[R-G] [BillTottenWeblog] Free Market Myth

[Bill Totten]

Regulation is everywhere. Let's choose who benefits.

by Dean Baker

Boston Review (January / February 2009)


The extraordinary financial collapse of recent months has been commonly
described as a testament to the failure of deregulation. The events are
indeed testament to a failure - a failure of public policy.

Blaming deregulation is misleading.

In general, political debates over regulation have been wrongly cast as
disputes over the extent of regulation, with conservatives assumed to
prefer less regulation, while liberals prefer more. In fact
conservatives do not necessarily desire less regulation, nor do liberals
necessarily desire more. Conservatives support regulatory structures
that cause income to flow upward, while liberals support regulatory
structures that promote equality. "Less" regulation does not imply
greater inequality, nor is the reverse true.

Framing regulation debates in terms of more and less is not only
inaccurate; it hugely biases the argument toward conservative positions
by characterizing an extremely intrusive structure of, for example,
patent and copyright rules, as the free market. In the realm of
insurance and finance over the last two decades, calls for deregulation
have been cover for rules tilted starkly toward corporate interests. And
the recent change in bankruptcy law, hailed by conservatives, requires
much greater government involvement in the economy.

False ideological claims have circumscribed the public debate over
regulation and blinded us to the wide range of choices we can make.
Without these claims, what would guide regulatory policy? What kinds of
choices would we have?

* * *

Patent and copyright protection are good examples of government policies
obscured in the debate. They are forms of regulation, not elements of a
"free market".

It does not matter that we call patents and copyrights "property" or
even that we have a clause in the Constitution that authorizes Congress
to grant patents and copyrights. Suppose autoworkers were given a
property right to a job in the automobile industry, a right they could
even sell. Would anyone say that this right to a job is part of the free
market?

Patents and copyrights are government-granted protections designed for a
specific public purpose, as stated in the Constitution: "to promote the
Progress of Science and useful Arts". But granting intellectual property
rights is one of many possible mechanisms for accomplishing this
important public goal. Whether patents and copyrights are the most
effective mechanisms for the promotion of the arts and sciences is an
empirical question. And the answer could be different depending on the
specific social and economic circumstances. However, we cannot have a
serious discussion of the relative merits of patents and copyrights
until we recognize that these are public policies and not intrinsic
features of the free market. Debates about both patent and copyright
have been hugely distorted by the failure to recognize this obvious fact.

In the case of patent protection, policy disputes arise most frequently
with regard to prescription drugs. If drugs were sold in a competitive
market (that is, without patent protection), the overwhelming majority
of drugs would sell for just a few dollars per prescription. Wal-Mart
and other major drug store chains now sell most generic drugs for less
than $10 per prescription - we know these drugs can be manufactured
safely and sold profitably at low prices.

The drugs available as generics are not chemically distinct from their
brand-name counterparts that often sell for hundreds of dollars per
prescription. The only difference is that the latter, as a group, enjoys
a government-guaranteed monopoly. Patents constitute a government policy
that effectively raises drug prices by several thousand percent above
the free market price.

Recognizing this should be the starting point in any policy debate. The
next question is whether this policy for supporting innovation is the
best mechanism for financing the research and development of new drugs.
It clearly is not the only one.

The government could, for example, support drug research through a prize
system in which it buys drug patents and then places them in the public
domain so that newly developed drugs could be manufactured and sold as
generics.

When we sweep away ideology, we see that it is a debate between two
regulatory strategies for keeping drug prices down.

Alternatively, the government could pay for the research upfront and
make all research findings and patents fully public. It already spends
$30 billion a year financing biomedical research through the National
Institutes of Health, an amount almost as high as the pharmaceutical
industry claims to spend on its research. NIH research is highly
respected, with almost all observers agreeing that the money is, on the
whole, extremely well spent. While the NIH focuses on basic research (it
also does some later-stage drug research, including clinical testing),
there is no obvious reason why the government could not simply double
its commitment to biomedical research in order to replace the research
and development currently supported by grants of patent monopolies.

But the government may wish to use a different mechanism to encourage
drug development. It may choose to establish a small number of master
contractors, who would then contract out the awarding of research funds
so as to minimize the potential for political interference. Regardless
of the structure a particular program would take, expansion of direct
funding is clearly feasible.

There would also be large public benefits in addition to lowering the
price of drugs to their marginal cost. Eliminating huge monopoly rents
associated with drug patents would take away the incentive for drug
companies to push drugs in cases where they may not be especially
beneficial, or even potentially harmful. Nor would there be incentive to
conceal research findings that indicate a drug's weak performance.
Furthermore, by placing all research findings in the public domain, so
that scientists can quickly benefit from the research done by others,
the process of drug innovation would likely accelerate.

Whether a patent-buyout system or direct public funding would be
preferable to the current patent system is obviously debatable; the
point is that patent is just one mechanism among many that could
facilitate prescription-drug research. And it is one that involves
granting monopoly rents to large drug companies.

It is important to establish that patents are a form of regulation
because there are many venues in which the regulation of prescription
drugs has been a major issue, with those who would see prices fall cast
as opponents of the free market. For example, the ongoing push to have
Medicare bargain for lower prices for drugs bought as part of its
prescription drug benefit is widely viewed as interference in the free
market. Even The New York Times and other highly respected media outlets
often present the argument about Medicare-negotiated drug prices as a
debate between proponents of free markets and of government
intervention. When we sweep away ideology, we see that it is a debate
between two regulatory strategies for keeping drug prices down.

* * *

There is a similar story with copyrights, although the economic waste is
even larger and the enforcement measures even more perverse. In the
Internet age, almost any printed or recorded material - music, movies,
books, video games - can be instantly transferred anywhere in the world
at almost no cost. However, rather than allowing the public to enjoy the
full benefit of this technology, the government has created a dizzying
array of new laws and restrictions designed to make it more difficult,
and legally more risky, to pass along material that is subject to
copyright protection.

As with drug patents, copyrights serve an important public purpose. They
provide an incentive to produce creative and artistic work. But to
protect copyright, the government has imposed an aggressive sanction
regime even for seemingly minor offenses. In one case, a woman in
Minnesota faced a fine of more than $200,000 for allowing people to
download music from her computer. Universities have been told to police
dorm rooms to ensure that students are not downloading material in
violation of copyright, and they have been encouraged to conduct classes
teaching that it is wrong to make unauthorized copies of copyrighted
material.

The government has repeatedly prohibited the production of various types
of hardware until protections could be installed to prevent the
duplication of copyrighted material. It has banned the development of
software that can break through copyright protections. In one case a
Russian computer scientist was arrested by the FBI after a conference
presentation in which he described a way to get around a form of
copyright protection.

The list of extraordinary government measures that have been developed
to enhance copyright protection is lengthy. Remarkably, these measures
are never described as forms of government regulation. They are treated
as enforcement measures necessary to protect copyright. However, just as
patents are not the only way to encourage innovation, a
government-granted monopoly with extensive rules and heavy-handed
enforcement is not the only way to promote creativity.

A vast amount of creative and artistic work is already supported through
mechanisms that do not depend on copyright protection. Private
foundations are a major alternative source of support, as are the
limited funds available through public programs such as the National
Endowments for the Arts and Humanities. Colleges and universities are
probably the largest source of funding not dependent on copyright.
Professors are expected to do research and writing in addition to their
teaching responsibilities.

It is easy to envision mechanisms to expand support for creative and
artistic work outside the copyright regime. For example, it would be
possible to design a modest tax credit for individuals who either
support creative work directly or contribute to organizations that
support such work. The credit could be modeled after the tax deduction
for nonprofits or charities. Even a modest tax credit (for example, $100
per person) - which taxpayers could allocate to an artist, writer,
musician, or film producer of their choice - would likely be sufficient
to fund almost all of the work currently supported by the copyright system.

To be fair, rarely does either side argue against regulation as such.
The real issue is the structure of regulation and its impact on economic
outcomes, especially income distribution.

Alternatives to copyright are feasible and probably far more efficient
than the copyright system. And they would replace a gigantic array of
enforcement measures that can themselves be seen as unnecessary forms of
government intervention into the economy.

* * *

A final example of excessive government regulation, never discussed as
such, is the bankruptcy-reform bill that passed Congress in 2005. This
bill substantially strengthened the conditions imposed on people seeking
bankruptcy protection, making such protection a much less attractive option.

The public debate over the bill dealt in liberal/conservative
caricatures that completely misrepresented what was at stake. The
liberal argument relied on sympathy for the people seeking bankruptcy;
it drew on studies showing that the great majority of people seeking
bankruptcy had not been spendthrifts who deliberately ran up huge credit
card debts, but rather had fallen on hard times as result of job loss,
medical emergencies, or family breakup. The opponents of stricter
conditions argued that these people needed and deserved the break that
bankruptcy allows.

The conservative argument centered on individual responsibility. No one
forced anyone to take on debt; these people voluntarily chose to do so.
Everyone knows that bad things can happen. Those seeking bankruptcy
protection should have taken precautions.

This version of bankruptcy reform undoubtedly resonated with those
inclined to accept that people succeed or fail largely as a result of
their own actions, but, most importantly, it obscured the real issue
that the bill addressed: to what lengths should the government go to
collect unpaid bills? The party seeking the aid of the government in
this story is the creditor, not the debtor.

Under the preexisting bankruptcy law, creditors could lay claim to most
of the debtors' assets and in some cases place liens on future earnings.
The new law hugely expanded the creditors' claims on future earnings.
This means that the government will be far more involved in bill
collection in the future than it has been in the past, possibly
monitoring the wages of millions of individuals in bankruptcy who still
have debts to creditors. (For those who worry about the negative
incentives caused by taxation, it is worth noting that having money
deducted from paychecks to pay creditors provides the same disincentive
to work.)

The individual-responsibility line could have been applied just as
validly to the creditors in this story as it was the debtors. Part of
being a successful business involves knowing under what circumstances to
extend credit. No one forced businesses to extend credit to the people
who subsequently declared bankruptcy. They exercised bad judgment in
extending credit to people who were not good credit risks. Why should
the government step in to help businesses that fail to assess credit
risk? The ideological battle around the bill was a distraction. It was
an effort to get the government more actively involved in helping the
banks. It's that simple.

Other cases in which the conservative position arguably requires more
government involvement in the economy than the liberal position abound.
For years Ben and Jerry's Homemade has fought attempts by state
governments to ban labeling dairy products as free of recombinant bovine
growth hormone. Some pressure groups associated with the dairy indutry
argue that the rBGH-free label implies that bovine growth hormones are
harmful, which has not been established by the Food and Drug
Administration. Of course, Ben and Jerry's Homemade is not trying to
prevent its competitors from assuring the public that their ice cream is
safe. It is trying to make a truthful claim about its own ice cream.

In the same vein, the Department of Agriculture (USDA) recently
prohibited a meatpacker from testing its cattle for mad cow disease. The
meatpacker had intended to privately test all of its cattle, whereas the
USDA tests only one percent of cattle. But the USDA, arguing that full
testing would cause the public to question the safety of other meat,
moved to prevent it.

To be fair, rarely does either side argue against regulation as such.
The real issue is the structure of regulation and its impact on economic
outcomes, especially income distribution.

Let's return to the financial crisis with this in mind. In the decades
preceding the financial collapse, regulations designed to protect the
public and to ensure the stability of the financial system were
considerably weakened, but the system was (and is) quite far from being
deregulated.

The key regulation that remained in place was the "too-big-to-fail"
doctrine. Essentially, the banks and other financial institutions took
enormous risks with an implicit guarantee that their creditors could
count on the protection of the US government if things went badly. For
everyone except the creditors of Lehman Brothers and the preferred
shareholders of Fannie Mae and Freddie Mac, this gamble proved correct.

This one-sided giveaway was not deregulation. Had those setting
financial policy over the last three decades been committed to
deregulation, they would have assured financial markets that financial
institutions making bad investments would go out of business and that
their creditors would be out of luck. The Federal Reserve Board and the
Treasury would have warned that investors were acting at their own risk
when they put money in Bear Stearns, AIG, and the rest.

In the context of a too-big-to-fail principle, the removal of
restrictions on leverage (investment banks were allowed to leverage
their capital at a ratio of forty-to-one compared to just ten-to-one for
commercial banks) and the relaxation of other prudential regulation (the
nominal value of credit default swaps, a new class of derivative
instruments, grew to more than $70 trillion in a nearly unregulated
market) essentially gave the banks a license to wager with taxpayers' money.

Banks did exactly what economic theory predicts. They took huge risks,
leveraging themselves to the hilt with questionable assets, knowing that
they would gain as long as the housing bubble held up. And the banks did
so with willing accomplices among pension funds, hedge funds, and other
investors because these investors knew that the government would rescue
them if things went badly.

Deregulation can be a principled position held by true believers in a
free market. But Wall Streeters all wanted one-sided regulation that
provided them with an enormous government security blanket without any
costs or conditions. None of the Citigroup, Goldman Sachs, J P Morgan
crew ever went to lobby Congress for an explicit repeal of the
too-big-to-fail doctrine. And while many on Wall Street lost their jobs
when the bubble burst, the tens or hundreds of millions of dollars that
banking executives earned during the good times are theirs to keep. Even
with the market collapse, the vast majority of them are almost certainly
better off than they would have been had they done honest work over the
last decade.

* * *

If the real debate is over the type rather than extent of regulation,
then why is it always framed as the latter? For conservatives, the
answer is obvious. Many Americans embrace the idea of free markets and
hold a deep aversion to government. Faith in government ebbs and flows,
even in the most liberal times. It will almost always be advantageous,
then, to associate a political position with support of the free market.

It is less apparent why liberals would be so eager to accept such a
disadvantageous caricature of their position. The answer requires
digging a bit deeper into what their position implies about the nature
of the economy and economic outcomes.

Like conservatives, liberals generally acknowledge that people get ahead
as a result of their skills and hard work, with some luck thrown in. The
main difference in the liberal and conservative views of the economy is
that liberals are more likely to believe that many people face serious
impediments to their success and do not get the same chance as people
from wealthier backgrounds. Liberals are also likely to feel guilty
about the difference in opportunities and therefore support political
measures that will reduce the gap and help those at the bottom. However,
most liberals still accept the proposition that the distribution of
income is fundamentally determined by the market rather than political
decisions embodied in regulations such as patents, copyrights, and
bankruptcy law.

But what if we accept a view that virtually every facet of the economy
is shaped by policies that could easily be altered? Investment bankers
get incredibly rich because the government gives them the shelter of
too-big-to-fail but doesn't impose any serious prudential regulation in
return. Bill Gates gets incredibly rich because, through copyright and
patents, the government gives him a monopoly on the operating system
that is (or was) used by ninety percent of the computers in the world.

Doctors are well-paid because, unlike less politically connected
workers, they enjoy protection from international competition. The same
is true for lawyers and other highly paid professionals. The six-figure
salaries depend less on skill and hard work than on being able to
structure labor markets in ways that autoworkers, textile workers, and
cab drivers cannot.

Deregulation can be a principled position held by true believers in a
free market. But Wall Streeters all wanted one-sided regulation that
provided them with an enormous government security blanket.

There is a long list of professional licensing requirements (many of
which have nothing to do with maintaining quality standards) that make
it difficult for foreign professionals to work in the United States.
While trade agreements such as the North American Free Trade Agreement
have been designed explicitly to eliminate institutional barriers that
obstruct investment in developing countries and the free flow of
manufactured goods back into the United States, there has been no
comparable effort to reduce or eliminate the barriers that obstruct
highly educated professionals in the developing world from practicing
their professions in the United States. Many ambitious professionals
from the developing world do manage to overcome these barriers, but
professionals in the United States still enjoy a far greater level of
protection from international competition than less highly-educated workers.

* * *

The less-versus-more framing of regulation supports the premise that
there is in principle an unregulated market out there and that some of
us wish to rein in this unregulated market while others would leave it
alone. This is consistent with the idea that large inequalities in
income distribution just happen as a result of market forces. But as the
above examples illustrate, no one is really talking about an unregulated
market - rather we are all just talking about whom the regulation is
designed to benefit. Distribution of income has never preceded the
intervention of government.

The government is always present, steering the benefits in different
directions depending on who is in charge. Accepting this view provides a
political vantage point much better suited to the case for progressive
regulation. After all, conservatives want the big hand of government in
the market as well. They just want the handouts all to go to those at
the top.

This expansive view of regulation puts everything up for grabs,
including the six-figure salaries of many of those arguing the liberal
position. Do liberals really want everyone asking if we can have the
same economic benefits by removing trade barriers in physicians' and
lawyers' services that we gain by removing barriers to clothes and cars?
Liberals, too, are invested in the obfuscation that less-versus-more
provides.

Even so, the catastrophe produced by the one-sided deregulation of the
financial industry, coupled with a long list of regulatory failures in
other areas, will almost certainly lead to a serious rethinking of
regulatory policy in the years ahead. It remains to be seen whether this
rethinking will go beyond the familiar debate. We know that when we
emerge from the current crisis the economy will be extensively
regulated. The questions is, to whose benefit?

Related Articles

This article is part of a special issue on Fixing the Economy, which
also includes:

Jeff Madrick, No New Tax Cuts
http://bostonreview.net/BR34.1/madrick.php

Robert Pollin, Tools for a New Economy
http://bostonreview.net/BR34.1/pollin.php

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reserved. Do not reproduce without permission.

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