Celebrating National IP Month

October may bring to mind football, the World Series, harvest season, a chill in the air or shortening days. However, we should keep in mind that October is National Intellectual Property Month.

Intellectual property is one type of private property. Just like a deed to land or a title to an automobile, a copyright, patent or trademark is someone’s title to the fruits of his or her mind’s labors.

Unique to IP is its nature as property that didn’t previously exist. A painting, sculpture, movie, book, or a commercial mark, such as a corporate logo or slogan, each constitute newly created property.

Thus, the one who created an original work naturally owns the work she or he created. IP is not a right the government grants. No, what the government gives, the government can take away. IP rights are inherent just like life, liberty and property. God generously shares with human beings, His image bearers, the faculties and abilities to discover and to fashion creations from things found in nature. Only evil governments deny people or private enterprises the fruits of their labors, associated investments or calculated risks.

Good governments secure the inherent ownership rights of creators and inventors. Good governments respect IP rights. Good governments uphold those rights, for instance, through the rule of law, fair and impartial judiciaries, rules- and evidence-based procedures that ensure IP owners’ ability to enforce their rights against infringers.

America’s Founders considered IP so crucial to the success of the United States, they included IP rights in Article I, Section 8, Clause 8—the only place in the original U.S. Constitution where the word “right” appears. Our first president, George Washington, urged Congress to exercise that provision by sending him patent and copyright laws to sign. Congress obliged Washington.

As I discuss in my book, To Invent Is Divine: Creativity and Ownership, the American IP system most closely implemented the biblical IP model. Our system was designed to reward ingenuity and creativity with exclusive ownership of one’s own created works, to guarantee inventors and creators enjoyment of the fruits of their labors. That includes having a clear field to commercialize a created work and creating wealth. Meanwhile, the benefits flow to our economy, raise the country’s standard of living and improve the human condition in the process.

National IP Month reminds us that IP, inventors and creators have, by design, long played a central role in America’s success. This October, let’s celebrate the Founders’ insight and vision and the vast fruits of intellectual labors for more than 200 years.

Big Government and America’s Historical Treasures

In July, the Advisory Council on Historic Preservation proposed changes to regulations concerning section 106 of the National Historic Preservation Act. Section 106 relates to protecting historic sites from damage or destruction in federally related projects.

Regrettably, ACHP apparently intends to curtail by regulation the federal government’s statutory obligations to avoid damaging or destroying historic treasures, to mitigate their harm, and to afford state, local and private citizens their rights to due process such as notification, public comment, etc. when federal threat to a historic treasure arises.

Conservatives for Property Rights has consensus principles on public land holdings and use. For the most part, these principles focus on encouraging reduction of federal land holdings and deregulating its use by private parties, such as for drilling and mining rights.

The principles also recognize legitimate reasons for the government to own certain property. Our principles read in part: “Government holdings of land must serve an important, demonstrable public good, such as the preservation of a battlefield as an important historic site and an irreplaceable national treasure."

The section 106 proposal involves a corollary to government property ownership: the federal government’s responsible to safeguard America’s unique features, including through its involvement in projects on or near assets held by state, local or private parties.

In this instance, the feds propose to pretty dramatically reduce the input of the people and governance in the affected area with respect to the affected property’s historic significance. This amounts to the government’s shirking its responsibility.

Not everything over 50 years old warrants historic preservation status or concern for its damage from a local project the federal government contributes to. As the Bipartisan Policy Center notes, there’s room for reform around section 106.

In sone places across the United States, historically significant sites, features, objects, etc. are unearthed regularly and valued. Other places don’t bother about historical features very much. Where historical assets play an important role in the local economy, such as in tourism, the proposed 106 regs pose a serious threat as well as a disservice to our country—this happening in the year in which Americans’ attention to our history is heightened due to our nation’s 250th birthday celebration.

The federal government owes the nation the performance of a reasonable degree of due diligence any time historically significant, unique buildings, sites, and structures are in danger of becoming collateral damage and lost for ever.

Moreover, Congress is actively legislating on permitting reform and related section 106 issues. Article II bodies such as the ACHP should defer to the Article I branch. These facets of the postmodern Administrative State should back down until the legislative branch has concluded its policymaking.

The proposal by the Advisory Council on Historic Preservation appears to go too far. It would give the federal government too much discretion. That’s especially the case regarding whether to notify local authorities and to take public input when a historic site is jeopardized by a project. CPR’s principles also say, "Public lands policies should mitigate adverse effects on state and local jurisdictions.”

Empowering the government—especially the federal government, which is so distant from the thousands of potentially historically significant features—to deprive due process and undermine federalism is not reform or responsible stewardship.

ACHP has proposed a broad power grab that disenfranchises those whose views should be primary and informative where the fate of local or state historic treasures are concerned.

The Filibuster: Principle Over Expedience

In a recent debate of South Carolina candidates in the GOP primary election for U.S. Senate, three of the five contenders present espoused the demise of the Senate’s filibuster rule. Each indicated that he or she would eagerly work to eliminate this quintessential procedure preserving unlimited debate.

Why would they embrace such a dramatic step, erasing the Senate’s hallmark distinction of two centuries? Especially given its strong, principled conservative support for this important element of the Constitution’s checks and balances.

President Trump wants the SAVE America Act, which among other reforms would require voters to show an ID to vote, on his desk ASAP. He wants it in law yesterday, which the voter ID provision should be because it’s so common-sense. These candidates’ parroting Trump’s wish is simply seeking brownie points.

It’s not as simple as Trump portrays. SAVE has provisions that will result in legal challenges and likely some of the sections canceled on federalism grounds—one reason the bill doesn’t have the votes.

The president has latched onto expediency. He’s been badgering Senate Majority Leader John Thune to change Senate rules and get rid of the filibuster. More precisely, the rule change would lower the threshold for invoking cloture, i.e., ending debate on a measure, to 51 votes.

Republican Leader Thune and nearly all Republican senators oppose that shortsighted tactic. The filibuster requires a 3/5 supermajority to proceed to debating legislation or voting on legislation.

Grousing about the Senate’s filibuster isn’t new. Some Republicans called for changing cloture rules when Democrats used the filibuster to block President George W. Bush’s nominees. Democrats have advocated ending filibusters when the shoe was on the other foot, such as during the Biden years as the Left pushed expediency to enact much of the Green New Deal and other extremist policies.

I began my career in Washington working in the U.S. Senate. I learned more about and came to greatly appreciate the vital nature of the filibuster. Its role is to safeguard against the tyranny of the simple majority. Extended debate can help facilitate discussion and negotiation—serving to ensure the Senate is the cooling saucer to the House’s hot tea, as President Washington put it.

Those with only U.S. House experience tend to underappreciate the essentiality of the Senate’s filibuster. That’s why imprudent firebrands hop on the unwise “kill the filibuster” bandwagon. When I worked on the House side, I saw this immature position arise every time there was a tight partisan margin, which is the source of the current impatience.

As a Capitol Hill staffer and a lobbyist, I’ve seen more defensive legislative wins than offensive ones because the Founders designed Congress that way. Many times, the House has passed legislation that died in the Senate because of the supermajority requirement for invoking cloture.

There are procedural revisions that could help revive the “talking filibuster.” But reducing the U.S. Senate to a simple majoritarian body like the House would be a disservice to the Founders’ intent of a body characterized by thorough debate and working out a mutually acceptable measure—even though it may slow the process. That model has served America well for a very long time.

Granted, it isn’t perfect or foolproof. But its elimination would be destructive of the best interests of our country.

The cooling saucer function would be gone permanently, relegating policymaking to the sort of swings we’ve suffered under in recent years—back and forth, a pendulum from one administration’s policies to the next one’s. Only then, it would be dramatic swings in statute instead of more temporary measures like executive orders and regulations.

I cannot in good conscience or my best judgment vote for someone who would remove the protection the filibuster provides our nation. Candidates and voters must think better of giving either party a much clearer shot at enacting unwise or extremist legislation.