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Nicholas Anthony

In the Wall Street Journal, I had a letter to the editor published on June 26 regarding the rise of electronic payments and the fall of cash.

In the article I responded to, Oyin Adedoyin pointed out that businesses have been moving away from cash for a variety of reasons. For example, tapping a card can be much faster than counting out change. Likewise, not having to store large sums of cash on‐​site can reduce the risks of theft (both internal and external). However, as I pointed out in my letter, it’s also worth noting how much the government itself discourages cash use.

For its part, the Internal Revenue Service goes to great lengths to avoid accepting cash. Elsewhere, the law requires citizens to report one another when making cash payments over $10,000. Failure to comply can result in a $25,000 fine or five years in prison. Then there is the Bank Secrecy Act regime to contend with—a regime that broadly labels businesses as “financial institutions” and requires them to report transactions as well.

The list goes on, but the point is simple: cash is becoming less common for many reasons, but we shouldn’t lose sight that some of those reasons are decisions made by the government itself.

Colleen Hroncich

Like many education entrepreneurs, Hannah Holguin had a two‐​pronged motivation for creating her microschool, Masterpiece Academy. A public school teacher for nine years, she was realizing that the system wasn’t serving all students as well as it could. At the same time, her child was becoming school‐​aged. “I felt there was something else I needed to do with my passion for kids, my passion for education, my credentials from college,” she recalls. “And so I started the journey to figure it out. Do I homeschool my children? How do I provide them with a high‐​quality education while also still serving my passion for teaching as well?”

As she began looking into homeschooling, she learned about microschools and hybrid schools. “During that time, I really had to ask myself, ‘What is my philosophy and why does it not work in the system?’ she explains. What I was finding is that I really wanted each child to learn at the pace that was appropriate for them and start at the level that was appropriate with them.”

One of Hannah’s frustrations was having a classroom full of students who were at very different levels and being expected to treat them as if they were at the same level. For example, in her first year teaching grade 9 math, most of her students received Ds or Fs. “I thought, ‘I cannot do this again.’ But at the time I wasn’t brave enough to make my own path,” she says. “So what I did was within the system created a different learning model. I created a self‐​paced, individualized learning model and we were able to change that 75 percent of kids getting a D or F to 75 percent, even 80 percent getting an A,B, or C—and moving on with confidence.”

As she began planning Masterpiece Academy, she harkened back to what she did and didn’t like as a classroom teacher and focused on two core items. “I tried to embody that sort of philosophy when I was starting Masterpiece Academy—to really identify the strengths and areas of growth for each of my students and pick up from there, versus just a one‐​size‐​fits‐​all education,” she says. “And on top of that, as a Christian, it was really hard for me to feel fully myself in the public school system. I wasn’t allowed to talk about the values that I held dearly in my heart. So that was something I wanted to embrace, too, when I stepped out to forge my own path. Masterpiece Academy exists to honor kids as individual learners, but also who they are in Christ.”

Hannah started with just three students because she was expecting a new baby and had decided to slow down enrollment. By the end of that year, she had five students. She began the 2023–24 school year with twelve students and was up to around twenty by the end of the school year. Her numbers are already higher for the upcoming year. She says,

We’re seeing that other parents have stories similar to me and just really want something different and they want something better for their kids. They want their kids to be seen and they don’t want their kids to be a number. And they really like this small environment where kids can get that individualized attention without selling short on any of those components like socialization, a community, a highly qualified teacher. They’re not missing out on any of those components by participating in a microschool.

Masterpiece meets Monday through Friday, 9:00 a.m. to 12:00 p.m. Monday, Wednesday, and Thursday are typical academic days. They start with a morning meeting where they have prayer, announcements, and the schedule. Then they break off, with students going to Spanish class or working on math or reading. The first hour is pretty individualized while the second and third hours include group work, unit studies, and math intervention. There are several “brain breaks” to help the kids recharge, burn off energy, and come back focused for academics.

On Tuesdays, a homeschool co‐​op meets at their church, so Masterpiece students take field trips. Then Fridays are enrichment days, which include things like a knitting club and a drawing club. Hannah opens those offerings to homeschoolers who are not attending academic classes at Masterpiece.

“I really don’t know what’s in store for Masterpiece in the future. I’m just being obedient to God’s call and enjoying the ride. It’s been so fun to feel free,” says Hannah. “The system didn’t just—I don’t want to use the word oppress because it seems intense—but oppress the children by not letting them thrive. I also wasn’t thriving as an educator. It’s just so freeing to be able to have this path where I am free to do what’s best for kids.”

Hannah is confident the system will eventually change, although she doesn’t know if she’ll see it in her lifetime. She’s puzzled by the argument that “public funds belong to public schools.” The funds are to educate the child, she says, “so if the child goes, why do you feel the right to keep the money?” 

She didn’t anticipate being part of that broader discussion when she opened her microschool. “I am now part of this conversation because I’m a front‐​runner in educational freedom. It’s more than just school choice. This is new territory because I am not a politician, but I will fight for these kids,” she says. “I will just be one of the people that show there’s a different way.”

Marc Joffe

Enacting legislation and realizing its purported benefits are two very different things: a lesson now being learned by supporters of the 2021 Infrastructure Investment and Jobs Act (IIJA), known colloquially as the bipartisan infrastructure bill. The law, which dedicated $1.2 trillion to a variety of infrastructure initiatives, has yet to yield many of its expected deliverables.

Recent headlines have exposed two glaring implementation shortfalls. Although the IIJA included $42.5 billion for rural broadband, these funds have yet to add any high‐​speed internet service to the nation’s countryside. And $7.5 billion allocated to electrical vehicle charging infrastructure has produced only eight federally funded charging stations to date.

Among the reasons given for the slow progress on these initiatives include complex requirements for grantees, Buy America requirements, and preferences for unionized employees and those who have been involved with the justice system.

These factors, along with general inflation, are also impacting transit and rail projects championed by IIJA supporters. Some of these projects may never materialize, while others will take a decade or more to complete while serving only a limited number of passengers.

Amidst escalating costs, Houston Metro decided to pause construction of a 25‐​mile bus rapid transit line that would have received $939 million of IIJA funds. Metro staff estimated that the University Corridor BRT’s construction cost would have been $2.28 billion versus a previous estimate of $1.57 billion, and that annual operating and state of good repair costs for the line would have totaled $323 million. This is a lot of money to transport an estimated 19,400 daily passengers.

Another IIJA‐​funded transit project facing cancellation is New York’s Second Avenue Subway extension. After Governor Kathy Hochul pulled the plug on the Manhattan congestion pricing initiative, the Metropolitan Transportation Authority no longer has enough money to cover its $4.3 billion local share of the project, which would have attracted $3.4 billion in federal funds. It remains to be seen whether Hochul will reverse course on congestion pricing after the November election.

If she does not, the Federal Transit Administration will have to allocate IIJA funds to even less worthy projects. And, California, home of the never‐​ending $128‐​billion high‐​speed rail boondoggle, has several to offer.

For example, the FTA is considering a 1.3‑mile rail extension in San Francisco that has a total cost of $8.25 billion. The new segment will extend the lightly patronized Caltrain system further into San Francisco’s empty downtown. Next up would be a second rail tunnel under the San Francisco Bay even though utilization of the current tunnel is well below its 2015 peak. That project alone is likely to cost more than $45 billion and could single‐​handedly absorb all remaining IIJA transit capital funds.

With respect to intercity rail, the largest share of IIJA funds are being devoted to Amtrak’s Northeast Corridor, which is a reasonable choice given the preponderance of passengers located between Boston and Washington. But the high cost of executing projects on this corridor limits the opportunities for service improvements. Instead, Amtrak will be largely treading water.

The biggest IIJA‐​funded Amtrak project involves replacing infrastructure connecting New York and northern New Jersey, including a tunnel under the Hudson River and a bridge over the Hackensack River, which both date from 1910. A second project will replace a Civil War era tunnel west of the Baltimore station.

These two projects will last well into the 2030s (if not longer) and will cost $23 billion (before overruns). Once done, they will provide important reliability benefits but only minimal travel time improvements for those using Acela to get from New York to Washington.

And while passengers wait for the new projects, Amtrak service may well deteriorate. In June 2024, New York area passengers got a taste of what may be ahead as Amtrak service was repeatedly disrupted due to power issues.

So despite Congress appropriating tens of billions of dollars, the nation’s rail and bus passengers are likely to see little in the way of new travel options or speed improvements, especially over the next five years. Once all the money has been spent (by around 2040), it is safe to predict that only a small number of new passengers will be lured away from cars and planes.

Walter Olson

The Supreme Court today narrowed the effective scope of a provision of the Sarbanes‐​Oxley financial reform law under which prosecutors have charged January 6 rioters with obstructing a federal proceeding. It ruled that to be charged, defendants had to have obstructed the integrity or availability of documents, objects, or other things used in the proceeding, not simply impeded it in other ways.

Today’s reading will result in the narrowing of some charges against the January 6 defendants. In no way, however, should it be viewed as a license for lawlessness. In nearly all cases, especially the serious ones, the rioters face other charges not at issue here. And while the ruling may at least slightly narrow the permitted scope of the federal prosecution of former President Donald Trump over January 6, much of Trump’s alleged obstructive behavior may still be chargeable as relating to the integrity and availability of official documents and the like.

The merits were in relatively close balance. The majority, led by Chief Justice John Roberts, relied on venerable canons of construction under which context counts, taking note that the catchall provision occurred amid a list of financial falsification and obstruction of justice offenses. Justice Ketanji Brown Jackson, in concurrence, reviewed the legislative history and concluded that Congress probably did not intend to criminalize a far broader swath of obstruction.

In dissent, Justice Amy Coney Barrett, joined by Justices Elena Kagan and Sonia Sotomayor, championed the stand‐​alone plain meaning of the law’s relevant phrasing. It was a disturbingly broad and capacious plain meaning, to be sure, under which protesters who briefly “impede” some federal agency proceeding, or a sitting of the court itself, by shouting out of turn might be exposed to lengthy prison sentences.

When there is genuine uncertainty as to the meaning of a law, judges help safeguard liberty by applying a narrow reading to avoid criminalizing conduct not clearly marked out as such. That is what the court did today.

Jeffrey A. Singer

Lost in all the news surrounding yesterday’s presidential debate was a disturbing report from the Centers for Disease Control and Prevention (CDC) that only 25 percent of Americans with opioid use disorder (OUD) are receiving medication for the treatment of the disorder. Deborah Dowell and colleagues (including National Institute on Drug Abuse Director Nora Volkow) wrote in their report in the CDC’s Morbidity and Mortality Weekly Report (MMWR):

In 2022, among the 4% of U.S. adults who needed OUD treatment, only 25% received recommended medications. A larger percentage (30%) received treatment without medications. Higher percentages of White than Black or African American or Hispanic or Latino adults received any treatment. Higher percentages of men than women and of adults aged 35–49 years than other adults received medications.

Sarah Wakeman and colleagues published comparative effectiveness research in 2020 that found addiction treatment with either methadone or buprenorphine was the only modality that was associated with reduced overdoses and other “opioid‐​related morbidity.” The researchers compared six mutually exclusive treatment pathways: no treatment, intensive detox combined with inpatient rehab, intensive psychotherapy, methadone or buprenorphine, naltrexone, and nonintensive psychotherapy. The outcome metric was the rate of opioid‐​related overdose or the need for acute severe care during the twelve months following initiation of treatment.

Dowell and colleagues stated in the MMWR, “Increased efforts to engage people with OUD in treatment that includes medications are essential…. Pharmacists and payors can work to make these medications available without delays.”

There’s one problem. Unlike Australia, Canada, and the UK, where people can get methadone treatment from primary care providers who coordinate with pharmacists, people in this country with OUD must queue up in Drug Enforcement Administration‐​approved opioid treatment programs (OTPs) or “methadone clinics.” Before 1972, clinicians in the US would also prescribe methadone to treat their patients with OUD. After President Nixon declared “a war on drugs,” Congress passed the Controlled Substances Act, which led to the present methadone treatment regime.

As Sofia Hamilton and I explained in a Cato policy analysis last year, onerous federal and state regulations, state‐​level zoning and certificate of need (CON) laws, and NIMBYism combine to limit access to methadone treatment for people who need it. Filmmaker Helen Redmond detailed the stigmatization and dehumanizing treatment many patients experience in the OTP system at a Cato policy forum last year.

The CDC report underscores the need to reform federal and state methadone treatment laws to allow patients to access it through primary care clinicians working with pharmacists, as patients do in Australia, Canada, and the UK since the 1970s. Hamilton and I outline this proposal in our policy analysis.

A bipartisan group of senators and representatives have put forth bills in each chamber that would move in this direction by freeing patients with OUD to access treatment from board‐​certified addiction specialists in their offices. They named it the Modernizing Opioid Treatment Access Act (MOTAA). Unfortunately, as our policy analysis explains, there are not nearly enough board‐​certified addiction specialists to meet the demand—assuming they can all accept new patients.

Hopefully, the new CDC report will instill a sense of urgency among lawmakers to make methadone treatment reform a priority.

Walter Olson

In today’s Harrington v. Purdue Pharma, the Supreme Court confronted a recurring issue in the context of mass legal settlements: Should the courts uphold individualized justice, in the form of each plaintiff’s right to pursue each defendant, even if rough justice of a more collective style would hold out the promise of fuller and fairer victim compensation? In a five‐​to‐​four split, with Justice Neil Gorsuch writing for a majority that included conservative justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett and liberal justice Ketanji Brown Jackson, the Court chose to follow the individualist route it has laid down in some earlier cases.

A bankruptcy court had approved a settlement of opioid maker Purdue Pharma’s liabilities under which executives from the Sackler family would contribute between $5.5 and $6.0 billion to the settlement fund and, in exchange, would escape further liability—a “non‐​debtor release,” since they were not themselves bankrupts. During an extensively negotiated process, the Court found that individual claims against the executives would be chancy at best and subject to various defenses and that there was a significant chance that the result of prolonged litigation would be to make much less money available to the bankruptcy claimants, which included more than 100,000 individuals suing over opioid addiction as well as states and municipalities. The pool of money obtainable from the Sacklers might heavily overlap the pool of money obtainable from Purdue; worse, money from individual lawsuits might go to whichever single plaintiffs won the “race to the courthouse” rather than being apportioned fairly among similar claimants.

For those reasons, the overwhelming majority of individual claimants, along with all fifty state attorneys general, wanted the settlement to be upheld. “Today’s decision is wrong on the law and devastating for more than 100,000 opioid victims and their families,” wrote Justice Brett Kavanaugh in a dissent joined by Chief Justice John Roberts and Justices Sonia Sotomayor and Elena Kagan.

The problem was—in the eyes of Justice Gorsuch’s majority—that to get the money on the table, the bankruptcy court had to tolerate cutting corners on the vindication of individual legal rights. In particular, it would extinguish claims against Sackler family members that some individual claimants might have had both the legal right and the inclination to pursue without putting those family members through the rigors of the bankruptcy process.

To me, today’s decision echoes Amchem Products Inc. v. Windsor (1997), which arose in the context of mass tort settlement. There, a majority led by Justice Ruth Bader Ginsburg hewed to an individualist conception of rights and obligations, even though, in the view of part‐​dissenting Justices Stephen Breyer and John Paul Stevens, a rougher managerial approach to justice would have better served asbestos claimants as a group. 

This makes it especially interesting to see Justice Jackson taking the individualist side. There is little doubt that Justice Breyer, her mentor, would have joined the Kavanaugh side in approving the settlement as the best that could be done under the circumstances to solve (in Kavanaugh’s words) a “collective‐​action problem” of large social dimensions. Jackson was assuredly the deciding vote today in more ways than one.

I wrote about individualist versus managerial approaches to batch settlement in 2021 (after Walmart v. Dukes) and in 2020 (with comments specific to the opioids litigation particularly critical of its state‐​recoupment component). “Federal court procedure holds out a promise of individual hearing and individual adjudication that must not be lost in the felt practical need to aggregate litigant groups and move them by the hundreds and thousands as if on a game board,” I wrote then.

Commentators who berate the Court as supposedly friendly toward plutocracy might have been surprised to see the most conservative justices side against the Sacklers. But as usual, anti‐​business which-side-are-you-on?-ism proves itself a poor way to predict the jurisprudence of the high court.

Adam N. Michel

In the first presidential debate of the 2024 cycle, former president Donald Trump is likely to talk up some version of his proposals to raise tariffs on Americans. He has previously suggested using the revenue to replace the income tax, lower the corporate income tax, and extend the 2017 Tax Cuts and Jobs Act (TCJA).

Using tariffs to offset other tax cuts is economically illogical. Trump has tried a version of this before. His first‐​term tariffs undermined the economic benefits of the 2017 tax cuts, blunting the effects of his signature legislative accomplishment.

The Trump tax cuts—particularly the business tax cuts—were designed to boost investment, which in turn drives economic growth and wage gains. Figure 1 shows that Trump’s trade war eroded some of the early success of the 2017 tax cuts.

The top panel shows Congressional Budget Office (CBO) economic forecasts for investment growth from June 2017 (pre‐​TCJA) and April 2018 (post‐​TCJA), compared to actual investment growth. The second panel shows the annual change in revenue from federal customs duties, a measure of the increase in tariff rates.

The CBO projected a significant and sustained increase in investment growth compared to its pre‐​TCJA baseline. The orange line shows that actual investment growth exceeded the CBO’s post‐​TCJA forecast for three quarters following the tax cuts. This is what should be expected because the CBO uses lower‐​bound estimates of investment response to tax cuts.

At the end of 2018, investment growth slowed rather dramatically, falling below the post‐​TCJA forecast. In its January 2020 economic outlook, the CBO notes that the slowdown in business investment “was due, in part, to the suspension of deliveries of the Boeing 737 MAX aircraft, rising business uncertainty about future trade policies, and reduced drilling activity” (emphasis added). When tariff revenue spiked, business investment growth plummeted.

Cutting taxes should only temporarily increase the growth rate of investment until a new, larger capital stock is reached. As shown in Figure 1, the CBO projected an initial boost in the growth rate of new investment, gradually falling back to the previous trend. The temporarily higher growth rate leaves behind a permanently higher total investment level. Similarly, the high growth rate in duties revenue left behind permanently higher tariffs. Between 2017 and 2020, the average tariff rate on dutiable imports increased from 4.7 percent to 8.9 percent.

More formal analysis has made similar observations. The Tax Foundation found that Trump’s tariffs on steel, aluminum, and China eroded about 12 percent of the total long‐​run impact of the TCJA before factoring in other trade actions, retaliatory tariffs, and broader trade policy uncertainty. Academic research also shows that trade policy uncertainty and tariff announcements depress business investment. Other work from the Tax Foundation and the Penn Warton Budget Model estimate that Trump’s imposed and proposed tariffs could have entirely eroded the benefits of the tax cuts to all but the highest‐​income individuals (because the cost of tariffs falls more heavily on lower‐​income people).

There are many other reasons to be against imposing tariffs on American consumers beyond the offsetting economic impact of other tax cuts. For example, Tax Foundation’s Erica York and Cato’s Scott Lincicome have explained in detail why it is mathematically impossible to replace the income tax with tariffs, how tariffs ultimately backfire on domestic industries and fail to meet their primary policy goal, why tariffs lead to cascading protectionism and corruption, and how tariffs ultimately raise costs for American consumers.

But for Trump and other Republicans, perhaps the most compelling reason to think twice about imposing new tariffs is that the last time tariffs were paired with tax cuts, they blunted the expected economic benefits.

David Inserra

The Supreme Court decided the Murthy v. Missouri case by declaring that those suing the government lacked standing. I’ll let lawyers unpack what this means for standing in First Amendment jurisprudence, but for policymakers, the decision shows that we desperately need transparency into the ways that our government is communicating with private companies.

For those who haven’t been following this case closely, Murthy v. Missouri— previously known as Missouri v. Biden— centered around claims by several social media users and state governments that federal actors and agencies were pressuring social media companies into removing the First Amendment–protected speech of the users. These users and governments point to various revelations via the Twitter files, congressional investigations, and legal discovery that showed that the government was frequently communicating with social media companies in a variety of ways.

The most egregious of these communications were instances of White House officials swearing at social media companies for their perceived inaction on government requests. In another instance, a Biden administration official seemed to issue a veiled threat against Facebook, stating that the White House has “been considering our options on what to do about [Facebook’s supposed lack of transparency about its vaccine misinformation problems].”

From internal company emails, we see evidence that social media companies interpreted many of these communications as threats. Meta’s senior leadership acknowledged that it had compromised its standards “due to pressure from an administration” and that it needed to change its policies to stay on the Biden administration’s good side given it had “bigger fish to fry.” YouTube officials similarly indicated they felt the need to keep the Biden administration happy since they wanted “to work closely with the administration on multiple policy fronts.”

A lot of the other communication between the government and social media companies, though, were far less aggressive. In many cases, government actors were flagging content for social media companies to review under their content policies. In other cases, social media companies were asking the government for information about a current event or issue. However, the Court found that the individuals and state governments could not bring the case based on this evidence.

The Court rightly found the record to be messy and noted that “while the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices, the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment. The Fifth Circuit, by attributing every platform decision at least in part to the defendants, glossed over complexities in the evidence.” This conclusion acknowledges that the government was involved in some of the platforms’ decisions and that the platforms often—but not always—exercised their own judgment.

I and others have argued that the Court should have at least condemned the most clearly unacceptable intrusions of government power that denied social media platforms their right to exercise their own judgment in all cases. But drawing a perfect legal line that prevents all government abuse and also permits the acceptable forms of communication between the government and private actors is as difficult as this record is messy.

Instead, this decision proves that we need radical transparency into the demands being made by government officials of private companies. When government actors can behind closed doors pressure private companies to silence the speech of its users, those users will have a hard time ever knowing that they were censored and establishing standing in the courts. This pressure may be veiled or vague and it may exist amid a lot of more permissible government speech like in this case, but without transparency, we will almost never know when it occurs.

Cato experts have written about what such a transparency policy should look like. Government actors would be required to report any request they make that seeks to have private actors limit or deny services based on First Amendment–protected speech. These reports would be collected by the Office of Management and Budget and made public, save for exceptions for privacy and security already found in the Freedom of Information Act and the Privacy Act. Such a scheme would be best put in place by Congress but could even be implemented via executive order.

Notably, this goes beyond just social media companies as the Supreme Court’s other recent jawboning case—NRA v. Vullo—shows that governments can coerce all sorts of private actors, including banks and financial institutions. In that case, the jawboning was far clearer as the New York insurance regulator explicitly told insurance companies that they would be held liable for providing insurance to gun rights organizations, which resulted in insurance companies dropping the NRA.

This government transparency proposal would drag censorial government demands into the sunlight. It would provide Congress with the evidence it needs to act as a further curb on executive abuse and give potential victims of government jawboning the proof they need to establish standing in the courts.

It’s also worth noting that this sort of transparency is focused on forcing the government to show its demands. This is very different than other tech transparency proposals that would force companies to prove that they are being fair or viewpoint neutral or taking “hate speech” seriously. If anything, such proposals are just ways to paint social media companies in a bad light that lawmakers can then use to jawbone those companies into doing what they want.

The decision in Murthy v. Missouri shouldn’t be read as support for government censorship but as a recognition that First Amendment litigation in response to pressure rather than more blatant censorship may not be sufficient to stop the government’s invidious actions. Still such actions should raise significant concerns regardless of the administration or intentions behind them. It now falls to policymakers in Congress and the executive branch to consider the ways they might commit to government transparency so that all Americans, regardless of administration, can be secure in their right to free expression without fears that the government will dictate decisions around what speech private companies may allow.

Romina Boccia

Few challenges loom as ominously as the exploding national debt. The US government has grown into an ever‐​swelling leviathan that’s increasingly oriented towards doling out cash and health benefits to America’s electorally potent seniors—without consideration of the burden this imposes on younger working Americans. The result: unsustainable spending that demands an innovative solution that works.

Among the more promising ideas to gain traction recently is my proposal for a BRAC‐​like fiscal commission—a mechanism reminiscent of the Base Realignment and Closure process that once effectively restructured US military infrastructure by eliminating obsolete bases and freeing up resources for new growth. An idea that’s both elegant in its simplicity and potent in its potential, a BRAC‐​like fiscal commission may just be the missing piece in bending the spending and debt curve before the US enters into a debt doom loop of rapidly accelerating interest costs and inflation.

I was invited to share my proposal at the Coolidge Conference on Debt, an event steeped in the values of prudence and restraint that defined Calvin Coolidge’s presidential tenure. I was beyond thrilled to join an esteemed panel with two of my heroes, the Hon. Paul Ryan, former Speaker of the House of Representatives, and Steve Forbes, chairman of Forbes Media, moderated by Ambassador Richard Graber, president and CEO of the Bradley Foundation. During Q&A following our panel, a student rose to ask Ryan his thoughts about my BRAC‐​like commission proposal. The student asked:

“What is your opinion on Ms. Boccia’s BRAC plan? I was personally really enamored by it. I was wondering whether you guys can see any issues or potential problems with that kind of commission.”

Ryan’s response, delivered with his characteristic blend of erudition and practicality, provides a compelling lens through which to view this proposal. His insights, formed by years at the nexus of policy and politics, illuminate both the promise and the pitfalls of a commission designed to shield legislators from the details of making tough decisions while still ensuring that legislators are ultimately responsible for spending and tax decisions—wielding the power of the purse—as enshrined in the US Constitution.

Paul Ryan responded:

On Romina’s bill, the toughest vote is the initial one. It’s where you, as someone who has counted votes for a long time, identify where the difficult vote lies; it’s at the beginning, with just the creation of this thing. Because if it self‐​executes, it’s more likely than not that it will occur, and you don’t have to delve into the gruesome details. You’re essentially saying, ‘I want to solve the problem and be vague about what the solution is.’

To her credit, that places the tougher but easier vote at the start, and either way, you’re better off if you fast‐​track it. If you require Congress to vote on it, and you can’t dodge it through a filibuster, that’s a process, a step in the right direction. Obviously, you’re already in a better position with the design of that policy.

What gives me pause, and what I’d like to think about more—and I’d be curious to hear what Jeb or Chris, the guys who served with me in Congress, think—is that … I mean, I got BRAC‐​ed. I lost a base in Milwaukee, a fighter wing; you know, I blame Barack, and that’s just how it worked in those days. So, it’s true, that approach works.

But on Medicare and Social Security, it’s pretty inconceivable to me that there wouldn’t be a vote of disapproval; it’s inconceivable that no one in Congress would say, ‘No, we’re not going to allow this.’ So, I think that vote will happen anyway, and it would be to disapprove of it. And I don’t know if it’s that much of a different vote, approval or disapproval. However you vote, it’s going to affect the outcome, and as a politician, you’re going to be blamed for the vote, no matter what.

So, let’s just say, ‘I’m not going to vote to disapprove of this cut to Medicare or Social Security benefits.’ You’re still going to have ads run against you; you’re still going to be blamed. So, I think it’s almost the same thing. What you’re doing is shifting the climax to the end and making it more likely that you’ll reach a resolution. That’s probably what you achieve with that versus other approaches. And the further you progress towards a solution, the better off you are.

So, you’re going to have that non‐​committal vote in both the House and the Senate, no matter what, I think. And the question is, are there events, like Steve and I were just discussing, such that critical members can honestly say, ‘We have a crisis in front of us, and if we don’t solve this problem, the collateral damage—the dollar, your benefits, the benefit cuts—that’s what they have to weigh it against.’ So, that’s the only thing that I think resolves this: a politician can say, ‘It’s either chaos or this plan you don’t like, but that’s better than the chaos. I’m going with this plan.’ That’s essentially how you defend it.

Paul Ryan’s response to my proposal underscores the likely necessity of a crisis to create the political environment for a BRAC‐​like fiscal commission to proceed. While Ryan acknowledges the strategic merits of fast‐​tracking decisions and circumventing filibusters, the former Speaker of the House also highlights that contentious big issues like Medicare and Social Security reform might still face inevitable votes of disapproval. Politicians must weigh the plan against the potential chaos of inaction, framing it as the preferable option over a debt‐​driven fiscal crisis to secure support. Ultimately, a perceived crisis may be the crucial factor in compelling Congress to embrace any pragmatic approach to fiscal reform.

This raises another question: whether an independent commission process will produce an outcome that respects individual liberty and secures the foundations for economic growth and prosperity better than political decision‐​making during a crisis would. As Cato’s Ryan Bourne has argued:

[P]olicymaking during emergencies can be extremely destructive. If we were to experience an acute fiscal crisis, it seems highly likely that politicians would panic and reach for measures like wealth expropriation to ease the inevitable cocktail of defaults, rapid deficit reduction, and higher inflation. That erosion of property rights would undermine people’s willingness to save and invest in the United States.

I place greater confidence in the commission to safeguard liberty and promote economic prosperity more reliably than the volatile nature of crisis‐​driven decision‐​making by politicians with their pants on fire.

See here for my remarks, explaining the BRAC‐​like fiscal commission and how it would work in greater detail.

Will Duffield

The government can’t command social media platforms to remove disfavored speech. But when does informal government speech notifying or suggesting cross the line into unconstitutional pressure or coercion? We still don’t know, because today, the Supreme Court reversed and remanded the Fifth Circuit’s decision in Murthy v. Missouri, rejecting the much‐​watched jawboning case for lack of standing.

Vaccine‐​skeptical doctors, supported by the states of Louisiana and Missouri, sued the Biden administration and various federal agencies over government exhortations to platforms to do more about COVID-19 misinformation. The court found that plaintiffs failed to plead a concrete injury caused by government pressure and redressible by the court. While facially a setback to efforts to prevent government censorship by proxy, the court’s decision sets future jawboning litigation on the right precedential track and showcases the pressing need for legislative action to impose disclosure on government communication with social media platforms.

While the court has not done away with social media jawboning today, it has set the stage for its end, and an end on ultimately speech‐​friendly terms. In NRA v. Vullo, decided at the end of May, the court found impermissible jawboning in the demands of a NY state banking regulator by applying the Bantam Books v. Sullivan standard. Relying on Bantam Books, it held that the government violates the First Amendment when it is “reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff’s speech”. Alito’s reliance on Bantam Books in his Murthy dissent indicates that the standard for finding social media jawboning is coming into focus.

Although Justice Barret does not explicitly rely upon Vullo or Bantam Books when delivering the opinion of the court, she puts the Fifth Circuit’s loose “significant encouragement” standard half‐​pulled from Blum v. Yaretsky to bed. Coupled with Alito’s decision to use Bantam Books and Vullo rather than attempt to resuscitate the Fifth Circuit’s Blum standard, Barrett’s approach indicates that jawboning cases will be decided around coercion rather than the significance of encouragement.

What remains to be decided is exactly how coercive government communications must be to violate the Constitution’s strictures. Vullo turned in some sense on the believability or actionability of government threats, a less important aspect of Bantam Books, but under either variation of the coercion standard, a clearer, smaller case is likely to bring justices Barrett and Alito together.

The real hurdle is standing and redressability, or how establishing standing and redressability shapes the sort of coercion the court is willing to address. The court must be able to offer a remedy likely to prevent future harm to plaintiffs. The injunction at issue here was deemed unlikely to do so given the loose connection between government communications and platform action.

“[W]ithout evidence of continued pressure from the defendants, it appears that the platforms remain free to enforce, or not to enforce, those policies—even those tainted by initial governmental coercion.”

Thus, in social media jawboning cases, standing and redressability effectively create a shadow requirement that coercion be directed toward particular speakers, and ongoing or likely to persist. Absent a clearer, longer term pattern of demands, the attenuation of plaintiffs injuries make it unlikely that an injunction targeting government officials will spur platforms to undo past content policy decisions. The fact that Facebook had limited some of the plaintiffs’ content before being jawboned seemed to weigh heavily on the court’s judgment. Unfortunately, even if a one‐​off demand shapes platform policy for everyone, these lingering effects won’t be captured by a single plaintiffs’ discovery of how the demand affected them.

From a standing standpoint, it is a problem that most plaintiffs were not named in the most obviously coercive communications. But these messages, sent privately by White House Communications Director Rob Flaherty and advisor Andy Slavitt, were unlikely to have been uncovered without the participation of such a wide set of plaintiffs. Nevertheless, the bevy of plaintiffs, claims, and potentially affected government agencies at play in the case always cut against a full hearing on the merits. Hard cases may make bad law, but too‐​large cases often make no law at all.

The court’s decision leaves obvious room for platform litigation, or mere participation in litigation around the issue. A suit by platforms would obviate the attenuation problem. For a social media firm, even a single, general threat may create expectations of direct future government retaliation. Such a pleading would be much more in line with Bantam Books, which was brought by publishers with longstanding commercial relations with the coerced distributor, who while not party to the suit, testified that he had stopped carrying the plaintiff publishers’ books in response to government threats. Even a small platform might be able to show a much more direct and redressible injury.

Ultimately, the court’s decision to reject Murthy for lack of standing lays clear the pressing need for disclosure of government communications with social media platforms. If bundled claims and the inchoate or general demands uncovered by state plaintiffs’ discovery and congressional fishing don’t pass muster, then more granular, regular reporting will be required to link government requests to platform action and lay bare the “continued pressure” the court requires.

Andrew Grossman and Kristen Shapiro have detailed the case for such a bill in a Cato Briefing Paper titled “Shining a Light on Censorship: How Transparency Can Curtail Government Social Media Censorship and More,” and I have published a corresponding model bill text. This approach remains the best way to discourage and discover jawboning, and in light of Murthy, the best way to ensure that future jawboning victims have the standing they require to prevail in court.