Joel Thayer
Trust among our representatives is the key to legislative success. Last Congress, we saw Democrats and Republicans trust one another enough to solve real problems facing our nation. Each side of the aisle expended extraordinary political capital within their own parties to address critical issues, most notably in the tech and telecom space.
That trust was validated and rewarded. For example, 42 million Americans are on the wrong side of the digital divide. Adults without Internet access cannot participate in today’s economy. They cannot leverage remote education, learn of and apply for employment opportunities, or conduct a video visit with their physician. This drove a bipartisan Congress to include the single largest investment in our broadband networks to date as part of the Infrastructure Investment and Jobs Act (IIJA).
Congress also worked together to combat the national security threat posed by China’s Herculean control over chips and semiconductor supply chains. Chips are becoming an increasingly finite resource, and China is buying almost all the supply.
What’s more, everything from our critical infrastructure, like electric grids and telecom networks, to everyday products, like refrigerators and mobile phones, runs on them. Absent intervention, China was poised to become our almighty gatekeeper of innovative products for every economic sector. A bipartisan Congress came together to thwart that threat and incentivize semiconductor manufacturers to fashion their chips here in the U.S. with the passing of the CHIPS and Science Act (CHIPS Act).
In short, trust allowed Congress to get things done.
The current slim majorities in each House require Democrats and Republicans to trust each other if they are going to legislate. But trust can be an ephemeral currency — it must be continually earned.
The Department of Commerce’s recent attempts to implement both laws, however, runs the risk of undoing all the bipartisan goodwill those negotiations achieved. Instead of focusing on the programs’ bipartisan objectives, the Department is treating its work as a vessel to set forth a vision for progressive industrial policy.
For example, the IIJA requires the Department to provide equal treatment for government-owned network operators and private network operators to seek broadband funding. Instead, the Department has effectively said that states must give government network operators a right to first refusal before considering private companies. Ignore Congress’s direct orders is bad enough. But, worse, this direction could turn the IIJA into yet another government boondoggle, wasting billions of taxpayer dollars and leaving those 42 million Americans behind.
After all, government-run networks have poor track record of actually providing the services they promise.
That’s not the only bipartisan agreement the Department broke. Congress put a tech-neutral mandate in the bill to ensure there would be enough funding to help all Americans, but the Department has mandated fiber first, threatening to leave those in rural and remote areas in the digital desert.
Congress was focused on deployment, but the Department has created whole-cloth new rate regulations and cumbersome climate change mandates on IIJA broadband funding recipients —measures that will deter broadband buildout and make it more costly, especially in areas like the hollers of West Virginia or across the Mountain West.
The Commerce Department is taking a similar approach to the implementation of the CHIPS Act. Congress made it clear that it wanted a practical and targeted approach to address costs and make chip manufacturing easier, such as alleviating local permitting costs and providing loan guarantees to build chip facilities.
But the Department is pushing progressive policy objectives — such as requiring recipients to make “community investments” in affordable housing, local schools and community colleges, and local transit and take action to fight climate change — requirements that were never part of the spirit or text of the CHIPS Act.
None of these added requirements get us closer to incentivize more chip production in the U.S. to fight off China’s dominance or create safer supply chain chip production. Or as liberal blogger Matt Yglesias put it: “What Biden is doing on CHIPs is acting like he doesn’t actually favor semiconductor-oriented industrial policy and just found a pot of money to spread around on various things.”
The Commerce Department ignoring bipartisan congressional agreement is bad as a matter of law and undermines the goals of these acts — building out affordable broadband and taking the lead from China on semiconductor manufacturing.
But what may be worse is such disregard will undermine future congressional negotiations on other reforms. It will no doubt erode the trust needed if the Biden administration wants to address other necessary reforms, like alleviating Big Tech’s monopolization to protect consumers, advancing America’s prominence in 5G and AI, and promoting children’s online safety.
The only way forward is for each party to trust the other and have it reaffirmed with good-faith implementations on the executive level.
Joel Thayer is the president of the Digital Progress Institute and principle of Thayer, PLLC. He focuses his law practice on telecommunications, regulatory and transactional matters, as well as privacy and cybersecurity issues.
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