The Trump administration has drawn some controversy by appointing a Supreme Court Justice less than 90 days away from the presidential election. The president has declared Saturday he will publicly announce his replacement for longstanding Justice Ruth Bader Ginsberg. Many pundits find this move distaste full for two main reasons. First off, this decision is being made only eight days after the passing of Justice Ginsberg. The other concern is Trump selecting a justice within months of an election. Public sentiment seems to be leaning towards allowing the winner of the 2020 election to fill this vacancy. The issue with public sentiment is that it seldomly considers the law of the land. Often is fueled by visceral passions more so than reason.
However, I would be derelict in my duties as an armchair commentator if didn’t voice some criticism of the Trump administration. Let’s face it, even if Trump does not get reelected, filling the vacancy with another conservative justice will contribute positively to his presidential legacy. Help retain a strong right-wing influence even if Joe Biden is elected. Making the action of quickly selecting another justice before the election boldly strategic. Before you dog-pile on trump, just remember this variety of behavior is common among presidents at the end of their term. Prior to Obama leaving office he passed a record-setting number of regulations. Why would any elected official do this? Because they are making a last-ditch effort to implement any agenda focal points that hadn’t been previously enacted. Once you hit the level of President of the United States you are no longer vying for money or power. You are vying for your legacy. Imagine what the paragraphs under your photo in a history textbook will convey. The portrait of a strong leader or that of a half-witted and cowardly buffoon.
The real question should be is it legal for Trump to appoint a new justice this late in the election cycle? Formally, there isn’t anything legally holding him back. The decision of whether to make this selection is more a matter of adherence to social conventions than being a legal matter. Historically, there was only one other instance of a Supreme Court Justice passing away within 90 days of a presidential election. This was the passing of Justice Taney 27 days before the election of 1864. Lincoln opted to delay the appointment until reelection. What most people express precedence dictating that the present should wait until the election is over before appointing a new justice is invoking the Thurmond Rule. This informal and dates back to Senator Thurmond blocking LBJ’s appointment of Abe Fortas to chief justice. When Antonin Scalia passed away in February of 2016 republicans cited the Thurmond Rule in their objection to Obama selecting a new Justice in an election year. Clearing there is nothing legally binding that prohibits Trump from making the appointment.
Considering that Trump’s decision is legal, any concerns are more aimed at him not respecting social conventions. If you are attempting to cultivate a positive public image, being so bold and brash might not be the best strategy. Then again we are discussing a president who ascended to his lofty perch by breaking ties with social conventions. Coincidentally, it has been somewhat effective. Then again, this may have been unique to the peculiarities of the 2016 American culture. Seldom does drifting away from a Nash-Equilibrium strategy ensure success.
Over the past couple of years, the issue of media bias has become a regular talking point in public discourse. Contrary to popular belief, “fake news” has existed long before the advent of the 2016 election cycle. However, some may cite the work of William Meckling and Michael Jensen and claim that left-wing media has existed since at least the late 1970s (P. 49). One only needs to read Barry Goldwater’s 1988 memoirs to see how media coverage mispresented him during his 1964 presidential campaign. Media bias is not relegated to only left-wing media outlets. Conservative publications also suffer from distorting the facts when reporting the news. Liberal media bias is just more salient since liberals dominate the media. When ideologically loaded editorials start being presented as information this is problematic. Regardless of which political proclivities of the author or correspondent. This is nothing more than clear deception. A snake oil salesman presenting opinions as information. Talk about being sold a false bill of goods!
Alexis De Tocqueville reveals to us in Democracy in America that media bias also existed in the 19th century.
“What the latter look for in newspapers are knowledge and facts; only by altering or distorting these facts a journalist can gain some influence over his views (Tocqueville, Transl. Isaac Kramnick, P. 216-217)”.
Tocqueville didn’t dwell on the biased nature of American journalism. This is because he viewed news publications as not so much as vehicles for disseminating information. Rather, as a form of networking. Individuals who share the same values will invariably read some of the same books and obtain their information from the same sources. While it tempting to blame social media companies for indirectly creating powerful echo chambers through data aggregation to maximize user engagement; this problem predates modern technology. Due to confirmation bias, it is always easier to read publications that reinforce our prior beliefs. Converse with people who already agree with our perspective. Considering this quirk of human nature it isn’t surprising that Americans of the 19th century would levitate towards certain publications. Naturally, journalists of the era would either inject their own opinions into news stories or manipulate the facts to make their article more enticing to specific demographic.
This counterintuitive observation regarding the American press bucks our conventional understanding of the intended purpose of news media. Conventional wisdom would dictate that news is purely designed to inform. Tocqueville obliterates the myth of a journalistic “golden age” in the mid-20th century. Romanticized images of smoke-filled greenrooms and hardnosed reporting epitomized in the likes of Edward R. Murrow. The notion of the news being fact-driven back in the early years of television is an illusion. Per Democracy in America, even in the 19th century, the line between fact and opinion was blurred. Making Tocqueville’s suggestion that the press represents institutions of political association more than they do sources of information a sizeable argument. Presents a hard reality check for those entranced by the tidy and staid conservatism of the 1950s. The news correspondences may have been more eloquent and professional, but were still imparting bias in their reporting.
If media organizations are nothing more than a collective association of like-minded content producers and readers, how do these coalitions form? This a profoundly difficult question to answer. Did ideology bring the members of the media outlet together? Did the political leanings of the content consumers influence what the organization produces? It is hard to say. However, there is certainly an interconnected relationship between content consumers and producers. Tocqueville expounds upon this co-dependent relationship stating:
“… a vital connection between association and newspapers; the latter creates associations which, in their turn, creates newspapers. If it is a truism that associations must multiply as social conditions become more equal, it is no less certain that the number of newspapers increases as associations proliferate. (P. 602).”
While it may be fair do disagree with Tocqueville’s assertion that political associations are the impetus for the establishment of publications, he does touch upon an important aspect of this dynamic. That is if one media outlet of a specific political disposition is established more will follow. One just needs to look at the history of network television to see this principle in action. Back when network television was first established in the 1980s the 24-hour news channels were all left-of-center. Conservative media was essentially relegated to AM/radio talk shows. Then in 1996 the Fox News Channel was launched and provided a conservative presence on network television. The proliferation of conservative media shifted from the dying platform of network cable to the wild frontier of cyberspace. Leading to the development of outlets such as Newsmax, The Blaze, Breitbart, The Daily Caller, The Drudge Report, The Daily Wire, etc. All platforms whose success was propelled by the internet. One can’t help but wonder if Fox News had never been established if these outlets would have ever achieved their present level of success. Especially when you consider The Blaze was founded by former Fox News personality Glenn Beck.
The above example details this relationship of associations and the growth of media outlets for conservative publications, this rule most likely applies to any ideology imaginable. Just think of all the political movements that have spurred by the zealous distribution of literature by pamphleteers. This ranges from movements as diverse from the American Revolution to the Bolshevik Revolution in Russia. What is the first thing any wide-eyed college kid at a protest does when you approach them? Offer you a pamphlet detailing the rationale for their outrage and indignation. If a movement becomes large enough eventually formal media outlets fixated on the political movement are established.
Polemics such as Thomas Paine’s Common Senseand the Cato Letters may provide the rebel-rousing fodder for revolution. What sustains these political movements and their various supporting publications? It is easy to see that ideas spread through collective association and the proliferation of related literature/media. As enthusiasm, wanes momentum starts to sink. Convictions and commitment among supporters start to dissipate. Making the role of publications much more important.
“ This association can be more or less strictly defined, more or less restricted, more or less numerous but at least the seed of such an association must exist in men’s minds to ensure the survival of the newspaper (P. 603).”
Tocqueville believes that the conviction conveyed by journalists only continues to live on if supported by the readers. From a business standpoint, this makes sense. If no one is buying your newspapers or magazines your firm will go out of business. In terms of the transmission of ideas, the intertwined nature of content publisher and consumer is much more co-dependent. Yes, the passions of the readers need to remain resolute for the publisher to keep their lights on. But, the publisher needs to keep putting out engaging content to further perpetuate the movement can keep the movement from getting stale. It may be bold to argue with a thinker as brilliant as Tocqueville, however, let’s say he is only half right on this account. Fostering strong political coalitions requires both the publisher and the reader.
Some observant readers may be wondering, how does this model apply to local newspapers? After all, they tend to be more provincial in their scope and less politicized. The less politicized part may be a false assumption, due to the fact the local paper tends to conform to the political leanings of the region. If hypothetically there was a local or regional newspaper that was completely objective it still would provide a form of collective association. The news stories and editorials would focus on local issues. Presumably, all the readers would have interests in the commentary about new ordinances and municipal taxes. Readership and the employees of the publication bound by a mutually shared self-interest in local affairs. A cohesion that sometimes breaks through partisan barriers and transcendent party affiliation. National and international publications look to sow a connecting ideology among its viewers and readers. The local media outlets unite its staff and audience with universal concerns about daily affairs.
Alexis De Tocqueville was arguably one of the most insightful writers to ever detail the intricacies of American Democracy. Tocqueville’s journey sounds like an unlikely one. Something analogous to an intellectual version of the excursions taken by Lewis and Clark. A royal magistrate from France traveling throughout North America in only nine months. Even spending some time with local tribal nations. Based upon his keen observations of American political culture Tocqueville made many predictions. Some of his lofty inferences fell flat and resulted in nothing more than faulty speculation. What was truly impressive about his insights is what he got right. He did possess an uncanny aptitude for being able to foreshadow various political and societal shifts in America. Much of his writing was quite prescient.
Any modern reader of Democracy In Americacan’t help but wonder if Tocqueville predicted the phenomenon of “cancel culture”. The present trend in which individuals guilty of engaging politically incorrect speech is de-platformed. Whether it be shadow-banning on twitter or having their radio talk show pulled from the airwaves. Tocqueville shared many of the same concerns that James Madison voiced in Federalist Papers #51. Both men understood how the collective passions of the people could veer into the territory of authoritarian mob rule. That is precisely what “cancel culture” has morphed into, figurative lynching-mob. Relishing the downfall of anyone transgressive of the virtue of political correctness. Resorting to de facto censorship to prevent such subversive individuals from having the ability to transmit any more socially intolerable ideas.
Tocqueville shrewdly points how often any minority must contend with institutional barriers when it comes to seeking justice. The outcry for prohibiting offensive speech targets individuals who are out of lock-step with the majority opinion, effectively infringing upon their First Amendment rights. The true intention of codifying protections for free speech is meant to protect the expression of unpopular opinions. Where is an individual to turn their right to free expression is violated, but their views are perceived as being reprehensive by society?
“My main complaint against the democratic government as organized in the United States is not its weakness, as many Europeans claim, but rather its irresistible strength And what I find most repulsive in America is not the extreme freedom that prevails there but the shortage of guarantees against tyranny.
When a man or a party suffers from an injustice in the United States, to whom can he turn? To public opinion? That is what forms the majority. To the legislative body? That represents the majority and obeys it blindly. To executive power? That is appointed by the majority and serves it as a passive instrument. (Tocqueville, P. 294-295. Transl. Isaac Kramnick).”
He could easily see that those with unpopular opinions could very well have little recourse in enforcing their liberties. It’s easy to defend someone’s right to denouncing racism. It is profoundly more difficult to defend the right of someone to publish racist literature. This is mainly due to societal pressures. In the present climate defending the First Amendment rights of a bigoted person is tantamount to be racists. While this assumption rests on a rickety premise, public opinion only seeks to promote this fallacy. Due to public passions being more concerned with social justice, there is a willingness to mischaracterize people and to even dispense with critical rights if they do not comport with the grand objective of “tolerance”. Both Madison and Tocqueville intuitively understood the social dynamics of crowds which would later be expounded upon by social psychologists. Not only to members of the crowd feel a decreased sense of individual responsibility, but there is an emotional amplifier effect. Having either attribute present will make an individual less apt to rely on reason and more apt to go along with the mob. Even if their outrage and indignation are hyperbolic.
The shrewd Frenchman not only understood how popular passions would overwhelm sound reason and effectively alienate minorities, but he foresaw the development of Progressive ideology. Tocqueville noticed that democracy had a proclivity for drifting towards equality. He wrote at length detailing the lack of social stratification in the United States. Even noting that the capitalistic tendencies of America could provide a man from a poor family with the opportunity for exorbitant material success if he is willing to work for it. Democracy as a whole has an equalizing effect on society. The people elected officials that represent their will. The whole notion of “the government works for the people”. An idea completely foreign to continental Europe in the 19th century (foreign in practice, not so much in theory). Tocqueville audaciously claims that disposition towards equality implies perfectibility within human nature.
“As classes disappear and grow closer, as a tumultuous mass of mankind, it practices, customs, and laws alter, as new facts emerge, as new truths come to light, as old opinions disappear and are replaced by others, the image of perfection in an idealized and fleeting form is offered to the human mind.
….. Some changes improve his lot and he concludes that, in general, man is endowed with the faculty of indefinite improvement. . (De Tocqueville, P. 522-523. Transl. Isaac Kramnick).”
It is the tendency towards “indefinite improvement” that lays the groundwork for Progressive ideology. Progressivism generally holds that people are capable of constant betterment. The goal is to keep striving towards an idealized world where all the ills have been neutralized. Most adherents of Progressivism do not mind using the levers of government or other institutions to help lead people in the right direction. One of those corralling techniques would be punishment for veering off the path of social improvement. Such as making a culturally insensitive joke. This would explain the functionality of “cancel culture”. The de facto censorship is one of the means utilized to keep people on the straight and narrow. If you say something offensive you will be ostracized and have your career ruined. The logic being you will avoid making such a social faux pas when faced with the severity of the consequences. Why? Because followers of the Progressive movement believe that you can do better. Some even sincerely believe that a world without prejudice could exist. Unfortunately, is nothing more than a pipe-dream. Nothing more than good intentions knocking on the door of utopianism. If man is fallible, the odds of offensive speech dissipating is unlikely. Such an assumption demonstrates an unrealistic perception of human nature. We can mold people into the image we desire through social pressure and coercion. Rather, they need to come to their conclusions not to be forced into socially desirable opinions. There may be immorality in racism. However, there is also immorality in weaponizing social conventions to callously achieve social goals. Especially when innocent parties have their comments taken out of context and are used against them. Making these innocent bystanders nothing more than collateral damage.
Authors Note: This a Draft for An Op-Ed piece. Please feel free to provide candid feedback.
Many Americans are displeased with the present state of American politics. Much of this dissatisfaction is spurred by being limited to the narrow choice between two parties. Per a 2017 Gallup poll, 61 % of participants surveyed expressed that a third-party is a much-needed alternative to the present Republican/Democrat paradigm. While the idea of promising contender to the DNC/GOP establishment may receive quite a bit of fanfare from average voters that does not mean that such political force will be a reality. Unfortunately, countless third-party and independent candidates have been kept off the ballot by stringent ballot access requirements. Historically, as ballot access laws have become more rigorous the number of minor party candidates has decreased. Effectively confining the number of choices available to the American voter.
The bulk of the prohibitive ballot access requirements that third-party candidates are subjected to are passed at the state level. Over the past couple of years, Arizona has consistently ranked among the states with the most onerous requirements. Especially after passing Bill HB 2608 back in 2015 which expanded signature requirements for a candidate to appear on the ballot, under ARS 16-322. This revision has been particularly burdensome to the Libertarian Party, which is arguably the strongest third-party contender in the state. Even when the Libertarian Party attempted to challenge the law in 2019 the Supreme Court sided with the state. Concluding:
“… state’s signature requirements are reasonable restrictions that impose, at most, a modest burden on the Libertarian Party’s First and Fourteenth Amendment rights, while directly advancing Arizona’s important regulatory interest…”
The Supreme Court also rejected the Libertarian Party’s 2020 appeal to contest the law. Leaving Arizona’s hopes of breaking up the present duopoly on politics in shambles. The prime culprit appears to be the 2015 revision to ballot access requirements which solidifies the current two-party dynamic. These restrictions should be eliminated because they fail to protect the voter, designed to target prevalent minor parties and impose direct violations on the First Amendment rights of voters and candidates.
Ballot Access Laws Fails to Protect the Voter:
The main arguments for stricter ballot access requirements tend to be shielding voters from confusion, ballot overcrowding, frivolous candidacies, and political stability. Historically, ballot overcrowding has never been cited as a direct reason for increasing signature requirements. Before the 1930s minor parties had very “lenient” access to the ballot in the majority of states. Even with lower barriers to entry the calamities of voter confusion and rampant frivolous candidacies seemed to be virtually nonexistent. Typically are issues that will be invariably sorted out by voter preferences. In the unlikely event of confusion, voters will levitate towards parties and policies they are familiar with. Candidates lacking strong convictions and direction will generally have potential votes re-direct towards another candidate. It is quite clear that these concerns are not pitfalls that the government must insulate the average citizen from. Especially, when most ballot access restrictions imposed by the state government tend to also exclude legitimate candidates. These problematic quirks of liberal ballot access can easily be resolved by the voters themselves.
The second category of the aspiring purposes of ballot access laws is to protect voters from political instability. Preventing “unconstrained factionalism” from eroding the political stability of the country. Undermining the steady nature of a two-party system which interrupts the proliferation of splinter factions. The more probable side of the political stability argument suggests that it would help prevent indecisive elections. Through directing votes to one of two prominent parties it will help reduce the odds of a stalemate. Whereas dividing votes between three or more parties would increase the probability of this issue be prevalent. This argument is flimsy at best because indecisive elections were not a common problem before the restrictive ballot access laws of the 1930s. Beyond the evidence of history, Public choice theory also demonstrates how accessible ballot access will not compromise political stability. The country being splintered into a multitude of quarreling factions is unlikely, per the Median voter theorem to win an election you need to aim for the center. There are only so many unique ideologies that can be formulated that are not so extreme that it philosophically alienates moderate voters. Putting an informal constraint on the speculated “electoral chaos” that would ensue from looser ballot access restrictions.
Ballot Access Laws Are Designed for the Benefit of the Major Parties
There is also some evidence to suggest that ballot access laws are catered to benefit the existing mainstay parties. The United States has had ballot access laws since 1888. The proliferation of strict ballot access requirements did occur until the 1930s and was generally perceived as a means of prohibiting members of the Communist Party from running for elected office. These tactics over the years have been applied to other minor parties once state governments realized that manipulating signature requirements proved to be an effective means of keeping third-party candidates off of the ballot. For example, back in 1995, the state of Alabama tripled the signature requirements to appear on the ballot. This was a direct result of the Patriot Party diverting votes that would have otherwise gone to a Democratic candidate. Third-parties have achieved some modest victories in court against unjust ballot access laws. Such as in Burdick v. Takushi (1992) where Hawaii’s ban on write-in candidates on elections ballots was ruled as unconstitutional. However, generally, the courts rule against the complaints of third-party candidates. Simultaneously the courts tend to minimize the Constitutional concerns of third-party candidates. Demonstrating that the institutional barriers to the ballot box are sealed with the blessing of the Supreme Court. As evident in the 2019 ruling of Arizona Libertarian Party v. Hobbes.
One glaring fact that often gets ignored is that the majority of ballot access laws have been formulated by legislators who are affiliated with one of the major parties. This presents an unfortunate conflict of interest, as this brings into question the motives of passing such laws. Therefore, making it difficult to determine whether these laws are being passed for the benefit of the voter or the callous self-interest of those involved in politics. Creating an internal lever for our elected lawmakers to preserve their influence in state politics. Solidifying this potential rationale for passing HB 2608 (2015) has been the commentary of a publicly known affiliate of the Republican party. Insinuating that the Libertarian Party has been siphoning votes away from the GOP. This individual stated quote: “I can’t believe we wouldn’t see the benefit of this”.
This statement implies that increasing the signature requirements was not done to foster political stability or reduce ballot overcrowding. Rather, it was passed to aid Republicans in retaining political influence in Arizona.
Strict Ballot Access Requirements Encroach Upon the First Amendment:
Strict ballot access requirements present some unique challenges to the First Amendment that often are unscored in many of the Supreme Court decisions. Per the revised signature requirements in Arizona, the Libertarian Party would require to obtain petition signatures from nonparty members. Viewed by the party’s attorney in their 2019 case as a violation of free association protected under the First Amendment. While the free association argument is a valid concern, it is an only peripheral concern. Above all, voting is a form of free expression. The courts typically ignore the expressive function of voting, however, it is a form of speech that should be protected. A vote can serve as a form of protest, a vote can reflect a certain philosophical point-of-view. The market-place of ideas may lack tangible currency; however, the value of ideas can always be quantified by the will of the voters. A mere vote can convey so much more than a constituent preferred candidate. It is generally a representation of a set of ideas, which can be symbolic or literal. Keeping third-party candidates off the ballot effectively limits the variety of forms of self-expression allotted to the voter. Operating as a circuitous form of censorship.
Imposing burdensome ballot access requirements not only limits the free speech of voters, but also the First Amendment rights of candidates. Campaign platforms present specific positions on issues that undoubtedly serves as an expressive function. Lending itself to be interpreted as a protected form of speech. Third-parties have been invaluable for presenting novel perspectives on policy issues. For instance, the Liberty Party that formed in the 1840s brought the abolition movement to the table when most major parties refused to entertain ending slavery. Even in the modern era, the candidacy of Ross Perot for the Reform Party back in the 1990s presented alternative views that were invaluable to public discourse. Such as Perot being one of the few aspiring presidential candidates critical of the NAFTA agreement. Perot reminding us of the virtue of balanced budgets. Through keeping minor party candidates off the ballot, we are in-turn we are limiting the variety of opinions in public discourse. This is nothing more than a legally sanctioned form of de-platforming.
A significant number of voters may be frustrated with the current two-party duopoly on American politics. Little can be done if prohibitive ballot access laws work to keep third-party candidates off the ballot. These laws do not protect voters, nor do they secure our political institutions. Seemingly existing to keep the status quo intact with few substantive arguments soundly justifying such measures. Until the Supreme Court starts taking the constitutional concerns of minor parties seriously, the two-party system will remain. It would foolish to expect the Republican and Democratic state legislators to repeal laws that serve their interests.
Bill HB 2608 is nothing more than a thinly veiled ploy to keep third-party candidates off the ballot. The bill passed back in 2015 greatly increased the required of signatures for nomination. Meeting the qualifying numbers would surely be a breeze for Republican and even Democratic contenders. What about Libertarians or even aspiring candidates in the Green Party? This measure effectively narrows the scope of options to the two main parties.
The greater of two evils is still evil. Overall, this bill was a calculated move by the Republican party. Some pundits have even pointed to this piece legislation as a countermeasure addressing Libertarians siphoning votes from the GOP. Clearly demonstrating the incentives behind passing HB 2608, retaining power. The Republicans have their tentacles firmly wrapped around the populated central region of the state. Democrats have their strongholds in Flagstaff and Tucson. Apparently, there isn’t any room in Arizona for a third option. Not necessarily by choice by rather by design. Making the whole notion of “democracy” questionable at best. For the Republican party to feel threatened by Libertarians is absurd and bordering on paranoia.
For an effective democracy to exist we need more than two questionable choices on the ballot. Granted, most political parties on the fringes are about as organized a clown car traffic accident. Let these candidates fail on their own merits versus being stopped by institutional barriers. Especially when the motives for erecting these barriers are shamelessly opportunistic.
If someone puts their hands on you make sure they never put their hands on anybody else again.” ― Malcom X
Libertarianism holds that the only proper role of violence is to defend person and property against violence, that any use of violence that goes beyond such just defense is itself aggressive, unjust, and criminal” ― Murray N. Rothbard
Author’s Note: Thank you Professor F.E. Guerra-Pujol for your assistance with editing this op-ed piece. Your stylistic and grammatical recommendations have brought this essay to the next level.
Author’s Note: I submitted this piece to several local newspaper outlets. It appears as if none of these establishments have elected to publish my brief essay. It is possible that the my writing is a little weak. Even the topic is too technical or controversial.
I still applaud myself for attempting to take this on this issue in only 200-250 words ( Pinal Central: limit of 250 worded. AZCentral: limit of 200 words). This maybe a lesson to avoid issues that are overly complex when writing a letter to the local newspaper. Qualified Immunity requires more than 250 words to be properly addressed. I even had to cut references to William Baude’s 2018 paper on the subject.
That doesn’t mean I have given up, there is another local publication that publishes longer form editorials. After that I might give QI a rest, as I don’t want the content on this blog to become to stagnant.
The top photo has nothing to do with the topic at hand. The free photo application on WordPress was giving me some issues. So I decided to upload this photo I took back in April. I was walking my dogs around the neighborhood and thought the painted rock was interesting.
The death of George Floyd has left Americans with many questions. How did the police officer that killed Mr. Floyd still have a job after 17 previous complaints? How do we as a country combat police brutality? One potential solution may come from Representative Amash’s proposal to abolish Qualified Immunity. What is Qualified Immunity? It is a legal doctrine that protects government employees from being sued for performing essential job functions. Providing their actions do not violate any well-established rights.
The modern application of this legal status was defined by Harlow v. Fitzgerald (1982). Establishing the need for clear “statutory” evidence that the plaintiff’s rights have been violated. Eventually evolving into the requirement for a previous case in which the details of the violation are identical. Leading to instances of constitutional violations with no restitution. One glaring example, Baxter V. Bracey (2014), where the suspect was attacked by a police dog after surrendering. These strict requirements make it nearly impossible to seek proper recourse when our civil rights have been infringed upon.
Most police officers are decent and law-abiding. Few would ever dream of using cruel or unnecessary tactics to subdue a suspect. The minority of bad cops need to be held fully accountable for their actions. The best way to do so would be eliminating institutional barriers to punishment.
To the perceptive reader, it is conspicuous that the title of the essay is a sarcastic quip. This is not intended to be a diatribe against a man who is no longer able to defend himself due to his passing last summer. Rather this is a pointed argument against those who fixated on the invested interests in the Libertarian movement. This critique isn’t just relegated to the Libertarian movement but, any ideologue that promotes laissez-faire economic policies. The core assumption being that such convictions can only be perpetuated by the motive of avarice. If you have faith in markets over government institutions you have either been bribed or manipulated by the wealthy businessmen that fund pro-market think-tanks. Such misconceptions are commonly echoed throughout American culture. Along with a litany of other anti-market biases plaguing the collective consciousness of the average citizen.
Advocates of free markets are not chess pieces or hand-puppets of the Koch brothers. The irony is that rarely do those who express skepticism of markets address the motives of those sowing anti-market bias. Making me wonder if they entranced under the spell of a community activist or a power hungry bureaucrat. Much like affluent businessmen the government administrators respond to incentives. I hardly doubt anyone chooses to head a government department or ascend to the upper ranks of union leadership for truly altruistic purposes. Odds are benevolence isn’t guiding them but power and money. Generally the same motives ascribed to successful entrepreneurs and investors. Why is the bureaucrat and the union leader automatically perceived as having purer intentions than the businessman? When both the upper tiers of the public and private sectors have the same incentives for advancement. The only difference is that the public sector is funded by tax dollars. This realization makes me wonder who is the one with the genuinely dogmatic views of markets? Unwavering faith in unions and government only being oriented towards “inherent good” is the definition dogmatic. Especially when you dismiss their salient agendas.
The myth of the grand network of Koch brother bribed academic institutions is on many grounds erroneous. For one, most establishments of higher learning lean left politically. The left-wing bias on college campuses is well documented. Only 9 % of surveyed faulty identified as being conservative . It is certainly disingenuous to pretend there is some crazy right-wing/Libertarian conspiracy spearheaded by the Koch brothers. In stark contrast to popular perception, George Mason was pro-market prior to receiving any Koch money. It should be noted that it is public knowledge that the Koch brothers donate to George Mason and its affiliated research institute the Mercatus center. A GMU faculty member wrote an opinion piece a few years back indicating that the donor relationship was “driven” by the economics department . The circumstances behind the donor relationship may be unique to this one school, there are litany of other organizations and schools that the brothers donate to. The very fact that the dynamics of this relationship veer away from what is popularly believed is imperative to understand. The notion of greedy billionaires are paying off professors to proliferate the theories of Hayek and Tullock evaporates in light of the truth.
Many of academic watchdogs shrieking in outrage over a pro-capitalist presence in higher education needs to realize/acknowledge they have their own donors as well. There are think tanks that range from advocating for comprehensive ideologues to single local issues. In other words, you have invested interest backing just about any political philosophy in existence. The odds that your cherished belief system is free of the influence of wealth donors is not only naive but inaccurate. If supporting a certain set of beliefs will not increase their bottom line it will aggrandize the donor in other ways (more political influence or power). At the very least money being a core motive is easy to understand intellectually and morally. The lust of for power is much more unsettling.
Surprise, surprise! Left-leaning think tanks have their own high profile mega donors. Few people (who operate on reason) are pontificating upon the conspiratorial machinations of these donors. This alone demonstrates a giant gulf in academic bias. If we have right-wing donors it is a crisis. If we have left-wing donors no alarms are raised. Which could lead one to believe such complaints are more partisan than a genuine concern for academic bias. Beyond the sheer hypocrisy, it may be usefully to examine the donations received by left-wing research institutes. For instance, the left-leaning Brookings Institute in 2019 received over 1 million dollars in donations from the Bill & Melinda Gates Foundation (Brookings Institute, 2019, P. 45) . In 2018, the Gates Foundations provided over 2 million dollars in donations to Brookings Institute (Brookings Institute, 2018, P. 45) . One could spend an innumerable amount of time collecting data linking the Gates foundation to a litany of various left-leaning institutions. It would only serve the same function of connecting the dots in a disjointed attempt to fabricate a conspiracy.
Regardless of your political propensities it is very likely there is a donor with deep pockets funding the cause. Even the populous right has their big time financial backers The Trump administration owes a great debt to the Mercer family in my humble opinion. Making the observation that the vast majority of Libertarian-leaning institutions is funded by the Koch brothers is aimless. It is merely reaching around in the dark in a last ditch effort to diminish the credibility of organizations such as the Mercatus center.This attempt is not only is a partisan assault it is futile. Most fact checking websites find the research and articles published by Mercatus to be factual . Does their ideological orientation really matter if they are publishing valid research? This leads me to believe contriving the narrative that the Koch brothers are pulling the strings on autonomous organizations is merely a desperate ploy to obscure facts that poke holes in anti-market rhetoric.
The arrogance displayed when such opponents claim that market orientated types of ordinary means have been “brain-washed” is awe inspiring. Most of these self-proclaimed “free thinkers” possess ideas that clearly did not originate from their own critical thinking. Sounds more like they are parroting the bombastic and hyperbolic talking points of labor unions, left-wing think tanks, community organizers, and liberal politicians. These folks are not re-inventing the wheel, but rather are regurgitating the agenda of invested interests. Interestingly enough what they claim those who are right-of-center are doing. In order to avoid a circular argument, I will not continue to direct such claims at those are skeptical and hostile towards free-market capitalism. In contrast, I will state that the diffusion of ideas is not an isolated process. Ideas are generated the accumulation of information presented through mediums of communication. We typically file it away mentally as being either being valid or invalid. From this we tend to form our worldview.
To assume that you are a free thinker and that the opinions and observations of others exerts no influence on your views is a delusion. At best, is a twisted and fractured piecemeal assembled form of relativism not fitting into a comprehensive philosophy. At worst, you are a devotee to a specific political philosophy, but are too blind to see this. The self-perception of being a “free thinker” is so compelling you are willing not ignore that you do belong to a tribe. For example, if you agree with 85 % of the Democratic party’s platform, you are a democrat. Anything else is an appeal to the bias of wanting to believe that you are more unique and individualistic than you truly are. Hence, my frustration with individuals who shelter themselves under the label of being an Independent. Are you truly independent? If all candidates and positions on one side of the fence are completely abominable and the other half of the divide is completely reasonable. Guess what… you are not an Independent. I would expect someone who is truly political independent to have more diversity in the policies they support.
The free thinker illusion provides a sense of sanctimony to anyone who wants to claim Libertarians and Conservatives are merely puppets of big business. One point that they tend to over look is that they anti-market types have donors with deep pockets. Also that their point of view has been carefully crafted by intellectuals on their side of the divide. Considering I am not a billionaire I must be mistaken or hoodwinked by these greedy interests. It isn’t that I have been inspired by F.A. Hayek, Gordon Tullock, Ludwig von Mises, etc. It was my gullibility that allowed me to be manipulated and then unwittingly become the mouthpiece for ideas that keep big corporations afloat. Maybe if I see the light I will see that error of my ways.
Prevailing conventional wisdom dictates that price gouging is immoral. During times of crisis to even contemplating raising prices is considered to be morally dissent. Especially in times of need, such as a pandemic of highly communicable disease. The act of price gouge tends to be a natural corollary of the most basic economic principles. Enacting price gouging laws is an attempt to circumvent resolute economic laws. Typically, in the name of “fairness”. Viewing it from the perceptive of pricing equality ignores the inner mechanics of market pricing. To interrupt this process generally leads to less than optimal results. In every regard, price gouging laws are merely price controls with a different name.
Various varieties of price controls have their ill effects well documented. One prime example being rent control measures. Which historically have shown to contribute to housing shortages and deteriorating conditions of impacted housing units (Bennett & DiLorenzo, 1985 P.69-71) . Typically, most people just look at the immediate impact of the policy. Which is it “stabilizes” housing prices. However, the downstream effects of housing shortages and landlords losing any incentive to regularly maintain their properties are not acknowledged. Price gouging laws yield similar effects.
Price gouging does perform necessary functions within the market. Operate as an informal safeguard against supply shortages of essential commodities. Most people are concerned with the here and now. The emotional vitriol of feeling ripped-off or the vendor having leverage supersedes economic reasoning. Per the research of economist Michael Munger, back in 1996 during Hurricane Fran, crowds appalled the arrest of several North Carolina price gouging vendors. These enterprising young men were selling ice at $8.00 per bag. Despite the jubilation of the crowd over their arrest, the potential patron still lined up intent on purchase $8.00 bags of ice (Munger, 2007) . Clearly demonstrating a disconnect between consumer perception and consumer behavior. If this price was truly inordinate no one would be lining up to buy ice.
For the rest of this essay will be dedicated to defending the actions of these aspiring entrepreneurs. As well as all other vendors who engage in the practice of price gouging. Price gouging has several critical functions in managing the market supply of essential goods. It discourages hoarding. It provides differential compensation to vendors and employees in times of crisis. Finally, it encourages the production of essential goods.
Price Gouging Discourages Hoarding:
Has anyone attempted to purchase toilet paper lately? Anyone who has walked down the paper products aisle (toilet paper, paper towels) has noticed an extreme scarcity of commonly available products. Making me question whether or not COVID-19 is truly a respiratory virus or another incarnation of cholera. My poor attempt at humor aside. It is evident that people are conspicuously stockpiling toilet paper. Toilet paper is a shelf-stable product that is relatively low in cost, making an ideal item for hoarding.
The means by which price gouging operates as a deterrent from an item being hoarded is simple. If the price is higher people will be less apt to purchase excessive amounts of the good . This function becomes more imperative as inventory for essential items starts to dwindle . This premise is clearly compatible with the Law of Supply and Demand. If there a large spike in the demand for a specific item the market price will reflect this accordingly. If there is a law in place holding retailers to maintain the pre-crisis price of toilet paper shortages are inevitable. Naturally lower prices will encourage more consumption regardless of the scarcity of the item. Causing decreased availably and even shortages ( Lee, 2015, P.13) . Higher prices are the natural consequence of an influx in demand. The higher prices serve as a means of regulating supply.
While advocates of keeping prices fair have good intentions, they are typically ill-informed. Price gouging is not a perfect mechanism, it does disadvantage the poor. The question becomes is it better to have expensive toilet paper or no toilet paper. Most people would agree that expensive toilet paper is preferred. Some would suggest keeping the prices on par with pre-pandemic pricing and just impose purchasing limits. A vendor implemented purchasing limit is not full-proof. Is minimum wage enough of an incentive to encourage employees to enforce such company enacted policies? I would surmise not. Government sanctioned price controls would create supply shortages. This presents a similar situation to the rent control example presented previously.
Compensating Differential to the Vendors:
All because we are in the midst of a national emergency doesn’t mean that incentives fall by the wayside. If anything incentives become more important, especially if vendors are facing substantial risks by providing goods and services. To quote Adam Smith:
It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest. (Smith, 1776, P.25) .
The message behind this excerpt from The Wealth of Nations is quite clear. No one sells goods or services for the sake of charity. Most vendors are attempting to make a profit. Prices fluctuate with market demand. However, in instances where there is bodily harm for providing the same goods and services, it is reasonable to expect to pay more. As previously mentioned this isn’t charity. The consumer is simply transferring the risk to the vendor. By expecting them to endure the risks inherent in a natural disaster or outbreak of deadly disease. Through braving such dangers I believe a compensating differential is justifiable. Which essential is additional compensation for offsetting undesirable aspects of a specific job, such as bodily harm . Vendors also take on other risks as well. In the instance of a natural disaster, there are additional logistical considerations. Such as damaged infrastructure and lack of utilities (electricity, running water, etc). Beyond that vendors also take on legal risks. Potential fines for violating shelter-in-place orders (Giberson, 2011, P.6) .
The additional profits for enduring risk are what will incentivize entrepreneurs to continue to provide goods and services. It is a fact that is rarely brought up in a debate concerning the morality of price gouging. Even if you find the decision of business owners to raise prices to be distasteful, consider their employees. Business owners are going to have to pay their employees more to weather such dangerous conditions. If you still believe that price gouging is spurred by greed, remember that most business owners have employees. The hourly employees enduring such conditions need adequate compensation.
Price Gouging Encouraging Production:
Higher prices not only encourage entrepreneurs to endure more risks but also stimulates production. The incentives of increased profits persuade actors throughout the supply chain. If the price of hand sanitizer goes up exponentially this may persuade companies to divert production. Such as distillery switching from producing liquor to hand sanitizer . If demand for hand sanitizer outpaces that of vodka it would be shrewd to reallocate resources in the direction of market demand. These adjustments in production are swayed by the potential for higher margins.
Market prices are the explicit quantification of information. They operate as a signal to the consumer as well as the producer. As was mentioned previously high prices convey short supply to the consumer. Hence why price gouging guards against hoarding. In a Hayekian sense, we are contending with imperfect market information (Zwolinski, 2008, P.16) . If we do not have direct knowledge of the supply of toilet paper or hand sanitizer, what is going to entice us to produce it? The high prices direct production towards essential goods. Craft distilleries are now transitioning to producing hand sanitizer due to the high prices . The high prices are a direct result of the high demand. The high prices convey the toll that overall demand has taken on the supply (Zwolinski, 2008, P.17) . Pricing operating as a signaling mechanism operates as an indicator of how resources are to be best allocated. Government intervening on moral grounds can only cause more issues. The asymmetry in market information makes it impossible for a top-down solution to make pricing more equitable.
Despite the conventional view of price gouging, it does play a vital role in managing the supply of essential goods in times of emergency. It stifles hoarding. It provides just compensation to vendors for assuming the risk and other logistical hardships in crisis conditions. It operates as a signaling model for resource allocation. Spirited repudiations of the practice are well-intentioned but misguided. No one likes to feel ripped off. No one likes to see people who are disadvantaged suffer. However, there are justifiable reasons for the sharp increase in prices.
The jubilation of the crowd after the gentlemen selling ice (back in 1996) were arrested is understandable. Much like the advocating for fair pricing, this reaction is based upon faulty assumptions. Typically is indicative of anti-market bias. Which is defined as “a tendency to underestimate the economic benefits of the market mechanism” . Anti-market bias explains the amount of class envy and undue contempt aimed at the wealthy. This is also the narrative that fuels a lot of the irrational and debunkable claims about labor unions. Certain regulations and even specific forms of taxation. It is easy to be outraged by higher prices. It takes more effort to attempt to understand why prices are so steep.
As it is now 2020, an election year, it is increasingly important that we examine the empty promises of aspiring politicians. The drive to socialize medicine under the friendly veneer of “free healthcare”. To witness the glories of government healthcare all you need to do is step foot in a VA hospital. The inefficiencies and low quality of care are painfully apparent.
However, our neighbors to the north in Canada have socialized medicine. Surely Canadian patients are receiving better care than we are in the United States! Not so. Per the Fraser Institue, the median wait time to receive treatment from a specialist was 21.2 weeks in 2017. A 113 percent increase in the wait time for treatment in 1993. While there are many things that are admirably about Canada, their healthcare system isn’t one of them.
The increased interval of the wait times to receive treatment is one consideration that is largely ignored by the advocates of Universal healthcare. It looks great on paper but ultimately fails in implementation. I am only addressing the allocation of services, I am not even venturing into the challenges of funding such a massive program. A policy based upon good intentions, but that doesn’t mean it will work.