The Nanny State Is Not Helping

By Noah Rothman

Wednesday, April 28, 2021

 

This week, the Washington Post reports, the Biden administration will propose a total ban on mentholated cigarettes and “other flavors in mass-produced cigars.”

 

The move to prohibit access to flavored cigarettes, cigarillos, and other tobacco products, the Post adds, has long been sought by anti-smoking advocates and “civil rights groups.” Prohibition advocates cite the disproportionate harm these products do to minority communities—specifically, African Americans.

 

According to the most recent data compiled by the Centers for Disease Control and Prevention, a majority of smokers who begin smoking as minors or young adults developed the habit by smoking menthols first. A staggering 93 percent of black adults who smoke started out as menthol smokers. In 2014-2015, nearly 77 percent of African American smokers preferred menthols compared to 35 percent of Hispanics and just one-quarter of whites.

 

Advocates of a ban insist that the marketing of mint-flavored tobacco products conspicuously targets black consumers, though whether that’s a result of advertising or if tobacco companies are just targeting their key demographics is a chicken-and-egg debate. But while mainstream media is replete with accounts of African-American public health activists demanding a federal ban on these products, not all self-described civil-rights advocates are so gung-ho. Among them, National Action Network founder and MSNBC host Al Sharpton.

 

Sharpton argues that banning flavored tobacco products will only push their sale into the black market, criminalizing conduct that is presently legal and making criminals out of otherwise law-abiding citizens. Moreover, making menthols into contraband increases the likelihood of police interactions with civilians, in which tensions are high, signals can be misread, mistakes can be made, and unnecessary violence could ensue.

 

The ACLU appears to agree with Sharpton’s assessment. A menthol ban will “will (1) disproportionately impact people and communities of color; (2) trigger criminal penalties, prioritizing criminalization over public health and harm reduction; and (3) instigate unconstitutional policing and other negative interactions with local law enforcement,” the organization writes. African Americans and advocacy groups like local NAACP outfits are increasingly speaking out against what they regard as dangerous paternalism from their political allies. Why are they being summarily dismissed by those who believe themselves so uniquely attuned to black interests?

 

As is so often the case with elite efforts to restrict access to harmful but legal products, there is a heavy dose of inter-class contempt on display. Cigarette bans are unlikely to affect, be felt, or even be seen by the people trying to drive these products underground. Cigarette smoking is most prevalent among adults at or below the poverty level and among those with less than a high-school education. “Blue-collar workers are more likely to start smoking cigarettes at a younger age and to smoke more heavily than white-collar workers,” the CDC notes.

 

By contrast, tobacco products without flavors (which are favored by whites) and cigars (which remain popular among classes and interests that are more visible to lawmakers) are subject to no additional restrictions. Why? What could be charitably characterized as well-meaning overprotectiveness could just as easily be denounced as condescending and discriminatory favoritism.

 

Among those possessed of immense self-regard, the incidences of lung cancer among poorer and less educated Americans are a direct reflection of an inability to make good choices. If people can’t, or won’t, be led to water, it’s up to authority figures to drag them kicking and screaming into a more salubrious lifestyle. But sometimes, the kicking and screaming actually works.

 

In August 2020, California Gov. Gavin Newsom signed a law banning the sale of any flavored tobacco product or nicotine vape (which is not a tobacco product but is regulated like one). Like Biden’s FDA, the move was framed as an overdue effort to remove the boot of Big Tobacco from the necks of the state’s mistreated minorities. But a rapid signature drive was soon organized in support of a referendum to overturn the new prohibition. Despite the obstacles presented by the pandemic and its restrictions, the move succeeded. California’s voters will now get to vote in an up or down referendum on the ban in 2022. And despite the state’s famously crunchy reputation, Golden State voters have overturned the diktats of the imperious social engineers in Sacramento before.

 

But unlike California’s ban, the law of unintended consequences is not subject to repeal. Like every experiment with prohibition, the federal government’s proposed remedy to the excesses of liberty will backfire. The only question is how much damage the nanny state will do in the interim.

The Trouble with the Tax Code Is the Tax Code

By Kevin D. Williamson

Wednesday, April 28, 2021

 

If you are reading this, President Biden, I’d like to make a bet with you: If the IRS does get that $80 billion bump in its enforcement budget you’re asking for, I’ll wager that the agency still won’t manage to collect that $700 billion in illegally dodged taxes you promise it will. The main change would be a much nicer charcuterie tray at the next IRS senior-staff retreat.

 

But even if the IRS hits that number, it won’t amount to much — which is a truly weird thing to write about $700 billion.

 

In one sense, spending $80 billion to collect $700 billion worth of taxes due looks like a good investment. But as the Wall Street Journal reports, that $700 billion — over a decade — would represent just a 10 percent reduction in the officially estimated “tax gap,” the difference between what the IRS actually collects and what it believes it is legally entitled to collect. Which is to say, Biden’s proposal would mean — at best — a 10 percent improvement in exchange for a funding increase of more than 50 percent. Spending 50 percent more to get 10 percent better performance is fine if you’re building race cars, but not great if you’re running an agency in an already-bloated federal government.

 

If we take IRS commissioner Charles Rettig at his word — and you should never take an IRS commissioner at his word — then the actual tax gap is far larger than the most recent official estimate: some $1 trillion a year, or $10 trillion over a decade. (I asked the IRS to tell me how that figure was arrived at, and the agency has so far declined to comment. I’ll let you know if they enlighten me.) Clawing back a mere $700 billion out of $10 trillion in taxes owed would amount to, according to my English-major math, bupkis.

 

But there may be even less low-hanging enforcement fruit than you’d think.

 

Contrary to much of what you read in the press, the United States is marked by relatively high levels of voluntary compliance with the tax code. Unlike some of our European cousins — lookin’ at you, Spiros and Giovanni — we Americans are not irrepressible tax cheats. Much of the tax-avoidance bewailed in prolier-than-thou New York Times columns is completely legal tax avoidance, the result of individual and corporate strategies that wring the maximum savings out of our complex and sometimes ambiguous tax code. You may not like that such strategies are legal, but they are legal, which means that we are not going to get rid of them by increasing the enforcement budget, since in these cases there are by definition no legal violations and hence no cause for enforcement as such.

 

It is likely that the most common kind of illegal tax evasion is of the petty, apple-stealing variety: You will not be shocked to learn that America’s bartenders and waitresses and cash-only lawn-care professionals do not reliably report 100 percent of their income to Uncle Stupid, while there are a great many small-time landlords whose rental properties somehow manage never to turn a profit and any number of self-employed people and small-business owners who sometimes stretch for a deduction.

 

But President Biden is interested in none of these — he wants stricter enforcement applied only to people or businesses earning $1 million a year or more. Why? Because it is bad politics for him to take equality under the law seriously and go after low-income tax cheats in the same way he intends to go after high-income crooks. But 1 million waitresses cheating the government out of $1,000 in taxes is, as a matter of revenue — and this is supposed to be about revenue, right? — the same as ten shady businessmen each cheating the government out of $100 million in taxes: $1 billion is $1 billion is $1 billion, however you slice the pie.

 

Of course we should fund the IRS at whatever level is necessary for it to do the work we give it, and it inevitably will prioritize high-dollar cases because the revenue-to-work ratio is more attractive. But maybe we are just giving the IRS too much work. The IRS should enforce the law, but if the tax code were simpler, then it would be less difficult and less expensive to enforce, voluntary compliance probably would be higher, and there would be fewer opportunities for shenanigans of the barely legal variety.

 

We might — but probably won’t — improve collections by 10 percent with that big bump in funding. But mightn’t we also improve collections by simplifying the tax code? If both tax collectors and taxpayers were subject to a simpler and more straightforward tax code, enforcement would be easier — and we probably would need less of it. For years, conservative reformers have advocated a flatter, simpler code with less favoritism and fewer carve-outs for special interests, and that remains the best approach.

 

One step toward radical simplification would be to get rid of the corporate-income tax entirely. Corporate-tax accounting is ridonkulously complex, and the code is full of sweetheart deals for politically connected firms and industries. But we don’t really need to tax corporate income at the corporate level at all, because the money that businesses take in goes back out the door in generally taxable ways: as wages and dividends that are taxable income for their recipients or as business expenses that are somebody else’s taxable income. Money reinvested into a business raises the business’s value, ultimately producing capital gains that can be taxed.

 

The business of the Internal Revenue Service is revenue. And that is what the tax code should be about — not some half-educated nincompoop’s conception of “social justice.” The best tax code is the one that collects the necessary revenue while inflicting the least economic damage. But even that relatively simple task is beyond the current capabilities of the U.S. government, which cannot manage to collect revenue sufficient to fund its spending even with the invasive and complex code we have.

 

(This would be less of a challenge if the government spent less.)

 

While the United States is a relatively low-tax country by the standards of the developed nations, it is not a radically low-tax country: We’re in the same neighborhood as Japan and Australia, with taxes neither as high as Norway nor as low as Singapore. What is notable about our taxation relative to that of our European counterparts is not that billionaires and businesses sometimes pay relatively light taxes here but that the middle classes generally pay so very little. About half of U.S. households owe no federal income tax at all, while the top 1 percent pays 40 percent of federal income taxes and the top 10 percent pays more than 70 percent.

 

The bottom 50 percent? They pay 3 percent of federal income taxes. You can have your Scandinavian welfare state, or you can have a situation in which half of the country pays almost no federal income tax — you cannot have both. That is where President Biden’s class-war politics runs up against some pretty gnarly math.

 

If there are a great many gazillionaire tax-cheats out there escaping prosecution because the IRS doesn’t have enough pencil sharpeners and battering rams, then, by all means, top up the budget and then go and get ’em. The law is the law, and an orderly society enforces its rules. But the real problem with the U.S. tax code isn’t cheats.

 

The real problem with the U.S. tax code is the U.S. tax code.

Biden’s Trillion-Dollar Train Wreck

By Jim Geraghty

Wednesday, April 28, 2021

 

What is the Biden presidency? The Biden presidency is . . .

 

. . . spending $1.9 trillion on the “American Rescue Plan,” commonly described as “the pandemic-relief bill,” so you can move on to . . .

 

. . . a $2.3 trillion “American Jobs Plan,” commonly described as “the infrastructure bill,” so you can move on to . . .

 

. . . a $1.8 trillion “American Families Plan,” which hasn’t gotten a nickname yet, but will probably end up being called “the education bill” because it pledges to provide, at minimum, four years of free education . . .

 

. . .so you can move on to the “Green New Deal for Cities,” which would “provide $1 trillion for struggling municipalities” . . .

 

. . . so you can move on to a “Green New Deal for Public Housing,” which would spent $180 billion to “retrofit, rehabilitate, and decarbonize the entire nation’s public housing stock,” both of which are separate from . . .

 

. . . the THRIVE Act, which would spend — excuse me, “invest” — $15 trillion over 15 years to create “family-sustaining, union jobs across the economy,” which is separate from . . .

 

. . . I guess we would call it the “Green New Deal Classic,” which originally called for eliminating 88 percent of our current energy sources, banning cars, and cutting military spending by at least half.

 

Got that? Like the old joke about the turtles, it’s massive spending bills, all the way down.

 

Fact-checkers are quick to emphasize that Biden’s infrastructure plan “is not the Green New Deal.” PolitiFact asked Greenpeace, and Greenpeace emphasized that the two proposals are different, so that settles the issue:

 

The American Jobs Plan also includes about $480 billion to boost manufacturing and research and development, some of which might boost clean energy. The THRIVE Act folds money for those activities into other line items, primarily its investments in clean energy.

 

Ryan Schleeter, spokesman for Greenpeace USA, a Green New Deal Network member, said it is misleading to equate Biden’s proposal with the Green New Deal.

 

“The American Jobs Plan is similar in intent to the THRIVE Act, but far narrower in scope and scale,” Schleeter said.

 

Good heavens, how could anyone possibly mix up those two massive new spending proposals focused on clean-energy projects? It’s like Dylan McDermott and Dermot Mulroney. They’re completely different.

 

Just in those first three Mad Libs bills listed up there — “The American [Noun] Plan” — Biden wants to spend an additional $6 trillion beyond what the federal government would ordinarily spend. That’s about a third of the entire U.S. economy, all on top of the $4.4 trillion the government spent in 2019, the last non-pandemic year.

 

I don’t know if we’re about to endure a sudden and lasting surge in inflation; the Capital Matters guys can sort that out better than I can. I do know that the Consumer Price Index had its biggest jump in about a decade last month, and the overall price index is up 2.6 percent from a year earlier. In the past month, gas prices are higher, natural gas and energy costs are higher, and food prices are higher, both at home and in restaurants. You may have noticed that suppliers are scrambling to find lumber and semiconductor chips. It sure feels like inflation is making a comeback.

 

Mark May 12 on your calendar; that’s when the U.S. Bureau of Labor Statistics offers its next round of updated numbers. Two consecutive months of dramatic jumps in the consumer price index would suggest this wasn’t a brief, pandemic-influenced fluke.

 

One condition that can cause inflation is “too many dollars chasing too many goods” — “when the aggregate demand in an economy strongly outweighs the aggregate supply, prices go up.” If the government starts running the printing presses and throwing around money willy-nilly, but the supply of goods doesn’t keep pace, prices go up. Yes, you’ve got more money in your bank account or wallet, but so does everyone else. Prices go up, so the additional money you’ve received doesn’t help you as much.

Why Has Higher Ed Become So Costly?

By George Leef

Wednesday, April 28, 2021

 

Go back to the mid-’60s in America and you’d find that college didn’t cost so very much and hadn’t increased much over time. There were no articles bemoaning the “unaffordability” of getting a college degree and politicians were not promising to do something about the cost. Now, however, college costs are a huge issue. They have been rising much more than general inflation, and millions of graduates (also many students who didn’t graduate) are faced with big loan debts.

 

What happened?

 

A recent study by Neetu Arnold of the National Association of Scholars sheds a lot of light on that. In today’s Martin Center article, I reflect on her analysis.

 

What I find especially worthwhile in her study is the way Arnold connects the rising cost of attendance with the evidence of decline in learning among college students. Higher-education officials used to have to focus mainly on the traditional mission of college, namely to ensure that students received a high-quality education. But once the gusher of money began, they were free to pursue a host of other interests, including political activism.

 

And what accounts for that gusher of money? Arnold looks at the various excuses offered by the higher-ed establishment — that state politicians became cheapskates, that higher education suffers from a ‘cost disease’ and so on — and finds them unpersuasive. The one explanation that fits the facts is the “Bennett Hypothesis.” That is the argument offered by former Secretary of Education William Bennett that tuition started rising rapidly as a result of federal student-aid programs that put money in the pockets of students, provided that it was spent at accredited colleges.

 

Much of the increased cost of college is due, Arnold’s study shows, to administrative bloat. At many schools, administrative employees now outnumber the faculty. They’re paid very well to do jobs that have little or nothing to do with learning.

 

In short, college today costs a lot more and delivers less educational value due to government meddling.

The Trump Test in Texas—and Beyond

By Josh Kraushaar

Tuesday, April 27, 2021

 

Former President Trump doesn’t have access to Twitter and has kept a relatively low profile since leaving office three-plus months ago. But he’s been aggressively inserting himself in elections across the country, proving that he’s eager to demonstrate his clout within the Republican Party in the run-up to a momentous midterm election.

 

The first test of Trump’s political capital will come Saturday in Texas, where the first round of balloting takes place in the special election to succeed late GOP Rep. Ron Wright. With most of the Republicans offering plenty of praise to the former president, GOP operatives expected Trump to steer clear of taking sides in the crowded all-party primary ballot. But on Monday, he endorsed the congressman’s widow, Susan Wright, who was seen as the early front-runner but has lagged behind several leading rivals in fundraising and stopped airing television ads during the heart of the early-voting period.

 

Wright, Trump Health and Human Services Department Chief of Staff Brian Harrison, and state Rep. Jake Ellzey are the top Republican candidates in the field, according to GOP operatives involved in the race. The anti-tax Club for Growth endorsed Wright, and has been airing ads attacking Ellzey as insufficiently conservative. Polling suggests there’s a credible chance that no Democratic candidate will make it into the top-two runoff, a result that would pit two pro-Trump Republicans against each other— in a district with a sizable share of Trump-skeptical suburban conservative voters.

 

Trump’s endorsement likely ensures Wright’s place in the expected runoff—an outcome that was already anticipated before the presidential intervention. But by injecting himself in the low-stakes race, Trump is putting his own credibility on the line for the future. If Wright dominates in Saturday’s balloting, Trump can cement his status as an all-powerful Republican kingmaker, even out of office. But if his late endorsement doesn’t move many Republican votes, it would suggest the days of his dominance within the GOP have peaked. And it would raise further questions about his political judgment, picking a political novice over his own administration official (Harrison), who has raised the most money in the 24-candidate field.

 

While Trump pollster John McLaughlin confidently declared this week that “Trump is the strongest endorsement I have ever witnessed in politics,” other Trump-defending Republican strategists have grown more circumspect. One GOP strategist involved in the Texas race said: “The further we get away from him being in office, the less he matters.” Put another way, the more that most Republicans profess support for Trump’s presidency, the harder it is to distinguish the true believers from those who simply supported his administration’s policies. (Even Michael Wood, the lone anti-Trump Republican running in the Texas special election, actually voted for Trump last November.)

 

A new NBC poll gives credence to the view that Trump isn’t quite the factor he once was in GOP politics. The survey found that 50 percent of Republican respondents said they’re more loyal to the Republican Party than the 44 percent who say they’re more supportive of Trump. It’s the first time that the party-over-Trump crowd hit a majority in the survey’s polling. Trump’s overall favorability numbers are also at all-time lows: Just 32 percent of Americans view him favorably, while 55 percent view him unfavorably.

 

But Trump still has the power to reshape the trajectory of critical Republican primary contests. His early endorsement of famed NFL running back Herschel Walker to run against Sen. Raphael Warnock for the Senate in Georgia has frozen the Republican field, and played a role in former Rep. Doug Collins’s decision not to run. In Missouri, scandal-plagued Eric Greitens named Kimberly Guilfoyle as the national chair of his Senate bid, inserting Trump family connections into a highly contentious primary. Trump endorsed election rejectionist Rep. Mo Brooks for the Senate in Alabama over a well-funded Republican challenger, a move that earned a subtle rebuke from National Republican Senatorial Committee chairman Rick Scott. (“My goal is … for [Trump] to let the voters pick and then support the [Republican candidate] after the primary. Clearly that’s not what he did in Alabama,” Scott told NBC News.)

 

On the House side, Trump has pledged revenge against House Conference Chair Liz Cheney for supporting his impeachment, and endorsed one of his former staffers running against Rep. Anthony Gonzalez of Ohio. The other eight House Republicans who voted for Trump’s impeachment are also on high alert.

 

Trump’s effectiveness in these contests depends on how fully the Republican Party bends to his will. When he was president, he could get the media to focus attention on his political whims at any given moment. But without the megaphone of his social media feed, that clout stands diminished. His first test comes this weekend, and will offer a signal of just how powerful an e-mailed presidential endorsement—without any accompanying glitz or glamour on the campaign trail—means in a Republican Party that’s trying to chart a sustainable path for the future.

The Cops Shoot People of Different Races for the Same Reasons

By Rich Lowry

Tuesday, April 27, 2021

 

On April 18, two remarkably similar incidents played out in different parts of the country.

 

In Burnsville, Minn., police got a report that a man, 30-year-old Bradley Olsen, had been involved in a carjacking. They pursued the vehicle Olsen was driving, he fired at them, and they returned fire, hitting and killing him.

 

In Fort Worth on the same day, police also responded to reports of a man trying to steal cars. The armed man fled on foot, and an officer told him to drop his weapon. As the officer pursued, 31-year-old Ryan Williams pointed his gun at the cop and fired a shot. The officer returned fire and killed him.

 

The difference between these two incidents was that Bradley Olsen was white, and Ryan Williams was black. Otherwise, the cases are largely indistinguishable — how they started, how they played out, and, emphatically, how they ended.

 

This is the overall sense that one gets from the Washington Post’s famous database of police-involved shootings. Reading through it, there is no stark racial difference that jumps out, rather a dreary sameness. The fact patterns that get people shot by the cops, whether they are white, black, or Hispanic, are largely the same.

 

There are the most extreme cases, when suspects engage in gun battles with cops. But pointing a gun, including a fake gun, at an officer also is likely to end badly. So is approaching a cop with a knife or even a metal pipe and refusing, despite repeated orders, to put it down. Resisting arrest is a common theme and, quite often, the people killed by the police were obviously mentally disturbed.

 

The Washington Post database suggests we have a violence problem in America and certainly a mental-health problem, but not — at least not on the face of it — a race problem.

 

Consider just the police-involved killings over the last month. Almost every type of incident has involved people of different races.

 

In Escondido, Calif., on April 21, police responded to a call about a white male hitting cars with a metal object. When the suspect, a mentally disturbed man with a long rap sheet, approached a police officer wielding a two-foot metal pry tool, and ignored repeated orders to drop the object and use-of-force warnings, he was shot and killed.

 

In Rockford, Ill., on April 10, police responded to a domestic-violence call from the wife of Faustin Guetigo. When Guetigo emerged from the basement with a metal pipe and reportedly knocked an officer unconscious, police shot and killed him. Guetigo, 27, was an immigrant from the Central African Republic.

 

Fake guns are a common element in police-involved shootings. In Leonardtown, Md., on April 13, a state trooper shot and killed Peyton Ham, a 16-year-old white male, after he pointed what turned out to be an airsoft gun at him. According to an eyewitness, after he got shot, Ham brandished a knife and tried to stand up, defying orders to drop the knife, and the officer fired again.

 

In Hawaii on April 5, police shot and killed Iremamber Sykap, a 16-year-old born in Guam, after pursuing a vehicle connected to a number of crimes and seeing what they believed was a firearm in that car. It turned out to be a replica gun.

 

Knives also make regular appearances, typically involving individuals with mental-health issues. In North Lauderdale on April 15, police shot and killed Jeffrey Guy Sacks, a 26-year-old white man, when he entered a store with a knife and, after officers arrived, ran at one of them with the knife despite warnings to stop. According to his family, Sacks was diagnosed with schizoaffective disorder.

 

In Harris County, Texas, on April 14, police responded to a call about a man experiencing a mental-health crisis. He had a knife, approached officers, and reportedly refused to drop it. An officer attempted to Tase him and then shot and killed Marcelo Garcia, a 46-year-old Hispanic man. Family members reportedly said he suffered from schizophrenia and bipolar disorder.

 

In San Marcos, Texas, in April, police responded to reports of a man walking in traffic. They tried unsuccessfully to detain him and, when he charged them with a knife, shot and killed Rescue Eram, a 31-year-old man from Micronesia.

 

Critics of the police argued last week that the shooting of Ma’Khia Bryant, apparently in the act of stabbing another girl, showed how police treat blacks differently. But the fatal shooting in Oneonta, N.Y., on April 6 of Tyler Green, a 23-year-old white man, puts the lie to this.

 

Involved in a domestic dispute in the front yard of a house, Green lunged with a knife at his girlfriend and a small child when the police arrived. As in the Ma’Khia Bryant case, it all unfolded very quickly. Green fell down, and an officer tried to kick the knife away from him. But as he held it and grabbed for the child from the ground, ignoring orders to drop the knife, the police shot him in the back and killed him.

 

Here is the video.

 

One of the starkest disparities in police-involved shootings concerns how much attention is devoted to cases depending on the race of the person shot. Of course, police sometimes get it wrong in how they handle cases involving white people, too, but there is no activist and media apparatus devoted to finding and blowing up such cases, in part because it would run counter to the narrative of systemically racist police preying on black people.

 

The George Floyd video was awful to watch. But so is the video of the 2016 death of Tony Timpa in the custody of Dallas police officers. John McWhorter highlighted this case in a piece about police shootings and Byron York noted it in his Twitter feed. The Dallas Morning News wrote this report last year when it finally obtained the body-camera footage of the incident.

 

Suffering from mental-health problems, Timpa himself called the cops. He was unarmed but struggled when handcuffed behind his back. Police pinned him to the ground face down. He repeatedly said they were killing him, but the police didn’t realize he was having trouble breathing and, in fact, dying. When he stopped breathing, the police joked about him being asleep, and the cops and paramedics were slow to try to render life-saving aid.

 

It is the cherry-picking of officer-involved shootings and other incidents that makes it possible for the likes of Jim Acosta of CNN to casually refer to “a rash” of police killings of African Americans. This is a statement that shows a profound ignorance of the true landscape of officer-involved shootings, but is, sad to say, utterly characteristic of most of the commentary and activism around policing in America.

Once More, with Feeling: The Fairness Doctrine Is Not the Answer

By Charles C. W. Cooke

Tuesday, April 27, 2021

 

Tucker Carlson said something silly on Fox last night — silly, but well within the bounds of what typically passes for commentary on the sewer that is cable news. In response, well-connected figures within the journalistic world immediately did what they seem always to do these days: They mused aloud about how they might punish Carlson by summarily removing him from his role.

 

The proposals ranged a tad. Some thought Tucker, for his rant against parents who fit their children with masks, should be arrested for having committed the equivalent sin to shouting “fire in a crowded theater” — an ignorant suggestion, given that his words didn’t come close to crossing the threshold set in Brandenburg v. Ohio. Some thought that Fox should fire him, or that his advertisers should boycott him — a more tolerable submission than “involve the federal government!” but still an illiberal one at root. Most popular of all, though, was that hoary chestnut: Bring back the Fairness Doctrine!

 

This is a stonkingly bad idea.

 

It’s also a non sequitur, because, whatever its merits may have been (color me skeptical), the Fairness Doctrine simply doesn’t apply to this situation. Tucker Carlson appears on Fox News, which is a cable channel, and, as decades of Supreme Court precedent maintain, the federal government’s power over cable is extremely limited in scope.

 

The Fairness Doctrine was contrived in 1949 as a means by which to ensure that the holders of broadcast licenses were not misusing the privileges they had been granted by the government. Back then, the only way of broadcasting television and radio was over the airwaves. Because the spectrum within which those broadcasts were transmitted is narrow — and because, as a result, their use is a zero-sum game — the federal government constructed a licensing system that reserved certain frequencies to certain organizations. In essence, the Fairness Doctrine was the quid pro quo: The federal government agreed to reserve a particular space on the spectrum for, say, CBS, and, in return, CBS agreed to the federal government’s rules.

 

The Fairness Doctrine, which required those using the public airwaves to present all sides of an argument, was one of those rules.

 

From a classically liberal perspective, this arrangement was always fraught. But, because the government was heavily involved, the courts did not consider it a violation of the Constitution. “There is nothing in the First Amendment,” the Supreme Court ruled unanimously in 1969, “which prevents the Government from requiring a licensee to share his frequency with others.” Or, put another way: Our frequency, our rules.

 

In 1987, the FCC revoked the rule. From my perspective, this was a good thing (even if the Constitution permits the federal government to set such rules for narrow spectrum media, it does not mandate it). But, whether one agrees or disagrees with that, one should understand that this revocation had precisely nothing to do with cable news, which is not broadcast over the public airwaves, which is not using a finite or zero-sum resource, and which, as a result, would be not be affected by the Fairness Doctrine even if it were restored. Under American law, Fox News is treated in the same manner as is the Washington Post or YouTube: as a private company that enjoys the full array of First Amendment rights, any limitation of which is subject to strict scrutiny in the courts.

 

Which brings us to the second misconception. Suppose, for the sake of argument, that Fox News switched from cable to broadcast, and thereby subjected itself to the superintendence of the FCC. And suppose, in concert, that the Biden administration brought back the Fairness Doctrine and applied it to a newly analog Fox News. What, even then, do its advocates imagine would happen to Tucker? Last night, Carlson said this:

 

As for forcing children to wear masks outside, that should be illegal. Your response when you see children wearing masks as they play should be no different from your response to seeing someone beat a kid in Walmart. Call the police immediately, contact child protective services. Keep calling until someone arrives.

 

This is a silly thing to say — although, again, it does not even crack the top ten of silly things that have been said on cable (including on Fox) during the last month. But it is not at all clear what the Fairness Doctrine has to do with it. Do those calling for its reinstatement want to oblige Fox to run segments featuring anchors who say, “Well, given that you ask, my view is that we actually shouldn’t call the police when we see a child wearing a face mask outside”? And, if so, how far would we take this practice? Should Rachel Maddow have someone sitting next to her at all times shaking his head and offering rebuttals? Should CNN have to run three years’ worth of segments explaining that its coverage of “Russiagate” was a disgrace? Should Joy Reid be accompanied at all times by an exhausted lawyer? Should Chris Cuomo be paired with Casey DeSantis?

 

None of this would make any sense, of course. But then, it doesn’t have to, because “bring back the Fairness Doctrine” is not really a policy, it’s a euphemism: for “shut down Fox News.” There is a certain sort of progressive in this country who believes right down to his core that the federal government should step in and silence the likes of Tucker Carlson, but who is aware nevertheless that saying that makes one sound a bit . . . well, a bit fascist-y. And so, instead of saying that, he says something else — something that, on the face of it, sounds like a call for more debate, not less, but that, in reality, is designed to do one thing and one thing alone: censor the people he dislikes.