
Companies
(SBICs)
for
Fiscal
Year
(FY) 2022.”20 The agency’s total budgetary
resources for FY 2022 amount to $44.25 billion, which represents
0.4 percent
of the
FY 2022
U.S. federal
budget.21
HISTORY
OF
MISMANAGEMENT
Throughout
its
history,
various SBA
programs and
practices have
generated
negative news headlines and scathing Government Accountability Office
(GAO)
and
Inspector General
(IG) reports
that have
centered on
mismanagement,
lack of
competent personnel
and/or systems,
and
waste,
fraud and
abuse.22 From
the
8a
program23 to
Hurricane
Katrina24 to
the
more current
COVID-19 (EIDL)
program
and
PPP
lending
program,25 the
SBA
has
managed
to
maintain
its
lending
role even
when
repeated system
failures have
affected its
distribution of
funds.
Congress has been somewhat
responsive, pressuring the SBA to clean up
fraud-related
matters
within
its
COVID-19
lending
and
grant
programs.26 Repub- licans
in
the
U.S. House
of
Representatives
have gone
farther, specifying
that the
SBA needs to
improve transparency and accountability and deal with mission
creep,
the expansion of unauthorized programs, and structural and
reporting deficiencies
that
have
allowed
mismanagement
and
fraud to
reoccur, largely
through massive
supplemental
appropriations.27
The SBA is
led by
an
Administrator
(currently a member
of the
President’s Cabinet)
and a
Deputy
Administrator.
Senate-confirmed appointees
include
2025 Presidential
Transition Project
the Administrator, Deputy
Administrator, Chief Counsel for Advocacy, and Inspector General.
Entrepreneurs
and
small
businesses require
limited-government
policies
that
do not impede their risk-taking and growth. A future Administration can
leverage and strengthen core
SBA functions that have been fairly effective at reining in and calling attention
to costly
regulations and policies
that are
harmful to
small businesses. This
core
advocacy
function
is
aided
both
by
statutory
authority
and
by
a
network
of
small-business organizations
and
allies
that
support
limited-gov-
ernment policies.28
Moreover,
an
effective
SBA
Administrator
and
leadership
team can
work and
advocate
across the
federal
government to ensure
that extreme
regulatory poli- cies—or
anticompetitive
rules
and
actions
that
may
favor
big
businesses
over
small
businesses or international competitors over American small
businesses—are dismantled
or do
not progress
when proposed.
MISSION
CREEP AND
ENLARGEMENT
As
noted,
Republicans
in the
U.S.
House
of
Representatives
have
evidenced con-
cern
about
SBA
mission
creep
and
the
need
to
make
a
sprawling,
unaccountable
agency
more
focused
and
operationally sound.
Moreover,
there
is
unease
that
the
agency
has
moved
from
being
open
to
any
eligible
small business
searching
for
sup-
port
to
being
hyperfocused on
“disproportionately
impacted,”
politically
favored, or
geographically
situated small
businesses and
entrepreneurs.
Today,
initiatives aimed at
“inclusivity” are in
fact creating
exclusivity and stringent
selectivity in
deciding what
types of
small
businesses and entities
can use
SBA
programs.
For
example,
even
though
the
SBA
under
President
Donald
Trump proposed a rule to
remove all of the unconstitutional religious exclusions
from
its
regulations29 to
conform
with Supreme
Court decisions
that have
made their
unconstitutionality clear, the
SBA has
not acted
on the
proposed rule
and still
uses
religious
exclusions
in
determining
eligibility
for
business
loans.
Several other
specific concerns include but are not limited to:
•
The
SBA’s
request
to
become
a
“designated
voter
agency”
in
response
to
President Biden’s
executive order
on “Promoting
Access to
Voting.”30
•
The
creation
of
duplicative
channels
and
“pilot
programs”
for
the
delivery
of business training
rather than working through existing counseling partners. The
programs are largely duplicative of private, state and local
government,
and educational system offerings.31
•
A
push to expand direct government lending.32
Mandate for
Leadership: The Conservative
Promise
THE
SBA IN
A CONSERVATIVE ADMINISTRATION
Reforming
and
restructuring the
SBA under
a conservative Administration would
meet the
needs of
America’s
small-business owners and
entrepreneurs, not
special
interests
in
Washington,
D.C.
Entrepreneurs
believe
the
SBA
is
fairly archaic
in its operations and programming and must be transformed to
serve small businesses
in the
modern economy
effectively.33 Therefore,
a restructured
and
reformed
SBA
would
end
the
long-term
deficiencies,
practices,
and
problems that
have
prolonged
the decades-long
cycle
of
waste,
fraud,
and
mismanagement.
Moreover,
the
SBA
Administrator and
leadership
can
provide
significant
value
to all
small
businesses
by
strongly
advocating
for
their
policy
needs
and
fostering
an agencywide
culture that
values all
small-business
owners and
does not
exclude certain groups.
Under
a
conservative
Administration,
success
would
yield:
•
A
highly
qualified
SBA
Administrator
and
leadership
team
that
can
competently
run
the
agency and
enthusiastically
advocate
for
the
policy
issues and
needs of
small-business
owners and
entrepreneurs.
•
A
tighter,
more
focused
SBA
that
concentrates
on
congressionally
authorized programs.
•
An
accountable SBA
Administrator
and staff
who report
regularly to
Congress,
respond
on
a
timely
basis
to
requests
from
individual
Members of
Congress, and
satisfactorily
implement or
respond to
IG and
GAO recommendations.
•
A
full
accounting
of
and
an
end
to
waste,
fraud,
and
abuse
in
all
COVID-19
relief programs, including the
PPP and
EIDL programs,
and action
that follows
the
rule
of
law
by
ensuring
that
loan
recipients
who
are
not
eligible
for loan
forgiveness
or
who
falsified
loan
applications
either
pay
back
the funds or
are referred to law enforcement.
•
An
end
to SBA
direct
lending.
•
An
approach
to
small-business
lending
and
capital
programs
that
supports
a resilient
small-business
supply chain
(for example,
by financing
technological upgrades
and capital
expenditures).
•
Outreach
to
all
small
businesses
and
those
that
are
eligible
for
program support
across
sectors
and
geographic
areas.
Through
congressionally
authorized programs
and
collaboration with
partners and
business associations,
the SBA
could use
the latest
technology and
platforms to
2025 Presidential
Transition Project
implement
relevant initiatives to reach small businesses. Programs would
be
nonduplicative
and implemented
on a
first-come, first-served basis.
•
A
modern,
revamped, and streamlined
SBA that
better
utilizes current
technology
and platforms
for
operations,
for
reporting,
and
in
its
programs to
reach, service,
and engage
small
businesses.
•
An
Office
of
Advocacy
that
is
strengthened
by
a
renewed
mandate
and
additional resources to protect against overregulation
along with a research
agenda
that includes
measuring the
total cost
that federal
regulation imposes on small businesses.
Accountability
and Managerial Practice.
The SBA lacks accountability and managerial practices to measure
the effectiveness, success, and integrity of its
various
programs.
As
a
future
Administration
evaluates
agency
structure
and
the
particulars of how the SBA is
spending appropriated funds, it should immediately
require
actions
and
procedures
to compel
a
culture
of
accountability
and
perfor- mance.
Specifically:
•
Require
performance metrics and
internal
procedures to
safeguard taxpayer
dollars and
program
integrity.
As noted
in an
October 2022
IG report,
failure
to
adopt
procedures
that
would
reliably
capture
data
and information
for
various
programs,
coupled with
significant
challenges
and weaknesses
regarding IT investments, systems development, and security
controls,
presents significant
risks to
program
integrity and increased
risk
of
waste,
fraud, and
abuse.34 Addressing these
shortcomings and
risks should be
a
priority
challenge and
action item
for
the
next Administration.
As
underscored by
the Inspector
General in
his
introduction to
the report,
“Pandemic response has,
in many
instances, magnified the
challenging systemic
issues in
SBA’s
mission-related work.”35
•
Review all internal government watchdog recommendations and
require that SBA management implement or address outstanding and
ongoing OIG
and GAO
recommendations
within a
specified time
frame (ideally
within 90
days of
a
recommendation) and
on an ongoing basis.
Strengthening the Office of Advocacy.
The SBA Office of Advocacy (Advo-
cacy) is “an independent office” within the SBA.36
It accounts for about one
one-thousandth of
SBA spending
and 0.75
percent of
SBA personnel. Under
the Regulatory Flexibility Act,
both under
its current
authority and
with suggested
Mandate for
Leadership: The Conservative
Promise
reforms,
the
Office
of
Advocacy
could be
a
powerful
weapon against
the
adminis-
trative state’s regulatory
extremism.
•
Amend the
RFA so
that all
agencies are
required to
provide a
copy of any proposed rule
(other than
bona fide
emergency
rules) along with
initial
regulatory flexibility
analysis to
the Office of
Advocacy
at least
60 days
before a
notice of
proposed
rulemaking is
submitted for
publication in the
Federal Register.
The Office of Advocacy would
submit
comments
to
agencies
within
30
days,
and
each
agency
would
have to
consider these
comments, make
changes in
the proposed
rule based
on
those comments,
or
explain
in
a
revised regulatory
flexibility analysis
why
it
chose not
to
change
the
proposed
rule. The
Office of
Advocacy’s
pre-proposing comments
would be
published on
the agencies’ and
its own
websites.
RFA economic analysis should be
expanded to include indirect costs along with direct costs. In
addition, the next Administration should
require
other
agencies
to
seek
Advocacy’s
input.
Currently,
other
agencies deny
Advocacy the ability to enforce their duty to consider the
effect of regulations
on small
entities by
construing their regulations
as not
having significant economic impact,
which would
otherwise
serve as
a trigger for
Advocacy’s
input. Congress should presumptively exempt small businesses
from
new agency
rules to
force agencies
to seek
Advocacy’s
input and permit
new rules
to apply
to small
businesses only with
Advocacy
signoff under specified criteria.
•
Increase the
Office of
Advocacy’s
budget by
at least
50 percent
($4.6 million).
This
would allow
Advocacy to
hire
approximately 25 attorneys,
economists, and
scientists and enhance
its role
in the
regulatory process.
•
Explicitly direct
federal
agencies to
comply with
the RFA.
This would be
similar to
the approach
adopted by
President Trump
in his
January and
February 2017 executive
orders
directing agencies
to relieve
the cost
and burden
of
regulation
on
business.37 Advocacy
should
organize
regional
roundtables, onsite
small-business
visits, and
an online platform
to hear
directly from
small
businesses
and
entities
as
it
did
from
June
2017
through
September 2018.38
This
activity produced
26 letters
to federal
agencies
and
highlighted specific
regulations that
need reform
and
how
Congress had
addressed the most
burdensome rules through
the
Congressional Review
Act.39
2025 Presidential
Transition Project
COVID-19 Lending Program Accountability and Cleanup.
A major
immediate
priority
for
the
next
Administration
should
be
a
final
accounting
and
accelerated cleanup
of
fraudulent
COVID-19
loan
and
grant
activity.
As
noted
by
the SBA IG, “managing COVID-19
stimulus lending is the greatest overall challenge
facing
SBA,
and
it
may
likely
continue
to
be
for
many
years
as the
agency
grapples
with fraud
in
the
programs….”40 The
next
Administration
should:
•
Consider bringing
in
private-sector
support and
expertise to
close
out these
programs.
Forgiveness
and fraud
must be
dealt with
as swiftly
as
possible,
and
law
enforcement
officials
must
pursue
fraud
vigorously.
Entities receiving
PPP loans
that did
not meet
eligibility for forgiveness must
be required
to pay
back the
money.
For
example, under
the CARES
Act,41
PPP
loan applicants generally were eligible
only if, together
with all
their
affiliates, they
had no
more than
500 employees.
Numerous Planned Parenthood affiliates self-certified
eligibility for
PPP loans
during the
initial wave
of loans that
were governed
by the
CARES Act’s size requirement.
Many Senators and Representatives asserted that
these Planned
Parenthood
organizations were
ineligible
because— considered together with
their
affiliates—they
exceeded the
maximum eligible
size.42
The
Trump
Administration SBA notified
several
Planned Parenthood PPP recipients of its preliminary
determination of their
ineligibility and of SBA’s authority to take various actions
against applicants that falsely certified their
eligibility.43
To
date, despite
continued oversight
attempts by
Members of
Congress,44 the
SBA has
taken no
action on
the Planned
Parenthood
loans other
than
to
forgive
them, and
in
2021,
it
approved
new
PPP
loans to
Planned Parenthood
affiliates.45
•
Cooperate
with ongoing
congressional oversight efforts
and determine
whether SBA
has authority to reverse
the forgiveness
decisions.
If it does have that authority, the SBA should reverse the
forgiveness decisions for the
subject loans,
reiterate its
preliminary
determinations of ineligibility, investigate the matter more
thoroughly, and take
all
appropriate
action
when
its
investigation
concludes.
Regardless
of whether
it reverses
its
forgiveness, if
its
investigation uncovers evidence
that Planned Parenthood affiliates
or any
other loan
recipients knowingly misrepresented
their
eligibility
in
their
applications,
the
SBA
should
make
appropriate referrals to the Department of Justice.
Mandate for
Leadership: The Conservative
Promise
Disaster Loan Program and Direct Lending.
The SBA’s disaster loan pro-
gram
provides
low-interest
loans
to
personal,
business,
and
nonprofit
borrowers
following a
federally declared disaster.
The program
suffers from
problems of
coordination
with
Federal
Emergency
Management
Administration
(FEMA)
disas- ter
assistance.
For example,
disaster
relief applicants
have an
incentive to avoid
being
approved
for SBA
disaster
loans
in
order
to
increase
the
amount
of
FEMA assistance
for
which
they
are
eligible.
Moreover,
the
availability
of
disaster
loans
reduces individuals’
incentives to purchase disaster-related insurance. More than 90 percent
of
SBA
disaster
loans
are
loans
to
individuals
such
as
homeowners,
not to small
businesses.
In
view of
the
challenges
the
SBA
has
experienced
in
its
administration
of
this program,
as
well as
the
fraud
and
abuse
in
the
EIDL
COVID-19–related
program and the IG’s
concern that the systemic problems within this lending program
undermine the
SBA’s work,
the next
Administration
should:
•
Work with Congress to assess the extent to which disaster
loans should be
offered by
another agency
rather than
the SBA
and explore
private-sector channels for administering the loans.
•
Specify clearly
that no
new direct
lending
programs will
be developed at the SBA.
Eligibility of
Religious Entities for
SBA Loans.
Current SBA regulations46 and SBA Form
197147
make
certain
religious entities
ineligible to
participate in
several
SBA
loan
programs.
The
Trump
Administration
proposed
a
rule
that
would remove
the provisions
on the
ground that
they violate
the First
Amendment.48
Subsequent
Supreme Court
decisions have
made their
unconstitutionality
clearer.49 In
an April 3, 2020, letter to Congress pursuant to 28 U.S. Code §
530D,50 the
Trump
Administration SBA
advised
that
two
such
provisions
violate
the
Free
Exer-
cise
Clause
of
the
First
Amendment
and that
it
therefore
would
not
enforce
them. On
January 19,
2021, the
Trump
Administration SBA proposed
a rule
to remove
all
of the
unconstitutional
religious
exclusions
from
its
regulations.51 The
SBA
has
not
acted
on
the
proposed
rule.
A similar
religious exclusion once appeared in the regulation governing
eligibil-
ity
for
SBA
Business Loan
Programs,52 but
it
was
removed
in
a
June 2022
final rule
that
noted
tension with
the
First
Amendment and
Supreme Court
precedent.53 That
final rule
announced that
the
SBA
would nonetheless
continue to
make religious
eligibility
determinations
for business
loan
applicants to
comply with
putative Establishment Clause
requirements,54 but
Supreme
Court precedent
and
Office
of
Legal
Counsel memoranda
refute the
notion that
large
government-backed
loan programs raise any
Establishment Clause concerns.55
2025 Presidential
Transition Project
The
SBA
uses
the
same
“Religious Eligibility
Worksheet,” SBA
Form 1971,
to
make
eligibility determinations for all affected programs, including
the Business Loan
Programs. Thus,
the SBA
continues to
act as
though the
unconstitutional
regulation were still in place, and there is no Establishment
Clause basis for doing so. The next
Administration should immediately:
•
Notify Congress
under 28
U.S. Code
§ 530D
that it
will not
enforce
these unconstitutional regulations.
•
Take down
SBA Form
1971.
•
Finalize the
Trump
Administration’s
proposed rule
or publish its
own updated
proposed rule
to remove
the
unconstitutional
regulations.
Small Business
Innovation Research and
Small Business
Technology
Transfer Programs.
The SBA “coordinates and monitors
the Small Business
Innovation
Research
(SBIR)
and
Small
Business
Technology
Transfer
(STTR)
pro-
grams
for
all
federal
agencies
with extramural
budgets
for
research
or
research
and development
(R/R&D) in excess
of the
expenditures established in
sections 9(f)
and 9(n)
of the
Small Business
Act.”56
The
SBIR and
STTR Extension
Act of 2022 extended
these
programs
from
September
30,
2022,
through
September
30,
2025.57 SBIR
requires that
3.2 percent
of spending
by agencies
with
extramural R&D
budgets
of
$100
million
or
more
must
be
directed
to
small
businesses.
STTR
allo-
cates
0.45
percent
of federal
research
spending
to
small
firms.58 Research
has
shown
that
this small
portion of
federal R&D
spending is
disproportionately
effective.59 The
SBIR program has consistently demonstrated its ability to fund
advanced technologies
through to
private-market
viability and invests
more in
America’s
heartland
than
venture
capital invests.60
SBIR and STTR have overcome the
tendency of federal contracting officers
to
deal
only
with
large
firms
that
are
familiar
to them
and
have
the
expertise
and lobbying
clout to
navigate the
federal
procurement process. The
next Adminis-
tration should:
•
Continue the
SBIR and
SBTT programs
as they
successfully fund the next wave of
technological innovation to compete with Big Tech.
•
Urge Congress
to expand
the amount
that other
agencies are
required to
set aside
from their
general R&D
budgets for
the SBIR
program.
•
Ensure the
enactment of
stricter rules
requiring that
SBIR funds
must
be expended
on capital
investments in the
United States.
Mandate for
Leadership: The Conservative
Promise
Domestic Manufacturing and Small Business.
Small businesses in the
manufacturing sector face shortfalls in access to capital.61
As manufacturing employment, domestic business
investment, and non–information
technology output
have
declined,62 expectations
for
market
returns and
the
capital
available to
small
manufacturing
enterprises have diminished.
This is
especially true for
capital-intensive sectors
like
transportation
and
energy
that
require
large
up-front
investments
and
relatively
lower-margin
sectors
like
plastics,
textiles,
furniture,
and agriculture. Yet these
industries and others like them traditionally have been
the
backbone
of American
manufacturing
employment.
They
also
are
sources
of
self-sufficiency and
resilience at
a time
when global
supply chains
are increas-
ingly uncertain.
The
public policy
problems that
are
caused
by
declining
small manufacturing
are
especially
acute when
it comes
to the production of
advanced
technologies. Other agencies
and programs invest immense taxpayer resources in basic science
and
research.
Over
time,
that
research
results
in
some
breakthrough
technologies,
but when
it is
time to
put these
breakthroughs into practice
by
manufacturing goods
and services, much
of the
necessary productive capacity
is offshore.63 For
many
technologies, the
American
economy
lacks
the
capacity
to
“scale
up”
inno- vations
that
might
not
be
immediately profitable.
Instead,
those
technologies
are put
into
practice
abroad. In
this
way,
foreign
companies
and
foreign
productive
sites buy
and implement
taxpayer-funded American technologies.
The SBA’s
existing programs should be reformed to expand the private
market for
capital in
small-manufacturer
expansion. The next
Administration should:
•
Ask Congress
to make
available a category
of Section
7(a) loans
with a larger
available
principal that is
used to
finance
manufacturing facility construction and equipment upgrading.
The proposed SBA
Reauthorization and
Improvement Act of 2019, for example, would
have
increased the
maximum loan
principal to
$50 million
for
advanced
manufacturing construction and
upgrading.64 The Section 7(a) loan program
operates through private lenders and guarantees a portion of
private-sector loans
made to
qualifying
small businesses.
The maximum
principal available
is $5
million, but
small
businesses in capital-intensive
sectors require
significantly larger amounts
of capital
to finance
up-front capital costs.
•
Reform
the
Small
Business
Investment
Company
(SBIC)
program
to refocus its support on small businesses rather than
technology
startups only.
The SBIC
program
operates through
private
venture
capital
and
private equity
funds by
providing eligible
funds with
guaranteed debt
financing
to
support
investments in
small businesses.
However, the
program
2025 Presidential
Transition Project
largely
duplicates private-sector
venture capital
to
the
extent that
the
sector
receiving
much of
its
support
is
software
and
information
technology, which
already
receive the
lion’s share
of venture
capital
investment.65
In addition, Congress should reform
the SBIC program to make its financing more favorable to
capital-intense investments and small manufacturers. The Health,
Economic Assistance, Liability Protection, and
Schools
(HEALS) Act,
introduced in 2020,66 and American Innovation
and Manufacturing Act, introduced in 2021,67
would allow SBIC to offer
longer-term financing to manufacturers and make the program more
fiscally sustainable.
Small-Business Size
Standard
Modernization.
Many
small-business
pro- grams
both
inside
and
outside
the
SBA
use
the
SBA’s
definition
of
“small
business.”
Under the
Small Business
Act, the
SBA is
tasked with
defining what
counts as
a small business
and
ensuring
that
the
definition
varies
from
industry
to
industry
to reflect differences
in regular size by industry. However, the SBA’s small-business
size
standards
reflect a
one-size-fits-all
approach
under
which
all
businesses
within its
size
standard
are considered
small
businesses
for
all
eligible
purposes,
from
gov- ernment
contracting preferences
to
eligibility
for
SBA
loans
through
private
banks. At the
same time, the SBA is an outlier among competing economies in
not considering medium-sized
enterprises
along
with
small
businesses,
often
referred
to collectively
as
small
and
medium-sized
enterprises
(SMEs).
Medium-sized
and regional
businesses
are increasingly
critical
to
maintaining
competition.
The
next
Administration
should:
•
Encourage
Congress to
create a
“medium-sized
business” classification with its eligibility for
programs confined to access
to capital
programs from
projects for
which credit
elsewhere does not exist.
SBA
POLICY PRIORITIES FOR 2025
AND BEYOND
Legislation.
The
new
Administration
can
support SBA
reform legislation
pro- posed in
Congress that
aligns with
key
measures
outlined in
this chapter.
It
also
can
support
legislative initiatives
that would
help SBA
to
focus
on
its
core statutory
activities such as capital access, federal contracting
opportunities, and regulatory
advocacy. For example:
•
The
IMPROVE
the
SBA
Act68 would
strengthen
accountability,
transparency,
and oversight
of the SBA and
aligns with
many of
the reforms
outlined in
this
chapter.
Mandate for
Leadership: The Conservative
Promise
•
The
Small Business
Regulatory
Flexibility
Improvements Act69
would
require
federal agencies
to
perform
more
thorough
RFA
economic
analysis and
provide
a
rationale
for proposed
regulations.
It
also
would
waive
fines for
certain first-time paperwork violations.
•
The
Small
Business
Regulatory
Enforcement
Fairness
Act70 (SBREFA)
panel process
allows
small
businesses
to
provide
input
on
agency
rulemakings,
gives
participating
small
businesses
greater
procedural
rights,
and
allows
for
judicial
review of
agency
violations of
the SBREFA
panel process.
SBREFA panel
requirements should be
extended to
all federal agencies.
•
The
Fair
and
Open
Competition
Act71 would
disallow
the
use
of
project
labor
agreements (PLAs)
in federal
contracting as
required in
President
Biden’s Executive Order 14063,72
which
puts small
businesses at
a competitive
disadvantage
and
works
against
the
SBA’s
governmentwide contracting
goal for small
businesses.
•
The
JOBS Act
4.073
would
advance regulatory improvements and
modernization of
various
Securities
and
Exchange
Commission
(SEC)
rules to
enhance capital formation and access.
ORGANIZATIONAL ISSUES AND
BUDGET
Administrator
and Key Staff. The
position of Administrator should not be
considered
a
symbolic
or
messaging-related
position
as
some
past
Administrations
have viewed
it.
Rather,
the
Administrator
should
have
the
requisite
experience,
skills, and
knowledge to
ensure that
the SBA
fulfills its
statutory
authorities.
Because
much of
the SBA’s
statutory authority relates
to financing
and reg-
ulatory policy,
and in
order to
make the
SBA a
more effective agency within
the Administration,
the Administrator and his or her key staff should have
experience in
small-business finance
and
investment
and/or
administrative
law.
For
example, during the
COVID-19 pandemic, the SBA was often forced to outsource key
deci- sions
and
administrative follow-through
to
the
Department
of
the
Treasury.
The SBA
Administrator
and
leadership
team must
share
the
President’s
mission
and vision
and execute
the
Administration’s
policies effectively.
Budget
The next Administration should
undertake a comprehensive review of the effectiveness of its
various loan and grant programs and provide a report to
Congress
within
six
months.
The report
should
rank
programs
by
cost-effective- ness.
In
the
interim,
the roughly
$1
billion
overall
agency
budget
should
be
held constant
until the
report is
considered,
after which
Congress
should terminate
2025 Presidential
Transition Project
ineffective
programs, consolidate duplicative functions, and reallocate
resources to
more effective
programs (such
as
the
Office of
Advocacy) or
consider reducing
the SBA budget.
Personnel
Challenges
The SBA
continues to expand programs and initiatives without first
document-
ing the
effectiveness of existing programs or whether they involve areas
in which
the agency lacks staff expertise. For example, the SBA
wants to expand the number
of
licensed
Small Business
Lending Companies
(SBLCs), implement
a
new
“Mis- sion-Based
SBLC,” and
remove a
requirement
for loan
authorization within the 7(a)
and 504
Loan programs
and rely
solely on
a lender’s
documents.
Various
IG reports
have noted
that the
lack of
skilled
employees within
the SBA has fueled
fraud and mismanagement in COVID-19 lending programs, and
congressional leaders have
expressed alarm about these “changes that haphazardly
overextend the SBA’s
responsibilities at a time when they are devastated by fraud and
underperforming
on
their
core
mission
of
serving
the
nation’s
33
million
small
businesses.”74 A
conservative
Administration
should
rein in
these idealistic
and
impractical
efforts,
get
current
programs under
control and
properly staffed
with
people
who
can
manage and
perform competently,
and
outsource
efforts where
private-sector expertise is
appropriate and more efficient.
AUTHOR’S NOTE:
The preparation of this chapter was a collective enterprise of
individuals involved in the
2025 Presidential
Transition
Project.
All
contributors
to
this
chapter
are
listed
at
the
front
of
this
volume,
but
David
Burton and
Caleb
Orr
deserve
special
mention.
The
author
alone
assumes
responsibility
for
the
content
of
this chapter,
and no views
expressed herein should
be attributed
to any
other
individual.
Mandate for
Leadership: The Conservative
Promise
ENDNOTES
1.
H.R.
7953,
Small
Business
Act,
Public
Law
85-536,
85th
Congress,
July
18,
1958,
§
2,
https://uscode.ecfr.io/
statutes/pl/85/536.pdf
(accessed
February
17,
2023),
amended
by
H.R.
4877,
One
Stop
Shop
for
Small
Business Compliance Act of
2021, Public Law 117-188, 117th Congress, October 20, 2022,
https://www.congress.
gov/117/plaws/publ188/PLAW-117publ188.pdf
(accessed February 17,
2023).
2.
U.S. Small Business Administration, “About SBA:
Organization: Mission,”
https://www.sba.gov/about-sba/
organization
(accessed February 19,
2023).
3.
Michael Faulkender, Robert Jackman, and Stephen I. Miran,
“The Job-Preservation Effects of Paycheck Protection Program Loans,”
U.S. Department
of the Treasury, Office of
Economic Policy,
Working
Paper
No. 2020-01, December 2020, p. 9,
https://home.treasury.gov/system/files/226/Job-Preservation-Effects-
Paycheck-Protection-Program-Loans.pdf
(accessed
February
16,
2023).
4.
Kate Rogers, Scott Zamost,
Karina
Hernandez, and Jennifer Schlesinger, “As
Pandemic Aid Was Rushed
to Main Street, Criminals
Seized on Covid Relief Programs,” CNBC, April 15, 2021,
https://www.cnbc.
com/2021/04/15/as-pandemic-aid-was-rushed-to-main-street-criminals-seized-on-ppp-eidl-.html
(accessed
February 16, 2023).
5.
Kevin
Brewer, “Bills
Extend Statute
of Limitation
for Prosecuting
PPP, EIDL
Fraud,”
Journal
of Accountancy,
August 10, 2022,
https://www.journalofaccountancy.com/news/2022/aug/bills-extend-statute-limitation-
prosecuting-ppp-eidl-fraud.html
(accessed
February
16,
2023).
6.
Sacha Pfeiffer, “Virtually All
PPP
Loans Have Been Forgiven with
Limited Scrutiny,” NPR, October 12, 2022,
https://www.npr.org/2022/10/12/1128207464/ppp-loans-loan-forgiveness-small-business#:~:text=As%20
COVID-19%20shutdowns%20threatened,early%20days%20of%20the%20pandemic
(accessed
February 16,
2023).
7.
U.S. Small Business Administration, “About SBA:
Organization: SBA History,”
https://www.sba.gov/about-sba/
organization
(accessed February 19,
2023).
8.
President Richard Nixon, Executive
Order
11518, “Providing for the
Increased Representation of the Interests
of Small Business
Concerns Before
Departments and Agencies of
the United States Government,” March 20,
1970,
in
Federal
Register,
Vol.
35,
No.
56
(March
21,
1970),
pp.
4939–4940,
https://tile.loc.gov/storage-services/
service/ll/fedreg/fr035/fr035056/fr035056.pdf
(accessed
February
18,
2023).
9.
S.
3331,
Small
Business
Amendments
of
1974,
Public
Law
93-386,
93rd
Congress,
August
23,
1974,
https://www.
congress.gov/93/statute/STATUTE-88/STATUTE-88-Pg742.pdf
(accessed
February
19,
2023).
10.
S.
299,
Regulatory
Flexibility
Act,
Public
Law
No.
96-354,
96th
Congress,
September
19,
1980,
https://www.
congress.gov/96/statute/STATUTE-94/STATUTE-94-Pg1164.pdf
(accessed
February
19,
2023).
11.
Maeve
P. Carey,
“The
Regulatory Flex
Act: An
Overview,”
Congressional Research Service
In Focus
No.
IF11900, August 16, 2021,
https://crsreports.congress.gov/product/pdf/IF/IF11900
(accessed February 18, 2023).
12.
U.S.
Small
Business
Administration,
Office
of
Advocacy,
“The
Regulatory
Flexibility
Act,”
https://advocacy.sba.
gov/resources/the-regulatory-flexibility-act/
(accessed February 18,
2023).
13.
H.R. 644,
Trade Facilitation
and
Trade Enforcement Act of 2015, Public Law No. 114-125,
114th Congress,
February 24, 2026,
https://www.congress.gov/114/statute/STATUTE-130/STATUTE-130-Pg122.pdf (accessed
March
21,
2023).
14.
U.S. Small Business Administration, Office of Advocacy,
“Advocacy Releases Trade Report,” December 21, 2018,
https://advocacy.sba.gov/2018/12/21/advocacy-releases-trade-report/
(accessed March 21, 2023).
15.
Associated Press, “Reagan Offers $994-Billion ‘Hard-Choices’
1987 Budget,”
Los
Angeles Times,
February 5, 1986,
http://www.latimes.com/archives/la-xpm-1986-02-05-mn-4369-story.html
(accessed
February
18,
2023).
16.
Testimony of Hon. Hector V. Barreto, Administrator, Small
Business Administration, in hearing,
The
President’s
FY 2006
Budget Request
for the
Small Business
Administration,
Committee on Small Business and
Entrepreneurship, U.S. Senate,
109th Congress, 1st Session, February 17, 2005, p. 8,
https://books.google.com/
books?id=UwD-2ICa8k8C&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false
(accessed February 18, 2023).
See also Report No. 109-49,
Summary of
Legislative and Oversight
Activities
During
the 108th
Congress, Committee on Small Business and
Entrepreneurship, U.S. Senate, 109th Congress, 1st
Session,
March
30,
2005,
p.
21,
https://www.congress.gov/109/crpt/srpt49/CRPT-109srpt49.pdf
(accessed
February 18,
2023).
2025 Presidential
Transition Project
17.
Editorial, “The Small Business Administration Needs
Reforming,”
The
Washington Post, December 18, 2016,
https://www.washingtonpost.com/opinions/the-sba-needs-reforming/2016/12/18/b639fc4c-c159-11e6-8422-
eac61c0ef74d_story.html
(accessed
February
18,
2023).
18.
Robert
Jay
Dilger,
Anthony
A.
Cilluffo,
and
R.
Corinne
Blackford,
“Small
Business
Administration
Funding: Overview and Recent Trends,”
Congressional Research Service
Report for Members and Committees of
Congress
No. R43486,
updated
July 14, 2022, Summary,
https://sgp.fas.org/crs/misc/R43846.pdf
(accessed November 18, 2022).
19.
Ibid.,
p.
2.
Emphasis
added.
20.
Press
release,
“SBA
Announces
End-of-Year
Capital
Benchmarks
Showing
Historic
Support
for
Small Businesses Under
Administrator Guzman,” U.S. Small Business Administration,
December 13, 2022,
https://
www.sba.gov/article/2022/dec/13/sba-announces-end-year-capital-benchmarks-showing-historic-support-
small-businesses-under?utm_medium=email&utm_source=govdelivery
(accessed
February
18,
2023).
21.
USASpending,gov,
“Agency
Profile:
Small
Business
Administration
(SBA),”
data
through
September
29,
2022,
https://www.usaspending.gov/agency/small-business-administration?fy=2022
(accessed February 18, 2023).
22.
Testimony
and
prepared
statement
of
Tad
DeHaven,
Budget
Analyst,
Cato
Institute,
in
hearing,
An
Examination of SBA Programs:
Eliminating Inefficiencies, Duplications, Fraud, and Abuse,
Committee
on
Small
Business and Entrepreneurship,
U.S. Senate, 112th Congress, 1st Session, June 16, 2011, pp.
80–90,
https://www.
govinfo.gov/content/pkg/CHRG-112shrg88373/pdf/CHRG-112shrg88373.pdf
(accessed
February
18,
2023).
23.
Sarah Westwood, “Feds Gave $400 Million in Contracts to
Ineligible Firms,”
Washington
Examiner, September 28, 2014,
https://www.washingtonexaminer.com/feds-gave-400-million-in-contracts-to-ineligible-firms
(accessed
February 18,
2023).
24.
Keith Girard, “Inside the SBA’s
Monumental Katrina Loan
Scandal,”
AllBusiness.com,
https://www.allbusiness.
com/inside-the-sbas-monumental-katrina-loan-scandal-11793824-1.html
(accessed February 18, 2023).
25.
Arnold & Porter, “CARES Act Fraud Tracker,” last updated
January 2, 2023,
https://www.arnoldporter.com/en/
general/cares-act-fraud-tracker
(accessed February 18, 2023).
26.
Jay
Edwards,
“Bipartisan
Call
to
Crack
Down
on
COVID-19
PPP/EIDL
Fraud,
Prosecute
Fraudsters
to
the
Fullest
Extent
of
the
Law,”
WRNJ
Radio
(Hackettstown,
New
Jersey),
October
21,
2022,
https://wrnjradio.com/
bipartisan-call-to-crack-down-on-covid-19-ppp-eidl-fraud-prosecute-fraudsters-to-the-fullest-extent-of-the-
law/
(accessed March
21, 2023).
27.
See, for
example, H.R.
7628,
IMPROVE the
SBA Act, 117th Congress, introduced April 28, 2022,
https://www.
congress.gov/117/bills/hr7628/BILLS-117hr7628ih.pdf (accessed February 18, 2023).
28.
In
varying
degrees, almost
every
small-business
advocacy organization and trade
association engages with the
SBA. During
periods of
hyper-regulatory
activity fueled
by an
activist
Administration, the small- business
community engages more
frequently with the
Office of
Advocacy
through its
roundtables
and other mechanisms in the hope of warding off costly and
intrusive rulemakings. A future conservative Administration can
look to the following groups, among others, for support in
advancing both SBA
and broader policy
reform:
American Hotel
and Lodging
Association; Asian American
Hotel Owners
Association;
Association of
Builders and
Contractors;
Associated Equipment
Distributors; Ceramic
Tile Distributors
Association; Consumer Technology Association; Family Business
Coalition; Foodservice Equipment
Distributors
Association; Heating,
Air-conditioning, and
Refrigeration
Distributors International; Independent
Bakers
Association; Independent Community
Bankers
Association;
Independent Electrical
Contractors’
International Association of
Plastics
Distributors;
International
Franchise Association;
Metals Service
Center
Institute; National
Association of
Electrical Distributors;
National Association of Manufacturers; National
Association of Wholesaler-Distributors; National Fastener
Distributors Association;
National
Marine
Distributors
Association;
National
Federation
of
Independent
Business;
National
Ready
Mix
Concrete Association;
National
Small
Business
Association;
Small
Business
and
Entrepreneurship
Council;
and
U.S. Hispanic
Chamber
of
Commerce.
Additionally,
the
small-business
community
is
diverse
and
broad, and
several key groups
strongly
support SBA
lending but
vigorously
oppose tax,
regulatory,
and spending policies
that are intrusiveness
or costly
to business.
Conservative think tanks
and taxpayer
organizations like The Heritage
Foundation, the Cato
Institute, the National
Taxpayers Union, Citizens
Against Government
Waste, the Taxpayers Protection Alliance, and Americans for Tax
Reform (among others) also have a stake in an improved
and cost-effective SBA.
Mandate for
Leadership: The Conservative
Promise
29.
U.S. Small Business Administration, “Ensuring Equal
Treatment for Faith-Based Organizations in SBA’s Loan
and
Disaster
Assistance Programs,”
Proposed Rule,
Federal Register,
Vol. 86,
No. 11
(January 19,
2021), pp. 5036–5040,
https://www.federalregister.gov/documents/2021/01/19/2021-00446/ensuring-equal-treatment-
for-faith-based-organizations-in-sbas-loan-and-disaster-assistance-programs
(accessed
February
18,
2023).
30.
President
Joseph
R.
Biden
Jr.,
Executive
Order
14019,
“Promoting
Access
to
Voting,”
March
7,
2021,
in
Federal Register, Vol. 86,
No. 45 (March 10, 2021), pp. 13623–13627,
https://www.govinfo.gov/content/pkg/
FR-2021-03-10/pdf/2021-05087.pdf
(accessed February 19,
2023).
See also press release,
“Small Business
Committee Republicans: The SBA Should Stay Out of Elections and
Focus on Our Small Businesses,” Small
Business Committee Republicans, Committee on Small Business,
U.S. House of Representatives, April 4, 2022,
https://republicans-smallbusiness.house.gov/news/documentsingle.aspx?DocumentID=404061
(accessed
February 18, 2023).
31.
Press
release,
“SBA
Administrator
Guzman,
Biden–Harris
Administration
Announce
Community
Navigator
Pilot
Program
Grantees,”
U.S.
Small
Business
Administration,
October
28,
2021,
https://www.sba.gov/
article/2021/oct/28/sba-administrator-guzman-biden-harris-administration-announce-community-navigator-
pilot-program
(accessed February
18, 2023).
32.
John
Reosti,
“SBA
Hasn’t
Given
Up
on
Direct
Lending,”
American
Banker,
May
2,
2022,
https://www.
americanbanker.com/creditunions/news/sba-hasnt-given-up-on-direct-lending
(accessed February 18, 2023).
33.
Goldman Sachs, 10,000 Small Businesses
Voices, “22 Years Is Too
Long: Support Small Businesses.
Reauthorize
the
SBA,”
Open
Letter
to
Congress,
November
16,
2022,
https://www.goldmansachs.com/
citizenship/10000-small-businesses/US/voices/reauthorize-the-sba-letter/index.html
(accessed February 18,
2023). According to Goldman
Sachs, the letter “was published in
Politico
on Wednesday, November 16 to kick
of a
broader campaign to prioritize small businesses and modernize
the SBA in the next Congress” and “was
signed by
over 3,000
small business
owners from
all 50
states.” Ibid.
34.
See, for example, “Challenge
3:
SBA
Faces Significant Challenges in IT Investment, System
Development, and
Security Controls,” in U.S.
Small Business Administration, Office of Inspector General,
Top Management
and
Performance
Challenges Facing the
Small Business
Administration in Fiscal
Year 2023,
Report
23-01,
October 14, 2022, pp. 16–19,
https://www.sba.gov/sites/default/files/2022-10/SBA%20OIG%20Report%2023-01_0.pdf
(accessed
February 18,
2023).
35.
Ibid.,
p.
iv.
36.
Appendix M, “Office of
Advocacy’s Legislative Priorities,” and Appendix Q, “Memorandum
of Understanding
Between
the
Small
Business
Administration
and
the
Office
of
Advocacy,”
in
U.S.
Small
Business
Administration, Office of
Advocacy,
Background Paper,
Office of
Advocacy,
2017–2020, January 2021, pp. 192 and
197,
https://cdn.advocacy.sba.gov/wp-content/uploads/2021/02/09101916/Background-Paper-Office-of-
Advocacy-2017-2020-web.pdf
(accessed
February
18,
2023).
37.
President Donald J. Trump,
Executive
Order 13771, “Reducing
Regulation and Controlling Regulatory Costs,”
January
30, 2017,
in
Federal Register,
Vol. 82,
No. 22
(February 3, 2017),
pp. 9339–9341,
https://www.govinfo.
gov/content/pkg/FR-2017-02-03/pdf/2017-02451.pdf
(accessed
February
19,
2023),
and
President
Donald
J. Trump, Executive Order
13777,
“Enforcing the Regulatory
Reform Agenda,” February 24, 2017, in
Federal
Register, Vol. 82,
No. 39 (March 1, 2017), pp. 12285–12287,
https://www.govinfo.gov/content/pkg/FR-2017-03-
01/pdf/2017-04107.pdf
(accessed
February
19,
2023).
38.
U.S. Small Business Administration, Office of Advocacy,
What
Small Businesses
Are Saying
and What
Advocacy Is
Doing About
It: Progress
Report on
the Office of
Advocacy’s Regional Regulatory
Reform
Roundtables, June
2017–September
2018,
December 2018,
https://cdn.advocacy.sba.gov/wp-content/
uploads/2018/12/20091536/What-Small-Businesses-Are-Saying-What-Advocacy-Is-Doing.pdf April
2020,
https://advocacy.sba.gov/regulatory-reform/
(accessed
February
18,
2023December
10,
2022).
See
also
U.S.
Small Business Administration,
Office of Advocacy,
Reforming Regulations and Listening
to Small
Business:
Second Progress Report on the Office of Advocacy’s Regional
Regulatory Roundtables, June 2017–December
2019,
https://cdn.advocacy.sba.gov/wp-content/uploads/2020/04/20141200/2nd-Progress-Report-on-Reg-
Reform-Roundtables.pdf
(accessed
February
18,
2023).
39.
U.S.
Small
Business
Administration,
Office of
Advocacy,
What Small
Businesses Are
Saying and
What
Advocacy Is Doing About It: Progress
Report
on
the
Office
of
Advocacy’s
Regional
Regulatory
Reform
Roundtables, June
2017–September 2018, pp.
32 and
43.
2025 Presidential
Transition Project
40.
U.S. Small
Business Administration, Office of Inspector General,
Top Management and Performance
Challenges
Facing the
Small Business
Administration in Fiscal
Year 2023,
p.
iv.
41.
H.R. 748,
CARES (Coronavirus
Aid,
Relief, and Economic Security) Act, Public Law No.
116-136, 116th
Congress, March 27, 2020,
https://www.congress.gov/116/plaws/publ136/PLAW-116publ136.pdf (accessed
February 19,
2023).
42.
Sarah McCammon, “Planned Parenthood
Asked
to Return Funds from Paycheck
Protection Program,” NPR,
May 21, 2020,
https://www.npr.org/2020/05/21/859991359/planned-parenthood-asked-to-return-funds-
from-paycheck-protection-program
(accessed
February
18,
2023).
43.
Letter from William Manger, Associate Administrator, U.S.
Small Business Administration, to Laura Meyers, Planned
Parenthood
of
Metropolitan
Washington,
“Re:
Notice
of
Investigation
and
Request
for
Records,”
May 19, 2020,
https://s3.documentcloud.org/documents/6922122/SBA-Letter-Planned-Parenthood-DC.pdf
(accessed
February 18,
2023).
44.
Press release, “Lankford,
HSGAC Republicans Demand Details on Illegal PPP Loans to Planned
Parenthood
Affiliates,” Office of U.S. Senator James Lankford, April 28,
2022,
https://www.lankford.senate.gov/news/press-
releases/lankford-hsgac-republicans-demand-details-on-illegal-ppp-loans-to-planned-parenthood-affiliates (accessed February 18,
2023).
45.
Press
release,
“Romney,
Colleagues
Request
Information
from
SBA
Administrator
Guzman
on
Illegal
PPP Loans Given to Planned
Parenthood Affiliates,” Office of U.S. Senator Mitt Romney,
April 28, 2022,
https://
www.romney.senate.gov/romney-colleagues-request-information-from-sba-administrator-guzman-on-
illegal-ppp-loans-given-to-planned-parenthood-affiliates/
(accessed February 18,
2023).
46.
13 C.F.R. §§ 109.400(b)(11),
https://www.law.cornell.edu/cfr/text/13/109.400;
123.301(g),
https://www.law.
cornell.edu/cfr/text/13/123.301;
123.502(n),
https://www.law.cornell.edu/cfr/text/13/123.502; and
123.702(b)(6),
https://www.law.cornell.edu/cfr/text/13/123.702
(all
accessed
February
19,
2023).
47.
U.S. Small
Business
Administration,
“Religious Eligibility Worksheet
for all
7(a) and
504 Loan
Programs” SBA Form 1971,
http://www.sba.gov/sites/default/files/2020-11/sba-form-1971.pdf
(accessed February 18, 2023).
48.
U.S. Small Business Administration,
“Ensuring
Equal Treatment for
Faith-Based Organizations in SBA’s Loan and
Disaster
Assistance Program.”
49.
See, for
example,
Carson
v.
Makin, 596 U.S.
(2022),
https://www.supremecourt.gov/
opinions/21pdf/20-1088_dbfi.pdf (accessed February 19, 2023).
50.
28
U.S.
Code
§
530d,
https://www.law.cornell.edu/uscode/text/28/530D
(accessed
February
19,
2023).
51.
U.S. Small Business Administration,
“Ensuring
Equal Treatment for
Faith-Based Organizations in SBA’s Loan and
Disaster
Assistance Program.”
52.
13
CFR 120.110(k),
https://www.law.cornell.edu/cfr/text/13/120.110
(accessed
February 19,
2023).
53.
U.S. Small Business Administration, “Regulatory Reform
Initiative: Streamlining and Modernizing the 7(a),
Microloan, and 504 Loan
Programs to Reduce Regulatory Burden,” Final Rule,
Federal Register, Vol. 87,
No.
125 (June 30, 2022), pp.
38900–38910,
https://www.federalregister.gov/documents/2022/06/30/2022-13483/
regulatory-reform-initiative-streamlining-and-modernizing-the-7a-microloan-and-504-loan-programs-to (accessed February 18,
2023).
54.
Ibid.
55.
U.S. Department of Justice, Office of Legal Counsel
“Religious Restrictions on Capital Financing for Historically
Black
Colleges
and
Universities,”
Memorandum
Opinion
for
the
Acting
General
Counsel,
Department of Education, August
15, 2019,
https://www.justice.gov/sites/default/files/opinions/
attachments/2021/01/01/2019-08-15-hbcu-capfin-2.pdf.
(accessed
February
18,
2023).
56.
U.S. Small
Business
Administration, Office
of Investment
and Innovation,
SBIR and
STTR
Annual
Report, Fiscal
Year 2019,
p. 8,
https://www.sbir.gov/sites/default/files/SBA_Final_FY19_SBIR_STTR_Annual_Report.pdf
(accessed
February 18,
2023).
57.
S. 4900,
SBIR and
STTR Extension
Act of 2022, Public
Law No.
117–183, 117th
Congress,
September 30,
2022,
https://www.congress.gov/117/plaws/publ183/PLAW-117publ183.pdf
(accessed
February
18,
2023).
58.
U.S. Small
Business
Administration, Office
of Investment
and Innovation,
SBIR and
STTR
Annual
Report, Fiscal
Year
2019,
pp.
6,
40,
and
108.
Mandate for
Leadership: The Conservative
Promise
59.
Peter
L.
Singer,
“Federally
Supported
Innovations:
22
Examples
of
Major
Technology
Advances
that
Stem
from Federal
Support,”
Information
Technology
and
Innovation
Foundation,
February
2014,
https://wrnjradio.com/
bipartisan-call-to-crack-down-on-covid-19-ppp-eidl-fraud-prosecute-fraudsters-to-the-fullest-extent-of-the-
law/
(accessed March
21, 2023).
60.
Wells King, “Uncle Sam’s Top-Performing Venture Fund,”
American Compass
Case
Study, November 2022,
https://americancompass.org/wp-content/uploads/2022/11/AC-Case-Study_SBIR_final2.pdf
(accessed February 18, 2023).
61.
Elisabeth B. Reynolds, Hiram
M.
Samel, and Joyce Lawrence,
“Learning by Building: Complementary Assets
and the Migration of
Capabilities in U.S. Innovative Firms,” MIT Industrial
Performance Center
Working
Paper
No. MIT-IPC-13-001, March
2013,
https://ipc.mit.edu/sites/default/files/2019-01/13-001.pdf
(accessed February 18, 2023).
62.
American
Compass,
“Where’s
The
Growth?
Assessing
the
Results
of
the
Globalization
Experiment,”
March 2022, pp. 3–5,
https://americancompass.org/wp-content/uploads/2022/10/AC-Atlas-Wheres-the-Growth.pdf
(accessed
February 18,
2023).
63.
Sridhar Kota and Tom Mahoney, “Innovation Should Be Made in
the U.S.A.,”
The
Wall Street
Journal, November 15, 2019,
https://www.wsj.com/articles/innovation-should-be-made-in-the-u-s-a-11573833987
(accessed
February 18,
2023).
64.
S.
, SBA
Reauthorization and
Improvement Act of 2019, 116th Congress, 1st Session, Title III, §
303,
https://www.rubio.senate.gov/public/_cache/files/80533629-2905-433f-a588-7c4e032f7347/
C096ED9C1EBA68E041CFDA143E01C66C.mir19891.pdf
(accessed
February
18,
2023).
65.
David Adler, “Financing Advanced Manufacturing: Why VCs
Aren’t the Answer,”
American
Affairs, Vol. III, No. 2
(Summer
2019),
https://americanaffairsjournal.org/2019/05/financing-advanced-manufacturing-why-vcs-
arent-the-answer/
(accessed
February
18,
2023).
66.
National Association of Manufacturers, “Overview of the
Senate HEALS Act,” July 28, 2020,
https://documents.
nam.org/comm/HEALSActInfo.pdf
(accessed
February
19,
2023).
See
also
remarks
by
Senator
Mitch
McConnell, “HEALS Act,”
Congressional Record, Vol. 166, No. 132 (July 27, 2020), pp.
S4491–S4492,
https://
www.congress.gov/116/crec/2020/07/27/CREC-2020-07-27-pt1-PgS4491-7.pdf
(accessed
February
20,
2023).
67.
S. 1059,
American Innovation and Manufacturing Act, 117th Congress,
introduced March 25, 2021,
https://
www.crfb.org/blogs/whats-11-trillion-heals-act
https://www.congress.gov/117/bills/s1059/BILLS-117s1059is.pdf
(accessed February
18, 2023).
68.
H.R.
7628,
IMPROVE
(Improve
Management,
Programs,
Resources,
and
Oversight
for
Vital
Entrepreneurs)
the
SBA
Act,
117th Congress,
introduced
April 28,
2022,
https://www.congress.gov/117/bills/hr7628/BILLS-
117hr7628ih.pdf
(accessed
February
19,
2023).
69.
S. 1120, Small
Business Regulatory Flexibility Improvements Act, 116th
Congress, introduced April 10, 2019,
https://www.congress.gov/116/bills/s1120/BILLS-116s1120is.pdf (accessed February 19,
2023).
70.
H.R. 3136,
Contract with America
Advancement Act of 1996,
Public Law No. 104-121, 104th Congress,
March 29, 1996, Title
II,
https://www.congress.gov/104/plaws/publ121/PLAW-104publ121.pdf (accessed February 19, 2023).
71.
S. 403, Fair
and Open Competition Act, 117th Congress, introduced February
24, 2021,
https://www.
congress.gov/117/bills/s403/BILLS-117s403is.pdf (accessed February 19, 2023), and H.R. 1284, Fair and Open
Competition Act, 117th
Congress, introduced
February 24, 2021,
https://www.congress.gov/117/bills/hr1284/
BILLS-117hr1284ih.pdf
(accessed
February
19,
2023.
72.
President Joseph R. Biden Jr.,
Executive Order 14063, “Use
of Project Labor Agreements for Federal
Construction
Projects,” February 4,
2022, in
Federal Register,
Vol. 87,
No. 27
(February 9, 2022),
pp.
7363–7366,
https://www.govinfo.gov/content/pkg/FR-2022-02-09/pdf/2022-02869.pdf
(accessed
February
19, 2023).
73.
“The JOBS Act 4.0: Section-by-Section,”
Committee on Banking,
Housing, and Urban Affairs, U.S. Senate,
https://www.banking.senate.gov/imo/media/doc/the_jobs_act_4.0sectionbysection.pdf
(accessed February 19, 2023).
74.
Press release, “Luetkeymeyer: SBA Lacks Infrastructure and
Expertise to Expand Number of Small Business Lending Companies,” Committee
on Small Business, U.S. House of Representatives, November 7,
2022,
https://
smallbusiness.house.gov/news/documentsingle.aspx?DocumentID=404376
(accessed February 18, 2023).
Peter
Navarro
For
decades the
world has
struggled with
a shifting
maze of punitive tariffs,
export subsidies, quotas, dollar-locked currencies, and the
like. Many
of
these import-inhibiting and export-encouraging devices have long
been employed
by major
exporting countries trying
to amass
ever larger
[trade] surpluses.
Warren Buffett,
CEO, Berkshire
Hathaway1
The
Chinese
government is
implementing a comprehensive,
long-term
industrial strategy to ensure its global dominance….
Beijing’s ultimate goal is for
domestic companies to replace foreign companies as designers and
manufacturers of key technology and products first at home, then
abroad.
U.S.–China Economic
and
Security
Review Commission2
The
United States
of
America
is
the
world’s dominant
superpower and
remains
the world’s arsenal of democracy. To maintain that global positioning—and
thereby
best
protect the
homeland and
our
own
democratic institutions—it
is
critical
that the United
States strengthen
its
manufacturing
and
defense
industrial base
at
the
same
time
that it
increases the
reliability and
resilience of
its
globally
dispersed
Mandate for
Leadership: The Conservative
Promise
supply
chains. That
will necessarily
require the
onshoring of
a
significant
portion of
production currently offshored
by American
multinational corporations.
Trade
policy
can
and
must
play an
essential role
in
an
American manufacturing
and
defense
industrial base
renaissance. However,
several major
challenges in
the international
trading
environment are
pushing America
in
the
opposite direction. The
first challenge
is
rooted
in
MFN:
the
“most
favored nation”
rule of
the
World
Trade
Organization
(WTO). According
to
the
MFN
rule,
WTO
members
must apply
the
lowest
tariffs that
they apply
to
the
products of
any
one
country to
the
products
of
every other
country.3 However,
WTO
members
can
charge
higher tariffs
if
they
apply
these
nonreciprocal
tariffs to
all
countries.
The
practical result
has
been
the
systematic
exploitation of
American farmers,
ranchers,
manufacturers,
and
workers
through higher
tariffs
institutionalized
by
MFN.
In
turn,
this unfair
and
nonreciprocal
trade has
resulted in
chronic U.S.
trade deficits with much of the rest of the world. This
systemic trade imbalance serves as
a
brake
and
bridle
on
both
GDP
growth
and
real
wages in
the
American
economy while
encumbering the U.S.
with
significant foreign
debt.
The second challenge is part of the
broader existential threat posed by the Chinese Communist Party
(CCP) in its quest for global dominance. That chal- lenge
is rooted
in the
CCP’s
continued economic
aggression, which begins
with mercantilist
and
protectionist
trade
policy
tools
such
as
tariffs,
nontariff
barriers,
dumping,
counterfeiting
and
piracy,
and
currency
manipulation.
However,
Com-
munist
China’s
economic
aggression
also
extends
to
an
intricate
set
of
industrial policies
and
technology
transfer–forcing
policies
that
have
dramatically
skewed the
international trading arena.
Both
the
unfair,
unbalanced, and
nonreciprocal
trade
institutionalized
by
the
WTO
and
Communist
China’s economic
aggression are
weakening America’s
man-
ufacturing
and
defense
industrial base
even as
the
fragility
of
globally
dispersed
supply
chains
has
been
brought
into sharp
relief by
the
COVID-19
pandemic with
its
associated
lockdowns and other
disruptions and by
the Russian
invasion of
Ukraine. Russian revanchism,
in particular, has demonstrated once again how bad actors
on the
world stage
can use
trade policy
(for example,
export
restraints on natural
gas) as
a weapon
of war.
LAYING
THE TRADE
DEFICIT
PREDICATE
The
great football
coach Bill
Parcells once
said, “You
are
what
your record
says
you are.” America’s record on trade—specifically American’s chronic and
ever-ex-
panding
trade deficit—says
that America
is
the
globe’s biggest
trade loser
and
a
victim
of unfair,
unbalanced, and
nonreciprocal trade.
During
the first
year of
the Biden
Administration, the overall
U.S. trade
defi- cit,
including
goods
and
services,
soared
by
29
percent,
from
$654
billion
in
2020 to
$845 billion
in 2021.4 Over the same
time period,
imports of
consumer goods,
2025
Presidential Transition
Project
TABLE
1
FY
2022
FIGURES
FOR
SELECTED
AREAS,
IN
BILLIONS
OF
DOLLARS
Country |
Deficit |
|
Country |
Deficit |
Communist
China |
-338.1 |
|
South
Korea |
-35.6 |
European
Union |
-192.6 |
|
Thailand |
-36.6 |
Mexico |
-108.2 |
|
India |
-33.8 |
Vietnam |
-99.8 |
|
Malaysia |
-30.9 |
Canada |
-72.4 |
|
Switzerland |
-19.0 |
Japan |
-55.0 |
|
Indonesia |
-21.1 |
Ireland |
-54.6 |
|
Total |
-1,138.0 |
Taiwan |
-41.1 |
|
|
|
SOURCE:
Exhibit 14,
“U.S. Trade
in Goods
by Selected
Countries and Areas:
2022,” in
press release,
“Monthly U.S.
International Trade in Goods and Services, October 2022,” U.S.
Department of Commerce, U.S. Census Bureau,
December 6, 2022, https://www.census.gov/foreign-trade/Press-Release/ft900/ft900_2210.pdf (accessed
March
21,
2023).
A
heritage.org
capital
goods,
and
the
category
of
foods,
feeds, and
beverages were
the
highest
on
record,
and
imports
of
industrial
supplies and
materials were
the
highest
since 2014.
As
for
the
U.S.
trade deficit
in
goods,
which primarily
measures manufacturing
output,
Table 1
catalogues that
deficit for
the
top
13
countries
plus the
European Union
(EU)
in
fiscal
year (FY)
2022. Note
that the
trade deficit
in
goods
with Com- munist
China is
by
far
the
largest:
It
accounts
for
fully
one-third of
that deficit
and
is
more
than
twice the
size of
the
deficit
with the
EU.
These
trade deficit
statistics implicitly measure
the large
amounts of
Ameri- ca’s
manufacturing and defense industrial base and supply chains that
have been offshored
to
foreign
lands.
Such
offshoring
not
only
suppresses
the
real
wages
of American
blue-collar workers
and
denies
millions
of
Americans
the
opportunity
to climb up the rungs of the
ladder to the middle class, but also raises the specter of
a
manufacturing and
defense
industrial
base
that,
unlike
our
experience
in
World
Wars
I
and
II,
will
not
be
able
to
provide
the weapons
and
matériel
that
would
be
needed
should
America
enter another
major
world
war
or
seek
to
assist
a
major
ally
like
Europe,
Japan,
or
Taiwan.
It
is
wise
to
recall
Stalin’s
admonition
that
“quantity
Mandate for
Leadership: The Conservative
Promise
has a quality
of its
own.” In
World War
II in
particular, it
was not
just the
brave soldiers, sailors,
and pilots who beat the Nazis and Imperial Japan. It was
America’s factories—its
“arsenal
of democracy”—that
overwhelmed
the
Axis
forces.
In the wake
of the
COVID-19
pandemic, almost
certainly
spawned in
a CCP
biological weapons
lab
in
Wuhan,
China,5 global
supply
chains
have
been
under significant
pressures
from lockdown
policies, energy
price shocks,
and
other
dis- ruptions,
including
labor market
disruptions. At
the
height
of
the
pandemic, the
rising
geopolitical
risk
associated
with globalized
supply chains
was
underscored
when Communist
China, which controls much of the world’s pharmaceutical pro-
duction
and supply
chains,
threatened to
plunge America
“into a
mighty sea
of coronavirus” through pharmaceutical export controls6
if American
politicians dared to
investigate what happened
at the
Wuhan lab.
Add all this
up, and
America’s trade situation
and massive
trade
imbalances pose
not
only
a
severe
economic
security
threat,
but
also
a
national
security
threat.
As President
Donald
Trump
indicated
in
announcing
his
2017
National
Security
Strategy, “economic
security
is national security.”7
CHALLENGE
#1: UNFAIR
AND
NONRECIPROCAL
TRADE
INSTITUTIONALIZED IN WTO
RULES
Tonight,
I am
also asking
you to
pass the
United States
Reciprocal Trade
Act, so
that if
another
country places
an unfair
tariff on
an American
product, we can charge them the exact same tariff on the
exact same product that
they
sell to us.
President Donald
J.
Trump,
2019 State
of
the
Union Address8
The
World Trade
Organization,
with
its
164
members, governs
international trade
rules.
Under its
most favored
nation (MFN)
rule, each
WTO
member
must
apply
the
lowest
tariffs it
applies to
the
products
of
any
one
country
to
the
products of every
other WTO
country. Importantly,
nothing in
the
MFN
rule requires
a
WTO
member
to
provide
equal—that is,
reciprocal or
mirror—tariff
rates
to
its
trading
partners.
Rather,
under MFN,
WTO
members
can
charge
systematically
higher tariffs
to other
countries to
the extent
negotiated in their
WTO tariff
schedules so long as
they apply
those same
higher tariffs
to all countries.
As
a
poster
child for
the
kind
of
nonreciprocal
tariffs that
American manufactur-
ers
often
face, the
MFN
tariff
for
automobiles
applied
by the
U.S.
is
only
2.5 percent.
In contrast, the EU charges
10 percent, Communist China 15 percent, and Brazil 35
percent.
Similarly,
while
the
U.S.
applies
an
MFN
tariff
rate
of
6.2
percent
on
the
rice it buys from Malaysia,
Malaysia applies an ad-valorem equivalent tariff of 40
percent
on
rice
from
the
U.S.
Meanwhile,
European
milk
producers
are
shielded
2025 Presidential
Transition Project
TABLE
2
132-Country
Sample |
Foreign
Partner
Applies Higher Tarif |
U.S.
Applies
Higher Tarif |
U.S.
and
Foreign
Partner Apply Same Tarif |
Number
of
HS6
Product
Lines |
467,015 |
141,736 |
87,319 |
Percent
of
HS6
Product
Lines |
67% |
20% |
13% |
Tariff
Differential |
12.3% |
8.7% |
0.0% |
NOTE:
HS6—Harmonized
Commodity
Description
and
Coding
System.
SOURCE:
United Nations
Conference on
Trade and
Development, “Trade
Analysis Information
System,” https://
databank.worldbank.org/source/unctad-%5E-trade-analysis-information-system-(trains)
(accessed
March
21,
2023).
A
heritage.org
by
67
percent
tariffs while
American milk
producers benefit
only from
a
15
percent tariff on
foreign imports.9
From
the
perspective
of
strategic
game theory,
the
WTO’s
MFN
rule
provides little
or
no
incentive
for
higher-tariff
countries to
lower their
tariffs. Rather,
under these
conditions, the dominant
strategy of
any relatively high-tariff
country is
simply
to
maintain
those
high
tariffs
while
free
riding
off
the
lower-tariff
countries. The
U.S.
is
disproportionately harmed
by
the
WTO’s
nonreciprocal
tariff
regime.
The countries that are hurt most by
the WTO’s nonreciprocal tariff regime are
those like the United States that charge the lowest tariffs on average.
This point is
illustrated
in
Table
2,
which
reports
information
on
nonreciprocal
tariffs
that
are applied
under
the
MFN
rule
on
product
lines
at
the
six-digit
level of
the
Harmo- nized
Commodity Description and
Coding System
(HS6).10
Table
2 presents
results for
a broad sample
of 132
countries that
account for
more than 60 percent of total
U.S. trade and 98 percent of U.S. trade that is not cov-
ered
by
free
trade
agreements
(FTAs).
Within
this
broad
sample
of
132
countries,
U.S. exporters face
higher tariffs
in 467,015
different cases
compared to
141,736 cases
in which the
U.S. charges
higher
nonreciprocal rates.
In other
words, U.S.
exporters face higher tariffs more than three times as often as
the U.S. applies higher
tariffs.
Moreover, when
American exporters face higher tariffs, the nonreciprocal tar-
iffs
are
typically
much higher.
As
row
4
of
Table 2
indicates, in
the
467,015
cases in
which
foreign
partners charge
higher tariffs,
the
average
rate applied
by
the
foreign partners
is 12.3
percentage points above
the rate
applied by
the U.S. In
contrast,
Mandate for
Leadership: The Conservative
Promise
in the 141,736
cases in
which the
U.S. charges
the higher
tariff, the
average U.S.
applied
rate
is
only
8.7
percentage
points
higher
than
the
average
applied
tariff
of the foreign
partner.
Separately,
Communist China levies
higher tariffs
on 10
products for
every one Chinese
product that is subject to a U.S.-applied higher tariff.11 India’s ratio is even
higher at
13 to one.
Further, both
Communist China
and India
also feature
significant nontariff barriers.
Collectively, these
higher
nonreciprocal tariffs
in Communist China and
India block American exporters from selling goods at com-
petitive prices
to more
than one-third
of the world’s population.
Trade Deficit Impacts of the U.S. Reciprocal Trade Act.
Under current United
States laws
and
regulations, an American
President has limited
ability to
fight
back
against
the
higher
MFN
tariffs
now
being
levied
against
American workers,
farmers,
ranchers,
and
manufacturers.
Accordingly,
behind
the
WTO’s
protective MFN
shield,
America’s free-riding
trading
partners have
little or
no incentive
to come to
the bargaining
table to
negotiate
lower tariffs.
To
address this
nonreciprocity
stalemate,
President Trump
urged Congress
in
his
2019 State
of
the
Union address
to
pass
the
United
States Reciprocal
Trade Act
(USRTA).12 Under
the
USRTA,
the
President
would have
the
authority
to
bring
any
American
trading
partner that
is
currently
applying higher
nonreciprocal
tariffs
to
the
negotiating table.
If
that
trading partner
refused to
lower tariffs
to
U.S.
levels,
the
President
then would
have the
authority to
raise U.S.
tariffs to
match or
“mirror” the foreign
partner’s tariffs.
The
USRTA was
introduced on
January 24,
2019, by
then-Representative
Sean Duffy
(R–WI). The
following
month, a
Harvard–Harris
poll of
1,792
registered voters
found that
80 percent
of respondents
supported the
USRTA.13 As Repre- sentative Duffy noted at the time, the purpose of granting
the President these
authorities
was
not
to
raise
tariffs.
Rather,
it
was
to
give
the
President,
working
in
close
consultation with
Congress,
a
sophisticated
and
targeted
tool
that
he
could use
to force
other
countries to
lower their
tariffs and
nontariff
barriers.14
Following
the
introduction
of
the
USRTA, the
White House
Office of
Trade and
Manufacturing
Policy (which
the
author
directed) ran
simulations to
estimate the
impact
that
implementation of the
USRTA might
have on
the overall
U.S. trade
deficit
in
goods
and
the
large
bilateral
trade deficits
the
U.S.
runs
with
many
of
its
major
trading
partners.
The
sample
consisted
of
the
same
132
trading
partners
used
in
Table
2
above.15 The
results
underscore the
unfair and
unbalanced nonreciprocal
trade
the U.S.
is forced
to accept
under WTO
MFN rules.
Two Scenarios.
Scenario One in Table 3
assumes that our trading partners
lower their
applied
tariff
rates
on
specific
products
to
U.S.
levels
in
cases
where their
applied
tariffs
are higher.
Scenario
Two
assumes
that
our
trading
partners refuse
to lower their tariff rates to match those of the U.S. Instead,
in order to uphold the
principle of
reciprocity,
the U.S.
raises its
tariffs to
mirror levels.
To
2025
Presidential Transition
Project
TABLE
3
REDUCTION
IN
U.S.
TRADE
DEFICIT
WITH
WORLD
Metric
Scenario
One: Partner
Countries Match U.S.
Tarif Rate
Scenario
Two:
U.S. Matches Partner Tarif
Rates
In
Billions
of
Dollars
$58.3
$63.6
As
Percentage
of
2018
Deficit
9.4%
10.2%
NOTE:
USRTA—U.S.
Reciprocal
Trade
Act.
SOURCE: White House Ofce of Trade and Manufacturing Policy,
The United States
Reciprocal Trade Act: Estimated Job & Trade Deficit Efects,
May 2029, p. 18, https://www.wsj.com/public/resources/documents/RTAReport.
pdf?mod=article_inline (accessed March 21, 2023).
A
heritage.org
calculate
the
trade
deficit reductions
under Scenario
One
and
Scenario Two,
the
analysis
relied
on
the
World
Bank’s SMART
tariff simulator.
Table 3
provides the
simulation
results.
In
Scenario One,
if
all
132
countries
were to
lower their
higher nonreciprocal
tariffs
to
U.S.
levels, the
overall U.S.
trade deficit
in
goods
would be
reduced by
$58.3
billion, or
about 9.4
percent of
that deficit.
In contrast,
in Scenario
Two, if
these countries
were
to
refuse
to
reciprocate
and
the
U.S.
were
to
raise
its
tariffs to
mirror those countries’ levels, the reduction in the U.S. trade
deficit would be
slightly larger:
an estimated
$63.6 billion,
or 10.2
percent of
the deficit. This suggests
that
implementing the
USRTA would
help to
create between
350,000 and 380,000 jobs.
The slightly larger
reduction in
the trade deficit
in Scenario
Two as
a result
of
the U.S.
raising
its
tariffs
to
mirror
those
of
its
partners,
as
opposed
to
foreign
countries
lowering
their
tariffs
to U.S.
levels,
may
seem
surprising to
those
who
are
steeped
in
Ricardian
dogma
and
the
textbook
lessons
of
free
trade.
However,
this
result
speaks
to
the
fact
that
so
many
of
America’s
trading partners
are
applying
significantly higher
tariffs to
thousands of
American
products.
Estimated
Impacts on Key U.S. Bilateral Trade Deficits.
If the USRTA were enacted,
a President would likely
have to
prioritize which countries
he should
negotiate with
first.
One
way
to
create
such
a
priority
list
would
be
to
choose
those countries that
have relatively large trade deficits with the U.S. and apply
relatively high tariffs. This is illustrated in Figure 1,
which maps bilateral trade deficits
Mandate
for Leadership:
The
Conservative
Promise
FIGURE
1
■
Largest
bilateral
trade
deficit
and/or
largest
tarif
diferential
■
Second-to-largest
bilateral
trade
deficit and/or
second-to-largest
bilateral
tarif
diferential
■
Smallest
bilateral
trade
deficit
and/or
smallest
tarif
diferential
AVERAGE
MOST-FREE-NATION
DIFFERENTIAL,
SIMPLE
MEAN 10%
8%
6%
4%
2%
0%
0
$50
$100
$150
$200
$250
$300
$350
$400
$450
BILATERAL
TRADE
DEFICIT,
2018,
IN
BILLIONS
OF
U.S.
DOLLARS
SOURCE: White House Ofce of Trade and Manufacturing Policy,
The United States
Reciprocal Trade Act: Estimated Job & Trade Deficit Efects,
May 2019, p. 20, https://www.wsj.com/public/resources/documents/RTAReport.pdf?
mod=article_inline (accessed March 21, 2023).
A
heritage.org
against
tariff
differentials
for
eight
major U.S.
trading partners,
which account
for
47.6
percent
of
total
U.S. trade
and
88.6
percent of
the
U.S.
trade deficit
in
goods.
Figure 1 shows that the USRTA
priority list would include the countries in
red—Communist
China
and
India—along with
trading
partners
in
the
yellow
zone.
This
yellow
zone
includes
the European
Union,
which
features
a
very
high
deficit, along with
Thailand, Taiwan, and Vietnam, which feature particularly high
tariff differentials.
Table
4 estimates
the
improvement in
the U.S.
trade deficit
under Scenario
One, in
which partner
countries match
the U.S.
tariff rate
under pressure
from
2025
Presidential Transition
Project
TABLE
4
|
SCENARIO ONE:
PARTNER COUNTRIES MATCH
U.S.
TARIFF
RATE |
SCENARIO
TWO:
U.S.
MATCHES
PARTNER
TARIFF RATES |
|
Country |
Bilateral
Projected
Deficit
Change in
Reduction
Bilateral Trade
as
Share
of
Balance
2018
Bilateral
($
Billions)
Deficit |
Bilateral
Projected
Deficit
Change in
Reduction
Bilateral Trade
as
Share
of
Balance
2018
Bilateral
($
Billions)
Deficit |
|
India |
5.0
24% |
18.7 |
88% |
Taiwan |
1.0
6% |
9.2 |
59% |
Vietnam |
0.7
2% |
17.2 |
44% |
Thailand |
3.2
17% |
6.4 |
34% |
Communist
China |
18.5
4% |
70.6 |
17% |
European
Union |
8.0
5% |
25.3 |
15% |
Total |
35.4
4% |
45.6
5% |
SOURCE: White House Ofce of Trade and Manufacturing Policy,
The United States
Reciprocal Trade Act: Estimated Job & Trade Deficit Efects,
May 2029, p. 21, https://www.wsj.com/public/resources/documents/RTAReport.
pdf?mod=article_inline (accessed March 21, 2023).
A
heritage.org
the
American President,
and
then
under Scenario
Two, in
which the
U.S. matches the
tariffs of
partners that
refuse to
lower their
tariffs. Columns
2
and
4
in
Table 4,
when
the
USRTA is
applied first
to
Communist
China and
then to
the
EU,
show the
largest
absolute
dollar reductions
in bilateral trade deficits.
This results
in bilat- eral
deficit reductions in
Scenario One
of $18.5 billion
for China
and $8.0
billion for the EU.
In Scenario
Two, the
impacts for
Communist China
and the
EU are
substantially larger: $70.6
billion and
$25.3 billion,
respectively.
Note further that
the largest
relative
dollar reductions
in percent
terms come
from
applying
the
USRTA
first
to
India
and
then
to
Taiwan
and
Vietnam.
For
exam-
ple,
if
India
were
to
reduce
its
tariffs
to U.S.
levels,
as
in
Scenario
One,
this
would reduce
the bilateral trade deficit with India by 24 percent. If the
U.S. raised its tariffs
to
mirror
India’s
levels,
the
result
would
be
a
far
more
dramatic
88 percent
TABLE
5
China's
Acts, Policies,
and Practices of
Economic
Aggression |
Protect China's Home
Market
from
Competition and
Imports |
Expand China’s
Share of Global Markets |
Secure and Control
Core
Natural
Resources Globally |
Dominate Traditional
Manufacturing
Industries |
Acquire Key
Technologies
and IP from Other
Countries
and the U.S. |
Capture Emerging High-Tech
Industries
that Drive Future Growth and
Advancements
in Defense Industry |
Adverse
Administrative
Approvals and
Licensing
Processes |
% |
|
|
|
% |
% |
Anti-monopoly
Law
Extortion |
% |
% |
|
|
% |
% |
Bid-Rig
Foreign
Government
Procurement
Contracts |
|
% |
|
% |
|
% |
“Brand
Forcing” —
Forced Use of Chinese Brands |
% |
|
|
|
|
|
Burdensome
and
Intrusive
Testing |
% |
|
|
|
% |
% |
Chinese
Communist
Party
Co-
opts
Corporate Governance |
% |
|
|
|
% |
% |
Chinese
Nationals
as
Non-Traditional
Information
Collectors |
|
% |
|
% |
% |
% |
TABLE
5
China's
Acts, Policies,
and Practices of
Economic
Aggression |
Protect China's Home
Market
from
Competition and
Imports |
Expand China’s
Share of Global Markets |
Secure and Control
Core
Natural
Resources Globally |
Dominate Traditional
Manufacturing
Industries |
Acquire Key
Technologies
and IP from Other
Countries
and the U.S. |
Capture Emerging High-Tech
Industries
that Drive Future Growth and
Advancements
in Defense Industry |
Claim Sovereign Immunity on
U.S.
Soil
to
Prevent
Litigation |
|
% |
|
|
|
|
Consolidate State-
Owned
Enterprises
into
National
Champions |
% |
% |
% |
% |
% |
% |
Counterfeiting and
Piracy Steals
Intellectual
Property |
|
% |
|
|
% |
% |
Currency
Manipulation
and
Undervaluation |
% |
% |
|
% |
|
|
Cyber-Enabled
Espionage
and
Theft |
|
% |
|
% |
% |
% |
Data
Localization
Mandates |
% |
|
|
|
% |
% |
“Debt-Trap”
Financing to
Developing Countries |
|
|
% |
% |
|
|
TABLE
5
China's
Acts, Policies,
and Practices of
Economic
Aggression |
Protect China's Home
Market
from
Competition and
Imports |
Expand China’s
Share of Global Markets |
Secure and Control
Core
Natural
Resources Globally |
Dominate Traditional
Manufacturing
Industries |
Acquire Key
Technologies
and IP from Other
Countries
and the U.S. |
Capture Emerging High-Tech
Industries
that Drive Future Growth and
Advancements
in Defense Industry |
Delays
in
Regulatory
Approvals |
|
% |
|
% |
|
% |
Discriminatory
Catalogues
and
Lists |
% |
|
|
|
% |
% |
Discriminatory Patent
and Other
IP
Rights
Restrictions |
% |
% |
|
|
% |
% |
Dumping
Below
Cost
Into
Foreign
Markets |
|
% |
|
% |
|
% |
Evasion
of
U.S.
Export
Control Laws |
|
|
|
|
% |
% |
Expert Review Panels Force Disclosure of
Proprietary Information |
|
% |
|
|
% |
% |
Export
Restraints
Restrict
Access to
Raw
Materials |
% |
% |
% |
% |
|
% |
TABLE
5
China's
Acts, Policies,
and Practices of
Economic
Aggression |
Protect China's Home
Market
from
Competition and
Imports |
Expand China’s
Share of Global Markets |
Secure and Control
Core
Natural
Resources Globally |
Dominate Traditional
Manufacturing
Industries |
Acquire Key
Technologies
and IP from Other
Countries
and the U.S. |
Capture Emerging High-Tech
Industries
that Drive Future Growth and
Advancements
in Defense Industry |
Financial
Support
to
Boost
Exports and Promote Import
Substitution |
% |
% |
|
% |
|
% |
Forced
Research
and
Development
(“R&D
Localization”) |
|
|
|
|
% |
% |
Foreign Ownership
Restrictions
Force
Technology and
IP
Transfer |
|
% |
|
|
% |
% |
Government
Procurement
Restrictions |
% |
|
|
|
|
|
Indigenous
Technology
Standards |
% |
|
|
|
% |
% |
“Junk
Patent”
Lawsuits |
|
|
|
|
% |
|
Lack
of
Transparency |
% |
|
|
|
|
|
TABLE
5
China's
Acts, Policies,
and Practices of
Economic
Aggression |
Protect China's Home
Market
from
Competition and
Imports |
Expand China’s
Share of Global Markets |
Secure and Control
Core
Natural
Resources Globally |
Dominate Traditional
Manufacturing
Industries |
Acquire Key
Technologies
and IP from Other
Countries
and the U.S. |
Capture Emerging High-Tech
Industries
that Drive Future Growth and
Advancements
in Defense Industry |
Lax
and
Inconsistent
Labor
Laws |
% |
% |
|
% |
|
|
Monopsony
Purchasing
Power |
|
|
|
|
% |
% |
Move
the
Regulatory
Goalposts |
% |
|
|
|
% |
% |
Open
Source
Collection
of
Science and Technology
Information |
|
|
|
|
% |
% |
Overcapacity
Drives
Out Foreign Rivals |
|
% |
|
% |
|
% |
Physical Theft of
Technologies
and
IP
Through
Economic
Espionage |
|
% |
|
% |
% |
% |
Placement
of
Chinese
Employees
with
Foreign Joint Ventures |
% |
|
|
|
|
|
Price
Controls
to
Restrict
Imports |
% |
|
|
|
|
|
TABLE
5
China's
Acts, Policies,
and Practices of
Economic
Aggression |
Protect China's Home
Market
from
Competition and
Imports |
Expand China’s
Share of Global Markets |
Secure and Control
Core
Natural
Resources Globally |
Dominate Traditional
Manufacturing
Industries |
Acquire Key
Technologies
and IP from Other
Countries
and the U.S. |
Capture Emerging High-Tech
Industries
that Drive Future Growth and
Advancements
in Defense Industry |
“Product
Hop”
and “Country
Hop” to
Evade
Antidumping
and
Countervailing Duties |
|
% |
|
% |
|
|
Promise
Cooperation
on
Regional
Security
Issues
as Bargaining Chip |
% |
% |
|
% |
|
|
Quotas
and
Tariff-Rate
Quotas |
% |
|
|
|
|
|
Recruitment
of
Science,
Technology,
Business, and Finance Talent |
|
% |
|
% |
|
% |
Retaliation and
Retaliatory Threats |
|
% |
|
% |
% |
% |
Reverse
Engineering |
|
|
|
|
% |
% |
TABLE
5
China's
Acts, Policies,
and Practices of
Economic
Aggression |
Protect China's Home
Market
from
Competition and
Imports |
Expand China’s
Share of Global Markets |
Secure and Control
Core
Natural
Resources Globally |
Dominate Traditional
Manufacturing
Industries |
Acquire Key
Technologies
and IP from Other
Countries
and the U.S. |
Capture Emerging High-Tech
Industries
that Drive Future Growth and
Advancements
in Defense Industry |
Sanitary
and
Phytosanitary
Standards
Raise Non- Tariff
Barriers |
% |
|
|
|
% |
% |
Secure
and
Controllable
Technology
Standards |
% |
|
|
|
% |
% |
Security Reviews Force
Technology
and
IP
Transfer |
% |
|
|
|
% |
|
Structuring Transactions to
Avoid
CFIUS
Review
of
Chinese
Investment in the U.S. |
|
|
|
|
% |
% |
Subsidized
Factor
Inputs
— Capital,
Energy, Utilities, and Land |
|
|
|
|
% |
% |
Tariffs |
% |
|
|
|
|
|
TABLE
5
China's
Acts, Policies,
and Practices of
Economic
Aggression |
Protect China's Home
Market
from
Competition and
Imports |
Expand China’s
Share of Global Markets |
Secure and Control
Core
Natural
Resources Globally |
Dominate Traditional
Manufacturing
Industries |
Acquire Key
Technologies
and IP from Other
Countries
and the U.S. |
Capture Emerging High-Tech
Industries
that Drive Future Growth and
Advancements
in Defense Industry |
Technology-Seeking,
State-Directed
Foreign
Direct
Investment |
|
% |
|
|
% |
% |
Traditional
Spycraft |
|
|
|
% |
% |
% |
Transship
to
Evade
Antidumping
and Countervailing Duties |
|
% |
|
|
|
|
Value-Added
Tax
Adjustments
and
Rebates Subsidize Chinese
Exports |
|
% |
|
% |
|
|
Weak
and
Laxly
Enforced
Environmental
Laws |
|
% |
|
% |
|
|
SOURCE:
White House Ofce of Trade and Manufacturing Policy,
How China’s Economic
Aggression Threatens the Technologies
and
Intellectual Property of the United States and the World, June 2018,
https://trumpwhitehouse.archives.gov/wp-content/
uploads/2018/06/FINAL-China-Technology-Report-6.18.18-PDF.pdf
(accessed
March
21,
2023).
A
heritage.org
Mandate for
Leadership: The Conservative
Promise
reduction in
the U.S. bilateral trade deficit with India. Similarly, if
Taiwan were to
reduce
its
tariffs
to
U.S.
levels, the
size of
the
U.S.
bilateral trade
deficit with
Taiwan
would fall by 6 percent. If the U.S. imposed a mirror tariff, its
bilateral trade deficit with
Taiwan would
fall by
59 percent.
These results again underscore the
high degree of unfair, unbalanced, and nonreciprocal
trade that
currently
exists between
the U.S.
and much
of the
rest of the
world, which
penalizes
American farmers,
ranchers,
manufacturers, and
workers
because
of
the
WTO-MFN
conundrum.
These
simulations
also
demon- strate
that
implementation of
the
USRTA
most
likely
would
substantially
reduce the
U.S. trade
deficit while
creating
hundreds of
thousands of
new jobs.
These benefits
notwithstanding,
however, the
U.S. would
still face
a substantial over- all trade deficit and substantial bilateral trade deficits
with many of its major trading
partners.
Why
might
this
be
so?
Because under
WTO
rules,
America still
faces numerous
nonreciprocal
nontariff barriers
around the
world. For
example, one
of
America’s largest
trading partners,
Japan, runs
a
significant
bilateral trade
surplus in
goods
with
the
U.S.—more
than $70
billion a
year. While
Japan has
relatively low
tariffs, it ranks
high on
the
nontariff
barrier scale.
In
such
cases, which
are
numerous,
pas- sage of
the
USRTA
would likely
also be
very helpful
in
reducing
nontariff barriers.
This
is because
under the
powers
provided by
the USRTA,
if a
foreign
country imposes
significantly
higher
nontariff
barriers,
then
the
President
has
the
authority to
“negotiate
and
seek
to
enter
into
an
agreement”
that “commits
the
country
to… eliminate
[its]
nontariff barriers.”16 If the country
refuses to
come to
the negoti-
ating
table
and
lower
its
nontariff
barriers,
the
President
has
the
authority
to
levy
reciprocal
duties
to
offset
or
mirror
those
barriers.
In
summary, passage
of
the
USRTA would
go
a
long way
toward leveling
the
playing
field for
American
farmers,
ranchers,
manufacturers, and
workers
who
are
now
forced
to
compete
in
an
intrinsically
unfair,
unbalanced,
and
nonreciprocal
WTO-MFN system.
Nor
is
the
USRTA necessarily
the
only
possible legislative
way
to
address this issue.
In
2017,
then-House Speaker
Paul Ryan
(R–WI) and
then-House Ways
and Means Committee
Chairman Kevin Brady (R–TX) proposed a “border adjust-
ment tax.” The proposed border adjustment would have eliminated the
ability of corporations
to deduct
the cost
of imports
while
eliminating the
tax on
income attributable
to exports.
This border
adjustment tax would
have shifted
the U.S.
corporate income
tax
from
an
origin-based
tax
applying
to
the
production
of
goods and
services in
the United States
to a
destination-based tax applying
to the
con- sumption of goods
and services
in the
U.S.
This
tax—strongly opposed
by
American
multinational
corporations
and
big-
box
retailers—not
only would
have leveled
the
playing
field with
respect to
WTO rules, but
also would
have provided
an
innovative
alternative to
the
application
of
2025 Presidential
Transition Project
tariffs.17
A
conservative
Administration
might
do
well
to
look
at
such
a
tax
as
part
of its trade agenda.
CHALLENGE #2: COMMUNIST CHINA’S ECONOMIC AGGRESSION AND
QUEST FOR WORLD DOMINATION18
Among
all
of
its
bilateral
trade relationships,
America’s relationship
with Com-
munist
China is
the
most
fraught with
difficulty. The
problem is
not
just
that the
relentlessly
mercantilist
and
protectionist
trade policies
that China
has
pursued
ever since its accession to
the WTO in 2001 have led to chronic, massive, and ever-expanding
trade
deficits. Communist China’s
economic
aggression in
the traditional trade
policy space is further facilitated by equally aggressive
industrial policies
and technology
transfer–forcing policies that
are designed
to shift
the world’s
manufacturing
and
supply
chains
to
Communist
Chinese
soil.
The
Chinese Communist
Party’s policy
goal is
to
propel
the
Chinese
economy, but
its broader
goal is
to strengthen
Communist China’s defense
industrial base and associated
warfighting capabilities. That China unabashedly seeks to
supplant America
as
the
world’s
dominant
economic
and
military
power
is
not
in
dispute.
Rather, it is a prominent
feature of Communist Chinese dictator Xi Jinping’s rhet- oric.
Xi
has
promised
that
the
deed
will
be
done
by
2049,
the
100-year
anniversary of
the Communist takeover
of the
Mainland.19
In
light of
Communist
China’s broader
geopolitical
and military
agenda, the
American President
who takes
office in
January 2025
must view
the U.S.–China
trade
relationship and
associated
policy
reforms
within
the
context
of
the
broader existential
threat
posed
by
Communist
China. The
question
is
whether
that
next President
should
seek
to
decouple
economically
and
financially
from
Communist China
as
America’s
first best
response
to
China’s
unrelenting
aggression
or
con- tinue
efforts to
negotiate with
an
authoritarian country and
brutal
dictatorship with
a well-established
reputation
for
failing
to
abide
by
any
agreements
it
enters.
Institutionalized Aggression.
Table 5 depicts more than 50 types
of policy aggression
institutionalized by the CCP across six different categories of
such aggression. Viewed as whole, the extent of Communist
China’s aggression is
breathtaking.
At the trade
policy level,
Communist
China relies
heavily on
a wide
range of
mercantilist
and
protectionist
tools
to
protect
its
own
markets
and
unfairly
exploit foreign
markets. These instruments of Communist Chinese trade aggression
include high tariffs and
nontariff
barriers, currency
manipulation, a heavy
reli- ance
on
sweatshop
labor
and
pollution
havens,
the
dumping
of
unfairly
subsidized
exports,
and
widespread
counterfeiting
and
piracy:
Communist
China
is
the
world’s largest
source of
counterfeit
and pirated
products.
In
addition, Communist
Chinese enterprises
benefit from
preferential policies
that
have burdened
world
markets
with subsidized
overcapacity. The
resultant glut
Mandate for
Leadership: The Conservative
Promise
of
Communist
Chinese exports
in
turn
depresses world
prices and
pushes foreign
rivals
out
of
the
global market—steel
is
a
major example.20 Industrial
policy
tools that further reinforce Communist
China’s mercantilist and protectionist trade
policies
include
numerous
direct and
indirect
subsidies
to
boost
exports
and
the
consolidation of
heavily
subsidized
state-owned
enterprises
into
“national
champi- ons”
that
can
compete
with foreign
companies
in
both
domestic
and
global
markets.
Communist
China
also
uses
a
predatory
“debt
trap”
model
of
economic
develop- ment
aid
that
proffers
substantial
financing
to
developing
countries
in
exchange
for their
willingness
to
mortgage
their natural
resources
and
allow
Communist
China
access
to
their
markets.
The practical
effect
of
this
debt
trap
model
is
to
give
Com- munist
China
a
competitive edge
internationally
that
stems
from
its
preferential
access to
relatively
lower-cost
commodities
needed
in
the
manufacturing
process.
These
commodities range
from bauxite,
copper, and
nickel to
rarer commodities
such
as beryllium, titanium, and
rare earth
minerals.
As
a
complement
to
this
debt trap
gambit and
to
exploit
its
commanding
share of a wide range
of critical raw materials that are essential to the global
supply chain
and
production
of high-technology
and
high-value-added
products,
Com- munist China
strategically uses protectionist export restraints, including
export quotas
and export
duties. These
export
restraints thereby restrict
access to
raw materials such as rare earth, tungsten, and
molybdenum that are essential in
the
high-technology production
space.
The
result
is
to
drive
up
world
prices
and thereby
put pressure
on American
and other
foreign
downstream producers
to move their
operations,
technologies, and jobs
to Communist
China.
American industries
that
have
been
affected
by
Communist
China’s
export
restraints
range from
steel,
chemicals,
and electric
cars
to
wind
turbines,
lasers,
semiconductors,
and refrigerants.
Technology-Forcing
Policies.
Table
6, extracted
from the
White House
Office of Trade and Manufacturing Policy’s report on
Communist China’s economic
aggression,21 provides
a
summary
of
the
various policies
the
Chinese
Communist
Party
uses
to
force the
transfer of
the
West’s
technologies to
Communist Chinese
soil.
Formally,
Communist Chinese
industrial policy
seeks to
promote the
“diges- tion,
absorption,
and
re-innovation”
of
technologies
and
intellectual
property (IP)
from around the world.22
As
noted in
Table 6,
this policy
is
carried
out, for
example, through
state-spon- sored IP
theft—coercive and intrusive regulatory gambits to force
technology transfer,
typically
in
exchange
for
limited
access
to
the
Chinese
market.
Commu-
nist China’s looting of
American technology is further enhanced by “information
harvesting”
conducted
by Communist
Chinese
nationals
who
infiltrate
U.S.
uni- versities,
national
laboratories,
and
other
centers
of
innovation.
Strategic
sectors targeted
by
Communist
Chinese economic
espionage
have
included
electronics,
telecommunications, robotics, data services, pharmaceuticals,
mobile phone
2025 Presidential
Transition Project
services,
satellite communications
and
imagery,
and
business
application software.
It
has
been estimated
that the
theft of
trade secrets
alone costs
the
U.S.
“between
$180
billion
and
$540
billion” annually.23
Closely
related to
Communist China’s
espionage campaigns
are
its
state-backed
efforts to
evade U.S.
export control
laws. These
laws are
designed to
prevent the
export of
sensitive technologies with military applications.24 However,
a significant
problem
facing agencies
like the
Departments of
Commerce, Defense,
and
State
is
the
growth of
“dual-use” technologies,
which have
both military
and
civilian
utility. For
example,
airplane
engine
technologies have
an
obvious
commercial
application. When
acquired
by
a
strategic
economic
and
military
competitor
like
Communist
China,
however, such
commercial
items can
quickly
wind
up
propelling
the
aircraft of the
People’s Liberation Army.
As
an
example
of
Communist
China’s coercive
and
intrusive
regulatory gambits
to force the
transfer of foreign technologies and IP to Chinese competitors,
foreign companies often must
enter into joint ventures or partnerships with minority
stakes in exchange for access
to the Chinese market. Once a U.S. or foreign company
is coerced
into entering
a joint
venture with
a Chinese partner,
the door
is open
to
the transfer
of
technology
and
IP.
Similarly,
a
relentlessly
coercive
Communist
China has
forced
American
patent
and
technology
holders
to
accept
below-market
royalty rates
in
licensing
and
other
forms
of
below-market
compensation
for
their
technologies—and the
American
government
has
done
little
or
nothing
about
it.
Information Harvesting.
Every year, more than 300,000 Communist Chi- nese
nationals
attend U.S.
universities
or are
hired at
U.S. national
laboratories,
innovation
centers,
incubators,
and
think
tanks.
To
put
this
in
perspective,
accord- ing
to the Chinese
Ministry of
Education, only
20,000 American
nationals were
studying
abroad at
Chinese
universities
on
the
mainland
in
2018.25 These
Chinese
nationals—often
members (or
the
sons
and
daughters
of
members)
of
the
Chinese
Communist Party—now account for approximately one-third of foreign
university and
college
students in
the
United
States and
about 25
percent of
graduate students
specializing
in
science,
technology, engineering,
or
math
(STEM).26 As
a
Defense Innovation Unit
Experimental (DIUx) report has warned:
Academia is
an opportune
environment for learning
about science
and technology
since the
cultural
values
of
U.S.
educational
institutions
reflect
an
open
and
free
exchange
of ideas.
As
a
result,
Chinese
science
and
engineering
students frequently
master
technologies that
later become
critical to
key military
systems, amounting over time
to
unintentional
violations of U.S. export
control laws.27
State-backed Chinese enterprises
also increasingly finance joint research
programs
and
the
construction of
new
research
facilities
on
U.S.
campuses.
For
Mandate for
Leadership: The Conservative
Promise
example,
Huawei, well-known
within the
American intelligence
community as
an instrument
of Chinese
military
espionage, has
partnered with
the University of California–Berkeley
on
research
that
focuses
on
artificial
intelligence
and
related areas
such as
deep learning, reinforcement
learning, machine
learning,
natural language
processing,
and
computer
vision,
all
of
which
have
important
future
mil-
itary
applications.28 In
this
way,
UC–Berkeley, whether
unwittingly or
wittingly, helps
to
boost Communist
China’s capabilities
and
quest
for
military
dominance. Communist
Chinese state actors are also strategically building research
cen- ters
in
innovation
centers and
hubs
like
Silicon
Valley
and
Boston.
Such
American
research has
accelerated Communist China’s
development of hypersonic
glide vehicles, which travel at speeds in excess of Mach
5 and are aimed at evading
modern
ballistic
missile
defense
systems
while
they
deliver
their
nuclear
weapons.
Technology-Seeking,
State-Financed
Foreign
Direct
Investment
(FDI).
If
American
entrepreneurs
build
it,
Communist
Chinese investors
will come.
And come they
have in
droves. In
the
words
of
the
United States
Trade Representative:
The Chinese
government directs and
unfairly
facilitates the
systematic investment
in, and
acquisition of, U.S.
companies and
assets by
Chinese companies, to
obtain
cutting-edge
technologies
and
intellectual
property
and generate
large-scale technology transfer
in industries
deemed
important by state
industrial plans.29
Communist Chinese buyers have
included most prominently state-owned enterprises, private
Chinese companies with interlocking ties to the Commu-
nist
Chinese
state,
and
state-backed sovereign
wealth
funds.
These
agents
of
the Communist
Chinese
government push
their foreign
direct
investment through
vehicles that include mergers
and acquisitions, seed and venture capital financing, and
greenfield investing,
particularly in
strategically
targeted
high-technology industries.
Since
2012,
CB
Insights
has
catalogued
more
than
600
high-technology
investments
in
the
United
States
worth
close
to
$20
billion—with
artificial
intelli-
gence, augmented and virtual
reality, and robotics receiving a particular focus—by
Communist China–based investors.30
All
of
these
behaviors raise
the
question
of
whether
Communist Chinese
nation-
als
should
be
granted
visas to
penetrate our
universities,
think
tanks, and
research institutions and whether Communist Chinese
capital should be allowed to invest
in
America’s cutting-edge
technology firms.
Policy Responses
to Communist
Chinese
Aggression. It should be
clear from
this
review
that Communist
China’s
economic
aggression
is both
widespread
and
systemic.
The CCP’s
self-proclaimed
goal
is
to
supplant
the
U.S.
as
the
world’s dominant
economic and military superpower. The question: How should the
next American
President
address
this
aggression?
Policy
responses
range
from
further
2025 Presidential
Transition Project
attempts
to
negotiate
with the
CCP
to
strategically
decoupling
economically and
financially from Communist China.
The Fruitlessness
of Further
Negotiations. If the past
is prologue,
and as
we learned during the Trump
Administration, any further negotiations with Com- munist China are
likely to
be both fruitless
and dangerous:
fruitless because the CCP
now has
a very
well-established reputation for
bargaining in bad
faith and
dangerous
because
as
long
as
the
CCP’s
aggression
continues,
it
will
further
weaken
America’s
manufacturing
and
defense
industrial
base
and
global
supply
chains.
The record regarding Communist
China’s bad-faith negotiating is clear. In September 2015,
President Barack Obama stood with Xi Jinping in the White House
Rose Garden where Xi solemnly promised not to militarize the
South China Sea and agreed that Communist China would not
conduct knowingly cyber-enabled theft of intellectual property.31 Within a year, the first
promise would be
broken.32
As
for Communist
China’s
cyberattacks on
American busi-
nesses, they have never stopped.
Upon taking office
in 2017,
President Trump put
on hold
his 2016
campaign promise to put high tariffs on Chinese products immediately. Instead, as
a gesture of
good
faith,
he
sought
to
negotiate
a comprehensive
trade
agreement
with
China that
would have
addressed many
of the issues
raised in
this
discussion.
By
the
middle
of
2018,
it
was
clear that
the
CCP
had
no
intention of
bargaining in
good
faith. As
a
result,
on
June
15,
President
Trump began
to
impose
a
series
of tariffs33 on Chinese products
that would
eventually rise to
cover more
than $500
billion of
Chinese
imports.
These
tariffs
would
lead
Communist
China’s
lead
nego- tiator,
Vice Premier
Liu He,
to agree
tentatively in April
of 2019
to what
would have
been
the
most
comprehensive
trade
deal
in
global
history.34
On
May
3,
2019,
however,
Liu
would
renege on
that 150-page
deal and
seek its
drastic re-trading.35 Finally,
on January
15, 2020,
the U.S.
and Communist
China signed
a “Phase
One”
deal
that
was
a
pale
shadow
of
the
original
deal.36 This
so-called
Skinny Deal
(as
it
was
derisively
and
rightly
called) combined
proposed modest
Communist Chinese
reforms on
issues related
to forced
technology transfer and
intellectual property
theft
with
promises
of large-scale
purchases
of
agricultural,
manufactur-
ing, and
energy
products.
To
date,
this
deal
has
been
a
predictable
bust:
Communist China
has failed
to consummate
a significant
fraction of
its promised purchases
and
has
made
little
or
no
progress
on reforming
its
mercantilist,
protectionist,
and
technology
transfer–forcing
policies.
The
clear lesson
learned in
both the
Obama and
Trump Administrations
is
that
Communist
China will
never
bargain in
good faith
with the
U.S. to
stop its
aggres-
sion.
An
equally
clear lesson
learned by
President Trump,
which he
was
ready
to implement
in a
second term,
was that
the better
policy option
was to
decouple both
economically
and
financially
from
Communist
China
as
further
negotiations
would indeed
be both
fruitless and
dangerous.
Mandate
for Leadership:
The
Conservative
Promise
TABLE
6
1.
Physical Theft
and
Cyber-Enabled Theft
of
Technologies and
IP
•
Physical
Theft
of
Technologies
and
IP
Through
Economic
Espionage
•
Cyber-Enabled
Espionage
and
Theft
•
Evasion
of
U.S.
Export
Control
Laws
•
Counterfeiting
and
Piracy
•
Reverse
Engineering
2.
Coercive
and
Intrusive
Regulatory
Gambits
•
Foreign
Ownership
Restrictions
•
Adverse
Administrative
Approvals
and
Licensing
Requirements
•
Discriminatory
Patent
and
Other
IP
Rights
Restrictions
•
Security
Reviews
Force
Technology
and
IP
Transfers
•
Secure
and
Controllable
Technology
Standards
•
Data
Localization
Mandates
•
Burdensome
and
Intrusive
Testing
•
Discriminatory
Catalogues
and
Lists
•
Government
Procurement
Restrictions
•
Indigenous
Technology
Standards
that
Deviate
from
International
Norms
•
Forced
Research
and
Development
•
Antimonopoly
Law
Extortion
•
Expert
Review
Panels
Force
Disclosure
of
Proprietary
Information
•
Chinese
Communist
Party
Co-opts
Corporate
Governance
•
Placement
of
Chinese
Employees
with
Foreign
Joint
Ventures
3.
Economic
Coercion
•
Export
Restraints
Restrict
Access
to
Raw
Materials
•
Monopsony
Purchasing
Power
4.
Information
Harvesting
•
Open-Source
Collection
of
Science
and
Technology
Information
•
Chinese
Nationals
in
U.S.
as
Non-Traditional
Information
Collectors
•
Recruitment
of Science, Technology, Business, and
Finance Talent
5.
State-Sponsored,
Technology-Seeking
Investment
•
Chinese
State
Actors
Involved
in
Technology-Seeking
FDI
•
Chinese
Investment
Vehicles
Used
to
Acquire
and
Transfer
U.S.
Technologies
and
IP
–
Mergers
and
Acquisitions
–
Greenfield Investments
–
Seed
and
Venture
Funding
SOURCE:
White House
Ofce of
Trade and
Manufacturing
Policy,
How China’s Economic
Aggression Threatens the
Technologies and Intellectual Property of the United States
and the World, June 2018, https://trumpwhitehouse.
archives.gov/wp-content/uploads/2018/06/FINAL-China-Technology-Report-6.18.18-PDF.pdf
(accessed March
21,
2023).
A
heritage.org
2025
Presidential Transition
Project
The following policy
options were
on the drawing
board or
in discussion
as preparations for a
potential Trump second term were being made. These options
span
the
spectrum
from purely
trade-related
like
increasing
tariffs
to
cutting
off Communist
China’s
access
to
American
financial
markets,
research
institutions,
and consumers. The next
American President should strongly consider adopting all
of them as a package:
•
Strategically
expand
tariffs
to
all
Chinese
products
and
increase
tariff
rates
to levels
that will
block out
“Made in
China”
products, and
execute this
strategy in a
manner and
at a pace
that will
not expose
the U.S.
to lack
of access to essential
products like
key
pharmaceuticals.
•
Provide significant
financial and tax incentives to American companies that
are seeking
to onshore
production from Communist
China to
U.S. soil.
•
Stop
Communist
China’s
abuse
of
the
so-called
de
minimis
exemption, which
allows
it
to
evade
the
tariffs
for
products
valued
at
less
than
$800.
•
Prohibit Communist
Chinese state-owned enterprises from bidding on U.S. government
procurement contracts (for example, contracts for subway and
other
transportation systems).
•
Prohibit the
use
of Communist
Chinese–made
drones in
American
airspace.
•
Ban
all
Chinese
social
media
apps
such
as
TikTok
and
WeChat,
which
pose significant
national security risks and expose American consumers to data
and identity theft.
•
Prohibit all
Communist
Chinese investment
in
high-technology industries.
•
Prohibit U.S.
pension
funds from
investing
in Communist
Chinese
stocks.
•
Delist
any
Communist
Chinese
stocks
that
do
not
meet
Public
Company
Accounting Oversight
Board standards
or,
alternatively, close
off the
Chinese
“A
shares”
stock
market
to
U.S.
investment
and
deregister
U.S.-
sanctioned Communist Chinese companies.
•
Prohibit
the
use
of
Hong
Kong
clearinghouses
as
transit
points
for
American
capital investing in the Chinese mainland.
•
Prohibit the
inclusion
of Chinese
sovereign
bonds in
U.S.
investors’ portfolios.
Mandate
for Leadership:
The
Conservative
Promise
•
Systematically
reduce
and
eventually
eliminate
any
U.S.
dependence
on
Communist
Chinese
supply
chains
that
may
be
used
to
threaten
national
security
such as medicines, silicon
chips, rare
earth minerals,
computer motherboards,
flatscreen displays, and
military
components.
•
Sanction
any
companies,
including
American
companies
like
Apple,
that
facilitate Communist
China’s use
of its
Great Firewall
surveillance and censorship
capabilities.
•
Order
the Department
of Homeland
Security (DHS)
and Department of Justice to
contract with
U.S.-owned and
U.S.-operated
artificial intelligence companies that
are capable of detecting, identifying, and disrupting both the
domestic
groups’ and
CCP
influencers’
social
media
operations
and
funding streams
using public
information as
a rapidly
available
offensive measure.
•
Reinvigorate
and
expand
the
DHS
crackdown
on
the
CCP’s
use
of
e-sellers
(including third-party sellers) and
the shippers
and operators
of major
warehouses such
as
Amazon,
eBay,
and
Alibaba
to
flood
U.S.
markets
with
counterfeit and pirated goods.
•
Compel
the
closure
of
all
Confucius
Institutes
in
the
U.S.,
which
serve
as
propaganda arms
of the
CCP.
•
Significantly
reduce
or
eliminate
the
issuance
of
visas
to
Chinese
students
or
researchers to
prevent
espionage and information
harvesting.
•
Hold
the
CCP
accountable
for
the
COVID-19
virus,
which
almost
certainly
originated as
a genetically engineered virus
from the
Wuhan
Institute of
Virology,
and do
so
through
the
establishment
of
a
presidential
commission or
select
congressional committee that
would
investigate the
origins of
the
virus; its
various costs,
both
economically and in
human life;
and the
possible means
of
collecting
damages
from
the
CCP,
which
are
likely
to
rise to the
trillions of dollars.
If
the
new
U.S. President
wishes to
defend this
country against
the
serious
exis- tential
threat posed
by Communist China, that
President will adopt
all of
these proposals through the
requisite
presidential executive
orders or
memoranda.
Effective
Trade Policy in the Real World.
To conclude this analysis, it is
useful
to
offer
brief
reflections
on
a
number
of
key
obstacles
to
implementing
the policy
initiatives recommended in
this chapter.
These
obstacles include:
2025
Presidential Transition
Project
•
The
dogma of
the Ricardian
free-trade
model, which
has been
used as
propaganda
to
thwart
the
adoption
of
measures
that
seek
to
level
the
global
trading field
for
American
manufacturers,
farmers,
ranchers,
and
workers;
•
The
politics
of
trade
policy,
which
has
led
to
a
great
divide
that
makes
trade
policy reforms difficult to implement;
•
The
economics
of
trade
deficits,
which
are
not
adequately
understood
either
by the
American public
or by
the
policymaking intelligentsia; and
•
The
crucial
role
of
supportive
White
House
and
Administration
personnel
in implementing effective trade policies.
The Dogma of
Free Trade. Clearly, the
fair and balanced trade orientation
of
this
chapter
runs
starkly
against
the
free
trade
grain
of
the
globalist
Ricardian
orthodoxy, which
is predicated
on the
theory that
free trade
represents the
best path
by which
to
achieve
both
American
and
global
prosperity.
This
orthodoxy is
based on the ivory tower academic conclusion that if countries
trade freely among each
other,
each
will
pursue
its
own
comparative
advantages;
production will
be most efficient around the world; the economic pie will be
bigger both for the globe and for each free trading country; and
(so long as workers who lose
their jobs are
fairly
compensated from
the gains
from trade)
everyone will
be better off.
The
most obvious
problem with
this orthodoxy
(there are
many more)
is
that
nowhere is Ricardian free
trade mirrored in the real world. Instead, America
trades
in
a
world
where
the
WTO’s
MFN
rules
are
stacked
against
us,
scofflaws
like Communist
China
run
roughshod
over
what
meager
WTO
rules
there
are,
and
the
United
States
among
all
of
the
world’s
developed
nations
is
the
biggest
victim of the
free trade Ricardian orthodoxy.
During
his first
term,
President Donald
Trump preached
that there
can be
no free
trade without
fair,
reciprocal,
and
balanced
trade.
He
was
right
then,
and
who-
ever
is
the
next
President
in 2025
should
heed
this
critical
principle
whenever
the flag
of free
trade is
waved to
prevent the
adoption of
needed reforms.
The Politics
of Trade Policy: Who Benefits?
Today, there is a great divide
among
Americans
that
stands
in
the
way
of
constructive
trade
policy
reforms.
This great
divide is
certainly not
about a
partisan
desire for
low taxes
and a reduced regulatory
burden.
Rather,
it
is
over
whether
our
borders
should
be
open
or
secure
and whether
it
is
prudent
to
offshore
our
manufacturing
and
defense
industrial base
and associated supply chains.
Those
who
support
secure borders
and
seek
to
onshore
more of
American pro-
duction
and
supply
chains do
so
to
boost the
real wages
of
American
workers and
to
Mandate for
Leadership: The Conservative
Promise
enhance
our
national
security. Some
Americans historically
have supported
open
borders
and
offshoring
under the
flag of
the
Ricardian
trade model,
which assumes
the
free
flow of
both labor
and
capital.
Yet
it
is
equally
true that
open borders
and
offshoring
also help
American
multinational
corporations
to maximize
their
profits by
minimizing
their labor
and
environmental
protection costs.
In
particular, an
open border
policy, which
allows for
the
unlimited
migration of
cheap
labor,
depresses American
wage rates
and
thereby
boosts corporate
profits. At
the same
time,
offshoring gives
American
corporations readier
access to
the sweatshops
and pollution
havens
of
Asia
and
Latin
America.
Our
skies
and
water
may be cleaner, and our
products may be cheaper, Main Street manufacturers and
workers bear the brunt of these policies.
The obvious
political problem in adopting many of the policies proposed here
is
that
they will
be
opposed
by
the
special-interest
groups
that benefit
from open
borders
and
offshoring
and
that
contribute lavishly
to
both
political parties.
These
special-interest
groups
range from
the
hedge
funds of
Wall Street
and
tech
entre- preneurs
of Silicon
Valley to
big-box
retailers that
stuff their
aisles
particularly with
cheap “Made in
China” goods.
YES,
TRADE DEFICITS
MATTER
[O]ur country has been
behaving like an extraordinarily rich family that
possesses an immense farm. In order to
consume 4% more than we produce—
that’s
the trade
deficit—we have, day
by day,
been both
selling pieces
of the farm
and increasing the mortgage on what we still own.
Warren Buffett37
Historically,
one line of attack against attempts to implement fair trade
policies
in
the
name of
reducing America’s
massive and
chronic trade
deficit has
been the claim
that “trade
deficits don’t
matter.” The
intellectual tip
of
this
spear has
often been think
tanks that
generate reams
of
analyses
in
support
of
a
purely free
trade (and open
borders) American
posture.38 Yet
both
common sense
and
several
very good
reasons tell
us that
trade deficits
matter a
great deal.
Economic
Security.
The
economic
security argument
that trade
deficits matter begins
with the
observation that
growth in
any
country’s
real,
inflation-adjusted gross
domestic
product (GDP)
depends on
only four
factors: consumption,
gov- ernment spending,
business investment,
and
net
exports (the
difference between
exports
and
imports).
Reducing a
trade deficit
through implementation
of
the
U.S.
Reciprocal
Trade
Act,
the
application
of
tariffs,
or
renegotiating
a
bad
trade deal
like NAFTA all
represent ways to increase net exports—and thereby boost the
rate of economic growth.
2025
Presidential Transition
Project
Suppose,
for
example,
that under
the
USRTA
the
American
President persuaded
India
to
reduce its
very high
protectionist
tariffs
and
Japan
to
lower
its
formidable
nontariff
barriers. America
would surely
sell more
Florida oranges,
Washington
apples, California wine, Wisconsin cheese, and Harley-Davidson
motorcycles. The resultant fall
in
the
trade deficit
would increase
America’s GDP,
and
the
real wages
of
blue-collar
America would
rise from
Seattle and
Orlando to
Sonoma and
Mil- waukee. But that’s
not all.
Consider,
too, the
investment term in
the GDP
growth
equation. When
U.S. companies offshore their production to chase cheap
labor or manufacture in a
“pollution
haven” country
like
Communist
China
or
India
with
lax
environmental
regulations, the result is reduced nonresidential fixed
investment—and a GDP growth rate
that
is
lower
than
it
would
be
otherwise.
Moreover,
if
such
offshored
production results in more
foreign exports to the U.S.—for example, an American
consumer
buys
a
Made
in
Mexico
Dodge
Journey
or
Chevrolet
Trax rather
than
a vehicle
assembled in
Detroit—the
trade deficit
rises along
with the
fall in
invest- ment, further reducing GDP growth.
National Security. The
national security argument that trade deficits matter
begins with America’s national-income accounting double-entry system and
this accounting identity: Any deficit in the current
account caused by imbalanced trade
must be
offset by
a surplus
in the capital account,
meaning
foreign invest- ment
in the U.S.
In the short term, this
balance-of-payments equilibrium may indeed “not matter” as
foreigners return our trade-deficit dollars to American shores
by seemingly benignly
investing in
U.S. government
bonds and
stocks. Of
course, this
infusion of
foreign
capital lowers
American
mortgage rates
and keeps
the stock
market
bullishly
capitalized,
which
appears
to
be
all
to
the
good.
Over
time, however,
running large
and persistent trade deficits
leads to
a massive
transfer of
American
wealth
offshore
into
foreign
hands.
This
wealth
transfer
happens
as foreigners
use their
export dollars
to buy
American real
estate,
companies, and financial assets
like the
aforementioned stocks and
government bonds.
The American investor
Warren Buffett
has referred
to such
wealth
transfers offshore as
“conquest
by
purchase.”
To
Buffett,
the
big
danger
is
that
foreigners
will eventually
own
so
many
U.S.
government
bonds
that
Americans
will
wind
up working
longer hours
just to
survive and
service that
foreign debt.
There
is
an
even bigger
national security
danger, however,
that Mr.
Buffett has missed:
an
alternative
conquest-by-purchase
scenario.
Suppose, for
example, that
one of the
biggest holders of U.S. dollars is a rapidly militarizing
strategic rival like
Communist
China that
is
intent
on
world
hegemony. By
buying up
America’s com-
panies,
technologies,
farmland,
food producers,
and
key
elements of
the
domestic
supply
chain,
Communist China can
thereby gain
more and
more control
of the
U.S.
manufacturing
and
defense-industrial
base.
Mandate for
Leadership: The Conservative
Promise
In
this
scenario,
might
America
thereby lose
a
broader
war
for
America’s
freedom and
prosperity,
not
by
shots
fired
but
by
American
cash
registers
ringing
up
“Made
in China” products? Might
America even lose a broader hot war because it sent its defense
industrial base abroad on the wings of a persistent trade
deficit? It follows that for
both
economic
and
national
security
reasons, trade
deficits
do
indeed
matter. It
is
therefore
of
critical
importance
that
we
bring
America’s
global
trade
back
into
balance
through
free,
fair, balanced,
and
reciprocal
trade
and that
we
do
so
through
the kind
of
policy
initiatives
and
reforms
recommended
in
this
chapter.
PERSONNEL
IS TRADE
POLICY
Having
a
clear
set
of
trade and
industrial policies
to
achieve
one’s economic
and national
security
goals, while
essential, is not
enough. The
lessons of
the Nixon,
Reagan, and Trump
Administrations teach us
that
“personnel is
policy” or,
in this
case, that
“bad
personnel
will
mean
bad
trade
policy.”39 That
is
why
it
will
be
equally
critical to
the
next
President’s trade
policy agenda
to
have
key
personnel in
place who
not
only
have the
skills to
implement the
policies, but
also have
the firm commitment to
do so.
During the Trump Administration,
President Trump’s key policy advisers and
Cabinet
officials clashed
on the
issues of
international
trade and
combating Communist
China’s
economic aggression.
As much
as President
Trump did
on the
trade
front
that
was
bold
and
innovative
and
as
much
as
he
achieved
by
chal-
lenging Communist China, too
much of his trade policy was disrupted or derailed by
key personnel who did
not share
the
President’s vision
of fair,
balanced, and reciprocal trade.
In thinking about
the personnel
positions that are
most essential
to effective
implementation of
trade
policy,
the
most
obvious
position
to
get
exactly
right
is that
of the
United States
Trade
Representative. The USTR
is at
least
putatively the
top
official
on
trade
policy,
and
it
is
critical
that
this
position
be
filled
wisely.
Historically, during Republican
Administrations, the USTR has been a free
trader
who
rarely
challenged
the protectionist
and
mercantilist
policies
of
Amer-
ica’s trading partners and
typically would seek to expand global trade. The Trump
Administration
broke
this
globalist
Republican
tradition
by
appointing
as
USTR
attorney
Robert E.
Lighthizer,
who
not
only
had
a
keen
understanding
of
the
vari-
ous
legal
levers
a
President
can use
to
advance
trade
policy,
but
also
was
committed
to the
President’s
fair,
balanced,
and
reciprocal
trade
agenda.
The
next
Adminis-
tration should make every
effort to find someone with that understanding and that
commitment to fill this position.
Less
obvious—but almost
as
important—is
the
need
to
fill
the
position
of
Under
Secretary of Commerce for International Trade wisely. One of the
most important functions
of the
International
Trade Administration,
which is
an agency
in the
Department
of Commerce,
is
to
impose
antidumping
and
countervailing
duties
2025 Presidential
Transition Project
against
trade cheaters
who
dump
products below
cost into
American markets
or unfairly subsidize
their exports.
In
fact,
much of
the
cheating
that does
take place
in the global
trading arena can be addressed through such antidumping (AD) and
countervailing duty (CVD)
cases.
Within the West Wing itself, it is
equally critical that the National Security
Adviser, the Chairman of the
Council of Economic Advisers (CEA), and the Director
of the National Economic
Council (NEC) all be aligned on trade policy. During the
Trump
Administration,
with
the notable
exception
of
the
President’s
third
National Security
Adviser,
Robert
O’Brien,
and
third
CEA
Chairman,
Tyler
Goodspeed,
this
regrettably was not the case.
Finally,
and
perhaps
surprisingly,
the
Secretary of
Defense plays
a
key
role in
trade
policy,
at
least
when it
comes to
advancing Section
232
cases.
Under Section 232
of
the
Trade Expansion
Act
of
1962,40 the
President
has
the
authority, through
tariffs
or other
means, to
reduce imports
from other
countries “if
the President
determines that such reduction or elimination would threaten to
impair the national
security.”
As
a
practical
matter,
the
Secretary
of
Commerce
spearheads
any Section
232
cases,
but
in
order
to
proceed
with
a
Section
232
case,
Commerce must
obtain signoff
from the
Secretary of
Defense.
When
President Trump
wanted to
implement steel
and
aluminum
tariffs, he
had a
willing servant
in
Secretary
of
Commerce
Wilbur Ross.
However, Secretary of
Defense James
Mattis resisted.
Mattis simply
did
not
understand a
key
tenet
of
the
Trump Administration:
Economic security
is
also
national security.
Without vibrant
steel
and
aluminum
industries, it
will be
difficult for
America to
provide the
Pentagon with
the kind
of weapons
it needs
to defend
the homeland.
CONCLUSION
A
Harvard professor
once told
me
during
my
doctoral
thesis days
that “if
I
tell you
how
it
is,
I’ve
told you
why
it
can’t change.”
Despite the
obvious exploitation
of
American
farmers, ranchers,
manufacturers,
and
workers by
the
international
trading
system
and
Communist
Chinese
aggression, powerful
political
forces
none- theless exist
that profit from the status quo.
The stark lesson
of this
chapter is
that America gets
fleeced every
day in
the global marketplace
both
by
a
predatory
Communist
China
and
by
an
institution-
ally unfair and nonreciprocal
WTO. Addressing these two challenges would go a long way
toward
restoring
American
greatness,
both
economically
and
militarily.
Ignoring these
two challenges
will simply
continue the
parasitic
draining of
the American
manufacturing and defense
industrial base.
AUTHOR’S NOTE:
The author alone assumes
responsibility for the content of this chapter, and no views
expressed
herein should
be
attributed
to
any
other
individual.
However,
the
author
would
particularly
like
to
thank Joanna
Miller for her
dedicated work and
significant contribution to
the chapter.
Mandate for
Leadership: The Conservative
Promise
T
Kent
Lassman
rade
policy is
about more
than goods
and
services:
It
is
a
statement
of
Amer-
ican
identity. Our
trade policy
choices reveal
America’s values
and
where
we
put
our
trust.
Do
we
place our
trust in
Washington elites
to
revive
a
declining
coun- try,
or do
we trust
in America’s
tradition of entrepreneurs
and everyday
people blazing
new
trails?
Do
we
follow
China
by
copying
its
strong-arm
trade
policies,
or do
we
lead
China
and
the
rest
of
the
world
by
forging
our
own
path?
Our
trade
policy
decisions
will tell
you
what
we
Americans
really
think
of
ourselves.
A
CONSERVATIVE VISION
FOR
TRADE
The policy recommendations
in this
chapter
reflect a
belief in
the strength of
America’s founding
institutions, its economy, and its people. They are based on
data showing
decades
of
American
progress
with
all
that
this
implies.
They
also
reflect
a realistic
understanding
of
the
fact
that
trade
policy
has
limited
capabilities
and is
vulnerable to mission
creep and
regulatory
capture. Policymakers
should be
modest about what they can
accomplish through trade policy and need to exercise
constant vigilance
against abuses.
For example:
•
Trade
can
lower
consumer
prices
for
ordinary
Americans
and
open
new
markets for
American
businesses and their
goods.
•
Trade
can
help
American
workers
and
businesses
to
specialize
in
what
they do
best—which
is
how
they
outcompete
the
rest
of
the
world
in
technology,
manufacturing, agriculture, and other areas.
•
In
foreign
policy, trade
can
help to
preserve
and strengthen
alliances.
At
the
same
time, sound
trade policy
requires humility.
It
is
not
a
panacea for
every
policy
problem. Trade
policy cannot
favor one
sector over
another without
causing
tradeoffs that
outweigh the
benefits.41 Neither
free trade
nor
protectionism
will
create
jobs. Trade
affects the
types of
jobs people
have, but
it
has
no
long-run
effect
on
the
number of
jobs. Labor
force size
is
tied
to
population
size more
than
anything
else.
The
American people
are
smart
and
sophisticated
enough to
hear these
truths.
It
is
not
just conservatives
who
overestimate
the
power
of
trade
policy. Recent
progressive
attempts
to
use
trade policy
to
advance
whole-of-government
initia-
tives
on
climate,
equity, and
other issues
will fail
for
the
same reason
that a
hammer
cannot
turn
a
screw: It
is
the
wrong tool
for
the
job. Conservatives
should be
sim- ilarly skeptical
of
recent
attempts on
the
Right
to
use
progressive trade
policy to
punish
political
opponents,
remake manufacturing,
or
accomplish
other objectives
2025 Presidential
Transition Project
for
which it
is
not
suited. The
next Administration
needs to
end
the
mission creep
that
has all
but taken
over trade
policy in
recent years.
Trade policy works best when it
sticks to trade and treats separate issues separately.
Trade
agreements since
the North
American Free
Trade
Agreement (NAFTA) have
been
increasingly
burdened
by trade-unrelated
provisions
involving labor,
environmental,
intellectual property, and
other
regulations. Where
these were
a side
agreement
to
NAFTA
in
the
1990s,
they
were
integrated
into
the
main text of
the United States–Mexico–Canada Agreement (USMCA) in 2019. The
Indo-Pacific Economic
Framework for
Prosperity (IPEF) that
the Biden
Admin- istration is currently pursuing consists entirely
of trade-unrelated provisions: Negotiations are steering clear
of trade altogether.
Trade-unrelated
provisions
are
routinely
hijacked by
progressives and
rent-seek-
ers
and
dilute
otherwise worthwhile
trade agreements.
They also
create additional
points
of
contention
that make
agreements unnecessarily
difficult to
pass. A
con-
servative
trade
policy
should limit
trade-unrelated
provisions
in
trade
agreements.
This does not
mean that conservatives should ignore international negotiations
on
labor,
environment, intellectual
property, and
other non-trade
issues. It
means they
are more
likely to
succeed by
treating each
of them
separately
rather than letting
them die in
committee with each
providing an additional
sticking point
for delaying the others.
A conservative
trade policy must also take seriously the reality that in a
democ-
racy,
the
other
side holds
power about
half of
the
time,
but
progressives
run
most
agencies
almost all
of
the
time. A
cardinal rule
in
public
policy is
not
to
give yourself
powers
you
wouldn’t
want your
opponents to
have. That
means building
institu- tion-level
safeguards against mission
creep to
limit abuses.
Foreign policy considerations are
not as separate from trade as are labor or
environmental standards.
China deserves special consideration, as does the World Trade
Organization
(WTO)
along
with
its
possible
successors
or
alternatives.
While trade
is not
the star
of American
foreign
policy, it
does play
a supporting
role. It
should be
used to
strengthen alliances to
help counter
China, Russia,
and other
threats while
making
economic
and
cultural
inroads
inside
them.
The
next
Amer- ican
President should use
this aspect
of trade
to the
nation’s
advantage.
Drawing
from
America’s
Roots.
In
1776,
nearly 90
percent of
Americans were
farmers.
For 10
people to
eat, nine
had to
farm. That
meant fewer
people could
be
factory
workers,
doctors,
or
teachers,
or
even
live
in
cities,
because
they
were
needed
on
the
farm.
Accordingly,
life expectancy
was
around
40
years,
and
literacy was 13
percent.42
Today,
fewer than
1
percent
of
Americans
work on
farms, yet
America is
a
net
exporter
of
food.
People
have
infinite wants,
so
as
rising
productivity pushed
some people off
of
farms,
there
were
countless
other
jobs
they
could
do.
In
true
American
fashion, many
of these
jobs were
in brand
new industries.
Mandate for
Leadership: The Conservative
Promise
This was possible
because the
same can-do
cultural
values that
inspired the
American
founding
were
accurately
reflected
in
its
new
government.
The
U.S.
Con-
stitution
created what
was
then
the
world’s
largest
free
trade
area,
and
it
did
so
on
purpose.43 The combination of the American self-improvement ethos and the large,
free
internal
market guaranteed
by
the
Constitution yielded
intensive growth
on a scale never before
seen.
Many displaced farm
laborers got
jobs making
the very
farm equipment
that made
intensive
agricultural
growth
possible,
from
railroad
networks
to
cotton
gins. Each
fed the
other.
Agriculture and
industry are
not separate;
they are
as inter-
connected as
everything
else
in
the
economy.
None
of
this
could
have
happened had
the government enacted
policies to
preserve full
agricultural
employment.
Understanding
Value. Just as
communication is impossible without agreed-
upon
definitions of
words,
coherent
policymaking
is
impossible
without
coherent categories.
Policies
are not
likely
to
succeed
when
they
try
to
separate
an
intercon- nected
economy
into
arbitrary
categories.
The
factory
worker
who
builds
a
tractor
does as
much
to
boost
farm
production
as
the
farmers
themselves,
yet
economic
planners put
them in
different
categories. This
problem is
baked into
industrial policy, as
progressive
planners
have
learned
again
and
again.
A conservative
approach to economic policy should treat value as value, whether
it
is created
on a
farm, in
a factory,
or in
an office.
A dollar
of value
created in
manufacturing
is
neither
more
nor
less
valuable
than
a
dollar
of
value
created
in agriculture
or services.
Pursuing Access to Growing Markets.
American history holds lessons for
today’s conservative trade
policy. Some modern analysts see a correlation between high
tariffs and high growth and confuse it for causation,44 but
19th century Amer- ica
teaches a different lesson.
While
the
Constitution
banned internal
tariffs in
the
U.S.,
international
tariffs
reached their highest levels in U.S. history during the 19th
century, beginning with
the
1828
Tariff of
Abominations.45 At
their
peak
in
1830,
the
average
tariff on
duti- able
goods was
62 percent.46
Fortunately,
however, the
tariffs’
distorting effects were
outweighed by
market growth
elsewhere. The
19th century
saw Western
expansion and
a
growing
population
(including
millions
of
immigrants)
working
for the
American
dream.
America’s
growing
internal
free
trade
zone
allowed
for still
more
specialization and
more trade
across state
borders.
America’s
geographic expansion
ended long
ago, but
population growth,
the U.S.-led rules-based
international
trading
system, and
the
steady
75-year decline
in tariffs
after World War II have made possible decades of continued
prosperity. Intensive
growth requires
specialization,
and
the
larger
the
market,
the
more
spe- cialization is
possible.
Fighting Pessimistic Bias.
Farmers’ share of the population
continued to decline
through this
entire period,
yet employment
remained high,
and
the
2025 Presidential
Transition Project
CHART
1
REAL
GROSS
DOMESTIC
PRODUCT
PER
CAPITA,
IN
CHAINED
2012
DOLLARS,
SEASONALLY ADJUSTED ANNUAL RATE
$70,000
$60,000
$50,000
$40,000
$30,000
$20,000
$10,000
$0
1950 1955
1960 1965
1970 1975
1980 1985
1990 1995
2000 2005
2010 2015
2020
SOURCE:
Federal Reserve Bank of St. Louis, “Real Gross Domestic Product
per Capita,”
https://fred.stlouisfed.org/series/
A939RX0Q048SBEA (accessed March
2, 2023).
A
heritage.org
economy continued to grow. Factories
were not the only beneficiaries of agri- culture’s productivity
boom and the labor it freed; services also grew. In fact,
service-sector employment
surpassed manufacturing employment around 1890— far
earlier than most people realize.47
Pessimistic
bias is
one
of
the
most
important cultural
problems that
conserva-
tive
policymakers
need to
address. In
trade, as
in
most
other areas,
few
people
ever
zoom out to see the big picture, which is one reason why so many people
mistakenly believe that U.S.
manufacturing and the
U.S. economy
are in
decline.
The
data do
not
show
American economic
carnage. They
show more
than two
centuries
of
intensive
growth, made
possible by
a
growing
internal market
through-
out
the
19th
century and
a
growing
international
market
in
the
post–World War
II
era. The
transition
from farm
to factory
did not
shrink the
labor force
or farm
output. Later, the transition from factories to services did not
shrink the labor
Mandate
for Leadership:
The
Conservative
Promise
force,
factory
output, or
farm output.
Both
transitions affected
the
types of
jobs, not the number of jobs.
Americans
today can
more easily
afford
everything from
air
conditioning to flat-screen
televisions
and
smartphones,
and
trade
is
one
reason
why.
Bigger
mar- kets
mean
more
specialization, more
innovative
ideas,
more
customers,
and
more people
from whom to buy.
America’s
official unemployment
rate went
as
low
as
3.5
percent during
2022, while real per
capita gross domestic product (GDP) rose to an all-time record.
Clearly, people who wanted to
work were able to find work that paid well even as
manufacturing jobs grew
more slowly
than service
jobs.
IMPLEMENTING
THE
CONSERVATIVE
VISION
Vision
will be
crucial for
the
next
conservative Administration,
but
nuts-and-
bolts
policies
are
also
important. Making
the
conservative
vision for
trade a
reality
will
require
several actions,
some of
which may
prove to
be
more
difficult to
achieve than others.
Specifically:
•
Implement
tariff relief to help counteract inflation by reducing prices
for affected
goods as
well as
to strengthen
supply chains
and boost
manufacturing. End
Section
232,
201,
and
301
tariffs.
Work
with
Congress to
pass legislation repealing
those
provisions so
future
Presidents
cannot
abuse them.
•
Resist
calls
for more
spending on
trade
adjustment assistance, which
is
often
hijacked
for progressive
ends.
Technology
and
changing
tastes
displace
six
times
as
many
workers as
does trade,
yet
those
workers get
no such special
treatment. Displaced
workers should
receive the
same benefits
regardless of the reason.
•
Remove
never-needed
supply
chain
restrictions,
which
give
families
fewer
places to
which they
can turn.
The recent
shortage of
baby formula,
for example,
was
caused
largely
by
heavily
protectionist
regulations.
Strength and
resilience come from openness.
•
Enact
mutual
recognition
policies
with
allies.
If
a
product
is
safe
enough
for European
or
Japanese
consumers,
then
it
is
safe
enough
for
Americans
as
well—and
vice
versa.
This
can
reduce
regulatory
costs
and
open
new
markets.
•
Close
the
Export–Import
Bank,
which
serves
mainly
to
subsidize
foreign buyers’
purchases
of
goods
from
a
handful
of
well-connected
American
manufacturers.
2025 Presidential
Transition Project
•
Repeal
the
Jones
Act,48 a
century-old
“Buy
American”
maritime
law
that
has decimated
the U.S.
shipbuilding industry.
•
Work
with
Congress
to
restore
the
President’s
Trade
Promotion
Authority, which
would
expedite
the
negotiation
of
trade
agreements
with
the
United Kingdom,
Switzerland,
Taiwan,
the
European
Union,
and
other
allies,
and
keep trade-unrelated provisions out
of trade
agreements.
•
Restore
the
World
Trade
Organization’s
dispute
resolution
process
to
full strength.
•
Create
a
successor
to
the
WTO
(assuming
that
it
has
been
fatally
wounded)
that is
open only
to liberal
democracies.
This would
prevent
authoritarian countries
like China
from abusing
the
organization for
their own
ends.
•
Adopt
a
multi-pronged
China
strategy
to
convince
the
Chinese
government
to reform
its illiberal
human rights
and trade
policies.
•
Rejoin
the Trans-Pacific Partnership (TPP), whose 11 members are
developing
institutional
trade
norms
in
an
important
geopolitical
region without
U.S. input
or involvement.
•
Reorient
the
proposed
Indo-Pacific Economic
Framework for
Prosperity to
focus
only
on
trade
issues,
which
it
currently
ignores
in
favor
of
progressive
wish-list policies.
•
Strengthen
diplomatic
pressure (in
concert with
allies)
against Beijing’s
abuses. Encourage cultural
and intellectual engagement with the Chinese people,
remembering that blue
jeans and
rock ’n’
roll helped
to win
the
Cold
War.
Tariff
Relief.
When
people
try
something
repeatedly and
it
still
doesn’t work, they
should stop
doing it—especially
when the
consequences turn
out
to
be
just
what
conservative economists
have long
predicted they
would be.49 With
tariffs,
the proper
reform is not only to get rid of the individual tariffs that
have backfired, but
also to
build
institutional safeguards against
future abuse.
We
are
five
years
into
the biggest
experiment
with tariffs
since
the
Great
Depression, and the results are in: The new tariffs raise consumer
prices for ordinary Americans
by about
$1,200 per
household every year50 and benefit only
a small number
of special interests. Steel and aluminum tariffs, enacted on
national security
grounds,
angered
allies.
Beijing
made
not
a
single
substantive
reform
in
Mandate for
Leadership: The Conservative
Promise
response
to four
rounds of
tariffs plus
an attempted Phase One
agreement. The Biden Administration has
left the tariffs in place and is expanding them
to pursue progressive policy goals.
The
first
order
of
business
for
a
new
Administration
that is
focused on
American workers
and consumers
is to
repeal all
tariffs
enacted under
Section 232
of the
Trade
Expansion
Act
of
196251 and
Sections
201
and
301
of
the
Trade
Act
of
1974.52 The
President
can
do
this unilaterally,
and
Congress
can
do
it
through
legislation. The second
order of business requires Congress to pass legislation
repealing Sections
232, 201,
and
301.
The
U.S.
Constitution
places
all
taxing
authority
with Congress53 and none with
the President.
Congress used
those
provisions of law to
delegate some
of its taxing
authority to
the President because
it was
having trouble
passing
“clean”
tariff
legislation
in
the
1960s
and
1970s.
Unless
and
until this
constitutional
question
about delegation
is
addressed,
important
reforms
are
available
to
the
next Congress
and
the
next President.
Congress
faced a
problem of
collective action
in
the
1960s and
1970s. As
a
whole,
Members
generally wanted
to
lower
tariffs, but
few
individual
Members were
will- ing
to remove
tariffs that
benefited
special interests
in their
districts.
Trade bills
were invariably watered down
through amendments and logrolling. The thinking was
that
the
President,
whose
constituency
is
the
entire
nation,
would
be
less
prone to
special-interest pleading than Members of Congress would be, so
Congress del- egated
some
of
its
tariff-making
authority
to
the
President
in
1962
and
1974
trade legislation.
Delegating
tariff-making
might
have worked
in
the
short run,
but
in
the
long
run,
it
was
both
constitutionally
dubious and
ripe for
abuse. That
came to
pass in
2018.
The
Section 232
steel and
aluminum tariffs,
invoked in
2018 against
Canada, Europe,
and
other allies
on
national
security grounds,
raised car
prices by
an
aver-
age
of $250
per vehicle
and gave
America the
world’s highest
steel prices.
They also harmed the construction, canned food and
beverage, and other metal-us- ing
industries.
While
this may
have benefited
the
steel
industry itself,
each steel
job
saved
cost
an
average
of
$650,000
per
year
that had
been taken
from elsewhere
in
the
econo-
my.54 That
is
no
way
to
strengthen
American manufacturing.
The
New
York Federal
Reserve
estimated in 2019 that the Section 301 China tariffs cost the
average house- hold
$831 per
year,55 a figure that
has likely
increased with inflation.
The new tariffs have a clear record
of failure—as conservative economists almost unanimously warned
would be the case. Job number one for the next Administration
is to
return to
sensible trade
policies and
eliminate the
destruc- tive Trump–Biden tariffs.
Strengthening
American Manufacturing.
The decline of American manu-
facturing is a common political trope in both parties, typically
invoked before a call
for
more
government
intervention.
This
narrative
has
several
problems.
One
is
that
2025 Presidential
Transition Project
American
manufacturing
output
is
currently
at
an
all-time high.
The
record
was
not
set
during
World War
II
and
not
during
the
1950s
boom. Output
did
not
peak
when manufacturing employment peaked in 1979 or during the Reagan
economic revival in the
1980s. It
is actually higher
now than
it has
ever been.
American
manufacturing is buoyant because each manufacturing worker’s
pro-
ductivity
is
also
at
an
all-time high.
The
key
to
prosperity
is
doing
more with
less. The
next President
should ignore
special
interests and populist
ideologues who want
government
to do
the
opposite
through
industrial policy,
trade
protectionism, and
other failed progressive policies.
It takes surprisingly
few people
to achieve
America’s
record-high manufac-
turing
output—currently about
13
million
people
out
of
a
workforce
of
more
than
160
million,
compared
to
the
1979
peak
of
19.5
million
people
out
of
a
workforce of
104
million.56 Productivity
growth
has
freed
the
time and
talents of
millions of
people for other, additional uses.
The belief that
manufacturing has to
shrink for
services to
grow is
the zero- sum
fallacy against
which sensible
economists often warn.
It is
anathema to
the optimism,
hope, and
confidence that are
the natural
birthright of conservatives.
Growing
productivity
enables
more
output
of
both
manufacturing
and
services. That
is
why
America
continues
to
have
sustained
booms
and
record-setting
real GDP
despite the
long-run
decline in
manufacturing
employment.
Economists
distinguish between
two
types
of
growth:
extensive and
intensive. Extensive
growth
is
the
Soviet and
Chinese model
for
manufacturing:
If
you
have
more
people
use
more
resources,
they will
create more
output. Extensive
growth
is
doing
more
with more;
intensive growth
is
doing
more with
less. That
is
where
America’s
superpower lies.
The
story
of
American
manufacturing
is
one
of
intensive
growth
dating
back
to
our
agricultural origins.
Conservative leaders
should draw on this
history to position America for continued success. With
intensive growth, it
is not
manufacturing
or
services; it is
manufacturing and services.
Retaliatory
Tariffs.
Raising
tariffs on
another
country almost
always invites
retaliatory
tariffs
against
the
U.S.
The
latter
tend
to
be
directed
at
politically
sen- sitive
American
exports.
Retaliatory
tariffs
by
both
China
and
American
allies
in
response to the 2018 steel
tariffs were targeted primarily at American agriculture.
According to the
U.S. Department
of Agriculture,
those tariffs
cost farmers
$27 billion with losses concentrated particularly in
heartland states.57
Retaliatory
tariffs also
targeted U.S.
industries that
were not
protected by
tar-
iffs.
Many
imports
become inputs
into U.S.
manufacturing.
The
motorcycle maker
Harley-Davidson
was already
facing higher
production costs as
domestic steel
producers raised
their prices
to accommodate
the new
steel tariff.
A retaliatory
tariff on
its
motorcycles
imposed
by
the
European
Union
further
raised
its
prices
and hurt
its
export
business.
Harm
to
such
innocent
bystanders
was
another
unin- tended
(though foreseen) consequence.
Mandate for
Leadership: The Conservative
Promise
CHART
2
INDEX
2017=100
120
100
80
60
40
20
0
1920
1930
1940
1950
1960
1970
1980
1990
2000
2010
2020
SOURCE:
Federal
Reserve Bank
of St.
Louis,
“Industrial
Production: Total
Index,”
https://fred.stlouisfed.org/series/INDPRO (accessed March 2,
2023).
A
heritage.org
Federal Reserve
research shows that the tariffs have cost about 75,000 manufac-
turing
jobs while
creating only
about 1,000
jobs in
the
steel
industry—not including
the
effects
of
the
retaliatory tariffs
described above.58 Higher
steel
prices
added an
average
of
$250
to
the
price of
new
cars,
and
larger
trucks—the vehicle
of
choice
in
rural
America—were hit even
more
dramatically.59
Trade
is generally
a win-win
for both
participants. Tariffs are
a
lose-lose-lose game, with
the
tariff
raiser
losing
affordable
goods,
the
tariff
target
losing
exports, and the
tariff raiser losing again from retaliatory tariffs. Tariffs
also have an addi-
tional
overlooked
hidden
cost:
Companies
redirect
resources
to
dodge
tariffs
by redesigning
products,
switching
to
more
expensive
suppliers,
using
lower-qual- ity
materials, and
lobbying. This
might be
good for
lawyers, but
it is
bad for
the economy. These
resources
could
have
been
used
instead
to
make
a
better
product more
cheaply.
2025 Presidential
Transition Project
Conservatives
warned against
retaliation
from the
beginning: It was
exactly what happened after the 1930 Smoot–Hawley tariffs
that worsened the Great
Depression.60
Undoing the Normalization of Protectionism.
Inertia is one of the strongest
forces in politics. Radical new policies can become the new normal very
quickly and are
extremely
difficult
to
unwind
if
they
backfire.
This
happened
with
the
Trump
Administration’s progressive
turn
on
protectionism.
The
Biden
Administration quickly
undid
the
Trump
Administration’s conservative
regulatory
reforms
but left its
progressive, self-defeating trade policies in place—in many
cases even strengthening
them.
Two
presidential Administrations is a long time in politics, and the
next conser- vative
Administration
will have
a
tough
time getting
tariff relief
past a
bureaucracy that
dislikes change and special interests that will fight hard to
preserve their special privileges. But given the stakes for
future American prosperity, it will be worth it.
Dealing with Disruption.
It is true that trade is disruptive. Though its long- run effect on
employment is approximately
zero, in
the short run
it can
cost jobs
and
even depopulate
towns.61 America’s
resilience
depends on
its
ability
to
adjust,
but
successful
and
timely
adaptation is
generally spontaneous
in
nature—the
work
of
human
action
but
not
human design.
Planned adjustment
by
governments
has a much poorer track
record.
Context
is also
important to adjustment
efforts.
Technological change
costs approximately
six
times
more
jobs
as
does
trade
(though,
again,
only
in
the
short
run).62 Any
argument
made against
trade’s disruptive
effects applies
even more
strongly
to
technological change, yet
no one
seriously
argues for
reversing the
dramatic changes the Internet has wrought.
More
than 11
million American
jobs turn
over through
hirings, firings,
retire- ments, layoffs,
and resignations every month,63
and nearly 85 percent of all
jobs turn over
in the
course of
a year. Yet
America has
suffered only
four bouts of
double-digit
unemployment during
the past
century. Two
of them, the
Great Depression
and
the
comedown
from
the
1970s
stagflation,
were
due
to
monetary
mismanagement,
not
trade.64 The
third,
the
Great
Recession,
was
due
to
a
financial
crisis
worsened
by
monetary
mismanagement,
not
trade.65 The
fourth
was
due
to COVID-19 lockdowns,
not trade.66
Using trade
restrictions to slow this churn is a mistake for two reasons:
(1) trade is at best a minor
contributor to job churn compared to other factors like tech-
nology, changing consumer
tastes, inflation, and business cycles, and (2) churn is
evidence
of a
healthy
economy.
Agricultural
economies
have
low
job
churn
and low living
standards.
When
people see
better opportunities,
they should
be
allowed
to
pursue
them. To do otherwise
slows economic growth, harms individual dignity, removes
Mandate for
Leadership: The Conservative
Promise
humanity
from our
policies, and
can contribute to societal
ills like
depression, addiction, and isolation.
Trade
adjustment could be
made easier
by regulatory
reforms to
remove its
attendant friction. These include:
•
Less
restrictive
zoning and
permit
rules;
•
Occupational licensing
reform;
•
Automatic sunsets
for
new regulations;
and
•
A
presidentially
appointed
Regulatory
Reduction
Commission
that
would
examine the
Code of
Federal
Regulations each year
and send
repeal packages
to
Congress
that
include
old,
obsolete,
redundant,
and
harmful regulations.67
People who need help should be able
to get it. Progressive trade policies help only special
interests while harming
the very
people they
are supposedly
intended to help.
Trade
Adjustment Assistance.
Trade adjustment assistance is a popular policy
for aiding
displaced
workers. Though
flawed, it
is a
bargaining tool that
can
potentially help
to
get
sound
trade
policy
adopted.
A
conservative
Adminis- tration
should
approach
trade adjustment
assistance
with
caution
and
use
it
as
a
last-resort political
bargaining
tool
and
not
as
a
first-resort
policy.
Funding
for
job
training
programs
and
the
like
will
typically
find
its
way
to
labor
union
slush
funds,
left-leaning
nonprofits,
and
other
progressive
causes
that
will
not
necessarily
help displaced
workers.
A
better
approach to
trade
adjustment
assistance, if
it must
be expanded, is direct cash
transfers. Not only
would this
prevent
progressive hijacking of
pro- grams
and
their
funding,
but
cash
is
the
most
flexible
type
of
aid.
It
treats
people
as adults
and
lets
them
make
their
own
choices
about
their
next
steps.
Major
life
deci- sions should
be
made
by
individuals
for
themselves,
not
for
them
in
Washington.
Trade adjustment
assistance should treat
workers who
lose their
jobs to
inter- national
trade the same
as workers
who lose
their jobs
for any
other reason
are treated. While that will not likely come to pass in
the near future, steps in that
direction
are
possible.
Technological
change
displaces
six
times
as
many
workers as
trade
displaces,
yet workers
displaced
by
technology
get
no
special
treatment. Nor
should they.
Unemployment
remains low
because it
grows
alongside pop- ulation, and real wages continue to rise over time.
Trade-displaced workers
should
be
eligible
for
the
same
benefits
for
which
anyone
else
is
eligible,
no
more
and
no
less.
2025 Presidential
Transition Project
Supply
Chain Lessons
from the
Baby Formula
Debacle.
Protectionism
builds
weaknesses
into
supply
chains.
This
was
demonstrated
vividly
by
the
baby
formula
shortage,
which may
have
peaked
in
2022
but
remains
an
ongoing
concern.
Domestic
baby
formula
producers
benefit
from
a
decades-old
tariff
that
averages
17
percent, which
is
effectively
high enough
to
shut
imports out
of
the
market. As
if
tariffs were
not enough,
other
requirements also
help to
keep
competition out of
the
market:
ever-evolving
labeling
requirements
and
nutritional
standards
that (conveniently for
domestic manufacturers) are always just slightly different from
international
standards.
As
a
result,
before
the
formula
shortage
in
2022,
approx- imately
98
percent
of the
country’s
baby
formula
was
produced
domestically.
With
foreign competition
out
of
the
way,
other government
policies helped
to
concentrate
almost the entire domestic formula industry into four firms.
Roughly 40
percent of
baby formula
purchases are
made by
state-level food
assistance pro-
grams,
which
typically
do
not
let
families
choose their
own
formula
brands. Instead
they
must
buy
from
a
single
producer, which
guarantees producers
large market
shares in states where they win
contracts. This situation gives incumbent pro-
ducers
a
cozy
existence
but
puts
consumers
at
risk.
Like
all
protectionist
policies, the
benefits
are
concentrated in
the
hands
of
a
few
producers
while
the
costs
and risks are
widely distributed.
With
so
many
eggs in
so
few
baskets, whenever
something goes
wrong—which
is
inevitable
even when
nobody is
at
fault—families
find themselves
scrambling.
That
happened
early in
2022 when
contamination
entered
a
Michigan
facility that
makes
about 40
percent of
America’s baby
formula. Trade
protectionism
all but
eliminated other
options
for
many
parents,
who
suddenly
found
empty
shelves
and
sky-high
prices for
an
essential
item
that
many
of
them
were
already
struggling
to afford—while
families in
other countries
were
unaffected.
In
response, Congress
passed the
Formula Act68
in
the
summer of
2022. The
act
eased formula tariffs and loosened never-needed labeling requirements and
other import restrictions, but
it was
temporary. It expired
at the
end of
2022, leaving
families still
vulnerable to the
cascading consequences that
ensue if
one thing goes wrong at only one plant.
The
baby
formula
debacle has
two
lessons
for
the
next Administration.
•
The
Administration
needs
to
attack
the
root
of
the
problem.
Temporary
fix-it bills
are better
than nothing,
but they
leave the
rot in
place. The
President needs to encourage bold liberalization.
•
Strength
comes
from
openness.
In
the
real
world,
markets
fail.
Factories
will
get contaminated, and health
inspectors will not
always be
as thorough
as they
should
be.
The
baby
formula
market
is
essentially
a
natural
experiment in
self-sufficient
industrial
policy. When
something
went
wrong,
that
single
Mandate for
Leadership: The Conservative
Promise
failure
point crashed
the
whole
system. It
should not
be
that
way, and
the next President can
change it.
Part of the
problem is that the supply chain analogy itself causes sloppy
thinking.
In a chain, a
link is connected only to the link ahead of it and the link
behind it and
not
to
any
other
links. Real-world
supply chains
are
more
like networks
in
which
each
point connects directly to countless others and is rarely more
than six degrees of
separation from
nearly anywhere
on Earth.
Because market
failures happen
all the time,
it is
important to
have as many
connections as possible.
Americans need
access
to
more
ways
to
adapt
and
reroute
around
failure
points,
especially for
essential products like baby formula.
Trade
protectionism
makes
us
more
vulnerable, but
free trade
makes our
fam- ilies
and
communities more
resilient.
Loosening restrictions similar
to the
ones that stunt the
baby formula market would make it easier to navigate future
crises while
preventing the progressive
and
rent-seeking power
grabs that
come with
every crisis, whether it
is as
isolated as
a baby formula
shortage or
as expansive as a pandemic.
Mutual Recognition. A
simple way to reduce friction in supply networks is
mutual
recognition of
other
industrialized
countries’
regulatory
standards.
This can
be done
either in
a larger trade
agreement or
independently.
For baby
for- mula,
this
would
mean
allowing
in
brands
that
meet
European
Union
standards even
if
they
do
not
meet
Food
and
Drug
Administration (FDA)
labeling
require- ments.
Infants’ nutritional needs do not change across borders. If a
formula is deemed
healthy
for
European
babies,
then
it
is
also
healthy
for
American
babies. The
reverse is equally true.
Mutual
recognition could help to open new markets for American
producers in
countless
industries and
give American
consumers access
to
countless
new
prod-
ucts
on more
competitive
terms. For
example, U.S.
regulations
require washing
machine power cords to be at
least six feet long, while the U.K. requires them to be
at least
two meters.69 The difference (about
six inches)
affects
neither safety
nor performance,
but
it
does
keep American-made
washing
machines
out
of
an
import-
ant foreign
market.
A
mutual
recognition
policy
would
circumvent
the
problem.
Given the recent interest in
increased antitrust enforcement, conservatives should
embrace
policies like
mutual
recognition that
have the
double benefit
of increasing
market competition
while
decreasing
government’s
regulatory
footprint.
The U.S.
should
enact
mutual
recognition
agreements
for
a
wide
variety
goods with
the United
Kingdom,
European Union,
Japan, South
Korea,
Australia, and other
governments
with
high
standards
comparable
to
our
own.
This
would
have
especially
large benefits
for
pharmaceuticals,
because
America’s
FDA
drug
approval
process is
both slower
and more
expensive than
those of
other countries
with- out
being
any
safer.
Americans
would
gain
access
to
more
and
lower-cost
medical
2025 Presidential
Transition Project
treatments,
and
American
pharmaceutical
companies
could defray
development
costs
and
innovate
faster by
gaining access
to
more
markets, all
while cutting
prices.
The Jones Act. The Jones
Act (Merchant Marine Act of 1920)70
requires that
ships
traveling
between
U.S.
ports
must
be
U.S.-built,
U.S.-owned,
and
U.S.-crewed.
In practice,
this
is
an
“America
last”
policy
that
has
decimated
the
American
mari-
time
industry.71 Because
of
Jones
Act
regulations,
American-built
ships
cost three
to
four times
more to
build than
foreign-built
ships cost.
As a
result, the
entire Jones Act
fleet
is
down
to
just
92
ships,
many
of
which
are
old
and
obsolete.
In
fact,
Jones
Act–compliant shipping
is
so
expensive
that
it
is
often
cheaper
for
East
Coast ports
to import
oil from
Vladimir
Putin’s Russia
than it
is to
send it
up the
coast from Houston or
New Orleans.
The national
security (to
say nothing
of energy
security)
implications of
reliance on Russia
for oil
and
gas are obvious.
The
Jones
Act’s
original national
security justifications
are
just
as
dubious.
The
act’s
goal
was
to
guarantee
a
sizable
fleet of
American ships
that could
be
pressed
into
war
service
if
needed.
Aircraft carriers
and
other
post-1920 naval
innovations
have
made
this
argument obsolete.
An
$800
billion defense
budget has
plenty of
room
to
maintain a
Navy to
defend American
security interests
around the
world. The U.S.
Navy would
likely prefer
not
to
use
Jones
Act
ships
anyway, because
they tend to
be
older
and
in
poorer condition
than its
own
ships
or
similar
foreign-made but
domestically
owned commercial
ships that
could also
be
pressed
into service.
As
with
many
other industries,
U.S. shipbuilding
could be
the
envy
of
the
world if
it
could
operate in
a
free
market, but
the
maritime
lobby prefers
a
quiet,
cozy exis-
tence
on
the
dole
even as
it
harms
American consumers
and
national
security. The next
conservative Administration
should unleash
American potential
by
unilater-
ally
enacting
Jones Act
exemptions wherever
allowed, as
currently happens
most
years
during
hurricane
season,
and
working
with Congress
to
repeal
the
Jones
Act.
Trade and Inflation.
The
post-COVID
inflation spike
may
be
over long
before the next
Administration
takes
office, but
keeping it
under control
should remain
a
high priority. Free traders
should not
oversell their
case by
saying that
liberal- ization would
solve inflation. Inflation is predominantly a monetary
phenomenon, not a trade
phenomenon, but tariff
relief can
help at
the margin
by immediately
lowering
prices on
tariffed
goods
and
slightly
boosting
long-term
growth.72 While this would
not affect the money supply, which is inflation’s key variable,
even roll- ing
back the
tariffs enacted
since 2017
would likely
have a
positive effect
on the Consumer
Price Index.
The easiest way
to curb
inflation (or to
create it)
is for the
Federal
Reserve to
work
the
monetary
side of
the
equation,
but
the
real
output
side
has
a
similar
effect
on prices.
Lifting
trade
barriers
is
one
way
to
boost
output.
It
also
has
the
added benefit
of
requiring
no additional
spending.
At
the
very
least,
this
can
make
the Federal
Reserve’s
job easier
as
the
spending
excesses
of
Congress
and
President Biden
continue unabated in the coming years.
Mandate
for Leadership:
The
Conservative
Promise
It
is
important
not
to
oversell trade’s
inflation benefits
as
a
cure-all, but
at
the
margin,
it
can
help. The
next Administration
should keep
this in
mind as
it
tries
to cope with this politically
volatile issue.
Trade
and
Foreign
Policy.
We
have
seen how
trade liberalization
would boost
the domestic economy and make
American businesses more competitive, but
conservative trade policies
also benefit America’s foreign policy interests. Policy-
makers should therefore:
•
Negotiate
multilateral and
bilateral
trade agreements.
•
Reform
the
World
Trade
Organization
or
build
a
successor
organization
with membership limited to liberal democracies.
•
Repeal
the
Jones
Act
to
replace
Russian
energy
imports
with
domestic production.
•
Develop
a
multifaceted,
long-term China policy
that takes
seriously America’s
biggest
foreign policy
threat
and
deals
with
it
on
several
fronts.
National
Security.
The most persuasive
arguments against a
market-oriented trade
policy
come
from
another
national
objective:
national
security.
Protection-
ism and similar progressive
policies tend to weaken American security, but trade
creates peace. The more countries trade, the less likely they are to
fight one another and
the
more
robust
their
supply
networks
will
be.
Going
to
war
with
customers is
bad for business.
Without
a
strong
economic interest
in
continued
U.S. investment
and
exports,
for
example, China’s
behavior would
likely become
increasingly less
predictable
and
more
dangerous.
Anyone who
thinks Chinese
Communist Party
(CCP) General
Secretary
Xi
Jinping
and
the
government in
Beijing are
bad
actors
now—which they are—should
consider what
would happen
if
the
Chinese convinced
liberal countries
like
the
United States
to
decouple
from them,
leaving them
free to
pursue whatever
policies
they
wish
without the
significant counterweight
that America
can
provide.
That is one reason for Xi
Jinping’s emphasis on centralization and self-suffi- ciency.
He does
not like
international
pressure about
his
government’s human rights
violations
and
bad-faith
trading
policies,
and
decoupling
from
trading
part-
ners
like
America
is one
way
to
avoid
that
pressure.
A
less
constrained
China
would
be
poorer
but
much
more
unstable
and dangerous
to
its
neighbors
and
to
America
than
it
would
be
if
it
still
had
to
engage regularly
with the
rest of
the
world.
Trade
Promotion Authority.
Trade agreements can take years to negotiate. One
way to
accelerate the
process is
for Congress
to grant
the President
Trade Promotion
Authority
(TPA).
It
was
first
granted
under
the
1974
Trade
Act,
which
2025 Presidential
Transition Project
contains
the Sections
201 and
301 tariff
delegations. TPA, then
called
fast-track, has
aided several
trade
agreements,
including
NAFTA
and
the
USMCA,
which
took effect
in 2020.
TPA has
lapsed before
during slow
periods in
trade policy,
most recently
in July
2021, and
remains lapsed
today.
The President
should work with Congress to renew TPA to rationalize negoti-
ations
for upcoming
trade
agreements with
the United
Kingdom, the
European Union, and others.
Both
supporters and
critics have
questions regarding
TPA’s implications
for
the
constitutional
separation of
powers, and
policymakers should
take those
questions seriously.
As
things currently
stand, Congress
has
some
oversight powers
over the
President’s
negotiations under
TPA, but
they are
limited. Congress
can
increase
its
oversight by
passing new
legislation
superseding relevant provisions
of the
1974
Trade Act.
However,
that
is
a
double-edged
sword.
A
Congress
that
largely
favors free trade could
exercise oversight to keep the President on the straight and
narrow
in
trade
negotiations.
A
progressive
Congress
would
instead
insist
that
the
President negotiate for as
many trade-unrelated provisions as possible to benefit
labor and green
constituencies while pushing progressive policies on the U.S.
and its trading partners.
On
balance, a
single voice
at
the
negotiating table
that is
subject to
congressional oversight
is the
best posture
for American
workers and
consumers. A
fractious Congress has
yet
to
demonstrate
the
capacity
to
negotiate
with
other
nations,
but it
can help
to hold
the
Administration
accountable.
Trade
Agreements with
the United
Kingdom,
European Union,
and Others.
Even
with
a
renewed
TPA,
trade
agreement
negotiations
will likely
take
years. The
Trump
and Biden
Administrations
were not
inclined
to
start
the process,
so
that
job
may
well
fall
to
the
next
Administration. In
that
sense,
the
delays
may end up
being worth it.
If
there is
one
lodestar
to
follow,
it
is
to
restrict
these agreements
to
trade issues only.
Ever
since NAFTA,
trade-unrelated
provisions
have taken
on
a
greater role
in
trade
agreements. These create
sticking points
and are
routinely
hijacked by
rent-seeking
special
interests
and
progressive
ideologues
who
demand
subsidies,
carve-outs,
and
economically
distorting
labor
and
environmental
standards
that have
nothing
to
do
with
trade.
If
governments are
to
negotiate
these
issues,
they should
do so
in separate
agreements so they
do not
torpedo
efforts to
liberalize and
engage
with
allies.
Trade agreements
should
lighten
burdens,
not
create
new ones
by attempting
to address
non-trade issues.
Policy leaders in the United States
and the United Kingdom, including experts from The Heritage
Foundation and the Competitive Enterprise Insti-
tute,
have
prepared
a model
trade
agreement
along
these
lines.73 Along
with
TPA renewal,
this
would
greatly reduce
negotiating costs.
This template
is
also
readily adaptable for
agreements with Europe and any other allies that are willing to
Mandate for
Leadership: The Conservative
Promise
liberalize
their economies
and
build
a
stronger
alliance with
America. The
draft U.S.–U.K.
agreement includes an accession chapter to allow others to join
on the same terms.
Restoring or Replacing the WTO Dispute Resolution Process.
The World
Trade
Organization
as
we
know
it
may
be
mortally
wounded.
This
deprives
the
U.S.
of the WTO’s dispute
resolution process, under which the U.S. it won 85 percent of
the cases it brought.
The WTO’s slow death began under the Obama Administra- tion,
which
refused
to
allow
appointees
to
the
WTO’s
appellate
board,
which
as
a consequence
is now
nonfunctional. Both the
Trump and
Biden
Administrations have
continued the
Obama
Administration’s approach.
That
means that
every case
in the
dispute
resolution process
will sputter
to a halt
as parties
file appeals
that cannot
be heard.
If the
WTO is
no longer
fit for
that
purpose,
it
may
be
better
to
look
in
a
different
direction.
More
than
20
years ago,
a Heritage
Foundation senior fellow
proposed that
America and
other free
economies
should
form
a
Global
Free
Trade
Alliance
that
is
open
to
all
countries that
adhere to
a truly
free market
system with
appropriate
safeguards such as property
rights, lack
of corruption, and enforcement
of contracts.74 Alongside
a general agreement on
low to
zero tariffs,
the alliance
would move
to reduce
the effect of
nontariff barriers (such as the previously noted baby formula
ingredient and
labeling
barriers)
by
basing
trade
around
the
principle
of
mutual
recognition. Such
an
alliance
could be
started
by
a
trade
agreement
between
the
United
States and,
for
example,
the United
Kingdom
with
an
accession
chapter
allowing
others to join
if they meet the criteria.
It
would be
essential for
a
Global
Free Trade
Alliance to
avoid the
WTO’s most
serious problem: the exemptions from
its rules that are granted to developing countries.
When China
joined the
WTO in
2001, it
was granted
developing-na- tion
status,
which
it
continues
to
use
to
dodge
rules
that
should
apply
to
it.
Other countries
have used
that status
to delay
needed reforms.
Rule exemptions
give some
countries a
perverse
incentive to
remain poor
and
autocratic.
A Global Free
Trade Alliance would allow the U.S. to enjoy the benefits of a
rules-
based
international
trading
system without
the
WTO’s
shortcomings.
Negotiation
costs
would be
lower because
the
countries
would already
be
allied
on
many
issues.
In
addition,
there would
be
no
separate tiers
with different
rules, and
this would
give developing
countries an incentive to liberalize. In addition to being good
for its
own
sake, liberalization
would give
them entry
into a
prestigious club
that tilted
toward
America’s
orbit
and
away from
China’s.
Closing the Export–Import Bank.
The Export–Import Bank (EXIM) is an
unusually
clear example
of
how
vulnerable
trade
protectionism
is
to
being
hijacked
by special interests.75 In most years, about half of EXIM’s business benefits a single
company,
Boeing. Their
relationship
is so
cozy that
EXIM’s
nickname around
Washington is
“the Bank
of Boeing.”
2025 Presidential
Transition Project
Unlike
most other
agencies, EXIM
has a
charter that
expires.
Congress must
renew it periodically, or
else the agency will permanently close. Its current charter
expires
at the
end
of
2026.
Closing
this
New
Deal–era
legacy
agency
would
be
a conservative
victory
on a
number
of
fronts.
It
is
also
a
winnable
battle:
Congress just
needs to do nothing.
Conservatives have both foreign
policy and economic reasons to oppose
EXIM.
EXIM
has
a
long
history
of
providing
financing
for
authoritarian
govern-
ments in
China,
Russia,
and
the
Middle
East
that
often
oppose
U.S.
foreign
policy
interests, and its deals often oppose U.S. economic interests.
EXIM financing also
harms domestic
airlines. Many
EXIM financing
deals enable
foreign state-
run airlines
to buy
Boeing jets
at a
discount.
These foreign
airlines,
subsidized by the U.S. government, then compete directly with
U.S. airlines on interna- tional routes.
More recently, the Biden
Administration has expanded EXIM’s mission to
advance
progressive
policy
goals,
including
limits
on
financing
for
projects
that involve
fossil fuels or contribute to climate change, preferential
treatment for renewable
energy projects,
and
quotas
for
projects
that
benefit
women-owned
and
minority-owned businesses.
All
of
these
could
raise
EXIM’s
default
rates,
putting
taxpayer dollars at risk.
The
strongest argument
in
EXIM’s
favor is
that it
boosts U.S.
exports by
financ- ing projects
that would
otherwise never
receive financing.
We
now
have evidence
that
this argument
is false:
EXIM does
not finance
additional exports; instead,
it largely
substitutes
for
other
forms
of
export
financing
that
would
occur
anyway.
EXIM’s
authorization
lapsed
in
2014–2015
because of
conservative opposition
to
renewing its
charter.
During this
lapse, EXIM
maintained its
existing
portfo- lio but was
unable to
take on
new business. Boeing reported
no trouble
finding alternative
financing
and
even
reported
record
profits
during
EXIM’s
lapse
while working
to fulfill
a seven-year
backlog of
orders.76
EXIM boasts an extremely low default
rate, but that is because of selection
bias.
EXIM
overwhelmingly takes
on
low-risk
projects
that
private
banks
would
be
happy
to
finance,
although
this
admittedly
could
change
somewhat
with
EXIM’s
Biden-era mandates
to finance
climate and
other
policy-focused projects.
EXIM
is
also a
textbook
example
of
regulatory capture.
•
It
has
a long
record
of deals
with
authoritarian governments.
•
It
subsidizes
direct foreign
competitors
of domestic
businesses.
•
It
has
been
hijacked
by
progressives
to
advance
their
climate
and
other
preferred policies.
Mandate for
Leadership: The Conservative
Promise
•
Its
beneficiaries
have
proven
they
can
get
adequate
financing
from
private banks.
EXIM’s
charter expires
at
the
end
of
2026. The
agency will
close automatically
unless
Congress and
the President decide to
extend it.
Closing EXIM
should be one
of the next Administration’s
easiest
decisions.
Adopting a
Multi-Pronged China Strategy.
An effective American policy toward
China needs to take a realistic view of the country, its
leaders, their strengths,
and
the
serious
challenges
they
face.
It
should
be
comprehensive
and
flexible.
A threatened
CCP
is
dangerous,
perhaps
now
more
than
at
any
time
since Mao Tse-Tung, as
Xi Jinping continues to use strong-arm tactics to consolidate
his power and
saber-rattling to challenge
the
international order.
At
the
same
time, recent
revelations about
China’s official
statistics overstating its
GDP
by
30
percent
track well
with other
problems that
were already
known.77 These
include
one
of
the
world’s
worst demographic
aging curves
thanks to
China’s one-child
policy;
a
population
that may
already be
declining; an
unsustainable
debt
load that is already causing problems; countless failed
boondoggles, from empty cities to its underwhelming
Belt-and-Road Initiative, that are wasting significant
resources;
Xi
Jinping’s
authoritarian
turn;
increasing state
control of
the
economy;
and a
zero-COVID policy
that has
sabotaged the
economy and
driven away
foreign
investment.78
America
has
its
problems, but
it
is
in
better
shape than
China on
nearly every
measure,
especially
in
the
long
run. While
the
facts
on
the
ground
should inoculate
the
next
Administration against
the
most
strident
China
fearmongering
circulating
in the
media
and
in
Washington,
that
does
not
mean
that
the
government
in
Beijing is
no threat to
American
interests. The
question is:
What should
we do
about it?
A serious China
policy will
require
American policymakers
to integrate
doc- trines,
institutional
prerogatives, expertise, and
realistic
objectives.
Traditional Cabinet-level bureaucracies
like
those
at
the
Departments
of
Defense,
State,
and
Commerce
will need
to
work
together
to
pursue
a
comprehensive
American
strat- egy.
Scores
of
incremental, narrowly
targeted
policies
are
necessary.
They
will
not
make for good soundbites on
cable news, and many will operate slowly and out of sight
from most
news cycles
even as
progress is
made.
An
effective China
policy must
also allow
for
adaptation
because the
CCP
will
not
sit
idly by.
As
people
react to
developments,
America
needs flexible
options. Trade
isolationism
is
inherently
inflexible because
it
reduces
the
number
of
con-
tact points with China.
This
is
a
tougher
political
sell than
loud,
simplistic
jeremiads,
but going
the
extra
mile to
solve
these
difficult
coordination
problems
is
vital
to
America’s
interests.
Trade and
engagement with China
are necessary
if we
are to
contain the
threats that
China
poses
to
its
neighbors
and to
the
U.S.
The
next
Administration
should:
2025
Presidential Transition
Project
•
End China’s
developing-nation
status in
the WTO
and other
international organizations.
China is an advanced manufacturing
economy
and
should
be
treated
as
such,
even
if
its
political
and
legal
institutions remain
those of
a developing nation, to
prevent it
from exploiting
its status
to gain
special
privileges.
•
Use a target, not a blanket.
There should
be actions
against
Chinese firms
that
are
known
to
have
engaged
in
unfair
trade
practices
such as
intellectual
property theft.
Rather than
blanket tariffs
or non-tariff barriers aimed
at
entire Chinese
industry
sectors, firms
that act
in bad
faith should
be targeted
individually.
This
policy
was
employed
to
good
effect
early
in
the
Trump
Administration but
was
abandoned
in
favor
of
a
less
effective
blanket tariff
policy.
•
Rejoin the Trans-Pacific Partnership.
Dropping out of the
Trans-Pacific Partnership
agreement
might have
been the
Trump
Administration’s biggest
trade
policy
mistake.
The TPP
was
already
negotiated
and
would have
strengthened an alliance
against China,
including most
of its
biggest trading partners
in
East
Asia
and
the
Americas.
America’s
departure
created
tensions and
infighting, distracting the
U.S. and
its allies
from the
goal at hand:
countering
China. The
other 11
TPP countries
continue,
without American input
or influence,
under the
Comprehensive and Progressive
Agreement for Trans-Pacific
Partnership (CPATPP)
to develop
a modern
institutional framework to contain Chinese commercial
imperialism.
Rejoining
this alliance
should be
a top
priority in
the next conservative
Administration’s China
policy.
Accession negotiations
are likely
to be
difficult, given
that the
CPATPP
suspended several
clauses that
were important to the
United States
(such as
provisions relating to
patents and
aspects
of
investor-state
dispute
resolution)
when
the
U.S.
pulled
out
of
the TPP
agreement in 2017.
Diplomatic
and
economic
pressure against
Beijing will
be
more
effective
when
its
largest
trading partners
work in
concert. Beijing’s
diplomats will have
a
hard
time employing
a
divide-and-conquer
policy against
a
united
front of the sort that the
TPP offers.
•
Refocus the
Indo-Pacific Economic Framework
for Prosperity
on trade.
President Biden began the process to create IPEF in 2022,
but
any
agreement
will likely
still
be
under
negotiation
when
the
next Administration
takes
office.
IPEF is
similar
to
the
TPP,
but
its
member
Mandate
for Leadership:
The
Conservative
Promise
countries
are mostly
China’s
neighbors in
Asia. Like
the TPP,
it seeks
to create an alliance to
push China
toward the
rule of
law, but
the Biden
Administration so
far has
left trade
entirely out
of the agreement.
Instead, the IPEF negotiations
are focusing
entirely on
non-trade
issues like
climate and
labor
policy—issues that
give
progressives
opportunities
to
impose
their
policies
on other
countries
and
provide
rent-seeking
opportunities
for
labor unions
and
politically connected
businesses
in
renewable
energy
and
other favored
industries.
IPEF
has the
potential to
be a
powerful
diplomatic tool that
helps to
bring countries
into
America’s
orbit
and
away
from
China’s.
Beijing’s
chauvinistic
approach to
foreign policy
has alienated
most of China’s neighbors
and allies. They follow
along because
they lack
alternatives.
IPEF and
the TPP
could offer
them
a
way
out
and
make
it
easier
for
China’s
smaller
neighbors to
stand
up
for
themselves
in a
united
front
as
they
move
toward
American- style
institutions that protect civil, political, and economic
liberties.
IPEF
could do
all that,
and so could the
TPP, but
America
currently has no
voice in
the TPP, and
IPEF risks
becoming
little more
than another
tool that progressives can
use to
force their
policy wish
list on
countries that
don’t want it.
From the
perspective of IPEF’s
members, the
Biden Administration’s
approach is
little
different from
Beijing’s. The
next Administration can
give
China’s
neighbors
a
better
choice
by
refocusing IPEF
on
trade,
dropping
most of
its
non-trade
issues,
and
turning
it
into
a forum
to promote
democracy and
strengthen
alliances while
pressuring Beijing to make needed reforms.
•
Play the long game.
It took two generations to win the Cold
War, and there were
many reasons
for that
success. The
fact that
the planned
economy
is
inherently
inferior
to
free-market
capitalism
played
a
role.
So did
diplomatic,
military,
and
economic
pressure
from
free
countries.
But culture
was
just
as
important,
and it
did
not
come
from
any
government.
Blue jeans
and rock
’n’ roll
helped to
win the
Cold War
as much
as any
deliberate policy
did.
So
did
images
of
fashion
and
prosperity
in
American movies
and television shows like
Dallas.
Such
informal bottom-up
processes will
also play
a
vital
role in
helping to turn
China from
an
authoritarian
threat into
a
freer
and
less
hostile power. It
will take
a
long
time, and
the
slow
process will
garner few
headlines, but
it
can
work. A
conservative Administration
will support
efforts by
ordinary
Americans
to
engage
with ordinary
Chinese people
through social
networks,
2025
Presidential Transition
Project
Internet
memes,
fashion, movies,
student
exchange programs,
tourism, and
more. China’s
leaders are
set in their
ways,
especially with
Xi Jinping
presumably
now
in
power
for
life,
but
the
younger
generation
is
more
open than
their parents
were—more
individualistic and
open to
change.
Effective
outreach to
the Chinese
people will
need the
same humility
that other sound trade
policies
require.
Government-directed
cultural and
economic
outreach
risks
being
heavy-handed
and
could
backfire.
Everyone
involved needs
to know
that the
process is
generational
in scope
and will
not
work overnight.
At
the
very
least,
Washington
should
stay
out
of
the
way
as
much
as
possible
when regular
people
want
to
contact
each
other
across
national, language,
and cultural
divides.
Each
of
these
many components,
from tariffs
to
trade
agreements to
culture, is
a small
part of
a larger
China policy.
Many are
not
attention-grabbing
and
cannot be
put
into
sound bites.
Cultural engagement
is
not
something
Washington
can
plan.
China’s own
demographic and
debt problems,
along with aging
leadership and
growing discontent
over the
zero-COVID policy,
might
even
cause an
internal collapse.
American policy
must therefore
be prepared to face any
contingency.
CONCLUSION
A conservative trade policy needs a
conservative vision. America’s found- ing institutions, based
on free
trade and
entrepreneurship, have made
America the world’s leading economy and will help keep
America strong through the next
century.
However,
recent departures
from those
principles have
hurt America’s
econ-
omy and weakened alliances that are necessary to contain threats from
Russia and
China.
Reaffirming those
principles through
policies of
openness, dynamism,
and
free
trade
will
boost America’s
economy, make
us
more
resilient against
crises, and
remove
opportunities
for
progressives
and
rent-seekers
to
use
the
levers
of
gov-
ernment
for
their
own
purposes.
Rediscovering
conservative
principles on
trade policy and
embracing America’s
long history
as
the
world’s leading
commercial
republic
are
an
important part
of
restoring
a
government
of,
by,
and
for
the
people.
AUTHOR’S NOTE:
The preparation of this analysis could not have been completed
without the valuable support of
a
small,
sturdy,
and
principled
community
of
trade
policy
experts.
Among
them,
my
colleagues
at
the
Competitive Enterprise
Institute,
Ryan
Young,
Iain
Murray,
and
Ivan
Osorio
were
essential.
The
author
alone
is responsible
for this
report. No
views herein
should be
attributed to
any other
individual or
institution.
Mandate for
Leadership: The Conservative
Promise
ENDNOTES
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2025 Presidential
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generally
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September 25, 2015,
https://obamawhitehouse.archives.gov/the-
pressffice/2015/09/25/remarks-president-obama-and-president-xi-peoples-republic-china-joint
(accessed February 25, 2023).
32.
Ankit Panda, “It’s Official:
Xi
Jinping Breaks His
Non-Militarization Pledge in the Spratlys,”
The
Diplomat,
December
16,
2016,
https://thediplomat.com/2016/12/its-official-xi-jinping-breaks-his-non-militarization-
pledge-in-the-spratlys/
(accessed
February
25,
2023).
33.
Press
release,
“USTR
Issues
Tariffs
on
Chinese
Products
in
Response
to
Unfair
Trade
Practices,”
Office
of
the United States Trade
Representative, June 15, 2018,
https://ustr.gov/about-us/policy-offices/press-office/press-
releases/2018/june/ustr-issues-tariffs-chinese-products
(accessed February 25, 2023).
34.
Yen Nee Lee, “‘New
Consensus’
Reached on US–China Trade, Says Chinese Vice
Premier Liu He,” CNBC,
updated April 5, 2019,
https://www.cnbc.com/2019/04/05/us-china-trade-new-consensus-reached-says-
chinas-liu-he.html
(accessed
February
25,
2023).
35.
Reuters, “China Backtracked on Nearly All Aspects of US
Trade Deal: Sources,” CNBC, May 8, 2019,
https://
www.cnbc.com/2019/05/08/china-backtracked-on-nearly-all-aspects-of-us-trade-deal-sources.html (accessed February 25,
2023).
36.
Fact
Sheet,
“Economic
and
Trade
Agreement
Between
the
United
States
of
America
and
the
People’s
Republic
of
China,”
Office
of
the
United
States
Trade
Representative, January
15,
2020,
https://ustr.gov/sites/default/
files/files/agreements/phase%20one%20agreement/US_China_Agreement_Fact_Sheet.pdf
(accessed February 25, 2023).
37.
Warren Buffett, “Warren Buffett:
Here’s
How I Would Solve the Trade
Problem,”
Fortune, April 29, 2016,
http://
fortune.com/2016/04/29/warren-buffett-foreign-trade/ (accessed February 25,
2023).
38.
See, for example, Jeffrey Miron,
“Forget the Wall Already,
It’s Time for the U.S. to Have Open Borders,” Cato
Institute
Commentary, July
31, 2018,
https://www.cato.org/publications/commentary/forget-wall-already-
its-time-us-have-open-borders
(accessed February 25, 2023); Scott Lincicome and Alfredo
Carrillo Obregon,
“The (Updated) Case for
Free
Trade,” Cato Institute
Policy
Analysis
No. 925,
April 19, 2022,
https://www.cato.
org/sites/cato.org/files/2022-04/PA-925_2.pdf
(accessed
February
25,
2023);
Katheryn
Russ,
“Yes,
US
Trade
Agreements Led to Economic Gains, Especially in Services, New
Report Says,” Peterson Institute for
International Economics,
Trade and Investment Policy Watch Blog, July 20, 2021,
https://www.piie.com/blogs/
trade-and-investment-policy-watch/yes-us-trade-agreements-led-economic-gains-especially
(accessed
February 25, 2023); Monica
de
Bolle, “Why Remittance Taxes
to Finance a Border Wall Are a Bad Idea…for the
US,” Peterson Institute for
International Economics, Realtime Economics Blog, January 10,
2017,
https://www.
piie.com/blogs/realtime-economic-issues-watch/why-remittance-taxes-finance-border-wall-are-bad-idea-us (accessed February 25,
2023).
39.
This is a key theme of the author’s White House memoir
Taking Back
Trump’s
America: Why
We Lost
the
White House
and How
We’ll Win
It Back
(New
York and
Nashville: Bombardier Books,
2022).
40.
19
U.S.C.
§
1862,
https://www.law.cornell.edu/uscode/text/19/1862
(accessed
February
27,
2023).
41.
For
a
historical
example,
see
Douglas
A.
Irwin,
“Did
Late-Nineteenth-Century
U.S.
Tariffs
Promote
Infant Industries?
Evidence from
the Tinplate
Industry,”
Journal of
Economic
History, Vol.
60, No.
2 (June
2000),
pp.
336–360,
https://www.jstor.org/stable/2566374
(accessed
February
21,
2023).
For
a
recent
example,
see
Gary Clyde Hufbauer and
Eujin
Jung, “The High
Taxpayer Cost of ‘Saving’ US Jobs Through ‘Made in America,’”
Peterson Institute for
International Economics,
Trade and
Investment
Policy Watch, August 5, 2020,
https://
www.piie.com/blogs/trade-and-investment-policy-watch/high-taxpayer-cost-saving-us-jobs-through-made-
america
(accessed February
21, 2023).
42.
Stephen J. Dubner, “Were Colonial
Americans More Literate than
Americans Today?” Freakonomics,
September 1, 2011,
https://freakonomics.com/2011/09/were-colonial-americans-more-literate-than-
americans-today/
(accessed
February
21,
2023).
2025 Presidential
Transition Project
43.
Randy
E.
Barnett
and
Andrew
Koppelman,
“The
Commerce
Clause:
Common
Interpretation,”
National Constitution Center,
https://constitutioncenter.org/the-constitution/articles/article-i/clauses/752
(accessed
February
21, 2023);
Randy E.
Barnett, “The
Original
Meaning of
the Commerce Clause,”
University of
Chicago
Law
Review, Vol. 68,
No. 1 (2001), pp. 101–147,
https://chicagounbound.uchicago.edu/cgi/viewcontent.
cgi?article=5074&context=uclrev
(accessed
February
21,
2023).
44.
Wells
King,
“Rediscovering
a
Genuine
American
System,”
American
Compass,
Rebooting
the American
System, May 4, 2020,
https://americancompass.org/rediscovering-a-genuine-american-system/
(accessed February 21,
2023).
See
also
Phillip
W. Magness
and
James
R.
Harrigan,
“Henry
Clay’s
‘American
System’
Is
Bad
News
for
the
American Economy,” American
Institute for Economic Research, December 8, 2022,
https://www.aier.org/article/
henry-clays-american-system-is-bad-news-for-the-american-economy/
(accessed
February
21,
2023),
and
Iain
Murray, “The Founding Fathers
and Free Trade,” Competitive Enterprise Institute, Open Market
Blog, September 20,
2022,
https://cei.org/blog/the-founding-fathers-and-free-trade/
(accessed
February
21,
2023).
45.
Douglas
A.
Irwin,
Clashing over
Commerce: A
History of
U.S. Trade
Policy
(Chicago:
University
of
Chicago
Press,
2018), pp. 147–154.
46.
Ibid.,
p.
125.
47.
Michael Urquhart, “The Employment Shift to Services: Where
Did it Come From?” U.S. Department of Labor,
Bureau
of Labor
Statistics,
Monthly
Labor Review,
Vol. 107,
No. 4
(April 1984),
p. 16,
https://stats.bls.gov/opub/
mlr/1984/04/art2full.pdf
(accessed February
21, 2023).
48.
H.R.
10378,
Merchant
Marine
Act
of
1920,
Public
Law
66-261,
66th
Congress,
June
5,
1920,
https://govtrackus.
s3.amazonaws.com/legislink/pdf/stat/41/STATUTE-41-Pg988.pdf
(accessed
February
22,
2023.
49.
Tori K. Smith, “The Proof Is In: Tariffs Are Hurting the
U.S.,” Heritage Foundation
Commentary, August
27, 2019,
https://www.heritage.org/trade/commentary/the-proof-tariffs-are-hurting-the-us.
50.
Congressional
Budget Office,
The Budget
and Economic
Outlook: 2020
to 2030,
January 2020, p. 33,
https://
www.cbo.gov/publication/56073 (accessed February 21, 2023).
51.
H.R.
11970, Trade
Expansion Act
of 1962,
Public Law
No. 87-794,
87th Congress,
October 11,
1962,
https://www.
govinfo.gov/content/pkg/STATUTE-76/pdf/STATUTE-76-Pg872.pdf
(accessed
February
22,
2023).
52.
H.R.
10710, Trade
Act of
1974, Public
Law No. 93-618, 93rd
Congress,
January 3,
1975,
https://www.congress.
gov/93/statute/STATUTE-88/STATUTE-88-Pg1978-2.pdf
(accessed
February
22,
2023).
53.
U.S.
Constitution, Article I, Section 8,
https://constitution.congress.gov/constitution/article-1/ (accessed February 22, 2023).
54.
Gary Clyde Hufbauer and Eujin
Jung, “Steel Profits Gain,
but Steel Users Pay, Under Trump’s Protectionism,”
Peterson
Institute for International
Economics,
Trade
and Investment
Policy Watch, December
20, 2018,
https://www.piie.com/blogs/trade-and-investment-policy-watch/steel-profits-gain-steel-users-pay-under-
trumps
(accessed February
21, 2023).
55.
Mary Amiti, Stephen J. Redding, and David E. Weinstein, “New
China Tariffs Increase Costs to U.S. Households,”
Federal
Reserve
Bank of
New
York,
Liberty
Street Economics
Blog,
May
23,
2019,
https://libertystreeteconomics.
newyorkfed.org/2019/05/new-china-tariffs-increase-costs-to-us-households/
(accessed February 21, 2023).
56.
Federal Reserve Bank of St. Louis, Federal Reserve Economic
Database (FRED), Series CLF16OV, “Civilian Labor Force Level,”
https://fred.stlouisfed.org/series/CLF16OV
(accessed February 21, 2023).
57.
Stephen
Morgan,
“Retaliatory
Tariffs
Reduced
U.S.
States’
Exports
of
Agricultural
Commodities,”
U.S. Department of Agriculture,
Economic Research Service,
Amber
Waves, March 7, 2022,
https://www.ers.usda.
gov/amber-waves/2022/march/retaliatory-tariffs-reduced-u-s-states-exports-of-agricultural-commodities/ (accessed February 21,
2023).
58.
Aaron
Flaaen
and
Justin
Pierce,
“Disentangling
the
Effects
of
the
2018–2019
Tariffs
on
a
Globally
Connected
U.S. Manufacturing Sector,” Board of Governors of the Federal
Reserve System,
Finance and
Economics
Discussion Series
No. 2019-086, December 23, 2019,
https://www.federalreserve.gov/econres/feds/
files/2019086pap.pdf
(accessed
February
21,
2023);
U.S.
Department
of
Labor,
Bureau
of
Labor
Statistics,
“Data Tools: Industries at a
Glance: Primary Metal Manufacturing: NAICS 331,” data extracted
February 17, 2023,
https://www.bls.gov/iag/tgs/iag331.htm
(accessed February 21, 2023).
59.
Ryan Young, “Lessons from the GM layoffs: End the Tariffs
and the Subsidies,” Fox Business, November 28, 2018,
https://www.foxbusiness.com/markets/lessons-from-the-gm-layoffs-end-the-tariffs-and-the-subsidies
(accessed February
21,
2023).
Mandate for
Leadership: The Conservative
Promise
60.
Irwin,
Clashing over
Commerce, pp. 400–410. For a book-length treatment of
Smoot–Hawley, see Douglas A.
Irwin,
Peddling Protectionism: Smoot–Hawley and the Great Depression,
(Princeton,
NJ:
Princeton
University Press,
2011).
61.
Kevin
D.
Williamson,
Big
White Ghetto:
Dead Broke,
Stone-Cold
Stupid, and
High on
Rage in
the Dank
Wooly
Wilds
of the
“Real America
(Washington:
Regnery, 2020).
62.
Stephen
J.
Hicks
and
Srikant
Devaraj,
“The
Myth
and
Reality
of
Manufacturing
in
America,”
Conexus
Indiana and Ball State University
Center for Business and Economic Research, June 2015 and April
2017,
https://
conexus.cberdata.org/files/MfgReality.pdf
(accessed
February
21,
2023).
63.
Economic
News
Release,
“Job
Openings
and
Labor
Turnover
Summary,”
U.S.
Department
of
Labor,
Bureau
of
Labor
Statistics, February
1,
2023,
https://www.bls.gov/news.release/jolts.nr0.htm
(accessed
February
21,
2023).
The
release
reports
“Job
Openings
and
Labor
Turnover—December
2022.”
64.
Allen H.
Meltzer,
A
History of
the Federal
Reserve, Volume
1: 1913–1951
(Chicago:
University
of
Chicago Press,
2004);
Allen
H.
Meltzer,
A
History of
the Federal
Reserve, Volume
2, Book
2, 1970–1986
(Chicago:
University
of Chicago Press, 2014).
65.
John
B.
Taylor,
Getting
Off Track:
How Government
Actions and
Interventions
Caused, Prolonged,
and
Worsened
the Financial
Crisis
(Stanford, CA: Hoover Institution
Press, 2009); Scott Sumner,
The Money
Illusion: Market Monetarism, the Great Recession, and the
Future of Monetary Policy
(Chicago:
University
of
Chicago Press, 2021),
pp. 267–284.
66.
Federal
Reserve
Bank
of
St.
Louis,
Federal
Reserve
Economic
Database
(FRED),
Series
Unemployment
Rate
(UNRATE), updated February 3,
2023,
https://fred.stlouisfed.org/series/UNRATE (accessed February 21, 2023).
67.
Ryan
Young,
“How
to
Make
Sure
Reformed
#NeverNeeded
Regulations
Stay
That
Way,”
Competitive Enterprise
Institute,
Open
Market
Blog,
July
8,
2020,
https://cei.org/studies/how-to-make-sure-reformed-
neverneeded-regulations-stay-that-way/
(accessed February 21, 2023).
68.
H.R.
8351,
Formula
Act,
Public
Law
No.
117-160,
117th
Congress,
July
21,
2022,
https://www.congress.gov/117/
plaws/publ160/PLAW-117publ160.pdf
(accessed
February
22,
2023).
69.
Iain
Murray,
“A
New
Kind
of
Trade
Agreement,”
Competitive
Enterprise
Institute,
Open
Market
Blog, September 19, 2018,
https://cei.org/opeds_articles/a-new-kind-of-trade-agreement/
(accessed
February 21,
2023).
70.
See
note
8,
supra.
71.
Mario
Loyola,
“America
Last:
The
Grim
Reality
of
the
Jones
Act,”
Competitive
Enterprise
Institute
Issue
Analysis
2020
No.
5,
June
2020,
https://cei.org/sites/default/files/Mario_Loyola_-_America_Last.pdf
(accessed
February
21,
2023);
Patrick
Tyrell,
“Permanent
Repeal
of
the
Jones
Act
Would
Be
a
Winning
Response to COVID-19,”
Heritage Foundation
Commentary, April
7, 2020,
https://www.heritage.org/trade/
commentary/permanent-repeal-the-jones-act-would-be-winning-response-covid-19.
72.
Bryan Riley, “Better Trade and Regulatory Policies Are Key
to Battling High Prices,” National Taxpayers Union
Blog,
January
12,
2023,
https://www.ntu.org/publications/detail/better-trade-and-regulatory-policies-are-key-
to-battling-high-prices
(accessed
February
21,
2023).
73.
Daniel
Ikenson,
Simon
Lester,
and
Daniel
Hannan,
eds.,
“The
Ideal
U.S.–U.K.
Free
Trade
Agreement:
A
Free
Trader’s
Perspective,”
Initiative
for
Free
Trade
and
Cato
Institute,
2018,
https://www.cato.org/sites/
cato.org/files/pubs/pdf/ideal-us-uk-free-trade-agreement-executive-summary-update.pdf
(accessed February 21, 2023).
74.
John
Hulsman,
“The
World
Turned
Right-Side
Up:
A
New
Trading
Agenda
for
the
Age
of
Globalization,” Heritage
Foundation
Report,
January
24,
2000,
https://www.heritage.org/trade/report/the-world-turned-
right-side-new-trading-agenda-the-age-globalization.
75.
Diane Katz, “Export–Import
Bank: Propaganda Versus the Facts,” Heritage Foundation
Issue Brief
No. 4430, July
13,
2015,
http://thf_media.s3.amazonaws.com/2015/pdf/IB4430.pdf;
Ryan
Young,
“Ten
Reasons
to
Abolish the Export–Import
Bank: Eighty
Years Is Enough,” Competitive
Enterprise Institute
OnPoint
No. 195,
July 15, 2014,
http://cei.org/sites/default/files/Ryan%20Young%20-%20Top%2010%20Reasons%20to%20
Abolish%20Ex-Im%20%282%29.pdf
(accessed
February
21,
2023).
76.
Veronique de Rugy, “Boeing Isn’t Exactly Pleased with Ex–Im’s
Liquidation,”
National
Review Online, The
Corner, September 1, 2015,
https://www.nationalreview.com/corner/ex-im-bank-boeing-liquidation/
(accessed
February
21,
2023).
2025 Presidential
Transition Project
77.
Luis
Martinez,
“How
Much
Should
We
Trust
the
Dictator’s
GDP
Growth
Estimates?”
Becker–Friedman
Institute
for Economics at the
University
of Chicago,
Working
Paper
No. 2021-78, July 2021,
https://bfi.uchicago.edu/
wp-content/uploads/2021/07/BFI_WP_2021-78.pdf
(accessed February 21, 2023).
78.
Nicholas R.
Lardy,
The
State Strikes
Back: The
End of
Economic Reform
in China?
(Washington:
Peterson
Institute for International
Economics, 2019); Elizabeth C. Economy,
The Third
Revolution: Xi Jinping
and the
New Chinese
State
(Oxford and New York: Oxford University Press, 2018).
I
n
addition to
the
executive
departments and
agencies discussed
previously, a
number of
independent
commissions exist that
are loosely
affiliated with the executive
branch. In
general, the
President can
appoint people
to these
commissions
but
cannot
remove them,
which makes
them constitutionally
prob- lematic
in
light of
the
Constitution’s
having vested
federal executive
power in
the President. Nevertheless, they exist, their
constitutional legitimacy has generally been
upheld
by
the
courts, and
there will
be
an
opportunity for
the
next
Adminis-
tration
to
use
them as
forces for
good, particularly
by
making
wise appointments.
Few
appointments
to
these
commissions will
be
as
important as
the
President’s
selection
of
the
next chairman
of
the
Federal Communications
Commission (FCC).
In
Chapter
28,
FCC
Commissioner Brendan
Carr writes
that the
FCC
chairman
“is
empowered
with
significant
authority that
is
not
shared” with
other FCC
members. Under
a
new
chairman,
he
writes,
“[t]he FCC
needs to
change course
and
bring
new
urgency
to
achieving
four main
goals: [r]eining
in
Big
Tech; [p]romoting
national security;
[u]nleashing economic prosperity;
and [e]nsuring
FCC
accountability
and
good
governance.”
“The FCC,”
writes Carr, “has an important role to play in addressing the
threats to
individual
liberty posed
by corporations that are
abusing
dominant positions in
the market.”
Nowhere is
that clearer
“than when
it comes
to Big
Tech and
its attempts
to
drive
diverse
political
viewpoints
from
the
digital
town
square.”
Carr
writes
that
the
FCC
should
require
more transparency
from
Big
Tech,
which
today “offers
a black
box.” And
it should issue
“an order
that
interprets Section
230”— which provides protection from legal liability to
online computer services that
Mandate
for Leadership:
The
Conservative
Promise
moderate
content in
good faith—“in
a
way
that eliminates
the
expansive,
non-tex- tual
immunities that courts have read into the statute.” In addition
to taking unilateral
action, Carr
says, the
FCC should
work with
Congress on
legislative changes to
ensure that “Internet companies no longer have carte blanche to
censor protected speech while maintaining their Section
230 protections.”
Carr
writes that
during the
Trump
Administration, the FCC
took an
“appro- priately strong approach to the national security
threats posed by the Chinese Communist Party.” The
FCC put
Huawei on
its Covered List
of
entities—its list
of
those
posing
“an
unacceptable
risk”
to
U.S.
national
security.
Carr
writes
that
TikTok also poses a “serious
and unacceptable” risk to U.S. national security, while
providing “Beijing with
an opportunity
to run
a foreign
influence
campaign by
determining the
news
and
information
that
the
app
feeds
to
millions
of
Americans,”
and the
next
Administration
should
ban
it.
What’s
more,
Carr
writes,
“U.S.
busi-
nesses
are
aiding
Beijing—often unwittingly”—in
its
effort
to
become,
by
2030,
“the global leader in
artificial intelligence.” In part, they are doing so by
providing “Bei- jing access to their high-powered cloud
computing services.” Carr asserts that “it is
time
for
an
Administration
to
put
in
place
a
comprehensive
plan
that
aims
to
stop
U.S.
entities from
directly or
indirectly contributing
to
China’s
malign AI
goals .” Former
Federal Election
Commissioner Hans
von
Spakovsky
writes in
Chap-
ter 29 that
while “the
authority of
the President over
the actions
of” the
Federal Election
Commission
“is
extremely
limited,”
the
President
“must
ensure
that
the [Justice
Department], just like
the FEC,
is directed
to only
prosecute clear
viola- tions” of the
Federal Election Campaign Act. “The department must not construe
ambiguous
provisions…in a
way that
infringes on protected
First
Amendment activity,” he writes. The FEC has six members, three
from each party, and its determinations
require a
majority—so,
they require
the support
of at
least one
member
of
each
party.
DOJ
should
not
“prosecute
an
individual
for
supposedly
violating
the
law
when
the
FEC
has
previously
determined
that
a
similarly
situated
individual
has
not
violated
the
law,”
writes
von
Spakovsky.
Moreover,
he
writes that
the
“President
should vigorously
oppose
all
efforts”—such
as
the
language in
the
“For
the
People
Act
of
2021”—“to
change the
structure
of
the
FEC”
so
that it
would
have
an
“odd
number”
of members.
The
current
structure
“ensures
that there
is bipartisan
agreement before any
action is
taken and
protects
against the FEC being
weaponized.”
In
Chapter 27,
David R.
Burton writes
that the
Securities and
Exchange Com-
mission
(SEC) “should
be
reducing
impediments to
capital formation,
not
radically increasing
them” by
pushing a
costly “climate
change” agenda,
as
it
is
doing
under
the
Biden
Administration.
Discussing the
Federal Trade
Commission, Adam
Can- deub
writes in
Chapter 30,
“Antitrust law
can combat
dominant firms’
baleful effects
on democratic”
notions—“such as
free speech,
the marketplace
of ideas,
shareholder control,
and
managerial
accountability
as
well
as
collusive
behavior
2025
Presidential Transition
Project
with
government.” Under
the
Biden
FTC, he
writes, firms
try
“to
get
out
of
anti-
trust
liability
by
offering
climate, diversity,
or
other
forms of
ESG-type offerings.”
Candeub
says that
state AGs
“are far
more responsive
to
their
constituents”
than the
federal
government generally is,
and he
recommends that the
FTC establish
a position in the
chairman’s office that
is “focused
on state
AG cooperation
and inviting state AGs
to Washington, DC, to discuss enforcement policy in key sectors
under the
FTC’s
jurisdiction: Big Tech,
hospital
mergers, supermarket
mergers, and so forth.”
T
David R.
Burton
he
primary
purposes of
the
laws
and
regulations
governing capital
markets and
of
capital market
regulators are
to deter
and punish
fraud and
other material
misstatements to
investors;
foster reasonable,
scaled
disclosure of
information that
is material
to
investors’
financial
outcomes
and
proxy
voting
decisions;
and
maintain
fair,
orderly,
and
efficient
secondary capital
markets.
The Securities Act of 19331 and the Securities Exchange
Act of 19342
reflect nearly
nine decades of
rushed and
haphazard
amendments. The securities
laws are
now
extremely
complex
and
do
not
constitute
a
coherent,
rational
regulatory
regime. For
example, the
current SEC
has proposed
a climate
change
reporting rule
that
would
quadruple
the costs
of
being
a
public
company.3 This
would
have a
substantial adverse
impact on
existing companies.
Over time,
it
would
also sub-
stantially
reduce the
number of
public
companies and therefore
the number
of investing
options
available
to
ordinary
Americans.
The
Securities
and
Exchange
Commission (SEC) should be
reducing impediments to capital formation, not rad-
ically increasing them.
The
SEC
and
Congress should
fundamentally
reform
the
securities
laws gov-
erning
issuers,
broker–dealers,
exchanges, and
other market
participants.
Among other things, they should establish a simplified and
rationalized securities disclo-
sure system with:
Mandate for
Leadership: The Conservative
Promise
•
Three
basic
categories
of
firm:
private
firms,
an
intermediate
category
of
smaller firms,4
and public firms;
•
Reasonable, scaled
disclosure
requirements; and
•
Specified secondary
markets
for the
securities
of these
firms.5
The SEC needs
to be
reformed to
achieve its
important core
functions more
effectively,
to
improve
transparency
and
due
process,
and
to
reduce
unnecessary regulatory
impediments to
capital
formation.6 Under
current
law, the
SEC
Chair-
man has
the authority to make almost all of the necessary changes.7 Unfortunately,
financial regulators, particularly the SEC and the Financial
Industry Regulatory Authority
(FINRA), are
poorly managed
and organized.
With regulatory authority delegated
by the government, both the Public
Company
Accounting
Oversight
Board
(PCAOB)
and
FINRA
have
proved
to
be
ineffective, costly,
opaque,
and
largely
impervious
to
reform.
To
reduce
costs
and improve
transparency, due
process,
congressional
oversight,
and
responsiveness,
PCAOB and
FINRA should
be abolished, and their
regulatory functions should be
merged into the SEC. Furthermore, Congress should establish an
indepen- dent
board
or
commission
and charge
it
with
producing
a
detailed
report
within 18
months
that
examines
the degree
to
which
the
regulatory
functions
of
the
var- ious other
so-called self-regulatory organizations (SROs), which are no
longer self-regulatory
in any
meaningful
sense, should
be moved
to the
SEC.8
Discrimination
based on
immutable
characteristics has no
place in
financial regulation. Offices
at
financial
regulators
that
promote
racist
policies
(usually
in
the
name
of
“diversity,
equity,
and inclusion”)
should
be
abolished,
and regulations
that
require
appointments on
the
basis
of
race,
ethnicity,
sex,
or
sexual
orientation
should be eliminated. Equal
protection of the law, equal opportunity, and individ-
ual merit
should govern
regulatory decisions.9
Congress
has
given
the
SEC
broad “general
exemptive authority,”10 but
the
SEC has
used this
authority only
rarely. It
should use
this authority
significantly
more
often
to
reduce
the
regulatory
burden on
issuers, particularly
smaller entrepreneurs.
ENTREPRENEURIAL
CAPITAL
FORMATION
Financial
regulators should
remove regulatory
impediments to
entrepreneur- ial
capital
formation.11 In
the
absence of
the
fundamental
reform outlined
above, the SEC should:
•
Simplify
and
streamline
Regulation
A
(the
small
issues
exemption)12 and
Regulation
CF
(crowdfunding)13 and
preempt
blue
sky
registration
and
quali-
fication
requirements
for
all
primary and
secondary
Regulation
A
offerings.14
2025 Presidential
Transition Project
•
Either
democratize
access
to
private
offerings
by
broadening
the
definition
of accredited investor for
purposes of
Regulation D
or eliminate the accredited investor restriction altogether.15
•
Allow
traditional
self-certification
of
accredited
investor
status
for
all
Regulation D Rule 506 offerings.
•
Exempt
small
micro-offerings from
registration
requirements.16
•
Exempt
small
and
intermittent
finders
from
broker–dealer
registration
requirements
and
provide
a
simplified
registration
process
for
private
placement brokers.17
•
Exempt
peer-to-peer
lending
from
federal
and
state
securities
laws
and
reduce the
regulatory
burden on
Regulation CF
debt
securities.
•
Make
the
Title
I
Emerging
Growth
Company
(EGC)
exemptions
permanent
for all EGCs.
•
Reduce
the
regulatory
burden
on
small
broker–dealers
and
exempt
privately
held,
non-custodial
broker–dealers
from
the
requirements
to
use
a
PCAOB-
registered firm for their audits.
Congress should:
•
Amend
the
Internal
Revenue
Code
to
disregard
crowdfunding
and Regulation
A
shareholders
for
purposes
of
the
100-shareholder
limit
for
Subchapter S corporations.18
BETTER
CAPITAL
MARKETS
To
improve
capital markets,
the
SEC
should:
•
Preempt
blue sky
registration, qualification, and
continuing reporting requirements for securities traded on established
securities markets (including
a
national
securities
exchange
or
an
alternative
trading
system).19
•
Terminate the
Consolidated
Audit Trail
(CAT)
program.20
•
Abolish
Rule
144
and
other
regulations
that
restrict
securities
resales
and
instead require
a
company
that
has
sold
securities
to
provide
sufficient
current
informa-
tion
to
the
market
to
permit
reasonable
investment
decisions
and
secondary
sales.
Mandate for
Leadership: The Conservative
Promise
Congress should:
•
Prohibit
the SEC from requiring
issuer
disclosure of
social,
ideological, political,
or
“human
capital”
information
that
is
not
material
to
investors’
financial, economic,
or pecuniary
risks or
returns. The
proposed SEC
climate change rule,
which would
quadruple the
costs of
being a
public company, is particularly problematic.21
•
Repeal
the
Dodd–Frank
mandated
disclosures
relating
to
conflict
minerals,
mine safety,
resource
extraction, and
CEO pay
ratios.22
•
Oppose
efforts to
redefine the
purpose of
business in
the name
of social
justice; corporate social responsibility (CSR); stakeholder
theory; environmental,
social,
and
governance
(ESG)
criteria;
socially
responsible
investing (SRI);
sustainability; diversity; business
ethics; or
common- good
capitalism.
•
Prohibit securities
regulators, including SROs, from promulgating rules or
taking
other
actions
that
discriminate,
either
favorably
or
unfavorably,
on the
basis of
the race,
color,
religion, sex,
or national
origin of
such individual or group.
SEC
ADMINISTRATION
To
enable
it
to
achieve its
core mission
more effectively,
the
SEC
should:23
•
Publish
better data
on securities
offerings, securities markets,
and securities law enforcement
and publish
an annual
data book
of time series
data on these
matters.
Specifically, the
SEC Division
of Economic
and
Risk Analysis
(DERA)
needs
to
do
a
much
better
job
of
collecting
and
reporting
fundamental data
regarding offerings,
regulatory costs,
violations,
enforcement,
investors, state regulator
taxes, fees
and
activities, and
other
matters.
•
Ensure
that SEC
resources flow
toward its
core functions
and away
from ancillary
and
support
functions
or
from
missions
that
do
not
fall
within
the SEC’s
statutory charge.
•
Ensure
that
any
three
SEC
Commissioners
are
empowered
to
place
an
item
on the
agenda and
to receive
adequate staff
support to
do so even
without the Chairman’s support.
2025 Presidential
Transition Project
•
Eliminate
all
administrative
proceedings (APs) within
the SEC
except for stop orders
related to
defective
registration statements. The
SEC enforcement system does
not need
to have
both district
court cases
and APs.
Alternatively,
respondents
should
be
allowed
to
elect
whether
an adjudication
occurs
in
the
SEC’s
administrative law
court
or
an
ordinary
Article III federal court.24
•
End
the
practice
of
delegating
the
decision
to
initiate
an
enforcement
case. The
SEC
Chairman—and
possibly
the
U.S.
Government
Accountability Office
(GAO)—should
study
whether
other
Commission
delegation
of
authority to staff
should be
narrowed and
whether
sunsetting of such delegation
of authority
should be
required.
Congress should:
•
Require
an
Inspector
General’s
(or
possibly
a
GAO)
report
regarding
SEC
information
technology
spending
and
contracting.
Spending
appears
to
be
much
too high,
and IT
contracting is
poorly managed.
•
Statutorily
limit the
time for
an
investigation to
two years
with no
extensions.
Long
investigations
harm
private
parties
and
the
quality
of justice.
With
adequate
management
processes,
the
SEC
should
not
need more
than two
years even
for complicated
matters.
The
SEC
Chairman should:
•
Dramatically reduce
the
number of
direct
reports to
the
SEC Chairman.
•
Merge SEC offices that are performing similar functions.
•
Reduce
the
number of
managers
per employee.
CFTC
ADMINISTRATION AND IMPROVED
COMMODITIES AND DERIVATIVES MARKETS
Congress
should:
•
Modernize
the
definition
of
commodity
(which
is
now
largely
a
laundry
list
of agricultural commodities)25
and clarify
the treatment
of digital
assets.
•
Clarify
through
an
express
amendment
to
the
Commodity
Exchange
Act (CEA)26 the
circumstances
that
require
a
foreign
swap
trading
platform
to
Mandate for
Leadership: The Conservative
Promise
register
with the
Commodity Futures
Trading Commission
(CFTC) as
a
swap
execution
facility (SEF)
under Sections
2(i)27 and
5h28 of
the
CEA.
Currently, it
is
not
clear whether
having one
or
a
small number
of
U.S.
participants would
require
SEF
registration
under prior
staff guidance,
which has
led
foreign
swap
trading
platforms to
exclude all
U.S. persons
from their
platforms or
to
go
through the
process of
seeking an
exemption from
registration.
•
Amend
Section
2
of
the
CEA
to
authorize
the
CFTC
Chairman
to
remove
the
agency’s Executive Director without
a Commission
vote.
•
To
augment
Commissioners’
independence,
establish
funding
amounts
for
the
Commissioners’
offices by
statute
with
adjustments
for
inflation,
with
no
requirement
for
a
Commissioner
to
obtain
budget
or
expense
approvals
from the
Chairman or
the agency’s
administrative
staff.
The
CFTC
should:
•
Allocate
more
resources
to
core
agency
functions
rather
than
ancillary
and
support operations.
•
Replace
the
existing
position
limits
rule,
which
reduces
liquidity
and
makes markets
more
volatile,
with
further
delegation
of
authority
to
the
exchanges
to set
position limits
and position
accountability
levels where
appropriate for the relevant market.
•
Reduce
overly
prescriptive rules
implementing
the CFTC’s
core
principles.
•
Apply
the
definitions
of
“U.S.
Person”
and
“Guarantee”
in
the
CFTC’s
2020
rule
on
cross-border
application
of
swaps
regulations
(2020
Cross-Border Rule)29 to
the
regulatory
requirements
that
remain
covered
by
the
CFTC’s
2013 guidance
on the subject (2013
Guidance).30
Currently, the
definition of
each of these
foundational terms differs
depending on whether
the requirement in question
is covered
by the
2020
Cross-Border Rule
or the 2013
Guidance.
•
Remove
the
regulatory
categories
of
“affiliate
conduit”
and
“foreign
consolidated
subsidiary” from the
2013 Guidance
and the
CFTC’s cross-
border
rule
on
margin
for
uncleared
swaps,31 respectively.
These
categories
were
replaced
by
the
concept
of
a
“Significant
Risk
Subsidiary”
for
purposes
of
the
2020
Cross-Border
Rule
because
of
widespread
market
confusion
and
compliance
difficulties arising from
their broad
and vague
scope.
2025
Presidential Transition
Project
DIGITAL
ASSETS
Both
the
SEC
and
the
CFTC have
been irresponsible
actors in
the
digital
asset area.
They have
had more
than a
decade to
promulgate rules governing
digital assets, yet the
SEC has
utterly failed
to do
so, and
the CFTC
has provided
only minimal guidance. Instead, both agencies have chosen
regulation by enforce- ment—and
have done
it poorly.
They neither
adequately protect investors
nor provide responsible market
participants with the
regulatory environment that they
need to thrive.
The SEC and CFTC should clarify the
treatment of digital assets (coins or tokens). Specifically,
they should:
•
Promulgate a joint
regulation providing that
a holder
of digital
assets may
not
be deemed
a
party
to
an
investment
contract
or
an
investor
in
a
common
enterprise unless,
while the
enterprise is a
going concern,
the holder
is entitled to
a share
of the
earnings or
profits of
the common
enterprise or
a
defined
flow of
payments from
the
common
enterprise in
consideration
of
the
investment or
unless, upon
liquidation, the
holder has
rights against
the
assets of
the common
enterprise.
Otherwise, the digital
asset shall
be deemed a
commodity to
be regulated
by the CFTC, not
the SEC.
•
Amend
the
definition
of
commodity
to
include
digital
assets
that
are
not
a security
as so defined and
amend the
definition of security
to make
it clear that
a certificate (digital,
electronic, or otherwise)
that represents
ownership
of
commodities
and
is
convertible into
a
physical
commodity on
demand
is not
a security
but a commodity.
In the absence of regulatory action,
Congress should enact legislation that achieves these goals.
IMPROVED
REGULATION OF
THE INDUSTRY
AND
SROS
Congress
and
the
SEC
need
to
conduct
more robust
oversight of
self-regulatory organizations, and SROs need to be
reformed; otherwise, as discussed above, SRO
regulatory
functions
should be
merged into
the SEC.
The SEC,
FINRA itself,
or Congress should:
•
In
the
absence
of
merging
FINRA
into
the
SEC
as
recommended,
require that:
1.
FINRA’s
Board
of
Governors
meetings
be
open
to
the
public
unless
the
board votes to meet in executive session.
Mandate
for Leadership:
The
Conservative
Promise
2.
FINRA’s
Board
of
Governors’
agenda
be
made
available
to
the
public in advance.
3.
Board
minutes
describing actions
taken
be published
without
delay.
4.
FINRA
make
available
to
the
public
in
advance
rulemakings
that
the
FINRA board is expected to consider.
5.
FINRA
arbitration
and
disciplinary
hearings
should
be
open
to
the
public and reported.
•
Require
FINRA
arbitrators
to
make
findings
of
fact
based
on
the
evidentiary record
and
demonstrate
how
those
facts
led
to
the
award
given
(except
with
respect to
very small
claims). These
written FINRA
arbitration
decisions should be subject
to SEC
review and
limited
judicial review.
•
Require
that
all
SRO
fines,
including
those
imposed
by
FINRA,
should go
either
to
a
newly
established
investor
reimbursement
fund
or
to
the Treasury.
SROs
should
not
have
a
financial
interest
in
imposing
fines.
•
Require
all
SROs
to
conduct
meaningful
cost-benefit
analysis
as
part
of
the
rulemaking process with respect to major rules.
•
Require
all
SROs
to
publish
rules
in
proposed
format
and
seek
public
comment before
they are
submitted to the
SEC or
the CFTC.
•
Require
each SRO
to submit
an annual
report to
Congress with
detailed, specified
information
about its
budget and
fees; its
enforcement
activities (including
sanctions
and fines
imposed
by
type
of
violation
and
type
of
firm or
individual);
its
dispute
resolution
activities;
and
its
rulemaking
activities.
Congress should:
•
Conduct annual
oversight
hearings on
SROs.
•
Either
make FINRA,
the Municipal
Securities Rulemaking Board
(MSRB), and
the
National
Futures
Association
(NFA)
“Designated
Federal
Entities” and
establish
an
inspector
general with
respect
to
financial
SROs,
including
FINRA, the
MSRB, and
the NFA
or place
FINRA, the
MSRB, and
the NFA within
the ambit of an existing inspector general.
2025 Presidential
Transition Project
•
Require
the
SEC
and
the
CFTC
to
publish
a
detailed
annual
report
on
SRO supervision.
AUTHOR’S NOTE:
The preparation of this chapter was a collective enterprise of
individuals involved in the 2025
Presidential
Transition Project. All
contributors to this
chapter are
listed at
the front
of this
volume, but
Paul Atkins, C.
Wallace DeWitt,
Christopher Iacovella, Brian Knight, Chelsea Pizzola, and Andrew Vollmer deserve
special mention.
The
author
alone
assumes
responsibility
for
the
content
of
this
chapter,
and
no
views
expressed
herein should
be attributed to any other individual.
T
Robert
Bowes
he Consumer Financial Protection
Bureau (CFPB) was authorized in 2010 by
the Dodd–Frank
Act.32
Since
the Bureau’s
inception, its
status as
an “inde-
pendent” agency
with
no
congressional
oversight
has
been
questioned
in
multiple
court cases,
and
the
agency
has
been
assailed
by
critics33 as
a
shakedown
mecha-
nism
to
provide
unaccountable
funding
to
leftist
nonprofits politically
aligned with
those
who
spearheaded
its
creation.
In 2015, for
example,
Investor’s Business Daily
accused the CFPB
of “diverting
potentially millions
of
dollars
in
settlement
payments
for
alleged
victims
of
lending bias
to a
slush fund
for poverty
groups tied
to the
Democratic Party” and
plan- ning
“to
create
a
so-called
Civil
Penalty
Fund
from
its
own
shakedown
operations
targeting financial
institutions” that would
use “ramped-up
(and
trumped-up)
anti-discrimination
lawsuits
and
investigations”
to
“bankroll
some
60
liberal
non-
profits,
many of
whom
are
radical
Acorn-style
pressure
groups.”34
The CFPB has
a fiscal
year (FY)
2023 budget
of $653.2
million35
and
1,635 full-
time equivalent (FTE)
employees.36
From
FY 2012
through FY
2020, it
imposed approximately $1.25 billion in civil money
penalties;37 in FY 2022, it imposed
approximately $172.5 million in civil money penalties.38 These penalties are
imposed
by
the
CFPB
Civil
Penalty
Fund,
described
as “a
victims
relief
fund,
into which
the CFPB
deposits civil
penalties it
collects in
judicial and
administrative actions
under Federal consumer
financial
laws.”39
The
CFPB is
headed by
a
single
Director who
is
appointed
by
the
President to
a
five-year
term.40 Its
organizational
structure includes
five divisions:
Operations; Consumer Education and External Affairs;
Legal; Supervision, Enforcement and
Fair Lending; and Research, Monitoring and Regulations.41 Each of these divisions reports
to the
Office of
the Director,
except for
the Operations
Division, which
reports to the Deputy Director.
Passage
of Title
X of
Dodd–Frank was a
bid to
placate concern
over a
series of
regulatory failures identified
in the
wake of
the 2008
financial crisis. The
law imported
a
new
superstructure
of
federal
regulation over
consumer
finance and
Mandate for
Leadership: The Conservative
Promise
mortgage
lending and
servicing industries
traditionally
regulated
by
state
bank- ing
regulators. Consumer protection
responsibilities previously handled
by the Office
of the Comptroller
of the
Currency,
Office of
Thrift
Supervision, Federal
Deposit
Insurance
Corporation,
Federal
Reserve,
National
Credit
Union
Admin-
istration, and Federal Trade
Commission were transferred to and consolidated in
the
CFPB,
which
issues
rules,
orders,
and guidance
to
implement
federal
consumer
financial law.
The
CFPB collects
fines from
the
private
sector that
are
put
into the
Civil Pen- alty
Fund.42 The
fund
serves two
ostensible purposes:
to
compensate
the
victims
whom the
CFPB perceives to be harmed and to underwrite “consumer
education”
and
“financial
literacy” programs.43 How
the
Civil
Penalty Fund
is
spent
is
at
the discretion
of the
CFPB Director.
The CFPB
has been
unclear as
to how it
decides what
“consumer
education”
or
“financial
literacy
programs”
to
fund.44 As
noted, critics
have charged
that money
from the
Civil Penalty
Fund has
ended up
in
the
pockets of leftist activist
organizations.
In Seila
Law LLC
v. Consumer
Financial Protection Bureau,45 the Supreme Court
of
the
United
States
held
that
the
CFPB’s
leadership
by a
single
individual
remov-
able only for inefficiency,
neglect, or malfeasance violated constitutional separation
of powers requirements
because “[t]he
Constitution
requires that
such officials
remain dependent on
the President,
who in
turn is
accountable to the
people.”46
The CFPB Director is thus
subject to removal by the President.
The CFPB is not subject to
congressional oversight, and its funding is not
determined
by
elected
lawmakers
in
Congress
as
part
of
the
typical
congressional
appropriations
process. It
receives its
funding from
the Federal
Reserve, which
is itself funded outside the appropriations process through bank
assessments. CFPB
funding represents
12 percent
of the total operating
expenses of
the Fed- eral
Reserve
and
is
disbursed
by
the
unelected
Board
of
Governors
of
the
Federal Reserve
System.47 This is not
the case
with respect
to any
other federal
agency.
On October
19, 2022,
in
Community
Financial
Services Association of
America
v. Consumer Financial Protection
Bureau, the U.S. Court of
Appeals for the Fifth Circuit
held that the CFPB’s “perpetual insulation from Congress’s
appropriations power, including the express exemption from
congressional review of its funding,
renders
the
Bureau
‘no
longer
dependent
and,
as
a
result,
no
longer
accountable’ to
Congress
and,
ultimately, to
the
people”48 and
that
“[b]y
abandoning its
‘most
complete
and effectual’
check
on
‘the
overgrown prerogatives
of
the
other
branches of
the
government’—indeed,
by
enabling
them
in
the
Bureau’s
case—Congress
ran
afoul
of
the
separation
of powers
embodied
in
the
Appropriations
Clause.”49 The Court further
remarked that the CFPB’s “capacious portfolio of authority acts
‘as a
mini legislature, prosecutor, and court, responsible for
creating substantive rules
for a
wide swath
of
industries,
prosecuting violations,
and
levying
knee-buckling penalties
against private citizens.’”50
2025 Presidential
Transition Project
On February 27, 2023, the Supreme
Court granted the petition for a
writ of certiorari.51
The Court should issue
its final decision by 2024.
The
CFPB is
a
highly
politicized, damaging,
and
utterly
unaccountable
federal agency.52
It
is
unconstitutional. Congress should
abolish the
CFPB and
reverse Dodd–Frank Section 1061, thus returning the
consumer protection function of the
CFPB to
banking
regulators53
and
the Federal
Trade
Commission. Provided
the Supreme
Court affirms
the Fifth
Circuit
holding in
Community
Financial Ser- vices Association of America, the next conservative
President should order the
immediate
dissolution
of
the
agency—pull
down
its
prior
rules,
regulations
and guidance,
return its
staff to
their prior
agencies and
its building
to the
General Services Administration.
Until
this
can
be
accomplished,
however, Congress
should:
•
Ensure that any civil penalty funds not used to recompense
wronged consumers
go to
the Department
of the
Treasury.
The funds should
not
be
retained by
the Bureau to
be dispensed
at the
pleasure of
the Director— potentially
to political
actors.
Moreover, the
CFPB should
not have
a financial incentive to impose penalties.
•
Repeal Dodd–Frank Section 1071.
This section, which relates to small-
business
data
collection,
imposes
requirements
on
financial
institutions’
lending to
small firms,
raises costs,
and limits
small
businesses’ access
to
capital.54
•
Require that no CFPB funds are spent on enforcement actions
that are not
based on
a rulemaking
that complies
with the
Administrative Procedure
Act.55
•
Require that respondents in administrative actions be
allowed to elect
whether an
adjudication
occurs in
an administrative law
court or an ordinary Article III federal court.56
•
Specify the
nature of
“deceptive, unfair, and
abusive”
practices to define
the scope of the CFPB mission more precisely.
Mandate for
Leadership: The Conservative
Promise
ENDNOTES
1.
H.R.
5480, Securities Act of
1933, Public
Law No.
73-22, 73rd
Congress, May
27, 1933,
https://govtrackus.
s3.amazonaws.com/legislink/pdf/stat/48/STATUTE-48-Pg74.pdf
(accessed
February
20,
2023).
2.
H.R.
9323,
Securities Exchange Act
of 1934,
Public Law
No. 73-291,
73rd Congress,
June
6, 1934,
https://
govtrackus.s3.amazonaws.com/legislink/pdf/stat/48/STATUTE-48-Pg881a.pdf
(accessed
February
20,
2023).
3.
Mark
T.
Uyeda,
Commissioner,
U.S.
Securities
and
Exchange
Commission,
“Remarks
at
the
2022
Cato Summit
on
Financial
Regulation,”
November
17,
2022,
https://www.sec.gov/news/speech/uyeda-remarks-
cato-summit-financial-regulation-111722 (accessed
February 20, 2023); Hester M. Peirce, Commissioner, U.S. Securities
and
Exchange
Commission,
“It’s
Not
Just
Scope
3:
Remarks
at
the
American
Enterprise
Institute,”
December 7, 2022,
https://www.sec.gov/news/speech/peirce-remarks-american-enterprise-institute-120722
(accessed February 20, 2023);
comment letter from David R. Burton to Vanessa A. Countryman,
Secretary, Securities
and
Exchange
Commission,
“Re:
The
Enhancement
and
Standardization
of
Climate-Related
Disclosures for Investors [File No. S7-10-2; Release No.
33-11042; RIN 3235-AM87],” June 17, 2022,
https://www.
sec.gov/comments/s7-10-22/s71022-20131980-302443.pdf
(accessed February 20, 2023).
4.
Size
would
probably
be
measured
best
by
public
float
or
the
number
of
beneficial
owners.
5.
See David R. Burton, “Securities Disclosure Reform,”
Heritage Foundation
Backgrounder
No. 3178,
February
13,
2017,
https://www.heritage.org/sites/default/files/2017-02/BG3178.pdf;
David
R.
Burton,
“Offering
and
Disclosure
Reform,”
Chapter 11
in
Reframing
Financial Regulation: Enhancing Stability and Protecting
Consumers,
ed.
Hester
Peirce
and
Benjamin
Klutsey
(Arlington,
VA:
Mercatus
Center
at
George
Mason
University, 2016), pp.
277–315,
https://www.mercatus.org/research/books/reframing-financial-regulation
(accessed
February
20,
2023);
Andrew
N.
Vollmer,
“Investor-Friendly
Securities
Reform
to
Increase
Economic
Growth,”
Securities Regulation & Law Report, Bloomberg BNA, Vol. 49, June 5, 2017.
6.
See,
for
example,
David
R.
Burton,
“Reforming
the
Securities
and
Exchange
Commission,”
Heritage
Foundation
Backgrounder
No. 3378,
January 30, 2019,
https://www.heritage.org/sites/default/files/2019-01/
BG3378.pdf;
Andrew
N.
Vollmer,
“Testimony
on
Workforce
Management
Disclosures
and
Other
SEC
Issues,” submitted
to
the
Subcommittee
on
Investor
Protection,
Entrepreneurship,
and
Capital
Markets,
Committee
on Financial Services, U.S.
House of Representatives, December 6, 2022,
https://www.congress.gov/117/
meeting/house/115227/witnesses/HHRG-117-BA16-Wstate-VollmerA-20221208.pdf
(accessed February 20,
2023); David R. Burton,
“Reforming FINRA,” Heritage Foundation
Backgrounder
No. 3181, February 1, 2017,
https://www.heritage.org/sites/default/files/2017-02/BG3181.pdf; Hester
Peirce, “The Financial Industry
Regulatory Authority: Not
Self-Regulation After All,” Mercatus Center at George Mason
University
Working
Paper,
January 2015,
https://www.mercatus.org/research/working-papers/financial-industry-regulatory-
authority-not-self-regulation-after-all
(accessed February 20, 2023); Thaya Brook Knight, “Transparency
and
Accountability at the SEC and
at FINRA,” Chapter 11 in
Prosperity Unleashed: Smarter Financial
Regulation,
ed.
Norbert
J.
Michel,
(Washington:
The
Heritage
Foundation,
2017)
https://www.heritage.org/sites/default/
files/2017-02/11_ProsperityUnleashed_Chapter11.pdf.
7.
Reorganization Plan No. 10 of 1950, U.S. Code Title
5—Appendix, Reorganization Plans,
http://uscode.house.
gov/view.xhtml?req=granuleid:USC-prelim-title5a-node84-leaf114&num=0&edition=prelim
(accessed February 20, 2023).
8.
The
board
or
commission
should
evaluate
the
regulatory
functions
of
the
National
Securities
Exchanges,
Registered Securities Future
Product Exchanges,
Registered Clearing Agencies (such as the Depository Trust
Company (DTC), the National
Securities Clearing Corporation (NSCC) and the Options Clearing
Corporation (OCC)),
the Municipal Securities
Rulemaking
Board (MSRB) and the National Futures Association (NFA). This
board or commission should
have a
broad
composition and
permit minority
reports.
9.
Boyden
Gray &
Associates,
Comments Submitted
on Behalf
of Alliance
for Fair
Board
Recruitment Concerning
the Nasdaq Stock Market LLC; Notice of Filing of Proposed Rule Change to
Adopt Listing Rules Related
to Board Diversity,
Amendment No. 1, File No. SR-NASDAQ-2020-081,
April
6, 2021
https://www.sec.gov/
comments/sr-nasdaq-2020-081/srnasdaq2020081-8639478-230941.pdf
(accessed
February
20,
2023);
David R. Burton, “Nasdaq’s
Proposed Board-Diversity Rule Is Immoral and Has No Basis in
Economics,” Heritage
Foundation
Backgrounder
No. 3591, March 9, 2021,
https://www.heritage.org/sites/default/
files/2021-03/BG3591_0.pdf.
The
SEC
is
contemplating
at
least
two
rules
that
can
be
expected
to
require
differential
treatment
based
on
race,
sex,
ethnicity,
and
so
on.
See
Executive
Office
of
the
President,
Office
2025 Presidential
Transition Project
of Management and
Budget, Office
of Information and Regulatory
Affairs, “Fall
2022 Unified
Agenda of
Regulatory
and Deregulatory
Actions:
Active
Regulatory
Actions
Listed
by
Agency,”
https://www.reginfo.gov/
public/do/eAgendaMain
(accessed February 20, 2023); “Human Capital Management
Disclosure,” RIN: 3235-
AM88,
https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202204&RIN=3235-AM88
(accessed
February 20, 2023);
“Corporate Board Diversity,” RIN: 3235-AL91,
https://www.reginfo.gov/public/do/
eAgendaViewRule?pubId=202204&RIN=3235-AL91
(accessed February 20, 2023).
10.
15 U.S. Code § 77z–3,
https://www.law.cornell.edu/uscode/text/15/77z-3
(accessed February 20, 2023); 15 U.S.
Code § 78mm,
https://www.law.cornell.edu/uscode/text/15/78mm
(accessed February 20, 2023).
11.
S.
, Jumpstart Our Business
Startups Act of 2022, discussion draft, 117th Congress, 2nd
Session,
https://
www.banking.senate.gov/imo/media/doc/the_jobs_act_4.0discussiondraft.pdf
(accessed February 20,
2023); David R. Burton,
“Entrepreneurial Capital Formation,” Testimony before the
Committee on Banking,
Housing, and Urban Affairs, U.S. Senate, April 5, 2022,
https://www.heritage.org/testimony/entrepreneurial-
capital-formation; “Removing Barriers to Small Business
Capital Formation and Expanding Investor Opportunities,”
Section
6
in
Nicholas
Anthony,
Norbert
J.
Michel,
Jennifer
J.
Schulp,
George
Selgin,
and
Jack
Solowey, “Sound Financial
Policy: Principled Recommendations for the 118th Congress,” ed.
Norbert J. Michel and
Ann Rulon, Cato Institute, 2022, pp. 22–27,
https://www.cato.org/sites/cato.org/files/2022-10/sound-
financial-policy-118th-congress.pdf
(accessed
February
20,
2023);
David
R.
Burton
and
Norbert
J.
Michel,
Proposals to
Foster
Economic Growth
and Capital
Formation, Submission
to Committee
on Banking,
Housing, and
Urban
Affairs,
U.S.
Senate,
March
18,
2021,
https://www.banking.senate.gov/imo/media/doc/David%20
Burton%20and%20Norbert%20Michel%20-%202021-3-18.pdf
(accessed
February
20,
2023);
David
R.
Burton,
“Improving Entrepreneurs’
Access to Capital:
Vital for Economic Growth,”
Heritage Foundation
Backgrounder
No.
3182, February 14, 2017,
https://www.heritage.org/sites/default/files/2017-02/BG3182.pdf.
12.
The
small issues exemptive authority has been in the Securities Act
since its initial enactment.
13.
The crowdfunding exemption was
created
by Title III of the 2012 JOBS
Act. See H.R. 3606, Jumpstart Our
Business Startups Act, Public
Law
No. 112-106, 112th Congress,
April 5, 2021, Title III, § 302,
https://www.
govinfo.gov/content/pkg/PLAW-112publ106/pdf/PLAW-112publ106.pdf
(accessed February 20, 2023).
14.
Burton,
“Improving
Entrepreneurs’
Access
to
Capital:
Vital
for
Economic
Growth”;
Rutheford
B.
Campbell
Jr., “The Case for Federal
Pre-Emption of State Blue Sky Laws,” Chapter 6 in
Prosperity Unleashed: Smarter
Financial Regulation,
https://www.heritage.org/sites/default/files/2017-02/06_ProsperityUnleashed_
Chapter06.pdf.
15.
Andrew N. Vollmer, “Abandon the Concept of Accredited
Investors in Private Securities Offerings,”
Securities
Regulation
Law Journal,
Vol. 49,
No. 5
(Spring 2021),
https://papers.ssrn.com/sol3/papers.cfm?abstract_
id=3719280 (accessed February 20, 2023); Thaya Brook
Knight, “Your Money’s No Good Here: How Restrictions
on
Private
Securities Offerings
Harm
Investors,” Cato
Institute
Policy Analysis
No. 833,
February 9,
2018,
https://
www.cato.org/sites/cato.org/files/pubs/pdf/pa833.pdf
(accessed February 20, 2023); David R. Burton, “Congress Should
Increase
Access
to
Private
Securities
Offerings,”
Heritage
Foundation
Issue
Brief
No.
4899,
August
29,
2018,
https://www.heritage.org/sites/default/files/2018-08/IB4899.pdf; Andrew
N. Vollmer, “Evidence on the
Use of Disclosure Documents in Private Securities
Offerings to Accredited Investors,” Mercatus Center at George
Mason
University
Working
Paper,
October
22,
2020,
https://www.mercatus.org/publications/financial-regulation/
evidence-use-disclosure-documents-private-securities-offerings-0 (accessed February 20, 2023).
16.
For a
detailed
discussion, see
“Micro-Offerings,” Section IId
in Burton
and Michel,
Proposals to
Foster
Economic Growth and Capital Formation,
pp.
15–17.
17.
David R. Burton, “Let Entrepreneurs Raise Capital Using
Finders and Private Placement Brokers,” Heritage Foundation
Backgrounder
No. 3328, July 10, 2018,
https://www.heritage.org/sites/default/files/2018-07/
BG3328.pdf; Andrew N. Vollmer,
“Make
It Easy for Startups to Sell
Stock,” Mercatus Center at George Mason
University
Discourse,
September
21,
2020,
https://www.mercatus.org/bridge/commentary/make-it-easy-
startups-sell-stock
(accessed
February
20,
2023).
18.
See H.R. 531, S-Corp Access
to Crowdfunding Act, 115th
Congress, introduced January 13, 2017,
https://www.
govinfo.gov/content/pkg/BILLS-115hr531ih/pdf/BILLS-115hr531ih.pdf
(accessed February 20, 2023); David
Burton,
“The
Tax
Law
Makes
It
Almost
Impossible
for ‘S
Corporations’
to
Use
Equity
Crowdfunding,”
The
Daily
Signal, April
19,
2016,
https://www.dailysignal.com/2016/04/19/the-tax-law-makes-it-almost-impossible-for-
s-corporations-to-use-equity-crowdfunding/.
Mandate for
Leadership: The Conservative
Promise
19.
Burton,
“Improving
Entrepreneurs’
Access
to
Capital:
Vital
for
Economic
Growth”;
Campbell,
“The
Case
for Federal Pre-Emption
of State
Blue Sky
Laws.”
20.
David R. Burton, “Why the SEC’s Consolidated Audit Trail Is
a Bad Idea,” Heritage Foundation
Commentary, December 5, 2019,
https://www.heritage.org/monetary-policy/commentary/why-the-secs-consolidated-
audit-trail-bad-idea; Hester
M. Peirce,
Commissioner,
U.S. Securities and Exchange Commission, “Statement
on
the
Order
Granting
Temporary
Conditional
Exemptive
Relief
from
Certain
Requirements
of
the
National
Market System
Plan
Governing
the
Consolidated
Audit
Trail,”
July
8,
2022,
https://www.sec.gov/news/
statement/peirce-statement-consolidated-audit-trail-070822
(accessed February 20,
2023).
21.
Peirce,
“It’s
Not
Just
Scope
3:
Remarks
at
the
American
Enterprise
Institute”;
Uyeda,
“Remarks
at
the
2022 Cato Summit on Financial Regulation.”
22.
David
R.
Burton,
“How
Dodd–Frank
Mandated
Disclosures
Harm,
Rather
than
Protect,
Investors,”
Heritage Foundation
Issue
Brief
No.
4526, March 10, 2016,
http://thf-reports.s3.amazonaws.com/2016/IB4526.pdf.
23.
For
a
detailed
discussion
of
SEC
administration,
see
Burton,
“Reforming
the
Securities
and
Exchange Commission.”
24.
See, for example, Andrew N. Vollmer, “Accusers as
Adjudicators in Agency Enforcement Proceedings,”
University of
Michigan Journal
of Law
Reform, Vol.
52,
No.
1
(Fall
2018),
pp.
103–155,
https://repository.law.
umich.edu/cgi/viewcontent.cgi?article=1602&context=mjlr (accessed
February 20, 2023).
25.
7
U.S.C.
§
1a(9),
https://www.law.cornell.edu/uscode/text/7/1a
(accessed
February
20,
2023).
26.
Or
the
CFTC
can
undertake
a
rulemaking.
27.
7 U.S.C. §
2(i),
https://www.law.cornell.edu/uscode/text/7/2 (accessed
February 20,
2023).
28.
7
U.S.C.
§
7b–3,
https://www.law.cornell.edu/uscode/text/7/7b-3
(accessed
February
20,
2923).
29.
Commodity
Futures
Trading
Commission,
“Cross-Border
Application
of
the
Registration
Thresholds
and Certain Requirements Applicable
to Swap Dealers and Major Swap Participants,” Final Rule,
Federal Register,
Vol. 85, No. 178 (September
14, 2020), pp. 56924–57016,
https://www.govinfo.gov/content/pkg/FR-2020-09-
14/pdf/2020-16489.pdf
(accessed
February
21,
2023).
30.
Commodity
Futures
Trading
Commission,
“Interpretive
Guidance
and
Policy
Statement
Regarding
Compliance with Certain Swap
Regulations,”
Federal
Register, Vol. 78, No. 144
(July
26, 2013), pp. 45292–45374,
https://
www.cftc.gov/sites/default/files/idc/groups/public/@lrfederalregister/documents/file/2013-17958a.pdf (accessed February 21,
2023).
31.
Commodity Futures Trading Commission, “Margin Requirements
for Uncleared Swaps for Swap Dealers and
Major Swap
Participants—Cross-Border Application of the Margin
Requirements,” Final Rule,
Federal
Register,
Vol. 81, No. 104 (May 31,
2016), pp. 34818–34854,
https://www.govinfo.gov/content/pkg/FR-2016-05-31/
pdf/2016-12612.pdf
(accessed
February 21,
2023).
32.
H.R. 4173, Dodd–Frank Wall
Street Reform and Consumer Protection Act, Public Law 111–203,
111th Congress, July
21, 2010, Title
X,
https://www.congress.gov/111/plaws/publ203/PLAW-111publ203.pdf
(accessed March 23,
2023). See also Consumer
Financial Protection Bureau, “About Us,”
https://www.consumerfinance.gov/about-
us/ (accessed March 23, 2023).
33.
See, for example, Paul Sperry,
“Trump Is Finally Fixing This
Economy-Killing Agency,”
New
York
Post,
December
2,
2017,
https://nypost.com/2017/12/02/trump-is-finally-fixing-this-economy-killing-agency/
(accessed
March
23,
2023).
See
also
Jeb
Hensarling
“How
We’ll
Stop
a
Rogue
Federal
Agency,”
The Wall
Street
Journal,
February
8,
2017,
https://www.wsj.com/articles/how-well-stop-a-rogue-federal-
agency-1486597413
(accessed March
23, 2023),
and H.R.
3389, CFPB
Slush Fund
Elimination
Act of
2013, 113th
Congress, introduced October 30, 2013,
https://www.congress.gov/113/bills/hr3389/BILLS-113hr3389ih.pdf
(accessed March
23,
2023).
34.
Editorial,
“CFPB Joins
Justice in
Shaking Down
Banks for
Democrat
Activist Groups,”
Investor’s
Business Daily, June 17, 2015,
https://www.investors.com/politics/editorials/cfpb-diverts-civil-penalty-funds-to-democrat-
activist-groups/
(accessed
March
23,
2023).
35.
Table, “Budget by Program,” in Consumer Financial Protection
Bureau,
Annual
Performance Plan and Report,
and Budget
Overview,
February 2023,
p. 15,
https://files.consumerfinance.gov/f/documents/cfpb_
performance-plan-and-report_fy23.pdf
(accessed March
23, 2023).
36.
Table, “FTE
by
Program,”
in ibid.,
p.
16.
2025 Presidential
Transition Project
37.
Table 7, “Civil Penalty Fund Significant Activity,” in
Consumer Financial Protection Bureau,
Financial Report
of the
Consumer Financial
Protection Bureau,
Fiscal Year
2022, November
15,
2022,
p.
21,
https://files.
consumerfinance.gov/f/documents/cfpb_financial-report_fy2022.pdf
(accessed March 23, 2023).
38.
Ibid.
39.
Consumer Financial
Protection
Bureau,
Financial Report of the Consumer Financial Protection
Bureau, Fiscal
Year 2022, p. 20.
40.
12
U.S.
Code
§
5491,
https://www.law.cornell.edu/uscode/text/12/5491
(accessed
March
23,
2023).
41.
Consumer
Financial
Protection
Bureau,
“Bureau
Structure,”
last
updated
March
15,
2023,
https://www.
consumerfinance.gov/about-us/the-bureau/bureau-structure/
(accessed March 23, 2023).
42.
See
Consumer
Financial
Protection
Bureau,
“Consumer
Financial
Civil
Penalty
Fund
Rule,”
https://www.
consumerfinance.gov/rules-policy/final-rules/consumer-financial-civil-penalty-fund-rule/
(accessed March 23, 2023).
43.
Consumer
Financial
Protection
Bureau,
“Civil
Penalty
Fund:
Consumer
Education
and
Financial
Literacy,”
https://www.consumerfinance.gov/enforcement/payments-harmed-consumers/civil-penalty-fund/consumer-
education-financial-literacy/
(accessed March
23, 2023).
44.
U.S. Government
Accountability
Office,
Consumer Financial Protection Bureau: Opportunity Exists to
Improve
Transparency of Civil Penalty Fund
Activities,
GAO-14-551,
June
2014,
https://www.gao.gov/assets/gao-14-551.
pdf (accessed March 23, 2023).
45.
Seila Law
LLC v.
Consumer
Financial Protection
Bureau,
591 U.S.
(2020),
https://www.supremecourt.gov/
opinions/19pdf/19-7_n6io.pdf (accessed March 23, 2023).
46.
Ibid.,
p.
37.
47.
See 12 U.S. Code §
5497(a)(1),
https://www.law.cornell.edu/uscode/text/12/5497
(accessed March 23, 2023).
Congress
specified
that
the
amount
transferred
to
the
CFPB
“shall
not
exceed”
12
percent
“of
the
total
operating expenses
of
the
Federal
Reserve
System…in
fiscal
year
2013,
and
in
each
year
thereafter.”
Ibid.,
§
5497(2)(A)(iii).
48.
Community
Financial
Services
Association
of
America
v.
Consumer
Financial
Protection
Bureau
(5th
Cir.
2022),
pp.
31–32,
https://www.ca5.uscourts.gov/opinions/pub/21/21-50826-CV0.pdf
(accessed
March
23,
2023).
49.
Ibid.,
p.
32.
50.
Ibid.
(quoting
Seila
Law LLC
v. CFPB,
140
S.
Ct.
2183,
2202
n.
8
(2020)).
51.
U.S. Supreme Court, “Order List: 598 U.S.,” February 27,
2023, Docket No. 22–448,
CFPB
et al.
v. Com.
Fin.
Services Assn., et
al.,
https://www.supremecourt.gov/orders/courtorders/022723zor_6537.pdf
(accessed March 23, 2023).
52.
Devin Watkins, Competitive
Enterprise Institute, “Consumer Financial Protection Bureau:
Ripe for Reform,” testimony
before the
Subcommittee
on Financial
Institutions and Monetary
Policy,
Committee on
Financial
Services,
U.S.
House
of
Representatives,
March
9,
2023,
https://docs.house.gov/meetings/BA/
BA20/20230309/115384/HHRG-118-BA20-Wstate-WatkinsD-20230309.pdf
(accessed March 23, 2023);
Norbert J. Michel, “7
Steps
Next Director Can Take to
Make the Consumer Financial Protection Bureau Less
Awful,”
Heritage
Foundation
Commentary,
July
28,
2018,
https://www.heritage.org/markets-and-finance/
commentary/7-steps-next-director-can-take-make-the-consumer-financial.
53.
The
Office
of
the
Comptroller
of
the
Currency
(OCC),
Federal
Deposit
Insurance
Corporation,
Federal
Reserve, and National Credit Union
Administration. Those functions performed by the Office of
Thrift Supervision (OTS)
prior
to
Dodd–Frank
should
be
transferred
to
the
OCC
since
OTS
has
merged
with
OCC.
54.
See “Section 1071 of the
Dodd–Frank Act” in David R.
Burton, “Improving Small Business Access to Capital,”
Consumer Financial Protection
Bureau Symposium
on Section 1071 of the
Dodd–Frank Act, Small Business Lending
Panel, November
6, 2019,
https://files.consumerfinance.gov/f/documents/cfpb_burton-written-
statement_symposium-section-1071.pdf
(accessed
March
23,
2023).
55.
5
U.S.
Code
Chapter
5,
https://www.law.cornell.edu/uscode/text/5/part-I/chapter-5
(accessed
March
23,
2023).
56.
Consumer Financial Protection Bureau, “Administrative
Adjudication Proceedings,”
https://www.
consumerfinance.gov/administrative-adjudication-proceedings/
(accessed March 23, 2023), and 12 Code of
Federal
Regulations
Part
1081—Rules
of
Practice
for
Adjudication
Proceedings,
https://www.law.cornell.edu/
cfr/text/12/part-1081
(accessed March 23, 2023).
COMMISSION
MISSION
STATEMENT
The
FCC
should
promote freedom
of
speech,
unleash economic
opportunity, ensure
that every
American has
a fair shot
at
next-generation
connectivity, and enable
the
private
sector
to
create
good-paying
jobs
through
pro-growth
reforms that
support
a
diversity
of viewpoints,
ensure
secure
and
competitive
communi-
cations networks,
modernize outdated
infrastructure rules,
and represent
good stewardship of taxpayer dollars.
OVERVIEW
AND
BACKGROUND
The
FCC
is
an
independent
regulatory agency
that has
jurisdiction over
inter- state
and
international
communications by radio,
television, wire, satellite,
and cable.1 Five
Commissioners
are
appointed
by
the
President and
confirmed by
the Senate for
fixed five-year
terms.2 The
FCC
does not
have any
other presidentially
appointed, Senate-confirmed officials. Ordinarily, the
five-member FCC is divided
politically
three to
two
with
a
majority
of
Commissioners
from the
same political
party
as
the
President.
The
Commissioners’
terms are
staggered so
that every
year
at
the
end
of
June,
one
Commissioner’s
term expires.3 However,
a
Commissioner can
continue to
serve until
the end
of the
next session
of Congress
(or up
to 1.5
years beyond
the
expiration
of
the
term)
if
no
replacement
is
confirmed
after
his or her term
ends.4
By law, only
a bare
majority of
Commissioners
can be
from the
same politi-
cal party (no more than three when there are five members).5 By tradition, the
Chairperson resigns
when
a
new
President
of
a
different
political
party
is
sworn
Mandate for
Leadership: The Conservative
Promise
into
office—though
this
is
not
required by
law. By
resigning, the
exiting Commis-
sioner
enables the
President to
nominate
someone from
his own
political
party to the
FCC, and
this typically shifts the
political balance on
the FCC
toward the
President’s
political
party.
The
President
generally
designates
one
of
the
existing Commissioners
of
the
President’s same
political
party
as
Chairperson—either
on an
acting or
a permanent
basis—on or
shortly after
Inauguration
Day.
Under
a
tradition
that dates
back a
few
decades,
when a
relevant vacancy
arises, the President allows the leader of the opposite
political party in the Senate to select
the
person
who
will
serve in the minority
Commissioner role. The
President
then formally
nominates the person
identified by Senate
leadership. This also
is not
required by law.
As
specified in
the
Communications
Act
of
1934, the
FCC’s Chairperson
serves
as
the
agency’s
CEO
and
is
empowered
with significant
authority that
is
not
shared
with
other
Commissioners.6 For
instance,
the
Chairperson
sets the
FCC’s agenda,
decides what
matters the agency will vote on and when, and has authority to
orga- nize
and coordinate
the FCC’s
work.7
There
is no
separate Senate
confirmation process for
the
position
of
FCC
Chairperson;
the
President
designates
one
of
the
Commissioners to
serve
as
Chairperson
through
a
short
one-sentence
or
two-sen- tence
letter.8 There are no
limits on
the number of
terms that
a person can
serve as
an
FCC
Commissioner,
though
Commissioners
need
to
be
nominated
and
con- firmed for
each five-year term.
FCC Budget and Structure.
In
recent years,
the FCC
has employed
between 1,300
and
1,500
people.9 The
FCC’s
fiscal
year 2023
budget request
is
for
approx- imately $390.2
million.10
While Congress
appropriates funds for the FCC, the
agency’s
budget
is
offset
by
what
are
known
as
regulatory
fees—fees
the
FCC
col- lects
from the
licensees and other
entities that
it regulates and uses
to offset
its budget request. The
FCC also
raises revenue
for the
government by auctioning spectrum
licenses. In fact,
the FCC
has generated
more than
$200 billion
for the
U.S.
Treasury
through spectrum
auctions.11
The FCC is
organized into
a series of
bureaus and
offices based
on function.
These
include
an Office
of
General
Counsel,
Office
of
Inspector
General,
Office
of
Legislative Affairs, Media
Bureau, Wireless Telecommunications Bureau, Wireline
Competition Bureau, Enforcement Bureau, and more.12
High-Profile FCC Matters.
The FCC addresses a number of important mat- ters. For instance,
Section 230 is codified in the Communications Act,13
and the FCC
has authority to interpret
that law
and thus
provide courts
with guidance
about the proper
application of the
statutory language.14
The
FCC has
addressed “net
neutrality”
rules
and
the
regulatory
framework
that
should
apply
to
broadband
offerings. Any
merger that
involves a
wireless
company, broadcaster,
or similar
entity that holds an FCC license must obtain FCC approval
(assuming that the merger will involve
the transfer
of the
FCC license).
2025 Presidential
Transition Project
The
FCC has
facilitated the transition
from 3G
to 4G
and now
5G offerings
in two
ways.
First,
it
has
freed
spectrum—the
airwaves
needed
to
deliver
wireless
ser- vices.
Second,
it has
preempted
state
and
local
siting
and
permitting
laws
that
could otherwise
slow down
the buildout
of
next-generation
infrastructure. One of
the FCC’s
great
success
stories
from
2017
to
2020
was
securing
U.S.
leadership
in
5G. The
FCC
also
administers
an
approximately
roughly
$9
billion-a-year
program called
the Universal Service Fund
(USF), which
has been
funded by
a line-item
charge that traditional telephone companies add to consumers’
monthly bills. Expenditures
from
this
fund
subsidize
rural broadband
networks
and
low-income
programs
as
well
as
connections
for
schools,
libraries,
and
rural
health
care
facil-
ities.
Through
various
COVID-era
laws, Congress
has
also
provided
the
FCC
with
a
one-time $24
billion appropriation
for
various
low-income initiatives.
POLICY
PRIORITIES
The
FCC needs
to change
course and
bring new
urgency to
achieving four main goals:
•
Reining in
Big
Tech,
•
Promoting national
security,
•
Unleashing economic
prosperity,
and
•
Ensuring FCC
accountability
and good
governance.15
Reining in Big Tech. The
FCC has an important role to play in addressing
the
threats
to
individual
liberty posed
by
corporations
that
are
abusing
dominant
positions in
the market.
Nowhere is
that clearer
than when
it comes
to Big
Tech and
its
attempts
to
drive
diverse
political
viewpoints
from
the
digital
town
square. Today,
a handful
of corporations
can shape
everything from the
information we consume to
the places
we shop.
These corporate
behemoths are
not merely exercising
market
power;
they
are
abusing
dominant
positions.
They
are
not
simply
prevailing in
the free
market; they
are taking
advantage of
a landscape
that has
been
skewed—in
many cases
by
the
government—to
favor
their
business
models over those
of their
competitors. It
is hard
to imagine
another industry in which
a
greater
gap
exists
between power
and
accountability.
That is
why
a
new
Adminis-
tration
should support
FCC
action
on
several
fronts. Specifically,
the
FFC
should:
•
Eliminate immunities that courts
added to
Section 230.
The FCC should
issue an
order that
interprets
Section 230
in a way
that eliminates
the
expansive,
non-textual
immunities
that
courts
have
read
into
the
statute.
Mandate for
Leadership: The Conservative
Promise
As
one
of
the
FCC’s previous
General Counsels
noted, the
FCC
has
authority to
take this
action because
Section 230
is codified
in the Communications Act.16
The
FCC’s Section
230 reforms
should track
the positions outlined
in
a July
2020 Petition
for Rulemaking
filed at
the FCC
near the
end of
the
Trump Administration.17 Any
new
presidential
Administration
should consider
filing a
similar or
new petition.
As
Justice Clarence
Thomas has
made clear,
courts have
construed Section 230
broadly to
confer on
some of
the
world’s
largest companies
a
sweeping
immunity
that is
found nowhere
in
the
text of
the
statute.18 They
have
done so
in
a
way
that
nullifies the
limits Congress
placed on
the
types
of
actions
that
Internet
companies can
take while
continuing to
benefit from
Section
230.
One
way
to
start
correcting this
error is
for
the
FCC
to
remind courts
how the various portions of Section
230 operate.
At
the outset,
the FCC can clarify
that Section
230(c)(1) does
not apply
broadly to every
decision that
a platform makes.
Rather, its
protections apply
only
when
a
platform
does not
remove
information
provided
by someone
else. In
contrast, the
FCC should
clarify that
the more
limited Section 230(c)(2) protections
apply to
any covered platform’s
decision to
restrict
access to
material
provided
by
someone
else.
Combined,
these actions
will
appropriately limit
the
number
of
cases
in
which
a
platform
can
censor with
the
benefit
of
Section
230’s protections.
Such clarifications
might
also include
drawing out
the
traditional legal
distinction
between distributor
and publisher liability; Section
230 did
not do
away with
the former, nor does it collapse into the latter.
•
Impose transparency rules on Big Tech.
Today, Big Tech offers
a black box. After
Google
manipulates search
results, a
small business
can see its web
traffic
drop
precipitously
overnight
for
no
apparent
reason,
potentially
flipping its
outlook from
black to
red. On
Facebook,
social media
posts
are
left up
or taken
down, accounts
suspended or
permanently banned, without
any
apparent
consistency.
Out
of
the
blue,
YouTube
can
demonetize
individuals
who
have
risked
their
capital
and
invested
their
labor
to
build online
businesses.
At
present, the
FCC
requires
broadband providers
to
comply
with a transparency
rule that
can
provide
a
good
baseline for
Big
Tech.
Under the
FCC’s
rule,
broadband providers
must provide
detailed disclosures
about practices
that
would shape
Internet traffic—from
blocking to
prioritizing or
discriminating
against content.
The
FCC
could take
a
similar
approach to
2025 Presidential
Transition Project
Big
Tech,
and
it
should look
to
Section
230
and
the
Consolidated
Reporting Act
as
potential sources
of
authority.19 In
acting,
the
FCC
could require
these
platforms
to
provide
greater specificity
regarding their
terms of
service, and
it could hold
them accountable
by
prohibiting
actions that
are
inconsistent
with
those
plain
and
particular terms.
Within this
framework, Big
Tech should
be
required
to
offer
a
transparent
appeals process
that allows
for
the
challenging
of
pretextual
takedowns or
other actions
that violate
clear rules
of
the
road.
•
Support legislation that scraps
Section 230’s
current
approach.
The FCC
should
work
with
Congress
on
more
fundamental
Section
230
reforms that
go beyond interpreting
its current
terms. Congress
should do
so by ensuring
that Internet companies
no longer
have carte
blanche to
censor protected
speech while
maintaining
their Section
230
protections. As
part
of those
reforms, the
FCC should
work with
Congress to
ensure that
antidiscrimination
provisions
are
applied
to
Big
Tech—including
“back-end”
companies that
provide
hosting services
and DDoS
protection. Reforms
that
prohibit discrimination
against core
political viewpoints
are
one
way
to do
this and
would track
the
approach
taken in
a
social
media law
passed in
Texas,
which
was
upheld
on
appeal
in
late
2022 by
the
U.S.
Court of
Appeals for the Fifth
Circuit.20
In
all of
this, Congress
can make
certain points
clear. It
could focus
legislation on dominant,
general-use platforms rather
than
specialized ones. This
could
include
excluding
comment
sections
in
online
publications,
specialized message
boards, or
communities
within larger
platforms that
self-moderate.
Similarly, Congress
could legislate
in a
way that
does not
require any platform to
host illegal
content; child
pornography;
terrorist speech;
and
indecent,
profane,
or
similar
categories
of
speech
that
Congress has
previously carved out.
•
Support efforts to empower consumers.
The FCC and Congress
should work together
to formulate
rules that
empower
consumers. Section
230 itself codifies “user
control” as
an express policy
goal and
encourages Internet platforms to
provide tools
that will
“empower”
users to
engage
in
their own
content moderation.
As
Congress
takes up
reforms, it
should therefore
be mindful
of how
we can
return to
Internet users
the power
to control their online
experiences. One idea
is to
empower
consumers to choose
their own
content filters
and fact
checkers, if
any. The
FCC should also work with
Congress to
ensure stronger
protections
against young
children
accessing
social
media
sites
despite
age
restrictions
that
generally
prohibit their use of these sites.
Mandate for
Leadership: The Conservative
Promise
It
should be
noted at
this point
that the
views expressed
here are
not
shared
uniformly
by all
conservatives.
There are
some, including
contributors to this
chapter,
who
do
not
think
that
the
FCC
or
Congress
should
act
in
a
way that
regulates the
content-moderation
decisions of
private
platforms. One of
the
main
arguments
that
this
group
offers
is
that
doing
so
would
intrude—
unlawfully
in
their
view—on
the
First
Amendment
rights
of
corporations
to exclude
content from their private platforms.
•
Require that Big Tech begin to contribute a fair share.
Big Tech
has
avoided
accountability
in
several
additional
ways
as
well.
One
of
them concerns
the FCC’s
roughly $9
billion
Universal Service
Fund.
This
initiative
provides the
support
necessary to subsidize
the agency’s
affordable Internet
and rural
connectivity programs. The
FCC obtains
this funding
through
a
line-item
charge
that
carriers
add
to
consumers’
monthly bills
for traditional telecommunications service.
While
Big Tech
derives
tremendous value from
the federal
government’s universal
service
investments—using
those
federally
supported
networks to
deliver their
products and
realize
significant profits—these large
corporations have
avoided
paying
a
fair
share
into
the
program.
On
top
of that,
the FCC’s
current funding
mechanism has
been on
an
unsustainable path.21 By requiring traditional
telephone
customers to
contribute to a fund
that is
being used
increasingly to support
broadband
networks, the FCC’s
current
approach is
the regulatory
equivalent of taxing
horseshoes to
pay
for
highways.
To put
the
FCC’s
universal
service
program
on
a
stable
footing,
Congress
should
require
Big
Tech
companies
to
start
contributing an
appropriate amount.
Conservatives
are
not
unanimous in
agreeing that
the
FCC
should expand the
USF
contribution
base. Instead,
some argue
that Congress
should revisit the
program’s entire
funding structure
and
determine
whether to
continue
subsidizing
the
provision
of
service.
Future funding
decisions, the
argument goes,
should
be
made
by
Congress
through the
normal appropriation
process through
which
the
USF
program can
compete for
funding with
other national
initiatives.
These decisions
should be
made with
an
eye
to
right-sizing
the
federal
government’s existing
broadband initiatives
in
light
of
both
technological
advances and
the
recent
influx of
billions of
dollars in
new
appropriations
that
can
be
used
to
support
efforts to
end
the
digital divide.
Protecting
America’s
National Security.
During
the Trump
Administra- tion,
the
FCC
ushered
in
a
new
and
appropriately strong
approach
to
the
national
2025 Presidential
Transition Project
security
threats posed
by
the
Chinese Communist
Party (CCP).
During that
time, the
FCC eliminated
federal
subsidies for
telecommunications equipment from
Huawei
and
ZTE,
thereby greatly
reducing
the
chances
of that
equipment
finding
a way into
our
nation’s
communications
networks.
The
FCC
also
stood
up
a
program
to rip
and
replace
insecure
network
gear
to
ensure
that
it
did
not
remain
a
threat
lurking inside our systems.
The FCC revoked or denied the licenses of carriers like
China
Mobile,
China Telecom,
and
China
Unicom,
which
presented
unacceptable national
security
risks. There
are,
however,
additional
strong
actions
that
the
FCC
can
and
should
take
to
address
the
CCP’s
malign
campaign.
Specifically:
•
Address TikTok’s threat to U.S. national security.
As law
enforcement officials
have made
clear, TikTok
poses a
serious and
unacceptable
risk to
America’s national
security.22 It
also
provides
Beijing
with
an
opportunity
to
run
a
foreign
influence
campaign
by
determining
the
news
and
information
that
the app
feeds to
millions of
Americans. As
of this
writing, the
Biden Administration’s
Treasury
Department
has
not
announced
a
final
decision concerning
its
long-pending review
of
TikTok.
If
that
inaction
persists,
or
if the
Administration allows TikTok
to continue
to operate
in the
U.S., a
new Administration should ban
the application
on national
security
grounds.
•
Expand the FCC’s Covered List.
The FCC maintains a list of
communications equipment
and
services
that
pose
an
unacceptable
risk
to the
national
security
of
the
United
States.
It
is
known
as
the
Covered
List.23 Huawei
is
one
of
the
companies
on
the
Covered
List,
and
its
inclusion
means
that
the
FCC
will
no
longer
review
or
approve
new
applications
from
Huawei.
Without
FCC
approval,
new
Huawei
gear
cannot
be
lawfully
sold
or
used
in
the
U.S.
However,
the
FCC
must
do
a
better
job
of
ensuring
that
its
Covered
List
stays
up
to
date
and
accounts
for
changes
in
corporate
names
and
forms.
Therefore,
a
new
Administration
should
create
a
more
regular
and
timely process
for
reviewing
entities
with
ties
to
the
CCP’s
surveillance
state.
•
End the unregulated end run.
As noted
above, China
Telecom and
similar entities
have been
banned
from
operating
in
the
U.S.
in
a
manner
that
would require
an FCC
license or
authorization
because of
the national security risks
that those entities
pose. However,
many of
these same
entities are
still
operating in
the
U.S.
and
offering
services very
similar to
the
ones
that they are
prohibited from
providing. China
Telecom, for
instance, continues
to
provide
services to
data centers by
offering the
services on
a private
or “unregulated”
basis.
A
new
Administration
should
work
with
the
FCC
to close
this loophole.
One way
to do
so would
be for
the FCC
to prohibit
any regulated carrier from
interconnecting with an
insecure
provider.
Mandate for
Leadership: The Conservative
Promise
•
Publish a foreign adversary transparency list.
As part of the FCC’s
ongoing work
to secure
our networks
from entities
that would
do the
bidding of
our
foreign
adversaries,
the
FCC
should
do
more
to
shine
the
light
of
transparency on
the
scope
of
the
problem.
To
this
end,
the
FCC
should
compile and
publish a
list of
all
entities
that hold
FCC
authorizations, licenses,
or other
grants of
authority with
more than
10 percent
ownership by
foreign
adversarial
governments,
including
the
governments
of
China,
Russia,
Iran, Syria,
or
North
Korea. A
bipartisan bill
that would
require the FCC
to
publish
this type
of
list
has
been
introduced in
the
House
of
Representatives
by
Representatives
Elise Stefanik
(R–NY), Ro
Khanna (D–
CA), and Mike Gallagher (R–WI).24
•
Fully fund the federal “rip and replace” program.
In 2019,
Congress established
a $1.9
billion Secure
and Trusted
Communications
Networks Reimbursement
Program (known
colloquially as
the “rip
and replace”
program) to reimburse
communications providers for
the reasonable
expenses they would incur
to remove,
replace, and
dispose of
insecure Huawei
and ZTE gear.
However, $1.9
billion is
about $3
billion short
of the total
amount of
funding needed
to complete
the rip and replace
process. A new
Administration
should ensure
that the
program is
fully funded
and should look
first
at
repurposing
and
applying
unused
COVID-era
emergency funds
for this purpose.
•
Launch a Clean Standards Initiative.
During the Trump
Administration, the
U.S.
government
launched
a
worldwide
Clean
Networks
program.25
As
a
result of
this initiative,
many of
the
U.S.
government’s allies
started the
process of
ending their
relationships
with Huawei.
It is
time for
an Administration
to
build
and
expand
on
this
groundbreaking
work
by taking
a similar
approach to
the standard-setting
process. Right
now, the CCP is seeking
to extend
its influence
by exerting
control over
the development of
standards
in
a
variety
of
areas,
including
technology
and
telecommunications.
It
is
vital that
the
United
States meet
this threat
with a
comprehensive clean standards
initiative.
•
Stop
aiding the
CCP’s
authoritarian
approach to
artificial
intelligence.
The CCP has set itself a goal of becoming the global leader in
artificial
intelligence (AI) by
2030. Beijing
is bent
on using
this technology
to exert authoritarian control
domestically and export
its
authoritarian governance model
overseas.
U.S.
businesses
are
aiding
Beijing
in
this
effort—
often unwittingly—by
feeding,
training,
and
improving
the
AI
datasets
of
companies that
are
beholden
to
the
CCP. One
way
that
U.S. companies
2025
Presidential Transition
Project
are
doing this
is by
giving Beijing
access to
their
high-powered cloud
computing services. Therefore,
it is
time for
an
Administration to
put in
place
a
comprehensive
plan
that
aims
to
stop
U.S.
entities
from
directly
or indirectly
contributing to China’s
malign AI
goals.
Unleashing Economic Prosperity.
The FCC needs to advance a
pro-growth agenda that gives every American a fair shot at
next-generation connectivity.
This
is
vital
for
economic
opportunity
and
prosperous
communities.
The
current
Administration has
appropriated a lot of money for broadband infrastructure proj-
ects, but it
has failed
to pair
that spending
with reforms
that free
more airwaves
for wireless connectivity or
streamline the permitting
processes for broadband
builds.
That failure
is
holding
back
America’s
hardworking
telecommunications
crews and
leaving
Americans
stuck
waiting
on
the
wrong
side
of
the
digital
divide. It
is time for
a return
to the
successful spectrum and
infrastructure policies that
prevailed during the Trump
Administration—policies that enabled the U.S. to lead the
world in 5G.
•
Refill America’s spectrum pipeline.
From 2017 through 2020,
the FCC took
unprecedented steps to
free the
airwaves needed
to power
5G and
other
next-generation
wireless
services.
This
work
not
only
helped
to
secure America’s
wireless
leadership
and
bolster
competition,
but
also
enabled
the private
sector to
create jobs
and grow
the economy.
Recently, the
FCC has failed
to match the
pace and
cadence of
those spectrum
actions.
Therefore, the FCC
and a
new
Administration should work
together to
develop a
national spectrum strategy
that both
identifies the specific
airwaves that
the
FCC
can
free
for
commercial
wireless services
and
sets
an
aggressive timeline for
agency action.
•
Facilitate
coordination on spectrum
issues.
Wireless
services now
play
a
central
role in
advancing
America’s
economic
and
national
security
interests. Over
the past
few years,
this dynamic
has led
to an
increasing
number
of
headline-level
disputes between
the
commercial
wireless sector
and
federal
agencies. These disputes
are often
framed in
zero-sum terms
as commercial
wireless and
federal agency
stakeholders
argue over
the appropriate types and
amount of
airwaves that
the government should allocate
for
various
purposes.
On
the
one
hand,
America’s
global
economic
leadership depends
on its
ability to
free spectrum that
will power
the U.S.
commercial wireless
industry. On
the other hand,
we must
ensure that
America’s
national security
and
other
federal agencies
have access
to
the
spectrum
resources that
they need
to carry
out their
vital missions.
Mandate
for Leadership:
The
Conservative
Promise
It
is clear
that the
current process
is not delivering optimal
outcomes. In
December 2021 and January 2022, for instance, the lack of
interagency coordination and
communication about mid-band 5G spectrum allocation
between the
FCC and the
Federal
Aviation Authority
led to
significant challenges
for
the
U.S.
aviation
industry.
Over
the
past
two
years,
the
FCC has
failed to
move spectrum
into the
commercial marketplace at
the same
pace
and cadence
that
it
did
in
the
recent
past.
Creating
better
mechanisms to
improve
communication and cooperation
between
different federal
agencies could
enable a
more effective
and coordinated
U.S. government
telecommunications
strategy.
The
White
House
should
work
with
Congress to
establish a
spectrum
coordination process that
will work
for both
commercial and federal users.
•
Modernize infrastructure rules.
By 2016, the construction of new cell
sites—the
building
blocks
for
5G—had
essentially
flatlined
in
America.
Because of
outdated
permitting rules,
it cost
too much
and took
too long
to build
wireless
infrastructure,
so
the
FCC
went
to
work.
The
agency
updated the
environmental
and
historic
preservation
rules
that
needlessly
drove
up
the
cost
and
slowed
down
the
timeline
for adding
small
cells.
The
FCC
put
in place
guardrails to address
outlier fees
and delays
imposed at
the state
and local
levels on those
same small-cell
projects. It
modernized the
permitting process
in several additional
ways as
well.
Those
FCC reforms
delivered
results. They
allowed
America’s private
sector
to
bring
thousands
of
families
across
the
digital
divide
and
to
keep Americans
connected
during the
pandemic.
In
fact,
infrastructure
builds accelerated
at
a
record
pace
after
those
reforms.
In 2019,
for
instance,
U.S. providers
built over
46,000 new
cell sites—a
sixty-fivefold increase over 2016
levels.
The
FCC has
not engaged
in any similar infrastructure
reforms in
recent years,
and
there
is
much
more
that
needs
to
be
done.
For
instance,
the FCC’s prior
reforms
focused
on
streamlining
the
rules
for
small
wireless
facilities. The
FCC should now
explore similar
action for
the deployment of other wired
infrastructure by imposing
limits on
the fees
that local
and state
governments can
charge
for
reviewing
those
wireline
applications
and
time
restrictions on
the
government’s decision-making
process.
The
next
Administration should also
work to
address the
delays that
continue to persist
when it
comes to
building
Internet
infrastructure on
federal
lands.
This
is
an
area
where
the
FCC
itself
has
very
little
jurisdiction,
2025
Presidential Transition
Project
so a new
Administration should redouble efforts to require timely reviews
and
final actions
by
agencies
with jurisdiction
over federal
lands, including
the
Bureau of
Land
Management and the
U.S. Forest
Service.
•
Advance America’s space leadership.
One of the most
significant technological
developments
of
the
past
few
years
has
been
the
emergence of
a
new
generation
of low-earth
orbit
satellites
like
StarLink
and
Kuiper. This
technology can
beam a
reliable,
high-speed Internet signal
to nearly any
part of the
globe at
a fraction
of the
cost of
other
technologies. This
has
the
potential
to
significantly
accelerate
efforts
to
end
the
digital
divide and
disrupt the
federal
regulatory and subsidy
regime that
applies to
communications
networks.
The
FCC
should
expedite
its
work
to
support this
new
technology
by acting
more
quickly
in
its
review
and
approval
of
applications
to
launch
new
satellites.
Otherwise, the
U.S. risks
ceding space
leadership
to entities
based in
countries with
more friendly
regulatory
environments.
Holding
Government Accountable.
Federal technology and telecommunica-
tions
programs
have
been
plagued
by
a
troubling
lack
of
accountability
and
good governance.
They
would
benefit
from stronger
oversight
and
a
fresh
look
at
elim- inating
outdated
regulations that
are doing
more harm
than good.
•
End wasteful broadband spending policies.
Many of the broadband
spending
policies being
pursued by
the current
Administration are
poised
to
waste
taxpayer
money
while
leaving
rural
communities
and unconnected
Americans
behind. At
the
same
time,
the
dramatic
recent
increases
in
funding
through the
American Rescue
Plan Act
(ARPA) and
the Infrastructure
Investment and Jobs
Act mean
that the
federal
government has more
than enough
resources to
meet its broadband
connectivity
goals. Congress
should therefore hold the agencies accountable so that taxpayer
money is
used effectively
to
promote
broadband connectivity
across the nation.
To
that end,
the next
Administration
should instruct
the various
departments
and
agencies
that
are
administering
broadband
infrastructure
funds to
direct those
resources to
communities
without adequate
Internet
infrastructure
instead
of
to
places that
already enjoy
broadband connectivity.
Take, for
example, the
final rules
that the
Treasury Department
adopted
in
2022
that
govern
the
expenditure of
$350
billion in
ARPA funds. Rather
than directing
those dollars
to the
rural and
other
communities that
have no
Internet infrastructure,
the
current
Mandate for
Leadership: The Conservative
Promise
Administration
gave the
green light
for
recipients
to
spend
those funds
to
overbuild
existing high-speed
networks in
communities that
already have
multiple
broadband providers.
A
new
Administration
should
eliminate
government-funded
overbuilding of existing
networks.
•
Adopt a national coordinating strategy.
Hundreds of billions of
infrastructure
dollars
have
been
appropriated
by
Congress
or
budgeted
by agencies
over the
past couple
of years
that can
be used
to end
the digital
divide. Yet,
according
to
the
U.S.
Government
Accountability
Office,
“U.S.
broadband
efforts are
not
guided
by
a
national
strategy”;
instead,
“[f]ederal
broadband efforts
are fragmented
and
overlapping, with
more than
100 programs administered
by
15
agencies,”
risking
overbuilding
as
well
as
wasteful duplication.26 Many
of
these
programs remain
plagued by
inefficiency,
further
contributing to
waste of
limited taxpayer
dollars.
Moreover,
the
federal
government is
failing to
put
appropriate
guardrails in
place to
govern the
expenditure of
billions in
broadband
funds. This
is
the regulatory equivalent of
turning the
spigot on
full blast
and then
walking away
from the
hose. There
is a
worrisome lack
of adequate
tracking,
measurement,
and
accountability
standards
governing
all
of
this
broadband
spending. As
a
result,
we
are
likely to
see
headline
levels of
waste, fraud, and
abuse.
A
new
Administration
needs to
bring fresh
oversight to
this spending
and put a
national strategy
in
place
to
ensure
that the
federal government
adopts a
coordinated approach to
its various
broadband
initiatives.
Similarly, the next
Administration
should ask
the FCC
to launch
a review
of its
existing broadband programs, including
the different
components of the
USF, with
the
goal of
avoiding
duplication,
improving
efficiency
of
existing
programs, and
saving
taxpayer money.
•
Correct the FCC’s regulatory trajectory and encourage
competition
to improve connectivity.
The FCC is a New Deal–era agency. Its history
of
regulation
tends
to
reflect
the
view
that
the
federal
government
should impose
heavy-handed
regulation rather than
relying on
competition
and
market forces
to produce
optimal
outcomes. President
Franklin D.
Roosevelt
recommended
that
Congress
create
the
FCC
in
February
1934 for
the purposes
of establishing
“a single
Government agency charged with
broad
authority” over
the field
of
communications.27 Congress
subsequently
established the
FCC
through
the
Communications
Act
of
1934. Congress
has
passed a
number of
additional statutes—some
broad, some
2025 Presidential
Transition Project
narrow—that
pertain to
the
FCC’s
authority, including
most significantly
the
Telecommunications
Act
of
1996,28 which
opened
up
markets
for
greater
competition
and largely
deregulated
industry segments.
Technological
change in
the
connectivity sector is
occurring
rapidly. We are
now seeing
an
unprecedented level
of convergence, innovation, and
competition in
the market
for
connectivity. On
the one
hand,
traditional cable
providers
like Charter
are
now
offering
mobile
wireless
services
to consumers
in
direct
competition with
traditional
wireless
companies
like Verizon.
On the
other hand,
a new
generation of low-earth
orbit satellite
services like StarLink and
Amazon’s
Project Kuiper
stand to
offer high-
speed
home broadband
in
competition
with legacy
providers. Furthermore,
broadcasters
are
offering
high-speed downloads
directly to
consumers over
spectrum
that previously provided only
TV service.
These
rapidly
evolving market
conditions
counsel in
favor of
eliminating many
of the heavy-handed
FCC regulations
that were
adopted in
an era when
every
technology
operated
in
a
silo.
These
include
many
of
the
FCC’s media
ownership
rules,
which
can
have
the
effect
of
restricting investment and
competition
because
those
regulations
assume
a
far
more
limited
set
of competitors
for
advertising dollars
than
exist
today,
as
well
as
its
universal
service requirements.
Ultimately,
FCC reliance
on competition
and innovation
is vital
if the agency
is to deliver
optimal
outcomes for
the American
public. The
FCC should
engage
in
a
serious
top-to-bottom
review
of
its
regulations and
take steps
to rescind
any that
are overly
cumbersome or outdated. The
Commission should focus
its efforts
on creating
a
market-friendly regulatory environment
that
fosters
innovation
and
competition
from
a
wide
range of
actors, including
cable-based,
broadband-based,
and
satellite- based Internet
providers.
AUTHOR’S NOTE:
The preparation of this chapter was a collective enterprise of
individuals involved in the
2025 Presidential
Transition
Project.
All
contributors
to
this
chapter
are
listed
at
the
front
of
this
volume.
While
this
chapter identifies certain
issues on which the contributors did not all agree, the author
alone assumes responsibility for
the content of
this chapter,
and no
views
expressed herein
should be
attributed to
any other
individual.
Mandate for
Leadership: The Conservative
Promise
ENDNOTES
1.
47
U.S.C.
§
151,
https://www.law.cornell.edu/uscode/text/47/151
(accessed
January
23,
2023).
2.
47
U.S.C.
§
154,
https://www.law.cornell.edu/uscode/text/47/154
(accessed
January
23,
2023).
3.
Ibid.
4.
47
U.S.C.
§
154(c).
5.
47
U.S.C.
§
154(b)(5).
6.
47
U.S.C.
§
155(a),
https://www.law.cornell.edu/uscode/text/47/155
(accessed
January
23,
2023).
7.
Ibid.
8.
Ibid.
There
are
no
limits
on
the
President’s
authority
to
designate
a
different
Chairperson
from
among
the existing
Commissioners.
Further,
though
it
is
an
open
question,
it
is
generally
believed
that
the
judiciary
would
impose
limits
on
the
power
of
the
President
to
remove
a
Commissioner
during
his
or
her
five-year
term.
The
question
is
not
settled
because
Congress
did
not
include
an
express
“for
cause”
or
similar
protection
against removal
in
the
Communications
Act
itself.
Scholars
assume
this
is
because
Congress
passed
the
Communications Act in the years
between the Supreme Court’s decision in
Myers
v. United
States, 272 U.S.
52 (1926) and
Humphrey’s
Executor v.
United States, 295 U.S.
602 (1935), when it was not entirely clear that Congress
could
impose
a
limit
on
the
President’s
removal
power.
However,
the
Communications
Act
was
significantly amended
in 1996,
and Congress
did not
add “just
cause” or
other
protections from
removal
at that
time.
Considering the high-profile
contemporary debates about
the
appointment and
removal of
independent
counsels
under
the
Independent
Counsel
Act,
one
could
reasonably
assume
that
Congress
was aware
of removal powers
and protections
for
presidentially
appointed and Senate-confirmed
officials.
9.
Chart, “FTEs—Historical and
Estimated, Fiscal Years 1986–2023,” in U.S. Federal
Communications Commission,
2023
Budget Estimates to Congress,
March
2022,
p.
17,
https://docs.fcc.gov/public/attachments/DOC-381693A1.
pdf
(accessed January 23, 2023).
10.
U.S.
Federal
Communications
Commission,
2023
Budget Estimates
to Congress,
p.
7.
11.
Roslyn
Layton,
“Spectrum
Auctions
Have Raised
$230
Billion;
The
FCC’s
Authority
to Conduct
Them
Will
Lapse
Soon
If
Congress
Doesn’t
Act,”
Forbes,
April
29,
2022,
https://www.forbes.com/sites/
roslynlayton/2022/04/29/spectrum-auctions-have-raised-230-billion-the-fccs-authority-to-conduct-them-
will-lapse-soon-if-congress-doesnt-act/?sh=4d32066908eb (accessed January 23, 2023).
12.
For a
full listing
of
the FCC’s
Bureaus
and Offices,
along
with their
functions
and an
organization chart,
see
U.S.
Federal
Communications
Commission,
“Organizational
Charts
of
the
FCC,”
https://www.fcc.gov/about-fcc/
organizational-charts-fcc
(accessed January
23, 2023).
13.
47
U.S.C.
§
230,
https://www.law.cornell.edu/uscode/text/47/230
(accessed
January
23,
2023).
14.
Thomas
M.
Johnson
Jr.,
“The
FCC’s
Authority
to
Interpret
Section
230
of
the
Communications
Act,”
October 21, 2020,
https://www.fcc.gov/news-events/blog/2020/10/21/fccs-authority-interpret-section-230-
communications-act
(accessed
January
23,
2023).
15.
This
chapter
does
not
purport
to
set
forth
a
comprehensive
agenda
for
the
FCC.
Rather,
it
focuses
on
a
selected handful
of
issue
areas
that
may
quickly
rise
to
the
attention
of
a
new
Administration.
Similarly,
not every
contributor to
this chapter
agrees with
every policy
idea included
here; this
document
attempts to reflect a
range of views and perspectives.
16.
Johnson,
“The
FCC’s
Authority
to
Interpret
Section
230
of
the Communications
Act.”
17.
U.S. Department of Commerce,
National Telecommunications and Information Administration,
“NTIA Petition for
Rulemaking to
Clarify
Provisions of Section
230 of
the
Communications Act,”
July 27,
2020,
https://
ntia.gov/fcc-filing/ntia-petition-rulemaking-clarify-provisions-section-230-communications-act
(accessed January 23, 2023).
18.
Malwarebytes,
Inc. v.
Enigma
Software, 592
U.S.
(2020) (Thomas,
J., statement
respecting the denial
of
certiorari),
https://www.supremecourt.gov/opinions/20pdf/19-1284_869d.pdf (accessed January 23, 2023).
19.
See 47 U.S.C. § 230; see also Ray Baum’s Act of 2018,
Division P, Title IV, § 401 (codifying the Consolidated
Reporting Act), in H.R.
1625,
Consolidated Appropriations
Act, 2018, Public Law No. 115-141, 115th
Congress, March 23, 2018,
https://www.congress.gov/115/plaws/publ141/PLAW-115publ141.pdf
(accessed
January
23,
2023).
20.
NetChoice,
L.L.C.
v.
Paxton,
49
F.4th
439
(5th
Cir.
2022),
https://fingfx.thomsonreuters.com/gfx/legaldocs/
gdpzqyobyvw/alisonn%201.pdf
(accessed
January
23,
2023).
2025 Presidential
Transition Project
21.
Hal
J.
Singer
and
Ted
Tatos,
Subsidizing Universal Broadband Through a Digital Advertising
Services Fee: An
Alignment of
Incentives,
Econ One,
September 2021,
p. 1
(“[T]he current
USF mechanism
is
unsustainable and will
fail
to
meet
the
needs
of
its
target
consumer
base
within
the
next
five
years.”),
https://www.econone.com/
wp-content/uploads/2021/09/Digital-Divide-HSinger-TTatos-2.pdf
(accessed January 23, 2023).
22.
FBI Director Christopher Wray,
testimony in video of hearing,
Worldwide Threats
to the
Homeland, Committee
on Homeland Security, U.S.
House of Representatives, November 15, 2022, at 02:27,
https://democrats-
homeland.house.gov/activities/hearings/11/04/2022/worldwide-threats-to-the-homeland
(accessed January
23, 2023); John D. McKinnon,
Arunav Viswanatha, and Stu Woo, “TikTok National-Security Deal
Faces More Delays as
Worry Grows Over Risks,”
The Wall
Street Journal, updated December 6, 2022,
https://www.wsj.
com/articles/tiktok-national-security-deal-faces-more-delays-as-worry-grows-over-risks-11670342800 (accessed January 23, 2023).
23.
U.S.
Federal
Communications
Commission,
“List
of
Equipment
and
Services
Covered
by
Section
2
of
the
Secure Networks Act,” updated
September 20, 2022,
https://www.fcc.gov/supplychain/coveredlist
(accessed January 23, 2023).
24.
H.R. 820,
Foreign Adversary Communications Transparency Act, 118th
Congress, introduced February 2, 2023,
https://www.congress.gov/118/bills/hr820/BILLS-118hr820ih.pdf
(accessed
March
6,
2023).
25.
U.S. Department of State, “The Clean Network,”
https://2017-2021.state.gov/the-clean-network/index.html (accessed January 23, 2023).
26.
U.S.
Government
Accountability
Office,
Broadband:
National
Strategy
Needed
to
Guide
Federal
Efforts
to
Reduce
Digital
Divide, GAO-22-104611, May 2022,
https://www.gao.gov/assets/gao-22-104611.pdf (accessed
January 23, 2023).
27.
Document
No.
144,
“Federal
Communications
Commission:
Message
from
the
President
of
the
United States Recommending that
Congress Create
a New Agency to be Known as
the Federal Communications
Commission,” U.S. Senate, 73rd
Cong.,
2nd Sess., February 26, 1934,
https://docs.fcc.gov/public/attachments/
DOC-298207A1.pdf
(accessed
January
23,
2023).
28.
47
U.S.C,
Chapter 5,
§§ 151
et seq.,
(accessed
March 6,
2023).
MISSION/OVERVIEW
The
Federal Election
Commission (FEC)
is
an
independent federal
agency that
began
operations in
1975 to
enforce the
Federal
Election Campaign
Act (FECA)
passed
by
Congress
in
1971
and
amended
in
1974.1 FECA
governs
the
raising
and
spending
of
funds
in
all
federal campaigns
for
Congress
and
the
presidency. The
FEC
has no
authority over
the
administration of federal
elections, which is
per- formed by state governments.
While
the FEC
has exclusive
civil
enforcement authority
over FECA,2
the
U.S. Justice Department has criminal
enforcement authority, which is defined
as
a
knowing
and
willful
violation
of the
law.3 Because
the
FEC
is
an
independent
agency
and
not
a
division
or
office
directly within
the
executive
branch, the
author- ity
of the
President over
the actions
of the FEC is
extremely
limited.
As
former FEC
Commissioner Bradley
Smith has
said, the
FEC’s “[r]egulation
of
campaign
finance deeply
implicates First
Amendment principles
of
free
speech
and association.”4 The
FEC regulates in one of the most sensitive areas of the Bill of
Rights: political speech and political activity by citizens, candidates,
political par- ties, and the voluntary membership organizations
that represent Americans who
share
common views
on
a
huge range
of
important
and
vital
public policy
issues.
NEEDED
REFORMS
Nomination Authority.
The
President’s
most significant
power is
the
appoint-
ment
of the
six
commissioners who govern
the FEC,
subject to
confirmation by
the U.S. Senate. Commissioners may only serve a single term of
six years but
Mandate for
Leadership: The Conservative
Promise
because
they stay
in office
until a
new commissioner has
been
confirmed, many
commissioners continue to
serve past
their terms.5 Currently,
the longest
serv- ing commissioner still at the FEC is Ellen
Weintraub (D), whose regular term expired in 2007.
Under FECA, no
more than three commissioners may be from the same party.6 While
that
means
that a
commissioner could
be
an
independent or
a
member
of
the
Libertarian
or
Green
Parties, in
practice, this
has
meant
that the
FEC
has
always had three
Democrat and three Republican commissioners.7
There
is a
long-held political tradition
since the
FEC’s founding
that when
a commission slot held
by a member of the opposition political party opens up, the
President
consults with,
and nominates, the chosen
nominee of
the opposition party’s
leader in
the Senate.
In exchange,
the Senate
party leader
and his
caucus agree to approve
the
President’s nominee
to fill
an empty
position for
the Presi-
dent’s
political
party.
It
has
also
been
customary
to
advance
the
two
nominees
of the
differing
political
parties
at
the
same
time;
this
bipartisan
pairing
has
histori- cally
permitted easy
confirmation of
both parties’
selectees.
Thus,
by
convention,
a
Republican
President will
nominate a
Republican and
a
Democrat
for
two
open commission
slots, including
the
choice
of
the
Democrat
Senate
leader
for
his
party’s
seat. In
turn, the
senator will
direct his
party to
vote
to
confirm
both nominees.
In
the
almost 50-year
history of
the
FEC,
this tradition has
only been
broken once—when
Senate Majority
Leader Harry
Reid refused
to
approve one of George W. Bush’s nominees (Hans von Spakovsky)
for a Republican commission
slot.8
In 2025, when
a new
President assumes office,
the term
of five
of the
current FEC commissioners will
have either
expired or
be about to
expire:9
•
Shana M. Broussard
(D)—April 30,
2023
•
Sean
J.
Cooksey (R)—April
30,
2021
•
Allen Dickerson (R)—April
30, 2025
•
James
Trainor,
III (R)—April
30,2023
•
Ellen
L.
Weintraub (D)—April
30,
2007
During
their terms,
the
three
Republican commissioners
have demonstrated
with
their votes and their public statements that they believe the
FEC should not overregulate
political activity and
act beyond
its statutory
authority, construe ambiguous and
confusing provisions against candidates and the public instead
of the
government, and infringe
on protected
First Amendment
activity.
2025
Presidential Transition
Project
•
The President
assuming office
in 2025
must ensure,
if the three
Republican
commissioners do
not wish
to remain
on the FEC past
their
terms, that
nominees for
these positions
share the
views of those
commissioners.
•
Also, to
the extent
that the
President has the
ability to
negotiate with
the
Democratic
Party leader
in the
Senate, he
should try
to temper
any
choice of
the opposition party to
ensure that
this individual
does
not
have extreme
views on
aggressive overenforcement that
would
severely
restrict
political speech
and protected
party,
campaign, and
associational
activities.
U.S.
Department of Justice/FEC-Related
Activities. The
President does have
control
of
the
Department
of
Justice
(DOJ).
Thus,
he
has
authority
as
Presi-
dent,
primarily
through his
choice
of
attorney
general
and
other
political
appointees,
to direct
the
prosecutorial
functions
of
the
DOJ
regarding
criminal
enforcement
of
FECA. Such investigations and
prosecutions are carried out by the Public Integrity
Section
of
the
Criminal
Division,
with
the
assistance,
coordination,
and
help
of
the
Offices
of
U.S.
Attorneys
in whatever
state
an
alleged
violation
occurs.
•
The President must ensure that the DOJ, just like the FEC,
is directed to only
prosecute clear violations of FECA.
The department
must not
construe
ambiguous provisions against
the public
instead of
the
government or
apply FECA
in
a
way
that
infringes on
protected First
Amendment
activity.
It
should be
but
is
not
always
obvious to
overzealous government
prosecutors that
if
a
federal
law
is
confusing, it
would be
unjust to
prosecute individuals
who are
unable to
determine if
they are violating
the law.
•
The President
should direct
the DOJ
and the
attorney
general not
to prosecute
individuals under an
interpretation of the
law with
which the FEC—the expert agency designated by Congress to
enforce the
law civilly
and issue
regulations establishing the
standards under
which the
law is
applied—does not agree.
•
In making
prosecution decisions, DOJ
should be
instructed to consult and consider
all official actions by the FEC that interpret the law including
prior enforcement actions, regulatory pronouncements, and
advisory opinions, just as private practitioners, the public,
and political actors must do.
Mandate for
Leadership: The Conservative
Promise
It
is
fundamentally
unfair for
the
DOJ
to
prosecute
an
individual
for
supposedly violating
the law
when the
FEC has
previously
determined that a
similarly situ- ated individual has not
violated the law. Furthermore, this rule should apply even
when
there
is
a
tied
or
three-to-three vote
by
the
FEC
commissioners
whether
in an
enforcement action or
an advisory
opinion since
under the
statute, the
FEC cannot take any action
unless there
are four
affirmative votes.
Again,
it seems
obvious that
if the
commissioners
designated by Congress
to interpret the law
are unable
to determine
what the
law requires,
then it
is unfair
to
prosecute
a
citizen
for
violating
that
law.
The
DOJ
should
not
engage
in
crim- inal
prosecutions that stretch legal theories and defy FEC
interpretations and
regulations.
Another issue
directly related to what has often been a contentious
relationship between
the FEC
and the
DOJ is
the conduct
of litigation.
The vast
majority of
federal
agencies
are
defended
by
the
DOJ,
which
also
represents
them
when
the agency
is pursuing
litigation as a
plaintiff.
The
FEC, however,
is
one
of
the
few
federal
agencies with
independent litigating
authority.10 The
FEC’s
lawyers represent
the
agency
in
federal
court up
through the
federal
courts of
appeal. If
a
case
reaches the
U.S. Supreme
Court, then
the
Office
of the Solicitor General of
the Justice Department represents the FEC.
In
recent years,
the FEC
has failed
to defend
itself against
litigation
filed by
political allies
of
certain
Democrat
commissioners.
It
takes
four
votes
to
authorize the
general counsel
of the FEC to
defend a
lawsuit filed
against the
agency, and
those
commissioners
have
refused
to
provide
that
fourth
vote,
so
“the
public
was treated
to
the
scandalous
spectacle
of
the
Commission—an
independent
agency of
the
United
States
government—defaulting
in
litigation
before
federal
courts.”11 These
cases involved enforcement matters in which the commissioners
dis- agreed on whether a violation of the law had occurred.
Accordingly, the final votes
of the
commissioners did not
approve moving
forward with
enforcement because there
were
not
four
affirmative
votes
that
a
violation
of
the
law
occurred. When
private plaintiffs then sued the FEC for failing to take action,
Democrat commissioners refused to authorize the defense of the
FEC in litigation as a way
of
circumventing the prior
final action
of the
FEC and
the FECA
four-vote requirement
to authorize
an enforcement
action. Such
defaults in
litigation are
unacceptable.
•
The President
should direct
the attorney
general to
defend the
FEC in
all litigation
when there
is a
failure of
the commissioners to
authorize the
general counsel
of the
agency to
defend it.
No
legislation
would
be
needed
to
accomplish
this; the
DOJ
has
the
general
authority to
defend
the government and its
agencies in
all litigation.
2025 Presidential
Transition Project
•
As a legislative matter and given this abuse, the President
should seriously consider recommending that Congress amend FECA
to remove the agency’s independent
litigating authority and
rely on
the Department of Justice to handle all litigation
involving the FEC.
There are also
multiple instances of existing statutory provisions of FECA and
the
accompanying
FEC regulations
having been
found unlawful
or unconstitu-
tional
by
federal
court decisions,
yet
those
statutory
provisions
remain
in
the
U.S. Code
and the
implementing regulations remain
in the
Code of
Federal Regula-
tions.12 In such instances, those regulated by the law, from candidates to the
public,
have
no
way
of
knowing
(without engaging
in
extensive
legal research)
whether
particular statutory provisions and regulations are still applicable to
their actions in the
political arena.
•
The President
should request
that the
commissioners on the
FEC prepare such guidance.
•
In the event that the FEC fails to act, the President
should direct the attorney general to prepare a guidance
document from the Department
of Justice for
the public
that outlines
all of
the FECA
statutory provisions
and FEC
regulations that have
been changed,
amended, or voided by specific court decisions.
Legislative Changes. While
a President’s ability to make any changes at an
independent
agency
like
the
FEC
is
limited,13 the
President
has
the
ability to
make
legislative
recommendations
to
Congress.
One
of
the
most
obvious changes
that is
needed is
to end
the current
practice of
allowing
commissioners to remain
as serving
commissioners long after their term has expired, defying the
clear intent of Congress
in
specifying
that a
commissioner
can
only
serve
a
single
term
of
six
years.
•
The President
should
prioritize
nominations to
the FEC
once
commissioners reach
the end
of their
terms and
should be
assisted
by
legislative
language
either
eliminating
or
limiting
overstays
to
a reasonable period
of time
to permit
the vetting,
nomination, and
confirmation of successors.
•
The President should vigorously oppose all efforts, as proposed,
for example,
in Section
6002 of
the “For
the People
Act of
2021,”14
to change the structure of the FEC to reduce the number of
commissioners
from
six
to
five
or
another
odd number.
The
current
requirement of four
votes to
authorize an
enforcement
action, provide
Mandate for
Leadership: The Conservative
Promise
an advisory
opinion, or issue regulations, ensures that there is bipartisan
agreement
before any
action is
taken and
protects against
the
FEC
being used as a
political weapon.
With
only five
commissioners,
three
members of
the
same
political party
could control the enforcement process of the agency,
raising the potential of a powerful
federal
agency
enforcing the
law on
a partisan
basis against
the members
of the
opposition political
party. Efforts
to impose
a
“nonpartisan” or
so-called
“inde- pendent”
chair
are
impractical;
the
chair
will
inevitably
be
aligned
with
his
or
her appointing
party, at
least as
a matter
of perception.
There are numerous other changes
that should be considered in FECA and the FEC’s regulations.
The overly
restrictive limits on
the ability
of party
com- mittees to coordinate
with their
candidates, for example,
violates
associational rights
and unjustifiably interferes with
the very
purpose of
political
parties: to elect
their candidates.
•
Raise
contribution limits and
index reporting
requirements to
inflation.
Contribution limits should generally be much higher, as they
hamstring
candidates
and parties
while
serving
no
practical
anticorruption
purpose.
And
a
wide
range
of
reporting
requirements
have
not
been
indexed
to inflation,
clogging
the
public
record
and
the
FEC’s
internal
processes
with
small-dollar information of little use to the public.
CONCLUSION
When
taking any
action related
to
the
FEC, the
President should
keep in
mind that,
as former
FEC Chairman
Bradley Smith
says, the
“greater
problem at
the FEC has
been
overenforcement,” not underenforcement
as some
critics
falsely allege.15
As
he
correctly concludes,
the
FEC’s
enforcement efforts
“place a
substan-
tial
burden
on
small
committees
and
campaigns,
and
are
having a
chilling effect
on
some political speech…squeezing the
life out
of low
level,
volunteer politi- cal
activity.”16
Commissioners
have a
duty to
enforce FECA
in
a
fair, nonpartisan,
objective manner.
But
they must
do
so
in
a
way
that
protects the
First Amendment
rights of the
public, political
parties, and
candidates to
fully participate
in
the
political
process.
The
President
has
the
same duty
to
ensure
that the
Department of
Justice enforces the
law in a similar manner.
2025 Presidential
Transition Project
ENDNOTES
1.
52
U.S.C.
§
30101
et
seq.
2.
52
U.S.C.
§
30106(b)(1).
3.
52 U.S.C.
§ 30109(c)
and
(d).
4.
Bradley A.
Smith and
Stephen M.
Hoersting, “A
Toothless
Anaconda: Innovation,
Impotence and Overenforcement
at the
Federal
Election Commission,”
1
Election Law
Journal
2 (2002),
p. 162.
5.
52
U.S.C.
§
30106(a)(2).
6.
52
U.S.C.
§
30106(a)(1).
7.
Former Commissioner Steven Walther
(2006–2022) was listed
nominally as
an independent but
he was
recommended to
President
George
W.
Bush
for
nomination
by
former
Nevada
Sen.
Harry
Reid
(D)
and
almost always
voted in line
with the
Democrat
commissioners on
the FEC.
8.
Hans von Spakovsky served as a commissioner from 2006 to
2007 in a recess appointment. While no other nominee has
been rejected
by the
Senate, the
tradition of
bipartisan
voice vote
confirmation has largely
ended. Two Republican
nominees—Allen
Dickerson and Sean
Cooksey—were confirmed on party-line votes in 2020. And one Democrat—Dara
Lindenbaum—was confirmed with the support of only six Republican
senators in 2022.
9.
The
term
of
the
6th
Commissioner,
Dara
Lindenbaum
(D),
will
expire
on
April
30,
2027.
10.
52
U.S.C.
§
30107(a)(6).
11.
“Statement of Chairman Allen J. Dickerson and Commissioners
Sean J. Cooksey and James E. ‘Trey’ Trainor,
III Regarding Concluded Enforcement
Matters,” Federal Election Commission (May 13, 2022),
https://www.
fec.gov/resources/cms-content/documents/Redacted_Statement_Regarding_Concluded_Matters_13_
May_2022_Redacted.pdf.
12.
See,
e.g., McCutcheon v. Federal
Election
Commission, 572
U.S. 185
(2014).
13.
It
should be
noted,
however, that
the
constitutional authority of
a President
to, among
other things,
remove appointees and
direct the actions of independent agencies is a hotly contested
and increasingly litigated issue.
See
Free Enterprise
Fund v.
Public Company
Accounting Oversight Board, 561
U.S. 477
(2010);
Seila Law
LLC v.
Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020); and
Collins v. Yellen, 141 S. Ct. 1761 (2021).
14.
H.R.
1,
117th
Cong.
(2021–2022).
15.
Bradley A.
Smith and
Stephen M.
Hoersting, “A
Toothless
Anaconda: Innovation,
Impotence and Overenforcement
at the
Federal
Election Commission,”
1
Election Law
Journal
2 (2002),
p. 171.
16.
Id.
MISSION/OVERVIEW
America’s antitrust laws are over a
century old. In 1890, the U.S. Congress
enacted
the
Sherman
Act,1 the
first
federal
prohibition on
trusts and
restraints of
trade. The
Clayton Act,2 adopted in 1914, builds upon the Sherman Act, outlawing certain
practices, such as price fixing, while bringing other business
combinations, such
as mergers
and
acquisitions, under
regulatory
scrutiny.
The Federal Trade
Commission Act (FTCA),3 also adopted in
1914, gives
the federal
government
legal
tools
to
combat
anticompetitive,
unfair,
and
deceptive
practices in the marketplace,
empowering the Federal Trade Commission (FTC) to
enforce provisions of the Sherman and Clayton Acts. The FTCA prohibits
“unfair methods
of competition and unfair
or deceptive
acts or
practices in
or affecting commerce.” Sections 3, 7, and 8 of the Clayton Act
empower the FTC to block
unlawful
tying
contracts,
unlawful
corporate
mergers
and
acquisitions,
and
inter- locking
directorates.
Under an
amendment to
the FTCA,
the
Robinson–Patman Act,4 the
FTC
has
authority to
prohibit practices
involving discriminatory
pricing
and product promotion. While the FTC has enforcement or administrative
respon-
sibilities
under more
than 70
laws, the
FTCA and
the
Clayton
Act
are
the
focus
of its regulatory
energy.
FTC
actions, therefore,
turn on
the
antitrust
principles and
market principles
it
adopts.
Modern approaches
to
antitrust
stress that
the
objective
of
antitrust
law is
to assure
a competitive
economy—which in economic
terms maximizes
both allocative
efficiency (optimal distribution of goods and services, taking
into account
consumer’s
preferences,
so
that
prices
tend
toward
marginal
cost)
and
productive
Mandate for
Leadership: The Conservative
Promise
efficiency
(using the least amount of resources for optimal output)—and
thereby maximizes consumer
welfare.5
Recently,
however, many in the conservative movement have taken a broader
view of antitrust. They point
out that the authors of our antitrust laws did not intend this
purely economic understanding of competitive markets—and the
normative
assumptions
that
undergird
it—to
guide
their
legislation.
First,
these
principles were
only
imperfectly worked out
at the
time the
antitrust laws were
passed. Second,
contemporaneous statements concerning the Sherman and Clay- ton
Acts demonstrate
Congress’s
concern
about
the
political
and
economic
power of
the oil
and railroad
trusts of
the first Gilded
Age, and
their
influence on
dem- ocratic institutions and
civil society.
Antitrust law
can combat dominant
firms’ baleful effects on democratic institutions such as
free speech, the marketplace
of
ideas,
shareholder control,
and
managerial
accountability
as
well
as
collusive
behavior with government.
Republican Senator John Sherman
explained to Congress in support of his eponymous
legislation:
If
we
will not
endure
a
king
as
a
political
power,
we
should
not
endure
a king
over
the
production,
transportation,
and
sale
of
any
of
the
necessaries
of life.
If we
would not
submit to
an emperor,
we should
not submit
to an
autocrat of
trade,
with
power
to
prevent
competition
and
to
fix
the
price
of any
commodity.6
Similarly,
identifying the institutional threats that market concentration
can
pose,
the
former Republican
President and
future Supreme
Court Justice
William Howard Taft
wrote at the time,
The
federal
antitrust
law
is
one
of
the
most
important
statutes
ever
passed
in
this
country.
It
was
a
step
taken
by
Congress
to
meet
what
the
public
had
found
to
be
a
growing
and
intolerable
evil
in
combinations
between
many
who
had
capital
employed
in
a
branch
of
trade,
industry,
or
transportation,
to
obtain control
of it, regulate prices,
and make
unlimited
profit.
Taft saw in this economic threat
broader implications for American society
since
“the
building
of great
and
powerful
corporations
which
had,
many
of
them, intervened
in
politics
and through
use
of
corrupt
machines
and
bosses
threatened us
with a plutocracy.”7
Others
in
the
conservative movement
have maintained
for
numerous
decades
that
an
economic
justification
is
the
only
coherent approach
to
the
antitrust laws.
Many
view
the first
90
years
of
U.S.
antitrust
policy as
unprincipled
in its
approach,
often
resulting
in
policies
that,
by
trying
to
protect
smaller
competitors,
ended
up
2025 Presidential
Transition Project
raising
prices for
consumers. Judge
Robert Bork
in
his
influential book
The
Anti- trust
Paradox
found economic justifications
for previously
denounced
behavior including
small
horizontal
mergers,
all
vertical
and
conglomerate
mergers,
vertical price
maintenance
and
market
division
agreements,
tying
arrangements,
exclusive
dealings and requirements
contracts, “predatory” price cutting, and price “discrim-
ination.”
Bork
also
defended
corporate
“bigness”
if
it
came
about
through
internal growth
or
acceptable
mergers.
He
also
defended
agreements
between
competitors
on prices,
territories,
refusals
to
deal,
and
other
“suppressions
of
rivalry”
that
are
“ancillary” to some economic
efficiency. The practical contribution of his work was to put consumer
welfare at
the heart of
competition law.8
Beyond
antitrust injury, we
are witnessing
in today’s
markets the
use of
eco- nomic power—often
market and perhaps even monopoly power—to undermine democratic
institutions and civil society. Practices such as Environmental,
Social, and Governance (ESG)
requirements on publicly
traded
corporations and
their inclusion in business
agreements, the so-called
“de-banking” of industries
and individuals,
and
the
interference
of
large
internet
firms
with
democratic
political
discourse undermine liberal
democracy, a truly open society, and, indeed, rule of
law. Without
rule of law, markets
themselves will wither.9
Critical
of
the
“social responsibility”
agenda, Milton
Friedman in
his
provoc-
atively titled essay “The
Social Responsibility of Business Is to Increase Its Profits”
states,
[T]here is
one and
only one
social
responsibility of
business—to use
its resources
and engage in
activities designed to
increase its
profits so
long as
it stays
in
the
rules
of
the
game,
which
is
to
say,
engages
in
open
and
free
competition, without deception or fraud.10
For Friedman,
market mechanisms, not political mechanisms, are the appropri-
ate way to determine the allocation of scarce resources to
alternative uses. Business
managers
appropriate shareholder
wealth when
they use
corporate resources
to further
their personal
political
beliefs, even
when pursuing
what they
consider a
“socially
responsible”
or
“moral”
agenda.
The
business
of
American
business
is business,
not ideology.
More
broadly, there
is
less
and
less
debate around
the
growth
of
monopoly
rents
throughout
the
U.S.
economy. The
current data
strongly suggest
that U.S.
corpo- rations
are
systematically
earning
far
higher
profits than
they were
25
or
30
years
ago.
Combined with
other evidence
that large
corporations are
accounting for
an
increasing
share of
revenue and
employment, it
certainly appears
that many
large
U.S.
corporations are
earning substantial
incumbency rents,
and
have
been doing
so
for
at
least
15
years,
apart from
during the
depths of
the
Great
Recession that
began in 2008.
Mandate for
Leadership: The Conservative
Promise
While
the
explanations
for
this
shift are
not clear, what
is particularly
disturbing
is
the
possibility
that these
rents are
extracted at
least in
part through
regulatory
capture—which can function as a bar to entrance for new competitors. In
addition, the sheer cost
of compliance
with
regulation favors
large firms,
which can
more efficiently
spread the
cost of
regulation
over a
larger revenue
base and
have the
resources to invest in
sophisticated government relations. The FTC must consider,
therefore, the
role of
government
itself in
maintaining
market concentration
in areas
ranging
from
pharmaceuticals and
healthcare
to
avionics,
banking,
and
real estate
brokerage.
Beyond
undermining small businesses
and reducing
their
salubrious moral
effect
on
American
civil
society,
concentration
of
economic
power
facilitates
col-
lusion between government and
private actors, undermining the rule of law. The continued
emergence of evidence documenting collusion—between the Big Tech
internet
platforms and
the Biden
White House
and
administrative agencies—to censor criticism,
scientific fact, and uncomfortable political truths demonstrates
this unfortunate development.
But,
there
are
some
caveats.
First, the
FTC
lacks
the
power
to
revisit
developments
in antitrust
laws,
which
have
brought an
invaluable
rigor to
the
antitrust
law—mat-
ters
such
as
analyzing
vertical
integration,
for
example.
Nor
should
it.
Second,
the
FTC’s
recent
rescinding
of its
2015
Policy
Statement
was
undoubtedly
ill-consid-
ered.11
Of
course, the
consumer
welfare standard
must guide
FTC action,
but, in
appropriate situations
and
with
strong
evidence,
this
standard
must
be
expanded to
include
more
factors
than just
price.
Further,
a
similar
standard
of
proof
used
to
establish that a practice
challenged by the Commission causes harm to competition
must
also
apply
in
demonstrating
the
efficiencies
that
justify
the
practices.
President
Harry Truman
reportedly made the
famous quip,
“Give me
a one- handed
economist. All
my economists say ‘on
the one
hand…’, then
‘but on
the other.’” When
it
comes
to
some
of
the
more
vexing
issues
in
antitrust
regulation,
the conservative
movement
is
in
the
same
predicament.
Many
wish
to
preserve
the productivity
and
efficiency
focus of
an
economic-based
consumer
welfare
standard
approach
to
antitrust
enforcements;
others
are
more
willing
to
look
at
the
effects of
business concentration in certain industries on innovation, the
institutional resilience
of
our
democracy,
and
children’s
development.
The
following
discussion
sets forth
policy
principles
and
initiatives
on
which
there
was
agreement
among the
contributors
to
this
chapter,
and notes
and
explains
where
there
was
dissent.
NEEDED
REFORMS
Should the FTC Enforce Antitrust—or Even Continue to Exist?
Some conservatives
think that
antitrust
enforcement should be
invested
solely in
the Department
of
Justice
(DOJ).
The
FTC’s
commissioners
are
not
removable
at
will by
the
President,
which many
quite
reasonably
believe
violates
the
Vesting
Clause
2025 Presidential
Transition Project
of Article II
of the
Constitution; it is
for this
reason that
conservatives
have long believed
in either ending
law
enforcement
activities of independent
agencies or
ending
their
independent
status.
The Supreme
Court
ruling
in
Humphrey’s Execu-
tor12 upholding agency independence seems ripe for revisiting—and perhaps sooner
than
later.13
Others think that the post–New Deal
expansion of the administrative state has had baleful
effects upon
our society
and earnestly
share the
hope that
it can
be
greatly curtailed
if
not
eliminated—or
that
its
authority
can
be
returned
to
the states
and
other
democratically accountable
political
institutions.
But,
until
there
is
a
return
to
a
constitutional structure
that
the
Founding
Fathers
would
have
rec- ognized
and
a
massive
shrinking
of
the
administrative
state,
conservatives
cannot unilaterally
disarm
and
fail
to
use
the
power
of
government
to further
a
conserva-
tive agenda.
As
experience
shows,
the
administrative
state
will
grow
and
further
its own agenda, often at odds
with conservative thought, even under conservative
leadership.
Unless
conservatives take
a
firm
hand
to
the
bureaucracy
and
marshal
its power
to
defend
a
freedom-promoting
agenda,
nothing
will
stop
the
bureaucra- cy’s
anti–free market, leftist march.
ESG Practices
as a
Cover for
Anticompetitive Activity and
Possible Unfair Trade Practices.
It has long been suspected, and is
now increasingly documented,
that corporate social advocacy
on issues
ranging from
“Diversity, Equity, and Inclusion” (DEI) to the
“environmental, social, and governance”
(ESG)
movement
also serves
to
launder
corporate
reputation
and
perhaps
obtain
favorable treatment
from
government actors.
In a recent Senate
Judiciary hear- ing, Senator Josh
Hawley asked FTC Chair Lina Khan if the FTC had conditioned
merger reviews
on ESG or critical
race theories
adopted by
the firms involved.
Khan
responded
by saying
that
she
turned
down
deals
when
firms
offered
social justice
policies in
return for
approving
unlawful deals.
In response
to a similar question
from
Senator
Tom
Cotton,
Khan
responded
that
firms
try
to
come
to
the
FTC
to
get
out
of
antitrust
liability
by
offering
climate,
diversity,
or
other
forms
of ESG-type
offerings, but that
there is
no ESG loophole
in the
antitrust laws.14
Her comments suggest
that there
is a
movement of
firms
attempting to use both
ESG and
DEI as
a sort
of reputational
laundering to avoid
enforcement of potentially criminal
activity. The
FTC should set
up an
ESG/DEI
collusion task
force
to
investigate firms—particularly
in
private
equity—to
see
if
they
are
using the
practice as
a means to
meet targets,
fix prices,
or reduce
output.
•
Congress
should
investigate
ESG
practices
as
a
cover
for
anticompetitive activity and possible unfair trade practices.
The business of
American
business is
business, not ideology.
The privileges
extended to corporations in
American
society come
with the
expectation that
Mandate for
Leadership: The Conservative
Promise
they will pursue profits for
shareholders, bringing about economic growth. Managers, particularly in
publicly
traded corporations,
who use
their power
to advance sets of fashionable moral beliefs, such as
ESG/DEI, introduce agency problems into the shareholder
relationship and appropriate corporate wealth for their own
benefit.
Milton
Friedman
recognized this
problem
decades ago
when answering
the question whether
businesses have ethical or social obligations, as was mentioned
above.
Contrary
to his
detractors,
Friedman
did
not
defend
“greed
is
good.”
Rather,
according to Friedman,
socially responsible activities conducted by a corporation
distort
economic
freedom because
shareholders
do
not
decide
how
their
money will
be
spent—increasing the
possibility
for
fraud
or
management
opportunism.
This is
especially the case
in
concentrated
industries with market
power.15
Managers
who
insert
their own
values into
underwriting agreements,
contracts
for
professional
services, or
other business
transactions coopt
shareholder value
for
their
own
personal
utility. This
is
an
unfair trade
practice, particularly
when it
occurs in
industries that
enjoy
market
power
and special
privileges
or relationships with
the government.
Cancel Culture, Collusion, and Commerce.
As a corollary, businesses that make
general offers
of service
to the public forego
profits by
refusing to
service a
lawful activity,
i.e.,
fossil
fuel
extraction
or
gun
manufacturing,
raising
similar
concerns. When banks or internet platforms refuse customers
based on their political
or
social
views
(as
distinguished
from
religious
views),
they
forgo
profits.
While such decisions are
often justified on public relations, marketing, or branding
grounds—and normally
such
decisions,
reflecting
business
judgment,
should
and would
receive
deference, this
presumption is harder
to make
in a
highly parti-
san, ideologically divided
America. This type of behavior can rise to the level of an
unfair
trade
practice
when the
business
is
(1)
publicly
traded;
(2)
highly
regulated;
(3)
enjoys legal
privileges; (4)
enjoys market
power; and
(5)
appears
to
engage
in its
own political
or social
agenda that
is unrelated to any
conceivable branding concerns.
The
government,
as
guided
by
democratically
passed
laws,
already
reg- ulates activities
such as fossil fuel extraction and gun manufacturing.
Businesses,
particularly
those
that
enjoy
certain
government
privileges
or
relationships
and/
or market power, should not
replace democratic decision-making with their own
judgment on controversial matters.
A related concern
is the
degree to
which
concentration of industries,
particu- larly in pharmaceuticals,
health care,
and the
internet,
encourages government collusion that
undermines democratic institutions. Collusion can be explicit,
in the case
for
example
of
government
working with
social
media
companies
to
censor
politically harmful
news,
or
more
implicit—for
example,
regulatory
requirements so
burdensome that
they deter
market entrance
by smaller
entities
without the resources
to bear them.
2025 Presidential
Transition Project
Protecting Children
Online.
The FTC has
long protected
children in
a variety of
different
contexts.
Internet
platforms
profit
from
obtaining
information
from
children without parents’
knowledge or consent—and social media’s effect on the
well-being of
American
children is
well-documented.
Around 2012,
American teens
experienced
a
dramatic
decline
in
wellness.
Depression,
self-harm,
suicide
attempts,
and
suicide
all
increased
sharply
among
U.S.
adolescents
between
2011 and
2019,16
with
similar trends
worldwide.17
The
increase
occurred at
the same
time
that social
media
use
moved
from
rare
to
ubiquitous
among
teens,18 making social media a
prime suspect
for the
sudden rise
in mental
health issues
among teens.
In
addition,
excessive
social
media
use
is
strongly
linked
to
mental
health
issues among individuals.
Several studies strongly support the notion that social
media use is a cause, not just a correlation, of subjective
well-being and poor mental health.19
Social
media and
other large
platforms form
millions of
contracts every
year with
American children. And
even though
a minor
can void
most contracts
into which
he
or
she
enters,
most
jurisdictions
have
laws
that
hold
minors
accountable
for the
benefits
received
under
the
contract.
Thus,
children
can
make
enforceable
contracts for
which parents
could end
up bearing
responsibility.
Targeting chil- dren to create
potentially harmful contracts
or making
parents
responsible for
such
contractual relationships
is
an
unfair
trade
practice.
The
FTC,
therefore,
has the
authority,
interest,
and duty
to
protect
children
online
from
such
contractual
relationships.
•
The FTC should examine platforms’ advertising and contract-
making with
children as
a deceptive or
unfair trade
practice,
perhaps requiring written parental consent.
Currently,
the Child
Online Privacy
Protection Act
(COPPA)20 regulates
the information internet firms
can obtain
from children.
COPPA fails
because it
(1) only
protects children
under the
age of
13, leaving
older
teenagers completely
unprotected
and
(2)
only
prohibits
platforms
from
collecting
information
from
a
child using “actual knowledge”
rather than abiding by the “constructive knowledge”
standard,
which
prohibits
collecting
information
from
a
user
reasonably
assumed
to be underage. The FTC has
rulemaking authority under this statute but has done
little with
this authority, nor can
it—given the
statutory
constraints. However,
•
The FTC can and should institute unfair trade practices
proceedings against
entities that
enter into
contracts with
children
without parental
consent.
Personal
parental
responsibility
is,
of course,
key, but
the law
must respect,
not undermine,
lawful parental
authority.
Mandate for
Leadership: The Conservative
Promise
Other
conservatives are more
skeptical
concerning the
effect of
online expe-
rience on
the
young,
comparing
the
concern
about
social
media
to
concern
about video
games,
television, and
bicycle safety.
They point
out, as
does Cato
fellow Jeffrey A. Singer, that the psychiatric profession
has yet to designate “internet addiction”
or “social
media
addiction” as
a mental
disorder in
the authoritative Diagnostic
and
Statistical
Manual
of
Mental
Disorders
(DSM-5-TR).21 These
con-
servatives also maintain that calling for regulation
undermines conservatives’ calls
for
parental
empowerment on
education or
vaccines as
well as
personal parenting
responsibility.
In addition, some
of the
methods used
to regulate children’s
internet access
pose
the
risk
of
unintended
harms.
For
instance,
age
verification
regulations
would inevitably
increase the amount of data collection involved, increasing
privacy con- cerns.
Users would
have to
submit to
platforms
proof of
their age,
which raises
the
risks
of
data
breach
or
illegitimate
data
usage
by
the
platforms
or
bad
actors.
Limited-government
conservatives would prefer the FTC play an educational role
instead. That
might include
best practices
or educational
programs to
empower parents
online.
Antitrust Enforcement.
As
is evidenced
by a
relentless focus on
bringing Big
Tech
lawsuits,
state
attorneys
general
(AGs)
are
far
more
responsive
to
their
con- stituents
than is
the FTC.
Such a
“boots on
the ground” approach
would benefit
the FTC
enormously. Practically, this
would mean
establishing a
distinct role
in the FTC Chairman’s
office focused on state AG cooperation and inviting state AGs
to
Washington,
D.C.,
to
discuss
enforcement
policy
in
key
sectors
under
the
FTC’s
jurisdiction: Big
Tech, hospital
mergers,
supermarket mergers,
and so forth.
FTC
regional offices
are
substantially
more in
touch with
local issues.
Over the
past
few
decades, the
reach and
influence of
regional offices
has
shrunk
dramati- cally.
The FTC
should consider
returning
authority to
these offices.
Some conservatives however are less
supportive of this idea. Conservative
enthusiasm
for the
idea
of
adding
regional
FTC
offices
to
the
states
is
a
break
from the
majority
conservative
position. Endorsing the federal
government as a
pre- mier job creator
runs counter
to decades
of
conservative opinion
that holds
that New
Deal
agencies
and
subsequent
government
bodies
should
never
have
been created
in the
first place,
and that
their red
tape and
interference is a
dominant cause
of
economic
inefficiency.
Republicans
used
to
seethe
when
Democrats
tried to
move federal
offices into
the states.
In the early 1990s,
House Minority
Whip Newt
Gingrich
fumed about
Senator
Robert
Byrd’s
campaign
to
transfer
certain
national
intelligence
facilities
to
West
Virginia,
calling
it
a
“pure
abuse
of
power.”
Some contributors
to
this
chapter
would
remind
conservatives
that
the
unseen
mechanics
of redistribution—by
which
taxpayer
money
paid
to
state
employees
is taken
from
taxpayers
nationwide—is
a
drag
on
the
economy
of
the
entire
country. Many
conservatives
fear
that
it
would
be
impossible
to uproot
or
even
prune
back
2025 Presidential
Transition Project
a bureaucracy
the seeds of which have been planted in every state. State
legislators would struggle to
slash funding
from agencies
that employ
and generously
pay thousands of their
constituents. FTC outposts
would tie
middle America
inex- tricably
to
big
progressive
government,
remaking
the
heartland
in
Washington’s
image. It would be anything
but decentralization; Americans need policy makers to discipline
the
arrogance
that
prevails
inside
the
Beltway,
not
spread
it.
It
would be
“Swamp 2.0”:
just as
deep and
many times
as wide.
Big Tech
and Antitrust.
The
large internet
platforms have
transformed
the
U.S.
economy, streamlining
consumer purchases,
networking billions
of
people,
and
altering long-established business practices. Despite their
enormous size, they
have
avoided
significant antitrust
liability or
prosecution. The
reasons for
this are
not entirely clear.
It may be
because these
platforms have
been incredibly innovative and
have generated tremendous
efficiencies for
our society,
with little
to no
evidence of
traditional
consumer
harm
in
the
form
of
higher
prices,
reduced
output,
or
a
lack
of
innovation. Also,
Americans
report
a
high
level
of
satisfaction
in
and
trust
regard- ing
these companies.
The less
friendly regulatory environment in the European Union would make
a
good
case study
in
expansive
antitrust law.
The
continent
boasts not
one
of
the top
10 global
tech companies,
while the
U.S. can
claim eight.22 Some claim that
the
recent
drop
in
value
of
former
leader
and
current
antitrust
target
Meta,
along with
the
rise
of
new
competitors such
as
Zoom
and
Chinese-dominated
TikTok,
indicates that
competitive forces are
healthy and
at work benefiting
consumers in the tech space.
On the other hand, the platforms
challenge traditional economic thinking because
arguably the
firm structure they employ
is radically
different, and they
create
different
competition
dynamics.
First,
there
is
some
evidence
that
the
major
internet
platforms
have
market
power,
resulting
in
increased
prices
for
advertis- ers,
costs
that
very
well
could
be
passed
onto
consumers.
For instance,
numerous
government
studies
have
found
evidence
of
market
power.23 And
while
some
data show declining
advertising costs,
they also
show increasing
prices in
this decade.24 Second,
while
consumers
may
report
that they
like social
media, hedonics
tells
a
different story,
suggesting that
social media
and
other
online activities
diminish
human
happiness.
This evidence,
while mixed
at
first,25 appears
to
have
become quite
solid: Social
media makes
Americans less
happy.26
Third, internet platforms have not
created consumer price increases, but of
course
they
provide
free services—and
this
creates
a
challenge
for
antitrust
regu-
lation.
For decades,
antitrust
economics
has
been
focused
on
a
paradigm
in
which
firm
and
consumer
behavior
are
modeled
as
functions
of
price
and
output
as
the primary
variables.
It may
very
well
be
that
these
models
do
not
fully
capture
the effect
of
technologies that
enable
increasing returns to
scale based
on data,
such
Mandate for
Leadership: The Conservative
Promise
as
digital
platforms. This
possibility cannot
be
lightly
discounted, considering
the tremendous
market
power of
these firms
and
their
market cap,
with the
top
five
firms
of
the
U.S.
market (Apple,
Microsoft, Amazon,
Tesla, and
Alphabet) responsi-
ble
for
23.5 percent
of
the
market cap
of
the
S&P 500
index in
early December
2021. The questionable
predictive power of traditional economic theory was illus-
trated
when,
after
a
much-heralded investigation,
antitrust
regulators
appointed by
former
President Barack Obama
declined to
sue Google in
January 2013
for anticompetitive
behavior. The
FTC spent 19
months
investigating Google
over allegations that
the
search
giant
was
violating
antitrust
laws
by
favoring
its
own
products
over those
of
rival
content
providers,
including
eBay,
Yelp,
TripAdvisor, Facebook,
and
Amazon.
The probe
focused
on
Google’s
control
over
online
search and
search
advertising, as well
as the
company’s growing dominance
in mobile
phone
software.
According
to documents
uncovered in
press reports,27
the
FTC’s
economists successfully
argued
against
initiating
antitrust
action
against
the
company.
This
decision
was based
in
large
part
on
a
series
of
predictions
that
the
agency’s
staff
eco- nomic
experts
made.
These
predictions turned
out
to
be
wrong
in
several
respects.
For instance,
according
to
press
accounts,
these
economic
experts
saw
only
“lim-
ited
potential
for growth”
in
ads
that
track
users
across
the
web—now
the
backbone
of Google
parent
company
Alphabet’s
$182.5
billion
in
annual
revenue.
Relying
on theory,
the experts
downplayed the importance
of mobile
search,
believing that search
would continue
to be
conducted
primarily on desktop
computers—and thereby
underestimating the effect
of Google
on Android
systems. The
experts predicted
that Microsoft,
Mozilla,
or
Amazon
would
offer
viable
competition
to Google
in
mobile
search.
This decision,
of
course,
occurred
in
a
political
environ-
ment of
close
relationships
between
the
Obama
Administration
and
Silicon
Valley. Just
as traditional economic
theory seems
inadequate to the
job of
understand- ing Big Tech
and predicting
its behavior,
empirical
evidence is
very difficult
to come by.
This is
particularly
troublesome. Beyond the
fact that
most user
data are
proprietary, online
markets change
so quickly
that
econometric
conclusions are
often
difficult
to make
because
even
if
the
data
are
available,
they
do
not
exist for
long
enough
time
horizons.
Yet, a
pattern
of
highly
concentrated
firms—with occasional
dropout
and
replacement by
another
successor
firm
with
vast
market
power—seems
to be
emerging.
The policy
implications of this quandary are not clear, but for the
conservative
movement, some
believe that some type of policy response is necessary. The
domi- nant internet platforms have disrupted democratic
deliberation, as is evidenced by the
Hunter Biden
laptop story.
They have
a
propensity
to
collude
with government
to
advance
political goals,
as
documents
unearthed by
the
Missouri
and
Louisiana AG
suits
concerning the COVID
response
demonstrate. And
they play
a pivotal role
in our economy.
2025 Presidential
Transition Project
As Judge Frank
Easterbrook famously suggested, regulators should look at the
cost
of
error in
their judgments.
This argument
has
usually
been used
to
buttress
a
tentative and
hands off
approach to
antitrust because
judicial error
in
antitrust will
persist (Type
II
error)
and
continue
to
damage
markets, while
failure to
take antitrust action
(Type I error) will correct itself in the long run as
competitors challenge
monopolies.28
However,
failing to
take antitrust enforcement action
(Type
I
error)
includes
the possibility
of
real
injury
to
the
structure
of
important American
institutions such
as
democratic
accountability
and
free
speech.
If
so,
a more
proactive
approach may
be warranted.
Certain
online services,
such as
social media,
have an
unquestionable
negative utility,
particularly
on
young
people, as
set
forth
above. The
more “efficient”
pro- vision
of such
services may
create more
unhappiness.
More broadly,
the utility
benefits of
many
online
platforms
and
services
are
obscure
and
may
be
significantly
overstated, as
the most
recent evidence
suggests.29
The
FTC must
become more
sophisticated in measuring
consumer surplus. In addition, the FTC should be open
to
behavioral
explanations,
such
as
habit
and
small
hedonic
differences,
as
keys
to how
platforms create and
keep market
power.30
CONCLUSION
Conservative approaches to antitrust
and consumer protection continue to trust markets, not
government, to give
people what
they want
and provide
the prosperity and material
resources
Americans need
for
flourishing,
productive, and
meaningful
lives. At
the
same
time,
conservatives
cannot
be
blind
to
certain
developments in the American
economy that appear to make government–private sector collusion more
likely,
threaten vital
democratic institutions, such
as free
speech, and threaten the
happiness and
mental
well-being of many
Americans, particularly children. Many, but not all, conservatives believe that
these develop- ments
may
warrant
the
FTC’s
making
a
careful
recalibration
of
certain
aspects
of antitrust
and consumer protection law and enforcement.
AUTHOR’S NOTE:
The preparation of this chapter was a collective enterprise of
individuals involved in the
2025 Presidential
Transition
Project.
All
contributors
to
this
chapter
are
listed
at
the
front
of
this
volume,
but
Rachel
Bovard, John Ehrett,
Christopher Iacovella,
Jessica Melugin, and Jon Schweppe deserve special mention. The author
alone assumes
responsibility
for
the
content
of
this
chapter,
and
no
views
expressed
herein
should
be
attributed
to any other
individual.
Mandate for
Leadership: The Conservative
Promise
ENDNOTES
1.
Sherman
Antitrust
Act
of
1890,
15
U.S.C.
§§ 1–38.
2.
Clayton Antitrust Act of
1914, 15
U.S.C. §§
12–27.
3.
Federal
Trade
Commission
Act
of
1914,
15
U.S.C. §§
41–58.
4.
The
Robinson–Patman Act,
15
U.S.C.
§§ 13,
13b,
and
21a.
5.
Ernest Gellhorn,
“An
Introduction to
Antitrust
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Vol. 24,
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1975,
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6.
Charles A. Boston, “The Spirit Behind the Sherman Anti-Trust Law,”
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341–371.
See especially
p.
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7.
Wiliam Howard
Taft,
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8.
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12.
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13.
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51 F.4th 616 (5th Cir.
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granted sub
nom.
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2023), could signal a major retreat from
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14.
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Senate
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the
Judiciary,
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of
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the
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15.
Milton
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Henry
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Transition Project
17.
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23.
Australian
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anu.edu.au/bitstream/1885/276408/1/AusComp_85.pdf;
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and Digital
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supra
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see
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1–41,
https://
chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2152&context=journal_articles
(accessed March 23, 2023).
29.
Allcott
et al., “The Welfare Effects of Social Media.”
30.
Adam
Candeub,
“Behavioral
Economics,
Internet
Search,
and
Antitrust,”
ISJLP,
Vol.
9,
No.
407
(2013),
pp.
407–434.
T
he idea of
Mandate for Leadership
was first conceived in the fall of 1979 at
a Heritage
Foundation
board of
trustees
meeting when
former Trea-
sury Secretary Bill
Simon and
former General
Services
Administration
Administrator
Jack Eckerd
discussed the
predicament they
had
faced
when they
first joined a
new, more conservative presidential Administration: They
received
no
practical
plans on
how
to
move their
part of
the
federal
bureaucracy to
reflect a
more
conservative policy
direction
other than
vague
exhortations to promote
free
markets;
smaller,
more
efficient
government;
and
a
stronger
national
defense.
In their
new
positions,
they
were
briefed
either
by
holdover
appointees
from
the former
liberal
Administration or
by career
civil servants
who,
inevitably, had a vested interest
in maintaining the status quo.
The discussion became quite animated
as these Heritage board members recalled transitioning to
government positions from their former lives in the private sector—moving their
families, finding new
homes, and
uprooting their
children’s
education
while
they
assumed
new
responsibilities
in
a
very
different environment.
Frank
Shakespeare, who had
headed the
United States
Information
Agency during
the
Cold
War,
noted
that
electoral
politics
is
what
gets
a
President
and
Vice President
elected
and sent
to
Washington,
but
then
policy
politics
is
what
they
had to
focus on
to do
the right
thing once
they got
the big
job.
Former
Navy Secretary
and
Ambassador
Bill Middendorf
added that
there must
be
a
better way
to
prepare
for
real
change in
a
more
conservative direction
in
the
political
environment in
Washington. If
a
conservative
candidate were
to
become
Mandate
for Leadership:
The
Conservative
Promise
the
President-elect
in
just 16
months, what
could be
done by
an
outside
group to
prepare for these new opportunities?
The
staff at
Heritage took
this idea
on
as
a
challenge,
and
it
would become
the
defining
policy
decision
in
the
early history
of
this
upstart think
tank. Task
forces of
knowledgeable
volunteers were formed with specific expertise in the whole
range of
policy
issues—from welfare
reform to
national
defense reform.
The vision for
Mandate
for Leadership
was that
it would serve
as a
guidebook of
specific
policy recommendations
for
reducing
the
size
and
scope
of
the
federal
government and for ensuring
that it stayed within its constitutional bounds. Pos- itive
plans
for
freeing
the
private
sector
from
overblown
government
interference
and regulation
could,
we
believed,
result
in
an
explosion
of
entrepreneurial
activity
that would
reassert
America’s
leading
role
in
the
world’s
economy.
Thus,
if
conservatives
finally gained
control
in
Washington,
they were
prepared to answer the
question, “What is
the
conservative agenda?”
Candidate,
then
President-elect,
then President
Ronald Reagan’s
“feisty new
kid
on
the
conservative
block—The Heritage
Foundation”— had
the
answer,
and it was
Mandate for Leadership.
First published
in January 1981, the original
Mandate served as a
conservative
plan of action for the Reagan Administration, providing much of the
blueprint for
the
Reagan Revolution.
It
contained
more than
2,000 detailed,
actionable policy
recommendations
to move
the federal
government in
a conservative
direction.
The recommendations ranged
from internal
bureaucratic reorganizations to
plans to implement specific,
fundamental changes in every imaginable policy area— from
tax and
regulatory
reform to
strengthening
national defense
to reforming
social
programs.
All were
carefully
crafted,
vetted,
and
pieced
together.
On
January 21,
1981, at
the
first
meeting of
his
Cabinet,
President Reagan
dis- tributed
copies of
Mandate, and
many of
the study’s
authors were
recruited into
the Administration to implement its recommendations.
In the foreword
of that
first edition,
I wrote,
“What is
offered by
the authors is
a
series
of
proposals
which,
if
implemented,
will
help
revitalize
our
economy,
strengthen our national
security, and halt the centralization of power in the federal
government.”
The conservative movement
had found
in Ronald
Reagan a
President who
shared
that
vision
and
who
had
the
will
to
go
against
the
established
political
grain
in Washington. He also had the
ability to speak directly to the American people and
convincingly
show
them
how
those
ideas
could
work
for
the
benefit
of
all.
Mandate’s
proven ideas
and President
Reagan’s skill
at
communicating their benefits led to his
Administration implementing almost half of the recommenda-
tions by
the end
of his
first year
in office.
Those recommendations led to tax
cuts and other economic policies that gave America one of the
longest periods of peacetime economic growth in its
2025
Presidential Transition
Project
history—with
an
annual
growth rate
that has
not
been
rivaled since
then. The
rec-
ommendations led to a rebuilding of the United States military, helped to
bring an
end
to
the
Cold War
and
to
the
Soviet
Union itself,
and
reinvigorated
the
Ameri-
can
people with a collective sense of pride and patriotism that many
thought had vanished
forever.
After
that first
edition, a
new
Mandate was
produced every
four years.
But
the
2016
edition was
one of
particular
note. It
earned
significant attention
from the
Trump
Administration, as
Heritage
had
accumulated
a
backlog
of
conservative
ideas that
had been
blocked by
President
Barack Obama
and his
team.
Soon
after President
Donald Trump
was
sworn
in,
his
Administration
began to
implement major
parts of
the 2016
Mandate. After his
first year
in office,
the Administration had implemented
64 percent
of its
policy
recommendations.
As
a
result
of
those
recommendations,
the
Trump Administration
cut
taxes
and
eliminated
unnecessary
regulations, creating
a
growing
economy and
the
lowest
unemployment
rate in
five
decades—including
among minorities
and
women.
It made
America a
net energy exporter
for the
first time
in half
a century.
It also
prioritized veterans’
care and
rebuilt our
national
defenses.
As
I
noted
above, in
his
first
year in
office, President
Reagan implemented
nearly half
of
Mandate’s recommendations—an
extraordinary feat.
In 2018,
in an
inter- view on Fox
News, I
mentioned that
President Trump
had implemented more recommendations in
his first
year than
Ronald Reagan
did in
his. Of
course, at
the time,
Reagan
did
not
have
both
a
Republican
House
and
Senate
as
Trump
did.
Nonetheless, President Trump liked being compared to a former
President he deeply
admired, and
he touted the
comparison frequently.
This anecdote illustrates how
Mandate provides a
yardstick for conserva- tive
Presidents to
measure their
performance
relative to
one another.
And, very
importantly, it
allows
the
American
people
to
see
concrete
evidence
of
the
prog-
ress an Administration is
making toward reversing the growth of government and
implementing
conservative
solutions
in
its
stead.
In
essence,
it
allows
the
Amer- ican
people to hold their politicians accountable to the principles
they profess to believe in.
When
we
were
producing that
first
Mandate edition,
we
had
suffered under
four
years of Jimmy Carter with double-digit inflation, double-digit interest
rates, high
unemployment,
gasoline rationing, weakness overseas, and what Carter himself
called
a malaise
that he had induced
in the
American
people.
In
the
1981
Mandate
foreword, I
wrote:
The
full recovery
of
our
nation
in
both
the
economic
and
foreign
policy
spheres
will
require
the
sustained
application
of
sound policies
over
several
years.
There are
no
“quick
fix”
solutions
to
problems
that
have
been
years
in
the
making.
But
no
time
must
be
lost
in
taking
the
first
decisive
steps
on
the
road
to
recovery.
Mandate
for Leadership:
The
Conservative
Promise
Today,
President Joe
Biden has
brought us
back to
the
days
of
Jimmy
Carter—
actually,
even worse—with
full-bore
economic,
military,
cultural, and
foreign
policy turmoil.
The advice
that I wrote more
than four
decades ago
just as
easily could
have
been
written
today.
A
conservative
Administration
coming
on
board
in
2025
will
need
to
hit
the
ground
running
just
to
undo
the
significant damage
that
will have
been done
during the
Biden years.
Something
that is
essential to ensuring
that a
new President
in 2025
can suc-
cessfully implement a
conservative agenda is having the right personnel to run the
executive branch departments and their agencies.
This
is
why
it
is
so
often
said that
“people are
policy.” The
Cabinet secretaries,
deputy
secretaries, undersecretaries, assistant secretaries, deputy
assistant secre- taries, administrators, agency heads, and on
and on that a new President chooses
to
place
throughout the
executive branch
must be
principled individuals
already
aligned
with
the
President’s conservative
vision. And
they must
be
willing
to
exe-
cute it on the President’s
behalf.
These
personnel choices
will ultimately
determine the
success or
failure of
the policy
agenda and,
hence, of
the whole
Administration.
Presidential
appointees not only are critical to implementing the policy
agenda, but also must serve to “watch the watchers” in the
departments and agencies they
oversee.
They must
ensure accountability
as
well
as
provide
a
check
on
the
inherent nature
of the
administrative state to
overreach its authority.
For example, they
must rein
in the
Environmental Protection Agency,
which declared
backyard
streams
navigable
waterways
that
then
fall
under
its
author- ity.
They must rein in the Internal Revenue Service, including its
87,000 new employees
hired
to
pick
through
every
detail
of
what
Americans
make
and
how they spend
their money. They must rein in agencies such as the Occupational
Safety and Health Administration, which the Biden Administration
weapon- ized to
attempt to
force COVID-19
vaccine
mandates on
84 million
Americans through their workplaces.
When
these new
presidential appointees
come into
office, it
is
often
the
career
bureaucrats
who end
up orienting them to
their new
positions.
Many of
these bureaucrats
are
all
too
comfortable
with
the
status
quo.
Appointees
have
only
four
years
(eight
at
the
most)
to
effect
change
and
make
a
difference. They
need
a
road map
to do
that starting
on Day
One.
That road map
is exactly
what
Mandate
provides.
It is
not a
mandate to
main- tain
the
status
quo
but
just
do
it
a
little
more
efficiently. Rather,
it
is
a
mandate
to significantly
advance
conservative principles
in
practice
and
demonstrate
to
the American
people
that
where
liberal
policies
generally
fail,
conservative
solutions
succeed in
making life
better for
all of
us.
From the original
1981 Reagan-era
Mandate
for Leadership
to this
edition for
2025, the
purpose remains
the same:
to present
concrete
proposals to
revitalize
2025
Presidential Transition
Project
our
economy, strengthen
our
national
security, and
halt the
centralization
of
power in the federal
government.
In Washington, there are no permanent
victories. But neither are there per-
manent
defeats.
Rather, there
are
permanent
battles
throughout
the
policy
arena.
The other side is never standing
still. While we may achieve tremendous successes under
conservative
leaders,
the
Left
is
always
working
to
chip
away
at
them,
which is
why we
must constantly
be prepared
for the
next fight.
That’s why today,
Heritage President Kevin Roberts, Project 2025 Director Paul
Dans,
the whole
Heritage team,
more than
50 organizations, and more
than 360
experts from
throughout
the
conservative
movement
have
come
together
to
con- tinue the
Mandate for Leadership
tradition of creating policy solutions to solve
the
biggest
issues
facing
America—solutions
based
on
the
core
principles
of
free
enterprise, limited
government,
individual
freedom,
traditional
American
values, and a
strong national defense.
We
do
this
not
to
expand government,
grow its
largesse for
some special
interest,
or
centralize
more control
in
Washington.
Instead, we
do
this
to
build
an
America
where
freedom,
opportunity, prosperity,
and
civil
society flourish
for
all.
One
final note:
As
most
readers know,
this section
of
a
book is
usually called
the
“Afterword,”
but
we
have decided
to
title
it
“Onward!”
In all the decades that I served as The
Heritage Foundation’s founder and president—and
to this
day as
a member
of its
Board of
Trustees—I have ended
my
communications with
the
exhortation
“Onward!”
This
has
been
my
charge
to
encourage friends, colleagues,
and allies that we must always be advancing. There are
always new
battles
and
new
opportunities ahead
to challenge
us to
do even
more, and
we
must
be
ready
for
them,
willing
to
engage,
and
use
them
to
work
for the betterment
of this nation and her people.
An afterword
connotes finality, but “Onward!” signals that our next mission is
just
beginning.
That
is
the
message I
leave you
with today.
Onward!
MINH THỊ
LỊCH SỬ ĐÃ CHỨNG MINH, KHÔNG MỘT ĐÁM NGOẠI NHÂN NÀO YÊU THƯƠNG ĐẤT NƯỚC, DÂN TỘC CỦA CHÚNG TA NẾU CHÍNH CHÚNG TA KHÔNG BIẾT YÊU THƯƠNG LẤY ĐẤT NƯỚC VÀ DÂN TỘC CỦA MÌNH.
DÂN TỘC VIỆT NAM PHẢI TỰ QUYẾT ĐỊNH LẤY VẬN MỆNH CỦA MÌNH CHỨ KHÔNG THỂ VAN NÀI, CẦU XIN ĐƯỢC TRỞ THÀNH QUÂN CỜ PHỤC VỤ CHO LỢI ÍCH CỦA NGOẠI BANG VÀ NHỮNG THẾ LỰC QUỐC TẾ.
Email: kimau48@yahoo.com or kimau48@gmail.com. Cell: 404-593-4036. Facebook: Kim Âu