A quick response after reading last Wednesday’s lengthy, startling, and troubling letter from Sen. Elizabeth Warren and Rep. Pramila Jayapal to Commerce Secretary Gina Raimondo: Don’t charge people with bad faith unless you have evidence of it. Progressives can do better.
By way of introduction, the two Members’ letter continues a correspondence begun in July whose point of departure is a disagreement on digital trade policy matters such as cross-border data flows, divergences in national privacy regulation, and data localization. Sen. Warren and Rep. Jayapal object along left-populist lines to potential Biden administration negotiating positions on some of these topics in trade venues such as the Indo-Pacific Economic Framework and U.S.-EU Trade and Technology Council.
Were these disagreements the core of their letters, this would be the standard stuff of Congressional correspondence and advocacy. Digital trade issues are intellectually and technically complex. Conclusions about the best way to define U.S. interests on them can vary in good faith. And while Sen. Warren and Rep. Jayapal may be mistaken, dissent is perfectly legitimate and their rights to their opinions are obvious.
But the core of their letter is not the substance of policy but an insinuation – unsupported by evidence – that the Commerce Department is forming its positions in an improper or even a corrupt way and is likely pursuing specifically tech-industry goals rather than acting on good-faith Biden administration judgments about American interests. The letter uses two quite troubling lines of argument to back this up:
(1) Charges without evidence: For the Commerce Department as a whole, the letter notes that “several former employees” of tech firms work at the Department, and uses this bare fact to claim that “Big Tech” has an “untoward influence” on trade negotiations and may be “exploiting the revolving door with the Department” to set policy from outside. Apart from noting that several Department officials once held tech-sector jobs, the letter provides no evidence that the Commerce Department has taken any decision on any grounds other than its best assessment of U.S. interests and policy goals.
(2) Guilt by association: For individual officials, the letter cites past tech sector employment as evidence of “Big Tech’s current influence within the Department”, and a likelihood that “the Department’s revolving door with Big Tech firms will provide those companies the avenue they need to push their proposals across the finish line.” That is to say, some Department officials are pushing for goals they know are not in the general interest. Again, the letter does not cite any specific case in which any individual might have acted in bad faith, or provided advice that he or she did not sincerely view as good policy
The October letter, as did the July letter, then concludes by asking for lengthy lists of names – all Commerce appointees and civil servants who have previously held tech-sector jobs; all who left the Department after President Biden’s inauguration for tech-industry work – and accompanying lists of all tech-industry meetings these officials attended, or for which they helped in preparation and follow-up work. Again, no such list would provide any evidence of bad faith or improper policymaking.
Two thoughts on this:
First, as a practical matter, the letters’ premise leads to an absurd conclusion about policymaking and government personnel. To wit, U.S. government agencies should never employ people from sectors in which they have any oversight or policy responsibility, because such a person will inevitably put the interest of former employers above the national interest and his or her sworn duties. Applied to the Department of Agriculture, for example, such a standard would bar hiring farmers or people who might want to work in production agriculture later on. At the Centers for Disease Control, the presumption would be against hiring doctors and public health professionals. The Labor Department would likewise be well advised to avoid union members, and the Transportation Department should steer clear of airplane pilots and bridge architects, and even the Justice might need to stay away from anyone with a law firm background.
Second and more fundamentally, this premise – past employment with tech firms should entail presumption of bad-faith policymaking, and the Department and the individual officers need to disprove it – is wrong and unfair. Accusations of bad faith policymaking should require evidence of wrongdoing. American government officials, whether civil servant or political, qualify for their jobs based on three things: (1) they take an oath of office; (2) they pass an FBI security clearance investigation at the appropriate clearance level; and (3) they understand and respect national ethics laws and administration policy, for example by recusing themselves in cases these laws and policies define as posing a conflict of interest. If there is evidence that any official has fallen short on these responsibilities, provide it. If not, keep your argument to the merits. But neither letter provides any evidence that any Administration official has fallen short on any of these responsibilities.
The digital trade agenda as such is important in immediate economic terms, and more basically as a question of future world Internet policy. Obviously it has lots of implications for growth, for science, and for individuals. There’s no reason to shy away from spirited debate over it. But there’s also no reason at all to substitute attacks on character and integrity for this sort of debate. Progressives really need to do better.