Not So Free Speech

October 25, 2020

By Steve Stofka

In doing some research on lobbying for an Environmental Economics class, I learned that the environment is the third area of concern after money and health (CFRP: Top Issues, n.d.). Lobbying is a tug of war, a battle of interests. It is a messy but essential component of a democratic society with a guarantee of free speech. Affected businesses complain that they are overburdened. Environmental groups complain that progress is too slow. Elected representatives depend on the controversy for campaign contributions.

Would we achieve more effective solutions if we abandoned lobbying, free speech, democracy and appointed a king? Yes, but for how long? We hope to make decisions today that have a positive impact on our children and grandchildren. That task is made more difficult when we are constrained by legislation and judicial precedent crafted by past generations with different concerns.

There is a conflict of interests not only between the regulators and regulated, but within each of those parties. Agency employees may be loyal to their agency more than the law, to their own careers, job satisfaction or ideology. Political appointees who head an agency may have an opposite philosophy to the career employees who work at the agency. Mr. Trump has a habit of putting a fox in charge of the henhouse.

The regulated include businesses who put the immediate interests of their executives above the long-term interests of either their customers or their stockholders if company practices incur long-term environmental liabilities.

Legislators reach consensus by using vague language then delegate its interpretation to an executive agency and the courts. The U.S. has adopted a judicial model of regulation which encourages both sides to obscure rather than clarify the underlying issues. This process tends to exaggerate the differences over scientific and economic issues rather than generate a consensus position that the agency can accept as reliable. The deliberate vagueness of the law’s text refutes the claim of some Supreme Court justices that they can reach an objective interpretation of a law by using a “textualist” approach.

The drafting of agency regulations invites lobbying. Rules may be published in obscure bulletins where they get the attention not of the general public but lobbyists, private industry affected by the regulations and environmental groups targeted toward those issues.

In every year, the pharmaceutical industry outspends all other industry groups by a large margin. Included in the price for prescription drugs that you and I pay is a lobbying fee so that the pharmaceutical industry can protect the profits they make from their customers.

In 2018, the oil and gas industry alone spent $125M tax deductible dollars lobbying Congress on various issues (CFRP:Industries, n.d) That same year, two of the top environmental groups, the National Resource Defense Council and the Environmental Defense Fund, collected almost $400M (Charity Navigator, n.d.), most of which was not deductible by ordinary folks after changes in the 2017 tax law. Some economists have suggested that lobbying expenses be excluded as business deductions. The government has an obligation to respect free speech; it does not have to subsidize that speech.

Lobbying for the development of alternative energy sources has not only increased their share of energy but focused attention and investment on cleaner sources of carbon-based fuels for power plants. Long resistant to wind and solar power, Texans have adopted wind turbines with enthusiasm. Drill, baby, drill, and set the foundations for those turbines. Attitudes can change.

Many clamor for a property right when there is money to be made but want no responsibility when a mess must be cleaned up. Under an 1872 mining law, the government still leases mining claims for 19th century prices. After the land had been dug up and desecrated by leaching fields, owners of smaller mines claimed bankruptcy and abandoned the properties. Mining locations are included in Superfund sites, toxic areas that are expensive to restore. To this day, large mining companies like BHP and Anglo-American lobby Congress for legislation that will reduce their long-term liability for site restoration.

In this country, private companies and individuals direct much of the production and resource use. Lobbying is ineffective but essential in a democracy. It works to the good, for the bad, and yes, it is ugly.

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Notes:

Photo by Sharon McCutcheon on Unsplash

Center for Responsive Politics (CFRP). (n.d.). Top Issues. Retrieved October 23, 2020, from https://www.opensecrets.org/federal-lobbying/top-issues?cycle=2018 The top three environmental issues had a combined number of 3419 Lobbyists: Energy & Superfund – 1571, Natural Resources – 1068, Clean Air and Water – 780.

Center for Responsive Politics (CFRP). (n.d.). Industries. Retrieved October 23, 2020, from https://www.opensecrets.org/federal-lobbying/industries?cycle=2018

Charity Navigator. (n.d.). Your Guide to Intelligent Giving: National Resources Defense Council. Retrieved October 23, 2020, from https://www.charitynavigator.org//index.cfm?bay=search.summary&orgid=4207&fromlistid=435  $182M in revenue in 2018.

Charity Navigator. (n.d.). Your Guide to Intelligent Giving: Environmental Defense Fund. Retrieved October 23, 2020, from https://www.charitynavigator.org//index.cfm?bay=search.summary&orgid=3671&fromlistid=435 $207M in revenue in 2018.

Note: some passages excerpted from comments I posted on a private discussion board

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