at Capitol.  June 19.1996

 

 

with Sen. JohnMc Cain

 

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with General John K Singlaub

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ĐẶC BIỆT

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  2. Hiến Chương Liên Hiệp Quốc

  3. Văn Kiện Về Quyền Con Người

  4. Báo Cáo Tình Trạng Nhân Quyền

  5. China Reports US

  6. Liberal World Order

  7. The Heritage Constitution

  8. The Invisible Government Dan Moot

  9. The Invisible Government David Wise

  10. Montreal Protocol Hand Book

  11. Death Of A Generation

  12. Vấn Đề Tôn Gíao

  13. https://live.childrenshealthdefense.org/chd-tv/

  14. https://www.thelastamericanvagabond.com/

  15. https://nhandan.vn/

  16. https://www.themoscowtimes.com/

  17. dnews.com | News of the Palouse since 1911

  18. Legislation/Immigration and Nationality Act

  19. US Citizen Through US Military Service

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https://lens.monash.edu/@politics-society/2022/08/19/1384992/much-azov-about-nothing-how-the-ukrainian-neo-nazis-canard-fooled-the-world

 

 

with General Micheal Ryan

THÁNG 9-2024

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NHẬN ĐỊNH - QUAN ĐIỂM

 

 

24

 

 

 

FEDERAL RESERVE

Paul Winfree

 

 

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).


 


25

 

 

 

SMALL BUSINESS ADMINISTRATION

Karen Kerrigan

 

 

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).


26

 

 

 

 

TRADE

 

 

THE CASE FOR FAIR TRADE

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


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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

America’s Trade Deficit in Goods and Services with Major Trading Partners

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).

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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


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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

Nonreciprocal Tarif Rates Under “Most Favored Nation” Rule

 

 

 

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).

 

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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,


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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

Trade Deficit Reductions Under Alternative USRTA Scenarios

 

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).

 

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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


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FIGURE 1

Mapping Bilateral Trade Deficits Against Tarif Diferentials

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).

 

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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

Trade Deficit Reductions for Target Countries

 

 

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).

 

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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


Text Box: Mandate for Leadership: The Conservative Promise
Text Box: — 774 —
 


TABLE 5

Communist China’s Categories of Economic Aggression (Page 1 of 8)

 

 

 

 

 

 

 

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

 

 

%

 

 

%

 

%

 

%


Text Box: 2025 Presidential Transition Project
Text Box: — 775 —
 


TABLE 5

Communist China’s Categories of Economic Aggression (Page 2 of 8)

 

 

 

 

 

 

 

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

 

 

%

%

 

 


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Text Box: — 776 —
 


TABLE 5

Communist China’s Categories of Economic Aggression (Page 3 of 8)

 

 

 

 

 

 

 

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

%

%

%

%

 

%


Text Box: 2025 Presidential Transition Project
Text Box: — 777 —
 


TABLE 5

Communist China’s Categories of Economic Aggression (Page 4 of 8)

 

 

 

 

 

 

 

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

%

 

 

 

 

 


Text Box: — 778 — Text Box: Mandate for Leadership: The Conservative Promise
 


TABLE 5

Communist China’s Categories of Economic Aggression (Page 5 of 8)

 

 

 

 

 

 

 

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

%

 

 

 

 

 


Text Box: — 779 — Text Box: 2025 Presidential Transition Project
 


TABLE 5

Communist China’s Categories of Economic Aggression (Page 6 of 8)

 

 

 

 

 

 

 

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

 

 

 

 

%

%


Text Box: — 780 — Text Box: Mandate for Leadership: The Conservative Promise
 


TABLE 5

Communist China’s Categories of Economic Aggression (Page 7 of 8)

 

 

 

 

 

 

 

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

%

 

 

 

 

 


Text Box: — 781 — Text Box: 2025 Presidential Transition Project
 


TABLE 5

Communist China’s Categories of Economic Aggression (Page 8 of 8)

 

 

 

 

 

 

 

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


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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


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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


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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

Vectors of Communist China’s Economic Aggression in the Technology and IP Space

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


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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

 

THE CASE FOR FREE TRADE

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

U.S. Real GDP per Capita

 

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

Total U.S. Industrial Production

 

 

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

1.                Warren E. Buffett and Carol J. Loomis, “America’s Growing Trade Deficit Is Selling the Nation Out from Under Us. Here’s a Way to Fix the Problem—And We Need to Do It Now,” Fortune, November 10, 2003, https://money.cnn.com/magazines/fortune/fortune_archive/2003/11/10/352872/index.htm (accessed February 25, 2023).

2.                2017 Annual Report to Congress of the U.S.–China Economic and Security Review Commission, 115th Congress, 1st Session, November 2017, p. 24, https://www.uscc.gov/sites/default/files/2019-09/2017_Annual_Report_to_ Congress.pdf (accessed February 25, 2023).

3.                JayEtta Z. Hecker, Associate Director, International Relations and Trade Issues, National Security and International Affairs Division, U.S. Government Accountability Office, “China Trade: WTO Membership and Most-Favored-Nation Status,” Testimony before the Subcommittee on Trade, Committee on Ways and Means,

U.S. House of Representatives, GAO/T-NSIAD-98-209, June 17, 1998, p. 1, https://www.gao.gov/assets/t- nsiad-98-209.pdf (accessed February 25, 2023).

4.                 News release, “U.S. Trade in International Goods and Services, December and Annual 2022,” U.S. Department of Commerce, Bureau of Economic Analysis, February 7, 2023, https://www.bea.gov/news/2023/us- international-trade-goods-and-services-december-and-annual-2022 (accessed February 25, 2023); “Table

1. U.S. International Trade in Goods and Services: Exports, Imports, and Balances,” U.S. Department of Commerce, Bureau of Economic Analysis, last updated November 3, 2022, https://www.bea.gov/sites/default/ files/2022-11/trad-time-series-0922.xlsx (accessed February 25, 2023).

5.                U.S. Department of State, “Fact Sheet: Activity at the Wuhan Institute of Virology,” January 15, 2021, https://2017-2021.state.gov/fact-sheet-activity-at-the-wuhan-institute-of-virology/index.html (accessed February 25, 2023); Interim Report, An Analysis of the Origins of the COVID-19 Pandemic, Minority Oversight Staff, Committee on Health, Education, Labor and Pensions, U.S. Senate, October 2022, https://www.help. senate.gov/imo/media/doc/report_an_analysis_of_the_origins_of_covid-19_102722.pdf (accessed February 25, 2023).

6.                Barmini Chakraborty, “China Hints at Denying Americans Life-Saving Coronavirus Drugs,” Fox News, March 13, 2020, https://www.foxnews.com/world/chinese-deny-americans-coronavirus-drugs (accessed

February 25, 2023).

7.                 Jim Garamone, “Trump Announces New Whole-of-Government National Security Strategy,” U.S. Department of Defense, December 18, 2017, https://www.defense.gov/News/News-Stories/Article/Article/1399392/

trump-announces-new-whole-of-government-national-security-strategy/ (accessed February 26, 2023). Emphasis added.

8.                “Remarks by President Trump in State of the Union Address,” The White House, February 5, 2019, https:// trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-state-union-address-2/ (accessed February 25, 2023).

9.               White House Office of Trade and Manufacturing Policy, The United States Reciprocal Trade Act: Estimated Job & Trade Deficit Effects, May 2019, https://www.wsj.com/public/resources/documents/RTAReport.

pdf?mod=article_inline (accessed February 26, 2023); United Nations Conference on Trade and Development, “Trade Analysis Information System,” https://databank.worldbank.org/source/unctad-%5E-trade-analysis- information-system-(trains) (accessed February 26, 2023); Trefor Moss, “China to Cut Import Tariff on

Autos to 15% from 25%,” The Wall Street Journal, updated May 22, 2018, https://www.wsj.com/articles/ china-to-cut-import-tariff-on-autos-to-15-from-25-1526980760 (accessed February 26, 2023); U.S. International Trade Commission, Harmonized Tariff Schedule (2019 Revision 3), https://hts.usitc.gov/view/ release?release=2019HTSAREV3 (accessed February 26, 2023).

10.           This code is commonly used to determine customs duty classifications for goods internationally.

11.           White House Office of Trade and Manufacturing Policy, The United States Reciprocal Trade Act: Estimated Job & Trade Deficit Effects, p. 15.

12.           H.R.764, United States Reciprocal Trade Act, 116th Congress, introduced January 24, 2019, https://www. congress.gov/116/bills/hr764/BILLS-116hr764ih.pdf (accessed February 26, 2023).

13.           Harvard Center for American Political Studies and Harris Poll, “Monthly Harvard–Harris Poll: February 2019,” https://harvardharrispoll.com/wp-content/uploads/2019/02/HHP_Feb2019_RV_topline.pdf (accessed February 26, 2023).


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14.           Adam Behsudi, “Duffy Finds 18 Co-sponsors for Bill to Increase Trump’s Tariff Powers,” Politico, January 24, 2019, https://www.politico.com/story/2019/01/24/duffy-finds-18-co-sponsors-for-bill-to-increase-trumps-

trade-powers-2555509 (accessed February 26, 2023).

15.           FTAs like NAFTA represent a carve-out from the WTO’s unconditional MFN rule and generally lead to tariffs that tend to be set at more reciprocal levels.

16.           H.R.764, United States Reciprocal Trade Act, § 3(b)(1) and (b)(2).

17.          Damian Paletta, “Speaker Ryan Admits Defeat, Giving up on Border Adjustment Tax,” The Washington Post, July 27, 2017, https://www.washingtonpost.com/news/wonk/wp/2017/07/27/paul-ryan-admits-defeat-giving-

up-on-border-adjustment-tax/ (accessed February 25, 2023).

18.          This section draws on analyses in White House Office 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 February 25, 2023).

19.           Bloomberg News, “Xi’s Vow of World Dominance by 2049 Sends Chill Through Markets,” October 26, 2022, https://www.bloomberg.com/news/articles/2022-10-26/xi-s-vow-of-world-dominance-by-2049-sends-chill- through-markets?leadSource=uverify%20wall (accessed February 25, 2023).

20.           Executive Office of the President, United States Trade Representative, 2017 Report to Congress on China’s WTO Compliance, January 2018, https://ustr.gov/sites/default/files/files/Press/Reports/China%202017%20 WTO%20Report.pdf (accessed February 25, 2023).

21.          White House Office of Trade and Manufacturing Policy, How China’s Economic Aggression Threatens the Technologies and Intellectual Property of the United States and the World.

22.           The National Medium- and Long-Term Program for Science and Technology Development Plan (2006–2020): An Outline, The State Council, The People’s Republic of China, p. [55], https://www.itu.int/en/ITU-D/ Cybersecurity/Documents/National_Strategies_Repository/China_2006.pdf (accessed March 21, 2023).

23.           Commission on the Theft of American Intellectual Property, Update to the IP Commission Report: The Theft of American Intellectual Property: Reassessments of the Challenge and United States Policy, February 2017,

pp. 2, 11, and 12, http://www.ipcommission.org/report/IP_Commission_Report_Update_2017.pdf (accessed

February 25, 2023).

24.           The laws, which have been put in place for national security purposes, have been promulgated under the Arms Export Control Act (AECA), 22 U.S.C. Ch. 39, §§ 2751–2756, 2761–2781, 2785, and 2791–27999aa-2,

https://www.law.cornell.edu/uscode/text/22/chapter-39 (accessed February 25, 2023) and the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. Ch. 35, §§ 1701–1708, https://www.law.cornell.edu/ uscode/text/50/chapter-35 (accessed February 25, 2023).

25.           Ministry of Education, People’s Republic of China, “Statistics on Studying in China in 2018,” http://www.moe. gov.cn/was5/web/search?searchword=Statistics+on+Studying+in+China+in+2018&channelid=254028&page=1 (accessed March 21, 2023).

26.       Michael Brown and Pavneet Singh, “China’s Technology Transfer Strategy: How Chinese Investments in Emerging Technology Enable a Strategic Competitor to Access the Crown Jewels of U.S. Innovation, Updated with 2016 and 2017 Data,” Defense Innovation Unit Experimental (DIUx), January 2018, https://admin.govexec. com/media/diux_chinatechnologytransferstudy_jan_2018_(1).pdf (accessed February 25, 2023). The DIUx describes itself as “the only DOD Organization focused on accelerating the adoption of commercial and dual- use technology to solve operational challenges at speed and scale.” Defense Innovation Unit Experimental, “About,” https://www.diu.mil/ (accessed February 25, 2023).

27.           Brown and Singh, “China’s Technology Transfer Strategy: How Chinese Investments in Emerging Technology Enable a Strategic Competitor to Access the Crown Jewels of U.S. Innovation, Updated with 2016 and 2017 Data,” p. 18.

28.           Ingrid Lunden, “Huawei Puts $1M into a New AI Research Partnership with UC Berkeley,” TechCrunch, October 11, 2016, https://techcrunch.com/2016/10/11/huawei-puts-1m-into-a-new-ai-research-partnership-with-

ucberkeley/ (accessed February 25, 2023).

29.           Press release, “President Trump Announces Strong Actions to Address China’s Unfair Trade,” Office of the United States Trade Representative, March 22, 2018, https://ustr.gov/about-us/policy-offices/press-office/ press-releases/2018/march/president-trump-announces-strong (accessed February 25, 2023).


Mandate for Leadership: The Conservative Promise

 

30.           “From China with Love: AI, Robotics, AR/VR Are Hot Areas for Chinese Investment In US,” CB Insights, August 1, 2017, https://www.cbinsights.com/research/chinese-investment-us-tech-expert-research/ (accessed

February 25, 2023).

31.           “Remarks by President Obama and President Xi of the People's Republic of China in Joint Press Conference,” The White House, 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).


Section Five

 

 

 

 

 

 

INDEPENDENT REGULATORY AGENCIES

 

 

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.”


 


27

 

 

 

FINANCIAL REGULATORY AGENCIES

 

 

SECURITIES AND EXCHANGE COMMISSION AND RELATED AGENCIES

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.


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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.


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   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.

 

 

CONSUMER FINANCIAL PROTECTION BUREAU

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).


 


28

 

 

FEDERAL COMMUNICATIONS

COMMISSION

Brendan Carr

 

 

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).


 


29

 

 

FEDERAL ELECTION COMMISSION

Hans A. von Spakovsky

 

 

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.


 


30

 

 

 

FEDERAL TRADE COMMISSION

Adam Candeub

 

 

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.


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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 Economics,” Duke Law Journal, Vol. 24, No. 1, 1975, https:// scholarship.law.duke.edu/dlj/vol24/iss1/1 (accessed March 22, 2023).

6.                Charles A. Boston, “The Spirit Behind the Sherman Anti-Trust Law,” Yale Law Journal, Vol. 21, No. 5, 1912, pp. 341–371. See especially p. 348.

7.                 Wiliam Howard Taft, The Anti-Trust Act and the Supreme Court (New York and London: Harper & Brothers, 1914), p. 4.

8.                Robert Bork, The Antitrust Paradox:A Policy at War With Itself, (Bork Publishing: 1978, 2021), p. 109.

9.                Daron Acemoglu, Simon Johnson, and James A. Robinson, “Institutions as Fundamental Causes of Long-Run Growth,” Handbook of Economic Growth, Vol. 1A, No. 385-472 2005, Chapter 6, pp. 386–419.

10.           Milton Friedman references his own words in his essay “A Friedman Doctrine—The Social Responsibility of Business Is to Increase Profits,” The New York Times, September 13, 1970, https://www.nytimes. com/1970/09/13/archives/a-friedman-doctrine-the-social-responsibility-of-business-is-to.html%20 Capitalism%20and%20Freedom (accessed March 9, 2023).

11.          Federal Trade Commission, “FTC Rescinds 2015 Policy that Limited Its Enforcement Ability Under the FTC Act,” July 1, 2021, https://www.ftc.gov/news-events/news/press-releases/2021/07/ftc-rescinds-2015-policy-limited-

its-enforcement-ability-under-ftc-act (accessed March 9, 2023).

12.           295 U.S. 602 (1935).

13.           While not directly relevant to the constitutionality of the FTC, the Court’s grant of certiorari in Cmty. Fin. Servs. Ass'n of Am., Ltd. v. Consumer Fin. Prot. Bureau, 51 F.4th 616 (5th Cir. 2022), cert. granted sub nom. CFPB v. Com. Fin. Servs. Assn., No. 22-448, 2023 WL 2227658 (U.S. Feb. 27, 2023), could signal a major retreat from Humphrey’s Executor.

14.           U.S. Senate Committee on the Judiciary, Oversight of Federal Enforcement of the Antitrust Laws, September 20, 2022, https://www.judiciary.senate.gov/committee-activity/hearings/oversight-of-federal-enforcement-of-

the-antitrust-laws (accessed March 9, 2023).

15.           Milton Friedman, “A Friedman Doctrine.”

16.           Joan Luby and Sarah Kurtz, “Increasing Suicide Rates in Early Adolescent Girls in the United States and the Equalization of Sex Disparity in Suicide: The Need to Investigate the Role of Social Media,” JAMA Network Open, Vol. 2, No. 5 (2019) https://jamanetwork.com/journals/jamanetworkopen/article-abstract/2733419 (last visited March 21, 2023); Brett Burstein, “Suicidal Attempts and Ideation Among Children and Adolescents in US

Emergency Departments, 2007–2015.” JAMA Pediatrics, Vol. 173, No. 6 (2019), pp. 598–600, https://jamanetwork. com/journals/jamapediatrics/articlepdf/2730063/jamapediatrics_burstein_2019_ld_190006.pdf (last visited March 21, 2023); Katherine M. Keyes, Dahsan Gary, et al., “Recent Increases in Depressive Symptoms Among U.S. Adolescents: Trends from 1991 to 2018,” Social Psychiatry and Psychiatric Epidemiology, Vol. 54, No. 8 (2019), pp. 987–99, https://link.springer.com/article/10.1007/s00127-019-01697-8 (last visited March 21, 2023); Ramin Mojtabai, Mark Olfson, and Beth Han, “National Trends in the Prevalence and Treatment of Depression in Adolescents and Young Adults,” Pediatrics, Vol. 138, No. 6 (2014), https://publications.aap.org/pediatrics/article-abstract/138/6/ e20161878/52639/National-Trends-in-the-Prevalence-and-Treatment-of (last visited March 21, 2023); Gregory Plemmons, Matthew Hall, et. al., Hospitalization for Suicide Ideation or Attempt: 2008–2015,” Pediatrics, Vol. 141, No. 6 (2018), https://publications.aap.org/pediatrics/article/141/6/e20172426/37690/Hospitalization-for-Suicide- Ideation-or-Attempt (last visited March 21, 2023); Henry A. Spiller, John P. Ackerman, et al., “Sex- and Age-Specific Increases in Suicide Attempts by Self-poisoning in the United States Among Youth and Young Adults from 2000 to 2018,” Journal of Pediatrics, Vol. 210, (2019), pp. 201–208, https://www.sciencedirect.com/science/article/ pii/S002234761930277X?casa_token=jms1NxTEV10AAAAA:Ouz_vL9ElIZ58p21w_5SuwOs0OJTNJZtCakf5O3I_ NJCcXWoBm0zDvDTvm-YB0Ma5pZhiKXN (last visited March 21, 2023); Jean M. Twenge, A. Bell Cooper, Thomas

E. Joiner, et al., “Age, Period, and Cohort Trends in Mood Disorder Indicators and Suicide-related Outcomes in a Nationally Representative Dataset, 2005–2017,” Journal of Abnormal Psychology, Vol. 128 (2019), pp. 185–199,

https://psycnet.apa.org/doiLanding?doi=10.1037%2Fabn0000410 (last visited March 21, 2023).


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17.       Jean M. Twenge, Jonathan Haidt, Andrew B. Blake, Cooper McAllister, Hannah Lemon, and Astrid Le Roy, “Worldwide Increases in Adolescent Loneliness,” Journal of Adolescence Vol. 93 (2019), pp. 257–269, https:// www.sciencedirect.com/science/article/pii/S0140197121000853 (accessed March 23, 2023).

18.           Jean M. Twenge, Gabrielle N. Martin, and Brian H. Spitzberg, “Trends in U.S. Adolescents’ Media Use, 1976– 2016: The Rise of Digital Media, the Decline of TV, and the (Near) Demise of Print,” Psychology of Popular Media Culture, Vol. 8, No. 4 (2019), pp. 329–345, https://www.researchgate.net/publication/327121650_ Trends_in_US_Adolescents'_Media_Use_1976-2016_The_Rise_of_Digital_Media_the_Decline_of_TV_and_ the_Near_Demise_of_Print (last visited March 21, 2023).

19.           Hunt Allcott, Luca Braghieri, Sarah Eichmeyer, and Matthew Gentzkow. “The Welfare Effects of Social Media,” American Economic Review Vol. 110, No. 3 (2020), pp. 629–676; Melissa G. Hunt, Rachel Marx, Courtney Lipson, and Jordyn Young, “No More FOMO: Limiting Social Media Decreases Loneliness and Depression,” Journal of Social and Clinical Psychology, Vol. 37, No. 10 (2018), pp. 751–768, https://guilfordjournals.com/doi/abs/10.1521/

jscp.2018.37.10.751 (last visited March 21, 2023).

20.           The Child Online Privacy Protection Act of 1998, 15 U.S.C. § 6501.

21.           The Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR) is the authoritative publication of the American Psychiatric Association.

22.           Ceren Kurban, “World’s 22 Biggest Tech Companies of 2023,” UserGuiding Blog, March 13, 2023, available at https://userguiding.com/blog/biggest-tech-companies/.

23.           Australian Competition and Consumer Commission (June 2019), available at https://openresearch-repository. anu.edu.au/bitstream/1885/276408/1/AusComp_85.pdf; UK Competition & Markets Authority, Online Platforms and Digital Advertising Market Study Final Report, July 2020, available at https://www.gov. uk/cma-cases/online-platforms-and-digital-advertising-market-study; European Union, Expert Group

for the Observatory on the Online Platform Economy: Market Power and Transparency in Open Display Advertising—A Case Study, Final Reports, February 2021, available at https://digital-strategy.ec.europa.eu/en/ news/final-reports-eu-observatory-online-platform-economy.

24.           St. Louis Fed, Producer Price Index by Commodity: Advertising Space and Time Sales: Internet Advertising Sales, Excluding Internet Advertising Sold by Print Publishers, available at https://fred.stlouisfed.org/ graph/?g=vtTd.

25.       Allcott, supra note 19; see also Jean M. Twenge, Jonathan Haidt, Jimmy Lozano, and Kevin M. Cummins, “Specification Curve Analysis Shows that Social Media Use Is Linked to Poor Mental Health, Especially Among Girls,” Acta Psychologica, Vol. 224 (2022), p.103512, https://doi.org/10.1016/j.actpsy.2022.103512 (accessed March 23, 2023).

26.           Markus Appel, Caroline Marker, and Timo Gnambs, “Are Social Media Ruining Our Lives? A Review of Meta- Analytic Evidence," Review of General Psychology, Vol. 24, No.1 (2020), pp. 60–74.

27.           Leah Nylen, “How Washington Fumbled the Future,” Politico, March 16, 2021, https://www.politico.com/ news/2021/03/16/google-files-ftc-antitrust-investigation-475573 (accessed March 10, 2023).

28.           Frank H. Easterbrook, “The Limits of Antitrust,” Texas Law Review, Vol. 63, No. 1 (1984), pp. 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.


 


 

 

 

 

 

 

 

 

 

ONWARD!

Edwin J. Feulner

 

 

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


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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

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