Journalism and Generality

The media makes it hard for ordinary people to be libertarians. In large part, this is because journalism is in the business of selling panic—panic about terrorism, panic about drugs, panic about food, panic about pornography, panic about our health care system. If it’s not an emergency, it’s not news. To the lazy journalist, everything becomes an emergency—and emergencies always—always—demand state action.

The media makes things hard for the would-be libertarian in other ways, too. Consider this story from today’s Washington Post, about… well, it’s hard to say, actually:

Senate Democrats unveiled a plan Tuesday to save $21 billion over the next decade by eliminating tax breaks for the nation’s five biggest oil companies, a move designed to counter Republican demands to control the soaring national debt without new taxes.

With the proposal, Democrats sought to reframe the debate over debt reduction to include fresh revenue as well as sharp cuts in spending. For the first time, Democratic leaders suggested an equal split between spending cuts and new taxes — “50-50,” said Senate Majority Leader Harry M. Reid (Nev.).

That represents a larger share for taxes than has been proposed by either President Obama or the bipartisan commission he appointed to recommend how to cut the national debt.

So far, the Democratic tax agenda is focused on ending subsidies for big oil companies, a hugely popular proposal involving what Democrats see as a prime example of wasteful giveaways in the tax code. By raising the issue, Democrats are trying to force Republicans either to drop their rigid stance against new taxes or to defend taxpayer subsidies for some of the world’s most profitable corporations, including Ex­xon Mobil, Shell, BP, Chevron and ConocoPhillips.

The proposal came in response to remarks Tuesday by House Speaker John A. Boehner (R-Ohio), who said raising taxes is “off the table.” A day earlier, he gave a speech demanding more than $2 trillion in spending cuts in exchange for GOP support for an increase in the legal limit on government borrowing through the end of next year.

Where am I confused, you ask? On almost everything a libertarian ought to care about. I’ll explain.

One of the key aspects of any good law is generality—that is, equality before the law. As F. A. Hayek put it:

[T]hough government has to administer means which have been put at its disposal (including the services of all those whom it has hired to carry out its instructions), this does not mean that it should similarly administer the efforts of private citizens. What distinguishes a free from an unfree society is that in the former each individual has a recognized private sphere clearly distinct from the public sphere, and the private individual cannot be ordered about but is expected to obey only the rules which are equally applicable to all….

The general, abstract rules, which are laws in the substantive sense, are… essentially long-term measures, referring to yet unnkown cases and containing no references to particular persons, places, or objects. Such laws must always be prospective, never retrospective, in their effect (The Constitution of Liberty, chapter 14, section 2).

Now, with every passing day our government stomps all over this generality requirement again and again, chiefly in the economic sphere. But is it doing so on the front page of today’s Washington Post? That’s a good question.

I can think of lots of ways we might deny a tax break to a certain five oil corporations. Some are decidedly better than others in their generality. Consider the following, ranked from least general to most:

  1. “The corporations known as Ex­xon Mobil, Shell, BP, Chevron and ConocoPhillips are hereby denied tax break X. All others still qualify, or not, as they did before.”
  2. “Oil corporations with an annual revenue above $198 billion are denied tax break X.”
  3. “We find that tax break X itself is lacking in generality. It is hereby repealed, and the overall corporate tax rate is increased accordingly.”

Which one are they proposing? From the story’s first paragraph, we could easily conclude that it was (1). Many people on the left would be happy with (1), because big corporations are anathema to them, and everything they do is evil, and punishing them—generality be damned—is just great.

But then, it could also be (2), and this measure is somewhat more general, even if ConocoPhillips—the smallest company on the list—just so happens to have an annual revenue of $198.655 billion. As Hayek noted, “[C]lassification in abstract terms can always be carried to the point at which, in fact, the class singled out consists only of particular known persons or even a single individual” (ibid., section 4). Hypocrisy is the tribute vice pays to virtue.

And finally, there’s (3), clearly the winner in terms of generality. Is that in fact the proposal being discussed by members of Congress? Or is it still more general than that—something perhaps as described by my colleagues Jerry Taylor and Peter Van Doren earlier this month?

Last week President Barack Obama responded to rising public anger over soaring gasoline prices by banging the drums for the elimination of various tax breaks enjoyed by the oil and gas industry…

[L]et the record show that President Obama is right… about these tax breaks. They make the economy less — not more — efficient and do nothing to reduce prices at the pump.

Rigging the tax code to make investments in manufacturing artificially more attractive than investments in something else is an enterprise designed to harm non-manufacturers for the benefit of … manufacturers. Conservatives who want government to leave markets alone have no business throwing their political bodies in front of this tax break. If their political rhetoric means anything, they would see the president’s bid and raise him by calling for total repeal of this tax break for everyone, not just for oil and gas companies.

If only we were so lucky! Getting back to the Post, we learn much later in the story—in the fifteenth paragraph —that the congressional proposal “would close several long-standing tax loopholes, yielding roughly $2 billion a year in savings to be applied to lowering the deficit. It would affect only the five largest oil companies, excluding smaller producers.”

This is confusing to the point of deception. Does it really “close” a loophole to take a few entities and exclude them from the prior exclusion from the tax? By my understanding, it makes the law less general, more convoluted and more arbitrary, than it was before. Close the loophole—or just don’t close it, I think a Hayek might say. Don’t make companies play human Tetris to figure out whether they aren’t not un-disincluded.

One day I think people will look back on our era—from roughly the civil rights movement to the present—and marvel. They will be amazed at how, while the law grew much more general regarding many non-economic matters, it became increasingly partial and favoritist when it came to running a business. At times our journalism and even our language seemed blind to this contradictory development, which only encouraged it. Even thinking about the generality of our laws is made difficult when it’s just not a topic on the national media’s radar.

But equality before the law should apply, well, equally. Shouldn’t it?