by Thomas O. McGarity is a Member Scholar and past president of the Center for Progressive Reform, and a professor at the University of Texas Law School. He is the author of Freedom to Harm: The Lasting Legacy of the Laissez Faire Revival.
The Wall Street Journal recently devoted nearly two pages of its Saturday Review section to an editorial by Charles Murray of the American Enterprise Institute urging American corporations to violate laws that they deem to be “pointless, stupid or tyrannical” as acts of civil disobedience. The article, which is a capsule summary of his recently published book titled By the People: Rebuilding Liberty Without Permission,” betrays a profound misunderstanding of the concept of civil disobedience and a deplorable contempt for the laws that Congress and state legislatures have enacted to protect their citizens from corporate malfeasance.
This is, of course, the same Charles Murray who has made millions of dollars writing poorly documented books like The Bell Curve and Losing Ground, which were designed to allow conservative politicians to feel good about reducing welfare for the poor, limiting immigration from Latin America, and eliminating affirmative action policies. If for no other reason than that Charles Murray is one of almost-candidate Jeb Bush’s favorite authors, his newest salvo bears close scrutiny.
The essential underlying premise of the article is that the Code of Federal Regulations is chock full of senseless regulations, the violation of which could not possibly lead to any actual harm to anyone. This premise is an article of faith for critics of federal regulation, but it has little basis in fact. The one actual regulation he cites (an OSHA standard requiring railings for exposed stairway floor openings to be 42 inches high) may be far more detailed in its specification than it needs to be, but it is by no means senseless. As Murray recognizes, it is intended to prevent workers from precipitous falls.
Murray’s big idea is for companies in various regulated industries to get together and agree to engage in acts of “civil disobedience” by consciously violating regulations they deem senseless. He points out that regulatory agencies have become so debilitated that they do not have nearly enough inspectors to detect violations of any of their regulations. The agencies therefore depend to a great extent on voluntary compliance with their regulations. Murray suggests that if companies just quit voluntarily complying with what they deem to be pointless, stupid or tyrannical regulations, the agencies would probably not penalize them (just as the traffic cop stationed next to a crowded freeway does not try to pull over speeders who are traveling with the flow of traffic), and the world would be a better place. Those violators that the agencies did prosecute should fight the government tooth and nail to send the message that corporate America will no longer tolerate the injustice of senseless regulation. What’s more, he proposes that as part of this conspiracy to break the law, the corporations should create “defense funds” to which they’d all contribute, to pay the legal fees of the ones who get caught.
Murray’s idea is a gross perversion of the concept of civil disobedience as the nonviolent violation of a law that the violator deems to be unjust and the willingness to suffer the legal consequences to demonstrate the law’s injustice.