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When It Comes to Fighting Social Media Bias, More Regulation Is Not the Answer
By Adam Thierer
Conservatives have traditionally viewed the administrative state with suspicion and worried about their values and policy prescriptions getting a fair shake within regulatory bureaucracies. This makes their newfound embrace of common carriage regulation and media access theory (i.e., the notion that government should act to force access to private media platforms because they provide an essential public service) somewhat confusing. Recent opinions from Supreme Court Justice Clarence Thomas as well as various comments and proposals of Sen. Josh Hawley and former President Trump signal a remarkable openness to greater administrative control of private speech platforms.
Given the takedown actions some large tech companies have employed recently against some conservative leaders and viewpoints, the frustration of many on the right is understandable. But why would conservatives think they are going to get a better shake from state-regulated monopolists than they would from today’s constellation of players or, more importantly, from a future market with other players and platforms? I pose that question not to be snarky or disregard conservative concerns about the behavior of some of today’s leading tech platforms. Rather, I ask it as someone who has spent 30 years working closely with conservatives on these issues (including almost a decade at the Heritage Foundation) and who has long appreciated how their thinking about the administrative state and regulation is rooted in two facts that still ring true, but which they seem to have forgotten.
Common Carriage Leads to Rent-Seeking
First, conservatives appreciate the lessons of public choice economics and understand the dangers of rent-seeking and regulatory capture in particular. History shows that both of these phenomena have been serious problems when common carriage regulations were implemented.
Alfred Kahn was the preeminent regulatory economist and historian of the past century, and his life’s work culminated in the publication of the massive two-volume book “The Economics of Regulation.” In this book, he dissected the many technical shortcomings of the regulatory process, especially as it pertains to common carriage regulation, rate hearings, price controls and the resulting various barriers to entry created by this system of rules. Kahn understood this process better than anyone else because he not only studied it as an economist, but lived it—first as a state regulator and then as chairman of the Civil Aeronautics Board during the Carter administration in the late 1970s.
Perhaps Kahn’s most important lesson relates to the human element of how common carriage regulation typically works in practice. He noted that the fundamental problem with the process is the inevitability that a symbiotic dependency will develop between powerful regulators and the large firms they control. “When a commission is responsible for the performance of an industry,” Kahn noted, “it is under never completely escapable pressure to protect the health of the companies it regulates, to assure a desirable performance by relying on those monopolistic chosen instruments and its own controls rather than on the unplanned and unplannable forces of competition.”
This wasn’t due to outright graft. The explanation was more subtle: “Responsible for the continued provision and improvement of service, [the regulatory commission] comes increasingly and understandably to identify the interest of the public with that of the existing companies on whom it must rely to deliver goods,” Kahn concluded.
This reality has haunted common carriage regulation for the entire past century. All the grandiose plans and wishful thinking about the theoretical benefits of the system have been undermined by the simple reality that regulators and big companies need each other. This silent, symbiotic pact hardens over time and contorts the regulatory process into a cozy old boy network. This crony system has not advanced conservative viewpoints or causes in the past—and there isn’t much reason to think it will do so in a bold new world of digital media regulation.
Second, beyond public choice realities, conservatives also understand basic economic principles and they appreciate the role that incentives play in the world of administrative regulation. What’s more, they understand the simple truism that trade-offs exist and that unintended consequences often haunt even the most well-intentioned of regulatory efforts.
Conservatives are certainly aware of the fundamental trade-off at the heart of common carriage regulation and have pointed to it many times when arguing against net neutrality regulation: Common carriage regulation is essentially a declaration of surrender on competition and innovation. Why? Because it inevitably preserves whatever the status quo is at the time and therefore is rooted in the belief that consumers will have to settle for today’s players and platforms going forward. That doesn’t leave a lot of room for new and innovative players to create better products.
In this mode of reasoning, all that is left to do is optimize the suboptimal by regulating current platforms as if they are all that consumers will ever have to choose from. But why would conservatives fall prey to such static thinking today? They have traditionally been tireless defenders of market dynamism and Schumpeterian “creative destruction.” They should not so easily give up on the idea that new technologies and alternative platforms could emerge.
All of this is not to say that the biggest social media platforms have been behaving admirably. Indeed, there are plenty of legitimate conservative complaints about overzealous takedown policies and lack of transparent standards among today’s leading digital tech platforms. But markets need not be perfect to be preferable to government regulation, and that is especially true when talking about giving massive government bureaucracies more money and power to regulate speech. That is very dangerous business—and a development that is not likely to help conservative causes.
One could imagine a new Digital Media Authority (or perhaps just an even more powerful Federal Communications Commission) taking on the task of enforcing new common carriage requirements for social media and digital platforms. It is hard to imagine that situation working out any better for conservatives now than it did in the broadcast era. Are we to believe that five unelected FCC bureaucrats (or the apparatchiks at a new agency) will somehow be able to achieve a “fair” balance of “truthful” viewpoints that results in conservative viewpoints coming out on top?
Perhaps some conservatives instead hope tech bias can all be handled in the courts instead of at agencies. But that also is a horrible approach . To begin with, the wheels of justice grind very slowly, and so waiting months (or years) for the resolution of speech disputes isn’t going to help conservatives much in the short term. Meanwhile, empowering the courts means empowering lots and lots of lawyers—not traditionally a solid conservative base, to say the least.
Perhaps conservatives hope that, if all else fails, putting enormous public pressure on private platforms will help force them to be more open to conservative perspectives. Sometimes that sort of intimidation (often called “jawboning” or “regulation by raised eyebrow”) works at the margins to alter the behavior of private actors in subtle but important ways. This has not been a strategy that conservatives have traditionally favored, however. To the extent that jawboning really works, it often subverts traditional policymaking safeguards and leads to more unaccountability and extraconstitutional behavior by regulators in particular. This can undermine the statutory intent of Congress and the due process rights of private parties.
The better answer here is for conservatives to push—as they long have—for more competition and choices, not more regulation and litigation. The administrative state is not the friend of conservative perspectives and it is a real stretch to imagine that existing or new regulatory agencies and bureaucrats are suddenly going to become more sympathetic in coming years.
Toward that end, conservatives should remember what President Ronald Reagan said in his 1987 veto of legislation to reestablish the Fairness Doctrine: “History has shown that the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and competition that the First Amendment sought to guarantee.”