Neil Buchanan: One Person Against Big Business Isn’t Freedom

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A Wells Fargo bank branch in lower Manhattan on April 15, 2016 in New York City. Neil Buchanan writes that when a government agency punishes Wells Fargo Bank for stealing people's money by secretly creating accounts in their names and then charging them fees, Republicans say the government is trying to micromanage your life. Get out of here, Leviathan and your pesky bureaucrats. Spencer Platt/Getty

This article first appeared on the Dorf on Law site.

The personal relationship that I have with my automobile insurance company is a cornerstone of my happiness. Also, my sense of empowerment when I interact with my cable company makes me feel pleased that no one is coming between us. I view it as essential to my life that those deep connections never be disturbed.

No, I have not lost my mind.

Instead, I am simply trying to force myself to think in the way that Republicans want me to think about the inherently unbalanced relationships that people with relatively little power have with the powerful. Republicans ultimately rely on that deliberately naive view of "relationships" between individuals and powerful institutions to justify their anti-government crusades.

The occasion for these musings is the news that Donald Trump has joined in the Republicans' frantic efforts to eliminate the Consumer Financial Protection Bureau (CFPB). That agency was created as part of the Dodd-Frank financial reform law in the aftermath of the Great Recession. It is true that Republicans hate Dodd-Frank, but they hate hate hate the CFPB.

The immediate reasons for their hatred are obvious. Dodd-Frank is a law passed by the Democratic congress that was swept out by the Tea Party wave, and it was signed by Barack Obama. Even worse, the CFPB is the brainchild of Elizabeth Warren, springing from her policy research when she was a professor at Harvard Law School.

Republicans thought they had won their revenge when their blocked Warren's appointment as the founding director of the agency, but Warren responded by running for the Senate and beating Tea Party hero Scott Brown in Massachusetts. And now the battle continues, with Trump joining in to attack a proxy for his Twitter nemesis.

What is most interesting to me, however, is the style of argument that Republicans are using to attack the CFPB and other agencies that protect consumers, workers and the environment. Republicans do have a consistent theory, if you want to call it that, which boils down to the idea that everyone should be free to have a direct relationship with large institutions, without any pesky government types running around setting the rules of the game.

As usual, the man who Republicans universally proclaim as their Ideas Guy, House Speaker Paul Ryan, provides a smarmy cover story for the protracted campaign to allow their campaign donors to victimize people—the very people who, in other contexts, Republicans honor as America's forgotten men and women. In Ryan's telling, of course, it is all about freedom.

In a recent column, I described the bizarre version of freedom that Republicans rely on in their paeans to liberty. They argue that people should be free to negotiate with health insurance behemoths rather than have the government put limits on what those insurers can do to their vulnerable customers. Essentially, Republicans believe that freedom means, "You're on your own, pal, and if you're harmed, it's your own damned fault. Don't come crying to us."

I noted in another recent column that Ryan's former colleague Mick Mulvaney is now Trump's budget director, and Mulvaney is busily trying to redefine the word "compassion" to serve Republicans' ends. In his telling, the government should never spend money to help people because taxing anyone is a terrible thing to do, which means that every dollar spent on a compassionate cause (like Meals on Wheels or school lunches) is irretrievably tainted by the uncompassionate act of taxing someone who is better off.

As I suggested in that column, Mulvaney's pitch is an even more heartless version of the famous satirical adage from Anatole France: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." Ryan's defenses of "freedom" are similarly based on long-criticized distortions of the notion of liberty.

Powerful people love "freedom" when it means that they can take advantage of the weak. Ryan, supposedly a deeply religious man, has no problem with that.

In the context of the Republicans' attacks on the CFPB, Ryan characteristically captures the simplistic mindset of his party. In a tweet last Fall, he said: "The #CFPB supposedly exists to protect you, but instead it tries to micromanage your everyday life."

Get it? When an agency punishes Wells Fargo Bank for stealing people's money by secretly creating accounts in their names and then charging them fees, the government is merely trying to micromanage your life. Get out of here, Leviathan and your pesky bureaucrats.

Again, Mulvaney and Ryan put a modern, illiterate gloss on these arguments, but they are simply replaying the greatest hits of the bad old days. The people who make money by hoodwinking people and taking advantage of power imbalances hate it when something prevents them from doing so, even a little bit. In response, they have decided to buy a faux-populist movement to restore their powers.

The "personal relationship" argument is surprisingly persistent on the right, even though virtually no one takes it seriously in their everyday lives. The argument is based on a truly strange notion of freedom and independence that involves letting oneself get screwed over by institutions that have more power and information.

Nearly everyone can think of examples from their own lives in which it would be laughable to say, "You know, all you have to do is exercise your freedom to negotiate, without worrying about government getting in the way. For example, if you don't like being given work hours that keep you just below the qualifying level for health benefits, you should be glad that you can talk to your boss directly!"

While readers think about their own examples, I will offer two telling examples of my own.

When I was in graduate school, the university's support staff were trying to start a union. Because I was temporarily on leave from my studies but was still a teaching assistant in the Economics Department, I briefly fell into the category of workers who would be covered by the union. Unsurprisingly, the university had hired a union-busting consulting firm to fight the organizing effort.

One day, I received some glossy brochures from the university president's office. They were part of an effort to convince employees not to support unionization. I still remember the most accidentally amusing line from one of the flyers: "Don't allow someone else to interfere with your personal relationship with Harvard." All I could think was: "I have a personal relationship with Harvard? Who knew?"

At another point in my life, I was briefly working as a waiter in a restaurant.  One Saturday morning, the business managers of the company that ran the restaurant chain held an all-staff meeting. The meeting was mandatory, but of course we were not paid for our time. It was mostly a rah-rah session and a total waste of a morning off.

The guy leading the meeting did, however, ask at one point whether there were any matters that the employees wanted to raise. An experienced waitress raised her hand and pointed out that there was a problem with the way new servers were trained. "When senior people like me have to train a new person, we earn a lot less in tips than we would if we were just doing our own jobs."

The response? "That's an interesting point, Jennifer. But I think that this kind of unique issue is something that should be handled in one-on-one meetings. Let me talk to you in private later."

The point is not merely that the meeting with Jennifer did not lead to changes in policy. The larger point is that, even where unionization was not at all in play (this was in Utah), the manager's knee-jerk response to an issue that clearly affected (or would eventually affect) every person in the room was to personalize it and take it off the table.

The freedom that Jennifer, a working single mother, had to negotiate with her bosses is a sham. The bosses did not need to yell at her publicly, or fire her on the spot—although they could have done so. Their position of relative power gave them an array of different ways to keep the employees down. I suppose we were all supposed to feel happy that there was no third party intervening in our personal relationship with our employer.

This twisted logic, in which Republicans carefully pretend that one-on-one negotiations are the essence of how free people interact, is not limited only to matters concerning wages or hours. What, after all, are the conservative answers to sexual harassment? "Why didn't she just talk to her boss?" "If it was so bad, why didn't she just quit?" Reasoning like that gave us a Supreme Court justice.

As it happens, this reality-deficient notion of how people interact in the world is part of what students learn in both economics departments and law schools. Having taught in both, I find the similarities and the differences telling.

In economics departments, much of the theory taught in microeconomics courses (which cover interactions in individual markets, including labor markets) proceeds from the assumption that both sides to a transaction are "free to choose," including being free to walk away and refuse to transact.

At best, this is a caricature of how the world works, a baseline theory that explains only a subset of real-world negotiations that are genuinely balanced. Unfortunately, many of our students leave the classroom thinking that consumers and workers possess market power that simply does not exist.

Even so, Republicans' anti-government ideology is based on the idea that bureaucrats illegitimately interfere in what would otherwise be mutually beneficial bargains. Especially when someone like Paul Ryan enters college with a preexisting commitment to right-wing ideology, it is all too easy to find simplistic economic theories that seem to justify his prejudices.

In law school, of the many classes that deal with the varied issues raised in a modern economy, the required first-year Contract Law class remains the most important course for exposing students to the laws governing economic interactions.

As in economics, there is an old-fashioned theory that ignores power relationships and pretends that all agreements between people are the result of untainted bargaining. The "formalist" theory says that a deal is a deal, and the courts either should never question a contract or should only invalidate agreements in the most extreme of circumstances (for example, when a person signs a contract while a gun is being held to his child's head).

Fortunately, most current legal rules of contract are more realistic than the formalists would like. We now recognize that truly free choice is hardly a self-defining notion, and the law has developed over the last century in ways that allow relatively powerless people to resist being forced to live by deals that were freely agreed upon in only the most formal sense.

There is still plenty of disagreement among law professors about how the rules of contract should recognize power imbalances, just as modern economists continue to disagree about the importance of "market imperfections" and the government's role in mitigating the consequences of bad deals.

The larger story, however, is that Republicans act as if the most extreme versions of economic theory and contract law are the only—and are in fact the True and the Right—way to think about the world. Regulating health care, or worker safety, or product safety, or environmental harms, is said to be horrible because it allows the government "to micromanage your everyday life."

I suppose that there are people who support the Republicans who honestly believe the hype, that is, who genuinely imagine that your personal interactions with UnitedHealth, and Verizon, and Wells Fargo, and Liberty Mutual and your employer are all truly free and balanced relationships.

It is more difficult to believe that the politicians who are pushing this nonsense are not in on the con. Whenever the choice is between the powerful and everyone else, Republicans always back the big guys while chanting dogma about free choice.

For the powerful people and corporations to whom the Republicans answer, the freedom to exploit is truly a beautiful thing. For the rest of us, our personal relationships with those powerful entities could use a bit of micromanaging.

Neil H. Buchanan is an economist and legal scholar, a professor of law at George Washington University and a senior fellow at the Taxation Law and Policy Research Institute at Monash University in Melbourne, Australia. He teaches tax law, tax policy, contracts, and law and economics. His research addresses the long-term tax and spending patterns of the federal government, focusing on budget deficits, the national debt, health care costs and Social Security.