Bootleggers & Baptists- XXI: Qualified Immunity, New Mexico, Cherry Garcia, and an Oil Barron

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A Step in the Right Direction:

Last month New Mexico joined Connecticut, Colorado, and New York in being the first wave of states to tackle qualified immunity. There is some debate as to whether or not the bill passed by the New Mexican state legislature entails a full relinquishment of the legal doctrine (due to the fact it is a federally recognized doctrine). However, it is still a noble attempt to places limits on an abusive legal privilege. HB 4 passed by New Mexican lawmakers overtly prohibits invoking qualified immunity as a defense in court. Providing the complaint against the offending public official is within the statute of limitations (three years).

DEFENSE OF QUALIFIED IMMUNITY.–In any claim for damages or relief under the New Mexico Civil Rights Act, no public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body shall enjoy the defense of qualified immunity for causing the deprivation of any rights, privileges or immunities secured by the constitution of New Mexico. (HB 4, P.3, Sect 4)

 Regardless of whether this new law functions as an outright nullification of the immunity privilege or operates as an effective restriction, this is still a monumental reform. For any pundit advocating for civil liberties, this is unquestionable a step in the right direction and a model for other states to follow. Such reforms provide the constituency with the assurance that all public officials (not just police officers) will be held accountable. 

The Hippies and The Business Man:

Despite this positive change in state policy, the question remains did any outside interest groups support the bill? The answer is yes, outside interest groups did express support for the new law placing limits on qualified immunity. One of the interest groups even urged voters to engage in political action, by encouraging them to write to their lawmakers requesting they pass HB 4. Two of the more high-profile HB 4 advocates form one of the most ironic “odd-couple” coalitions that anyone could imagine. On the left side of the aisle, there was the Vermont-based ice cream producer Ben and Jerry’s. The founders of the ice cream boutique have long publicly and unapologetically embraced a progressive ethos. The right-wing portion of this unusual coalition is the organization Americans For Prosperity a conservative/libertarian group extensively funded by the Koch brothers. This political union can be best described as crunchy granola meets big oil.

Who Is The Bootlegger And Who is The Baptist?

In his seminal 1983 paper, Bruce Yandle explains oddball political alliances through the lens of a “Bootleggers and Baptists” coalition dynamic. At times, the dynamic can be more of an implicit union, where the Bootleggers ride the coattails of the Baptists through quietly supporting the initiative. In other instances, there is an actual coordinated effort towards collective action between the seemingly opposing political actors. Clearly, the bond formed between AFP and Ben & Jerry’s would be an example of the latter coalition dynamic. It is difficult to ascertain who is providing the moral argument for ending qualified immunity and which group benefits from the legal doctrine being prohibited. Leading to the speculation that this activistic relationship between the two groups could be a less common variant of the B&B coalition. Could both groups concurrently assume the role of Baptists despite their divergent interests? Could they both be Bootleggers? Is it even possible that they are both simultaneously Dual-Role Actors?

There are some salient ways in which both groups stand to benefit from advocating for ending qualified immunity. Since the death of George Floyd, public confidence in policing has hit a twenty-seven-year low. Making it popular to support policies that advocate for policing reforms. Both political actors have distinct reasons for vocally endorsing a bill that ends qualified immunity. For Ben & Jerry’s they appease their progressive peers by fulfilling the ideological obligation of fighting for social justice and racial equality. On the other hand, AFP gains social currency from promoting abolishing qualified immunity, through being consistent with their conservative/libertarian philosophy by justifying a constraint on state power. Outside of building credibility with their ideological peers, they also gain the respect of neutral parties who are currently dissatisfied with current policing practices. Fostering a positive public image can result in more business for Ben & Jerry’s and more donations and support for AFP. 

These inferences regarding the potential benefits of supporting HB 4 derived from a priori reasoning are not irrefutable. However, they are probable incentives either group would possess for their public activism. Both B&J’s and AFP also provide some thought-provoking moral justifications for ending this legal privilege. It would be a fallacy to attempt to paraphrase either group’s moral arguments. Below are direct quotes from both organizations’ websites detailing the moral concerns around qualified immunity.

Ben & Jerry’s Moral Argument:

“….Since George Floyd was murdered by Minneapolis police officers in May, tens of millions of Americans have taken to the streets all across the country to protest police brutality, systemic racism, and white supremacy—and it’s having a huge impact. Statues of enslavers and racists have come down. Black Lives Matter murals have gone up. Calls for defunding the police have run out. And many people—from everyday Americans to activists, athletes, experts, and lawmakers—are demanding the end of qualified immunity.

Qualified immunity? Here’s the deal: Qualified immunity allows police officers, while in the line of duty, to do pretty much anything to anybody, without fear of punishment.

Anyone who’s seen the videos of police violence during these protests is probably thinking exactly what we’re thinking, so let’s all say it out loud: Qualified immunity has got to go.” (Per the 

Ben & Jerry’s website.)

The moral argument for ending qualified immunity depicted on B&J’s website exemplifies the need for racial justice. Reasoning that due to institutional racism there is a dire need to nullify this legal privilege, due to the fact that it does a disproportionate impact on ethnic minorities. Providing a textbook example of social justice argument for abolishing QI. Nevertheless, a moral justification.

American’s for Prosperity’s Moral Argument:

Americans for Prosperity Senior Policy Analyst Jordan Richardson had this to say:

“Qualified immunity may have originated as a doctrine to protect good police officers working in difficult conditions, but now, four decades later, it has morphed into a doctrine that regularly protects egregious violations of constitutional rights. By damaging the trust and confidence that communities have in law enforcement, qualified immunity is harming the very police officers it was designed to protect. We are proud to sign this brief in support of defending fundamental rights and in support of restoring healthy police-community relationships.” (Per the AFP Website).

The argument presented by AFP rests on the standard base constitutionality and state power. Both points have been constant fixtures of right-wing political discourse (at least prior to Trump), making these focal points congenial to a conservative justification for ending QI. All because AFP presents an argument from the standpoint of individual liberty and B&J’s from the perspective of racial justice does not undermine the morality of either paradigm. Morality is not relative, however, it can be pluralistic. A policy can be just or unjust for multiple reasons. Therefore, AFP and B&J’s are concurrently championing moral arguments. It wouldn’t be shrewd to assign dynamic roles to either party, either could be seen as the Bootlegger or Baptist depending upon one’s political proclivities. In doing so we run the risk of veering into the territory of playing the “Red Team- Blue Team” game.

My Mind Has Been Bought and Sold By The Ghost of David Koch

 

spooky ghost
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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 [1]. 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 [2]. 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) [3]. In 2018, the Gates Foundations provided over 2 million dollars in donations to Brookings Institute (Brookings Institute, 2018, P. 45) [4]. 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 [5]. 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.