“Don’t Regulate Me or I’ll Capture You!”
posted by Frank Pasquale
That’s the headline of Brett Frischmann’s insightful post at Madisonian. Frischmann notes that all-too-frequently in public debate, “the ‘risk of capture’ argument leads people to conclude that government should simply not act or regulate, and should instead ignore whatever problem or market failure that would otherwise justify intervention.” That’s one reason why I’ve said that the “price” of a capture argument should be the concession that much more public financing of elections is necessary. That may raise Lindblom’s “circularity” problem at present, but dynamically it appears to be the only way to avoid capture in the long run.
Frischmann also congratulates Larry Lessig on his advocacy for reform of the political process, and I’m glad he’s addressing the larger political forces behind the fine-grained legal issues most law profs study. He may well get us closer to a more fair and open political process. But in the meantime, here’s an interesting story on the nature of political change possible in the current political environment:
Phillip Morris . . . threw an enormous multimillion-dollar party for Republicans last month because they wanted the Family Smoking Bill passed, which would force tobacco companies to lower nicotine levels. Phillip Morris, in opposition of the other tobacco companies, actually wants this legislation because they dominate the low-nicotine cigarette market.
Unfortunately, the big tobacco interest in trade policy is not quite as benign.
January 8, 2008 at 11:35 am
Posted in: Administrative Law, Politics
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Responses (2)
geoff - January 8, 2008 at 2:42 pm
What’s benign about Phillip Morris’ lobbying here? Is it just because you happen to have a preference for the particular outcome they support? That’s not very principled of you. I know you tend to value human freedom from paternalistic intervention by do-gooder governments and their apologists at a pretty low level, but for some of us, this sort of law is not at all “benign.”
Most important, as I think I’ve said before in comments on this blog, if you’re concerned about lobbying, the answer is not to develop a Byzantine and misguided set of rules to stymie corporate influence–it’s to end the incentive by limiting the degree of intrusive intervention and meddling by government.
But Lessig (and you) will never acheive any “success” until you recognize that the problem won’t go away as long as government can extract payments in an endless stream of threatened and actual legislation. If you don’t start from this premise, I’m not even sure what you’re trying to do. Why is getting corporations out of politics inherently good? Isn’t the real goal limited, sensible, constitutional and cost-justified legislation? I’m pretty sure I’d look first at the legislators if the goal is to fix bad legislation. Looking at corporations seems to betray a decidedly different agenda.
Seth Finkelstein - January 8, 2008 at 11:36 pm
FYI, see my column a little while back specifically addressing
Lessig and fixing “corruption”.
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