One of the most difficult issues addressed by the Founding Fathers was how to balance the rights and responsibilities of the three levels of constitutional government: the federal government, state governments, and the people (as in, “We the People”).
For more than two centuries, liberals have stretched the “Commerce Clause” of the Constitution to shift as much power as possible to the federal government, while conservatives have struggled to restore power to the states and the people. Of course, liberals have won more of these battles than they’ve lost.
But conservatives must not lose sight of the fact that the Commerce Clause is important. It is there for a reason!
The founders understood that there are times when commerce between the states needs to be preserved for the good of the nation. They understood that it would be improper for one state to engage in protectionism at the expense of the other states, or for one state to impose its unpopular views on the whole nation.
Federal overreach—on issues ranging from healthcare mandates to regulating the landscaping in your own backyard—destroys the balance established by our framers and undermines the freedom that is the core birthright of every American. Fringe localities engaging in efforts to override the majority’s democratic judgments on national questions (like establishing “Sanctuary Cities”) causes the same offense.
The newest danger in this long debate is the threat by a handful of liberal states and cities to undermine federal policy on the Internet by seizing local control of cyberspace, an action that flies in the face of the framers’ design in which the federal government is to regulate “interstate” commerce, putting the entire Internet ecosystem at risk. The FCC must act quickly and firmly to pre-empt state and local obstruction of the national, interconnected broadband ecosystem, which can only function if the rules are the same whether you’re in Los Angeles or Louisiana.
This threat arises in response to the Federal Communications Commission’s current effort to streamline the regulations for broadband and return the “light touch” rules in place during the Clinton and Bush administrations. In 2015, former President Barack Obama’s FCC chairman abandoned that approach and forced archaic Depression-era “utility rules” on broadband in order to micromanage prices and network operation.
Those rules are stifling investment in newer and faster networks and derailing innovation we need to remain a global leader in broadband. One study found that private investment in broadband networks dropped by $2.4 billion during the first two years of these utility regulations – the first such drop in Internet investment since the Great Recession back in 2009. And another predicts the problem is going to get much worse, with as much as $35 billion a year in network build-out at risk, putting jobs and innovation on the chopping block.
The new leadership at the FCC has wisely sounded the alarm and plans to unshackle broadband by returning to the traditional market based pro-investment regime. But in today’s political environment where any ambitious liberal can make a name (and build a fundraising list) opposing this administration, a handful of states and local municipalities are threatening to re-impose the same failed utility rules on broadband.
It’s economic sabotage, introducing impossible and unmanageable local roadblocks into the seamless, national, digital architecture of the Internet. In principle, it’s no different than chopping fiber cables at the state border, and no less harmful to consumers suffering under this obstruction and regulatory abuse. From streaming movies to GPS navigation to social media, the Internet cannot function if it is balkanized with 50 different sets of rules and requirements, or far more if cities and counties get into the act.
The private sector has spent trillions of dollars creating the nation-wide infrastructure to make the Internet what it is today. Nothing is more “interstate” than that. Like the navigable waterways or nation-spanning railroads of generations past, the Internet can only work as a unified, comprehensive whole. And no one state should be allowed to claim the in terrorem power to shut it down. Unlike laws of general applicability (like criminal law, consumer protection law, and land use law), efforts by state and local governments to control the Internet go beyond the framework established by the founders.
Fortunately, the FCC has the power to quickly and decisively address this violation. Its order restoring the Clinton-era light touch approach to broadband should plainly identify broadband as an interstate commercial activity and bar local jurisdictions from interfering with the comprehensive national plan for this vital technological resource. This is how the rights of the people can best be protected and served.
Daniel Schneider serves as executive director of the American Conservative Union.
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