Rick Perry’s Government: “Inconsequential” as a Ball and Chain

We already know Rick Perry uses words in a rather, um, idiosyncratic sense.  For instance, he’s the kind of “pro-life” governor whose supporters cheer him on for executing an innocent man.  So when he says he wants to “make government as inconsequential to your lives as possible,” we should probably be on guard for any possible private meanings or mental reservations he attaches to that phrase.

To take just one example, I wonder how inconsequential the the Gardasil that was forced on girls in Texas public schools was to them.  Merck certainly didn’t consider it inconsequential at $360 a pop (I mean, seriously, would they have been pushing it on Perry if it wasn’t under patent markup?).  And I think it’s fair to say the folks at Merck who contributed to the Perry campaign and hired his former chief of staff Mike Toomey as a lobbyist wanted to make government more, not less, consequential to themselves.

More broadly, in the words of Sarah Bufkin at Think Progress, “Perry’s legislative agenda bears a strong resemblance t0 ALEC’s corporate-backed model bills” (August 4, 2011).  ALEC (American Legislative Exchange Council) provides model bills — bills drafted mainly by industry lawyers and lobbyists — for state legislatures.

Perhaps the most egregious of Perry’s ALEC bills was his so-called “tort reform,” with its loser-pays provisions.  Such provisions work like plea bargain blackmail in the criminal law, creating an asymmetrical power relationship between those with nothing much to lose and those with everything to lose.  For a deep pockets corporation — apt, aside from food libel or “intellectual property” cases, to be the defendant anyway — averaging out the costs of a settlement here and there is no big deal.  But for a small plaintiff, losing a suit to protect her rights against a corporate malefactor could mean financial ruin.  That means civil tort action to secure compensation for wrongs by criminally negligent business enterprises becomes insupportably risky for all but the very rich.

Remember that, for free market libertarians, a vigorous and robust tort law regime is the favored alternative to the regulatory state.  The regulatory state has preempted common law standards of liability to an enormous extent, supplanting the old principles of public and private nuisance and strict liability with a much weaker regulatory regime. 

The courts generally treat these least-common-denominator standards as safe harbors; a business can cause serious harm, but if it meets the regulatory standard it’s immune to lawsuit for any damage it caused.  This amounts to license for big business to impose negative externalities on society, so long as it meets the minimal dumbed-down standards of the regulatory state. 

A return to the common law’s standards of strict liability for all harm would undo this state of affairs. “Tort reform” is a way of making sure that doesn’t happen, a deterrent against citizens exercising their rights:  “If you sue us and fail, we’ll destroy you.”

Perry, like Arizona governor Jan Brewer, has also supported draconian anti-immigration bills written by the Corrections Corporation of America, which hopes to make money providing a private gulag to house those rounded up for not having their papers in order. Private prison corporations, you see, view the detention of “illegal immigrants” as their next big market. And to top it off, companies like CCA can hire out their inmates for pennies an hour to outside industry — you know, kind of like the slave labor we criticize China for.

You better believe the industry lobbyists who write legislation at ALEC, and the industry representatives from Microsoft and the record and movie industry trade associations who write copyright law, expect that legislation to be consequential — consequential for their own bottom line. From this it follows, as surely as night follows day, that the legislation will be equally consequential to the average person.

If privileged corporate interests use political means to profit at the expense of taxpayers, workers and consumers, it follows that government carries negative consequences for ordinary people.  As the Wobblies’ founder Big Bill Haywood put it, “for every man who gets a dollar he didn’t work for there’s a man who worked for a dollar he didn’t get.”

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