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Corporate Might (Let Them Fight)

Up until recently, I used to say that it was more likely that artistic works from 1920 would be taken out of the public domain than artistic works from 1930 would ever be put in the public domain. It turns out, my pessimism may have been unfounded:

Will Congress [extend copyright terms] again this year? To find out, we talked to groups on both sides of the nation’s copyright debate—to digital rights advocates at the Electronic Frontier Foundation and Public Knowledge and to industry groups like the Motion Picture Association of America and the Recording Industry Association of America. To our surprise, there seemed to be universal agreement that another copyright extension was unlikely to be on the agenda this year.

“We are not aware of any such efforts, and it’s not something we are pursuing,” an RIAA spokesman told us when we asked about legislation to retroactively extend copyright terms.

“While copyright term has been a longstanding topic of conversation in policy circles, we are not aware of any legislative proposals to address the issue,” the MPAA told us.

The article cites organized grassroots opposition the likes of which Disney and company have never dealt with before. It’s certainly true that the Internet has successfully brought together people to rally behind what used to be a bunch of libraries and art buffs.

I would argue, however, that something more significant happened: There emerged corporate interests against copyright terms. It has ceased to be any sort of David vs Goliath battle, and is instead a battle between some goliaths and other goliaths. Google in particular was instrumental in fighting some increased measures in fighting copyright law. Google has found itelf on the opposite side of content creators on copyright that it is in their interest to have a regular army of opposition, and to help fund one. Amazon has some similar incentives. Both Google and Amazon have tried to incorporate public domain works into their business models.

From a bellyfeel standpoint, this is actually something of a mixed bag. People like to think of themselves as being with David standing up against Goliath. You could feel it in the attempts to frame Net Neutrality as Big Internet against the little guy, when it was mostly these corporations (internet providers of various types) against those corporations (content producers and sellers who stood to lose). But it’s incredibly important to have strong allies, no matter how much it complicates the narrative. If works do start moving into the public domain, we will probably have Corporate America to thank for that.

Uneasy alliances with corporate America are forming everywhere, and it’s changing comfort zones. After the shooting in Parkland, corporate America was one of the first places that gun control advocates turned to. One of the early voices was Aaron Sorkin imploring banks to intercede in private commercial behavior, something that might have felt very awkward. And one by one, activists targeted one business partner of the NRA’s after another, trying to get them to cut ties. Starting at the reasonable (Does Hertz really need to give them a membership discount?) to the unreasonable (Roku/Amazon/Apple/Google should change their entire content policies to deplatform NRAtv!).

And why not? Up to a point, they were pretty successful. A lot of people made it seem like capitalism and markets, and while there was some of that there was something else going on: The people who made those decisions were sympathetic. Delta didn’t run thorough cost-benefit analyses. They didn’t do market research on which paths would have helped and hurt them. They made their decisions quickly. Corporations are made of people, and people make the decisions. Delta and FedEx had pretty similar sets of incentives. One made one decision, one made the other. Increasingly, though, the people in important corporate positions are sympathetic to the social causes of the left. As they have burned all of the bridges from their island to the mainland, this is going to be an increasing problem for the right. But for the left, it’s a windfall.

How should we feel about it? Well, up to a point I am okay with it. There have now been a few instances of reasonable demands on the first day and then by the third day Amazon is removing Civil War books from their library (see also the NRAtv example above), but markets can market, for the most part. As with many things, it only becomes a problem when the market starts acting too much in uniform, or when the government gets involved. I am watching Citi’s recent decision to pull business with some gun companies with interest in part because they seem to be encouraging other banks to do the same. Unbanking is serious business, which brings me to the next one:

Attempts by the government to use corporate influence to enact policies they can’t enact politically is going to become intense. And this is where “government by waiver” becomes a real concern.

In recent decades, we have seen several distinct paths by which the broad use of administrative waiver power can compromise our system of government. First, broad discretion and waiver authority can be used as alternatives to legitimate policymaking, with unfortunate results for both the regulated market and the rule of law. The best example may be the history of telecommunications regulation in America — most notably the regulation of the radio-frequency spectrum. The initial (but modest) use of the spectrum at the beginning of the 20th century took place under a decidedly privatized regime: Individuals were given ownership of the portion of the spectrum that they first used to broadcast. In time, that system ran into problems of over-claiming and interference, and so the Radio Act of 1927 — enacted during the Coolidge administration under the leadership of then-secretary of commerce Herbert Hoover — took the sensible step of requiring all parties to obtain licenses to their frequencies from the federal government. {…}

Another danger inherent in the government’s waiver power is that it will be used to extract concessions from private actors. And for an example of how this danger plays out in practice, one need only look at the regulation of construction and real-estate development. These days, to begin any new building project, every developer must obtain a sheaf of permits that go far beyond the relatively mundane functions of avoiding falling bricks or aligning curb cuts to secure entryways for indoor parking. Indeed, today’s new norm calls for exhaustive hearings before planning commissions and community boards; these investigations are intended to probe the size of a project, its exterior design, the number and type of apartment units, access for the disabled, the amount of affordable housing (with complex subsidies from both the government and the developer), project financing (with government guarantees), proper hiring practices (with appropriate set-asides for women and minority workers), and multiple inspections for just about everything.

The article cites a couple of cases of the Obama Administration relying heavily on this sort of thing, for labor arrangements and PPACA. As long as you unionize we’ll let some infractions go. You can’t meet our benchmarks, but that’s okay because at our discretion we can let you not meet them. Could this be used to encourage businesses not to do business with other businesses? We’ve already gone there:

When it got its start in 2013, with help from a presidential task force working with several banking agencies, Choke Point wasn’t announced to the public or its intended targets.

Among the first to notice something amiss were porn actresses and payday lenders whose banks announced the sudden closing of their longstanding accounts without explanation.

Asking their bank why this had happened, even though they had caused no overdrafts or other problems, they got either no clear answer or vague talk about being “high risk.”

More reports began coming in of account closures — from the firearms business, in particular. {…}

Eventually, a list of 30 disfavored businesses surfaced. They included online gambling, fireworks dealers, “Home-Based Charities,” “As Seen on TV” sales lines, and online sellers of tobacco and pharmaceuticals. Maybe some of these categories are especially likely to skip town or default and leave bank lenders holding the bag.

But others, such as many firearms dealers and pawn shops, are stable local businesses that rely on community reputation. Do they really carry a risk of large losses when banks lend to support their inventories or cash flow?

Yet the Federal Deposit Insurance Corporation, one of the banking agencies involved in the crackdown, had warned banks of “unsatisfactory Community Reinvestment Act ratings, compliance rating downgrades, restitution to consumers, and the pursuit of civil money penalties” if they ignored relevant guidelines.

The policy has been discontinued, but the temptation will be there in the future. One of the apparent goals of the Obama Administration’s policy on ecigarettes was to reduce the number of suppliers to something more manageable, from a regulatory standpoint. I objected because of course I did, but I could definitely understand the appeal of manageability. And in the case of ecigarettes there are a lot of benign reasons for it. Banking, too. But “too big to fail” can easily become contingent on the good graces of the government, which can itself be contingent on good behavior. However defined.

As corporations become ever larger and more powerful, their ability to extend their influence beyond that of simple employer/employee or merchant/customer will itself become stronger. The government itself can provide little defense because they may be the hockey puck getting slapped around the rink or alternately they may themselves be a player. Perhaps the best we can hope for is that, as in the copyright battle and net neutrality, they simply offset one another. Or that they are or remain on the side of the angels. However defined.


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Will Truman is the pseudonym of a former para-IT professional who is presently a stay-at-home father in the Mountain East. He has moved around frequently, having lived in six places since 2003, ranging from rural outposts to major metropolitan areas. He is also on Twitter. ...more →

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59 thoughts on “Corporate Might (Let Them Fight)

  1. “Freedom” is no longer really an option.

    Pick your patron. Hide under its umbrella. If you’re lucky, they’ll reward loyalty after a while. If you’re unlucky, they’ll only punish disloyalty.

    Amazon looks pretty good, I guess… but I still have a soft spot for Google.

    Of course, the people who hitched their wagons to Netscape way back when are funny to us today… but surely that won’t happen with the Big Two, right?

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    • This is one of those things where I expect the response to be something along the lines of “But we’ve always done this…”

      And except for the scale, scope, and reach, we have… but what’s new and increasingly of concern is the scale, scope and reach.

      The totalitarianism of the Liberal Order isn’t about conflicting views of freedom, its about the scale, scope and reach of mass society.

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    • The spirit, it was Freedom & Justice
      And its Keepers seemed generous & kind
      Its leaders were supposed to serve the country
      But now they won’t pay it no mind
      Cos the people grew fat & got lazy
      Now their vote is a meaningless joke
      They babble about Law & Order
      But it’s all just an echo of what they’ve been told
      Cos there’s a Monster on the loose
      It’s got our heads into the noose
      And it just sits there, watching

      —-John Kay
      Steppenwolf, Monster

      Thank you Ralph’s Records & Tapes for selling me things the record companies knocked out of their catalogues
      Also, a big thank you to Brian– forever Cleopatra.

      The future is that which may well awaken the most earnest solicitude,
      both for the virtue and the permanence of our republic.
      The fate of other republics… are written but too legibly on the pages of history…
      They have perished, and perished by their own hands.
      Prosperity has enervated them, corruption has debased them,
      and a venal populace has consummated their destruction.

      —Jos. Story, Commentaries, 1833

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  2. Google turned off NRAtv, and all the gun videos went straight to… wait for it… PornHub.

    Makes sense, actually, as PornHub has an even greater desire to maintain the free flow of information.

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    • They didn’t turn off NRAtv, but did alter the rules of what they can show on their YouTube channel. I don’t know if that’s better or worse, but NRAtv can blend as many lemons as they want… but firing guns may be an issue. And so, Pornhub.

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      • I wouldn’t be surprised to find out Google’s decision was motivated by the NRA having taken Russian money – still dark, as far as I know – and don’t want to run afoul any weird US laws or even (gasp!) bad publicity.

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        • Google didn’t kick off the NRA, though. They just restricted what people can do with guns on their channels, which made it an unappealing outlet for gun enthusiasts (including, but not limited to, the NRA. So I don’t think it’s related to specific NRA behavior. It’s more just taking an anti-gun stance.

          This is in contrast to Hertz and some of the others, where the primary justification I had for cutting ties with the NRA had to do with the group specifically. Namely, that it’s one thing to offer discounts to a civic and advocacy group. It’s another thing to do so with a partisan culture war outfit, which is what the NRA has become over time.

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          • It’s another thing to do so with a partisan culture war outfit, which is what the NRA has become over time.

            I haven’t found a list of Hertz discount organizations but I suspect it’s large. The American Bar Association certainly, and probably Planned Parenthood.

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            • I’ve thought about Planned Parenthood, which is the biggest counterpart on the other side. The ABA is primarily a professional organization, with politics second. I doubt that Hertz has an agreement with Planned Parenthood mostly because it isn’t that kind of organization, as far as I know. The kind with membership rolls and such.

              The airlines is something of a middle case. Both do have conventions. So if they’re giving one a discount and not the other, they are likely putting their thumb on the scale (which would, of course, be their right). That’s one of the reasons I’m slightly less comfortable with Delta than with Hertz. But even there, political though they are, Planned Parenthood does have a stronger case for civic organization than NRA presently does. For good or for ill, they do a lot of direct work.

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              • Planned Parenthood does have a stronger case for civic organization than NRA presently does. For good or for ill, they do a lot of direct work.

                It’s that “direct work” which puts them at the front of the social wars. Both groups are devoted to directly enabling a specific right, ideally as an absolute.

                Actually I’d say the NRA is more willing to compromise than PP is.

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                    • I’ve often wondered what percentage of the women being yelled at by demonstrators on their way into a Planned Parenthood office were there for prenatal care.

                      (Before looking anything up) I assume “most” to an absurd extent. Women who go there for abortion are doing it as a one off, “care” is a reoccurring thing.

                      (Very rough numbers) There’s something like 650k abortions per year and 650 PP clinics. If we assume all abortions are at PP then that’s 1k per clinic per year, or less than three per day.

                      PP claims something like 2.8 million patients per year, no mention of repeat visits.

                      So 80% as a lower bound and more likely something north of 90%.

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                  • That exactly. And it’s not just prenatal care that they provide. A lot of women go there for general ob/gyn care and to get BC (so PP arguable prevents a lot more abortions than they perform).

                    They also provide other important health care services for women. I haven’t been to a PP center in 30 years, but when I was a poor grad student and found a lump in my breast (my mother had breast cancer long before menopause, so I had reason to be worried), they were the ones I could go to. They took it seriously too and arranged a referral to the local hospital for a mammogram – at a discount so I could afford it.

                    It looked enough like cancer in the mammogram that the doctor scheduled an immediate biopsy. Now, I was lucky, and it turned out to be a calcified cyst, but I remain forever grateful to PP for being there for me. If it had gone the other way and been cancer, their care and assistance might have been the difference between life and death.

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                • Those aren’t the parameters I’m looking at. To me, it’s not that the NRA is extreme in its defense of guns as much as that it’s moved on from its core mission of guns to general culture war partisan activism. A lot of the stuff I see from them has a tenuous relationship to guns.

                  Here’s an NRAtv video. It goes on for a minute. It shows our boys in blue standing between us and criminal elements. It talks of socialism. It’s mostly concerned with the legitimacy of the president being challenged.

                  It doesn’t mention guns.

                  That’s what I mean by “partisan culture war outfit”.

                  The issue with Planned Parenthood isn’t what they say and lobby for. People love and hate them for what they do. In that regard, they’re more like gun manufacturers than the NRA. There have been some attempts to boycott the gun industry, but Citi is as close as they’ve come as far as I know.

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              • I doubt that Hertz has an agreement with Planned Parenthood mostly because it isn’t that kind of organization, as far as I know. The kind with membership rolls and such.

                Yeah. ‘Planned Parenthood’ doesn’t has conventions of _members_ in the way people are thinking.

                Everyone should be aware that there are actually multiple organizations in both the NRA and PP. Both of them contain a 501(c)(3) and a 501(c)(4) and a 527.

                And here’s where it gets complicated: See, when the NRA is talking about members, they are talking about members of 501(c)(3). People who paid dues and join. They are an ‘educational’ non-profit, in the sense they run around telling people what they think is correct.

                PP…doesn’t have any members like that. Its 501(c)(3) membership are _a bunch of health-care providers_ that are commonly called ‘Planned Parenthoods’, and a few other corporate memberships. A convention of a bunch of people running medical clinics is not quite the same as a convention of a bunch of NRA members.

                Likewise, the PP 501(c)(4) is an umbrella organization for a bunch of local groups, and I’m not really sure it has ‘members’ at all, or that they are not just the groups. Looking at their website, I see places to ‘donate’, not to ‘join’. (And PACs do not really have ‘members’ at all.)

                This all seems a rather moot point, as I’m fairly unsure no one offers PP discounts to anyone.

                But even there, political though they are, Planned Parenthood does have a stronger case for civic organization than NRA presently does. For good or for ill, they do a lot of direct work.

                Here’s the actual problem: PP does a lot of actual charity. Medical charity. Their 501(cf)(3) is an actual medical organization..well, it’s an umbrella under which it operates a bunch of actual medical organizations. That ‘charity’ non-profit exists solely to help support clinics under it, aka, paying for and subsidizing medical care, aka, doing ‘charitable’ work.

                The NRA is basically a pure advocacy group at this point. Yes, they have come up with some training courses (Which would be ‘education’, and hence count as ‘charity’), and do run around collecting information about who offers those courses, but they don’t seem to actually _do anything_ to make those courses exist or subside them….so, not really education.

                Or to put it another way: Even NRA members _themselves_ seem to see the NRA purely as a political entity. Go ahead and ask them, they’ll assert it’s ‘defending their right to own guns’ and whatnot…no one seems to have noticed that a charitable non-profit, which is the organization they _actually joined_, is not supposed to be ‘defending’ anyone’s rights in the political sphere.

                But start me ranting about the misuse of charity non-profits for political purposes and I’ll go on all day. I just wanted to point out that PP is one of the few groups that isn’t misusing their charity for political purposes, probably because there’s a lot of Federal money flowing through it and they can’t risk it by running around claiming ‘these flyers we are printing with 501(c)(3) money are just ‘educating’ people about the right to an abortion and how the government is trying to take it away’. (Which is basically what the NRA, and a lot of misused charity non-profits, do.)

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  3. Generation X but Millennials are a large generation and they are becoming the coveted 18-35 demographic right now. So it makes sense that corporations are starting to change their tunes in ways that are economically advantageous to this newer, more diverse, and generally left-leaning cohort. Of course they are doing it for their bottom line but neutrality is no longer possible or profitable.

    For the copyright stuff, the tech giants are now becoming formidable in their own rights and they need content. Strict copyright laws hurt Netflix and Google more than they help.

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    • I think “we’re doing it for the bottom line” may be what a lot of them tell themselves, but I’m really not sure it’s true. A lot of these decisions are off-the-cuff, and reflect the people making the decisions. So Delta decides one way and FedEx the other.

      I think the problem for the GOP and conservatives in general is the extent to which they have lost the people who make these decisions, on a cultural and gut level. That matters in ways big and small. It means they’re going to lose most of the jump balls. In most cases where the correct course of action is ambiguous, which is a lot of the time.

      On the copyright stuff, that was my main point. There are now vested interests against extending the term that weren’t there before. I think that matters a lot more than chat forums bringing allies together and helping people mobilize.

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      • I think the politics of a lot of the people making the decision are complicated. Vox had a piece a while ago but the politics of people who were regularly big in tech. Most of them are secular, urban and cultuallyish liberal as you note. On the other hand, they are often very pro deregulation and think it should be easier to fire someone which puts them at odds with the Democratic base.

        But the GOP lost the people making the decisions because they moved so far to the right and became unflexible on so many issues from guns to immigration to LBGT rights, etc.

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      • I think the problem for the GOP and conservatives in general is the extent to which they have lost the people who make these decisions…

        That’s Dreher’s position, isn’t it? That the religious folks have lost the battle for the big business people in the ongoing culture war?

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            • Drehers solution, such as it is, is a call for Christians to adopt a Goldilocks level of isolation. Enough separation from the general population and its institutions to allow them to pass thick Christian belief and theology on to their kids via their own separate institutions and by clustering so their kids peer groups reinforce rather than dissolve their efforts but not so much separation that the Christian communities devolve into standard crazy cult people and remain open to being the “salt/light” of the world.

              Now how Christians en masse can navigate between those Scylla and Charybdis outcomes? He has no idea. What they do with dissenters? He just has the standard answers. The Amish and the Jewish Hasidim do succeed in doing this to a degree but they aren’t evangalitical faiths like Chirstians are.

              As a liberal agnostic looking from the outside in I’d say his doctrine is mostly harmless and, in that it advises no longer being on the offensive in the culture war, is probably an improvement on the status quos. I think if it ever came about cultural liberals should be content to let them form their little outposts and satisfy ourselves with merely being welcoming to the exiled refugees that’d trickle out of them and otherwise let em be.

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              • Essentially Dreher wants conservative Christians to become a sub-culture like the Evangelical Protestants were between the Scopes Trial debacle, where they won the minor battle but became national laughing stocks as the orice, and their eventual reemergence during the 1970s and 1980s.

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                  • Yeah, I think you grok what he’s going after, mostly.

                    Your point about Scylla and Charybdis is a good observation too… my disappointment with the BenOp book is that he spent too much time on a) the Intellectual History, and b) a case for Urgency ™ rather than using his talents and writing a much more journalistic book observing people who’ve been trying to navigate Scylla and Charybdis for decades, centuries, millennia. A Crunchy Con survey of the challenges, successes, and failures of living betwixt and between Scylla and Charybdis is something he could have done quite well, IMO.

                    The distorting view, I think, is that people think this is something that Dreher “invented.” That’s not *his* view, but the fact that he’s simply agreeing and perhaps merely recognizing an existing truth lived the world over is a rhetorical challenge that try as he might, he can’t quite overcome.

                    And such is my one paragraph review of BenOp from the BenOp side of the fence.

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                    • That is quite interesting. I’ve not gotten around to reading the BenOp book myself though, having followed his blog for years and years now, I have a pretty good idea of what is in it.

                      Regarding your second to last paragraph are you saying that, while Dreher acknowledges that he didn’t invent the Benop concept, his rhetoric and wording in the book implies that he did or he slips into the mode of talking about it like he has?

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                    • Oh yes, he definitely has a nut farming aspect, but I still value reading him for the rest of it and even the nut farming is a kind of a game for me, if I’m bored, to spot the holes in it.

                      Marchmaine, thanks I think I get your point now and I think I agree.

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              • From what I hear and roughly know, a lot of the Haredi do keep in touch with the secular culture but after the kids go to sleep. They are also largely urban and have businesses that interact with the secular world.

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                • Yes, Saul but as I understand it (and my understanding of Judiasm is limited) the Haredi aren’t out to convince others to join their way of life or stand as examples to the world the way Christians are called to. A lot more inward focused than outward? Would you say that’s accurate?

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                • Treyf, a restaurant specializing in pork in Williamsburg, allegedly had some Hasidic customers that loved pork. They developed a rather special relationship with the restaurant so they could eat pork.

                  Its hard to tell how many adult Haredi Jews maintain a double life with the secular world. The linguistic of the Satmar in Williamsburg were interesting. Most would speak entirely in Yiddish but I also heard more than a fair share of English only or English/Yiddish conversations between them.

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      • I think the problem for the GOP and conservatives in general is the extent to which they have lost the people who make these decisions, on a cultural and gut level.

        That’s really the problem. The GOP is, at this point, extremely reliant on a minority of voters to stay in power and support their positions. They manage to win elections via electoral distribution, both artificial and natural, and differences in voter turnout, again both artificial and natural. They manage to get their policies out in the media via a systematic distribution system of talking heads and owned media that hits way out of their actual level of support. They have a bunch of single-issue voters that will tie up phone line of legislators taking positions that most of society sorta disagree with, but not enough to make phone calls.

        The problem is: None of this actually make their positions more popular, or changes the number of people who disagree with them. The free market cannot be gerrymandered…or, if it is, it’s gerrymandered towards the age demographics that’s most anti-Republican. If corporations make a pure cultural decision, it will always be ‘What do 25-year-olds think about this?’

        And when the demographic argument isn’t obvious enough, corporate leadership tends towards being socially liberally (Either by being actual liberals, or libertarians.), and as the right has started making everything in a social culture war, and there is an obvious reflexive direction to jump.

        But, heck, even after all that, there’s one more argument. Even if a corporation doesn’t particularly need the demographics, and the leadership isn’t personally swayed, there’s always the question of: Which side of history do we end up on? Even if they are personally neutral, and it’s unclear what would be the best decision _in present_, forward-thinking corporations (Which do still exist, despite all indications to the contrary.) often end up asking themselves ‘How will this decision we are making now play in 2025? Or 2040?’

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      • American business people were staunch supporters of small c and big c social conservatism for decades. Sometimes this was out of genuine belief in hierarchy and social order and other times out of self-interest, letting lay Catholics censor films for a largely Protestant audience so Hollywood wouldn’t have to deal with state and local government censors. Even when a shift to liberalism occurred in the mid-1940s in regard to race and some feminism, businesses remained true to small c social conservatism. Now soft liberalism makes more money.

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        • I live in that majority/minority world.

          When I attend business meetings, the principals of the firms and senior decision-makers are all Asian, South Asian, Persian, Arabic or Hispanic. They mostly speak accented English as a second language. On the construction sites I hear Spanish, Tagalog, or Armenian.

          These are all small businessmen who have learned to navigate the waters of American culture, and adapt themselves to it, but the center of gravity is shifting.
          Most downtown office buildings still have the giant Christmas tree every December, with a small menorah off to the side, but it is a token, the perfunctory thing they do because it has always been done.

          On a previous project, I took off a few days for Christmas, but a dozen other staff took off for Tet. And when I returned, I found our client had been busy sending a flurry of emails from her office in Shanghai.

          There will be a day when some symbol or totem is changed- an office building stops having a Christmas tree, a city agency changes a holiday arrangement. And that will mark the changing of the guard, except it will just reflect changes that had long been in the works.

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  4. William Roper: So, now you give the Devil the benefit of law!

    Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

    William Roper: Yes, I’d cut down every law in England to do that!

    Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

    A Man for All Seasons

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  5. WRT to government over-regulation and ignoring it for favored companies: The Obama administration didn’t really start this. In fact, no one did. The government has behaved that way forever.

    It’s just very recently that we’ve become open enough that such a thing became hard to do secretly. In fact, ‘Choke Point’ was supposed to be a secret, too. (1)

    And the secrecy is really what the problem is. People didn’t get ‘waivers’…they were just allowed to operate their unsafe business because they were ‘good for the community’, while the guy down the street got shut down for trivial things. The thing was, that happened without anyone knowing it, or it never really becoming explicit, and often ‘good for the community’ was just code of ‘friends with the mayor’.

    It would be perfectly fine if the law said ‘If you unionize, you don’t have to have as many handicapped ramps’…mostly because the law will never say that, because that’s a completely absurd thing to allow under the law.

    Likewise, the CRA could include some sort of section about adult entertainment and down-rating banks that provide accounts to them. It doesn’t, of course, because that would be stupid and has nothing to do with the intent of the law. (And it’s quite possibly unconstitutional.)

    And if we are unwilling to have such a thing _in_ the law, we should be unwilling to let the government do it _outside_ the law by just ignoring or policing violations of regulations.

    We need to treat that as what it is: Government extortion. In fact, it’s basically the definition of extortion, except our problem is that we’ve decided the government cannot extort people.

    …actually, currently, the problem is that the _current_ administration feels free to do such things openly, aka, blocking the AT&T merger because they don’t like AT&T. Previous, shame-feeling administrations would have at least tried to do that secretly.

    1) BTW, the fact the Federal government was threatening banks over porn stars, which generally have pretty successful businesses, and stuff like online gambling, which banks sure as hell know is dangerous and act accordingly by, uh, not loaning to them. But it wasn’t threatening banks over stuff like ‘Hey, try not randomly buying bundles of mortgages from mortgage companies sight-unseen’, is an indication of just how broken our bank regulatory system is. Every porn business and online gambling place could go bankrupt tomorrow and default on all their loans, and those defaults wouldn’t threaten a single bank.

    Hell, they were apparently closing the accounts of porn stars, not just not lending to them…how is their _adult business checking account_ supposed to be dangerous to the bank?

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    • Lots and lots of good stuff here DavidTC.

      ‘Hey, try not randomly buying bundles of mortgages from mortgage companies sight-unseen’,

      The Gov was busy telling banks they needed to increase home ownership.

      how is their _adult business checking account_ supposed to be dangerous to the bank?

      Because it displeases the bank’s policial masters.

      We’re going down in “The Index of Economic Freedom” for good reason.

      Previous, shame-feeling administrations would have at least tried to do that secretly.

      Yes, that. Trump has no shame and tools which were created for previous Presidents are now in his hands.

      I’m hoping all of this is a good lesson in “why increasing the power of the imperial gov is a bad idea” which we remember after he leaves office, or maybe even while he’s in there.

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      • Yes, that. Trump has no shame and tools which were created for previous Presidents are now in his hands.

        I’m hoping all of this is a good lesson in “why increasing the power of the imperial gov is a bad idea” which we remember after he leaves office, or maybe even while he’s in there.

        Not exactly.

        I mean, yes, I agree with that last sentence, in that having a Congress that does not do their job for decades, and in fact generally refuses to do their job because doing their job is ‘politics’ and might result in them not being reelected, resulting in more and more power being handed to the executive, turns out to be, uh, dangerous.

        However, my point is, in this example, this isn’t the executive or even the government, somehow ‘being given’ too much power…the power to selectively enforce laws has existed forever. If law enforcement exists, the possibility of selective law enforcement exists.

        So the problem is too much power at the same place as you’re talking about, but instead of that power _actually_ belonging in the legislature, this power instead should be with…regulators, actually. Congress should make laws about this, which they have, and then the executive should create strict rules and regulations clarifying those laws, and the executive should follow them, or follow a laid-out process to change them.

        Basically, the FCC should not be deciding whether or not to let AT&T merge with Comcast because the current presidential administration feels one way or the other, but based on the very specific anti-trust guidelines that have been created…and if the guidelines are slightly unclear, the enforcement authority should probably interpret them as harshly as possible and let the _courts_ (The nominally non-political branch) decide them. (I.e., we have an adversarial system for a reason.)

        And in this case, there aren’t really any strict rules about this sort of thing, as far as I can tell, so how the regulators ‘feel’ about this apparently is whatever goes. The regulations are broad enough they can hang the thing up forever, or allow it to move forward in a second. This is not good.

        But this problem, weirdly, cannot be solved with stricter rules. Because there are plenty of stricter rules that the current administration is completely ignoring.

        The entire premise of how the system works WRT to regulation is that the legislative says ‘figure out a process to regulate things’ to the executive, and later says to them ‘now we have made a laws telling you to regulate this thing, so do that’. The entire concept is that the legislature doesn’t want to have to become experts in every little thing, and trusts the executive to set up a reasonable process to find experts and listen to the public and make rules.

        Now, it’s possible to say ‘The system used to make, and remove, regulations, should be encoded into law’, i.e, the executive would legally have to follow their system when doing that. (Even if they themselves came up with it originally.)

        But the problem is, in some cases, it _is_! There are a bunch of different lawsuits now against the Trump administration alleging it _didn’t_ follow different specific, legally-required rule-making procedures when changing regulations. Lawsuits pointing out there are required public comment periods, or studies done, or all sorts of things that the executive just ignored.

        But private individuals using the courts to fix that is stupid, and in any sort of rational government with a _real_ legislative branch, the legislators would have stepped in about ten seconds after the executive violating rule-making procedures and said ‘Uh, no.’. (And if impeaching the president is too high a hurdle, I will point out they can impeach the political appointees running those agencies and actually doing those things.)

        So, yes, the problem is the legislative branch is broken, and has been for a while….but the problem isn’t just ‘the legislative gave too much power to the executive’, it’s also that it has ‘the legislative quite reasonable gave the executive the power to make regulations’, but that power was always always always supposed to have legislative oversight to make sure the executive wasn’t manipulating the rules it made for political purposes, or ignoring its own rule-making process.

        The legislature cannot be expected to micromanage everything, and it has nowhere to delegate its power _except_ to the executive. But it does have a duty to see that powers it has delegated are used in a politically neutral way, with political neutral regulations created and enforced in a politically neutral way.

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        • The legislature cannot be expected to micromanage everything, and it has nowhere to delegate its power _except_ to the executive. But it does have a duty to see that powers it has delegated are used in a politically neutral way, with political neutral regulations created and enforced in a politically neutral way.

          It’s a huge problem (to the point of absurdity) if, for the system to work correctly, politicians must be unpolitical in how they carry out their duties and/or do politically unpopular actions.

          Rather than get a large group of self ignoring bureaucrats who only have the best interests of the state in enforcing horribly complex rules (as opposed to empire building or justifying their own existences) I think we should face the idea that there are a ton of costs, unintended consequences, potential for misuse, and a lot of this should be handed over to markets.

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          • It’s a huge problem (to the point of absurdity) if, for the system to work correctly, politicians must be unpolitical in how they carry out their duties and/or do politically unpopular actions.

            I can’t figure out why you have tried to simplify it that way. Politicians do not have the duty of writing or enforcing regulations.

            Right now, politicians in Congress make laws directing government agencies to do things. The politicians in charge of these agencies are supposed to make sure that the laws are faithfully executed.

            Usually, these laws are not anywhere near detailed enough to just implement as-is, and they really shouldn’t be that detailed. This results in regulations created by the civil servants who exist in those agencies.

            There is always wiggle-room, and there is always priorities being set from above in the executive, but Congress is supposed to keep outright political behavior in the executive branch in check. Especially in the _enforcement_ of regulations.

            It’s not the politicians who are supposed to be neutral. It’s the civil servants who are supposed to be that. Politicians in the executive don’t have to be ‘neutral’, they mostly _shouldn’t making individual decisions_.

            I.e., the Attorney General and the President shouldn’t be ‘neutral’ about the AT&T merger, they should _not have stated opinions_. At all. The DoJ has an entire division of civil service lawyers for that sort of stuff. If the president wants to emphasize anti-trust law, or deemphasis it, he can, but he shouldn’t be talking about a specific case and certainly shouldn’t be making ‘decisions’ about it.

            The problem arises when one Administration does not seem to believe in that anymore (Even in places where it’s an actual law instead of just a norm.), so starts doing that, and Congress allows that.

            Note there are, indeed, plenty of actual laws about this, plenty of laws setting up sharp divides between the political tops of agencies and civil service peons.

            I think we should face the idea that there are a ton of costs, unintended consequences, potential for misuse, and a lot of this should be handed over to markets.

            ….a lot of regulations should be handed over to markets? Huh?

            So Congress says ‘We are going to require pollutants to be regulated’, and…what, exactly? The market says ‘Pay us and we will write those rules?’. How do we bid that out?

            More to the point, why are you trying to turn this into ‘the government has too much power’?

            As I said, unless you literally think the government should not be enforcing laws, the government will have the ability to _selectively_ enforce laws, which means we better have some sort of check on that.

            Even in a libertarian paradise where the only crime is murder, the government selectively enforcing murder laws would be a pretty bad situation.

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            • Congress is supposed to keep outright political behavior in the executive branch in check. Especially in the _enforcement_ of regulations.

              If Congress isn’t able to check Trump, who is openly and constantly somewhere between not-a-normal-politician and insane, then Congress can’t check anyone.

              Similarly Congress couldn’t check Obama from using the EPA to fight global warming even with the laws original creators openly saying it’s a misuse of the law they wrote. The President decided it needed to be done, therefore it would be done. Laws that can be twisted to fit any need seem like a problem.

              ….a lot of regulations should be handed over to markets? Huh?

              We should face up to the fact that micromanagement by regulator has a ton of costs, problems, and side effects and write laws appropriately. For example rather than expect our all knowing all benevolent regulators from preventing banks from blowing themselves up, we should simply let the banks blow themselves up and be willing to clean up the aftermath.

              Their own skin in the game is way better at controlling their behavior than anything else we can do. The FDIC is a good thing, but if a bank needs to use it we should be shutting that bank down and not letting them play heads-I-win tails-the-taxpayer-loses games.

              Even in a libertarian paradise where the only crime is murder, the government selectively enforcing murder laws would be a pretty bad situation.

              True, but that supports my line of reasoning and not yours. You’re explaining why the gov selectively enforcing all laws is expected because of the vagueness and complexity of those laws, but Congress is supposed to make sure they’re selectively enforcing the law in ways that are “neutral”.

              More to the point, why are you trying to turn this into ‘the government has too much power’?

              It seems the obvious place to go.

              We’re staring at regulatory failure and/or misuse with you saying “it’s not supposed to happen”. I can off hand think of lots of other examples, and the typical answer to regulatory failure/misuse/capture/etc is more regulations. These regulatory schemes are too complex for any single human to understand (which is a problem) and strongly encourage government by personal relationships, i.e. government by men and not by law.

              These hit the radar as problems. My expectation is these vast bureaucracies which create other vast bureaucracies are expensive and cost us economic growth (which is crazy expensive long term). My other expectation is that Trump isn’t even close to the worst case for misuse.

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  6. When I had a subscription to the Nation back around 1990, there was a writer who would complain about “Teddy Kennedy liberalism,” which he described as the technique of finding a big corporation’s policy that is attractive and then mandating for other businesses. An example of this might have been something like family leave, a policy that writer didn’t necessarily oppose, but he was concerned that liberals were essentially strengthening big business, making the corporate world the framework in which public policy space is most meaningful, and just generally whether liberalism is on the wrong track.

    I suppose this became a critique of neo-liberalism, but I’ve wanted to go back and read these pieces for a long time since they seemed prescient to my experience in legislation and regulation. As I understand, their archives only recently became available online.

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  7. RIAA & loss of residuals:
    Benefits the companies, a big middle finger to some big estates that have been commanding premium rates for years, screws the little guy, and serves as a warning to others.

    NRA:
    I still think this whole dialogue is a bit misguided, in that human interaction is not device-dependent.
    I still believe looking at the dynamics of the relevant human interactions would be more fruitful, but maybe that’s the reason the focus is on the device rather than the person.

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  8. I haven’t read the “government by waiver” piece Will links to (but I plan to), but what Will has quoted and what Will in general talks about in the OP reminds me of one of Theodore Roosevelt’s approaches to government regulation. Too put it too crudely, the approach I’m referring to was to single out “bad” corporations for antitrust prosecution, with “bad” being defined broadly by what the president believed was “bad.” An underlying assumption of this approach was that pretty much any large corporation could be found in violation of antitrust laws so that the decision not to prosecute was the decision to forgo what would almost certainly be a conviction or at least a costly, lengthy prosecution.

    I said that was putting it “too crudely” because it was likely more complicated than that. And of course, it wasn’t TR’s only approach toward regulation. But that “I’ll prosecute you if I think you’re bad” approach doesn’t sit well with me. On the other hand, I supported Obama’s/Holder’s decision not to prosecute recreational marijuana stores, and the assumptions behind that decision is kind of the flip side to what I criticize TR for. So it’s kind of a “if it works for what I support, then it’s good, but if it goes against what I support, then it’s bad” proposition.

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  9. Pingback: Gutcheck Capitalism | Hit Coffee

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