Chuck Schumer, one of the most powerful people in Washington, uses a flip phone. The kind of phone with a tiny screen and real buttons, designed for making actual phone calls, not writing emails. But then, the Senate minority leader rarely emails, telling the New York Times a few years ago that he sends about one every four months. In case manufacturers stop making his favorite flip phone, Schumer has stockpiled ten of them. 

Schumer’s practically a techie compared to Lindsey Graham, though. The chair of the Senate Judiciary Committee told NBC’s Meet the Press in 2015, “I don’t email . . . I’ve never sent one.” The Luddite tendencies extend to other members of Congress. When Senator Richard Shelby needs to write to his staff, he favors handwritten notes. “I’ve been here a while; I’m a little older than y’all,” he told Politico, by way of justification. When Paul Ryan paid a visit in 2014 to Jim Sensenbrenner, who at the time was a senior member of the House Committee on Science, Space, and Technology, he found the congressman tapping out letters on an IBM Selectric II. 

These old-fashioned habits may be charming coming from your grandparents, but your grandparents aren’t charged with legislating on cryptocurrency, regulating autonomous vehicles, or protecting consumers from data breaches. Members’ technical naïveté goes beyond their choice in phones and onto the floor of Congress. When experts testified before Congress last May about the promise of quantum computing—which could radically accelerate research into everything from pharmaceuticals to machine learning to carbon sequestration—Illinois Representative Adam Kinzinger admitted, half-jokingly, to the panel, “I can understand about 50 percent of the things you say.” 

When Google CEO Sundar Pichai testified before Congress last December, Texas Representative Ted Poe attempted to grill him on how the company tracks users’ location. “I have an iPhone,” said Poe, who has since retired. “If I move from here and go over there and sit with my Democrat friends . . . does Google track my movement?” Increasingly exasperated at what seemed like Pichai’s evasions, Poe repeatedly asked, “Yes or no?” But, of course, Apple, not Google, manufactures iPhones, and whether or not the company was tracking Poe wasn’t a yes-or-no question. It would depend on which apps he had downloaded, whether his GPS was enabled, and so on. Nailing down how Google collects user data has important policy implications, but by bungling some basic facts about the technology Poe let Pichai off the hook. 

This lack of tech savvy causes problems well beyond wrangling with the Facebooks and Googles of the world, for the simple reason that tech is baked into all policy areas. Regulators worry that software installed in medical devices could be hacked. Lawyers and activists are concerned about bias in the algorithms used to assess bail. Legislators who want to fight climate change need to know which renewable energy sources are ready for commercialization. But the dearth of expertise hamstrings Congress throughout the entire policy process—from deciding which issues to prioritize, to drafting bills, to exercising oversight. 

Of course, nobody expects members of Congress to be experts on everything—that’s why they have staff. The problem is that congressional staffers don’t always know much more than their bosses. They, too, need advice from disinterested experts to walk them through the intricacies of technical issues—and for the most part, they’re not getting it. While a recent survey found that 81 percent of senior staffers thought that access to “high-quality, nonpartisan, policy expertise within the legislative branch” was “very important,” only 24 percent were “very satisfied” with the current situation.

This wasn’t always the case. From the 1970s through the mid-’90s, Congress had its own think tank to help it legislate on technical issues: the Office of Technology Assessment. But the OTA was killed off in 1995 by then House Speaker Newt Gingrich as part of his assault on government expertise. Ever since, Congress has struggled to navigate science and technology issues, with occasionally disastrous results. 

The good news is that efforts to resurrect the agency are under way, with the newly Democratic-controlled House pushing to secure funding for it this year. Even some Republicans and conservative think tanks have warmed to the idea. Getting smart on tech is actually something this Congress could do. In the meantime, another government agency, the Government Accountability Office (GAO), is growing its tech team, too. 

But the OTA, GAO, or any other three-letter government agency will only fix half the problem of Congress’s tech brain drain. The other half has to do with the overall congressional workforce. The Gingrich revolution not only wiped out the OTA; it also decimated congressional staff ranks, and their numbers have never fully recovered. That’s a major reason why Congress has become so dysfunctional. Staffers shape what information their bosses get, take meetings with interest groups, and participate in important negotiations. But congressional staff these days tend to be young, low-paid, and thinly spread—and those with technology backgrounds are as uncommon as, well, flip phones. To deal with an ever more technologically complex world, Congress needs a critical mass of staffers who bring science and tech experience to the table.

The idea that Congress should have its own dedicated corps of STEM nerds goes back to the 1960s. At the time, Washington was pouring more and more research money into everything from supersonic transport to the Apollo space program. Meanwhile, the executive branch was giving itself new agencies to help with tech and science. Congress, however, lagged behind. That asymmetry gave federal agencies the upper hand when they came to the Hill asking for money. Eventually, Congress got fed up. “We are not the rubber stamps of the administrative branch of the government,” said Democratic Representative George Miller during a hearing. So, in 1972, Congress created its own nonpartisan think tank: the Office of Technology Assessment. 

During its heyday, the small agency conducted research on everything from artificial hearts to solar technology, functioning as a kind of early-warning signal about emerging technologies and what policy options were available to deal with them. After an evenly split bipartisan panel approved the topic, the agency’s in-house team would select and work with top outside experts to produce the reports, which would then undergo peer review. They put the issues in terms that resonated with nonexperts. “You are sitting with your wife in the doctor’s office, waiting to be told what to do next to get your wife pregnant,” read a memorably vivid report on fertility treatments. “You are wondering how bad your sperm are.”

Lawmakers could also turn to the cadre of OTA wonks for help as they developed policy. As an article in the Federal Times put it, “In a town where unimpeachable sources are oh-so-hard to come by, OTA has managed to secure a position near the top of the list.” It even gained international respect; in an inversion of the usual dynamic, a delegation from the Netherlands came to study the OTA so they could replicate it back home. 

Congress’s “Defense Against the Dumb,” as one lawmaker called it, played an important behind-the-scenes role on everything from small, uncontroversial bills to landmark legislation. Sometimes it saved lives. When Richard Nixon’s defense secretary James Schlesinger pitched an intercontinental ballistic missile strategy with surprisingly low potential casualty estimates, Congress asked the OTA to run the numbers. The agency found that the Defense Department had made some overly optimistic assumptions, forcing the department to revise its estimate. A succession of OTA studies in the 1980s and ’90s found that mammograms and pap smears, among other preventative treatments, provided large health benefits for relatively low cost—so Congress decided Medicare should cover them. After an OTA report questioned the accuracy of polygraph tests, Congress banned most private employers from using them. 

It also paid for itself many times over by helping the federal government dodge boondoggles. When the Carter administration wanted to invest $86 billion in synthetic fuels, for example, the OTA found that the technology wouldn’t be a cost-effective alternative. Congress, persuaded in part by those findings, pulled more than $60 billion of the project’s budget, according to former OTA assistant director Peter Blair. (For comparison’s sake, you could multiply the agency’s 1995 budget by 2,000 and still come in well under $60 billion.)

In the 1980s, however, the team drew the ire of conservatives by commissioning a report that raised serious doubts about the Reagan administration’s proposed “Star Wars” missile defense system. “The prospect that emerging ‘Star Wars’ technologies, when further developed, will provide a perfect or near-perfect defense system,” concluded the report’s author, Ashton Carter, a physicist who would later serve as President Obama’s defense secretary, “is so remote that it should not serve as the basis of public expectation or national policy.” Anger at this rebuke smoldered in conservative circles for a decade.

The chance for revenge finally presented itself in the mid-’90s, when Republicans won a majority in both houses for the first time in forty years. Gingrich ascended to his role as speaker, looking to cut the size of government, centralize power under his own office, and remove any impediments to his “Contract With America” policy
agenda—especially staff experts who might raise pesky questions. Not only was the OTA unpopular with conservatives, but it also made an easy target: the agency primarily served committee chairs and their staffs, so cutting it wouldn’t directly impact too many lawmakers. Though it still had substantial bipartisan support—one attempt to save it garnered forty-eight Republican votes—Gingrich prevailed, and Congress shrank the agency’s budget to zero. Staff threw a going-away party, according to a former OTA researcher, donning T-shirts that said, “The Librarian of Congress got a new appropriation and all I got was this lousy T-shirt.” Then they gave their furniture and computers to other agencies, and turned out the lights. As one Democratic lawmaker said on the day it closed, “OTA proved to be too smart for a new Congress that is in love with simple answers.”

Rush Holt is a smart guy. He’s got a PhD in physics from New York University and helped run the largest research facility at Princeton. He served as an arms control expert for the State Department. He’s won Jeopardy five times, even beating IBM’s Watson supercomputer in one matchup. And when he ran for Congress, with no prior experience in public office, he became the first Democrat to win his central New Jersey district in thirty years. 

When Holt got to the Hill in 1999, he discovered an alarming lack of awareness about science and technology. He had worked in Congress as a staffer when the OTA existed, and now that he had the legislator’s pen, he set about trying to bring the agency back. In 2001, he introduced a bill to reestablish the office. It got plenty of cosponsors, but not enough support to pass. He tried again, year after year, with the same results. “Most members of Congress didn’t—and still don’t—know what they’re missing,” he said recently. 

In the meantime, the need for good tech advice only continued to grow. That showed in 2003, when Congress tried to do something about the threat of email spam, which was taking over inboxes. (In 2001, spam made up 7 percent of all email traffic; by December 2003, it was almost 60 percent.) The states had created a patchwork of regulations that cried out for a national solution. Congress could have decided to make spam illegal—just think where we’d be now. Instead, it took a little nibble, targeting one type of spam and leaving the rest untouched, while preempting stronger efforts by some states like California. Rates of spamming actually went up in the months after the bill, not down. It was so bad that a law review article speculated, “Was Congress Actually Trying to Solve the Problem or Add to It?”

In 2006, Holt helped organize a hearing about science advice in the House of Representatives, giving OTA opponents a chance to air their concerns. Enter longtime OTA foe Dana Rohrabacher, a California Republican who has claimed that climate change is a “fraud” designed to create a global government. During the hearing, Rohrabacher maintained that Congress could go to outside groups for science help. “I operate under the assumption that bureaucracy is the most effective method ever developed that can turn pure energy into solid waste,” he said, further burnishing his science credentials. Still, eventually Holt picked up allies, including a partner across the aisle, Jason Chaffetz. In 2016, the influential Republican began working on a bill to rebrand and revive the agency. But before it got far, he announced he wouldn’t be running for reelection. 

In the meantime, Congress continued to demonstrate its ineptitude on tech. In 2016, after the FBI struggled to gain access to the iPhone data of one of the San Bernardino shooters, Senators Dianne Feinstein and Richard Burr drafted legislation that effectively required tech companies to build a back door into their encryption. They seemed to be caught flatfooted by vociferous opposition from tech companies and privacy experts, who pointed out that such a back door could also be exploited by criminal hackers and rogue governments to mess with everything from our cell phones to the electrical grid. This shouldn’t have been a great revelation. Just the year before, fifteen leading computer scientists and security experts had coauthored a widely circulated white paper calling this kind of back door “unworkable in practice.” “Reading that bill, there’s very little to signal that they spoke to folks with technical expertise,” said Joseph Lorenzo Hall, chief technologist for the Center for Democracy and Technology. In the wake of sharp criticism, including from more tech-savvy legislators, the bill stalled. 

Part of the problem was that members and staff didn’t have enough in-house knowledge even to choose which outside experts to consult—a role the OTA used to play. “Staff can get any number of industry lobbyists, or think tanks, or advocacy groups, or even academics to come in and give them opinions, and I think that’s not sufficient,” said Zach Graves, an associate fellow at the right-of-center think tank R Street and the head of policy at Lincoln Network, a conservative tech nonprofit. “A lot of these experts have other motives. Think tanks have donors and ideologies, and having worked in that space for a while, the quality of work is very inconsistent.” The result is a war of experts, each with their own data and diagnosis of the problem.

Not knowing who to listen to, members and staffers naturally turn to people they personally know and trust, especially former colleagues. Tech companies understand this, which is why in recent years they have vastly expanded their Washington lobbying operations and filled them with former staffers and administration officials. Of course, talking to lobbyists isn’t all bad—getting the perspective of the industry that will be impacted by a law is important. But if the industry’s representative is also your primary source of information, that’s a problem. When the Senate Intelligence Committee needed to look into Russian meddling in the 2016 election, it commissioned outside groups to analyze vast amounts of social media data. Just weeks after the Senate published the findings, an investigation by the Washington Post revealed that New Knowledge, a Texas-based research firm that coauthored one of the committee’s reports, had also been hired to support Doug Jones’s successful 2017 race against Roy Moore for an Alabama Senate seat. While New Knowledge’s exact role in the campaign is disputed, according to the Washington Post report, the effort included spreading fake evidence on social media that Russian bots were supporting Moore on Twitter, and creating a Facebook page aimed at persuading Alabama conservatives to write in a different Republican. That firms conducting research on disinformation for Congress were themselves mired in allegations of disinformation suggests that the legislative branch needs a better system for gathering information. 

By now the evidence that Congress needs stronger in-house capacity is so overwhelming, and the political balance of power has shifted so much, that a revival of the OTA finally seems possible. Dana Rohrabacher, the agency’s most vocal critic, lost his seat last November. Though Rush Holt left Congress in 2015, two of his Democratic allies in the House, Mark Takano and Bill Foster, have taken up the baton. Last year, Takano, supported by Foster, sponsored legislation to bring back a modest version of the OTA that lost by only twenty-three votes, with fifteen Republicans joining Democrats in support. With Democrats having gained forty seats in the midterms, the bill has a much better chance of passing the House this year. If it’s stymied by the Senate, it could be one of the first things Democrats try to pass if they gain control of both houses in 2020. 

In the meantime, the GAO is positioning itself to be part of the solution. The agency’s primary charge is to evaluate government programs and investigate waste and fraud, but in early 2019 it announced that, with a fair amount of bureaucratic reshuffling, it was dramatically growing its tech team. In a political sense, it represents the art of the possible, but whether a team of audit-focused experts can fill Congress’s expertise gap remains to be seen.

In the end, however, neither a tech-savvy audit team nor a revived OTA would fully solve Congress’s tech problem. Newt Gingrich didn’t just surgically remove the OTA; he took an ax to the entire congressional nervous system. He cut the number of House committee staff—who do much of the legwork of policymaking—by more than a third. He reduced the ranks of the legislative support agencies—the GAO, Congressional Research Service, and Congressional Budget Office—by a quarter. The problem only got worse with time. By 2015, according to the most recent count of congressional staff by the Brookings Institution, House committee staff were still about 45 percent smaller than they were in 1993, pre-Revolution; GAO was down by 40 percent, and the CRS by about a third. 

With fewer staffers, the ones who remain take on unrealistically broad policy portfolios. One might be tasked with tracking transportation, defense, and foreign affairs while another has to be ready to make vote recommendations on all things criminal justice, health care, and technology. In addition to being spread thin, staff are overwhelmingly young and underpaid. If you spend a day or two hanging out in congressional office buildings, it won’t surprise you that roughly 40 percent of staffers are under the age of twenty-four. According to an analysis in Vox by two political scientists, junior staffers, like legislative correspondents, make on average a bit less than $29,500. That not only narrows down who can afford to take these jobs in the first place but also means that people don’t tend to stay in them for long. Once they pick up some experience, a higher-paying private-sector or lobbying job awaits.

Staffers with technical backgrounds would have the greatest impact aiding a committee, where much of the actual business of Congress takes place. Those staffers tend to be more specialized and earn more—professional
House committee staff members made a bit less than $96,000 on average in 2015—but that pales in comparison to what someone with technical expertise could be offered by tech companies. It even lags behind the direct competition: the executive branch. To attract top technical talent, at least one executive agency is listing jobs near the top of the government pay scale, which starts well above what these committee staffers make. That may be part of the reason there are so few staffers with technical backgrounds in Congress. Travis Moore, who runs a technology fellowship for Congress, looked into how many of the thousands of full-time congressional staffers have technical training from either academia or industry. He found nine.

To really fix its tech problem, Congress needs to fix its staffing problem. The OTA is only a tool. Staff need to have the bandwidth and background to make use of it. “You could have all the reports in the world, but if the customers for those reports aren’t prioritizing utilizing that information, that’s not going to be as useful as it could be,” said Zach Graves, of the Lincoln Network. Staffers are party to situations that no OTA researcher would be. They’re in committee offices when tech lobbyists walk in and try to put the brakes on legislation by gesturing at vague or fictitious unsolvable technicalities. It’s committee staff, not civil servants from the would-be OTA, who are in all of the important budget and legislative negotiations, and it’s staff who can best talk their bosses out of making a technically ill-advised decision. 

Even the most vocal champions of a revived OTA, including superfan Rush Holt, agree that it would be only part of the solution. There also needs to be a critical mass of staffers with some background in science and technology. “If you don’t have anybody in the initial discussions that even recognizes that there is scientific expertise to be sought, then they won’t get it,” Holt said. 

Committee staffers are bombarded with meeting requests from interest groups, and having even one staffer on hand who is versed in the relevant topic changes the information asymmetry. J. C. Cannon, a former Micro-
soft program manager who spent a year as a staffer for the House Ways and Means Committee through the TechCongress fellowship program, found himself in this role. “People come in and say how difficult this technology is,” he recalled. “Don’t worry about the details, I’m letting you know it’s just too hard to do.” That could be enough to stall legislation. 

One issue he worked on was pushing for ID numbers for medical devices, so that when a batch of, say, heart valves are defective, the patients who are using them can be notified. An industry representative paid a visit to the committee office, complaining about how hard it would be to implement the IDs. Cannon started asking about what schema and interfaces they were using. “What you’re proposing sounds like a day of work, and we can talk through that if you like,” he told the representative. According to Cannon, the lobbyist got flustered and quickly left. 

The problem of staff capacity is showing up in some of Congress’s most important work. In the spring of 2018, House Democrats on the Intelligence Committee who had been investigating Russia’s disinformation tactics decided to release roughly 3,500 Facebook ads bought by Russian agents. Why did they decide to release them? One factor was that they simply didn’t have the committee staff to analyze all that data. “With all the other elements of the Russia investigation, we as a small staff don’t have that capacity,” Adam Schiff, then ranking member of the committee, told the Washington Post. They hoped that some independent sleuths would do the work for them.

Pinning down the exact value of staffers with technical backgrounds is difficult, but a good proxy is the demand for people coming to Congress on science and tech fellowships. The American Association for the Advancement of Science—which Rush Holt now leads—places thirty or more fellows, sponsored by different science organizations, in congressional offices for one-year stints. In recent years, the number of requests for fellows has been double the number of fellows available, according to the AAAS. TechCongress, a similar program run by former congressional staffer Travis Moore, places early- and mid-career technology professionals in personal and committee staffs. This year, the average TechCongress fellow received offers from eight congressional offices, and several senators reached out to fellows to make the pitch themselves, according to Moore. That lawmakers with constitutional control over the federal purse find themselves competing for a handful of privately funded tech experts tells you how out of whack the system has become.

A big part of the problem is that people with science and tech expertise can command considerably higher salaries in the private sector. “After a while, it gets hard to resist,” said James Gimbi, a cybersecurity specialist who worked in Senator Rand Paul’s office as a TechCongress fellow. “You know, when some group comes along and offers you two or three times your pay.” Moore said most TechCongress fellows are taking pay cuts, some as much as 70 percent. Congress probably doesn’t need to match Google when it comes to salaries—being able to work at the epicenter of national policy has its own, strong appeal—but whatever the happy medium is, Congress is definitely not there yet. 

One of the reasons the pay problem hasn’t already been fixed is that Congress hasn’t seen it as a political winner. “That’s a bind that we’ve been in for quite a while,” said Bill Foster, one of the OTA champions in the House. “[T]he campaign promise that I’m going to raise staff salaries, it doesn’t really sell well with the electorate.” 

The politics of congressional staffing, though, are starting to change. Last fall, the GOP-controlled Congress passed, and Donald Trump signed, an appropriations bill that boosted members’ allowances to run their offices. It also commissioned a study on how much Senate staffers make compared to similarly qualified professionals elsewhere, and requested a study on whether Congress has the tech and science advice it needs. In February, Alexandria Ocasio-Cortez raised the issue of penurious staff pay when she announced that none of her staff will make less than $52,000 per year. But to achieve higher base pay, Ocasio-Cortez will have to pay her top staffers much less than other offices, maxing out at $80,000. While that egalitarian move means her junior staffers won’t have to work second jobs, it’s the opposite of a solution to the problem of recruiting and retaining staff with science and tech expertise. To do that, she and other lawmakers will need to allocate more funds for staffing overall. 

Boosting salaries at the top end of the pay scale is still no lawmaker’s idea of a winning political move. The temptation, as it has been for two decades, will be to kick this problem down the road, for some future Congress to deal with, in favor of addressing bigger, sexier topics that play better in the media and with constituents. But many, if not most, of those impending policy debates—like protecting privacy online, combating climate change, safeguarding the next election from hacking—are precisely the ones Congress is likely to mess up if it doesn’t have the expertise it needs. That’s something we’ll all end up paying for.

The post How Congress Got Dumb on Tech—and How It Can Get Smart appeared first on Washington Monthly.

In 2016, hackers broke into the servers of the ride-sharing company Uber. The haul included the personal phone numbers and email addresses of fifty million Uber riders and the license numbers of some 600,000 drivers. Rather than report the breach to regulators or disclose it to the public, the company paid the hackers $100,000 to delete the data and keep the breach quiet.

Since then, we’ve seen a cascade of egregious cases of corporate misuse of Americans’ personal data, including Facebook’s Cambridge Analytica scandal and the massive Equifax records breach. As a result, official Washington is finally sending signals that it intends to do something serious about internet privacy. The Federal Trade Commission’s Republican chairman, Joseph Simons, is urging Congress to grant the FTC new enforcement powers to prosecute the worst offenders. A recent report by the Government Accountability Office warned that the U.S. lacks comprehensive legislation governing the use of online personal information by private-sector companies. In late February, the House and Senate began hearings on how to craft such a law. 

Yet the debate over internet privacy has so far ignored what may be the most significant privacy issue of all: price discrimination. Perhaps you missed it, for example, when in 2017, an Uber executive admitted in an interview with Bloomberg News that the company had taken its familiar “surge pricing” model to a whole new level. Under the old model, it raised prices for everyone in a certain location when local demand became strong. The new fare system, called “route-based pricing,” is essentially micro-surge: the company sets rates according to what it thinks each individual customer is willing to pay based on factors including how poor or affluent their destination is. 

Uber is hardly alone in its attempt to engage in ever finer degrees of price discrimination. Marketers have always offered different prices and deals to different kinds of customers. Sometimes this is benign, as when companies give discounts to students or veterans, for example. But the combination of Big Data and Big Business is making possible something different in kind: giving some of us far worse prices and terms of services than others, based not only on our membership in different demographic groups but also on our individual characteristics, as revealed by our online activities. When it comes to the greatest abuses of our personal data, the debate should not just be about who has access to it. It also needs to be about the already acute problem of how corporations use our data to discriminate in the marketplace—not only against consumers, but also as producers and sellers—and how to keep it from getting much worse.

You probably know by now that companies use your data to try to sell you more stuff. “Behavioral advertising,” as it’s called, certainly can be creepy. I once heard of someone in the United Kingdom who, after searching the internet for information about stage 4 breast cancer, started seeing ads for funeral homes. But, at least within limits, most people don’t seem to particularly mind seeing targeted ads. Personally, if I’ve spent an evening googling the properties of bicycle snow tires, I won’t feel particularly violated when I start seeing banner ads about the virtues of, say, Schwalbe Ice Spiker Pro tubeless-ready winter bike tires, available from Amazon for $121.47. If I start seeing more listicles touting “Nine Insanely Affordable Caribbean Winter Vacations,” I can live with that, too, even if the algorithm is mistaken in concluding that my interest in bicycle snow tires implies an interest in flying to Aruba. At least this kind of behavioral advertising is better than seeing endless ads on cable news channels touting cures for obscure maladies I don’t have or care if I do. (“Ask your doctor about Peyronie’s disease.”) 

By contrast, what I really don’t want is for the price I pay for bicycle snow tires, or vacation packages, or prescription drugs, or anything else, to be inflated just for me based on what my internet behavior reveals about my location, personal habits, health issues, tastes, or ability to pay. Nor do I want my online searches for cancer cures or alcohol treatment centers to lead my health insurer to cancel my coverage or my employer to quietly lay me off. Similarly, I don’t want to be discriminated against because some algorithm somewhere has sliced and diced me into a tossed salad of demo- and psycho-graphic segments, e.g., “middle-aged men in Lycra” (referred to as MAMILs by one market research firm), who pedal bespoke bikes through the snow to their professional jobs. In other words, I don’t want marketers using my personal data to decide that I am too affluent or too poor, eager or indifferent, averse or reckless, complacent or desperate, to hold out for a better deal. 

Yet this kind of market discrimination is the defining mega-trend of our ever more digitized commercial life. Attempts to expand its use and effectiveness are the overwhelming reason why corporations are so eager to scoop up our personal data in the first place. As Andrew Odlyzko, the former head of the University of Minnesota’s Digital Technology Center, has written, “The powerful movement to reduce privacy that is coming from the private sector is motivated by the incentives to price discriminate, to charge different prices to various customers for the same goods or services.” 

Corporations have no intrinsic interest in invading your privacy. They really don’t care who your Facebook friends are or even how many of them you’ve slept with. No, the real reason corporations want more and more of your personal data is because they are after something that businesses have coveted for millennia but could only imperfectly pull off. Think of the haggling rug merchant in the bazaar, or the car salesman on the showroom floor. What they most want to know is the maximum you’ll pay today for whatever they have on offer. 

In the past, a salesman had to rely on intuition and crude, often biased indicators, like how customers dressed or spoke, their expressed interest or need, their credit rating, and often their race or gender. Sometimes this resulted in low-income customers getting a lower price because the merchant figured that otherwise he couldn’t make the sale at all. But more often the favoritism went, and still does, to those who need discounts the least. Abundant studies show, for example, that white male car buyers tend to be quoted significantly lower prices than black and female car buyers. A typical salesman will offer “special deals” to customers he thinks are too savvy to pay the “regular” price, or who he thinks have the wherewithal to act on better deals elsewhere. 

In the past, these judgments were inevitably shaded by the seller’s assumptions and personal prejudices. That’s still true, but now they are more and more likely to be based on correlations that some algorithm thinks it has discovered by crunching a trillion points of big data about you and “your kind.” No one likes being discriminated against when all they want to do is buy a car. But today, it’s getting harder and harder to avoid dealing with marketers who can estimate with increasing accuracy just how much you, personally, are willing to pay, and who charge you accordingly. 

Until a few years ago, efforts to personalize prices using digital data about the customer were relatively primitive. In 2012, for example, a Wall Street Journal investigation found that Staples.com was quoting people higher prices if they lived in an area that lacked an Office Depot or other Staples competitor. The same year, researchers published evidence that Amazon was routinely charging some customers 20 percent more (and in some cases 166 percent more) than other customers for the same Kindle e-book based on the customers’ location. The same researchers also found that Google would recommend more expensive or cheaper models of digital cameras, headphones, and other products to different customers based on what Google’s algorithm concluded was their ability to pay.

By 2016, a ProPublica investigation revealed that Amazon was engaging in a different dimension of marketplace discrimination—one that affects both buyers and sellers and that deeply distorts the ability of markets to set fair and efficient prices. Amazon both provides a platform for third-party vendors and sells products directly on the same platform. In this way, not only does Amazon own the biggest store in the largest mall, it owns the mall itself. What ProPublica found was that when consumers entered this virtual mall and searched for the best deal on, say, Loctite Super Glue, Amazon would prominently display offers available directly from Amazon rather than those offered by highly rated merchants who were selling the same glue for less. 

This is just the beginning. When people try to sell their wares on Amazon, whether they are publishers trying to sell books or merchants trying to sell glue, they have to accept the terms Amazon offers. Indeed, these days many can’t reach the customers they need except through Amazon, which makes it very hard for them to say no when, for example, Amazon suggests it’s time to fork over more money so it doesn’t bury their offers at the bottom of every search. And because Amazon effectively has the ability to look into their cash registers, it has deep knowledge of just how much they can afford to pay. It can use this knowledge to wring more money from sellers. 

On current trends, these forms of discrimination are poised to get far worse. One reason is the vastly increasing amounts of data that individuals and businesses generate online. Second is the rapidly increasing processing power available through machine learning, artificial intelligence, and other advances in computing, which enable more sophisticated, highly tailored means of discriminating. According to a report by Deloitte and Salesforce, 40 percent of brands that currently deploy AI are using the technology not just to personalize the customer experience but also to tailor pricing and promotions in real time. 

A third reason is the growth of tech platforms. Whether you are a merchant selling wares on Amazon, a driver selling rides on Uber, a homeowner renting out rooms on Airbnb, or a publisher posting content on Facebook, you are in a dependent relationship with a dominant corporation that can use its deep knowledge of your business to figure out how much it can get away with charging you. 

A final, highly important reason is the increasing degree of corporate concentration found throughout the economy. Engaging in egregious price discrimination doesn’t work very well when customers can easily take their business elsewhere. But for monopolistic corporations—which increasingly know that you have no real choice but to deal with them—price discrimination is both possible and highly lucrative. 

Health care is a prime example. According to a study published in 2016 in the medical journal BMJ, hospitals charge about twenty times more to perform anesthesiology on an uninsured patient than on a patient covered by Medicare. Meanwhile, according to a study by the Congressional Budget Office, the price for a hospital stay is 89 percent higher when charged to commercial insurance plans and their customers than when a Medicare patient stays in the same bed for the same amount of time. The reason they can get away with this is monopolization. The rapid pace of mergers has more and more hospital markets dominated by a single dominant health care platform that controls not only most hospital beds but also the local doctors’ practices and labs as well. (See “The Case for Single-Price Health Care” in our April/May/June 2018 issue.) Now these giant health providers are merging with insurance companies, even as insurance companies merge with huge drug retailers like CVS. Imagine what all this concentrated market power can do with all the data out there on the internet about your health issues.

So what’s the solution? One approach is to imitate the Europeans. Last May, the European Union put into effect a set of internet privacy rules known as the General Data Protection Regulation (GDPR). A key provision of these regulations requires companies to obtain an individual’s explicit consent before storing or processing any of his or her personal online information. California has passed a similar law that will take effect in 2020, reflecting the idea’s popularity among progressives and privacy activists.

Yet this approach to protecting privacy has already had an unintended consequence. As the Wall Street Journal reported last April, before the GDPR even went into effect, Google and Facebook executives had become unexpectedly enthusiastic about the very regulations designed to contain their powers of surveillance. Before long, the reason became obvious. Google, Amazon, and Facebook had to spend massively on new digital infrastructure, but they found it comparatively easy to get their end users to click on the required privacy waivers. By contrast, smaller competitors, whether online publishers and websites or digital advertising firms, found compliance with the GDPR regulation prohibitively expensive and otherwise difficult to pull off. Investments in new tech start-ups shriveled, and according to the German internet search firm Cliqz, the market share of smaller online advertisers fell by roughly 30 percent. 

So the EU inadvertently made the giant tech platforms even stronger and their dwindling number of competitors even weaker. Mark Zuckerberg himself captured the way such ill-advised regulation can foster monopoly when he told Congress last year, “A lot of times regulation by definition puts in place rules that a company that is larger, that has resources like ours, can easily comply with but that might be more difficult for a smaller start-up.” 

A better approach would begin by attacking price discrimination directly. Indeed, it’s the traditional American approach to dealing with monopolistic corporations that know too much about their customers’ business. It’s useful to recall that railroads, especially at the peak of their power at the turn of the twentieth century, had a lot in common with today’s tech giants. They were privately owned corporations that controlled, and in many places monopolized, a key network industry upon which virtually every American depended as both consumers and producers. Because of that, the men who owned railroads had access to information that gave them the ability to make or break different individuals, businesses, and whole regions depending on the terms of service they offered. 

Western farmers, for example, found that the railroads charged them freight rates right up to the point that their profits dwindled to almost nothing. Meanwhile, the plutocrat John D. Rockefeller could coerce railroads into granting Standard Oil huge discounts beneath what rival shippers paid. The effect of such price discrimination was to foster inequality. “The great majority of local and personal discriminations are in favor of the strong,” noted the political scientist Arthur T. Hadley in his classic 1895 study of railroad economics. “As such they do great harm to the community by increasing inequalities of power.”

Americans responded to this problem by passing a variety of state and local laws prohibiting railroads from engaging in the most egregious forms of price discrimination. Then, in 1887, Congress created the Interstate Commerce Commission, the nation’s first independent federal regulatory agency. For nearly a century thereafter, the ICC went after railroads that engaged in unjust market discrimination against individuals, places, or lines of business. An early example was an 1891 ruling by the ICC that railroads could not deny African Americans traveling across state lines access to first-class cars. Meanwhile, the ICC made sure that small towns, small businesses, and farmers on the prairie didn’t face discrimination by insisting that railroads offer roughly the same terms of service to everyone, everywhere. 

As new network industries came online, the government applied the same anti-discrimination principles to them. Airlines, for example, were regulated until the end of the 1970s under the same common carrier principles as railroads, which prevented them from offering inferior service and higher prices in what people today call “flyover” America. Similarly, regulators applied a public utility model to make sure that electric companies didn’t favor some businesses with lower rates than others or discriminate against different households in different neighborhoods. 

Americans in the past further buttressed their anti-discrimination laws by prohibiting corporations from doing what Amazon does today when it vertically integrates into being, among many other things, a huge package delivery company. If you were a railroad, you couldn’t also be a retailer, or vice versa, because that would mean other retailers could never match you on shipping costs. Similarly, if you were a bank, you could not also be a manufacturer or chain store owner because what you knew about other businesses’ finances would give you an unfair advantage. And if you were a telecommunications company, you couldn’t get into the business of selling your customers’ personal information to advertisers. 

It could have been much different. The original American Telephone and Telegraph Company, for example, might well have wound up selling data to marketers about who its customers were calling and even about what its surveillance of their phone conversations revealed about their health, income, and preferences. AT&T might even have gone a step further by offering free telephone service to customers who agreed to have their calls periodically interrupted by ad messages with special prices tailored just for them. But unlike Facebook and Google, AT&T was not allowed to be both a provider of communications infrastructure and a vertically integrated behavioral advertising agency, and thus its ability to engage in or foster market discrimination was highly limited. 

Since the late 1970s, however, while discrimination based on broad criteria like race, gender, or religion remains very much illegal, the old prohibitions against more individually tailored forms of discrimination have mostly been repealed. Under the thrall of economists promising lower prices through “deregulation,” policymakers in both parties decided that it was time, for example, to lift restrictions on price discrimination by railroads, trucking firms, and airlines. This is why it now costs more to fly between many midsize and smaller cities in middle America than it does to fly clear across the country between New York and San Francisco. By the 1980s, meaningful antitrust was gone, too, along with “fair trade” laws that once constrained price discrimination at the wholesale level. And this just as the internet would soon give enormous built-in advantages to corporations that could leverage network effects to become monopolies of unprecedented size and power. 

What would it look like if we restored the same anti-discrimination principles that we once used to contain the power of railroads and other network monopolies? The most recent major example came in 2015, when the Federal Communications Commission promulgated “net neutrality” rules prohibiting internet service providers from favoring some customers and discriminating against others when it comes to the speed and price of moving data across their networks. Yet the FCC has since reversed itself. Meanwhile, price discrimination by Google, Facebook, Amazon, and other giant tech platforms remains entirely unregulated. 

Controlling these platforms like we once controlled railroads would begin by requiring them to publicly list their terms and prices, and to justify any that discriminated against or in favor of different users. Discrimination against individuals would be flatly illegal. Discrimination against different classes of customers would sometimes be permitted, but would have to be shown to serve the public interest. The ICC allowed railroads to charge different rates for transporting high-value items like watches or perishable food than for hauling low-value items like coal. This pricing brought in more revenue than if all classes of freight were charged the same and thereby helped railroads to meet their fixed costs. But where any such class-based price discrimination existed, it had to be explained and justified to the public. 

At the same time, we need to push through proposals like Elizabeth Warren’s to reverse the vertical integration of the tech platforms. We also need to restore rigorous antitrust action to prevent or unwind horizontal mergers, whether they’re between airlines or cable companies or drug manufacturers. Discriminating against you in the marketplace doesn’t really work if you can just take your business elsewhere. And if corporations can’t engage in price discrimination, they have much less reason to violate your privacy. The internet revolution poses all kinds of technical and philosophical problems that demand cutting-edge ways of thinking. But when it comes to market discrimination, the old-school approach is still the best.

The post Big Tech Is Spying on Your Wallet appeared first on Washington Monthly.

At the end of his congressional testimony in February, Michael Cohen, Donald Trump’s former fixer, floated a nightmarish possibility.

“Given my experience working for Mr. Trump,” Cohen said, “I fear that if he loses in 2020, that there will never be a peaceful transition of power.”

Cohen’s comments may seem hyperbolic, but they are worth taking seriously. In the aftermath of 2018, Trump told reporters, “Republicans don’t win, and that’s because of potentially illegal votes.” In a 2016 presidential debate, Trump refused to say whether he would accept defeat. “I’ll keep you in suspense,” he declared. Since that election, Trump has routinely said that his popular vote defeat was the product of “millions and millions” of illegal ballots. Now, facing potential legal jeopardy from ongoing investigations into hush-money payments and any number of apparent financial crimes, he might reasonably conclude that staying in office is the only way to avoid being indicted.

So what would it look like if Trump refused to concede? Is there really a way he could stay in office? It’s unlikely. For starters, successful autocrats rarely lose elections. “They take steps to rig it well in advance,” said Steven Levitsky, a comparative political scientist at Harvard University and the coauthor of How Democracies Die. They pack electoral authorities, jail opponents, and silence unfriendly media outlets. America’s extremely decentralized electoral system and powerful, well-funded opposition makes this very difficult to pull off. 

The U.S. also lacks the kind of politicized military that lets some discredited autocrats, like Venezuela’s Nicholás Maduro, hang on. “I can’t imagine the military accepting an effort to turn them into a partisan arm of the executive,” said Robert Mickey, a political scientist at the University of Michigan who researches the history of authoritarianism in the American South. 

But while nationwide cheating may be impossible, the Republican Party has proven more than willing to violate democratic norms where it has local control, and not every powerful institution is as neutral as the military. There is a sequence of events, each individually plausible, that would allow Trump to remain president despite losing the election—breaking American democracy in the process.

“I think we know that Trump will certainly, no matter what the result is, be likely to declare that there was fraud and that he was the rightful victor,” said Joseph Fishkin, a law professor at the University of Texas who studies elections.

Let’s assume that Fishkin is right. Here’s what could keep Trump in power.

1. The election is close.

If Trump lost in a blowout, alleging fraud would accomplish little. Even entrenched autocrats are often forced from office when they are heftily defeated.

But that doesn’t mean the race would need to be a redux of 2000, when George W. Bush won the presidency with an official margin of 537 votes, to spark a crisis. Given increasing polarization and the Republican Party’s growing impatience with democratic norms, experts told me the party might challenge even a clear defeat. “I am worried now, given the reaction to 2018, that you could get a dispute over a five-digit number,” said Edward Foley, a law professor and elections expert at Ohio State University.

Others suggested the margin could be even wider. When I asked Mark Tushnet, a constitutional law professor at Harvard University, just how close the election would have to be for Republicans to support Trump in disputing the results, he said, “ ‘Close’—as Trump supporters define it.” 

However you construe the word, a close election is well within the realm of possibility. In 2016, Trump won his three pivotal states—Pennsylvania, Michigan, and Wisconsin—by five-digit numbers. Indeed, most of the country’s twenty-first-century elections have hinged on a few states with narrow margins.

“[2020] will probably be a nail-biter election where the polls are mixed or indeterminate, where it’s really not clear who is going to win,” said Levitsky. “If it’s close, just as Trump kind of did in 2018, Trump could basically claim fraud. And we don’t really have mechanisms to deal with that.”

2. Trump claims fraud, and Republicans back him up.

It is Wednesday morning, November 4, 2020. At 7:15 a.m., after a stressful night of watching the returns trickle in, the Associated Press projects that the Democratic presidential candidate will win Pennsylvania, and, with it, the presidency. Sure enough, it’s a narrow victory—279 electoral votes to 258. When all is said and done, the Democrat wins Wisconsin, Michigan, and Pennsylvania by only about 77,000 votes combined, the same amount Trump won those states by in 2016.

Donald Trump, who spent the past five months warning about fraud, has been eerily silent for most of the night. But as soon as the Democrat takes the stage to give her victory speech, he unleashes a barrage of tweets claiming that over 100,000 illegal immigrants voted in Michigan and that Philadelphia kept its polls open for hours later than allowed. “Without PHONY voters, I really won!” he tweets. “This is FRAUD!” Needless to say, the president does not call to congratulate his opponent. At an afternoon press conference, Trump’s press secretary announces he will not concede.

What happens next?

“In the best-case scenario, key Republicans would either talk him down or defect from Trump and say, ‘He’s wrong,’ ” Levitsky said. Most of the academics I spoke with also thought that this was likely. “I’m just having trouble wrapping my head around even this polarized and often radicalized Republican Party going along with that,” said Mickey. “This is kind of the limit condition of scenarios and surprise.” 

But they acknowledged that defections were far from guaranteed. “Trump is still far and away the most popular Republican,” Levitsky said. “If Sean Hannity is claiming fraud on television and Rush Limbaugh is claiming fraud and Mitch McConnell is not willing to stand up and say, ‘No, there was no fraud,’ then we could have a real crisis.”

Unfortunately, that’s exactly what takes place. After forty-eight hours of silence, the Senate majority leader issues a terse press release in which he says he “recognizes the president’s serious concerns” about the election’s integrity. Some GOP representatives do break ranks and call for Trump to concede (I’m looking at you, Mitt Romney), but most stay silent or back the president’s claims. In a monumental act of gaslighting, Lindsey Graham tells reporters that Democrats are the ones undermining democracy. “They are afraid of a thorough investigation into the fairness of this election,” he declares. “They’ll stop at nothing to get this president out of office.”

3. Polarized courts side with the GOP.

Almost everyone I spoke with told me that, at this point, the election results would be challenged in court. The Trump campaign might sue Democratic-leaning counties for alleged “irregularities” and ask that judges toss out their results. “I can imagine the litigation in Pennsylvania taking the form of saying voting booths in Philadelphia were held open an excessively long time, an unlawfully long time, or the vote counters in some Democratic-leaning county unlawfully refused to count late-filed absentee ballots,” Tushnet said. Victory for Trump would “mean throwing out the ballots and saying that when those are thrown out, Trump gets the state’s electoral votes.” That, in turn, would allow him to remain president.

This argument, and the many others that the Trump campaign could employ, would almost certainly be specious. But Tushnet cautioned against underestimating the power of creative attorneys and motivated reasoning. The legal justification for challenging the returns would develop, he said, “in some ways that we can’t really anticipate now but that lawyers will come up with when it matters.”

The academics I spoke with cited Bush v. Gore as evidence. When the U.S. Supreme Court’s Republican-appointed majority shut down the Florida recount, giving the 2000 election to George W. Bush, it did so by reading the Fourteenth Amendment’s equal protection clause in an expansive manner totally at odds with typical conservative jurisprudence. The Court even told other judges that their decision could not be used as precedent.

“The justices, along with everybody else, seemed to view disputed facts through the lens of the place where they have been ideologically,” said Rick Hasen, an election law expert at the University of California Irvine School of Law.

Still, it’s one thing for the courts to interfere in an election with a three-digit margin. It’s something else to invalidate a five-digit win. That would be truly extraordinary.

But it is not unthinkable. Autocrats abroad often rely on packed courts to cling to power, and while the U.S. judiciary is far more independent than that of Honduras or Venezuela, there’s no doubt that Trump has made a substantial imprint. He has appointed a historically high number of federal appeals court judges. He has added two justices to the Supreme Court. One of them, Brett Kavanaugh, has been outwardly partisan, raving during his confirmation hearings that he was the victim of an “orchestrated political hit” designed to function as “revenge on behalf of the Clintons,” fueled by “millions of dollars in money from outside left-wing opposition groups.” He obliquely warned, “What goes around comes around.” 

4. Alternatively, Republicans play extreme constitutional hardball.

The courts aren’t the only mechanism Republicans might use to keep Trump in power. The Constitution gives state legislators free rein to decide how to select electors. Currently, most states legally require electors to vote the same way as the people. But in a state with complete Republican control over the government, the legislature and governor could, in theory, pass a bill that strips this power away from citizens between the election and the actual casting of electoral votes. (Indeed, in some instances, the state legislature alone might be able to usurp its constituents.) If this sounds far-fetched, recall that GOP governments in North Carolina, Michigan, and Wisconsin have all recently pulled lame-duck attempts to limit the power of incoming Democratic governors, with varying degrees of success. 

To imagine how this would play out, consider Florida, where the GOP controls the governorship and both houses of the state legislature. If the Democratic presidential nominee narrowly won the state in 2020, Trump might cry fraud and demand an investigation—as he did in the aftermath of the state’s 2018 Senate race, when it wasn’t yet clear that Republican Rick Scott had won. The legislature could establish an investigatory commission stacked with partisans and designed to sow doubt about the outcome. Perhaps Kris Kobach, vice chair of Trump’s erstwhile Commission on Election Integrity (and the patron saint of franchise restrictions), would lead it.

The courts might still refuse to intervene. But Trump allies in the Florida legislature could pass a bill giving themselves direct power to appoint the state’s electors. Governor Ron DeSantis, an outspoken Trump ally, could sign it, claiming that the fraud allegations and “controversy” over the tallies make the popular vote untrustworthy, and that he’s merely implementing the voters’ “real” will. 

This might sound too cynical, but in 2000, the GOP-controlled Florida legislature considered something similar. “They were effectively saying, ‘Hey, if it turns out Gore wins in court, we’re not going to accept that, and we’re going to assert an authority to appoint the electors directly,’ ” said Edward Foley, at Ohio State. Such a move would also invite a Fourteenth Amendment challenge, this time on behalf of Democrats. But it’s unclear if the conservative Supreme Court would intervene.

Foley, for his part, is more concerned about this kind of scenario than he is about judicial manipulation. “Judges are fact based and evidence based,” he said. “We know that Justice Clarence Thomas is a very different person than Justice Sonia Sotomayor, but I do think that with most election results they would agree as to what the answer was.” But he worries that politicians might refuse to accept the Court’s decision. “The judicial process is going to be slower than the Twitter process,” Foley told me. “If the Twitter process forces or causes politicians to dig in, then can a unanimous judiciary unstick the politicians?”

The Twelfth Amendment of the Constitution gives Congress final say over who becomes president. In some instances, the procedures for how Congress handles election disputes are clear. If there are three or more candidates and nobody wins a majority of electors, for example, the House decides who wins. But if it’s a two-way race where both candidates claim an Electoral College majority, Foley said, it’s unclear which chamber has the last word.

What would happen next is anyone’s guess. But it wouldn’t be pretty. “I think you could have a long, drawn-out crisis in which our institutions lose credibility,” Levitsky said. Even if Trump were eventually forced out, “we’ll be left with a situation where maybe 30, 35 percent of our population believes the election was rigged.”

It’s in this kind of crisis that Michael Cohen’s fears are most likely to be realized. “I could imagine some rioting, some civil violence,” said John Carey, a political scientist at Dartmouth who studies comparative democracy and who cofounded Bright Line Watch, which monitors the health of American democracy. “We just can’t imagine all the possibilities.”

Hopefully, we won’t have to. Trump may lose decisively, rendering his claims of foul play empty. He may win. Or he may lose a tight race and cry foul, but still ultimately accept defeat. In the aftermath of the midterms, for example, Trump groused about fraud without seriously contesting the outcome.

Trump, of course, wasn’t on the ballot in 2018. Losing in 2020 would be far more personal. But even if Trump refused to concede, it doesn’t mean he’d manage to remain in office. John Roberts has worried publicly about the credibility of the Supreme Court. It seems unlikely that he would “save” Trump from a less-than-ambiguous electoral defeat. Democratic governors in Pennsylvania, Michigan, and Wisconsin form a formidable roadblock against local Republican power grabs. Faced with incontrovertible evidence that Trump lost—and no plausible pathway to mess with the outcome—Mitch McConnell, Kevin McCarthy, and Mike Pence would probably tell Trump to pack his bags.

And if Trump still refused to go?

“I’m not sure which branch it would be, but it must be the case that somebody would be responsible for taking one elbow and somebody would be responsible for taking the other elbow,” Carey said. “I can imagine the feet going kind of crazy. But I like to think that it would be without too much damage to anyone.”

The post How Trump Could Lose the Election and Remain President appeared first on Washington Monthly.

Heading into 2020, liberals are at a crossroads on trade. Most abhor Donald Trump’s “America First” rhetoric. And even as they increasingly recognize that something is amiss with the global system, many are frightened by his bull-in-a-china-shop approach. But just what is the big competing vision his opponents have to offer? 

For decades, the political and intellectual leaders of the Democratic Party marched alongside the GOP under the banner of “free trade.” Organized labor often objected to the resulting loss of manufacturing jobs as corporations moved factories offshore or simply surrendered markets to foreign rivals. So did some Democratic politicians. (After all, Dick Gephardt’s slogan in his failed bid to win the 1988 Democratic presidential nomination was “Let’s Make America First Again.”) But union grievances tended to be dismissed as the plaints of workers unwilling, or unable, to compete in a global economy. All thinking people, at least in the party’s expanding wing of college-educated professionals, knew that free trade promoted international peace and prosperity, and anything less was special-interest politics. 

This idea became particularly pervasive in the early 1990s, when President Bill Clinton embraced the North American Free Trade Agreement (NAFTA). The trade pact was originally proposed by Ronald Reagan and largely negotiated by George H. W. Bush, but Clinton adopted it with few changes. Democrats in the 1990s similarly supported the creation of the World Trade Organization (WTO), agreeing to abide by the decisions of a quasi-judicial body in Geneva on trade disputes, and welcomed China as a member. More recently, Barack Obama spent his last two years in office pursuing the Trans-Pacific Partnership (TPP), which he described as a means to box China out in favor of other Pacific Rim countries. 

But by 2016, the consensus had cracked. Bernie Sanders won more than 40 percent of the Democratic Party’s primary votes in part by renouncing the party’s position on trade. Feeling the pressure from Sanders, Hillary Clinton split with Obama by turning on the TPP, which she had praised as secretary of state. Defenders of the status quo can still point to the fact that the expansion of global trade has reduced extreme poverty in parts of the developing world. But it has become increasingly difficult to deny that a flood of imports, particularly from China, has contributed to downward mobility among working-class Americans. In 2016, a team of economists published a groundbreaking study that found that the direct and indirect effects of Chinese imports had cost more than a million Americans their jobs since 2001 and dramatically reduced their lifetime income. 

Meanwhile, the resentment created by the global trading system has helped fuel the resurgence of reactionary political movements in the U.S. and Europe, contradicting the notion that free trade promotes international stability. Adding to the intellectual wreckage, predictions that free trade would nudge China toward liberalizing have become an embarrassing reminder of just how naive the architects of our trade policies were. 

How can liberals move beyond this past while also making clear that they have a better alternative to Trump’s incoherent and jingoistic approach? In many ways, the answer lies with an idea originally proposed by New Deal types back in the Roosevelt and Truman administrations. They rejected the use of tariffs simply to protect the interests of financiers and plutocrats. Yet they also understood, as subsequent generations would forget, that there is no such thing as truly “free” trade. All trade depends on rules, and unless markets operate under the right ones, they will tend toward capitalistic excess, including dangerous degrees of industry concentration and the exploitation of workers and the environment. Which is why the architects of the postwar system got fifty-three nations to sign off on a treaty known as the Havana Charter, which included rules that guaranteed workers’ rights, provided protections against destructive foreign investor behavior, and required trading nations to abide by anti-monopoly rules. 

Alas, this part of their vision was never realized. But today it provides a blueprint for how we can build a fair and sustainable trading system in the twenty-first century. 

Getting our heads straight on trade first requires sweeping away a good deal of unfortunate conventional wisdom. As an undergraduate at Stanford in the late 1980s, I learned—like most everyone who takes introductory economics—that tariffs are bad. Any policy that restrained foreign competition was a form of “protectionism” that coddled inefficient domestic industries and raised consumer prices. Free trade might lead to some job losses, but, by letting every country specialize in what it did best, the world would grow ever more prosperous. 

Convinced that opening up global trade contributed to the public good, I gladly worked for a private law firm pushing the implementation of NAFTA and the WTO. In 2003, I was honored and thrilled to join the team of lawyers at the Office of the United States Trade Representative, an agency within the White House that leads trade negotiations. It was a busy time: the Bush administration was negotiating a raft of bilateral and regional trade agreements, along with efforts to strike a new deal at the WTO. 

This was when I began to realize that the real world of trade policy was nothing like what I’d learned in school. What I saw was not a brotherhood of men seeking to create open and efficient markets to allocate resources to their highest valued use. Instead, I saw a system beset by a tangle of special interests, heavily oriented toward maximizing returns to capital at the expense of workers and the environment. 

One of the few things Trump gets right is that the United States continually gets taken advantage of by its trading partners. In the U.S., we at least require our decisionmaking to be public and based on an evidentiary record. But many of our trading partners make decisions in black boxes, discriminating against our exports in ways that are impossible to challenge because we simply can’t get our hands on the facts. Meanwhile, WTO bureaucrats have blocked the U.S. from using a certain methodology to calculate tariffs to address unfair trade. The result is that we can’t fully protect our domestic industries when other nations cheat. 

The dynamic never changes. In the 1970s, we complained that Germany needed to export less and spend more at home. Today, we complain that Germany needs to export less and spend more at home. In the 1970s, we complained that Japan needed to export less and import more. Today, we complain that Japan needs to export less and import more. In the interim, we designed an entirely new trading system, the WTO, and yet we have precisely the same grievances. 

That’s to say nothing about China, which puts our traditional trading partners to shame when it comes to working the system. China’s theft of intellectual property draws the most attention because the Trump administration has used it to justify tariffs on Chinese imports. But the more serious threat is Chinese industrial policy, which is not only state run but is also designed to subsidize exports as a means of gaining an edge against foreign competition. After the financial crisis, China pumped several hundred billion dollars of subsidies into its steel, aluminum, and solar panel industries. In the short term, that meant lower prices for buyers of steel and aluminum products in the U.S. and elsewhere. But by propping up its unprofitable companies, China forced factories elsewhere around the world into bankruptcy, reducing global competition and concentrating production within its borders. Now China is expanding its loss-leading strategy to other industries in which Americans still have some edge, like aerospace, pharmaceuticals, and information technology. 

Nor would the TPP, which Obama sold as a way to contain China’s fast-growing influence, have helped. Trade negotiators accepted complex supply chain rules in the agreement that would have actually benefited Chinese car part producers, by increasing the percentage of a “TPP-made” car that could be imported from China. In other words, China would have been a de facto beneficiary to an agreement designed to exclude it. 

The incoherence of our trade policies isn’t just a product of ignorance. Far from it. Instead, it often derives from the outsize political power exercised by American corporations, including the concentrated pharmaceutical and agribusiness industries. American agricultural conglomerates make sure the rules essentially require U.S. farmers to buy their seeds. Many corporations have built their business models around offshoring production, so they can source cheaper components without passing those savings on to consumers. That’s why many of America’s biggest trading corporations actually support rules that let countries like China free-ride, whether it’s NAFTA, the new NAFTA, or the TPP. Big American drug companies want the U.S. to put a priority on convincing other nations to secure and extend patent monopolies. 

The name for this regime is “free trade.” The derogatory term for those who raise questions about it is “protectionist.” Somehow, some people imagine that staying on this path will one day lead to an actual open and efficient market. 

So where does this leave people looking to break from both the obvious failures of mainstream U.S. trade policy and from Trump’s xenophobic America First-ism? To answer that question, we have to get the story straight about what the original liberal, Democratic vision for international trade was, and how it was compromised. 

That story starts after World War I. Democratic President Woodrow Wilson’s “Fourteen Points” included a demand for “the removal, so far as possible, of all economic barriers and the establishment of an equality of trade conditions among all the nations consenting to the peace and associating themselves for its maintenance.” But the Senate rejected Wilson’s global vision, and Congress continued to favor tariffs. After World War II, many liberals, both here and abroad, vowed not to repeat the previous generation’s mistakes. This did not mean embracing laissez-faire. Indeed, many liberals in this era drew a direct line from the excessive power of unregulated monopoly capitalism in the 1920s and ’30s to the rise of fascism. Nor did postwar liberals have any illusions about unrestrained capitalism benefiting workers. But they understood that properly structured trade could be a great force for building peace and prosperity. So they sought a new global trading order that would slash tariffs and encourage the growth of international trade on the one hand, while minimizing the political influence of corporations and protecting the rights of workers on the other. To postwar liberals, free trade thus meant a world in which strong international institutions would set fair market rules, including fair labor standards, disciplines on foreign investors, and anti-monopoly provisions. 

The mechanism for achieving these ends was supposed to be the Havana Charter. Drawing on an idea originally floated by FDR’s favorite economist, John Maynard Keynes, it called for the creation of a body to be known as the International Trade Organization, and charged it with enforcing rules that would protect the rights of labor and put constraints on other abuses by financiers and corporations. By March 1948, fifty-three countries, including the U.S., had signed on. 

But although Harry Truman signed the charter, his repeated efforts to persuade Congress to ratify it fell short, and his administration at last had to give up in 1950. Business interests opposed the charter, claiming that its constraints on capitalism were inconsistent with the American free enterprise system—even though fair labor standards and antitrust rules were fully embedded in the American free enterprise system of the era.

At the same time, leaders in both parties had come to fear that war-torn nations in Europe and Asia could fall into the orbit of Soviet communism or resurgent fascism if the United States didn’t help them recover. American corporations knew they wouldn’t get to sell foreign countries the supplies they needed to rebuild unless these countries were given the means to pay. Postwar planners, therefore, used foreign aid policies like the Marshall Plan to promote an even more extreme form of industrial interdependence than the Havana Charter had imagined. There was also strong bipartisan support for making major asymmetrical trade concessions while foreign countries recovered from the devastation of the war. 

For roughly two decades, these policies generally worked. Soviet expansion was contained, and countries like Japan and Germany were set on the road to becoming prosperous, peaceful, and democratic, fully integrated industrially with the U.S. and other key allies. Meanwhile, we didn’t yet feel the absence of fair labor and anti-monopoly standards. But by the 1970s, it had become much clearer that these arrangements were beginning to harm American workers and businesses unnecessarily. In the early ’70s, Richard Nixon grew frustrated that increasingly prosperous European and Japanese trading partners continued to throw up obstacles to U.S. imports. So his administration, and Gerald Ford’s after it, sought to get better behavior out of our trading partners by expanding the U.S. commitment to a mechanism known as the General Agreement on Tariffs and Trade, which was supposed to tie everyone to a more rule-bound trade regime. But in 1979, President Carter, presented with a new GATT deal, concluded that it was better to accept a deal without fair labor standards than to have no deal at all. 

If the 1970s presented one missed opportunity to achieve a truly liberal trade policy, the 1990s presented a second. With the collapse of the Soviet Union, the U.S. might have decided that it no longer had any geopolitical need for trade concessions that threatened the well-being of its workers and communities and the resiliency of its industrial base. Instead, many Democrats embraced NAFTA and the creation of the WTO. The Clinton administration also pressed to loosen trade restrictions on autocratic China, which in hindsight was a mistake. Under these policies, more and more American manufacturing moved offshore, and foreign producers gained still more asymmetrical access to our markets—all without agreeing to abide by basic labor and environmental protections. Where the U.S. did use its chips, it was in the service of corporate profits: expanding patent protections for U.S. drug companies and giving the investor class the unique ability to sue governments, ultimately extending to challenges to regulations that impinge on investors’ profits. 

These decisions represented a further departure from the liberal principles set out by the Havana Charter. Whereas the architects of that agreement believed in constraints on capital, through fair labor standards, anti-monopoly rules, and disciplines on foreign investor interference with domestic policies, mainstream Democrats in the 1990s didn’t even contemplate that these rules might be necessary. At this point, the influence of libertarianism was near its zenith among academic economists. Their former students, including many self-styled liberals, were going out into the world while suffering from the same cognitive capture that had happened to me at Stanford. 

Today’s liberals—and anyone else trying to determine the right position on trade—can learn from the mistakes and missed opportunities of the past. To start with, we need to return to and update the trade principles in the Havana Charter. Those principles include engineering fair, competitive markets designed to limit corporate power. This is a particular problem in the context of increasing corporate concentration. As giant corporations have gained economic power they have also gained political power, which has been used to undermine health, labor, environmental, and other regulation. Blowing up the outsize influence of corporations, including the power of nominally American corporations that take advantage of lax Chinese health, labor, and environmental standards through offshoring, is a precondition for doing anything serious about inequality or climate change.

We also cannot continue to justify our trade policies on the basis of consumerism. Not only are benefits to consumers assumed, rather than proven, we also must consider the rights of working-class Americans to a fair shot at the American Dream, and on the ability of small and midsize American firms to stay in business without needing to bust unions, cut benefits, or offshore their operations. In some instances, achieving these goals will require the U.S. to cut trade with certain nations, or at least retain the ability to credibly threaten to do so. 

That means we will need to be ambitious in reconceiving the way the international trading system works. It needs to have strong labor and environmental standards. It needs to prevent bureaucrats in Geneva from making up rules. And it needs to address the fact that Chinese state capitalism, which is monopolistic in nature, is fundamentally incompatible with the free enterprise system the original architects created. The concentration of vital industrial capacities in a few nations—or only one—is dangerous for the global system. 

Trump’s abrasive attack on the WTO has shaken things up. Therein lies the opportunity. Liberals care about systemic problems like income inequality and the destruction of the environment. As we look ahead to 2020 and contemplate bold policy ideas like the Green New Deal, it should be natural for us to expect the global trading system to be part of the solution, not part of the problem. We have the chance to make the system fit our purposes in the modern era. Let’s do it.

The post The Old-School Answer to Global Trade appeared first on Washington Monthly.

After years spent impotently bemoaning the symptoms of Citizens United v. FEC, congressional Democrats may have finally settled on a treatment. In March, the House of Representatives passed H.R. 1, a sweeping democracy reform bill that includes two promising campaign finance measures. One would provide a six-to-one match for donations up to $200 to candidates for federal office who swear off bigger contributions and raise the first $50,000 on their own. The other would create a pilot program in which the government would give each voter who wants one a $25 voucher to donate to their preferred candidate. 

These new-generation proposals are examples of so-called “level-up” campaign finance reform. They are designed to counter the power of big money not by pushing down on the super-rich, but by boosting everyone else. In 2018, for example, only 0.47 percent of Americans donated more than $200 to candidates, parties, or PACs, according to the Center for Responsive Politics. The money they gave, however, accounted for nearly three-quarters of all individual contributions. This leads to what the legal scholar Lawrence Lessig, a prominent supporter of the voucher idea, calls “dependence corruption,” in which politicians overwhelmingly cater to the tiny subset of wealthy funders on whom they rely. Spending limits may reduce the overall amount of money in play, but they don’t do much to shift where the bulk of it comes from. Level-up reforms might.

The other argument for level-up programs is necessity: the Supreme Court has essentially taken level-down off the table. In its landmark 1976 decision in Buckley v. Valeo, the Court held that the First Amendment protects Americans’ right to spend money on elections. Buckley was a compromise decision that allowed contribution limits as well as public campaign financing. But in Citizens United, in 2010, the Court dramatically rolled back that compromise by declaring that the government had no compelling reason to limit independent expenditures; by extension, it couldn’t limit contributions to outside groups for the purpose of their own political spending.* This meant the super-rich were suddenly free to donate as much as they want to nominally independent super PACs. And indeed, outside spending has since exploded, quadrupling from almost $340 million in 2008 to $1.4 billion in 2016. 

By making it easier to build campaigns on small-dollar donations, the proposals in H.R. 1 represent a clever way to counter the forces unleashed by Citizens United. But like any tenacious malignancy, the legal opposition to campaign finance reform is itself capable of adaptation. Even if Democrats take back the Senate in 2020 and turn H.R. 1 into law, there’s reason to worry about those provisions surviving the Supreme Court. In fact, there is already a case creeping through the court system that could stop the new wave of campaign finance reform almost before it begins. This summer, the Washington State Supreme Court will consider a challenge to Seattle’s first-of-its-kind voucher program, which was implemented in 2017. The plaintiffs argue that the system violates their First Amendment rights by using their taxes to subsidize the speech of candidates they don’t support. The case, Elster v. City of Seattle, could ultimately make it to the U.S. Supreme Court. 

The suit still looks like a long shot—a distant legal meteor destined to burn up in the atmosphere. But the Roberts Court has proven receptive to more than a few outlandish conservative legal challenges, and it has struck down both of the public financing schemes it has considered. If the plaintiffs in Elster prevail, it will be a reminder of the tenuousness of any legislation aimed at enhancing democracy under the current Court majority. More broadly, a victory for the plaintiffs would expose the rot at the center of First Amendment doctrine. The law governing freedom of speech turns out to be riven by intellectual inconsistency. On the one hand, the Court has said that forcing people to subsidize the speech of others is unconstitutional. On the other, it allows the government to use our taxes to fund all manner of communication—which entails forcing people to subsidize the speech of others. This contradiction creates a vacuum for judicial activism. In the opportunistic hands of the Supreme Court, the First Amendment is a highly customizable weapon.

Constitutional law tends to proceed via analogy: this case looks like that one, so we should apply the same reasoning. Elster borrows its logic not from other campaign finance decisions, but from a case about public-sector unions. For much of the past century, many states allowed “agency shop” agreements, in which public employees could be compelled to pay dues to the union that represented them, even if they chose not to join. This was meant to avoid free riders: since the unions are required by law to represent all employees, the mandatory dues prevent a situation in which everyone decides to enjoy the benefits of collective bargaining without paying for them. 

Until last year, the rule on such arrangements was set out in a 1977 case called Abood v. Detroit Board of Education. States could force public-sector employees to pay dues, the Supreme Court held, but their money couldn’t be used on political or issue advocacy. The Court had decided Buckley just a year earlier, establishing the connection between political spending and speech. In Abood, it reasoned that the fact that nonmembers “are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights.” If there’s a right to spend on politics, there must be a right not to. 

The Abood compromise held for four decades. But last summer, in Janus v. AFSCME, the Court’s conservative majority overruled Abood, holding that even forced dues to pay for labor negotiations violated the First Amendment. In his majority opinion, Justice Samuel Alito reasoned that all public-sector union activity is inherently political. Avoiding the free rider problem wasn’t a strong enough reason to force people to support such political speech against their will. Agency shop clauses for public employees were unconstitutional, period. The case looked to many liberals like a naked effort to hobble an important source of support for the Democratic Party. (And to at least one conservative: Donald Trump tweeted after the ruling, “Big loss for the coffers of the Democrats!”) In her dissenting opinion, Justice Elena Kagan lambasted the majority for overturning a long-established precedent and mounted a vigorous defense of the necessity of agency shop clauses. “The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision,” she wrote. “It has overruled Abood because it wanted to.”

This acrimonious fight, however, overlooked what should have been the real point. The tug-of-war over free riders and political versus nonpolitical speech concealed a gaping theoretical hole in both sides’ reasoning. Because it turns out that Abood, too, was based on an analogy—a false one. Janus was the most recent example of the harm that analogy can cause. It’s unlikely to be the last.

In 1942, Marie and Gathie Barnett, a pair of sisters in West Virginia, were expelled from their elementary school after refusing to say the Pledge of Allegiance. Their case made it to the Supreme Court, which overturned the punishment and held that the First Amendment forbade the government from compelling people to speak. Justice Robert H. Jackson’s majority opinion produced one of the most celebrated lines in Supreme Court history: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Thirty-five years later, in Abood, the Court decided that making public employees give money to unions could be analogous to making children pledge allegiance to the flag. Justice Potter Stewart’s^† majority opinion referenced Jackson’s famous statement explicitly. The principles behind it, the Court held, “are no less applicable to the case at bar, and they thus prohibit the appellees from requiring any of the appellants to contribute to the support of an ideological cause he may oppose.” Forcing someone to subsidize someone else’s speech was constitutionally equivalent to forcing that person to literally speak. 

What’s strange is that Stewart made no effort to explain why that might be the case. Nor has any justice in the four decades since. Alito’s opinion in Janus spends five paragraphs elaborating on the evils of compelled speech, but when it comes to explaining how compelling subsidies for speech are the same—well, he just doesn’t. (He does cite a seemingly supportive Thomas Jefferson quote, but in fact it’s about freedom of religion.) The opinion simply states that it “raises similar First Amendment concerns.” 

It’s easy to see why freedom of speech requires the freedom to remain silent. If the state could force us to parrot its preferred message, the whole idea of an open marketplace of ideas would be a sham. Our speech isn’t free when the government can tell us what to say. But forcing people to give money to support someone else’s speech doesn’t seem to raise any of the same issues. There is no confession of faith. A public employee who has to give part of her paycheck to the union remains at liberty to air her disagreements with it. Her ability to express herself freely is unaffected. As William Baude and Eugene Volokh—a pair of conservative law professors with no ideological attachment to unions—put it in a law review article criticizing Janus, “Requiring someone to pay money is not requiring them to believe, to speak, or to associate.”

Still, isn’t being forced to give money to an organization whose message you object to kind of . . . icky? Imagine if your town imposed a “speech tax” on property owners and used it to fund an institution devoted to communication. The institution stages theatrical performances you may find offensive, publishes a newspaper with editorials you may strongly disagree with, and even provides resources for overtly political clubs. This all might seem like an intolerable imposition on your conscience. Yet what I’ve just described is a public high school. The idea of being forced to subsidize things against our will is just the definition of taxation. The government, funded by our taxes, speaks all the time, whether we agree or not. And it transfers our money to other people and groups whose speech we might disagree with, whether it’s through arts grants, public university professors’ salaries, or financial support for nonprofit advocacy groups. No one seriously thinks any of this is unconstitutional. So why is it any different when the money goes to a union? 

It’s true that the dues in Janus weren’t taxes; the money went straight from employee paychecks to the union. But, as Baude and Volokh point out, the government often forces us to give money directly to private parties without acting as the middleman. If you want to drive, you have to get car insurance. GEICO can then use part of your payments to lobby against some new insurance regulation. It’s easy to think of other examples: paying the provider of a standardized test that’s required for a government job, paying opponents’ legal fees after losing a civil suit, and so on. In each case, whoever you pay might spend your money on political advocacy. You don’t have the right to a refund. 

In short, the bedrock premise of both Abood and Janus that compelled speech subsidies violate the First Amendment just doesn’t hold up. But on that point, Baude and Volokh are voices in the wilderness. Indeed, as their article points out, “Even the dissent in Janus—which adopted a generally barn-burning rhetorical approach—never really disputed this general view of compelled subsidies as compelled speech.” What’s troubling is that if the idea were applied consistently, then all kinds of long-standing governmental functions would suddenly be unconstitutional. Things like public subsidies for the arts, or public education—or public campaign finance. 

The plaintiffs in Elster lost their bid to kill Seattle’s democracy voucher program in state superior court. But while their appeal was pending, the decision in Janus came down. Their lawyers, from the Pacific Legal Foundation, a libertarian public interest law firm, filed a special request to have a new trial, arguing that Janus (along with another case decided last year) had created “upheaval in the First Amendment law.” The appeals court evidently agreed. Instead of granting a new trial, it took the unusual step of sending the case directly to the state supreme court. 

The Seattle program is funded by a property tax that creates a pool of money that the city distributes, in the form of four $25 vouchers, to each voter, who then can choose which candidates to give them to. Mark Elster and Sarah Pynchon, the plaintiffs, are two property owners who objected to having their tax dollars given to politicians they don’t support. They argue that by taking their money and giving it to other people to spend on politics, the city is doing exactly what the Supreme Court in Janus said was unconstitutional: compelling them “to subsidize other people’s political speech.” 

It’s a straightforward argument. But the city, whose legal team includes Lawrence Lessig, the scholar who helped conceive the democracy voucher idea, has an equally straightforward response. If the plaintiffs’ argument were correct, then it would seem to invalidate all public campaign financing, since by definition it requires using taxpayer money to support someone else’s political speech. But we know that public financing is constitutional: the Supreme Court has said so ever since Buckley v. Valeo, the original 1976 campaign finance decision. “All that Elster is required to do by the initiative he challenges in this case is pay a tax,” the city’s brief argues. “We all pay taxes, and we all don’t agree with how our tax dollars are spent.” 

So, on the one hand, the Supreme Court says you can’t be forced to give money to fund someone else’s political activity. On the other, it says your taxes can be used to fund campaigns for office. The long-term question is where the Court will ultimately draw the line between these two incompatible positions. Volokh suggested that the answer will likely be between direct transfers and transfers that involve the tax collector as middleman. “Once your money goes into the government,” he said, “the government collects so much money from so many sources, and spends it on so many things, the symbolism of your specific money being used for something you disapprove of is dissipated in a way that it isn’t when it’s used by a private entity.” 

If Volokh is right that symbolism is key, then Seattle may come to regret funding the democracy vouchers by imposing a new property tax. If the money instead came out of general revenues, there would be no subset of people to complain that they’re being unfairly targeted. H.R. 1, the Democrats’ reform bill, has a similar vulnerability because it proposes to pay for the vouchers and matching contributions with a fund supported by fees added to civil and criminal financial penalties. To protect the program against the Janus-style challenge that conservative groups would inevitably mount, Democrats should instead plan to pay for it out of the general treasury. Courts tend to be highly skeptical of lawsuits brought by plaintiffs who have no greater injury than any other taxpayer.

From the perspective of the First Amendment, of course, these should be arbitrary distinctions. The government can tax Peter to pay Paul; it can tax Peter to fund infrastructure, and use the savings to pay Paul; or it can force Peter to pay Paul directly. The choice is a matter of accounting. But when the Supreme Court creates internally inconsistent rules, arbitrary distinctions become inevitable. That leaves the Court with even more room than usual to decide cases based on its policy preferences. “There’s a principle in math that you can derive anything from a contradiction,” said Baude. “Unfortunately, a similar proposition applies in law.”

Janus is far from the only example. The First Amendment is particularly ripe for rules that make sense in one context but would create chaos in another. That’s because free speech is deceptively complex. The government can’t force you to speak—yet it can compel you to testify in court. The First Amendment tolerates all opinions—yet doctors can be sued for giving harmful advice. Over and over, the meaning of free speech depends on the context in which the speech takes place. But the Supreme Court is partial to sweeping declarations that wipe out those subtleties. The plaintiffs in Elster, for example, cite another case from last summer, NIFLA v. Becerra. There, the Court struck down a California law requiring pregnancy crisis centers—nonprofit clinics designed to dissuade pregnant women from getting an abortion—to post information about publicly subsidized family planning services. “The licensed notice is a content-based regulation of speech,” Justice Clarence Thomas wrote in his majority opinion, “compelling individuals to speak a particular message.” 

Labeling a regulation “content based” makes it presumptively unconstitutional. (The Elster plaintiffs thus argue that Seattle’s voucher program is content based.) But if we take Thomas’s logic seriously, then every mandated disclosure—on cigarette packages or insurance policies or financial statements—could be in trouble. The best predictor of which ones will survive and which won’t may well be how the Court’s conservative justices feel about the message. This isn’t speculative. As the dissent in NIFLA emphasized, the Court has held that states can require doctors to provide information about adoption and public child care assistance to patients seeking abortions. This is almost the mirror image of the California law. The only real difference seems to be that these statutes represent the other side of the abortion debate. 

Any progressive effort at campaign finance reform is certain to draw legal challenges, and if ambitious level-up programs like democracy vouchers or six-to-one matching funds catch on, an eventual showdown at the Supreme Court seems likely. The majority has already proven that it is no friend of public financing schemes. The most recent example was a 2011 case called Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. Arizona provided additional matching funds to publicly financed candidates when their privately funded opponents, or outside groups, spent above a certain threshold. A group of such candidates and outside groups sued, claiming that the matching system infringed on their First Amendment rights because their spending triggered funding for their adversaries. The conservative justices agreed. The matching provision, Chief Justice John Roberts held, was a “burden imposed on privately financed candidates” that inherently “reduces their speech” by giving a boost to their opponents. To the Court’s conservatives, a law that funded more campaign speech could be a form of censorship.

As in Elster, the Arizona system was a type of level-up campaign finance. Roberts treated that fact as strong proof of the law’s unconstitutionality. “ ‘Leveling the playing field’ can sound like a good thing,” he wrote. “But in a democracy, campaigning for office is not a game.” That doesn’t mean that new matching programs or democracy vouchers are doomed; the precise arguments against them are different from the case against the Arizona system. But it does make clear the Court’s baseline hostility to any effort to give publicly financed candidates a better chance to compete. 

Of course, any public financing system in some sense has that goal. Does that mean they will all end up in the Court’s crosshairs? Even Ethan Blevins, one of the lawyers for the plaintiffs in Elster, didn’t think so. “Here, there’s going to be a diversion of my view of the First Amendment and where things stand,” he said, referring to public financing. “I personally think it’s a problem, but it’s pretty clear that the case law allows that.” 

Sometimes, however, the ship of constitutional law begins to turn long before the change of course is perceptible. “We do not today call into question the wisdom of public financing as a means of funding political candidacy,” Roberts wrote in the Arizona decision. He didn’t say anything about tomorrow.

*This section has been updated to clarify the holdings of Buckley and Citizens United.

^†Correction: an earlier version of this piece mistakenly attributed the majority opinion in Abood to Justice Lewis Powell.

The post The First Amendment vs. Democracy appeared first on Washington Monthly.

This much can be said for Democrats heading into 2020: if their candidate manages to defeat Donald Trump, the new president will enter the White House having promised the boldest domestic policy agenda in more than a generation. At least six presidential hopefuls are all in on single-payer; an overlapping set of six cosponsored the Green New Deal legislation; and three have even said they support reparations for slavery.

But while these proposals may help curry favor with the left, they don’t squarely address what was arguably Hillary Clinton’s biggest substantive weakness in 2016: the inability to offer a compelling alternative to Trump’s hateful and mendacious argument about the origins of American middle-class decline. The party is still haunted by the memory of a candidate who didn’t have a way to explain the broad sense that economic opportunity for average people has been shrinking for decades, nor a realistic plan for what to do about it. In that vacuum, Trump’s crude xenophobia spread easily.

That’s not to say, however, that the present Democratic field is bereft of such an idea. It turns out that three of the leading presidential hopefuls—Elizabeth Warren, Cory Booker, and Amy Klobuchar—already have their arms around a concept that both makes sense of voters’ economic frustrations and provides a blueprint for a future administration to start reversing the rising tide of inequality: fighting corporate monopoly.

It’s a concept that might sound (other than to faithful readers of this magazine) like a relic from a bygone era; in 1912, Woodrow Wilson and Theodore Roosevelt competed over who would most aggressively confront the oligarchs of the era. But what’s old is new again. We are living in a moment in which ownership of the American economy, along with the global economy, is more highly concentrated than at any time since the original Gilded Age. Four airlines control our skies, one of three national chains probably owns your corner pharmacy, and one tech giant accounts for half of all e-commerce and a third of all cloud storage. This is more or less the direct result of the abandonment of antitrust enforcement beginning in the 1970s and the resulting four decades of ever-increasing mergers and acquisitions. 

It stands to reason that the concentration of corporate power would go hand in hand with the concentration of wealth. And indeed, economists have recently connected the dots between the rise of new monopolies and the staggering rise in inequality over the same time period. With less competition, monopoly firms can charge higher prices and funnel the money back to their own shareholders and executives, rather than giving workers a raise or investing in innovation. Fewer companies also means that workers are at the mercy of fewer employers, headquartered in fewer cities. All in all, the clustering of corporate power goes a long way to explaining the clustering of wealth and opportunity among the top 1 percent. 

Two thousand twenty is unlikely to be a replay of 1912, but there are indications that at least some presidential contenders will make the anti-monopoly issue a featured part of their campaigns. Warren has already changed the race by proposing to break up Amazon, Apple, Facebook, and Google. As the first big candidate to offer a substantive—and splashy—economic plan, Warren thrust monopolies into the conversation early, all but assuring that antitrust will be a topic in the Democratic primary debates. 

If the issue continues to gain traction, it could offer a way to unite the warring tribes of socialist and liberal, leftist and centrist. You don’t have to be antibusiness to be anti-monopolist. The Green New Deal has a provision that calls for “ensuring a commercial environment where every businessperson is free from unfair competition and domination by domestic or international monopolies.” Alexandria Ocasio-Cortez has tweeted about the threat that tech monopolies like Google and Facebook pose to journalism. Even Bernie Sanders has lately gotten on board. In March, he unveiled his plan for rural America during his first campaign rally in Iowa. One of his main proposals was to enforce antitrust laws against consolidated corporate agribusiness. 

The forces of monopoly have been kicking the American people’s asses for four decades. If any of the would-be trustbusters earns the nomination, 2020 could be the year when the Democratic Party finally starts to fight back. 

The first major Democrat to jump into the 2020 race was also the first to talk publicly about the threat of modern monopolies. A former Harvard Law professor, Elizabeth Warren cut her progressive teeth thinking of ways to limit the power of corporations and financial institutions to hurt the little guy—most notably, coming up with the idea for the Consumer Financial Protection Bureau in 2007. Warren’s interest in the structural causes of unfair economic outcomes—an interest that, in its wonkish intensity, distinguishes her from most of her Senate colleagues—eventually brought her to the demise of antitrust enforcement and the increase in corporate concentration. 

In early 2016, Warren’s team reached out to a Yale Law student named Lina Khan, who was already making a name for herself in academic circles by questioning the founding assumptions of modern antitrust law, which is based on a quasi-religious faith that mergers lead to efficiencies that lead to lower prices and thus must never be questioned. That led to a dinner meeting in Washington, D.C., between Warren, Khan, and Khan’s former boss, Barry Lynn, the head of Open Markets, an anti-monopoly organization then based at New America. (Today it’s an independent think tank called the Open Markets Institute.) In June 2016, Warren came to New America to give a speech on the issue, becoming the first national elected official to address the monopoly problem in generations. Widespread consolidation, Warren declared, was “hiding in plain sight all across the American economy.”

Warren has since remained the most consistent national voice speaking out about the effects of monopoly power—including the way it distorts democracy—and the government’s failure to restrain it. She was as harsh on Barack Obama as on George W. Bush; while Bush set the record for the fewest antitrust cases brought to trial by any president in American history, Obama wasn’t far behind. Indeed, when congressional Democrats unveiled their Better Deal platform in 2017, with Warren standing beside Chuck Schumer and Nancy Pelosi, it included rare implicit rebuke. “In recent years,” the document said, “antitrust regulators have been unable or unwilling to pursue complaints about anti-competitive conduct.” 

In the Senate, Warren scored a modest achievement by shepherding a bill through Congress that made hearing aids available over the counter. The previous FDA regulations were helping to artificially inflate the price of hearing aids, which typically cost thousands of dollars—fattening the profit margin of the highly concentrated hearing aid industry. The measure, which passed by a vote of 94–1, could help new, smaller competitors break into the sector and offer lower-priced alternatives.

Warren’s greatest contribution so far to the anti-monopoly cause is her role in bringing it from the periphery of American politics to something approaching the mainstream. In her official announcement on February 9, she pledged to “break up monopolies when they choke off competition.” And in March, she held a campaign event in Long Island City—the site of Amazon’s aborted New York campus—where she rolled out her regulatory plan to break up Big Tech. If taking on tech monopolies remains part of her stump speech, it will elevate the issue even more. 

Cory Booker grew up in northern New Jersey, the most densely populated slice of the most densely populated state in the country. Before becoming a U.S. senator, he served as the mayor of Newark, the state’s biggest city. So it makes sense that his entry point into anti-monopoly politics would be . . . farming? 

Joe Maxwell, the former lieutenant governor of Missouri, now directs the Organization for Competitive Markets, a nonprofit that advocates against Big Ag. He approached Booker in early 2018. While it’s better known for its boardwalks, beaches, and spray tans, South Jersey is an important producer of fruit. Maxwell believed he could get Booker, a member of the Senate antitrust subcommittee, to understand that agribusiness mergers threatened farmers in his home state and around the country. 

In July 2018, Maxwell took Booker on a tour through the rural Midwest, meeting with the president of the Illinois Farmers Union, a cattle rancher in Missouri, and residents of rural, farming-dependent communities. It seems to have done the trick. One month later, Booker introduced legislation in the Senate to place an eighteen-month moratorium on mergers between large agribusiness, food and beverage manufacturers, and grocery retailers. 

Shortly after, in October 2018, Booker gave a speech at Open Markets—a seeming rite of passage for the new crop of aspiring trustbusters—laying out what he’d learned about the rampant monopolization of American food production. “Today just a small number of giant companies control every single link of the American food chain,” he said. “The farmer’s share of every retail dollar has plummeted . . . and small family farmers are being driven to bankruptcy.” (Sanders made many of the same points in his speech to Iowa farmers last March.)

If Booker’s listening tour helped him understand the plight of America’s small farmers, he also had a more personal connection to the monopoly issue. As he was working with staff on the draft of the speech, an aide gave him a 2017 Washington Monthly story titled “The Decline of Black Businesses,” which detailed the way the conglomerate Service Corporation International was eating up small family-owned black funeral homes. The National Funeral Directors and Morticians Association, which represents black funeral directors, had seen its membership decrease by 40 percent since 1997. That was a revelation to Booker, whose father grew up in Jim Crow–era North Carolina. “When he didn’t have any family to take care of him, he was taken in and raised by another family,” Booker said in his Open Markets speech. “Who was the family? They were running a successful black funeral home.”

The upshot was clear: Thanks to the demise of independent black-owned businesses, Booker’s father, had he been growing up in today’s America, might have had nowhere to turn. Booker’s candidacy could test the extent to which the anti-monopoly argument can resonate with constituencies that, on the surface, have little in common, from African Americans in big cities to rural farmers. 

If Warren has done the most to talk the talk, Amy Klobuchar has a claim to walking the walk. In September 2017, the Minnesota senator and ranking Democratic member of the Senate antitrust subcommittee introduced two of the most significant antitrust bills in decades. (Cory Booker was a cosponsor, as was fellow 2020 hopeful Kirsten Gillibrand.) One would give the federal monopoly-fighting agencies greater leverage to block anticompetitive mergers under existing law. The other would amend the main federal antitrust law to prohibit mergers that created “monopsonies,” or market situations in which there is only one buyer. Other provisions in the bills would require companies that enter a settlement agreement with the Federal Trade Commission to make the details of that agreement public and would create a size threshold that determined when an acquisition would hurt competition. 

According to Michael Kades, the director of markets and competition policy at the Washington Center for Equitable Growth, Klobuchar learned from her perch as the Democrats’ ranking member on the Senate’s antitrust subcommittee that more needed to be done to thwart the surge in industry consolidation. Kades, who served as an expert for the panel’s Democrats starting in 2015, worked on the bills for Klobuchar. 

Eventually, Klobuchar started toying with ways to make her antitrust agenda appeal to younger voters. In a March 2017 speech at the Center for American Progress, Klobuchar found a relatable example of the way in which competition spurs innovation: beer. “For years, there were a few dominant breweries, and they all sold similar mass market beer,” she explained. But the craft beer explosion has forced brewers to compete by producing more variety and higher-quality beer. “Our goal is to make antitrust cool again,” she told the crowd. At an event this past March, she returned to the theme. The problem of monopoly power, she said, “has to become part of the political dialogue. I’m hoping it will in this 2020 election.” 

It’s early. The jury is still very much out on whether antitrust will remain front and center throughout the campaign. But Klobuchar, like Warren and Booker, has made it clear that if she ends up in the White House, corporate monopolies will have something to worry about. 

The post Meet the New Trustbusters appeared first on Washington Monthly.

A few times a month, in an unmarked white office building on Long Island, a group of Nassau County government employees discuss which children they should separate from their parents. The meeting involves a caseworker, supervisors, and attorneys reviewing notes from the caseworker’s investigation into child maltreatment allegations against the parents. If the group makes the difficult decision that a child is not safe at home, the attorneys will drive to the county courthouse down the road to argue for a removal before a family court judge.

Most of the professionals involved in this decision will be white. If the judge approves the removal, the foster parents who take in the child will likely be white, too. But for years, even though only around 13 percent of the county’s overall population is black, black kids have made up half or more of the Nassau children deemed in need of foster care placement. It’s part of a familiar story: decades after the height of the civil rights movement, extreme racial inequalities persist. 

“It was shockingly bad,” said Maria Lauria, the director of children’s services for Nassau County, referring to the disparity. “Personally, I would use the word ‘ashamed.’ At the time I wondered, ‘Why is it so bad?’ We had to try something.” 

So, in 2010, her agency tried something. What happened next is a less familiar story: what they tried worked.

When a government caseworker substantiates an allegation of child abuse or neglect, they typically present their notes to a group of superiors before seeking a judge’s order. Those notes detail visits to the child’s home and interviews with family members and with doctors, psychiatrists, or other investigators. The notes also include demographic details about the family—including race or ethnicity. But beginning in 2010, Nassau County took that part out. In its new “blind” removal meetings, information about race, as well as names and addresses, which could provide clues, is redacted by the caseworker. In other words, the people making these decisions are color-blind.

The results of the experiment were dramatic. In 2011, black children made up 55 percent of removals. In 2016, the number was down to 27 percent—still disproportionately high, but an unprecedented drop in such a large county-run foster system. 

The breakthrough made waves. Governor Andrew Cuomo’s administration praised it in an annual report, and other counties in the state started calling Nassau for advice. A team of researchers from Florida State University conducted a study on the experiment that turned into a TED Talk that has now been viewed more than a million times. Child welfare administrators from around the country are visiting soon to watch a demonstration. 

It is unusual for efforts to address racial disparities to make an actual impact. Decades of research have painted a rich picture of the political, social, and psychological origins of systemic racism, but our understanding of what actually works to overcome it has not come close to catching up. “By many standards, the psychological literature on prejudice ranks among the most impressive in all of social science,” wrote Elizabeth Levy Paluck and Donald P. Green, a pair of prominent scholars, in 2009. But, after reviewing nearly 1,000 studies on various interventions designed to reduce prejudice, they concluded that the effects of the vast majority of interventions were largely unknown—an observation Paluck has confirmed in more recent research. Yet here, in Nassau County, was a good result from the field. 

Given the success, it might seem surprising that more institutions have not attempted to use “blinding” techniques to achieve more racial equality. Withholding information about race (or gender, age, and so on) from decisionmakers is one of the oldest proven ways to circumvent discrimination. But the concept has largely fallen out of favor among racial justice advocates, in no small part because it has been co-opted by conservatives as a way of opposing any policy that takes race into account in an effort to combat racial inequality.

In its place has risen a new approach: implicit bias training. Interventions that purport to address implicit bias—an academic term for the prejudice lurking in our subconscious, shading our reactions to people of different races, genders, ages, nationalities, and so on—have become wildly popular, inspiring an entire industry that caters to businesses, schools, and government agencies. Most famously, last year, after a video went viral of Starbucks employees in Philadelphia calling the police on two black patrons who were minding their own business, the company announced that it would shut down more than 8,000 stores across the country for a one-day implicit bias training session involving more than 175,000 employees. 

But while the existence of unconscious prejudice is well established, and indeed intuitive, the dirty secret is that there’s no evidence that implicit bias trainings do anything to mitigate it. It’s a technique with a lot of buzz, but little experimental support. 

“There are two ways to think about implicit bias,” said Paluck. “One is to say we should grab it by the horns and control our less conscious habits and tendencies that we learn from society.” That’s implicit bias training. “The other is to take away information that would activate it.” That’s blinding. “There is better evidence about the takeaway stuff that triggers implicit bias. But people have been more interested in implicit bias—it’s very politically palatable to talk about bias and disparities as something out of our control and our personal will and something everybody shares.”

The success of the Nassau County experiment suggests that people working to reduce racial disparities in a variety of domains should be taking another look at color blinding. If implicit bias is fundamentally an unconscious reaction to a certain stimulus, then it makes sense to remove that stimulus whenever it would make a difference. Do renters need to know the race of people inquiring about Airbnb rentals? Should charging decisions by prosecutors, or school suspension or expulsion decisions by a principal, receive an independent, blind review before getting filed? Until the immature science around bias “training” grows up, or scholars convince policymakers to pursue large-scale integration, or Congress gets around to taking a serious look at reparations, organizations should try blinding more decisions. But first the concept of color blindness must be taken back from the conservative movement that has done so much to discredit it.

Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” wrote Supreme Court Justice John Harlan in his famous dissent in Plessy v. Ferguson, the 1896 case that upheld racial segregation. By “color-blind,” Harlan meant that the Equal Protection Clause of the Fourteenth Amendment—which provides that no state may “deny to any person within its jurisdiction the equal protection of the laws”—should be read to forbid the government from singling out black people for discriminatory treatment.

It’s an obvious position, but it would take another half century to become law. In Brown v. Board of Education, in 1954, the Supreme Court adopted Harlan’s approach, paving the way for large-scale desegregation. But as the liberal Warren Court gave way to a more conservative majority, the concept of color blindness shifted from being used to dismantle racial discrimination to being used to thwart efforts to address it. Perhaps the definitive example of the shift was the Court’s ruling in a 1978 case striking down the affirmative action policy at the University of California, Davis, medical school, which set aside a fixed number of seats each year for underrepresented minority applicants. According to the majority opinion by Justice Lewis F. Powell Jr., the problem with the policy wasn’t that it kept the plaintiff, Allan Bakke, a white man, from getting in. Rather, the “principal evil” of UC Davis’s system was that it denied Bakke “individualized consideration” for one of the reserved spots. 

This set the tone for how conservatives would talk about racial discrimination moving forward. It was wrong not because of the substantive consequences it had for historically disadvantaged groups, but rather because of something inherent in the act of classifying someone according to their race, period—even a white person. Over the years, conservative Supreme Court majorities have applied this reasoning repeatedly to roll back attempts to counter the historical impact of slavery and segregation. This version of color blindness may have reached its purest expression in a 2007 opinion by Chief Justice John Roberts striking down school desegregation efforts. “The way to stop discrimination on the basis of race,” he intoned, “is to stop discriminating on the basis of race.” 

This helps explain why color-blinding strategies like Nassau County’s haven’t gained wider purchase among progressives: they’ve been forced to fight a harmful version of the idea in court and in the popular imagination for four decades now. And they’ve seen how racial disparities can be “produced and maintained by colorblind policies and practices,” as Traci Schlesinger, a sociologist who studies racial disparities in criminal justice at DePaul University, has written. The mass incarceration of black men since the 1970s, for example, was accomplished using superficially race-neutral criminal laws and procedures.

The conservative co-opting of color blindness also helps explain the growing emphasis on implicit bias. Its fundamental insight is that color blindness is a mirage: we attribute characteristics to people based on their race and other group identities even when we think we’re being impartial. 

The term “implicit bias” was coined in the late 1990s when a team of social psychologists created the Implicit Association Test (IAT). It was designed to measure unconscious bias by having test takers offer a quick positive or negative assessment of a series of images on a computer screen, sometimes of black and white people, sometimes men and women, and so on, depending on the type of bias being measured. The test quickly gained wide attention thanks to breathless write-ups in the media, including in Malcolm Gladwell’s best seller Blink. “The IAT is more than just an abstract measure of attitudes,” he wrote. “It’s a powerful predictor of how we act in certain kinds of spontaneous situations.” Nearly twenty million people have taken an implicit bias test on a website designed by Harvard’s Project Implicit. 

Meanwhile, “implicit bias” supplanted “diversity training” as the rhetoric of choice for anyone who wanted an uncontroversial way to broach the topic of institutional disparities. The Obama White House released multiple advisories and task force reports in its second term on the mitigation of implicit bias in hiring, technology, policing, and school discipline. Organizations like Fair & Impartial Policing exist solely to train away implicit bias among cops. The organization’s website explains that it is the “#1 provider of implicit-bias-awareness training for law enforcement in North America,” and that its approach is “based on the science of bias, which tells us that biased policing is not, as some contend, due to widespread racism in policing.” The Department of Justice has offered the program to more than 2,600 local police departments since 2010, and announced in mid-2016 that its 28,000 employees would attend the program’s training sessions. 

I recently was invited to take an online implicit bias training course designed for employees in New York City’s child welfare system. The course, which is mandated by a 2017 law signed by Mayor Bill de Blasio, started with a ten-question pre-quiz on the science and social dynamics behind prejudice. (“Lifelong processing of myths, misinformation, stereotypes and oppressive views that society communicates about particular targeted social groups can lead to internalization of superiority. True or false?”) 

Then I clicked through a text-heavy, narrated slide show with videos of unfortunately common workplace incidents—an oafish white man telling a black female colleague that bias trainings are stupid and pointless, a fussy white employee suggesting that a black colleague identifies too closely with the troubled black youth in their care. The next slide asked whether I agreed that these were articulations of biased thinking, or microaggressions, by the white coworker. Throughout the presentation, there were pit stops to explore the recent scientific consensus that subtle racist remarks, conscious or not, can cause psychological and professional harm to minorities in the workplace. 

I didn’t disagree with anything I heard or read in the training—but I also didn’t get the sense that it would change the mind of anyone who wasn’t already sympathetic to the cause of racial justice. And it made me worry that people who take the training could walk away thinking that unconscious bias was the extent of the problem. It provided no context about the history of explicitly racist, twentieth-century education, housing, and employment policies that created the oppressive conditions in black neighborhoods where the child welfare system has always been most involved in the lives of families. 

Not all trainings are created equal, of course. They vary by context, content, and thoroughness. Starbucks’s training, which was designed by top experts, included a history of racial discrimination in public accommodations. Google’s explanatory portion included examples like the venture capital gender gap (only 11 percent of founders who get venture backing are women). Depending on the number of people in the training and the time available, there are often discussions in which people can share how they feel bias has impacted them in the workplace, or moments when they’ve caught themselves making biased assumptions. The hope is that recognizing and discussing these moments will help people correct their own future behavior.

But there’s essentially no evidence that it does. “I can name all the rigorous experiments [on implicit bias training] on one hand,” Calvin Lai, a researcher with Project Implicit, recently told the Daily Beast. “That’s not saying that they don’t work and that other diversity-type training is better. It’s just that we don’t know and that there isn’t enough research.” Lai and seven coauthors—mostly proponents of implicit bias science—wrote that while “implicit bias can be changed,” they found “little evidence that changes in implicit bias translated into changes in explicit bias and behavior, and we observed limitations in the evidence base for implicit malleability and change.” Even Anthony Greenwald, one of the creators of the IAT, recently told VICE News, “No one should be presenting themselves as being able to offer education or training that will undo or eliminate implicit biases.”

Indeed, there’s some evidence that the trainings might even make things worse. One peer-reviewed study found that making people aware of the prevalence of stereotyping could, paradoxically, make them more likely to think and act based on stereotypes. Another found that people who get messages about why they shouldn’t be prejudiced were then more likely to act in a prejudiced way when compared to a control group.

“My wife put it best: Can we just call it racism?” said Kamau Bell, the comedian and host of CNN’s series United Shades of America. Bell, who is black, took an interest in the implicit bias rhetoric after a waitress tried to shoo him away from a café in Berkeley, where he had stopped to say hello to his white wife and her friends—an episode he memorably recounted for This American Life. The café owner soon proclaimed that he would be instituting implicit bias training, but Bell wasn’t impressed. “There’s an effort to, in an academic way or corporate way, relabel things,” he told me. “If people want to get into the idea of antiracism training, they have to create a space where it’s okay for people to have their feelings hurt—especially white people. People want to start on a hug and end on a hug.”

Bell saw echoes of his experience after the Philadelphia Starbucks incident. “When Starbucks said they were going to do something, I became immediately suspicious,” he said. “The trainings are only pointing out problems, not solutions.”

Other experts have similar concerns. “Even the folks demanding better research on implicit bias are missing the point: You usually have to convince people racial disparity is worth addressing at all before you start talking about something like implicit bias,” said Michael Finley, the chief of strategy and implementation at the W. Haywood Burns Institute, which works to address racial disparities in juvenile justice, education, and child welfare nationwide. Finley tries not to emphasize implicit bias too much, since so many of his clients either are explicitly prejudiced or hold insensitive or cynical—but very much conscious—attitudes about why people of color experience hardship. “The hardest part of the job,” he said, “is just getting white people to use the word ‘racism.’ ” 

While implicit bias training is unproven, blinding procedures have a track record going back decades. In the 1950s, the Boston Symphony Orchestra implemented a revolutionary approach to improving its gender balance. The orchestra administrators erected screens onstage to block musicians performing in tryouts. Many orchestras soon followed suit, and the nation’s top troupes went from 6 percent female in 1970 to 21 percent in 1993. A classic 2000 study by the economists Claudia Goldin and Cecilia Rouse restaged the process and found that the intervention likely deserved the credit for the gender shift. 

More recent experiments have expanded on these insights, showing how broad the potential applications for blinding could be in hiring. In a 2003 study, researchers sent out nearly identical resumes, half with stereotypically white names and half with stereotypically black names. The white-sounding names were 50 percent more likely to get a callback. In 2014, researchers asked law firm partners to evaluate identical writing samples by “black” and “white” lawyers. Not only did the fictitious white lawyer receive better qualitative reviews, but the partners found more errors in the black lawyer’s sample—including twice as many spelling and grammar mistakes. Mere awareness of race affects seemingly objective aspects of evaluating candidates. 

But, despite their clear promise, blinding procedures in hiring have yet to take off widely. The tech start-up Slack has drawn positive news coverage for increasing its ranks of black and Hispanic coders in part by relying on a blind coding evaluation, but it remains the exception rather than the rule.

Employment is far from the only domain that could benefit from the strategic use of blinding. Gig-economy platforms are rife with opportunities for discrimination, unconscious or not, that could be eliminated simply by hiding certain information from users. A 2015 study on Airbnb, for example, confirmed what most black renters already knew: it’s much harder to book a rental with a black-sounding name. The company responded by promising to fix the problem, but in 2018 the researchers reported that little had changed. “Truly fixing discrimination at Airbnb will require more far-reaching efforts, likely including preventing hosts from seeing guests’ faces before a booking is confirmed,” they concluded. 

School discipline is another domain where blinding holds potential. A seminal 2005 report by researchers from Yale University’s Child Study Center found that black preschoolers were expelled from pre-K programs roughly twice as often as Latino and white kids. The same disparity exists at higher grade levels, and, as a 2016 federal policy guidance pointed out, these kind of trends have “remained virtually unchanged over the past decade.” Even as schools have significantly decreased these types of discipline procedures overall, the racial disparities remain. 

Education researchers told me, however, that while many K–12 schools are talking about implicit bias, few are talking about any of the more empirically validated strategies for reducing racist outcomes. Why not require a blind review by an administrator before expelling someone? The most common answer I heard to questions like this—across conversations with dozens of scholars who study housing segregation, school discipline, criminal justice, and corporate hiring and diversity practices—was that change is difficult and complicated in these overburdened systems. But when children’s futures hang in the balance, that’s a sorry excuse.

Blinding is not the only alternative to implicit bias training backed by a strong base of research. In one project, Finley’s group worked with the Baltimore district attorney’s office to improve the racial disparity in court hearing attendance. Instead of using a robotic-sounding staffer from the prosecutor’s office to call defendants, they created a more sympathetic, less threatening script for a social worker to use. More people started showing up for their court hearings. Elizabeth Levy Paluck won a MacArthur Fellowship in 2017 for her research showing the power of getting social media influencers to post anti-bullying messages. She also coauthored a recent piece reviewing the theory that contact between different groups reduces prejudice, known as the “contact hypothesis.” She concluded that sustained positive contact, under the right conditions, stands a decent chance of reducing racial prejudice. 

Clearly, blinding isn’t close to a total solution—in any context. Orchestras still struggle with gender gaps. Even in Nassau County, color blinding only reduced the racial disparity from horrific to bad. And when it comes to racial inequality, no short-term intervention, whether it’s social media or contact or color blinding or anything else, can on its own address the enormous disadvantages imposed on minorities in America, especially African Americans, thanks to centuries of institutionalized racism.

But there’s no reason to let the opponents of racial justice maintain their hegemony over color blindness. Yes, in the wrong hands, the concept can be used to justify results that set back the cause of racial equality, as when California banned state universities from considering race in college admissions. But blinding doesn’t have to be in conflict at all with proactive efforts to increase diversity. The key might be to take race out of the equation at the evaluation step. Everything we know about implicit bias suggests that even the most well-meaning evaluators are unconsciously docking minority applicants. An organization looking to increase diversity may find itself with more qualified minority applicants to choose from if it purposely ignores their race until the final stages.

But that requires accepting that there is information we can’t be trusted with. Maria Lauria, the director of children’s services for Nassau County, said that her organization’s color-blinding experiment faced internal resistance—perhaps, she explained, because it suggests that we’re lost causes, hopelessly prey to our most primitive prejudices against humans we don’t identify with. It’s uncomfortable for well-intentioned people to learn that they’ve been part of the problem, Lauria said. “People didn’t want to think something like this would work.”

The post The Case for Color Blindness appeared first on Washington Monthly.

The Larry Doby Post Office is located at 194 Ward Street in Paterson, New Jersey, across the street from my congressional office. Dedicated on August 28, 1933, by the legendary Postmaster General James Farley, the structure was one of the many built by Franklin D. Roosevelt’s administration in the throes of the Great Depression. While it may not have one of the stunning murals created by Roosevelt’s Section of Painting and Sculpture, I still marvel at the managed grandeur of its deco buttressing, the green glow of the elevated banker’s lamps off the marble walls, and the banks of brass P.O. boxes. My hometown has bounced like a cork in seas of social tumult, but the Ward Street post office has endured as I’ve always known it.

There is a cynical trope that Congress spends too much time naming post offices, but I don’t view the matter as insignificant. Post offices are open gates to American history and markers of an optimistic past. Even as smartphones and electronic communication permeate every crevice of daily life, the United States Postal Service (USPS) forms a lifeblood circulatory system connecting every community in the Union. For this reason, my work to rename the Ward Street building for Doby, an African American baseball legend and favorite son of Paterson, remains a highlight of my career.

Unfortunately, when it comes to Congress and the post office, the problem isn’t too much affection. For decades, Congress’s attitude toward the post has ranged from neglect to hostility. As a result, the USPS is struggling. In November 2018, it announced a net decline of $3.9 billion, continuing a twelve-year negative run.

The agency has been subjected to withering criticism by a spate of congressional hearings and Government Accountability Office analyses. A recent task force created by President Trump labeled the Postal Service’s financial path “unsustainable,” and recommended changes that would push the post closer to complete privatization. Under mounting political pressure, the post office itself has endorsed draconian layoffs and proposed ending Saturday delivery, among other savage cuts.

What is causing all these troubles? Is the Postal Service hopelessly outdated and dysfunctional? No. While it’s tempting to think of it as a mastodon from the pre-internet era, the post remains one of the most impressive enterprises on earth.

The USPS handles 47 percent of the world’s mail, delivering nearly 150 billion mail pieces annually. It delivers more in sixteen days than UPS and FedEx, combined, ship in a year. The agency has roughly half a million career employees spread out across almost 31,000 locations. Post offices are tucked into every state, across far-flung Native American reservations, and in remote protectorates. If it were a private business, the post would rank around fortieth on the Fortune 500. And you can send a letter from coast to coast for two quarters and a nickel—less than the cost of a candy bar.

Not surprising, then, that Americans consistently rank the post office among the most popular arms of government. A February 2018 poll by the Pew Research Center, for example, found that 88 percent of Americans have a positive view of it. That’s higher than the approval ratings for the Centers for Disease Control and Prevention, the Federal Reserve, and the Federal Bureau of Investigation. 

It’s true that technological change has affected the Postal Service’s fortunes. As people send fewer and fewer letters, the volume of first-class mail continues to tumble; between 2016 and 2018, it dropped by more than 4.5 billion pieces. This depresses the post’s revenue, forcing it to take on more debt, which in turn puts it under greater financial pressure. But as online shopping slowly replaces in-person retail, the post is sending and delivering more packages than ever before, which compensates somewhat for lost revenue. Lower mail volume is not the main issue.

In reality, most of the post’s wounds are politically inflicted. In the early 1970s, Congress passed legislation that shoehorned the agency into a convoluted half-public, half-corporate governing structure to make it operate more as a business. And in 2006, Congress required that the Postal Service pre-fund its health benefit obligations at least fifty years into the future. This rule has accounted for nearly 90 percent of the post’s red ink since. 

For the most part, these harmful “reforms” have originated on the political right. To argue that the Postal Service needs to be privatized, conservatives need to show that it is dysfunctional, and there’s no better way to do that than by weighing the agency down with impossible financial obligations. It continues a generation-long pattern of institutional vandalism by Republicans across government. But ultimately, both parties bear responsibility. I should know: I was in Congress when we passed the 2006 bill. And, along with all my colleagues, I made the mistake of voting for it.

But the good news is that just as Congress put the Postal Service on its current dangerous trajectory, so can Congress put it on a sustainable path, bringing our cherished institution back to full health. In fact, I believe we can go even further. With its massive infrastructure network, post offices could revolutionize how the American people perform a variety of essential tasks, from voting to paying taxes to banking. Tapping into this network has the potential to revitalize both the Postal Service and our democracy. Instead of discussing how to cut the post office, we should be talking about how to expand it. 

Arguments about whether the post should operate like a business date back to America’s founding. While debating the original Post Office Act, a group including Alexander Hamilton argued that the post should support itself and make money for the rest of the government. Others, including George Washington and James Madison, didn’t seem to care whether it turned a profit. Jonathan Trumbull, the speaker of the House of Representatives in 1792, observed that having the post subsidize the circulation of periodicals would be “among the surest means of preventing the degeneracy of a free government.” In the end, Washington and Madison won the day. The government allowed printers to ship their newspapers and magazines at a very low cost: one cent to destinations within 100 miles, and one and a half cents to destinations more than 100 miles away. This set off what one researcher called “the greatest explosion of newspapers in history”—and with it an explosion in literacy.

By the mid-nineteenth-century mark, the Washingtonian view of the post as a public good was deeply entrenched. An early congressional postal commission posited that the post office existed not for generating revenue but for “elevating our people in the scale of civilization, and binding them together in patriotic affection.” Legislation enacted between 1845 and 1851 codified inexpensive letter postage and further redefined the post’s place in public life. The ratification of these reforms signaled the full defeat of the idea that the post must be independent. It was entitled to government support, deficits be damned. 

Over the ensuing hundred years, the post would usher in a second American revolution. Delivery of home mail precipitated road building and allowed Americans to fan out and settle across the nation. Postal contracts sustained the construction of transcontinental railways that would have otherwise been economically unsustainable. And it was the post office, not the military, that got the U.S. government to finally invest in aviation and help birth commercial flying. 

The post has also been an agent of upward social mobility. For generations, African Americans were locked out of good government jobs. But as the federal bureaucracy began to desegregate, black workers joined the USPS en masse. Under the Harding and Coolidge administrations, black people made up between 15 and 30 percent of postal employees, making the agency one of America’s foremost incubators of the black middle class. The post also factored significantly into Roosevelt’s efforts to fight the Great Depression. Between 1932 and 1937, the government built more than 1,300 post offices. Many were enhanced with the beautiful murals FDR believed would bring art to the nation. The agency’s central role in America’s development was perhaps best summarized in the Postal Policy Act of 1958, when Congress declared that the post was “clearly not a business enterprise conducted for profit” but a public service designed to promulgate “social, cultural, intellectual, and commercial intercourse among the people of the United States.”

But, in the 1960s, that view began to change. After years of underinvestment relative to the rise in demand for its services, the post faced a huge mail backlog in Chicago. Ten million pieces of undelivered mail piled up in the city, and the Lyndon Johnson administration established a commission to look into the agency. It was headed by a former AT&T chairman and stacked with CEOs and business school deans. In 1970, the post office was wracked by a debilitating worker strike. The backlog and the strike spurred a political overreaction. 

Following the strike and the commission’s 1968 recommendations, Congress passed the Postal Reorganization Act of 1970, which exiled the postmaster general from the president’s cabinet and downgraded the post office from a federal department to an independent federal agency. Ostensibly designed to modernize the post and free it from a history of patronage, the legislation proved profoundly shortsighted. It required that the post largely pay for its operations out of its own revenues, and it split leadership of the Postal Service between the postmaster general and a board of governors, the latter of which has been largely dominated by technocrats who see the post foremost as a business. At the same time, however, the post was still subject to congressional oversight. It’s hard to imagine any corporation that would agree to operate under this peculiar hybrid structure. Even today most Americans don’t realize that despite their reliance on it, our post is not a part of the government in the same way as the Department of Agriculture or the Pentagon, and receives effectively no support from the federal budget.

Unfortunately, the 1970 bill was only the first in a series of legislative blows against the post. From 1808 until 1995, Congress had a full congressional committee for the Postal Service. But as part of his war on government, Speaker Newt Gingrich relegated its duties to the present-day Oversight and Reform Committee, where they were assigned to a postal service subcommittee. In 2001, the Republican House majority disbanded the subcommittee altogether.

But the most destructive change of all was the Postal Accountability and Enhancement Act (PAEA). The bill has an unfortunate history. It was hurried to the floor during a lame-duck Congress weeks after Republicans were routed from their twelve-year congressional majority in the 2006 midterms. Committee leaders told us that the legislation was critical to “saving” the post, and we were rushed into voting for the bill without fully considering its motivations or long-term impacts. The legislation was passed by voice vote—without objection. It was a blunder, one of the worst pieces of legislation Congress has passed in a generation. 

While the PAEA included some positive measures, including giving the post increased autonomy over its rates, the law generally tightened a noose around the USPS. It further narrowed the post’s charter and prohibited the Postal Service from engaging in new activities outside of mail delivery. The law’s most destructive section, innocuously labeled “Postal Service Retirement and Health Benefits Funding,” imposed an unusual requirement on how the post covers its employee health pensions. Prior to 2006, the post funded its pensions like all agencies: pay as you go. Now, however, the agency had to pre-fund the health care benefits of employees at least fifty years in advance. To meet this requirement, the post was obligated to place approximately $5.5 billion into a pension fund each year between 2007 and 2016, followed by additional large annual payments.

The measure has been a fiendish straitjacket, akin to making a prospective homeowner cover an entire thirty-year mortgage before the ink is dry on the deed. The provision is even more onerous given that the government requires the treasury to invest all postal workers’ retiree money in government bonds, guaranteeing miniscule returns. Unsurprisingly, the post has defaulted on all of its pre-funding payments since 2011, to the tune of at least $40 billion. In each of the last three years, the pre-funding burden well exceeded the post’s total losses. Overall, pre-funding accounts for almost all of its losses since 2006. 

No other agency or department is subject to this requirement. So why is the Postal Service? The George W. Bush administration demanded its inclusion and used the savings it generated to try to balance the budget. Dutiful Republicans said it was necessary to ensure that the post doesn’t generate a “huge unfunded liability” that would require a bailout from the government, an absurd posture they still maintain. But the requirement’s main upshot has been to plunge the Postal Service into a perpetual fiscal crisis that in turn justifies further attacks from the right. Full privatization is still neither politically nor logistically feasible, but that won’t stop Republicans and their allies from trying. 

Trump’s recent Postal Service task force fits into the gradual push toward privatization. The task force’s ultimate conclusion bore all the hallmarks of a far-right hit job. Rather than focusing on the Postal Service’s pre-funding
provision—which the final report actually recommended keeping—the task force emphasized the supposed need to lower Postal Service delivery standards and eliminate employees’ collective bargaining rights. The task force also recommended diluting the post’s universal service guarantee, which would wreck the agency’s functionality in rural communities. In a country where rural citizens already feel detached from the rest of the nation, such an outcome would only widen existing cleavages. Convened in secret, Trump’s task force was designed with the Orwellian purpose not to save the post, but to further weaken it.

I am heartened that Democrats routinely unite to oppose privatization. But merely saying that the post should not be privatized comes from a defensive posture. The solutions we pursue must be bolder.

Any serious reformation of our post begins with eliminating the odious pre-funding anchor. But that’s only the start. To really improve the agency, we need to fully reject the idea that it should be run like a business. There is a reason why the Founders made the Postal Service a federal department, and there’s a reason why it remained that way through the better part of the twentieth century. Policymakers wanted to make sure that Americans could affordably send and receive mail from anywhere. In pursuing that aim, the USPS has played a key role in developing our country. To that end, we should evaluate reviving the U.S. Post Office Department and making the postmaster general a cabinet official once more. It’s time that we again treat this agency like a public good rather than a private business. 

Nowhere is this perspective needed more than in Congress. In the House and Senate, we have become hostages to a fiscal imprisonment outlook, viewing almost every question through the single calculation of whether it will raise or lower revenue. Republicans have used the specter of deficits as a cudgel to beat back funding increases for all departments and programs. Browbeaten, too many Democrats have gone along. But while deficits matter, the Postal Service isn’t running losses because it’s inefficient. It’s running losses because of political sabotage. 

It’s time for Congress to admit that the hybrid structure it sanctioned forty-nine years ago is not sustainable. So long as the post exists half as a business and half as a public enterprise, forced to make money even as it is constrained by preposterous rules and counterproductive meddling, it will wobble and teeter. Meanwhile, privatization advocates will continue to chip away at one of the world’s most impressive agencies.

That doesn’t mean the Postal Service should be free of interrogation. The post, for example, must fix its deal with Amazon. The company ships perhaps two-thirds of its packages through the public mail, and its pricing and delivery terms are separate from those afforded to other businesses that ship through the post.  This comes courtesy of a secret 2013 negotiated service agreement whose provisions have been hidden from even Congress. The secrecy suggests that Amazon is getting a deal other retailers don’t enjoy. 

There is some logic for a deal between the post and Amazon. But if the world’s best delivery system is awarding Amazon a volume discount, it makes it more difficult for the company’s competitors to challenge Amazon’s prices. This sets a dangerous example for competition policy. The U.S. Postal Service is a public facility. It should not be used to further entrench the monopolistic power of a private company. Nor does it need to. Amazon does not have the post’s infrastructure, and Jeff Bezos’s vaunted delivery drones aren’t yet operational. The Postal Service’s biggest rivals, UPS and FedEx, simply can’t match the agency’s services. In negotiations, the post should take a harder line and force Amazon to pay more. 

Congress can help spur the Postal Service into bargaining harder by using its hearing power to make the current Amazon deal public. Given that Congress has paid so little attention to the agency in the past, this kind of engagement is sorely needed. Currently, the House subcommittee that deals with the USPS is responsible for monitoring a mind-boggling number of other federal functions and agencies, including (but not limited to) government management and accounting; federal property; intergovernmental affairs, including with state and local governments; and the entire civil service. It’s no wonder the post has become of tertiary importance in the people’s house. Between 2005 and 2018, the House Oversight Committee held 417 hearings, of which just seven were related to postal issues. This negligence helps explain why legislation that kneecaps the USPS, like the 2006 Postal Accountability and Enhancement Act, glides through Congress before members really consider its consequences. 

The two House members with the most control over postal issues, House Oversight Committee chairman Elijah Cummings and government operations subcommittee head Gerry Connolly, are champions of the Postal Service, and I believe they will dedicate attention to the issues facing the agency. But both of their bodies are swamped with other valuable work, including bringing needed oversight to the river of corruption flowing from the Trump administration. Over the next few years, Congress should therefore consider bringing back the full Postal and Civil Service Committee or, at the very least, creating an exclusive postal subcommittee. 

To truly move beyond playing defense, however, Democrats need to reimagine what the Postal Service can do. It is, after all, one of the most remarkable physical systems ever created. With arms in every single zip code, from Key West, Florida, to Utqiagvik, Alaska, its expansiveness opens up a world of opportunity.

In many American communities, the post office was historically called the “federal building,” and it served as a one-stop shop for numerous governmental needs. (Tellingly, FDR wanted Social Security to be administered through posts to assure its accessibility.) In smaller towns and cities, for example, the post office was a focal point for immigrant registration, military recruitment, and distributing income tax forms. There is no reason that America’s post offices can’t again provide a variety of important governmental functions. Indeed, today’s post offices should have all tax forms readily available. The government should even consider stationing IRS adjutants at post offices around tax time, which would ease what is, for many Americans, one of the most stressful times of
the year.

The Postal Service could also expand on the passport assistance it already provides. Many post offices take passport photos and process some first-time applicants and renewals. Often, this is by appointment only. I believe that post offices should offer full passport services to any American who walks through the doors. In addition to serving as a gateway to America’s bureaucracy, the post could serve as a door to the rest of the world. 

State governments should take advantage of America’s postal infrastructure as well, in particular by expanding the use of vote by mail, which when done right is proven to increase political participation. Turning mailboxes into voting booths would therefore be good for the engagement of our citizenry. The post could further weave itself into American democracy by allowing congressional representatives to station their district staff right in community post offices.

But perhaps the most promising service that post offices could provide is banking. Today, sixty-eight million Americans, more than a quarter of U.S. households, lack access to adequate banking services. Many are shut out by high fees tied to minimum balances, overdrafts, direct deposit penalties, and ATM charges. As a result, they are left to unregulated payday lenders and check cashers that level obscene annual percentage rates. The postal inspector general found that underbanked Americans spend $89 billion each year on financial fees. This closed system shackles families to poverty, further cementing the economic inequality tearing our country apart. 

Postal branches could offer a range of banking services—including savings accounts, deposit services, and even small lending—at a 90 percent discount compared to what predatory lenders provide, according to a report commissioned by the USPS inspector general. This would give many families an average savings of $2,000 a year while putting nearly $9 billion into the post’s coffers. 

Postal banking could even unite liberals and Trump supporters. Rural communities are America’s most bank starved: 90 percent of zip codes lacking a bank or credit union lie in rural areas. Bank branches are also sparse in poorer urban areas, and 46 percent of Latino and 49 percent of African American households are unbanked. The Postal Service is well positioned to help both communities. Some 59 percent of post offices lie in “bank deserts,” or places where there is no more than one branch. Where financial institutions close their doors to these communities, post offices remain open to anyone who walks inside. And this change wouldn’t even need the approval of Congress, requiring only the postmaster general’s consent. Pilot programs could then begin immediately—including in places like 194 Ward Street in my own city of Paterson.

Ultimately, these reforms would expand on the post’s democratic tradition. For centuries, the agency has connected far-flung parts of the country at little cost. Letting it help citizens pay their taxes, obtain passports, vote, and bank would better connect Americans with their federal government. In doing so, these reforms could help mend our citizenry’s chronically low confidence in the federal government. They could also make the agency’s contribution to public life—already enormous—more visible to the people it serves. And that would make it more difficult for anti-government zealots to tear the agency apart.

The post Congress Is Sabotaging Your Post Office appeared first on Washington Monthly.

Arlene and her two young children had recently been evicted from their Boston apartment. She had defaulted on her student loans and lacked sufficient savings to pay first and last months’ rent on a new place. Her family was living in a shelter. 

But Arlene (a client of one of my colleagues at the National Consumer Law Center; her name has been changed) was confident the situation would be only temporary. Between withholding and the Earned Income Tax Credit, she was expecting a check for nearly $7,000 at tax time—money she hoped would be her family’s ticket back to a measure of stability. But when Arlene filed her taxes, she discovered that the government had seized her entire credit to offset her defaulted loans. The official notice had been sent to her old apartment; she never saw it. By the time Arlene consulted with a legal services attorney, it was too late to seek a waiver for financial hardship. A letter was missed, a lifeline lost.

Versions of Arlene’s story play out every day across the country. Children lose public benefits when paperwork is mailed to their parents’ old address. Predatory creditors win default judgments against alleged debtors who never see notice of their required court appearances. For undocumented immigrants, the consequence of missing a mailed court notice is typically an immediate order of deportation. Just last year, the Supreme Court ruled that states may purge citizens from their voting rolls if they fail to respond to mailed notices from election officials—an invitation that has been eagerly accepted by many states with long histories of voter suppression. 

These horror stories, along with lesser hassles, all stem from a simple root cause: changing your address is a massive pain. Even in the digital era, crucial communications are sent by mail—addressed to fixed geographic locations, rather than directly to people, which is almost always the intention. After each move, our mailing system requires us to identify all the different people and offices who might ever want to send us mail—government agencies, friends and family, newspapers and magazines, banks and doctors—and then inform each of them about the change. When we leave someone off that list, or if they get the addresses confused, mail goes to our former residence. Although the U.S. Postal Service (USPS) offers mail forwarding, that service eventually expires and is, anyway, good for only one move—creating gaps that result in lost mail and stale contact information.

Every year, about one in seven Americans changes mailing addresses. But certain groups—including young adults, members of the armed services, low-income renters, and domestic violence victims—move at rates significantly higher than the average. One study found that more than half of poor families moved to a different neighborhood in a two-year period, compared to around a third of higher-income families. These disadvantaged communities are doubly hurt. Not only do they tend to move with greater frequency, but they also are more likely to be mailed the sorts of things that can be disastrous if missed, like upcoming court dates and crucial bills. 

Almost all of us can relate to the frustrations of this outdated system. Over the twenty-six years that my mother served active duty in the military, my parents kept a thick manila folder of subscriptions, customer accounts, and personal contacts. Every few years, when she got a new work assignment, we’d spend long hours updating the contacts from this list with our new mailing information. I continued this task after I left home: in the nine years since I graduated from college, I’ve lived at sixteen different addresses—each new one the result of the sort of personal and professional life transitions that spur nearly one in three young American adults to move
every year. 

But there’s an easy fix. To take the pain out of changing addresses, the USPS should allow customers to register for unique, portable, and permanent “mailing PINs.” These PINs would be connected to your preferred delivery address. Following any relocation, you would simply log in to the USPS website (or stop by the local post office) and change the address linked to the PIN. Anyone who has your PIN will always be able to reach you by mail, no matter how many times you move. No more dealing with magazine subscription service departments or change-of-address forms. No more missed mail after moves. 

In addition to facilitating permanent relocations, these PINs could also reroute mail during temporary living situations like seasonal jobs or internships, shared custody arrangements, extended vacations, or stays with friends and family during financial emergencies. This portability would be akin to your ability to keep a cell phone number after switching carriers—a right that has been protected by the Federal Communications Commission since 2003—or a permanent personal email address. 

Mailing PINs would also give us greater control over our personal information. Right now, any website or company you’ve ordered something from could have a record of your home address in a database that is vulnerable to breach—a concern magnified by recent retail hacks and the rise of “peer-to-peer” transactions facilitated through sites like Etsy and eBay. Under this new system, it would be possible to order packages without divulging exactly where you live. All you would have to do is provide your mailing PIN. Only the USPS would be able to connect it to your home address. 

This would be especially helpful for people with reasons to worry about their safety. Research suggests that victims of domestic violence, for example, are particularly likely to move frequently. Mailing PINs would allow them to receive correspondence from their abuser, a practical and legal necessity in a whole range of common situations, without disclosing where they sleep each night.

Governmental reforms are often organizationally complex or politically tricky. This one is neither. Mailing PINs would build onto existing delivery infrastructure. The USPS already uses a system of digital scanning and identification codes to process most mail. There is no technical reason why it couldn’t incorporate the small extra step of matching PINs to specific delivery addresses. Because this feature is an extension of the existing mail delivery service, rolling out mailing PINs could be done under existing legal authority, without requiring new legislation. The costs of transitioning to this system are likely to be reasonable, mostly up front to update processing software. And it would be voluntary. Customers who prefer using their physical addresses—and businesses or governments that want to deliver to locations, not people—wouldn’t have to do anything differently. Deliveries could still be made using physical addresses, just as they are today. 

I am not the first to propose such an idea. In 2013, the Postal Service’s inspector general drafted a memo discussing the potential benefits of a “virtual PO box” that would allow users to digitally redirect their mail to other addresses. But the proposal was little noticed at the time and never gained traction within the agency. Meanwhile, a growing number of start-ups have aimed to reimagine ways individuals and businesses receive physical content, for example through paid “smart mailbox” services that scan customers’ physical mail and deliver its digitized contents to their email inboxes. But the benefits of these services, which target consultants and business executives, are available only to those who can afford them—precisely the group least vulnerable to change-of-address mishaps to begin with. 

With only a few manageable changes to its processes, the USPS could provide an even more useful and comprehensive version of these conveniences for every American. Doing so wouldn’t be entirely free of difficulties. There would be logistical challenges—for example, in calculating shipping costs. And mailing PINs would not completely eliminate missed mail. People with extreme housing instability may move so often that it’s impractical to update their address each time with the USPS. 

But this proposal would have enormous benefits for people who find themselves in difficult circumstances—people like Arlene. It could prevent impoverished families from losing public benefits after they move. It would help ensure that people don’t miss court notices. It could make it harder for states to purge citizens from their voter rolls. More broadly, portable mailing PINs would increase everyone’s data privacy, reduce the costs of moving and the volume of lost mail, eliminate a common business expense, and make it easier to stay in touch with family and friends. The Postal Service has the authority to make this commonsense idea a reality. It should do so.  

The post A Simple Plan to Make Moving Less Awful appeared first on Washington Monthly.

Two thousand nineteen is the fiftieth-anniversary year of the Washington Monthly. That’s got me thinking about how to describe the role the magazine has played, and continues to play, in the life of the nation. It’s a complicated question, about which I’ll have more to say in the future. For now, one answer I can offer is that the Monthly has long been in the business of trying to create a “usable past” for liberal government.

That phrase comes from an influential 1918 essay, “On Creating a Usable Past,” by Van Wyck Brooks. The famed literary critic argued that American novelists and poets of his day lacked boldness, inspiration, and a shared sense of purpose because they too often emulated European writers, whose instincts and traditions were far different from their own. To find their voice, he maintained, American writers needed to rediscover the work of their own literary forebears, like Herman Melville, whose books at the time were largely forgotten (hard as that may be for later generations of high schoolers to believe). 

Those earlier writers, Brooks noted, had grappled with the same tensions as his contemporaries—in particular, trying to create art and find meaning in a country overwhelmingly devoted to commerce. Only by studying those earlier works and creatively articulating the qualities they shared (a task Brooks spent his professional life on) could his generation of writers find the language and vision to lead the country toward what he, a man of the political left, saw as an emerging progressive future:

Knowing that others have desired the things we desire and have encountered the same obstacles, and that in some degree time has begun to face those obstacles down and make the way straight for us, would not the creative forces of this country lose a little of the hectic individualism that keeps them from uniting against their common enemies?

The Washington Monthly is a politics and policy magazine, not a literary journal. Still, we hold the Brooksian view—shared by our founder, Charles Peters, most recently in his book We Do Our Part—that today’s liberals are surprisingly unaware of the policy solutions that their own predecessors devised for problems remarkably similar to those we face today, and that rediscovering those forgotten solutions is the key to building a contemporary liberalism that is in accord with the American spirit.

A good example is the rise of monopoly capitalism. For over a decade, as regular readers know, this magazine has been making the case that growing industry consolidation is suppressing entrepreneurship and wage growth, hollowing out the economy of the interior of the country, and corrupting the political process. This consolidation happened because Washington policymakers abandoned legal and regulatory regimes, such as strict antitrust enforcement, that previous generations of progressives put in place to create a capitalism that worked for average people. The good news, as Eric Cortellessa reports in this issue, is that several Democratic presidential candidates, including Elizabeth Warren, Cory Booker, and Amy Klobuchar, have absorbed many of these antitrust arguments and are beginning to articulate them on the campaign trail. 

Elsewhere in this issue, you’ll find more policy treasures dug up by our writers. Phillip Longman—the Indiana Jones of this sort of journalism—reports that tech companies not only invade our privacy but also use the information to discriminate against us on prices, precisely the strategy that railroad and telegraph monopolies deployed a century ago, until progressive lawmakers outlawed it. New Jersey Democratic Representative Bill Pascrell shows how the United States Postal Service is being crippled by misguided congressional demands for it to “operate like a business,” demands that run counter to the Founding Fathers’ intent that it be a unifying national institution. Pascrell argues that today’s Postal Service could further fulfill its original mission by expanding into, among other areas, community banking. Beth Baltzan tells the story of the long-forgotten “Havana Charter,” a 1948 trade treaty negotiated by New Dealers which, had it not been rejected by Congress, might have kept the global trading system from subsequently screwing American workers. And Grace Gedye traces efforts by newly empowered House Democrats to revive an institution, the Office of Technology Assessment, that helped lawmakers make sense of emerging technologies, before Newt Gingrich killed it.

Many activists on the left today—or at least those who hang out on Twitter—are demanding Scandinavian-style socialism and a clean break with the Democratic Party’s compromised past. But while it’s true that America hasn’t cornered the market on good policy ideas, and Democrats have often been party to disastrous ones, such demands are unlikely to result in the solid and enduring new liberal majority we need. A more promising way to build such a majority is to study how previous generations of Americans did so—the language they used, the values they identified with, and the policies they forged from the peculiar alloys of American culture. “Only by the exercise of a little pragmatism of that kind,” wrote Brooks, “can the past experience of our people be placed at the service of the future.” 

The post Editor’s Note: A Usable Past for Liberal Government appeared first on Washington Monthly.