COMPETITIVE ENTERPRISE INSTITUTE

VOL. 36, NO. 3 | SUMMER 2022

FEATURED ARTICLES
An Independent Regulatory
Reform Commission Can Help
Solve the Worker Shortage
4
BY IAIN MURRAY AND BY RYAN YOUNG
MICHELLE MINTON

J
Militarizing the Baby ob openings have been at record highs for
Formula Crisis Is Infantile a while now, but companies can’t find the
workers to fill them. How can Congress help?
That was the subject of a recent Senate Small
Business and Entrepreneurship Committee
hearing. The most popular proposal was to

6
expand federal job training programs, but
there are better policies to pursue.
Addressing the worker shortage doesn’t
BY BEN LIEBERMAN take billions of dollars of new spending on
In Defense of Air Conditioning worker training and other government pro-
grams. It takes lots of little policies, such as
occupational licensing reform and reining in
unreasonable permit and paperwork require-
ments and countless other regulatory barriers
that stand between workers and jobs.

12 But there is something Congress can do to

BY RICHARD MORRISON
The SEC Wants to Regulate Green
Funds, but Definitions Are Elusive
ALSO IN THIS ISSUE
President’s Message. . . . . . . . . . . . . . . . . . . 2
A Permanent Pandemic Means a
Huge Medicaid Expansion. . . . . . . . . . . . . 5
A Judicial Ruling Challenges the
SEC’s Illegal Power. . . . . . . . . . . . . . . . . . . 7
Congress Can Prevent an Overregulated
U.S. Digital Economy; Here’s How. . . . . . . 8
Amazon Takes on the National Labor
Relations Board . . . . . . . . . . . . . . . . . . . . . . 9
CEI Events Update. . . . . . . . . . . . . . . . . . . 10
CEI Summit Sante Fe 2022. . . . . . . . . . . . 13
The Good, the Bad, and the Ugly. . . . . . . 14
Media Mentions. . . . . . . . . . . . . . . . . . . . . 15
End Notes. . . . . . . . . . . . . . . . . . . . . . . . . . 16
help clear the field and keep it that way: out-
source the rule cutting by creating an inde-
pendent commission that periodically combs
through the Code of Federal Regulations
looking for obsolete, redundant, and harmful
rules and assembles annual repeal packages
for Congress for an up-or-down vote, without
opportunity for amendment.
The Code of Federal Regulations is
185,000 pages long and contains more
than 1 million individual regulatory restric-
tions. In total, federal regulations cost roughly
$1.9 trillion per year. New rules get added
every year, but old ones are rarely removed
when they are no longer needed. The result
is decades of built-up regulatory sludge that
blocks workers from getting good jobs. If
Congress and agencies are unwilling to clean
out job-killing regulations, then Congress
should appoint a commission that will.
The commission idea has been tried
before, and it works. When the Cold War
ended and the military wanted to close
unneeded bases, no members of Congress
would vote to close the ones in their dis-
tricts. To get around that political problem,
Congress outsourced the tough decisions and
created the Base Realignment and Closure
(BRAC) Commission. Multiple BRAC rounds
during the 1990s helped Congress do the
right thing and saved billions of dollars.
Several versions of a BRAC-style commis-
sion for regulations have been proposed over
the years by members of Congress from both
parties. Former Sen. Phil Gramm’s (R-TX) was
the first, in 1995. More recently, Rep. Virginia
Foxx (R-NC), Rep. Josh Gottheimer (D-NJ),
Sen. Rick Scott (R-FL) and Sen. Mike Lee
(R-UT) have all introduced bills with varia-
tions on the regulatory BRAC theme.
(continued on page 3)
 Patrick Michaels, In Memoriam
by Kent Lassman

T he Competitive Enterprise and the entire policy

community recently lost a friend and colleague
with the passing of Dr. Patrick J. Michaels (1950-
2022). Pat joined CEI as a senior fellow after
impressive careers in academia, government, as a
private consultant, and in the non-profit sector.
In addition to detailed analyses of climate
models, Pat was famous for his backyard barbe-
FROM THE PRESIDENT

cues and his abundant garden. Less well known,

he was a music lover and consummate traveler.
Many years ago, Pat and I had dinner
together. It was a big, grand affair in New York
City. There were ball gowns and tuxedos, the
speaker roster included special laureates and a
former international head of state.
I had met Pat before. I certainly knew his work
and reputation. But I didn’t really know him. As
I crossed the magnificent ballroom to find my
table, I was greeted by a grinning, exuberant Pat
Michaels.
He quickly blurted out, “Kent, I rearranged the
seating so that we could sit together tonight. I’d
like to chat about a few things.” shooter with a zeal and mastery of the policy
Boy did he ever. Straight through the meal. He details that we all strive to emulate.
snuck in comments during the various speeches. Author or coauthor of nine books, Pat’s work
He covered the waterfront. It wasn’t just climate was published in leading scientific journals, includ-
policy, or science, he also expounded on the role ing Nature, Science, and Geophysical Research
of think tanks, how to build a genuinely open intel- Letters, as well as in more popular outlets such as
lectual community, the importance of diversity of the Washington Post, Los Angeles Times, and USA
thought, and what he thought about the meal. He Today. He explained complex scientific research
wasn’t impressed, as I recall. on the BBC and PBS.
I was bowled over. What the world knows This is the man I knew. A man who eventually I
about Pat Michaels was all there. From the mirth worked alongside and grew to call a friend.
and mischief with the seating, to the unalloyed
opinions regardless of their political correctness.
He held wide-ranging interests and produced a
torrent of useful ideas.
This was a man who embraced his passions
and wanted to share them. He was a straight

The CEI Planet is produced by the Competitive Enterprise

Institute, a pro-market public interest group dedicated to
Publisher free enterprise and limited government.
Kent Lassman
CEI is a non-partisan, non-profit organization incorporated in
Editor the District of Columbia and is classified by the IRS as a 501
Ivan Osorio (c)(3) charity. CEI relies upon contributions from foundations,
corporations, and individuals for its support. Articles may be
reprinted provided they are attributed to CEI.

2 CEI.ORG COMPETITIVE ENTERPRISE INSTITUTE

 Worker Shortage, continued
If Congress is serious about
addressing the worker shortage,
it could start the process with one
of these bills, or at the very least, a
new version focused on employment
regulations.
There are many possible candi-
date rules for the commission’s list.
Occupational licensing reform has
support from both parties. Much of
the heavy lifting will be at the state
level, but there are federal licens-
ing requirements for truckers, pilots,
and many federal contractors that
Congress could reform. For example,
the minimum age for interstate truck-
ers could be lowered from 21 to 18,
and truckers should be allowed to set
their own hours.
Federal permits, especially
environmental reviews, have gotten
out of hand. Projects that once
took months now drag on for years
before the first shovel hits the ground.
Streamlining the permitting process
would create not just construction
Did You Know …
… that your Amazon purchases can
benefit CEI with the push of a button?
jobs, but also retail and office jobs as
long-delayed buildings get built and
open.
Financial regulations such as the
Durbin Amendment to the Dodd-
Frank financial regulation law
resulted in a million low-income
people losing their bank accounts,
limiting them to more expensive
financial options like paycheck cash-
ing stores.
Given Congress’ dysfunction,
a BRAC-style commission would
do more good for workers than
any “do-something” bill passed in
election-year haste. As Competitive
Enterprise Institute founder Fred Smith
likes to say, you don’t have to teach
grass to grow, but you do have to
take the rocks off of it.
Ryan Young (ryan.young@cei.org)
is a senior fellow at CEI. A version of
this article was originally published
in The Hill.
Help the Competitive
Enterprise Institute carry
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COMPETITIVE ENTERPRISE INSTITUTE C E I . O R G 3

 Militarizing the Baby Formula Crisis
Is Infantile
BY IAIN MURRAY AND
MICHELLE MINTON
A military cargo plane lands filled
with vitally needed baby formula
to be greeted by a top government
official. A relief flight to a developing
world country? A ray of hope for a war-
ravaged Ukraine? A blockade broken?
No, America in the year 2022.
The president recently invoked
the Defense Production Act to force
American companies to produce more
baby formula. Our response to a prob-
lem caused by domestic regulation and
protectionism has been to militarize it.
I’m sorry, Mr. President, but this solution
is infantile.
America is unique in having this
problem because its regulatory state
caused it. The proximate cause of the
shortage was the February recall of
products made at America’s largest
manufacturer of baby formula, Abbott
Labs’ facility in Michigan. The Food
and Drug Administration (FDA) was
concerned about outbreaks of death
and illness among infants fed with the
formula, but it was slow to inspect the
facility. Abbott has announced that
it will reopen the facility, as the FDA
found no evidence of contamination.
As 40 percent of America’s supply
comes from that facility, the shortfall hit
supplies hard.
Ordinarily, the market would
respond to such a shock by two
means—higher prices to signal a
shortage and imported substitutes from
abroad.
However, regulation precludes
those two responses. Much of the
American market depends on price
agreements with the country’s welfare
agencies. Higher prices could lead to
low-income mothers choosing to limit
formula use, with nutritional detriments
to their babies.
4 CEI.ORG
While the motivation behind the
policy is understandable, any econo-
mist knows that limiting prices will
affect supply. Even so, the possibility
of import could act as a safety valve
in the event of a supply shock, but
the FDA prevents the import of baby
formula from other developed countries
such as Japan, the United Kingdom,
Australia, and the European Union. It
does this through extensive labeling
requirements that those countries’ prod-
ucts do not follow, as they follow their
own countries’ labeling rules (many in
their own language).
Studies have found that most
European baby formula products
meet FDA requirements. The prob-
lem the FDA wants to address is that
American consumers might not be
able to understand the instructions on
imported products, which is why last
year it boasted about having seized
600 cases of “unapproved” imported
baby formula from Germany and the
Netherlands—the same sort of formula
the military is now flying in.
If translation is an issue, it is triflingly
easy to translate labels; the research-
ers in the study mentioned above used
Google Translate. Importers could
bear the costs of printing out translated
instructions and attaching them to the
containers. None of these steps should
pose a barrier to the provision of
formula that meets the intent, but not the
letter, of FDA rules.
The president’s military-based
response attempts to temporarily
assuage the shortage while retain-
ing these rules in the long term. Yet,
not only does the action stretch the
definition of “defense” way beyond the
breaking point, it does nothing to fix
the underlying problem: these non-tariff
barriers to trade. The administration
should instead unilaterally recognize
any formula manufactured in compara-
tively developed countries that pass
COMPETITIVE ENTERPRISE INSTITUTE
those countries’ safety requirements as
allowed for sale in the U.S. market.
On July 21, President Biden
signed the Fixing Our Regulatory
Mistakes Upsetting Little Americans
(FORMULA) Act, sponsored by Sen.
Mike Lee (R-UT) to do just this for six
months, allowing in products from
Australia, Israel, Japan, New Zealand,
Switzerland, South Africa, the United
Kingdom, and member countries of the
European Economic Area.
Six months, however, is not enough.
The current crisis shows that protection-
ist policies that isolate domestic supply
chains from the rest of the world can
worsen or even create domestic supply
crises that harm the poor and the
youngest most of all.
Simple principles of international
trade like mutual recognition can solve
artificially created crises like this one
in a far more sustainable way than
sending in the troops.
Iain Murray (iain.murray@cei.org)
is vice president for strategy at CEI.
Michelle Minton is a former senior fel-
low at CEI and a senior analyst at the
Reason Foundation. A version of this
aricle was originally published in Issues
and Insights.
 A Permanent Pandemic Means a
Huge Medicaid Expansion
BY JOEL M. ZINBERG AND
GARY D. ALEXANDER
C OVID is now endemic, yet the
Biden administration keeps
extending the public health emergency.
Its goal is to preserve the expansion
of the welfare state through Medicaid,
even though large and growing num-
bers of enrollees are ineligible for the
benefit.
Medicaid, the federal-state entitle-
ment that provides health insurance to
nearly one in four Americans, ballooned
during the pandemic. Enrollments had
declined in 2018 and 2019, but jumped
by 15.9 million—about 25 percent—
between February 2020 and February
2022. According to the Centers for
Medicare and Medicaid Services
(CMS), the increase was “due, in large
part, to the continuous enrollment condi-
tion” in Congress’ March 2020 COVID
relief package, which encouraged
enrollments by temporarily increas-
ing the federal government’s share of
total Medicaid costs by 6.2 percent
while prohibiting states that accepted
Washington’s help from redetermin-
ing Medicaid eligibility and removing
ineligible people from the rolls until the
emergency ended.
In other words, so long as the emer-
gency persists, so too does the expan-
sion of the welfare state. More than two
years later, the Biden administration is
intent on making permanent what were
meant to be emergency measures.
States routinely redetermine
Medicaid recipients’ eligibility. As the
program grows, so too do the chances
for improper payment. Medicaid’s
national improper-payment rate, which
includes payments to ineligible benefi-
ciaries, soared under the ObamaCare
Medicaid expansion. The most recent
rate, which incorporates three years of
data through the first five months of the
COMPETITIVE ENTERPRISE INSTITUTE
pandemic, reached an all-time high of
22 percent, a cost of $99 billion.
Prohibiting states from redetermin-
ing eligibility during the pandemic has
exacerbated the problem.
In reality, the health emergency is
already over. New COVID cases rose
in May but remained low compared
with other points in the pandemic and
have started to decline. Hospitalizations
rose but remained low, and COVID
deaths continued a months-long decline.
Vaccines and therapeutics are readily
available, too.
Nevertheless, the Biden adminis-
tration appears poised to extend the
official emergency to mid-October. The
Urban Institute projects that the exten-
sion will add an additional 1.4 million
ineligibles to the Medicaid rolls at a cost
of $36.5 billion to the federal govern-
ment. A total of 15.8 million will have to
be disenrolled when the official emer-
gency ends.
Fifteen health organizations—
including the American Medical
Association, the American Public
Health Association, and AARP—have
called for extending the emergency,
arguing that new variants might lead
to excessive hospitalizations. But this
rationale could justify maintaining the
emergency forever.
The public health emergency has
eased regulatory burdens, speeding
access to innovative products through
Food and Drug Administration emer-
gency-use authorizations and adding
flexibility for hospitals and other provid-
ers to make better use of resources. But
that can and ought to be maintained by
making regulatory improvements per-
manent, not by extending an emergency
that no longer exists.
The administration and its allies voice
concern that ending the emergency
would jeopardize insurance coverage
for millions. Yet nearly all those cut from
the Medicaid rolls would be eligible for
C E I . O R G 5
coverage through employer plans or
subsidized exchange plans.
It appears as if the administration is
more concerned with keeping alive a
bloated welfare program than any-
thing else. Never mind that Medicaid
has been a bad deal for both patients
and doctors for decades, providing
small, uncertain medical benefits and
poor access to care. Researchers at
the Bureau of Economic Analysis, the
University of Chicago, and the Federal
Reserve found that low payment rates
and government bureaucratic barriers to
obtaining payment discourage doctors
from seeing Medicaid patients. Sixty-
nine percent of Medicaid recipients
receive care in narrow-network man-
aged care.
Extending the public health emer-
gency would also add to the already
unprecedented number of eligibility
determinations that states have to make.
States have been expressing concern
for nearly a year about the backlog that
grows with each extension. CMS has
advised states they’ll have 14 months
after the emergency ends to process
ineligible recipients—but that guidance
seems designed to prolong the cover-
age of ineligible beneficiaries, rather
than end it. It includes extensive proce-
dural obstacles for removing ineligible
enrollees and provides no consequence
for states that fail to meet the disenroll-
ment deadline.
Washington should end the public
health emergency so states can ensure
Medicaid is reserved for those who are
actually eligible.
Joel M. Zinberg (joel.zinberg@cei.org)
is a senior fellow at CEI and director
of the Paragon Health Institute’s Public
Health and American Well-Being
Initiative. Gary D. Alexander is director
of Paragon’s Medicaid and Health
Safety Net Reform Initiative.
 In Defense of Air Conditioning
is, and in this context the growth of air
BY BEN LIEBERMAN conditioning is seen more as a problem
than a solution.

I f air conditioning were a medical

advance, its developers would have
likely received Nobel Prizes for the many
lives it has saved and improved. Air
conditioning is belatedly making inroads
in less affluent societies. This includes the
billions of people living in tropical regions
who would benefit the most.
Despite the public health benefits
of air conditioning, its expanded
adoption is not universally accepted
as good news. Critics focus primarily
on the negative externalities of a
more air-conditioned world, chiefly
increases in electricity consumption
and greenhouse gas emissions.
Before air conditioning, mortality
rates in much of the U.S. would rise
appreciably with the summer tempera-
tures, but this trend has largely been
eliminated by the 90 percent market
penetration of air conditioning in
American residences.
Quality of life is also positively
impacted by air conditioning. Learning
improves substantially when class-
rooms are air-conditioned on hot days.
Similarly, air conditioning in the work-
place enhances productivity.
The two main impediments to a more
air-conditioned world—lack of access
to electricity and unaffordability of an
air conditioner—are finally receding.
The world has at last reached the point
of being nearly 90 percent electrified,
and the slow march toward full elec-
trification continues. At the same time,
average household incomes in develop-
ing nations are rising to the point where
rapidly growing numbers of people can
afford their first air conditioner.
Thus, the world is at the cusp of
widespread availability of air con-
ditioning for those who need it most.
However, despite the potential benefits
of this global transformation, achieving
it is far from a priority with the inter-
national community. Climate change
Some of the most widely cited
projections come from the International
Energy Agency (IEA). According to the
IEA, “of the 2.8 billion people living in
the hottest parts of the world, only 8%
currently possess ACs.” The agency
predicts this presently unmet need will
result in an additional four billion air
conditioners in use by 2050. Further,
since air conditioning use during the
hottest times of summer days defines
peak demand, IEA projects that the
need for electricity generation capacity
will increase 395 percent by 2050.
Both the United Nations and the
World Bank largely concur with the
IEA’s projections. They also agree on
the primary policy prescription—man-
datory energy efficiency improvements
for air conditioners.
The American experience is again
illustrative. For decades, the U.S.
Department of Energy (DOE) has set
and periodically tightened energy
efficiency standards for all types of air
conditioners, from window units to cen-
tral systems. These efficiency standards
increase the purchase price of the
equipment but save money with use.
The DOE has been criticized for setting
excessively stringent regulations, and
indeed the agency itself concedes that
some standards have increased the first
cost so much that users may never earn
it back in the form of lower electricity
costs over the life of the system.
In any event, whether or not the
added cost of a high-efficiency air
conditioner is recouped with use is of
no consequence to those priced out
of buying the system in the first place.
Billions of people in developing coun-
tries are finally approaching the point
where they can afford their first air con-
ditioner—but just barely. Any nontrivial
increase in the purchase price could
put air conditioners out of reach for
hundreds of millions of households.
For this reason, an affordable but
less efficient air conditioner may be
better than its costlier but more efficient
counterpart. So long as people can
acquire the air conditioner, they can
always be judicious about its use—run-
ning it only at the very hottest times and
not always on the highest setting. But
those who can’t afford one in the first
place are completely deprived of its
benefits. Keeping first costs low should
be paramount.
Much of the international climate
agenda risks more economic harm than
environmental good, especially for
developing nations. In most cases, the
tradeoff involves significant energy cost
increases from restricting fossil fuels in
exchange for speculative and possibly
inconsequential future temperature
reductions. Here, the tradeoff involves
potentially prohibitive cost increases on
air conditioning via energy efficiency
standards, imposed just as billions
more people are on the verge of
affording their first air conditioner. It is
a deal that should be rejected.
Ben Lieberman (ben.lieberman@cei.
org) is a senior fellow at CEI. This article
is excerpted from an essay published in
Human Progress.

6 CEI.ORG COMPETITIVE ENTERPRISE INSTITUTE

 A Judicial Ruling Challenges the
SEC’s Illegal Power
BY MARIO LOYOLA
T he U.S. Constitution’s separation
of powers was meant to ensure
that government power would never
become concentrated in the hands of
a few. But since Franklin D. Roosevelt’s
threat to “pack the Court” in 1937, the
federal judiciary has aided and abetted
the rise of an all-powerful administra-
tive state. The separation of powers has
since dissolved to a point that would
have dismayed the Framers—and should
worry all Americans.
Now the U.S. Court of Appeals for
the Fifth Circuit has taken what could
be a historic step toward restoring the
Constitution’s checks and balances,
in the case of Jarkesy v. SEC. The
Securities and Exchange Commission
(SEC) acts as rulemaker, prosecutor,
and judge for America’s securities
laws. It may have a solid case for fraud
against investor George Jarkesy, but
the powers and perks the agency has
accumulated pose the constitutional
problem.
The Constitution vests legislative
power in Congress, executive power in
the president, and judicial power in the
federal courts. But today the executive
branch does most of the legislating and
adjudication in the federal govern-
ment, while, paradoxically, adminis-
trative agencies beyond the control
of the president—or anyone else—
wield much of the executive power.
Checks and balances are dissolving
in all directions, with the executive
branch absorbing the powers of the
other branches into an administrative
leviathan, even as executive power
has become shielded from democratic
control.
In the case of Jarkesy, the SEC used
a provision in the Dodd-Frank law that
allowed it to seek civil penalties for
fraud either in normal federal courts or
COMPETITIVE ENTERPRISE INSTITUTE
in internal proceedings before its own
administrative law judges (ALJs). Those
ALJs are civil servants who can only be
removed for good cause by the com-
missioners of the SEC, who themselves
can only be removed for good cause.
The Fifth Circuit found several major
problems with all this. First, the Seventh
Amendment to the Constitution guar-
antees trial by jury. While Congress
may create agency tribunals without
juries for claims incidental to regulatory
programs, such as the revocation of a
license to give financial advice, federal
courts have repeatedly held that in
traditional cases, such as civil penalties
for fraud, the Constitution protects the
right to trial by jury. Hence, the SEC’s
decision to investigate, prosecute, and
punish Jarkesy with heavy fines all within
its own tribunal was unconstitutional.
The Fifth Circuit didn’t stop there.
The power to decide which conduct
may be tried before traditional courts
and which may be tried before agency
tribunals without a jury is a funda-
mentally legislative power, because
it determines the procedural protec-
tions enjoyed by the defendant. The
Supreme Court has held that Congress
can involve agencies in rulemaking
only when Congress provides “intelligi-
ble principles” to guide them, such that
Congress has exercised the legislative
power, and that the agencies’ role is
limited to an executive function.
The Fifth Circuit held that because
Dodd-Frank’s grant of authority to the
SEC to decide which cases to bring in
traditional court and which to try in its
own tribunals wasn’t supported by any
intelligible principle, it was an uncon-
stitutional delegation of the legislative
power vested in Congress. Crucially,
the court referred to the dissent by Neil
Gorsuch in Gundy v. U.S., which lays
the foundation for significant limits on
the rulemaking authority that Congress
can delegate to agencies.
C E I . O R G 7
The Fifth Circuit also observed that
because agency officials exercise
executive powers only in the name of
the president, in whom that power is
constitutionally vested, such officials
must remain accountable to the presi-
dent. That means the president must be
able to remove them at will. For most of
the past century, it was assumed that if
an executive official exercises quasi-
legislative or quasi-judicial functions
in addition to executive ones, then that
official may be shielded from removal
at will by the president; hence the exis-
tence of “independent agencies.”
In the past decade, however, the
Supreme Court has ruled, in cases such
as Free Enterprise Fund v. PCAOB and
Seila Law v. CFPB, that there are limits
to how much any official exercising
executive authority can be shielded
from presidential control. The Fifth
Circuit took these decisions to their
next logical step, holding that because
the SEC’s ALJs exercise executive
powers in addition to other functions,
the restrictions on their removal by the
president are unconstitutional.
That could severely crimp admin-
istrative adjudications, and not just
at the SEC. Hence the decision will
almost certainly be appealed to the
Supreme Court. The decision heralds
a potentially significant curtailment of
the administrative state. A century after
bowing to FDR’s court-packing threat,
the federal judiciary may be recover-
ing the self-confidence to enforce the
Constitution’s limits on government
power.
Mario Loyola (mario.loyola@cei.org) is
a senior fellow at CEI and a professor
at Florida International University.
He served as associate director for
regulatory reform of the White House
Council on Environmental Quality from
2017 to 2019.
 Congress Can Prevent an Overregulated U.S.
Digital Economy; Here’s How
BY RYAN NABIL
L ast May, Connecticut became the
fifth state to pass a comprehensive
consumer data privacy law. As more
states appear poised to follow suit,
America’s digital economy is increas-
ingly threatened by regulatory frag-
mentation. If Congress were to pass
federal data privacy legislation, it
should preempt this growing patchwork
of state laws, protect consumer privacy,
and promote technological innovation.
Unlike the European Union, Japan,
Canada, and many other advanced
economies, the United States does
not have a national comprehensive
data privacy law. Instead, Congress
has passed specific statutes to create
privacy rules in particular sectors,
such as education (as with the Family
Educational Rights and Privacy Act)
and financial services (as with the
Gramm-Leach-Bliley Act).
But in the absence of a
comprehensive federal privacy
law, several states have sought to
create new data privacy legislation.
Connecticut—following California,
Colorado, Utah and Virginia—
passed its own data privacy law, the
Connecticut Data Privacy Act (CTDPA),
in May 2022, due to come into force in
July 2023.
The CTDPA borrows heavily from
existing state-level privacy laws, but it
features significant differences. Unlike
under the California Consumer Privacy
Act, businesses do not become subject
to the CTDPA based solely on annual
revenues. And unlike under the Utah
Consumer Privacy Act, companies
do not need to exceed a predefined
annual revenue benchmark to fall
under the CTDPA’s scope.
These differences can pose a
significant challenge for small and
medium-sized businesses and startups
8 CEI.ORG
trying to operate in multiple states with
different legal privacy requirements.
For example, the definition of “the sale
of personal data” varies across state
borders.
Under the more business-friendly
Utah and Virginia privacy laws, a
sale occurs only when personal data
exchange involves monetary gains.
Under Connecticut’s privacy law—
which adopts the broader definition
of data sale used by California and
Colorado—data exchange for “other
valuable consideration” will constitute
a data sale and carry certain legal
obligations.
Without understanding the minu-
tiae of such legislation, a company
could easily fall afoul of the California,
Colorado, and Connecticut laws—even
though their data practices could be
legal in Virginia and Utah.
The timing could hardly be worse.
With inflation, rising labor costs, and
limited access to financing options,
startups and digital companies already
face significant challenges. Conflicting
state regulatory regimes will exacerbate
the challenges that these companies
face today. This patchwork of divergent
laws could easily discourage companies
from developing and offering innovative
products and services in certain states—
to consumers’ detriment in those states.
And things could get worse. Last
year, more than three dozen states pro-
posed over 160 new privacy laws—
and more than 20 states are currently
considering them. If all 50 states were
to pass their own data privacy legisla-
tion, it could cost the U.S. economy
more than $1 trillion over the next
decade. That burden will fall dispro-
portionately on startups and small and
medium-sized businesses that lack the
legal and regulatory compliance staff
of large corporations.
This increasingly confusing patch-
work of state data privacy laws makes it
COMPETITIVE ENTERPRISE INSTITUTE
urgent for Congress to enact federal pri-
vacy legislation. Many policy makers—
and President Biden—have already
called for federal privacy legislation.
Just as importantly, Congress needs
to ensure that such a comprehensive
federal privacy framework does not
create more problems than it solves. To
that end, a federal privacy law should
follow three basic principles.
First, it should preempt the grow-
ing patchwork of state laws that risks
creating significant uncertainty for
businesses.
Second, it should establish the same
legal standards for all industries but
create distinct rules and liabilities for
different types of data. For example,
a consumer’s Netflix streaming prefer-
ences don’t carry the same privacy risks
as her financial and medical records.
Third, it should develop separate
rules based on the risk level of how
companies process and store con-
sumer data. Allowing businesses to
use properly anonymized data and
privacy-enhancing technologies under
a lightened regulatory framework can
promote innovation while reducing
privacy risks from data breaches.
As more states seek to follow
Connecticut’s lead by creating new
privacy laws, America’s digital econ-
omy faces a real risk of fragmentation.
That will create significant regulatory
challenges for small and medium-sized
businesses and confusion for consum-
ers about how their data is processed
and used across state lines. Congress
can help with a pro-consumer, market-
friendly data privacy framework that
can help promote innovation while
reducing consumer privacy risks.
Ryan Nabil (ryan.nabil@cei.org) is a
research fellow at CEI. A version of this
article was originally published in The
Hill.
 Amazon Takes on the National Labor
Relations Board
BY SEAN HIGGINS
A mazon is pushing back against the
recent union election at its Staten
Island facility in a novel way: by taking
on the National Labor Relations Board
(NLRB) itself, alleging that the NLRB
behaved in ways showing bias in favor
of the union. In the process, Amazon
may force courts to clarify an important
ambiguity in American labor law and
make the NLRB, the agency charged
with overseeing workplace elections, act
more neutrally.
In the 25 official objections Amazon
filed with the board, the company
argues that the NLRB’s “interference and
mismanagement” prevented “a free and
fair election” at its Staten Island facility.
Among other things, Amazon alleges
that the board arbitrarily excluded some
workers from the bargaining unit in
which the union had to show 30 percent
support holding a vote.
The company also alleges that the
NLRB let union representatives distrib-
ute marijuana to workers in exchange
for votes and intimidate workers
opposed to collective bargaining. (The
union’s lawyer told the Associated
Press that the intimidation allegation
is “patently absurd” and handing out
marijuana “is no different from distribut-
ing free T-shirts and it certainly did not
act to interfere with the election.”)
Amazon also argues that the board
deliberately timed an order that the
company reinstate a fired worker to
come out close to the vote to create
the impression of retaliation against the
union. The worker in question was a
union advocate caught on film direct-
ing sexual slurs at a female co-worker
while he protested outside the Amazon
facility. The NLRB claimed that his
behavior was protected because he
was demonstrating; he testified that
he was the injured party because the
COMPETITIVE ENTERPRISE INSTITUTE
woman had shouted what he under-
stood to be a racial slur at him: “Go
Back to where you came from! Go
Back to the Bronx.”
As Amazon points out in its charges,
the NLRB forced a revote in an election
the company won last year over much
less egregious actions. Amazon had
asked the U.S. Postal Service to install
a mailbox near its facility in Bessemer,
Alabama, ahead of a vote to unionize.
Because of the pandemic, the vote was
mail-in only and the company states
that it asked for the mailbox so workers
would be more likely to vote.
The Retail, Wholesale, and
Department Store Union, which
stood a greater chance of winning in
Alabama with a turnout limited to those
who were pro-union, objected to the
mailbox. It argued that its proximity to
the facility gave the appearance that
Amazon could monitor the voting. The
board agreed, threw out the results,
and ordered a revote, arguing that
the mailbox interfered with the elec-
tion and intimidated workers. Amazon
is throwing that decision back at the
NLRB. If the election has to be so free
of influence that a mailbox can force
a do-over, why aren’t the actions in
Staten Island also a concern?
It is unusual for corporations to
go after the NLRB in a labor dispute.
When a business believes there’s
misconduct, it usually focuses on the
union involved. But Amazon’s allega-
tions point out an important problem in
American labor law. There is disagree-
ment over whether the NLRB is meant
to advocate for unionization or to
enforce the National Labor Relations
Act (NLRA) neutrally.
Organized labor and its allies
argue that those are one and the same
because the NLRA explicitly favors
unions. President Biden made the
argument last year: “Since 1935, when
the National Labor Relations Act was
C E I . O R G 9
enacted, the policy of the federal gov-
ernment has been to encourage worker
organizing and collective bargaining,
not to merely allow or tolerate them.”
The reality is more complicated.
U.S. labor policy, as the NLRA states,
is “to eliminate the causes of certain
substantial obstructions to the free flow
of commerce and to mitigate and elimi-
nate these obstructions when they have
occurred by encouraging the practice
and procedure of collective bargain-
ing and by protecting the exercise by
workers of full freedom of association,
self-organization, and designation of
representatives of their own choosing.”
The law does say federal policy is
“encouraging” collective bargaining,
but that follows a long preamble about
eliminating “substantial obstructions
to the free flow of commerce.” That
reflected the situation in 1935. The pre-
ceding year had been marked by par-
ticularly tumultuous and bloody labor
unrest. Strikes and lockouts threat-
ened the economy amid the Great
Depression. Collective bargaining was
a remedy for that chaos. But beyond
ensuring unions could form if workers
desired them, the bill’s author, Sen.
Robert Wagner, was adamant that the
government shouldn’t take sides.
“The malicious falsehood has been
widely circulated that the measure was
designed to force men into unions,
although the text provides in simple
English prose that workers shall be
absolutely free to belong or to refrain
from belonging to any organization,”
Wagner said in 1935.
Should Amazon pursue its case in
court, it could force the NLRB to return
to its true, neutral purpose.
Sean Higgins (sean.higgins@cei.org) is
a research associate at CEI. A version
of this article was originally published
in The Wall Street Journal.
 CEI EVENTS AND PUBLIC APPEARANCES

Two years ago, CEI reimagined its events program in response to the pandemic and launched an online event
series. As the world reopens, we will begin hosting more in-person events. To sign up for future invitations, please
email events@cei.org.

A Discussion on Stablecoins
On April 14, CEI Senior Fellow John Berlau and Adjunct Fellow Paul Jossey
joined Commodity Futures Trading Commission Chair Timothy Massad on a
panel on stablecoins—digital currencies tied to the value of an asset or fiat
currency such as the U.S. dollar—hosted by the Federalist Society. They discussed
stablecoins’ potential as an instrument of payment, challenges facing the current
payment system, and how the appropriate level of regulation can allow for
Paul H. Jossey Timothy Massad
innovation in electronic payments and digital currencies.

CEI Luncheon with Professor William Easterly

On May 17, CEI Board Chair Jean-Claude Gruffat hosted a luncheon discussion with
William Easterly, professor of economics at New York University (NYU), co-director
of the NYU Development Research Initiative, and the 2021 recipient of CEI’s Julian
L. Simon Memorial Award, at the Union League Club in New York City. Easterly’s
extensive field research, studies, and books compellingly demonstrate that poverty is
perpetuated less by a shortage of local economic and political rights. The New York
William Easterly Jean-Claude
Gruffat Times described his latest book, The Tyranny of Experts: Economists, Dictators, and the
Forgotten Rights of the Poor, as “bracingly iconoclastic.”

Fossil Future Book Forum Featuring Author Alex Epstein

On June 2, 2022, CEI’s Richard Morrison hosted a book forum on the new book, Fossil Future: Why
Global Human Flourishing Requires More Oil, Coal, and Natural Gas—Not Less, featuring author
Alex Epstein. In his book, Epstein makes the case for reliable, affordable energy as being critical
for global development. He argues that the benefits of fossil fuels to society, particularly to the least
well-off, outweigh the costs and warns against top-down policies aimed at eliminating fossil fuels as
Alex Epstein an energy source.

Does the Federal Government Have Authority for ESG

Mandates?
On May 16, CEI Senior Fellow Richard Morrison hosted an online discussion on
the Securities and Exchange Commission’s proposed rule requiring companies
to disclose their climate-related risks, strategy, and greenhouse gas emissions.
Richard Morrison David Burton Joining Morrison on the panel were David R. Burton of the Heritage Foundation;
Christina Parajon Skinner, Assistant Professor of Legal Studies and Business
Ethics at the Wharton School of the University of Pennsylvania; and Andrew
Vollmer of the Mercatus Center.

Christina Parajon Andrew Vollmer

Skinner

10 CEI.ORG COMPETITIVE ENTERPRISE INSTITUTE

 Looking Back on Three Decades at CEI
You only get to retire once or maybe twice in a lifetime. After spending over
three decades at CEI, I stepped down as general counsel in July. When I
first started here in the mid-1980s, there was no World Wide Web. We
were involved in such issues as antitrust, foreign trade, and federal auto fuel
economy (CAFE) standards. Today there most definitely is a Web. The issues
we’re involved in have expanded in size and complexity, but that does not
mean that nothing has changed. We’ve had some great victories on such
issues as rent control, Sarbanes-Oxley, and even CAFE. And from Fred Smith
on, the people here have been a pleasure to work with. I knew that CEI had
planned a retirement party for me, but I was floored by what transpired.
There were innumerable kind words from colleagues both past and present,
compilations of my old media appearances, and even live music. As my wife
summed it up: Whaddaparty! Thank you, CEI. Kent Lassman (left) and Sam Kazman at
– Sam Kazman Sam's retirement party.

Sam Kazman speaks to reporters

outside the Supreme Court following
the oral argument in CEI’s challenge to
Obamacare

DonorsTrust President and CEO Lawson

Bader (left) and Sam Kazman

CEI Founder Fred L. Smith, Jr. (left) and

Sam Kazman at Fred’s surprise 70th
birthday celebration

COMPETITIVE ENTERPRISE INSTITUTE C E I . O R G 11

 The SEC Wants to Regulate
Green Funds, but Definitions
Are Elusive
BY RICHARD MORRISON
I n a recent video, Securities and
Exchange Commission Chairman
Gary Gensler explains his concerns
about investment products that market
themselves as “green” or “sustainable.”
According to Gensler, hundreds of funds
managing trillions of dollars claim that
their investments are serving some kind
of environmental, social, or governance
(ESG) goals beyond delivering returns
to their clients. He wants these funds to
be regulated in such a way that investors
can trust those claims, but his own argu-
ment demonstrates how this will likely
not be possible. When it comes to claims
of environmental and social virtue, the
investing public will be better off living
with the inescapable ambiguity.
In the video, Gensler notes the SEC’s
long history of regulating the names
of investment funds, going back to the
passage of the Investment Company
Act of 1940. He says that the goal of
these rules is to establish that “when a
fund company uses a name, you should
be able to read that name and trust
what it says.” Then he goes on to make
a relatable comparison: Investment
funds should be like a carton of skim
milk. When you go to the supermarket
and you see a carton of skim milk on
the shelf, you can trust that it is actually
fat free, because food companies are
required to print the fat content on the
carton.
The problem with generalizing this
idea to investing, and especially to ESG
criteria, is that the financial issues that
people most care about are not simple
and quantifiable. The terms that Gensler
cites—“green” and “sustainable”—are
inherently subjective. A lab can con-
firm milk’s fat content, but no high-tech
process can determine whether investing
in, say, nuclear energy rather than wind
12 CEI.ORG
power is “better for the environment.”
That’s a subjective value judgment.
How heavily should we weigh concerns
about long-term storage of radioactive
waste vs. the number of birds killed by
turbine blades each year? Should we
prioritize infrastructure that can be built
quickly or that will last the longest? No
spreadsheet formula can answer these
questions.
There is no objective answer to which
investment fund is the most sustainable
or environmentally friendly, because
different people disagree about how
those things should be measured. It’s
perfectly reasonable for Gensler to raise
concerns about potential investor confu-
sion, but solving that confusion with an
arbitrary government definition—one
that excludes multiple good-faith
perspectives—does not improve the situ-
ation. Going forward, our best option
is to create a bifurcated system: anti-
fraud protections for specific, falsifiable
claims with an open arena for inherently
subjective ones.
While big concepts like sustainability
don’t have a single objective definition,
some environmental terminology does.
A firm could easily create and market
a fund that tracks corporations that
are co-signers of the United Nations-
sponsored Principles for Responsible
Investment. Many funds already
exclude oil and gas companies or only
invest in wind and solar technology. If
a company advertises a fund based on
such straightforward criteria, it needs
to deliver; no firm should be allowed to
mislead investors with fraudulent state-
ments. Customers who want to pursue
what they consider to be “sustainable”
investment products could seek out the
most specific—and easily falsifiable—
claims when shopping for funds.
When it comes to vague terms,
the SEC should follow the Federal
Trade Commission’s (FTC) approach
COMPETITIVE ENTERPRISE INSTITUTE
when it comes to product claims. The
FTC polices advertising claims that
are outright lies but not ones that are
recommendations, general character-
izations, or “puffery.” As with the skim
milk example, a company can’t claim
that its hot dogs are 100 percent beef
if they are 50 percent pork, but it can
claim that they are “the tastiest hot dogs
in the world”—an inherently subjective
claim. It’s up to each consumer to weigh
conflicting product claims and determine
if, in their experience and by their own
judgment, such subjective assertions are
valid.
Many ESG and sustainability claims
are like the tasty hot dog. It’s a mistake
to ask if they’re “true” or not, because
different people have different perspec-
tives on what meets those definitions.
We can agree on where pork comes
from, but will likely disagree on the
advisability—and tastiness—of eating it.
What we don’t need is the SEC pursu-
ing a multi-year rulemaking process
involving measuring sodium and nitrate
levels to arrive at an official govern-
ment definition of delicious hot dogs.
Any attempt to regulate the definition
of a “green” investment fund would be
equally quixotic.
Richard Morrison (richard.morrison@
cei.org) is a senior fellow at the
Competitive Enterprise Institute. A
version of this article was originally
published in Real Clear Policy.
 CEI Summit Sante Fe 2022
T he Competitive Enterprise Institute ventured to the Land
of Enchantment and Opportunity for CEI’s sixth annual
policy summit during Rodeo Weekend—Thursday, June
23 to Sunday, June 26, 2022. Throughout the weekend,
CEI experts, friends, and supporters enjoyed vibrant
Southwestern art, cuisine, and culture. CEI’s Wayne Crews,
Myron Ebell, Daniel Greenberg, Kent Lassman, Jessica
Melugin, Richard Morrison, Iain Murray, and Joel Zinberg
discussed their work to reform regulatory overreach, technol-
ogy, and health policy to aid the nation’s post-pandemic
recovery.
Guest speakers included NetChoice President and CEO
Steve DelBianco, Arizona Governor Doug Ducey, Utah
Solicitor General Melissa Holyoak, American Institute for
Economic Research Distinguished Fellow Samuel Gregg,
and Zyvex Labs Founder Jim Von Ehr. Guests stayed at the
boutique Rosewood Inn of the Anasazi, just off Santa Fe’s
historic square. Excursions included the 73rd annual Rodeo
de Santa Fe; the immersive art experience at Meow Wolf,
“the house that art, fantasy, and mystery built;” and sculp-
tures conjuring America’s West during a private dinner at
Gerald Peters Contemporary Gallery.

Left to right: CEI General Counsel Dan
Greenberg, Donors Trust Vice President
of Programs Gregory Conko, State
Policy Network Senior Vice President
Carrie Conko, and CEI Vice President of
Philanthropy Heather Browning
CEI Vice President for Strategy Iain Murray
(left) and American Institute of Economic
Research Distinguished Fellow Samuel
Gregg
Left to right: DonorsTrust President and
CEO Lawson Bader, Facebook Public
Policy Manager Lori Moylan, and CEI
Technology and Innovation Policy Director
Jessica Melugin

Left to right: CEI Senior Fellow Richard Left to right: Dan Greenberg, NetChoice President and CEO Steve DelBianco, and Jessica
Morrison; Andrew Stuttaford, editor of Melugin
National Review’s “Capital Matters;” and
CEI President Kent Lassman

Left to right: Heather Browning, Zyvex Left to right: CEI Board Member Richard Kent Lassman (left) and Arizona Governor
Founder Jim Von Ehr, and Gayla von Ehr Tren, State Policy Network Senior Doug Ducey
Development Officer Christina Pajak, and
CEI Board Member Dana Modzelewski

COMPETITIVE ENTERPRISE INSTITUTE C E I . O R G 13

 THE
GOOD
Bipartisan Legislation
Seeks More Rational
Crypto Regulation
In June, Sens. Cynthia Lummis (R-WY)
and Kirsten Gillibrand (D-NY) intro-
duced the Responsible Financial
Innovation Act (S. 4356), to allow for
greater innovation in the growing and
changing field of cryptocurrency by
clarifying several legal concepts sur-
rounding the evolving technology.
“The bill pares back the overreach-
ing tax reporting provision of last
year’s Bipartisan Infrastructure Law by
clarifying that ‘brokers’ are only those
who handle ‘sales of digital assets
at the direction of their customers’
and not miners or software engineers
who have no interaction with crypto
consumers. The bill also generally
limits the jurisdiction of the Securities
and Exchange Commission to cryp-
tocurrencies that are actual securities
that share properties with stocks and
bonds, and creates more clear divi-
sions of authority over crypto between
the SEC and the Commodity Futures
Trading Commission,” said CEI Director
of Finance Policy John Berlau. “To
the degree the bill reduces regulatory
uncertainty and lifts regulatory barriers
to innovation, it takes some good steps
forward.”
14 CEI.ORG
THE
BAD
Biden Administration
Reverses Permitting
Reforms
In April, the Biden administration issued
new permitting rules for infrastructure
projects under the National
Environmental Policy Act (NEPA),
which reverses several Trump-era
reforms that were designed to expedite
permitting.
“The rule’s core function is to
encourage climate-focused litigation
against fossil-fuel infrastructure projects.
It will also gin up anti-development
litigation more broadly because nearly
all development projects including
highways, bridges, airports, port
expansions, and transmission lines,
will have direct or indirect impacts on
greenhouse gas emissions,” said CEI
Senior Fellow Marlo Lewis. “The chilling
effects on infrastructure investment
could occur very quickly. For example,
anticipating the new NEPA rule, the
Federal Energy Regulatory Commission
(FERC) recently adopted new
greenhouse gas reporting requirements
for gas pipelines and LNG terminals.
FERC’s new reporting requirements
have ‘thrown the entire process of
planning, financing, and applying
for a natural gas pipeline certificate
or approval for an LNG terminal into
disarray,’ Commissioner James Danly
testified in March.”
COMPETITIVE ENTERPRISE INSTITUTE
THE
UGLY
Court Ruling Opens the
Door to Federal Wealth
Taxes
In June, a three-judge panel of
the Ninth Circuit Court of Appeals
dismissed Charles and Kathleen
Moore’s constitutional challenge to
the Mandatory Repatriation Tax, part
of the Trump administration’s 2017 tax
reform law. This provision taxes U.S.
citizens on certain accumulated foreign
earnings going back 30 years, even if
the earnings have not been distributed.
The Moores argued that the tax violates
the Constitution’s requirement that
direct federal taxes must be appor-
tioned among the states, as well as the
Constitution’s prohibition on harsh ret-
roactive taxation. The Moores owned
shares in a foreign company founded
to produce agricultural equipment for
small farmers in India. They have never
received any income from the shares,
because the company has reinvested
all its profits in the business.
“This is an extreme ruling that
removes all limits on Congress’ abil-
ity to tax income,” said CEI General
Counsel Sam Kazman. “This opens the
door to several major new tax propos-
als, such Senator Elizabeth Warren’s
National Wealth Tax and President
Biden’s Billionaire Tax.” CEI has peti-
tioned for a rehearing.
 MediaMENTIONS
Columnist John Stossel cites CEI’s
Ben Lieberman on the hype about
gas prices.
“If big oil could raise prices anytime
they wanted and get away with it,
then why were they so cheap in 2020,
2019, 2018?” asks the Competitive
Enterprise Institute’s Ben Lieberman.
Lieberman points out that
companies are always greedy. Greed
didn’t just start now. They were just as
greedy when gas prices fell in 2019
and early 2020.
“It all comes down to cutting back
on supplies,” says Lieberman.
It’s not complicated. Prices change
because of supply and demand.
—May 18,
Creators Syndicate
Research Fellow Sean Higgins
ponders the consequences of
congressional staff unionizing.
The framework for congressional
staff to collectively bargain was
actually created when the newly
Republican Congress passed the
Congressional Accountability Act
(CAA) in 1995, requiring Congress to
follow the same labor laws as the rest
of the country, as part of the GOP’s
“Contract with America.”
Regarding unions, the Competitive
Enterprise Institute’s Sean Higgins
explains that then-Speaker of the House
Newt Gingrich “thought that if his
Democratic colleagues truly believed
that unions were so great, then they
should get them—good and hard.”
—May 13,
The Hill
COMPETITIVE ENTERPRISE INSTITUTE
Senior Fellow Ryan Young
explains how regulations
exacerbated the baby formula
shortage.
Like the baby formula shortage,
the COVID-19 pandemic represented
a terrible story. There was no upside
to shutdowns, lockdowns, and drastic
shifts in people’s lives because of the
coronavirus.
Yet early in the days of the
pandemic’s grip on American society,
CEI launched its #NeverNeeded social
media campaign. It highlighted federal
and state government regulations
that hampered Americans’ response
to COVID. As early as March 18,
2020, CEI’s Ryan Young already had
documented a significant number of
opportunities for reform.
Tariffs and supply chain barriers
prevented health care supplies from
reaching the places where they were
needed most, Young reported.
—May 14,
Richmond City Daily Journal
Senior Fellow Richard Morrison
weighs in on proposals to require
companies to disclose “climate
risks.”
As the scale of financed emissions
becomes better understood, the role that
banks will play in helping their business
clients meet climate commitments is also
coming under greater scrutiny. Some
shareholders are continuing to push for
wider ranges of disclosures, and the U.S.
Securities and Exchange Commission is
weighing new rules to make some levels
of reporting mandatory.
Shareholders are already deciding
whether companies should disclose more
information about their emissions, often
by vetoing proposals for more disclosure,
said Richard Morrison, a senior fellow
at the Competitive Enterprise Institute, a
libertarian think tank.
C E I . O R G 15
“Investors have
market power and
can use that to
demand things from
companies and asset
managers,” Morrison
said. “If demand
for this information
is not consistent enough for investors
to produce it, maybe the risk isn’t as
big as some financial institutions are
leading us to believe.”
—June 9,
American Banker
Senior Fellow John Berlau looks
back on the 10th anniversary of
the 2012 JOBS Act.
[Crowdfund Insider] spoke with
John Berlau, Senior Fellow and
Director of Finance Policy, Competitive
Enterprise Institute, and staunch
defender of access to capital. He
shared his thoughts on the anniversary:
“10 years ago, a GOP-controlled
House, a Democrat-controlled Senate,
and a Democratic president came
together to lighten the regulatory
burden on America’s upstart job
creators,” Berlau said. “On its 10th
Anniversary, the JOBS Act can be
called an unequivocal bipartisan
deregulatory success. If not as far-
reaching in its deregulatory scope as
other bipartisan achievements such as
airline and telecom deregulation, the
JOBS Act has resulted in significant
gains for startup entrepreneurs and
middle-class investors, including
women and minorities.”
—June 13,
Crowdfund Insider

1310 L Street NW, 7th Floor
Washington, DC 20005
...END NOTES
COVID Funds Gold Rush
The federal government doling out trillions in COVID relief
funds prompted a lobbying gold rush by businesses of all
types. Now add dance troupes and escape rooms to that
list. In April, the male dance troupe Chippendales retained
the services of high-powered lobbying outfit Greenberg
Traurig to help it tap into a program to aid movie theatres,
music venues, and other entertainment businesses that were
shut down during the pandemic, reports Politico. This follows
a similar move by ERGO, a new trade group representing
escape rooms (an in-person game experience in which
player escape a locked room by solving a mystery based
on certain clues), which retained the lobbying firm Cozen
O’Connor Public Strategies’ Towner French last year.
Fed Formula Fiasco
Trade restrictions and regulations helped cause the baby
formula shortage—but that’s not the only thing the feds
have done to make the problem worse. In November 2019,
the U.S. Department of Agriculture (USDA) advised clinics
run by state-level Women, Infant, and Children programs
to “dispose of unused, returned … infant formula,” which
“may have been inappropriately stored … , may be past its
use-by-date, or subjected to tampering,” reports Reason’s
Eric Boehm. Several states, including Georgia and North
Carolina, followed the USDA’s advice. “Of course, the
USDA’s worries about how returned formula might have
been stored are worth taking seriously,” notes Boehm. “But
in an environment where parents are scrambling to find any
formula, those risks seem relatively less significant.”
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Get Graffitied, Pay a Fine
Guarding against vandalism is a common headache for many
businesses—but getting fined for it? Graffiti taggers are hard to
catch, so San Francisco has taken to fining the victims instead.
In April, the city’s Board of supervisors reinstated graffiti fines
on businesses that do not clean up graffiti from the outside
of their premises within 30 days, reports the Bay Area news
site SFist. Business owners have an incentive to keep their
storefronts looking clean and well maintained, which makes
the fines redundant at best and counterproductive at worst.
As for individual business owners, the fines probably feel like
the city piling on. Viet Nguyen, owner of Gao Viet Kitchen,
received a graffiti violation notice from the city in July. “They
give you 30 days to clean it up, guess what you gotta do? but
you clean it up and the next day it’s going to happen again,”
Nguyen said. “So what do I do? It’s really frustrating.”
Feed the Homeless, Pay a Fine
Two churches in Pennsylvania were recently threatened
with fines over their efforts to help the homeless. In June,
officials in Pottstown Borough, northwest of Philadelphia,
wrote to Christ Episcopal Church and Mission first, warning
that offering free meals, food pantries, and essential items
such as soap and toothbrushes fell outside of the Pottstown
zoning code’s definition of “church,” reports WHYY. The
letter states, “It is the opinion of this office that the use of the
property has changed, and by definition, is more than that
of a church.” “It’s a sad state of affairs,” said Clare Schilling,
director of Mission First. She said the church plans to appeal
the violation. “We’re not going to back down. We’re not
going to stop doing what we do because that’s just what the
church does. That’s what we do. We help people.”
COMPETITIVE ENTERPRISE INSTITUTE