Thursday, May 22, 2014

Clarifying an Earlier Post

NOTE: These four essays were reproduced from my now defunct blog Random notes, as they are referenced in my upcoming post on elective government and monarchy.

I received one comment on my post "Katrina and BP" which I expect represents a pretty common mainstream conservative response. And it illustrates many of the things that concern me about today's conservatives, mainly the fact that we have become far too complacent about turning to government and have internalized a lot of left wing ideas, assuming they are "common sense" rather than the leftist beliefs we would have recognized them for a few decades ago.

The three points I wish to address are as follows:
1. That the spill was a federal issue, as it occurred so far out it was in federal jurisdiction.
2. That "sensible safety regulation" is a proper function of government

3. That the government should act first to clean up then bill BP.
As that third is the most dangerous, I will address it last and at the greatest length.

The first sounds sensible at first blush, but I would argue is actually quite wrong for many reasons. You see, the whole cleanup rests upon the idea that this is a "disaster" which needs immediate action. However, oil floating so far out at sea that it is not claimed by a state does not impinge on man's well being*, so how can it be a disaster, unless we accept environmental dogma that "hurting nature" is a crime? Yes, if BP were cleaning this up, they likely would want to act at the well to minimize costs, but for it to be a disaster it has to touch man, and by that time the oil is well in state waters, and is a state matter. Thus, I would argue, forcing the feds to act shows either a loss of federalist principle or an acceptance of extreme environmentalism. Neither is consistent with conservatism.

As I suggested, the proper response was to not panic, to allow BP to act (and removing stupid restrictions on the use of foreign equipment, etc to allow them to act), and then, should BP fail to act, or act insufficiently, either to allow individual suits to reimburse those harmed, or, if the states felt the damage severe enough, for the states to declare an emergency and act as they see fit**.

With regard to the second, I will say little, as I just wrote  "Who Is Safer?" and "Worker Safety" on that topic. I know many conservative support "common sense regulation", but I believe doing so is like supporting "common sense welfare", it leaves open the door for the implementation of the full left wing agenda. Once we concede some of the left's arguments, we concede them all. ("Inescapable Logic", "Recipe For Disaster", "The Endless Cycle of Intervention",  "The Cycle of Compassion", "Government Quackery") In addition, as I argued in several essays cited above, and even in "In Praise of Contracts", private agreement is always better than government intervention, and businesses look after their own safety interests better than the state with its political concerns and lack of financial interest. However, since many will not see the sense in that argument, no matter how hard I try, I won't bother repeating myself one more time. (For those interested, they can read "Greed Versus Evil", "Gun Control, The FDA and Regulating the Law Abiding", "Professional Education", "Licensing", "Business Licensing and Regulation", "Bad Economics Part 12", "Real Life and Regulation" and "Insider Trading".)

Which brings us to my main point, the third argument. And perhaps the best illustration how accepting even a few of the principles of the left, on a "pragmatic basis" can lead to conceding much more than one thinks. ("The Shortcomings of Pragmatism", "Pragmatism Revisited", "Pragmatism Revistied, Again")

This argument was that the federal government was perfectly right to act first, and then present the bill to BP. And, I am afraid, many probably agree with that idea. However, if we drop the context of a "crisis" or "emergency" and look at the general principle, I think we will find that it is truly a very bad idea. In fact, that by doing so we set the stage for quite extensive federal intrusion into the economy.

Let us take one example. If this is proper in a large crisis, why not a smaller one? Say GM makes cars with defective brakes. Rather than let the individual owners sue, why not reimburse them from the federal government and then simply bill GM? After all, it is the same principle, making the crisis right, make sure everyone is protected, and then billing the guilty party***.

And sadly, again, many may agree. But look at the problems with this approach. First, since the government expects reimbursement, there is even less reason to economize, and the government is not known for frugality anyway, so it is likely the state will be willing to spend quite freely, meaning the eventual bill will doubtless be many times what it would were cooler heads responsible for making things right, which is unfair to the "guilty" firm. In addition, as the topic will become a political hot potato, doubtless government spending will escalate even more as time goes on, as any "stingy" action will be exposed by indignant reporters, meaning government will spend lavishly. In addition, anyone denied reimbursement will likely take their sob story to them media, and, provided it is a politically sensitive topic, that is certain to get coverage. As a result, no one is likely to be denied, to, at best, only the most egregious cases will be denied****.

But there is more. For example, since it is a "crisis", likely the government will act without determining fault. However, having spent the money, they will certainly bill the company they believe to be to blame. But, will they bother with a trial? Or will they rely on public outcry, bad PR, and the threat of congressional hearing to effectively impose guilt on the firm without trial? In other words, use public indignation and political rhetoric to circumvent criminal and civil liability. And, what if later it si found somethign else wa at fault/ What if it was a natural disaster beyond the control of the "guilty" firm? Or even the fault of someone else entirely? Somehow I doubt the state will reimburse the firm. Or retract the heated rhetoric they have no doubt heaped upon them.

But maybe this will be more clear if we move to a smaller example. After all, if a smaller disaster can justify the government involving itself, why not smaller still? If the general principle is admitted that when there is harm and people need immediate help that the the government can involve itself, is there any civil wrong which cannot somehow qualify? If you get food poisoning, why not have the state pay your medical bills and lost wages, then bill the chef? 

And that may show what is wrong here. It takes what is a private wrong and turns it collective. Whether a big disaster or small, a wrong is still between two parties. Once the government steps in, everyone becomes involved, and often that means justice suffers. Since the government is now paying, using the money of all of us, we expect repayment, and we likely will expect it from the one the government dubs guilty, whether they are or not. And that means that the civil, or criminal, courts will most likely be avoided entirely. I know there is a constitutional prohibition against bills of attainder, but that does not mean that regulators and government agencies cannot bill firms, and that the congress cannot use threats of regulatory action, hearings, or denial of mergers and other abuses of power to get what they want. (Just look at how the states bullied the tobacco companies into the multistate settlement, or the way the government abused GM's shareholders, not to mention their regular harassment of oil companies.)

Which is my complaint here. Once we turn to the state first, ask them to make things right then present the bills, we are basically asking politicians to act as judges, which removes one of the basic safeguards of our rights. The proper response, as I said above, was to let BP fix the problem, let them try to repair everything before anyone had grounds for suit. Then if they could not, allow lawsuits, or threats thereof, to resolve matters, with states stepping in only if absolutely necessary, and the federal government involved only if even that failed. We certainly should not turn first to government to fix a private problem, even if e can rhetorically say "it touches all of us".

After all, what does not conceivably "touch all of us"? By that standard everything is a proper government interest.


* I suppose some fishing and other aquaculture may be harmed, but that hardly rises to "disaster" status in my book. It is a sign of how comfortable we are with big government that the instant anything goes slightly wrong, it becomes a "disaster' and justifies big government's involvement.

** I am still reluctant to use the states for collective action not related to protecting from force or fraud, but in this case there could be an argument for property loss due to the damage done by the oil, so I guess we could make a semi-plausible argument. I would still prefer to see such matters handled privately through the firms involved, and by suits form the injured parties, as I have trouble finding a janitorial work clause in the constitution, and Locke seemed to omit cleaning as one of the rights government is instituted to protect.

*** Sadly, I think such an approach is more likely today under Republicans than Democrats, as, despite the Democrats' love of big government, they owe too much to the trial lawyers to destroy such a goldmine of law suits. On the other hand, Republicans seem scared of being seen as too friendly to business, and not seeming to "care enough" and so are prone to such feel-good foolishness.

**** I had several experiences when working in social services that gave me first hand knowledge of how political pressure influences decisions. First, it was state policy to prosecute those who we could show had committed intentional welfare fraud. I found at least one case where time sheets had been filled out in the employee's handwriting. I then found his "employer" was his brother-in-law, and that his pay reported to unemployment was ten times what he told us. But the county prosecutor told us that prosecuting welfare cheats would bring bad press, so he would not prosecute anyone, we need not bother sending cases. Second, when there was a federal push to determine citizenship, I was told that our county executive had been contacted by various groups and we were not to ask any questions about citizenship, as required by law, simply have them sign the form that said they were eligible without explaining it to them. Otherwise, there would be a fuss about our "racist" agenda.(Within a few months, even the form disappeared.) There were other cases, but those show well enough how political concerns can overwhelm practical concerns.


Clearly I have written a lot on related topics. Most relevant are probably the posts on our willingness to accept big government, such as "Defending Freedom?", "Impractical Pragmatists", "You Lose When You Think You Win", "Selling Yourself Cheap", "The FairTax's Liberal Assumptions", "Doing Something", ""Doing Something" Revisited", "What We Deserve",  "Don't Blame the Politicians", "Who Is To Blame?", "What is Wrong with Us", "The Single Greatest Weakness", "The Difficulty of Principle" and "Damn the Torpedoes!". In addition, clearly "Liberalism, Its Origins and Consequences - Preface" and the series of posts following relate to this topic, though the series is as yet incomplete.


Before I wrap everything up, let me say that I don't want to seem too critical of the original comment. The author of the comment, in this comment and some earlier ones, appears to be something of a mainstream conservative, while I am clearly much less tolerant of government involvement outside of police, army and courts. I suppose these differences of perspectives make any disagreement seem much more dramatic than it truly is. I am certain the poster and I agree on probably 80% or more of our idea. Unfortunately, the internet tends to make us notice one another more often when we disagree than agree, and so we tend to sound more confrontational than we truly are. 

Originally posted in Random Notes on 2010/07/07.

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