(C) Common Dreams
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The Administrative State Is Under Attack [1]
['How To Save A Country', 'The Politics Of Everything']
Date: 2023-06-08
Sabeel: Yeah. So these are really two sides of the same coin. We’re used to, in our conventional political philosophies, thinking about freedom in a political sense. That we’re free if we’re free from arbitrary powers of government, which is why we have elections. It’s why we have the separation of powers, all of that kind of Con Law 101. But freedom is also about social and economic freedom. It’s freedom from exploitative relationships in the workplace. It’s freedom from the private hierarchies in the home or in communities that made women not full citizens, and made it so that LGBTQ folks could not be their full selves in earlier eras. Those are also threats to freedom. So when we talk about democracy, to my mind, democracy is all about the institutions and practices and values that we create together to protect those freedoms. Sometimes that means removing constraints. It means the civil rights liberations that we’ve tried to advance in the ’60s and more recently with LGBTQ rights in recent decades. Other times it means imposing limits on other kinds of power. We don’t want corporations and bosses in the workplace and finance to control everyone’s destinies. So we put governmental regulations on all of that. To me, all of that is democracy. So it’s not just who we vote for. It’s creating those rules of the road that protect political, economic and social freedom.
Felicia: Yeah this reminds me of the work that you and your co-director Amy Kapczynski do at the Law and Political Economy Project. So I wanted to make sure to connect that set of comments to the legal work that you do within the academy, partly because what happens to the courts and the jurisprudential direction of the courts is so important, and partly just because what you are trying to do at LPE is to connect the economy, democracy, and freedom in a very legally specific way. One of the things that you say in the LPE manifesto, which everyone can go read and we’ll link to it on the show notes is “Scholars working in this vein are seeking to reconnect political conversations about the economic order with questions of dignity, belonging, or recognition.” And scholars are seeking “to challenge versions of ‘freedom’ or ‘rights’ that ignore or downplay social and economic power.” Say a little bit more about this and say a little bit more about why the courts specifically are so important in this battle.
Sabeel: I’ll give an example that will be familiar to at least some of your listeners. One of the big threats to economic freedom and economic dynamism productivity is concentrated corporate ownership. So you have a lot of industries where there’s finance or dominant market players, where there’s no longer a lot of competition. There are a few big players. Think Amazon. Think fossil fuel companies. Think big agriculture. All of our food produce comes from two or three big companies that end up jacking up prices for consumers and making our economy super dependent on these two or three companies. That’s a product of law. That’s a result of some changes to antitrust law that the Supreme Court and other courts put in place in the ’70s, reinterpreting Progressive era statutes in a way that I don’t think has a ton of foundation right in the history or in the original goals of those statutes. Those changes on the court became changes in law and policy, which then led to a very different economic structure that has impacted communities in a really significant way. There’s a whole new approach now to thinking about those court cases and those statutes from an anti-monopoly perspective, where the goal is a more dynamic, inclusive, economic freedom. That’s an example of an area where you have esoteric interpretations of law having very real implications for communities and for a vibrant, inclusive democracy and economy. But now you’re starting to see this more progressive approach to antitrust law gaining some more traction in regulations, in legal analysis. That’s opening up more policymaking room to experiment with the kinds of things that we might need. You could tell the same story then about our debates over care, our debates over police reform and criminal law reform, on industrial policy, you name it. Law is always there in the backdrop and it’s one of the key areas where this skepticism of government that we were talking about before has embedded itself over the last 40 years and has produced policies that are really constraining, I think, for the kind of freedom that you were speaking about, Michael, a moment ago.
Michael: Yeah. I think that’s right. Let me also ask a broader question about law and democracy. You’re a lawyer and a constitutional lawyer. And a law professor. And this is something I’ve been thinking about for a while: When we talk about the things that ail democracy and that are weakening democracy, we tend to talk about constitutional things, process things, the electoral college, the winner-take-all congressional districts, but what about simply the way the law is administered and exercised in this country? Doesn’t it make people lose faith in our system when they see how unevenly and inequitably the law is administered? I think people see that every day, every week. Elizabeth Holmes just went to jail for 11 years. That’s something. But is Donald Trump going to pay? That’s going to be wrestling five alligators to get a conviction of that guy, because the system is just rigged. It just doesn’t work. How bad is that for democracy?
Sabeel: Yeah. I think you’re totally right, it’s extremely corrosive. This is part of why when we talk about government as progressives, it can’t just be a story about all the ways in which government is good. I think it has to be a story about the ways in which we need a different government to serve the values that we all ought to believe in. It is absolutely true that we have not enforced the laws that exist on the books nor have we created anything resembling parity in how folks are held liable for different kinds of harm. The story today about the Sacklers limiting their civil liability for the opioid crisis, that’s unconscionable.
[clip]: The Federal Appeals Court has ruled that the billionaire owners of Purdue Pharma, the Sackler family, will be protected from civil lawsuits linked to the opioid crisis in exchange for a 6 billion settlement. Purdue, which filed for bankruptcy in 2019 amid thousands of lawsuits made drugs like Oxycontin and is blamed for fueling the opioid epidemic.
Sabeel: There’s a ton of legal machinations behind that and some existing laws and practices that were exploited or leveraged by the Sacklers to get that result. That’s really bad. That’s bad morally, but it’s also bad for democracy because to your point, Michael, that makes it hard to believe in this notion that we as a collective can in fact govern ourselves toward a more inclusive and vibrant future for all of us. It’s just corrosive to that idea. You see that in a lot of different areas of the law. Also, honestly, this is part of what’s going on in criminal law reform context as well. I’ve mentioned mass incarceration a couple of times, but in addition to the life and death danger that poses to Black and brown communities, there’s also a lot of great research which shows that even individual communities where there have been unwarranted or illegitimate strip searches and police stops that are racially biased and motivated, that creates a very clear impact on rising distrust of government, decrease in participation in elections. There are a whole bunch of ways in which communities take that trauma and that trauma then expresses itself in a deep disaffection or disbelief in government as a collective agent, because that’s not their lived experience. So I think it operates both ways. It operates and manifests where government is not enforcing in ways that are deeply unfair and unjust, and it operates in ways where government brings the full hammer and force of the state down on communities in a deeply unjust and unfair way as well. And so if we want a democratic government, I think we need to solve both of those problems. We need a government that’s going to do the stuff we need to do and do a lot less of the stuff that is really, really bad.
Michael: Well said.
Felicia: I think it’s come time to ask our traditional last question to all of our podcast guests. Sabeel, how would you save our country?
Sabeel: So I don’t think it’s going to be any one thing, but we’ve talked a lot about democracy and government and so I’ll close with that. A big part of how we save this democracy going forward is putting in place the policies that allow government to actually serve all of us as a whole public. To me, that’s voting rights reform, that’s campaign finance reform, but it’s also the stuff that we talked about here: protections for the civil service, a lot more money and authority to allow government to make policies that serve the public good. Without any of those things, what we’re going to get is this vicious cycle of a government that’s failing to meet our public needs and that’s producing more distrust, which is then just the fertile territory for authoritarians to exploit and run with.
Felicia: So the answer then is more, as we’ve all been saying, more government and more support of government full-throatedly.
Sabeel: Yeah, I’d say more, More democracy, more democracy, more democratic government.
Felicia: More democracy.
Sabeel: Because we want a government that is serving us and democracy is how we achieve that.
Felicia: The answer is more democracy. Sabeel Rahman, thank you so much for joining us on How to Save a Country. Always a pleasure.
Sabeel: Thank you so much. Grateful for all you’re doing.
Felicia: It’s so great to talk to somebody like Sabeel, who just came from working in government and also, of course, has experience on the outside.
Michael: It totally is. I’m always interested when I meet people with that kind of experience to ask them what that job is like on a day-to-day basis because it remains so opaque to the public. It’s so easy to deride bureaucrats, but these are people who are dedicated people, most of them, vast, vast majority of them, and work really hard and could be making more money elsewhere. And they work long hours and it’s just a pity that Americans don’t know and appreciate that that’s number one.
Felicia: Right. I mean, Sabeel said that civil servants are the crown jewel of our democracy.
Michael: Yeah. And I wish politicians did more to celebrate that, but that’s another show. I was intrigued by our exchange about progressive defense of government and lack thereof. I think this is a point that people really need to work on, that government has been attacked by the right for 40 years just as this monstrous entity. And there just hasn’t been enough of a defense of it. There are, as we agreed, defenses of particular programs, but nobody defends why government is necessary and the good government does, or some people do, but it’s not nearly enough. The thing that I found really interesting was the last part where he was talking about the law and we got into this conversation about law and democracy and he brought up the example of the Sacklers and I’ve been thinking about this a lot, the question of how people see justice applied so unevenly and how deeply that colors people’s views of whether our republic is really functioning well. So that’s my take.
Felicia: Yeah, I only have one thing to add, which is, obviously Sabeel was defending government. You and I often defend government on this show. I work at the Roosevelt Institute. Roosevelt was all about government. Government is us, not an alien power over us. So that was really important, but what was also striking about Sabeel’s commentary is that he also believes that government needs to be changed. The government needs to be reformed. That some things, like all of the paperwork that people have to do to access unemployment insurance or food stamps, actually has to be streamlined. We need to fix these issues of a time tax if we’re going to make our government live up to its real promises.
Michael: I am with you.
Felicia: So Michael—
Michael: Yes.
Felicia: —we’ve got to always talk about the good news here on How to Save a Country, and that is this. Yes, all Americans now know, as we’re taping this, we have now just heard that the Senate has passed the debt ceiling bill, the House passed the debt ceiling bill yesterday. And so we have averted the worst of default and catastrophe. That is, I think, good news in context. But here’s the piece of good news even within the good news. We’ve talked about the Fourteenth Amendment on this show. That’s the idea that the president has the responsibility to carry out the spending directives of Congress and pay our bills no matter what the debt ceiling law says. Anyway, the Fourteenth Amendment is continuing to get traction and not just from a few progressive lawyers or legal scholars. The president has actually been saying that he wants to look at using the Fourteenth Amendment at interpreting the Constitution in this way more assertively in the future. The conversation about who gets to interpret the Constitution and for what purposes has really shifted in a progressive direction. So that’s my good news.
Michael: Well that is great news if true.
Felicia: I mean, it’s just a hunch. I’m just reading the tea leaves.
Michael: Yeah, right.
Felicia: Maybe!
Michael: Yeah. OK. Well, our listeners are probably familiar with the concept of the Overton window. That’s when you shift the landscape and the reality of the frame of the conversation in the first place. So have we moved the Overton window on the debt limit in our direction on balance as a result of this recent episode? Yeah, I think we have. You could argue it the other way, that this is now normalized and that the American public accepts that the debt limit is something that has to be negotiated over, which is an outrage and shouldn’t be the case. At the same time, a lot of people saw that that is outrageous and that is wrong. And maybe that helps explain why the Republicans in the House went along with this so easily. I wrote a column on Thursday that said what happened to the big bad House Freedom Caucus? They got rolled. And they did! They protested and they voted against it, but they were powerless in this situation. And the fact that so many Republicans voted for this and that Kevin McCarthy behaved like a normal politician, horse trading. Those are good signs.
Felicia: And the Fourteenth Amendment. Both good signs. Okay, that’s our good news. Victory from the jaws of defeat, Michael.
Michael: What’s happening next week?
Felicia: Next week we have a conversation with arguably the most famous economist in the world, Thomas Piketty.
Michael: Mon Dieu!
Felicia: Yes, that’s right. I was lucky enough to be at a conference with him in Paris, and so he agreed to speak to us on How to Save a Country. I actually asked him more about how to save the whole planet, ’cause he’s French. But we had a great conversation. I’m excited to share with our listeners.
Thomas Piketty [clip]: The true source of U.S. prosperity historically has not been inequality, has been education, and a relatively more inclusive educational system and social fabric.
Michael: Well, that is pretty cool and I’m excited to hear it myself. Even I haven’t heard it yet, so I can’t wait.
Felicia: How to Save a Country is a production of PRX in partnership with the Roosevelt Institute and The New Republic.
Michael: Our script editor is Christina Stella. Our producer is Marcelo Jauregui-Volpe. Our lead producer is Alli Rodgers. Our executive producer is Jocelyn Gonzales, and our mix engineer is Pedro Rafael Rosado.
Felicia: Our theme music is courtesy of Codey Randall and Epidemic Sound with other music provided by APM. How to Save a Country is made possible with support from Omidyar Network, a social change venture that is reimagining how capitalism should work. Learn more about their efforts to recenter our economy around individuals, community, and societal well-being at omidyar.com.
Michael: Support also comes from the Hewlett Foundation’s Economy and Society Initiative, working to foster the development of a new common sense about how the economy works and the aims it should serve.
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