Friday, January 20, 2012

On Law and Sausages - SOPA, PIPA and Cronyism

Laws, like sausages, cease to inspire respect in proportion as we know how they are made. - John Godfrey Saxe

The recent SOPA/PIPA legislation, a blatant assault on the First Amendment spawned by the entertainment industry and almost enabled by their political lapdogs, triggered a massive protest against crony capitalism unlike anything seen in recent times. Dozens of internet icons and thousands of smaller sites either shut down completely or made the legislation a focus for the day.

One of the most interesting spin-offs, from a personal perspective, was a long, detailed and nuanced examination of the entire issue on what I consider the premier political discussion board on the Internet, the Politics and Current Events forum at Absolute Write. Not surprisingly, as a writer's forum the population skews considerably toward the left side of the political spectrum, and government legislation is generally well-received. Not in this case, though. Opinion was overwhelmingly against these acts, which gives me much hope for the future.

This Tireless Agorist could hardly be considered a proper shill for my cause if I didn't recycle that discussion to butress my case for severely-limited government. Thus this essay.

After the case against this unconstitutional and blatantly authoritarian legislation was well developed in the discussion, I expressed my joy at seeing so many people supporting private businesses for Going Galt over such onerous and unwarranted legislation.

Oops -- or so it seemed.

Within minutes, it was pointed out that this wasn't a fight against government, but a fight against organizations like the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA), who all but wrote the legislation in the first place. This is essentially true. If you dig far enough, you'll find that this bill is of the special interests, by the special interests, for the special interests, and should soon perish from this earth. (to paraphrase Lincoln).

Which brings us back to the title of this post, and the quote that leads it off. Let's see if we can determine how this particular sausage was made.

The Legislative Process at Work

(Civics Class Model)

We all learned in school (those of us who didn't sleep through civics class, anyway) that legislation is the result of a long and laborious process. Our legislators, having decided to correct some glaring problem in society, pull together the best and brightest in the field, consult with them through the process of hearings, then gather together in the appropriate committee and carefully draft legislation intended to correct the problem with a minimum of nasty side-effects. Thereby, legislation is written to protect the little people from the predations of ruthless corporations who would steal our money, sell us unsafe food and other products, and generally make a mess of the world if it wasn't for the government keeping a sharp eye on them.

It seems fair to assume that some legislation does indeed come about through this process. At the same time, it's glaringly obvious that this is not the way SOPA and PIPA came about, so there must also be an alternative model in play.

And we also have to remember that's what we learned in school. Government-designed, government-financed, and government-approved school, from teachers trained in the same schools and textbooks also approved by the government. There's certainly a possibility of bias there.

Let's construct an alternate model, using SOPA and PIPA as an example of how such legislation might come into existence. They make great examples, since the strongest support for these bills is provided by lobbyists representing the Motion Picture Association of America, pharmaceuticals makers, media firms and the U.S. Chamber of Commerce. That's right; the chief lobbyist for SOPA and PIPA is the same organization that not that many years ago tried to make owning a VCR a criminal offense.

I don't see "we the people" in there anywhere, do you?

The Legislative Process at Work

(Cronyism Model - based on SOPA and PIPA as examples)

1) Megacorp realizes that if some legislative change occurs, it may protect their profits, close some doors to competitors, or shovel some money from the the taxpayers' pockets into their own.

2) Megacorps' public relations arm determines a way that the issue can be presented so that the average joe who looks at the surface will support it. They also find a boogie-man they can point to who will be "brought under control" by this particular piece of legislation.

3) Megacorps' lobbyists talk to the politicians they have the most ownership in and get them to float a trial balloon. If the outcry from the trial balloon is too big to deal with, they go back to step #1. If the issue's really important to them, they just go back to step #2.

4) If there's little outcry, Megacorp's lawyers work closely with the purchased politicians' aides to draft legislation to make sure it's palatable enough to get the average politician and the average joe to swallow it.

5) The purchased politicians talk to other politicians and trade support for their legislation for promises to support similarly-crafted legislation proposed by other politicians owned by other Megacorps in the future. No talk of principles or "the good of the people" allowed.

6) Reporters find out about the proposed legislation and interview the important people promoting the issue. Those important people consist of representatives of MegaCorp, trade associations involved in the same industry that see the advantages of the legislation to their industry, and the politicians who have already been brought on board. Not surprisingly, the reporters give glowing reports of the proposed legislation based on the viewpoint developed in step #2.

7) The legislation is passed in response to an overwhelming swell of support from average joes who want the government to do something about the boogie-man "discovered" in step #2.

8) Mega-corp benefits, and average joe loses his shirt. But he never realizes how thoroughly he's been duped, and mega-news sure isn't about to tell him.

Not a pretty picture, but undoubtedly an active alternate model, as SOPA and PIPA illustrate. Go ahead, walk through both models with SOPA and PIPA in mind. I'll wait.

You're back? Good. Let's continue.

Certainly, this model and the model we all learned in civics class apply in particular cases. Some legislation does serve to hold special interests in check.

But when the middle class is shrinking, when opportunities for the many decline and the GINI index tells us that wealth is increasingly held in the hands of an ever-smaller group, when Wall Street gets the bailouts and the taxpayers get the bills, it's not hard to tell which of the two models holds sway in Washington. We ignore that fact at our peril.

SOPA and PIPA have so far been relegated to the back burner because in this particular case, the average joes who were about to get the shaft were technologically savvy enough to realize what was about to happen to them, literate enough to be able to express those concerns, and competent enough to use the very tool that the special interests sought to cripple to get the message out to enough people to turn the tide.

Unfortunately, when farmers suffer at the hands of Monsanto and Tyson, when small businessmen and manufacturers suffer thanks to globalization agreements, when doctors and hospitals suffer at the hands of Big Pharma and Big Insurance, when teachers and students suffer at the hands of the National Education Association, and when incompetent bankers are rescued and crony capitalists are funded on the backs of future generations to "save the economy," far too often those same people who recognized the danger of SOPA and PIPA assume that the civics class model of the legislative process is functioning as it should.

Before you take your next position on a piece of legislation, take a deep enough look to determine which model was used to make the sausage. Then base your support of the legislation on that determination. All else is folly.

...and that's all I have to say about that.


  1. Essentially an approach that goes all the way back to asking the question "cui bono?"

    1. Precisely. So why'd I write that long post instead of 2 latin words? :D

  2. We need an iPhone app for this plan...

  3. While I support the idea of making sausage plants and governments transparent (at least a sausage plant can't legally force me to use its product), there are currently legal ways around the laws they're trying to pass. There's a quote that goes "The Net interprets censorship as damage and routes around it" ( This is what will happen, and what HAS happened when entities have tried to censor the Internet. With a little effort on a lot of people's part, the Net can be made a lot harder to censor, by adding parallel pathways that are owned by (get ready for it) consumers (gasp!). I wrote a short G+ post pointing this out, but no one has commented yet. Maybe I need to flesh it out more?