My post yesterday regarding Members of Congress who voted to exempt financial derivatives from state gambling laws created a firestorm of controversy. Well, two people asked me about it, anyway …
(A new WashingtonWatch.com post on the presidential candidates who didn’t help create our economic problems is available for your perusal, by the way.)
“Why would a libertarian think it’s bad to exempt anyone from regulation? Do you support gambling laws? Do you support financial services regulation?”
These are all fair questions, given my objection to preempting state gambling laws in this case. So let me expand on this observation from my earlier post:
Many gambling laws are nanny‐statism, of course, but if they’re going to go away, they should be repealed by the legislatures that wrote them. This federal preemption gave special permission to certain parts of the financial services industry to run a huge gambling operation masquerading as a market in real assets.
I’m quite a bit less a fan of preemption than many of my colleagues. There are fair‐minded people who believe that national markets call for national regulatory regimes to replace the states’. As commerce has become national, the Commerce Clause has become a grant of authority to regulate national markets, they appear to believe.
I’m not convinced. Given the nation’s experience under the Articles of Confederation, the Commerce Clause was included in the Constitution to prevent states from regulating parochially — that is, for the benefit of local interests over out‐of‐staters. The Constitution gave Congress authority to regulate commerce “among the states” — which, if words have meaning, is something narrower than just regulating all commerce.
So when state gambling laws interfere with an interest capturing the sympathy of a majority in Washington, D.C., that doesn’t necessarily empower Congress to withdraw state authority. Congress is supposed to prevent only state parochialism, not every bad idea coming out of a state legislature.
If we are to have a healthy political economy, debates about state gambling regulations should be taken to each state that enacted them. The merits of freedom and personal responsibility should be made clear there so they win majorities once again.
The alternative preferred by many is a shortcut: trumping states by moving power to the federal level. This is not a felicitous trend, and its end‐point — a remote national government with plenary power — is not good for liberty.
Gambling regulation is nanny‐statism, but I wouldn’t go and kick the legs out from under state anti‐gambling regulation through federal preemption — especially not for one narrow part of the financial services industry. This is not a game, where any loss for regulation is a gain for liberty.
If responsibility for self‐protection against gambling is going to be restored to people in a given state, the legislature of that state should repeal the anti‐gambling laws, signaling people that they are once again responsible for themselves. What happened here was that Congress trumped state power and withdrew the protection of state anti‐gambling regulation without signaling to anyone that there were risks to be encountered. What looked like asset‐based financial services to all but a few was in fact gambling.
The Congress helped perpetrate a deception about what was going on with financial derivatives — and just because some regulation went under the tires, that isn’t a victory for liberty.