One of the themes I frequently touch upon in my writing is the difference between campaigning and governing. It’s easy to criticize and to suggest what should be done in the abstract, but legislating rarely presents such easy questions that can be simply resolved by an application of the Republican creed or conservative principles. That’s one of the reasons why I look suspiciously on candidates for public office who are long on ideology and short on experience.
A perfect case in point is a bill that just passed the Senate last night unanimously. The bill would allow consumers to unlock their cell phones, change carriers and make other changes, without impairment. The issue of unlocking cell phones to allow them to be altered by owners, including changing carriers [1], has been debated for almost a decade, since the rise of expensive smart phones. In exchange for limiting their choices and locking consumers into long term contracts, telecom giants like Verizon and AT&T promised access to better services, faster speeds, 3G and LTE networks, and rebates and subsidies on phone prices. That became the standard business model in the industry, and if you’ve got a smart phone, you’re familiar with it.
The Digital Millennium Copyright Act banned unlocking of phones, but after pressure from outside groups, copyright restrictions were relaxed to make phone unlocking legal, but it still violated contracts and usually voided your warranty. The new bill would pave the way for ending all of that, and the carriers have all agreed (under heavy FCC pressure) to allow unlocking by 2015.
If you’re a Republican, this should all make you feel generally uneasy. Why? Not because this is somehow controversial – it passed under UC in the Senate, which means it wasn’t – but because it forces Republicans to pick between two fundamental principles.
From a free market and constitutional conservative perspective, what happened here is yet another example of the federal government interfering in the market, forcing a top down solution through regulatory action using an overly expansive Commerce clause interpretation. The Constitution under Article I, Section 10 clause 1 forbids Congress from making any laws that would impair the obligation of a contract, but that hasn’t stopped Congress from interfering in the contracts at issue here. In fact, here you’ve got both the Executive and Legislative branches, through the FCC, the Librarian of Congress, and Congress itself making market decisions about the arrangements that telecom companies can make with their customers. It is textbook big government.
From a libertarian perspective, this is a blow against corporate greed, a protection of private property rights, and an expansion of liberty. The major carriers were acting in concert in restraint of free trade, barring people from using devices in the way they saw fit – devices that they bought and paid for and shouldn’t be restricted in using. Government had made it possible for these corporations to limit choice, and here government was acting to remove that impediment and allow greater choice, and thus greater liberty. Whenever government acts to reduce choice, it restricts liberty, and conversely, when it acts to enhance choice, it enhances liberty. And that they were able to enhance liberty here after ignoring the lavishly funded lobbying and political efforts of the telecom industry is a breath of fresh air.
So what is the right answer? How would you have voted? Free market or libertarian? Limited government or reducing the power of corporations?
This isn’t the exception to policy arguments – this is the rule. There are few, if any, issues in governance than can easily fit into one talking point of the Republican Creed or conservative philosophy. Most issues require more than the simple overlay of an ideological stencil to draw the proper Republican policy picture.
And this is also why most of the “scorecards” you’ll see from various groups are fundamentally flawed. How would anybody score this vote? How would the Tea Party score it? How would the libertarians score it? I have no idea, and I think it’s likely that they wouldn’t score it at all because of the difficulties presented. Most legislation, short of bills specifically introduced on behalf of the scoring organizations to give them something to score, is going to be similar to the phone unlocking bill, where you can pick your principle and flip a coin on whether voting in favor was right or wrong.
Until you’ve had to sit there and tease out these issues and finally make a decision, it’s very hard for anybody to predict how they’d come down on this kind of an issue. It’s not something you can talk about in a campaign because it’s too detailed, and it’s not something that most people are talking about, despite being something that will affect almost everybody. And no matter what side you come down on, somebody is going to criticize you for it. You’re either a big government faux-Republican, or you’re in the pocket of the US Chamber of Commerce and against your fellow citizens.
Politics ain’t beanbag, but it’s also not as easy as some would have you think it is. You can’t just apply talking points to every issue – even most issues – and always get the decision right. And beware anybody who tells you that you can. Either they don’t know what they’re talking about, or they’re trying to pull the wool over your eyes to win a vote or get your money.
The real world is never as neat as we’d like it to be.