I’ve talked before about how I’ve changed my views in light of recent events, and also about how they’ve been reinforced. The main way they’ve been reinforced is in demonstrating the abusive potential of Big Government programs, which make private institutions dependent on government funding and vulnerable to government regulation.
One of the main examples is the Federal Communications Commission. See an in-depth podcast I recorded with Paul Matzko about the long history of the abuse of the FCC’s power.
I took up that theme again in my latest column for Discourse.
There are many chickens coming home to roost in the second Trump administration. For more than a century, we have been creating weak spots in our constitutional system that pose a huge potential for abuse by a power-hungry chief executive. Now Donald Trump is seeking all of them out and using them.
Let’s zero in on one particularly dangerous area: his abuse of the Federal Communications Commission (FCC), the regulator for the airwaves and therefore for broadcast media.
I point to a specific case that I think ought to be one of the top scandals of the Trump administration.
Paramount Global, the parent company of CBS, has long been pursuing a merger with TV and film production company Skydance. But the merger requires FTC approval—and the FTC requires the FCC to certify that transferring the broadcast licenses of CBS stations to Skydance would be in the “public interest.” Which Brendan Carr has indicated he might not do.
Meanwhile, Donald Trump is personally suing CBS over a “60 Minutes” interview with his 2024 rival Kamala Harris, because Harris performed well in the interview, and Trump claims that was only due to “deceptive editing.” This case is an obvious assault on the editorial freedom of CBS and would quickly be rejected in court as a violation of the First Amendment. But Paramount is considering settling the suit anyway and paying millions of dollars to Trump. The idea has gotten far enough that “60 Minutes” producer Bill Owens resigned in protest. This was shortly after Trump demanded FCC action because he was angry at those reports on Ukraine and Greenland—and Paramount Chairwoman Shari Redstone demanded to track other upcoming “60 Minutes” coverage that might anger Trump.
This is how the FCC’s “public interest” requirement gives the US president the power to punish criticism and suppress positive portrayal of his political rivals.
I conclude that, in the long run, “We can’t have both an expansive and active regulatory state and a free society.”
Peeling back the dependence of much of society on massive government grants will be difficult, but there is one easy thing we can do that could be enacted by Congress tomorrow: We can end the arbitrary power of the FCC. Shrink it down into a technical office for the registration of broadcast rights—but revoke its capacity to make judgments about whose broadcasts are in the “public interest” and whose news reporting is “distorted.”
All Is for the Second-Best in This Second-Best of All Possible Worlds
I recently explored the case against the “unitary executive theory.” As a follow-up, The UnPopulist published a case by a libertarian-leaning constitutional scholar who supports the unitary executive in theory but argues that it is unwise to impose it in practice.
In a constitutional system working as the Founders intended, there would be no problem with the president having the power to remove all officers at will….
But that logic assumes a virtuous republic—the kind of society men like Hamilton, Madison, and Adams believed essential for our Constitution to endure….
We do not live in that republic. Our electorate does not reliably choose presidents capable of exercising vast authority with restraint. Our Congress lacks the spine to impeach when it matters. We reside in a second-best world, in which our Supreme Court is limited to second-best choices.
The obvious rejoinder is that while our Founders may have advocated for a virtuous people, they did not expect or design our system around perfect virtue. They did not expect all men to be angels, in Madison’s formulation. So a constitutional interpretation that is most compatible with allowing the system to work even under second-best circumstances is far more likely to be the correct one.
Hear, hear!