If you’re on the left or the right, you’ve missed the point

Not too long ago I was shop­ping in my local gro­cery store when I ran into an old friend whom I had not seen in some time. She and I had been out on the streets of San Fran­cis­co on the night of Barack Oba­ma’s elec­tion to wit­ness the elec­tric atmos­phere and cel­e­bra­tion. She and I wrote slo­gans in chalk on the side­walk in front of the Ninth Cir­cuit that night and a few oth­er times. She was there at the gro­cery store with a fel­low she intro­duced me to, adding in almost wor­ship­ful tones that he was, «an Occupier.»

My friend, who is by no means wealthy, is doing her part for the move­ment by feed­ing and hous­ing this guy so that he does­n’t have to wor­ry about food and shel­ter while he focus­es on the impor­tant work of protesting.

He pro­ceed­ed to tell me about all the fun Occu­py Wher­ev­er (Oak­land in his case) events that were com­ing up and how it would be great to have me along to sup­port the cause and help out with the actions. I polite­ly but firm­ly declined, and self-dep­re­cat­ing­ly cit­ed my com­mit­ment to arm­chair activism rather than out-in-the-streets activism. I then quite earnest­ly added that I was quite busy pro­tect­ing the cor­po­rate inter­ests of one of my clients these days and that get­ting out to protest just isn’t on my to-do list.

##Occu­py and the Tea Party##

I’m all for pub­lic expres­sion of polit­i­cal opin­ion, and I think that the Occu­py move­ment (though it depends on which of its claimed rep­re­sen­ta­tives you lis­ten to) has some real, legit­i­mate com­plaints. Though both camps fer­vent­ly deny any sim­i­lar­i­ty, Occu­py and the Tea Par­ty have a lot in com­mon: they are both groups of peo­ple who see that there is some­thing crit­i­cal­ly wrong going on in Amer­i­ca and who take to the streets to spread their mes­sage. This is a fun­da­men­tal­ly Amer­i­can activ­i­ty despite any ide­o­log­i­cal or styl­is­tic dif­fer­ences. Both camps have detrac­tors that paint each entire group as extrem­ist by using videos of indi­vid­u­als who car­ry signs with extreme mes­sages and/or can’t speak intel­li­gent­ly about the issues they are sup­pos­ed­ly protest­ing. I view these detrac­tors — on both sides — with great skepticism.

Nonethe­less, this encounter with the Occu­pi­er gave me a chance to reflect on why I’ve got­ten caught up in nei­ther the Occu­py move­ment or the Tea Par­ty. Despite the admi­ra­tion I have for peo­ple who are will­ing to take action for their beliefs, I see each side’s view as being fun­da­men­tal­ly incom­plete. Worse, each sides’ com­mit­ment to their incom­plete views is an enor­mous part of the problem.

Please for­give the over­sim­pli­fi­ca­tion, but while the left and right are point­ing fin­gers at one anoth­er, the peo­ple who ben­e­fit from our eco­nom­ic cri­sis are laugh­ing their ways to the bank and high-fiv­ing one anoth­er for get­ting us to dis­tract our­selves from what they are doing.

Those on the right say that our prob­lem is gov­ern­ment and reg­u­la­tion; that we have too much of it and that tax­a­tion needs to be curbed. They say we essen­tial­ly have noth­ing to fear from big busi­ness; that in fact big busi­ness will save the day, if we can get gov­ern­ment off the back of busi­ness long enough to do some good.

The par­ty line on the left is the same with the roles of gov­ern­ment and busi­ness reversed. Busi­ness has too much influ­ence in our lives, and too much capac­i­ty to do us harm with impuni­ty. Gov­ern­ment is our pro­tec­tion against the greedy rob­ber barons who care only for short-term prof­it with­out regard for others.

Both of these per­spec­tives con­tain vital truth, which is why they per­sist. Tru­ly dumb ideas come and go, but in order to take hold the way these two have, a world­view must be half-baked but true. This caus­es two prob­lems: first that the peo­ple hold­ing on to these ideas can­not be per­suad­ed to change their minds. After all, they are already right. The sec­ond prob­lem is that they insist fer­vent­ly that peo­ple with the oppos­ing world­view are wrong. Both sides become entrenched in their argu­ment and even less like­ly to con­sid­er the oth­er point of view in any mean­ing­ful or seri­ous manner.

If the prob­lem in Amer­i­ca were as sim­ple as either of these world­views sug­gest, the solu­tion would be sim­ple. Instead, the true prob­lem aris­es from the syn­er­gy of both the problems.

##How it works##

In order to see how it all comes togeth­er, we must first accept that there are bad actors in both busi­ness and gov­ern­ment. Per­haps one side has a greater pro­por­tion of bad actors, but set that aside for the moment.

Let’s take air pol­lu­tion as the exam­ple. Say the man­u­fac­tur­er of a very pop­u­lar prod­uct, the zWid­get, was spew­ing tox­ic fumes from their fac­to­ry. The lib­er­tar­i­an answer to this prob­lem is twofold: first that the mar­ket would fix the prob­lem; peo­ple would become aware of the sit­u­a­tion and stop buy­ing zWid­gets until the man­u­fac­tur­er, lets call them Arhat Com­put­ers, changed their ways. The price of zWid­gets might have to increase, but the mar­ket would glad­ly bear the extra cost because of the ben­e­fit of clean air. The oth­er half of the lib­er­tar­i­an solu­tion is to treat the prob­lem as a prop­er­ty rights prob­lem. The pol­lu­tion is adverse­ly affect­ing oth­er peo­ple’s prop­er­ty; let them sue.

The prop­er­ty rights ques­tion is cur­rent­ly not fea­si­ble. Air moves through one’s prop­er­ty quick­ly enough that it can­not be said to belong to any one indi­vid­ual. Per­haps some­day, but not in our cur­rent legal system.

The mar­ket solu­tion is too slow and requires both the com­pa­ny and the con­sumers to be vig­i­lant good actors. Short-term inter­ests can eas­i­ly over­ride either par­ty’s best inten­tions. I think it’s a shame that dol­phins get caught in tuna nets, but I don’t want to stop eat­ing tuna; I just want it to be har­vest­ed in a more dol­phin-safe man­ner. I gen­er­al­ly won’t boy­cott a prod­uct unless I have a near­ly equal alter­nate prod­uct lined up. By the time Arhat Com­put­ers’ mar­ket­ing depart­ment dis­cov­ered that they were los­ing sales of zWid­gets, mil­lions of peo­ple could have been poisoned.

Fur­ther­more, Arhat’s legal depart­ment might sug­gest that stud­ies be com­mis­sioned to deter­mine whether the chem­i­cals from the zWid­get plant actu­al­ly have an adverse health risk. The para­me­ters of such stud­ies could be such that they could refute the harm caused by their fac­to­ries. A well-done pub­lic rela­tions cam­paign could dis­cred­it any asser­tions that their tox­ic waste is any­thing oth­er than healthy and delicious.

Here’s the tricky thing: Arhat Com­put­ers would be right to do at least most of this. From the com­pa­ny’s per­spec­tive, they ought­n’t waste mon­ey and raise the price of zWid­gets unless it is cer­tain that they would be mak­ing life safer for the peo­ple breath­ing their fumes. If their small­er com­peti­tors are also using sim­i­lar pro­duc­tion tech­niques, the added expense would put Arhat in a dis­ad­van­ta­geous posi­tion. That is not just about prof­its, it’s an exis­ten­tial threat to the prod­uct and ulti­mate­ly the com­pa­ny. It’s nat­ur­al and log­i­cal that Arhat Com­put­ers would approach such a ques­tion with skep­ti­cism and resistance.

Nev­er­the­less there remains a prob­lem. Con­sid­er­ing the price of the delay of wait­ing to see whether the mar­ket will cor­rect the pol­lu­tion prob­lem and the com­pre­hen­sive nature of the dam­age done, using the pow­er of the gov­ern­ment seems appro­pri­ate. That’s what gov­ern­ment is sup­posed to do: pro­scribe behav­ior for the good of the cit­i­zens.¹

Peo­ple write to their elect­ed rep­re­sen­ta­tives com­plain­ing about Arhat’s pol­lu­tion and demand­ing that some­thing be done. Leg­is­la­tors draft leg­is­la­tion that would (at least pre­tend to) address the prob­lem by impos­ing heavy restric­tions or heavy tax­es for pol­luters. That’s all well and good, but Arhat Com­put­ers wines, dines, and donates to the politi­cians. Their lob­by­ists make the case why their com­pa­ny deserves to be exempt­ed. Per­haps there is a grand­fa­ther clause that exempts fac­to­ries old­er than a giv­en date, but more like­ly it’s a com­plex set of cri­te­ria with plau­si­ble rea­son­ing at each junc­ture. The end result will still be: Arhat and no one else will be exempt from the new law.

When the final law comes out: it’s trum­pet­ed as a tri­umph for good­ness. The new law holds down those nasty cor­po­ra­tions and keeps them from doing evil, except that the fine print exempts the ones that were actu­al­ly doing evil in the first place.

End result: politi­cians look like they are fix­ing things and can brag about their accom­plish­ments at cam­paign time, and also get huge war chests on which to run their cam­paigns (and prob­a­bly insid­er trad­ing infor­ma­tion as well.²) Arhat Com­put­ers remains unaf­fect­ed by leg­is­la­tion that would affect their profits.

On its face, that looks like Arhat Com­put­ers did­n’t gain any­thing. They just failed to lose as much as they would have. But all the oth­er busi­ness­es in the indus­try now have expen­sive restric­tions or high tax­es to deal with. If you could be the only run­ner in a race with­out your feet tied togeth­er, you’d win all the time!

Since it worked so well once, the next step is for Arhat Com­put­ers to take a proac­tive stance and lead the charge for greater account­abil­i­ty in their indus­try. As long as they can work it out that they get few­er restric­tions than their com­peti­tors, increas­ing­ly restric­tive laws and high­er tax­es work out in favor of the cor­po­ra­tions. As much as the wealthy and influ­en­tial talk about low­er­ing tax­es and get­ting gov­ern­ment off of our backs, that’s not what their paid lob­by­ists advo­cate for. It would be bad for them if they used their influ­ence to get every­one’s tax­es cut or every­one’s restric­tions reduced. They want the uneven play­ing field that comes from dra­con­ian reg­u­la­tion and high tax­es that affect every­one except them.

It gets worse. Because the orig­i­nal prob­lem — a pol­lut­ing fac­to­ry — is still unad­dressed. So the cycle in this over­sim­pli­fied sce­nario starts over. Peo­ple get up in arms about the wrongs that some busi­ness­es are doing and push for more laws, which makes it eas­i­er for com­pa­nies to get laws passed which don’t affect them. The peo­ple who are try­ing to use gov­ern­ment to make the coun­try safer actu­al­ly make things less safe.

As long as cor­po­ra­tions prof­it from things that are con­trary to the pub­lic inter­est, there will be peo­ple push­ing to restrict those things. As long as politi­cians are cor­rupt, only an elite few cor­po­ra­tions and influ­en­tial indi­vid­u­als will be able to do things con­trary to the pub­lic inter­est, which keeps those cor­po­ra­tions doing those things because they can make more prof­it now that their com­pe­ti­tion is in a weak­er posi­tion. Try­ing to fix this by strength­en­ing gov­ern­ment and weak­en­ing busi­ness, or by strength­en­ing busi­ness and weak­en­ing gov­ern­ment, will always do only one thing: strength­en the influ­en­tial minor­i­ty that prof­its from cor­rup­tion and prof­its from our divid­ed nation.

##The rhetoric isn’t helping##

The adage «divide and con­quer» applies. Amer­i­ca is being divid­ed by Fox News and MSNBC telling us that we have to point our fin­gers at each oth­er and fight amongst our­selves. We are being divid­ed by the Tea Par­ty and Occu­py Wall Street telling us that the solu­tion is to give one half of the prob­lem less pow­er and by doing so embold­en the oth­er half of the problem.

The Occu­py move­ment has its math dan­ger­ous­ly wrong as well. The top 1% is pay­ing 28% of all fed­er­al tax­es accord­ing to FactCheck.org (which I don’t think can be accused of right-wing bias.) It’s not the top 1% earn­ers we need to wor­ry about, it’s a much small­er minor­i­ty of wealthy indi­vid­u­als with access to and influ­ence over politi­cians. Despite this group being wealthy, they are not all the wealth­i­est. Dan­ger is not mea­sur­able by income.

A few months ago Lawrence Lessig made an appear­ance on the Dai­ly Show in which he refresh­ing­ly dis­tin­guished influ­ence from wealth as the prob­lem in Amer­i­ca (and here is his solu­tion.) Despite his rejec­tion of the idea that gov­ern­ment should be made small­er, Lessig cor­rect­ly iden­ti­fied sys­temic polit­i­cal cor­rup­tion as a prob­lem big­ger than any oth­er our nation cur­rent­ly faces. Indeed, Alex­is de Toc­queville cred­it­ed Amer­i­ca not with hav­ing the right answers, but with hav­ing the capac­i­ty to cor­rect our mis­takes. Whether you believe that we have too much gov­ern­ment or too lit­tle, the fact that your opin­ion almost does­n’t mat­ter unless you orga­nize polit­i­cal fundrais­ers is a more fun­da­men­tal problem.

This has been my biggest dis­ap­point­ment with Barack Oba­ma. Though I have com­plaints about pol­i­cy, that amounts to a dif­fer­ence of opin­ion. I had hope for his pres­i­den­cy, and that hope was dashed on dis­cov­er­ing that the top five TARP recip­i­ents were the top five con­trib­u­tors to Oba­ma’s pres­i­den­tial cam­paign. (Note: this appears not to be true, although the top TARP recip­i­ents are indeed among the Pres­i­dents top 2008 con­trib­u­tors. Please see the com­ments below.) I can’t believe that is a coin­ci­dence. I can for­give almost any pol­i­cy, pro­gram, or law he has signed (though the pro­vi­sions for indef­i­nite deten­tion with­out charge stick in my craw — was Oba­ma try­ing to emu­late Abra­ham Lin­coln by toss­ing habeas cor­pus in the waste­bin?) so long as it comes from an hon­est belief that it is the right path. Hand­ing out hun­dreds of bil­lions of dol­lars of tax­pay­er mon­ey (near­ly $3000 for every man, woman, and child in the Unit­ed States) to the peo­ple who fund­ed his cam­paign is not forgivable.

To be sure, I’m not a fan of Oba­macare. Though crit­ics are fond of call­ing it social­ism, it’s not cer­tain that out­right social­ism is as bad as what’s actu­al­ly hap­pen­ing. We have a hand­out to large cor­po­ra­tions in the form of indi­vid­ual com­pul­sion to hand over their wealth. This is not social­ism, it’s that hor­rid thing the worst of the Repub­li­cans embrace: crony cap­i­tal­ism. Which of course should not be con­fused with actu­al capitalism.

Yet the rhetoric from both sides is talk­ing about the same thing: cap­i­tal­ism ver­sus social­ism. The real thing we need to be con­cerned about is nei­ther the pow­er of the gov­ern­ment nor the pow­er of cor­po­ra­tions, it’s the influ­ence of a small minor­i­ty over both insti­tu­tions. Solve the prob­lem of sys­temic cor­rup­tion and gov­ern­ment and big busi­ness will still have a tug of war over their com­pet­ing inter­ests, but that tug of war will lead to checks and bal­ances on both sides rather than a con­tin­ued col­lu­sion that rein­forces our problems.

##What can be done?##

How to address the prob­lem of undue influ­ence is very tricky and polit­i­cal­ly dif­fi­cult because essen­tial­ly it’s a strug­gle to get the fox­es out of the hen­house. Solu­tions are nec­es­sar­i­ly more dif­fi­cult and com­plex than is appro­pri­ate for a short arti­cle. How­ev­er, there are some ideas wor­thy of consideration.

Repeal the Reap­por­tion­ment Act of 1929. This is the law the restricts the num­ber of Rep­re­sen­ta­tives in the House of Rep­re­sen­ta­tives to 435 mem­bers. The Con­sti­tu­tion states that rep­re­sen­ta­tion should not exceed more than one rep­re­sen­ta­tive for every 30,000 cit­i­zens. Cap­ping the num­ber of Rep­re­sen­ta­tives means that indi­vid­ual rep­re­sen­ta­tion gets dilut­ed and less­ened every year. If each Rep­re­sen­ta­tive had 30,000 con­stituents to get votes from, local inter­ests would have a high­er pri­or­i­ty. Fur­ther, if lob­by­ing com­pa­nies had to try to influ­ence over 10,000 mem­bers of the House of Rep­re­sen­ta­tives, lob­by­ing on nation­al issues would become much more expen­sive. Cer­tain­ly not impos­si­ble, but more dif­fi­cult. Any actu­al cor­rup­tion of indi­vid­ual Rep­re­sen­ta­tives would have less impact, and con­sid­er­ing the num­ber of bribes one would have to make in order to get any­where with real, direct cor­rup­tion, the chances of keep­ing such cor­rup­tion secret would be much lower.

There are obvi­ous logis­ti­cal prob­lems with hav­ing a House of Rep­re­sen­ta­tives with 10,000 mem­bers, but in the 21^st Cen­tu­ry those should­n’t be dif­fi­cult to solve. The State of the Union address might have to be made in a foot­ball sta­di­um, but if the rules were changed so that votes could be made remote­ly and debate could take place via video­con­fer­ence or using forum soft­ware on an intranet (even the Inter­net so long as the site could be secured prop­er­ly) it could all work out.

The real prob­lem is that cur­rent Rep­re­sen­ta­tives would nev­er stand for such a thing, because their pow­er would be dimin­ished and dilut­ed. But the pur­pose of the House of Rep­re­sen­ta­tives is to pro­vide a bal­ance against an elite rul­ing body, not to be an elite rul­ing body itself. Yes, I’ve com­plained else­where about direct democ­ra­cy hav­ing too much influ­ence in our coun­try, but the House of Rep­re­sen­ta­tives is the appro­pri­ate, des­ig­nat­ed place for the pop­u­lar voice. Let it actu­al­ly be that.

As a side ben­e­fit, it would be easy to most­ly elim­i­nate ger­ry­man­der­ing of Con­gres­sion­al dis­tricts. One can dic­tate that no munic­i­pal­i­ty can share more than one dis­trict with oth­er dis­tricts. Oth­er­wise, dis­tricts must con­form to city lim­its. There would still be ger­ry­man­der­ing with­in cities, but the more extreme and harm­ful exam­ples would be curbed.

Repeal the Sev­en­teenth Amend­ment. I would­n’t even go back to the orig­i­nal text of the Con­sti­tu­tion.³ Instead, I would leave it up to each state to deter­mine how their Sen­a­tor is cho­sen. Let some states choose by pop­u­lar votes, oth­ers by appoint­ment by the Gov­er­nor and approval by the Leg­is­la­ture, oth­ers by appoint­ment of the Leg­is­la­ture with approval of the Gov­er­nor. There may be ways to select or elect Sen­a­tors that I haven’t thought of.

The impor­tant part is that a Sen­a­tor ought to be free of the direct influ­ence of the pop­u­lar vote, and would there­fore be vul­ner­a­ble to an entire­ly dif­fer­ent set of sources of cor­rup­tion. They would be behold­en to the inter­ests of their state, which might not be an exact match for the inter­ests of the vot­ers in the state. Let’s not for­get that the Fed­er­al Gov­ern­ment did not cre­ate the states; the states cre­at­ed the Fed­er­al Gov­ern­ment.

Due to these acts, one Fed­er­al law and one Amend­ment to the Con­sti­tu­tion, we no longer have leg­isla­tive bod­ies at the Fed­er­al lev­el that act effec­tive­ly as checks and bal­ances to one anoth­er. We have two ver­sions of the same leg­isla­tive bod­ies, both behold­en to very sim­i­lar con­stituen­cies. The dif­fer­ence between the House and the Sen­ate has become sub­tle; each has changed into some­thing less effec­tive and with less integri­ty than these bod­ies at the time of their foundation.

Seats of pow­er will always be attrac­tive to the pow­er-hun­gry. What was once spe­cial about the Unit­ed States is that most of these seats of pow­er were lim­it­ed and bal­anced by oth­er pow­ers. Both the Sev­en­teenth Amend­ment and the Reap­por­tion­ment Act con­sol­i­dat­ed the pow­er of the mem­bers of Con­gress while weak­en­ing the insti­tu­tion of Con­gress. It weak­ened the states while bol­ster­ing the Fed­er­al Gov­ern­ment. One reduced the voice of the peo­ple while the oth­er elim­i­nat­ed a safe­guard against the tyran­ny of the majority.

Make the tax sys­tem sim­ple, fair, and free of undue loop­holes. This is a top­ic that deserves its own post and I won’t delve into it too much now. I like the Fair­Tax, but I’m cer­tain­ly open to oth­er sug­ges­tions. It ought to be vis­i­ble to the cit­i­zen­ry how much of their mon­ey the Gov­ern­ment takes, and we ought to stop con­flat­ing tax­ing busi­ness­es with tax­ing those who prof­it from busi­ness. Rais­ing tax­es on «the 1%» is coun­ter­pro­duc­tive, but when the very wealth­i­est (less than 1% of the 1%) pay much less pro­por­tion­ate­ly than the mid­dle class or even the poor, there’s a prob­lem there. Increas­ing tax rates does­n’t help. Elim­i­nat­ing loop­holes does. If we stick with a sys­tem of tax­ing income, cap­i­tal gains ought to be taxed at the same rate as any oth­er income. To some that will sound like a wacky left-wing idea, but if it was good enough for Ronald Rea­gan it ought to be good enough for today’s con­ser­v­a­tives.⁴

Would any of these mea­sures elim­i­nate sys­temic cor­rup­tion? Of course not. But they would be a good step toward strength­en­ing and pro­tect­ing the peo­ple while spread­ing cor­rupt­ing influ­ences more thin­ly. Cor­rup­tion would be nat­u­ral­ly more local­ized, but even that’s not a bad thing. I’d rather have my Rep­re­sen­ta­tive in my neigh­bor’s pock­et than in the pock­et of a Board of Direc­tors of a multi­na­tion­al cor­po­rate entity.

What real­ly needs to hap­pen is for Amer­i­cans to come togeth­er. Unit­ed we stand, divid­ed we fall applies not just to for­eign threats but to the prob­lems that face us domes­ti­cal­ly. This is not a pollyan­na plea for har­mo­ny; our nation depends on vig­or­ous debate over impor­tant issues. But we must — we absolute­ly must — stop let­ting the influ­ence of a few, both in gov­ern­ment and with­out, divide us as a nation by show­ing some one-half of the prob­lem and show­ing oth­ers the oth­er half. Remem­ber that solu­tions may be mutu­al­ly exclu­sive in some cas­es, but iden­ti­fy­ing the prob­lems aren’t. Just because you’re right about the prob­lem does­n’t mean that the peo­ple on the oth­er side of the fence are wrong. Rec­og­niz­ing the real threat is key if we are ever going to over­come it instead of fight­ing each other.