ALEC’s Fake “Free Market” Apologists on the Right

Sadly, if not surprisingly, some on the right-wing fringe of the libertarian movement are jumping all over themselves these days to defend the American Legislative Exchange Council — ALEC — as a lobby for “limited government” and “free markets.”

Competitive Enterprise Institute chief Fred Smith characterizes the attack on ALEC (a “free market group” of “CEOs willing to stand up for free enterprise”) as part of a broader move to “drive all market voices from the marketplace of ideas.” He frames the conflict as ALEC’s attempt to “expose … capricious legislation,” versus radical attempts to “silence” ALEC (“Letter to the Editor — An Attempt to Drive Free Market Voices from the Field,” Wall Street Journal, April 25).

Ron Bailey at Reason (“Leftwing Pitchforkers: Kill the Limited Government Monsters!” April 26) calls ALEC a “limited government think tank” whose chief offense for the Left is supposedly “advocating free markets.” As evidence, he links to accusations by The Nation that ALEC promotes a “vast procorporate strategy” and writes “‘model’ legislation designed to boost the profits of its corporate members.” So apparently big business interests secretly collaborating with government to boost their profits = “free enterprise.”

Participants in the “marketplace of ideas” generally try to maximize public attention to their ideas. When they draft legislation in their own interest, in settings designed to minimize the chance of public notice, terms like “railroad job” are more appropriate. Contra Smith, it’s ALEC that’s tried its best to keep the debate “silent”– and its critics who’ve done the “exposing.”

Let’s take a look at some of the “free market” interests involved in ALEC and their “limited government” agenda: ALEC’s “model bills” are written mainly by corporate lawyers representing firms like Exxon-Mobil, Pfizer, and the Corrections Corporation of America.

Let’s start with Exxon-Mobil. The oil industry’s probably not the best examplar of libertarian values. In general terms, extractive industries like fossil fuels and mining have a long history of collusion with murderous regimes around the world, when access to resources is impeded by local populations living over them. Hence the crimes against humanity in Nigeria carried out at the instigation of Shell, and in Indonesia under its earlier name Royal Dutch Shell. Exxon-Mobil, in particular, colluded with the Indonesian government in carrying out human rights violations at Aceh (e.g. providing the government with excavation equipment to dig mass graves for those murdered by an Indonesian military unit hired by Exxon-Mobil).

In the United States, ALEC strongly supports state capitalist projects like the Keystone XL Pipeline, and “fracking” and mountaintop removal operations. The former would be impossible without eminent domain to secure rights-of-way. The latter depend heavily on privileged access to vacant land preempted by the state, and on safe harbors created by regulatory preemption of common law liability standards for groundwater and air pollution and other environmental harm (just look at respiratory disease stats for kids in schools close to mountaintop removal actions).

You probably wouldn’t expect the agenda of private prison corporations like CCA to carry a whole lot of “free enterprise” street cred. And you’d be right. First of all, the model of “privatization” exemplified by private prison companies, with revenue directly provided by the state or profits guaranteed by the state, is more accurately called “corporatism.” And second, the private gulag industry has a huge vested interest in policies (like Arizona’s “Papers, Please” law, written by CCA’s busy scribblers) that keep as large a share of the population as possible under lockdown.

The private correctional industry, somewhat unusually for “limited government” types, sees the decriminalization of consensual activity as bad for its business model. The GEO Group (formerly Wackenhut) 2011 annual report warned that “demand for our correctional facilities and services” could be reduced by less restrictive drug and immigration law. An industry whose profits depend on America having a larger prison population than Red China — pretty “libertarian,” eh?

Another major item in the ALEC agenda is so-called “tort reform.” Now, most libertarians favor replacing the regulatory state with a vigorous system of tort law. The most effective way to punish pollution and other forms of corporate malfeasance is to make wrongdoers pay full civil damages for the harm they caused. The “loser pays” rule, the centerpiece of virtually every so-called reform package, would cripple any such system of civil liability by making civil action insupportably risky for all but the very rich.

Adam Smith, writing almost 240 years ago, could teach these modern-day “libertarians” a thing or two: “Men of the same trade seldom meet together” — let alone go hunting with Dick Cheney and Antonin Scalia — “but that it ends in a conspiracy against the public.”

ALEC’s proposals represent “free enterprise” in much the same way that a chain gang from one of their “private” prisons represents “free assembly.”

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