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S.J. Quinney College of Law

  Aug 29, 2014   |   Last update: August 4, 2014 @ 8:21 am

Grown-up Governance, Health Care, and the Global Scene

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by Wayne McCormack

Now that the foolishness of a government shutdown has in fact emerged, it would be nice if our elected representatives would grow up and start going about the business of governing rather than merely sloganeering and pandering to extreme constituencies. The adult world of governance should spread to include not just developed countries but struggling economies and countries struggling to emerge from the corruption of the post-Soviet era. People around the world need to stand up for transparency and accountability in government.

The U.S. election of 2012 produced untoward, although not unprecedented, levels of hostility and heated rhetoric. The example of a talk show host labeling a coed as a prostitute and slut because she argued for insurance coverage of birth control should tell us all that the level of heat on political rhetoric needs to be turned down.

Before I start ranting about election sloganeering and political ranting, I try to remind myself not to go on a rant. Humans seem to prefer communicating in slogans more often than in rational thought. Maybe it has something to do with the ability of a slogan to capture many different meanings in one phrase so that people can feel they are together when in fact they have very different conceptions in mind. It could be that representative democracy, which spawns the necessity of voting, requires catchy slogans to compete with all the other demands on the voters' time and attention.

One recent essay attributed the economic train wreck of the US to the collapse of labor unions over the last 50 years. "If the left ever wants to regain the vigor that powered earlier eras of liberal reform, it needs to rebuild the infrastructure of economic populism that we've ignored for too long." But I don't look to labor unions to do it for us. To "rebuild the infrastructure of economic populism" cannot depend on the unions. We have to get the Democratic politicos out of the reception rooms of corporate America and back to working on real issues. And the key to that is campaign reform. Nobody should be able to raise money for an election more than 6 months before the election, we should have tight rules on how much they can spend and they cannot have a free meal or a free hotel stay. And, of course, the Supreme Court was dead wrong on corporate free speech, and we need to fight that battle again.

Is it possible to get government on an adult level? Yes, absolutely. Tight ethical and campaign reform coupled with education can turn this thing back around.

Some Myths About Minimalist Government

Anyone who has bought into the sloganeering of the minimal government movement should visit any country in Eastern Europe for a week, or maybe just a couple of days. If you want to see what an unregulated, unsupported economy looks like, go to any Eastern European country to ride a dilapidated old bus and make your way to an upscale shopping mall where you can watch the mega-wealthy shopping at Gucci, Ferragamo, and Cartier.

Talk to anybody you meet about the corruption, about buying out of a traffic ticket or even paying an official so your son is exempted from compulsory military service, but mostly ask about how it happens that the oligopolists can take billions of dollars out of the country’s economy without providing job prospects, basic health care, or even indoor plumbing in many places. When I commented to one person that government could not seem to control organized crime, she grimaced and answered “Government is organized crime.” The simple truth of an unregulated economy is that the ruthless will end up with wealth and power to the detriment of the people.

But what is the vision of the minimizers today for the United States? Maybe a touch of history will help. Yes, the U.S. has had its share of corruption and growing pains. In the late Nineteenth Century, Westward Expansion and the Industrial Revolution opened up opportunities for a few to become enormously wealthy. Stanford, Huntington, Crocker on the West Coast were known as the Robber Barons. On the East Coast, there were Morgan, Rockefeller, Chase and others.

The Industrial Revolution brought sweatshop working conditions to many laborers. Child labor lured industries to the South. Exorbitant prices could be charged by corporations that formed together into cooperative trusts, either formally or informally, to create monopoly conditions. All this required federal legislation to control the worst of the abuses.

And therein lies the difference between the regulatory drive of the early Twentieth Century and the anarchic practices of today. The Stanfords, Morgans, Rockefellers, and Fords all wanted to build something. Maybe they were just building monuments to themselves, but they wanted legacies that would last. And they understood this essential truth: without work, housing, and health for the working class, there will be no market for industry.

The Tea Party Movement in 2012 tries to borrow the romantic minimalist rhetoric of Ayn Rand, but the anti-government rhetoric is Hobbesian: “life in the [state of nature is] nasty, brutish, and short.” The anti-government movement resurfaces just about once every generation. None of us who observed George Wallace or Orval Faubus can forget the rhetoric of “states’ rights” that was used to resist the human rights efforts of the federal government. It is a mystery to me how anyone can listen to that rhetoric now and not be reminded of the oppression of African-Americans for two centuries in this country.

Can government go too far? Unquestionably. The Communist Party proved that government can be too intrusive just as the oligarchists today are proving that government can be too weak. Who has the ultimate check on power, either government or private power? “We the People.” As John Marshall said in the first Supreme Court opinion dealing with this phenomenon: “The wisdom and discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are . . .  the sole restraints on which they have relied, to secure them from abuse.” Similarly, We the People must insist that government is there to control abuse and provide minimal standards of living conditions. Without those assurances, we have no economy beyond the short-term greed of the ruthless.

Misinformation, Health Care, and Global Governance

We can read daily incomprehensible diatribes against what is derisively called Obamacare. There are several problems in trying to understand public policy around health insurance – it requires dealing with large numbers, and the numbers are heavily dependent on what insurers and state regulators decide to do in the next few years. Thus, it hardly makes sense to throw out horrific numbers as if anyone knew exactly what decisions will be made by a variety of participants. In addition, there are many myths surrounding these issues and it is exceedingly difficult to get straight information.

According to the New York Times, the public polling agencies are “working overtime” to find out what Americans think about health care and the Affordable Care Act. The level of misunderstanding, perhaps deliberate disinformation, is astonishing. So I return to my original point – sloganeering has replaced thought and analysis in U.S. political life.

What does this have to do with Global Governance? President Obama rightfully said that America is now infused with a well-deserved humility about our role in the world. “American exceptionalism” was built on the notion that we had a special way of governing that could allow us to do anything we chose to do. We know now that is wrong. Governing requires making tough choices, compromising where needed, and generating the greatest good for the greatest number while respecting individual liberty – a tough job to say the least.

If “We the People” want to hold true to the American ideal, and stand as an example of governance for the world, we need to demand adult behavior from the children we have sent to Washington.

Wayne McCormack is a Professor of Law at the University of Utah S.J. Quinney College of Law, where he teaches Constitutional Law, Counter-Terrorism, International Criminal Law, Torts, and Civil Procedure. From 1997-2002 he coordinated the University of Utah's involvement with the 2002 Olympic Winter Games, and that experience led to security planning for major events and interest in international legal issues, including the law related to terrorism.