Habeas Quaestus

Truth On The Marionettes

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A lot has been written on how corporations and the ultra rich shape politics. But there is a whole other set of puppet masters in modern U.S. politics: the legal academia.

The beginning of the most fraught debate on government regulation in 2017 happened 14 years earlier when a young law school professor named Tim Wu wrote that net neutrality would “preserv[e] a Darwinian competition among every conceivable use of the Internet so that the [sic] only the best survive.” Not exactly a rallying cry against the free market, and while the issue was hotly debated among legal academics, its first attempt to become law in the United States failed miserably. Net neutrality would not be manifested in the law until 2010 with the passage of boletín 4915 in Chile.

Federal Communications Commission Chair Julius Genachowski, with a Democratic executive branch, decided to follow Chile’s lead despite the threat of Congress pushing back and enacted the FCC Open Internet Order on December 21st, 2010. This order was not net neutrality, at least in the eyes of the policy’s advocates, but it enraged the Republican Party. And on April Fool’s Day, Joshua D. Wright published a post titled “Welcome To Net Neutrality” on a blog called “Truth on the Market.”

Please do not be deceived by the “I refuse to upgrade my WordPress theme from 2006” aesthetic of Truth on the Market. While it may not have the glitz of publications like the Wall Street Journal or the Economist, the blog has been and continues to be a platform for some of the most influential legal minds in the area of administrative law, antitrust, and other realms dealing with corporations.

After they realized they could not make everything in their header alabaster, they decided to use the most appealing color possible: dull burnt orange.

The author who welcomed us to net neutrality for example has bounced back and forth between the Federal Trade Commission and George Mason University in the aptly named Antonin Scalia Law School. Not in obscure positions but ultimately as a Commissioner of the FTC when nominated by Obama and confirmed by the Senate in 2013. Another author, Kristian Stout, recently ran for the New Jersey General Assembly (and lost). Contributor Alden Abbott not only tackles Net Neutrality for Truth on the Market but is also a legal fellow at the Heritage Foundation where he writes such wonderful pieces as “It’s Not Discriminatory to Prohibit Transgender Individuals From Joining The Military.”

But the blog’s two most important contributors on the issue of net neutrality are probably Allen Gibby and Geoffrey Manne. Manne is the executive director of the International Center for Law & Economics, and Allen Gibby is the Senior Fellow in Law & Economics there (and you will notice our failed Assembly candidate works there as well as Associate Director for Policy Innovation). Unsurprisingly, ICLE asserts itself as “a nonprofit, nonpartisan research center…develop[ing] and disseminat[ing] academic output to build the intellectual foundation for rigorous, economically-grounded policy.”

But of course when we have seen ICLE in the past few years, it has very much been on one side of the partisan divide. Here is Manne putting on a conference called “The FTC: Technology & Reform,” starring none other than our old friend (and by then FTC Commissioner) Joshua Wright. Here is Manne (at 24:48) playing counterpoint to Tim Wu’s advocacy for net neutrality. And finally here is Manne, literally as Ajit Pai’s right hand man, bemoaning the 2015 net neutrality rule. In this talk (at 16:00), Pai states that the internet “should be governed by engineers and innovators.” Notice how this sentiment echoes a Truth on the Market blog post by Manne just a few months before:

Thus, it is no small thing that 60 tech companies — including some of the world’s largest, based both in the US and abroad — that are heavily invested in the buildout of networks and devices, as well as more than 100 manufacturing firms that are increasingly building the products and devices that make up the “Internet of Things,” have written letters strongly opposing the reclassification of broadband under Title II.

There is probably no more objective evidence that Title II reclassification will harm broadband deployment than the opposition of these informed market participants.

And a few months before that Manne wrote a reaction to a startup investors’ letter on the blog which has this clunky advocacy for “innovators”:

“Equal” access has nothing to do with it. No startup is inherently benefitted by being “equal” to others. Maybe this is just careless drafting. But frankly, as I’ll discuss, there are good reasons to think (contra the pro-net neutrality narrative) that startups will be helped by inequality (just like contra the (totally wrong) accepted narrative, payola helps new artists). It says more than they would like about what these investors really want that they advocate “equality” despite the harm it may impose on startups (more on this later).

In addition to his dominion over parentheses, Manne clearly has staked a formidable position for himself and his associates at ICLE in the net neutrality debate that eventually paid off. But Manne is not stopping there. A week before the repeal of net neutrality (but knowing full well how the vote would proceed), Manne situated the change as conforming to “[t]he longstanding, global transition from telecom regulation to antitrust enforcement.” This privatization essentially reduces the FCC to the role that the Department of Justice (Antitrust) and the SEC have in preventing corporations from abusing the public – which, as I talked about recently with Jesse Eisinger and Professor William K. Black, is little to none at all.

Oh he worked at Microsoft, that explains the bad design.

But this post is not actually about diving into the issue of net neutrality. Rather, I am writing this to show a great example of building power by intersecting the work inside and outside of institutions. I can mock Truth on the Market’s awful, horrendous design all day but it does not change that it was wielded by ICLE to build an ideological platform that they handed off to their people on the inside. And notably they can do this strategy without at all turning down their libertarian anti-government rhetoric.

A professor of mine once disclosed to me that he was disappointed that students with Leftist politics, who orient to justice rather than profit, are not interested in institutions like the Permanent Editorial Board for the Uniform Commercial Code. Recently, a supervisor of mine praised this same professor for being willing to tread into such institutions. And I thought I should do my part to try to prompt some of you to do that.

We absolutely should be engaging with institutions and creating our own agendas for their future, especially during the time when federal control of the Republican Party is going to rebuff most short term campaigns. We can do this through several of the same tactics used by Manne:

An objection may be raised, particularly to the directive of getting positions in institutions, that this strategy is undemocratic. And while I think there are ways to mitigate this, it is indeed calling on the Left to penetrate and take control of undemocratic institutions. That is the key point here: these institutions already exist, and if we forfeit control of them as a matter of principal, we lose. A more democratic society cannot be birthed while institutions from the Federal Election Commission to the Federal Reserve are able to be used against the Left ceaselessly. The Left needs to shake its discomfort with wielding power and build the intellectual and political synthesis to gain power.

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Otherwise the libertarian David Harbour lookalike will laugh at us forever.
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