EQUIP vs. HERO

October 30, 2015

Coding boot camps are an example of the innovation that can occur in higher education, meeting the demand for skilled workers without relying on the endorsement or support of the federal government.

Unfortunately, a new program run by the federal government and its approved accreditors will likely jeopardize the success these boot camps have had by driving up costs and encouraging bad actors to seek federal funds.

The Department of Education’s pilot project, the Educational Quality through Innovative Partnerships (EQUIP), would make students enrolled at coding boot camps eligible for federal financial aid, but only those boot camps that are offered through accredited colleges or universities and regulated by an independent quality assurance entity.

We need a federal higher education policy that encourages students of all backgrounds to advance themselves through additional education, but this program will likely have the opposite effect: federal accreditation, and the burdensome regulation that comes with it, poses a direct threat to innovation and disruption.

Instead of endangering this promising new model, the federal government should stand clear and enact policies that foster more innovation of the traditional higher education. Already, many coding boot camps offer alternative financing options to those who can’t afford to make an upfront payment, which opens the door to lower-income students.

And the federal government should open up the accreditation process, to remove the barriers to entry that prevent new programs from emerging to offer higher quality education at lower prices.

We can begin the process of education overhaul that our country needs by pursuing reforms like the Higher Education Reform and Opportunity (HERO) Act, which would give states a new option to create their own, alternative accreditation systems and open up new options for students qualifying for federal aid.

Our country is known for its pioneering and entrepreneurial spirit. It’s time to unleash that spirit from the grip of the our federal government's bureaucracy, so that our higher education system can once again serve the students of today who will innovate and lead tomorrow.

Big Egg vs Little Mayo – Questioning the Legitimacy of Agricultural Check-off Programs

October 23, 2015

There is perhaps no better illustration of how, and for whom, the federal government works today than the case of the American Egg Board and its hostility toward a start-up food company called Hampton Creek.

The American Egg Board (AEB) is an administrative body appointed by the U.S. Department of Agriculture (USDA) to oversee the national egg checkoff program, which imposes a tax on egg producers in order to fund research and promotional activities related to eggs. (Similar checkoff programs, and implementing administrative boards, exist for many other commodities, like beef, milk, and even paper.) According to their website, the AEB’s mission is “to increase demand for eggs and egg products through research, education and promotion.”

But, according to a series of emails obtained under the Freedom of Information Act, many individuals in senior leadership positions at the Egg Board apparently believe that their mission goes much further.

The 600 pages of correspondence suggest that members of the AEB staff, USDA officials, and top executives from the egg industry engaged in a strategic, multifaceted campaign to use the power and resources of the federal government to undermine the economic prospects of Hampton Creek.

What did Hampton Creek do to draw the ire of the Egg Board? It disrupted the agricultural and food industries by developing popular and affordable eggless alternatives to many egg-based products, using plant-based proteins.

No wonder Joanne Ivy, AEB’s President and CEO, said in an email to colleagues that Hampton Creek’s vegan mayonnaise, Just Mayo, poses a “a crisis and major threat to the future of the egg product business.”

The USDA has an obligation to conduct a thorough investigation into all activities and correspondence of the American Egg Board related to Hampton Creek to determine whether, as the emails suggest, anyone at the AEB violated the federal laws and administrative regulations governing checkoff programs.

At the same time, Congress ought to undertake its own inquiry into the legitimacy and the fairness of agricultural commodity checkoff programs generally.

These checkoff programs first began in 1937 when Congress passed the Agricultural Marketing Agreement Act in response to the dire economic conditions and plummeting crop prices of the Great Depression. But today, with an economy and a farming industry that have changed and improved substantially since the 1930s, are these programs still necessary? Is it fair to give a select group of commodity producers privileged access to the powers of the federal government in order to promote their products?

If these Great Depression era institutions have outlived their purpose, and if the evidence shows that they behave like state-sponsored cartels that intimidate and handicap their competition at the expense of American consumers, Congress should cease authorizing them.

SMARTER Act

October 9, 2015

More than thirty years before Parker Brothers sold their first “Monopoly” board game, the federal government began laying the foundation for our modern anti-trust regulatory regime in order to prevent real monopolies from emerging in the marketplace. While this regulatory framework has largely succeeded in protecting the fair and open competition upon which our free-enterprise economy depends, a relatively minor design flaw has caused the enforcement of our nation’s antitrust laws to be inconsistent and uneven.

In 1903 the position of Assistant Attorney General for Antitrust was created within the Department of Justice (DOJ), which would later become the Antitrust Division, and in 1914 Congress created the Federal Trade Commission (FTC), an independent agency that was designed to share antitrust enforcement authority with the DOJ.

The FTC and the DOJ’s Antitrust Division are both tasked with enforcing Section 7 of the Clayton Act, which prohibits any mergers and acquisitions that would “substantially lessen competition” or “tend to create a monopoly.”

In order for two or more private entities to complete a merger or acquisition, they must notify the FTC and the Antitrust Division, at which point one of the two antitrust enforcement agencies will have a period of time to analyze the potential effects of the transaction.

If the agency determines that the completion of a proposed transaction would violate Section 7, it pursues an injunction of the transaction in federal court. Typically, when the court grants the injunction, the parties of the potential transaction abandon the merger, whereas when the court denies the injunction, the parties execute the transaction shortly thereafter.

But the problem is that the two agencies are held to different standards when seeking a preliminary injunction of a proposed transaction in court.

Some commentators argue that the standards facing the FTC are more lenient than those confronting the DOJ, which would mean that, all else being equal, proposed mergers and acquisitions reviewed by the FTC are more likely to be blocked by the government than transactions that are reviewed by the DOJ.

But regardless of whether, and to what extent, the disparate preliminary injunction standards yield different results, there’s no good reason for two agencies to be governed by different rules when applying the same laws.

The “Standard Merger and Acquisition Reviews Through Equal Rules Act of 2015” – or the SMARTER Act – would solve this discrepancy by harmonizing the standards applied to the DOJ and the FTC when each agency seeks a preliminary injunction to a proposed merger or acquisition. It would also harmonize existing disparities between the procedures the two agencies use in merger litigation, by stripping the FTC of its power to administratively litigate proposed mergers that courts have refused to block.

Protecting the American people and economy from the harmful effects of monopolies need not come at the expense of equality before the law. This is the premise behind the SMARTER Act, which would ensure that companies don’t confront two different sets of rules when preparing to undergo a merger review process with the federal government.

Reassessing Our Strategy in Iraq and Syria

September 25, 2015

It has been a year since President Obama announced that the United States would engage in a strategy to degrade and defeat ISIS. His policy called for lines of efforts to halt ISIS momentum, build up the capacity of regional governments and militaries, and push back ISIS gains.

The most high profile tactic of U.S. and coalition forces has been airstrikes against ISIS targets in Syria and Iraq, operated either independently or in cooperation with Iraqi and Kurdish forces. A total of 51,000 sorties have taken place in the region by coalition forces involving over 6,600 strikes against targets. The impacts that such strikes have had against ISIS are debatable. We have managed to roll back or halt the advances of ISIS in some areas, however, ISIS forces have gained territory in other areas and adapted by operating in urban environments and smaller groups, making them tougher to target. Though it is difficult to estimate ISIS force numbers, evidence does not indicate that coalition attacks have impacted force size in a meaningful way.

Efforts to stabilize Iraq and strengthen the Iraqi military have met with mixed results as well. The coalition and Iraqi forces have prevented ISIS from pushing into Shia territories and have had success in retaking some areas. However, the Iraqi military has lost areas to ISIS in other locations despite the fact they had superior numbers and arms. Though the government in Baghdad is more stable than a year ago, it is dependent upon Shia militia groups who have extremist beliefs of their own and are tied to Iran. There have been reports of Iranian Special Forces working with these groups and of the Iranian Air Force operating in Iraq. It is very doubtful at this point that the Iraqi Security Forces could advance on and hold any Sunni areas currently held by ISIS without signification long-term assistance.

The train and equip program for “moderate” Syrian rebels has largely been a failure. The President set out the initial goal of training 5,000 Syrians during the first year with a $500 million authorization from Congress, but slightly over 100 fighters have graduated from the training; the first group was immediately defeated by the Al-Nusra front in Syria. Numbers of recruits are low because the stringent vetting process insisted on by many members of Congress has weeded out many candidates.

Given the anniversary of the President’s action against ISIS and the recent events affecting the region, it is time to reassess our strategy in Iraq and Syria, starting with a fresh threat assessment and prioritization of national security interests. The primary objective of the United States should be to deny extremist groups like ISIS, Al-Nusra, and the Khorosan group the ability to expand their reach and carry out attacks against American citizens or disrupt the ability of the United States to undertake commerce in the region. Due to the complex nature of this conflict, we have to find a way to achieve these goals without taking on the burden of resolving centuries of ethnic and religious fighting in the Middle East.

Mondernizing The Antiquities Act

August 7, 2015

Mere months before he was re-elected in 1996, President Bill Clinton surprised the entire state of Utah by designating 1.9 million acres of federal land in Utah as the Grand Staircase-Escalante National Monument.

Not only did Clinton fail to consult Utah stakeholders about this designation, he didn’t even bother coming to the state to make the designation. Instead he signed the proclamation in Arizona in sight of the Grand Canyon.

Clinton’s use of the Antiquities Act to designate that monument, and many others, was a huge hit with his wealthy environmentalist donors in California and New York. But in Utah, the designation only created frustration and mistrust towards the federal government - feelings that continue to this day.

The Antiquities Act was never meant to be used in this way. Passed in 1906 after widespread looting of archeological sites on federal lands in the Southwest, the four paragraph bill gave President Theodore Roosevelt the power to declare “historic landmarks, historic and prehistoric structures, and other objects of historic interest on federal land.”

Establishing its originally intended narrow scope, the act also directs the president to limit each designation to the “smallest area compatible with proper care and management of the objects to be protected.”

Unfortunately, presidents from both sides of the aisle have since ignored this limitation by designating 140 monuments covering more than 285 million acres of land.

That is why we need to reform how presidents designate national monuments with the Antiquities Modernization Act. This bill would both preserve the original Antiquities Act intent by continuing the president’s power to designate monument sites that need protection, while also giving local communities a say in the process.

Under the Antiquities Moderation Act, presidents could still designate parcels of federal land as monuments, but any such designation would only be temporary. To make any Antiquities Act designation permanent, a president would then need to win approval for the new monument from both the state where the land resides and from Congress.

Medicaid Expansion

March 27, 2015

The rollout of the Affordable Care Act (ACA) has been so calamitous in so many ways that it can be easy to overlook the problems created by the law’s Medicaid expansion.

Historically, Medicaid has been a program with admirable intentions, but deplorable results. Prior to the ACA, Medicaid’s objective was to provide health care and insurance to our most vulnerable populations, such as individuals with disabilities, as well as low-income children, pregnant women, and seniors. But Medicaid is notorious for trapping its beneficiaries in third-rate care.

Matters have only gotten worse under the ACA, which fails to improve the quality of care for our society’s most vulnerable, while expanding Medicaid’s eligibility to include anyone up to 138 percent of the federal poverty level.

Many states, including Utah, are trying to succeed where the ACA has failed, by agreeing to the new, expanded Medicaid eligibility requirements, but only on their own terms. While many of these state-based reforms make significant improvements to the status quo, they are not enough to overcome the systemic flaws in the ACA or guarantee continued success, as the waivers granting flexibility are often short-lived.

Moreover, even states with well-designed Medicaid alternatives will have to abide by the ACA’s most misguided provisions.

For example, by changing the federal medical assistance percentage (FMAP) rates within each state, the ACA covers state costs at a higher rate for the expanded population than for the original Medicaid population. When it comes time for the states to look for savings as they try to balance their budgets, what is now an obscure discrepancy in FMAP rates will become a perverse incentive that rewards states with more savings by cutting benefits to low-income children and the disabled, rather than benefits to able-bodied, childless adults.

Repealing the Affordable Care Act and replacing it with patient-centered, market-driven reforms is the only way to repair this damage done to Medicaid and our nation’s health care system. As we work toward this goal, Congress could resolve the unfair bias created by the ACA’s enhanced FMAP rate, by eliminating the discrepancy between the two federal Medicaid matching rates within each state.

How Much for a Song?

March 13, 2015

The cost of music today can vary a great deal, depending on where, how, and by whom it’s being played. The same song can be sold for $2 dollars on iTunes or for $10 on a CD in Starbucks. Or it can be enjoyed at no cost to the listener, whether on the radio, in a restaurant, during a professional sports game, or streamed online through a digital distributor, like Pandora and Spotify.

Yet the underlying value of music is relatively constant. Of course people have different tastes and levels of interest, but music has always been an integral part of our culture and virtually everyone enjoys the experience of listening to good music, however they may define it.

Because of the timeless and inherent value of music, our nation’s copyright laws expressly protect musical works, which means that anyone who wants to perform or play a copyrighted song in public must obtain a license from the song’s author – or else pay enormous damages to the copyright holder.

For more than 100 years, the music licensing market has been dominated by several performing rights organizations (PROs), which represent publishers and songwriters by licensing music on their behalf and then collecting and distributing royalties. Roughly 90 percent of the market is represented by the two largest PROs – ASCAP and BMI – and the price of their music licenses is not determined by market demand but governed by a pair of separate antitrust consent decrees administered by the Department of Justice.

Originally established in the 1940s, these consent decrees have remained largely unchanged for over seventy years, even though there have been dramatic changes in the music industry, including the advent of streaming technology and the rise of new media platforms, like Pandora and Spotify.

As the Justice Department conducts a review of these consent decrees, Congress has a responsibility to evaluate the state of competition in the market for music licenses and to provide an open, public forum for music industry actors to discuss how we can ensure a vibrant, healthy market in which the prices for music remain competitive for consumers.

Increasing Transparency

March 6, 2015

“Trust but verify.” The power of this old proverb is that it expresses a core truth about the human condition that resonates with people at all times and in all places. No matter who you are or where you come from, life has probably taught you that most people are deserving of both trust and skepticism.

This basic truth is at the heart of our system of government and our constitutional order. The American people trust their public officials to represent them, but they also want to verify that this trust is not violated when they’re not looking. That’s why we have a system of checks and balances within our government.

One of these checks is the Inspector General Act, which creates within each federal agency an Office of the Inspector General – an independent, and therefore impartial, entity charged with investigating allegations of departmental misconduct. To be effective in carrying out this mission, each Inspector General was granted complete jurisdiction over all cases of alleged misconduct by department personnel – except for one: the Inspector General within the Department of Justice.

The Justice Department is the only federal agency in which the jurisdiction of the Inspector General is limited by a second investigative body – the Office of Professional Responsibility – which reports directly to the Attorney General and has jurisdiction over all cases involving alleged misconduct by DOJ attorneys, investigators, and law enforcement personnel.

As a result, the American people have little assurance that the investigations into alleged misconduct by DOJ attorneys will be objective, transparent, and unencumbered by any conflict of interest. The Inspector General Access Act is a simple, common-sense solution that will bring the Department of Justice into harmony with all other federal agencies and help restore the American people’s trust in their public institutions.

Internet Freedom

February 27, 2015

Earlier this week three of the five unelected, politically appointed bureaucrats who currently sit as commissioners of the Federal Communications Commission voted to grant themselves and their agency the power to regulate the Internet – its millions of American users and trillions of dollars in economic activity – with the same antiquated rules designed for the monopolistic landline telephone industry in the 20th century.

This unprecedented move by the FCC is not only an egregious seizure of regulatory power and a clear violation of the 1996 Communications Act, which wisely prohibits the federal government from regulating broadband Internet services. It also begins in earnest the slow, suffocating, inevitable demise of the Internet as we know it today — the open and expansive universe and source of information, innovation, entertainment, and communication. What was previously bound only by the limits of the our imagination and the frontiers of our technology will now be suffocated by Washington bureaucrats, whose action today will benefit not internet consumers, entrepreneurs, and innovators, but the well-connected special interests that stand to profit from the diminished competition that invariably follows heavy-handed government regulation.

The Internet has been one of the most productive and innovative sectors of our economy, flourishing even as the rest of our economy sputtered, precisely because it has been open and free of exactly this kind of government regulation. Today the FCC made clear that it has no interest in governing within the authority given to it by Congress and that it is eager to discard the objectivity that is expected of an independent, non-partisan agency, in favor of rank partisanship carried out on behalf of our imperious president. This being the case, Congress now has an obligation to reassess the proper role – if any – of the FCC and to determine whether it does more harm than good in a 21st century world.

Criminal Justice

February 13, 2015

America’s criminal justice system is in need of reform not because current policies have failed, but in many ways because those policies have succeeded. Prevailing law-enforcement strategies have helped make communities safer around the country, but not without a high cost. Although America has only 5% of the world’s population, it has more than 25% of the world’s prison population. America now incarcerates more people than any other country.

In this way, the current system, for all its merits, nonetheless leaves too many Americans behind – some of them reformed offenders languishing in prison, some of them innocent men, women, and children on the outside, trapped in fraying communities with too little security and too few fathers, uncles, and older brothers.

A generation of tougher-on-crime policies has created new challenges that our generation now has to meet. We have the challenge of over-criminalization; of over-incarceration; and over-sentencing. We have a mountain of empirical evidence demonstrating the social and economic value of stable, intact families – and the costs of their breakdown.

We have prison policies that make rehabilitation the exception rather than the norm. And we have regulations that make it too hard for even reformed offenders to build a new life and earn an honest living after their release.
While those who violate our laws must be held accountable, we as a society must ensure that the punishments we impose are just and fair. The power to imprison must be used with wisdom and balance.

The Smarter Sentencing Act aims to be smarter about the way that we punish drug crimes and offers immediate relief to an overburdened federal prison system. This legislation recognizes that crime must be punished—no mandatory minimum penalty is eliminated – but it recognizes that punishment must fit the crime and allows judges to impose sentences that reflect the fact of each case. It will free up scarce resources to fund other important areas of criminal justice, like policing and evidence-based prison programming, and allow nonviolent offenders to return more quickly to their families and communities.

Criminal justice reform is not so much about letting people out as it is bringing people in; to craft policies to help reformed offenders and their families fully participate in our society and economy, and to help build an America that gives them the opportunities we would want for ourselves.