Monthly Archives: April 2019

Herbert Simon on the REINS Act

Most regulations are issued by the executive branch, not Congress. This limits their accountability to elected officials. Bills such as the REINS Act seek to address this by requiring Congress to vote on major new agency regulations (see my 2016 paper on REINS). One objection to REINS is that it would require an additional 40 to 50 congressional votes per year; Congress often has too much on its plate as it is. Herbert A. Simon foresaw that objection several decades ago on p. 65 of the 4th edition (1997) of 1947’s Administrative Behavior (emphasis in original):

Second, the fact that pressure of legislative work forbids the review of more than a few administrative decisions does not destroy the usefulness of sanctions that permit the legislative body to hold the administrator answerable for any of his decisions.

Blocking the T-Mobile-Sprint Merger: Competition, Rent-Seeking, and Uncertainty

Nationwide 5G networks are coming. They will expand possibilities for everything from smartphone applications to GPS to streaming video, and will enable new technologies that have not yet been invented. President Trump wants the U.S. to be a world leader in 5G adoption. But his Justice Department’s antitrust division might hinder that goal by blocking the proposed merger between Sprint and T-Mobile.

The antitrust division’s rationale is that the deal would decrease the number of major wireless carriers from four to three. But my colleague Jessica Melugin argues that without the merger, the number of carriers might actually be two: “T-Mobile and Sprint will [need to] be able to combine their resources [in order to] stay competitive with Verizon and AT&T, and hopefully help the mobile communications industry in the United States win the race to build the first 5G network.” Together, they might survive. Apart, both might go under.

On the other hand, the rule of thumb is that 90 percent of mergers are failures, remember. This could well be the next AOL-Time Warner. Nobody knows how Sprint-T-Mobile would turn out, including the Justice Department, as well as the companies themselves. But unlike antitrust regulators, Sprint and T-Mobile have skin in the game, and thus a stronger incentive to make the right decision.

Then there is the rent-seeking angle. As my colleague Wayne Crews notes: “It’s also important to note that invoking antitrust laws in this case is de facto corporate welfare for Verizon and AT&T. It means they can stand pat rather than reacting to dynamic changes to the marketplace.”

Third, there is the uncertainty angle. There are no set criteria for what makes a merger legal or illegal. Regulators decide at their own discretion—and politics are often involved, as with President Trump’s recent unsuccessful attempt to block the AT&T-Time Warner merger (Time Warner owns CNN, which is often critical of Trump).

There are ways to measure market concentration, such as the Herfindahl-Hirschman Index. But its numbers are easy to manipulate to reach any conclusion—just define the relevant market however narrowly or broadly you want, and you can generate a number showing any desired degree of market concentration. The Federal Trade Commission has a set of merger guidelines, but they are not binding and can easily be ignored if politics or other merit-unrelated factors are more important at the moment.

This regulatory uncertainty has costs far beyond whatever happens with the Sprint-T-Mobile deal. Even if the merger goes through, and a merged T-Mobile-Sprint proves a viable 5G-era competitor, the fact that mergers are approved or denied at a whim will continue to have its chilling effect on companies far outside of technology or communications. For some companies, the upside is not worth the cost in legal fees, political engagement, and potential bad publicity. This is consumers’ loss, not just entrepreneurs’ and investors’.

For more reasons to be skeptical not just of the move to stop the Sprint-T-Mobile merger, but of antitrust regulation in general, see Wayne Crews’ and my just-released paper, “The Case against Antitrust Law: Ten Areas Where Antitrust Policy Can Move on from the Smokestack Era.”

Charles Dickens – A Tale of Two Cities

Charles Dickens – A Tale of Two Cities

Those two cities being London and Paris. Their differences in character were put in stark contrast by the French Revolution; cool London and hot France could not be more different. Dickens’ characters find themselves in the middle of all kinds of duality. Not just Revolution and ancien regime, but rich and poor, young and old, and past and future all come into play. Dickens, while occasionally sappy, conventional, and a little too PG-rated to give a truly vivid picture of the times, still manages to convey good insight about the value of keeping a level head during turbulent times, even as his characters tend to be studies of contrast rather than nuance.

Richard Thaler – Misbehaving: The Making of Behavioral Economics

Richard Thaler – Misbehaving: The Making of Behavioral Economics

Part Thaler’s career autobiography, and part biography of the field of behavioral economics. Thaler is coauthor of Nudge with Cass Sunstein, and won the 2017 economics Nobel. He is also an excellent popular writer, which the profession could use more of. His tone is friendly and conversational, he uses frequent humor, and he explains concepts in an engaging way, while also giving plenty of attention to the sometimes quirky personalities behind those ideas.

While I do recommend this book, behavioral economics is not nearly as radical or subversive as Thaler sells it to be. Nor do his normative conclusions entirely hold up. Adam Smith himself rejected the Homo economicus model, and Frank Knight’s 1921 landmark Risk, Uncertainty, and Profit is essentially a sustained debunking of the standard model that runs for 375 pages. Hayek and Keynes, for all their disagreements, were united in having little use for the perfect competition model. Hayek’s spontaneous order is about flexibility, adaptation, and imperfect knowledge –all of which the perfect competition model denies. Keynes’ phrase “animal spirits” perfectly captures an important factor in economic life, and is similarly incompatible with perfect competition.

Thaler also clearly takes umbrage at the most common criticism of his nudging proposals. It runs as follows:

  1. People are not fully rational.
  2. People designing nudges are people.
  3. Nudgers are not fully rational.
  4. Therefore nor are their nudges.

Thaler does not substantively address this criticism, but he does flash some temper. It clearly strikes a nerve. He also reacts precisely as he accuses his opponents of doing to his arguments—dismissing it with a “wave of the invisible hand,” as he terms it. This refusal to engage a major criticism is the book’s biggest flaw.

Economists and policymakers would do well to listen to Thaler and other behavioral economists’ insights on psychology and human behavior. They should also keep in mind that nudgers are just as fallible as the people they hope to nudge. A large top-down error is hard to undo; millions of smaller bottom-up errors by individuals tend to cancel out by dint of their large number. Even the largest on-the-ground individual error is positively benign compared to what a politician or an agency error could impose on millions of individuals.

In short: Thaler’s work is valuable for the is, but likely more harmful than helpful when it gets to the ought phase. His ideas are very much worth engaging, and this book delivers them superbly.

CEI Makes the Case against the Use of Antitrust Law

This is a CEI press release for Wayne Crews’ and my new paper on antitrust reform, cross-posted from CEI.org

The Competitive Enterprise Institute today released a report making the case that government use of antitrust law to break up big companies has a chilling effect on long-term investment and innovation and harms competition and consumers.

In “The Case against Antitrust Law: Ten Areas Where Antitrust Policy Can Move on from the Smokestack Era,” co-authors Ryan Young and Wayne Crews argue that the renewed call for use of antitrust law by policymakers on both sides of the aisle is dangerous for both consumers and producers. Young and Crews make the case that antitrust provisions of law should be repealed.

“While advocates of antitrust enforcement believe its use will bolster competition, the facts show the mere threat of antitrust penalties have a chilling effect on entrepreneurs and their ability to innovate,” warned Ryan Young, CEI senior fellow and report co-author. “Repealing antitrust laws in favor of a market-based approach to competition would reduce regulatory uncertainties for businesses and foster an environment where companies and entrepreneurs can innovate, which only benefits consumers.”

The antitrust issue has taken on greater urgency as politicians – both Republicans and Democrats – push for more aggressive antitrust enforcement. Policymakers in both the United States and the European Union have expressed an interest in using antitrust law to break up big technology companies like Facebook, Apple, Amazon, Netflix, and Google.

“Despite the calls for more antitrust regulation from Washington, the best outcome for consumers and a competitive marketplace would be to repeal antitrust laws and regulations entirely,” said Wayne Crews, CEI Vice President for Policy and report co-author. “Subjecting our dynamic economy to the policies of the smokestack era would be devastating for the many types of innovation we are seeing in the modern, diverse marketplace. Consumers benefit from competition and innovation, not heavy-handed government intervention and regulation.”

The report makes several key recommendations, including:

  • Repeal the Sherman Act of 1890. If a company is making extraordinary monopoly profits, the only way it can keep competitors at bay is to use government to protect its position from competitors. The solution is taking away the government’s power to protect such companies from competition.
  • Stop equating mergers with monopoly. Horizontal mergers – between companies competing in the same market – reduce the number of competitors in a given market while increasing their average size and are a red flag for antitrust regulators. But size or market concentration of an entity or industry should not be an antitrust offense, far from it. In an era in which it is readily apparent and agreed-upon that we need larger-scale infrastructure, and further expect novel ventures like commercial space travel, some firms and industries of the future need to be far larger than what we see today. Laws and regulators should not be concerned with size but whether the company attains its size through competition or from government favors.
  • Stop worrying about “predatory pricing.” Antitrust regulators can punish a company if it charges lower prices than its competitor, under the guise of predatory pricing. The idea is that a company can sell its wares at a loss in order to gain market share, perhaps even causing competitors to go bankrupt. But the only way for a “predator” undercutting its “prey” to keep a permanent monopoly is to permanently sell at a loss. That results in bankruptcy, not monopoly.
  • Repeal the Robinson-Patman Act. Price discrimination is selling goods to different people at different prices and is regulated by the Robinson-Patman Act. Common examples of price discrimination include putting products temporarily on sale, giving bulk discounts for large quantity orders, or membership programs. There is much uncertainty around what is permissible and what is illegal price discrimination, making the Robinson-Patman Act unworkable and unenforced. Repealing it would take away needless uncertainty and give consumers and businesses peace of mind.

View the report and the rest of its recommendations, The Case against Antitrust Law: Ten Areas Where Antitrust Policy Can Move on from the Smokestack Era by Ryan Young and Wayne Crews.

Read more:

New Study: The Case against Antitrust Law

Antitrust regulation is a complex, multifaceted issue. It brings together insights from law, economics, political science, history, philosophy, and other disciplines. Right now both political parties are ramping up their antitrust rhetoric, and it will likely be a live issue throughout the 2020 election cycle. A working understanding of how antitrust regulation works is important for understanding why it works so poorly, and should ultimately be abolished. To that end, Wayne Crews and I have a new study out, “The Case against Antitrust Law: Ten Areas Where Antitrust Policy Can Move on from the Smokestack Era.”

If you prefer the short version, here is a press release. We will also be running a series of blog posts hitting the main arguments. Often, a frequent drips-and-drabs approach to learning an issue is as effective as one intensive sitting. The initial posts will sketch out broader themes of antitrust regulation and the main sides of the debate. After that, we will go through the items on our “Terrible Ten” list of failed antitrust policies that should be abolished.

For additional CEI antitrust resources, we also have a dedicated landing page at antitrust.cei.org. Wayne’s and my full study is here.

James S.A. Corey – Leviathan Wakes (The Expanse, Book 1)

James S. A. Corey – Leviathan Wakes (The Expanse, Book 1)

The Expanse is a science fiction show I recently discovered and rather enjoy. People began colonizing the solar system a few centuries before the series begins. Earth is under a global UN government and prosperous, if corrupt. Mars declared its independence some time ago. It was not peaceful, and tension lingers. Out in the, ahem, expanse of the asteroid belt and beyond is where this book takes place.

People have colonized asteroids, several moons around Jupiter and Saturn, and built several major space stations. Roughly 100 million people live in the Belt, but is small and backwards compared to Earth’s 30 billion population. Resources such as air and water are precious, and despite incredible solar system-wide wi-fi, the Belt isn’t as prosperous as the inner planets. Life is hard and dangerous, and a lot of decent people are also kind of sketchy; they have to be. Life expectancy for Belters is just 68, compared to 123 on Earth. native-born Belters are noticeably taller and skinnier than Inners due to growing up in lower gravity, marking them apart physically as well as culturally. They have been in space long enough to develop their own distinct patois, which is one of several nice touches that describe their growing cultural distance from Earth.

The Belters do not have an independent nation, but there is an IRA-style independence movement, the Outer Planet Alliance, or OPA. It is decentralized, uncoordinated, often violent, doesn’t necessarily have a clear leader, and is prone to factions and infighting. Inner planet governments have various interests and presences throughout the Belt. Sometimes they treat Belters well, and sometimes they don’t. Same with numerous mining companies, security contractors, and other businesses.

The protagonists are a plucky four-person ship crew who have origins from across the system, plus a hard-boiled Belter ex-detective from Ceres Station. They have different personality types and different philosophies, and while they are mostly good they also have their flaws. Through no fault of their own, they find themselves right in the middle of these tricky geopolitical dynamics. They try to stop a brewing system-wide three-way war while dealing with a number of other potentially lethal plot developments.

Amazon founder Jeff Bezos is enough of a fan that when the SyFy channel declined to renew The Expanse for a fourth season, he brought the show over to Amazon’s Prime streaming service. I enjoyed watching the first three seasons recently, and saw that the books on which it is based were on sale. The show is not a shot-for-shot remake of the books, though some parts did read like a retread. On the plus side, books have fewer space, time, and special effects budget constraints than television, so the characters and the fictional universe are developed more fully than in the show. The science parts of the science fiction are not this series’ drawing card, but they are more thoroughly explained and are apparently quite accurate, at least by speculative fiction standards.

I enjoyed it enough that I will continue with the book series, and will carve out some time for the tv show’s new season when that comes out later this year. Highly recommended if you’re into that sort of thing.

Amity Shlaes – Coolidge

Amity Shlaes – Coolidge

Presidents are often unremarkable people. They also often make for uninteresting biographies–Robert Caro’s series on Lyndon Johnson being a notable exception. Biographers also tend to glorify presidents who are in office during wars or economic disasters; most presidential rankings reliably improve when reversed. The best presidents are the ones who do little, and thus do little harm. They help quiet and stable times stay that way. They are also often forgotten—as, frankly, presidents should be. The executive branch has long been too powerful and too glorified.

That is precisely why Coolidge makes an interesting subject, and Shlaes does a good job with the material. Lyndon Johnson had a president’s typical bad qualities almost to the point of caricature; Coolidge’s quiet and calm make him come across as the anti-LBJ.  He almost comes across as though he did not want to be there. Yet he still willingly climbed the ladder: Massachusetts State Representative, Mayor, State Senator (and President of the State Senate), Lieutenant Governor, Governor, Vice President, and President. Pretensions to the contrary, he was a career politician. Part of his reputation comes from the fact that he first became President accidentally, when President Warren G. Harding died unexpectedly in 1923. Coolidge ran for and won his own full term on purpose, though he declined to run for a second.

That contradiction–that “I don’t want to be here, but I made it my life’s work to be here”–is a source of unresolved tension. Coolidge is a bit of a sphinx, and not necessarily in the Silent Cal way he was remembered. Shlaes’ biography focuses more on politics than personality, which suits her subject’s personality. But it would have benefited from more analysis of this part of Coolidge’s character.

Coolidge was also surprisingly tech-savvy. Shlaes notes that not only was Coolidge the first president to give a public address on radio, it was not a one-time experiment. He gave more than 500 radio speeches during his presidency, or roughly two per week, which is quite loquacious for a man nicknamed Silent Cal.

Coolidge was also not the free-market hero some libertarians have made him out to be in recent years. Shlaes is quite plain about this, yet has been accused of writing a free-market hagiography. This made me reluctant to pick up her book, and I’m glad I was not ultimately dissuaded. Coolidge, despite his penny-pinching reputation, did not shrink the federal government. It merely grew more slowly under his watch than under Woodrow Wilson or Herbert Hoover’s. If Coolidge was laissez-faire, it was in comparative terms, not absolute terms. He was also no free trader. He used powers granted him under the 1922 Fordney-McCumber tariff bill, which passed when he was vice president, to raise trade barriers. In proportional terms, Fordney-McCumber was an even larger tariff increase than the more famous 1930 Smoot-Hawley tariff.

To Coolidge’s credit, he was progressive on racial issues by the standard of his time, intentionally declining to nominate known Ku Klux Klan members to any position in his government. Though Coolidge was not particularly vocal on racial issues, that was seen as a deliberate statement at the time.

Coolidge also gave his activist Commerce Secretary, Herbert Hoover, a long enough leash to enact a host of interventionist measures. These presaged Hoover’s doubling of real federal spending, one-third money supply contraction (and accompanying rapid deflation), and Smoot-Hawley that would follow when Hoover succeeded Coolidge.

Outside of politics, Coolidge seems to have been a decent man. This is also rare among presidents. He was a loyal husband, and did not mix very well with the philandering Harding. He was also a caring father, and he lost a son, age 11, while in office. The boy cut himself while playing outside on the White House grounds and the resulting infection, easily curable today with penicillin, was mortal. Coolidge mourned deeply, well beyond what the stoic standards of the time allowed. He never seemed quite the same after the loss. The happiest moment of his presidency seems to have been a family vacation he took out West, far removed from day-to-day affairs. His retirement was similarly slow-paced, though rather lucrative, with several board memberships and a weekly column paying for an upscale home. He would live there until his 1933 death, four years after leaving office.

This Week in Ridiculous Regulations

In a remarkable human achievement, scientists took the first-ever image of a black hole. The effort took eight telescopes on five continents, five petabytes of data, and an algorithm designed by a team led by MIT grad student Katie Bouman. On a smaller scale, a forthcoming executive order could help rein in “regulatory dark matter,” a cosmological term CEI’s Wayne Crews borrowed to describe regulations that “require compliance without ever having been subject to a period of public comment and review.” Meanwhile, rulemaking agencies issued new regulations ranging from model airplanes to the FBI’s environmental footprint.

On to the data:

  • Last week, 66 new final regulations were published in the Federal Register, after 83 the previous week.
  • That’s the equivalent of a new regulation every two hours and 33 minutes.
  • Federal agencies have issued 703 final regulations in 2019. At that pace, there will be 2,476 new final regulations. Last year’s total was 3,367 regulations.
  • Last week, agencies published 455 notices, for a total of 5,758 in 2019. At that pace, there will be 20,275 new notices this year. Last year’s total was 22,205.
  • Last week, 1,286 new pages were added to the Federal Register, after 1,745 pages the previous week.
  • The 2019 Federal Register totals 15,082 pages. It is on pace for 53,106 pages. The 2018 total was 68,082 pages. The all-time record adjusted page count (which subtracts skips, jumps, and blank pages) is 96,994, set in 2016.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. One such rule has been published this year. Six such rules were published in 2018.
  • The running compliance cost tally for 2019’s economically significant regulations currently ranges from $139.1 million to $175.8 million. The 2018 total ranges from $220.1 million to $2.54 billion, depending on discount rates and other assumptions.
  • Agencies have published 24 final rules meeting the broader definition of “significant” so far this year. 2018’s total was 108 significant final rules.
  • So far in 2019, 129 new rules affect small businesses; 9 of them are classified as significant. 2018’s totals were 660 rules affecting small businesses, with 29 of them significant.

Highlights from last week’s new final regulations:

For more data, see Ten Thousand Commandments and follow @10KC and @RegoftheDay on Twitter.

A Bit of Good News

Nothing earth-shattering, but CEI recently named me a senior fellow. I need to order new business cards, but other than that, not much will change as far as day-to-day policy analysis. CEI is a principled organization as well as a great place to work, and I am grateful that they have put up with me for more than a decade so far.