Too Big to Fail
Recognition of and concern with the growth of the bureaucratic state within the traditional tripartite framework our founding fathers established is examined in detail in two recent books. Joseph Postell's Bureaucracy in America and Paul Moreno's The Bureaucrat Kings follow upon the scholarly Is Administrative Law Unlawful? by Philip Hamburger. A reader would be hard pressed not to conclude that the executive-congressional-judicial system that is the foundation of our constitution now has illegitimate offspring, the administrative state, running the show.
The administrative state is governed by its own administrative law. It operates outside the constitutionally defined and guaranteed protections of the founding Constitution by which the government was to exist to protect the electorate's God-given natural rights. In this parallel political universe, there is no recourse to the traditional judicial system. Appointed, not elected, bureaucrats (also known as "experts") make, enforce, and judge by their own laws for the betterment of the state, and for the betterment of a populace deemed too unskilled to know what might be best for it. Thomas Hobbes would be proud to see his societal theories in action here.
A fundamental question regarding our bureaucratic Leviathan involves control. In carrying out their delegated duties, should the experts of this new progressive bureaucracy be independent of political control to avoid charges of patronage? If so, who should determine the limits of these unelected officials in their roles as determinants of government policy? Presidential or executive oversight has wrestled with judicial rule for such control. Our Legislative Branch is fond of delegating politically uncomfortable hot potatoes to the bureaucratic state for solutions from which they can later distance themselves.
What about our founding Constitution? By 1907, the governor of New York, Charles Evans Hughes, said, "We live under a Constitution, but the Constitution is what the judges say it is." The situation has only gotten worse since. Readers are encouraged to read the above cited books for an in-depth understanding of how we as a nation got to our current "state."
Thus, Edmund Burke's "media" as the "Fourth Estate" have been joined by "the administrative-bureaucratic estate." Growth and acceptance of the digital age via the internet have now produced yet another "estate" with the potential to subsume all the others.
Worldwide digital communication around the clock has enabled a vox populi at a keystroke. Internet entrepreneurs have invented thousands of ways to access specialized knowledge and disseminate it. Silicon Valley is home to the software and hardware that make this possible. For some, the current opiate of the masses is a high-speed internet connection.
Our history of scientific progress is one of accepting the good and the bad that attends each new invention and hoping to tell the difference. In this case, the internet and digital technology have become an irresistible force of their own. A multitude of uses has brought home the unimaginable value of computer-driven technology. An app in every phone for every wish has replaced a chicken in every pot as the mark of prosperity. Most of our financial, legal, social, scientific, and government activities are running on computers and would suffer serious damage should they fail, hence the fear of an EMP electromagnetic weapon attack or cyber-hacking. Hard-copy paper has given way to ephemeral clouds of electrons residing in faraway places dependent on uninterruptable power supplies and cooling breezes. Luddites need not apply.
Currently, the internet enterprise has been shocked to be seen as profit-making, violating the privacy of its ardent but naïve users and disseminating non-factual facts. These are valid concerns, but they shrink into mere annoyances when contrasted with the digital take on "regulatory capture." When a government agency empowered to regulate a complex industry does not have the in-house talent to challenge such an industry knowledgeably, it may hire experts from that industry. If the questions are esoteric enough, there may be few experts not already affiliated with the industry. Over time, former business employee experts become employees of the regulatory agency, in effect regulating the regulators by joining them and effectively capturing them.
Our society, both governmental and private, is now on the verge of digital capture by the few entities that understand, write, and control the backbone of the digital world. Google or Alphabet ("Google has partnered with the United States Department of Defense to help the agency develop artificial intelligence for analyzing drone footage.") and Microsoft ("Microsoft is uniquely positioned to empower government through digital transformation.") provide the majority of browser and communication software to the public and government agencies. Social media firms such as Facebook, Twitter, Instagram, and Pinterest rely on basic backbone internet services provided by Google and Microsoft. Alexa or Echo is eavesdropping on willing homeowners. Artificial intelligence (A.I.) is the latest growth industry and will guide the actions of society without the least bit of awareness.
For example, a recent report states that "the latest research sheds more light on the power of search engines to manipulate public opinion, and also shows that current Google search suggestions give a high priority to Google products and companies that are major advertising clients of the tech giant."
The question then arises: how can our federal government exert any effective control over this digital behemoth? Our society and its government are the willing victims of the ultimate "digital/regulatory capture." Like the "too big to fail" epithet concerning the largest and most influential commercial banks during the 2008 financial crisis, and the concomitant "illegal" federal bailout of General Motors and Chrysler, these digital corporations are too important to effectively challenge. Our government runs on Google and Microsoft technology and invisible algorithms embedded with the ability to interject third-party opinion. We now live in a digital communication world where nothing we see or read is free from the possibility that its content has been modified during its digital journeys. What next?
Charles G. Battig, M.S., M.D. is a Heartland Institute policy expert on environment and contributor to Master Resource. His website is www.climateis.com.
Image Credit: Lilly M via Fotoedukacja // Creative Commons SA 2.0