Matt Yglesias writes:
Over the past couple of years, I’ve increasingly heard advocates of “free market” policies try to convince me that their approach is in fact the solution to the problem of the domination of the government by the wealthy and powerful. Their pitch is that if instead of having public sector agencies that try to do things, we just had a “free market” environment, that corporate domination of the political system wouldn’t matter. I think stories like this one underscore the fallacy of that approach. The political system is necessarily everywhere you look determining, among other things, who does and doesn’t have access to the legal system to enforce their rights.
It’s either possible, over the long run, to have a democracy in which practice approximates the ideals of political and legal equality or else it isn’t. If the political power can be mustered to create legislation that serves the public interest, then it can. If it can’t, then simply trying to retreat outside the arena of the “political” will fail as the powerful extend their domination into new arenas.
Mr. Yglesias chooses to grapple with the most crude version of free market arguments — a better summary is that if the political sphere were more limited, its regular domination by certain kinds corporations would matter less — but let’s ignore that here so that we can focus on a more interesting rebuttal.
It’s possible to make it very difficult for the powerful to extend their domination into new areas. For example, in the long run, the Bill of Rights helped Depression era farm labor in California to unionize, despite attempts by agribusiness syndicates to jail or assault organizers merely for addressing worker rallies.
In the short term, the ability of the growers to collude with the California Highway Patrol, local police and vigilantes — and to ram the abhorrent Criminal Syndicalism Act through the state legislature — put labor at the mercy of a quasi-fascist order.
But the Constitution limits the legal ability of legislatures to regulate speech, and strengthens social norms against speech limits. Thus the act was struck down by the courts, freedom of speech and association were protected, and labor made gains — and aren’t we glad that liberals of that era used constitutional freedoms to advance their cause, rather than presuming that permissible speech was just going to be something decided by the political process anyway, so they might as well try to pass a law prohibiting the growers from speaking?
Libertarians wish that liberals would show the same restraint when they see an opportunity to advance their immediate ends by regulating campaign speech, or seizing private property in eminent domain cases, or expanding the commerce clause so much that the federal government is no longer one of delineated powers. Instead, liberals usually take the short term gain, and don’t worry much about the implications of expanding the political sphere, even though long experience shows that powerful special interests will exploit these new political arenas.
Above Mr. Yglesias argues that everything might as well be up to the legislature, but I can’t imagine he really believes this. Should we let Congress regulate American religious practice on the supposition that in the long run, there either is power that can be mustered to benefit the American people, or else there isn’t? The fact is that the power one needs to legislate for good or ill isn’t equivalent to the power one needs to overcome institutional barriers against government participation in certain spheres.