Democracy Misconceived

Democracy Misconceived
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By William Nettles and Reuben Guttman*

There is a misconception among many that democracy and freedom are synonymous and that freedom, in turn, equates to the right to do and say anything.

The White House recently issued an Executive Order and a Memorandum setting a course toward deregulation; this misconception may explain why initiation of plans for the scrapping of rules – actually promulgated pursuant to laws passed by Congress -- may seem as American as the Boston Tea Party. Yet, merely having the optics of consistency with American values does not mean that the President’s plans are – in truth – consistent with our sacred rule of law.

Nobel Laureate, Joseph Stiglitz, once said that "one man's freedom is the right not to be injured by another's wrongful conduct." This elegant logic is rational for any sovereign to impose the rule of law. We regulate to protect us from each other. We do it because we are a nation of compassion; the moral obligation to look out for our fellow man or women -- and to refrain from conduct that may cause injury to others -- is embedded in age-old scripture which is replete with rules of conduct.

At our factories and research facilities, employers are not free to subject the worker to perilous conditions or to conceal hazards that may cause injury, illness, or death.

Nor does freedom mean that large corporations have the unfettered right to discharge factory waste into our waterways or plumes of smoke into the air we breathe.

We are a people bound by volumes of regulations but is it a bad thing that our children ride school buses that must meet safety standards or that we impose rules on our financial institutions so that they do not become conduits for terrorists to launder money?

As Americans, we take pride in the First Amendment but do we appreciate that its protections are not absolute. No doubt the First Amendment protects political speech or the right to be critical of the government and its leaders, yet it surely does not protect speech in furtherance of efforts that may inflict harm on others. Is an exchange of emails confirming an agreement to embezzle money a mere exchange of words protected by our notion of free speech or is it a conspiracy to commit a felony? And do we think it is a good thing when corporations are given an unfettered right to say what they want about their products even if the information is false or promotes applications that have not been properly tested for safety or use?

In this country, we do regulate conduct, and sometimes even speech, to prevent harm and better the lives and opportunities for those who share this earth with us. The government does impose rules only because tragedy has focused our attention on prevention through regulation. Changes to our food and drug laws occurred only after children whose mothers took thalidomide were born with severe deformities. Our workplace safety and health laws were created only after too many workplace injuries blighted our factories. We created blood borne pathogens regulations in response to an HIV crisis that claimed too many lives including that of tennis superstar, Arthur Ashe. And yes, we do proscribe hate or discriminatory speech in the workplace and the housing market because we are a nation of equal opportunity and quite frankly because equal opportunity provides an environment that truly grows commerce.

Once a regulation is in place and does its job by preventing harm or bettering the lives of our fellow man, it becomes too easy to forget why it was needed in the first place. It becomes easy prey for the Chamber of Commerce whose members include a “who's who” list of corporations so incapable of engaging in lawful behavior that their guilty pleas have become commonplace. Yet, rather than teach its members to comply with the laws that bind all Americans, the Chamber spends millions of dollars spinning the message that sending regulation to the scrap heap is consistent with freedom. Now it seems that the Trump administration is embarking on a path toward rubber-stamping these plans.

None of this is to say that laws and regulations should not be revisited on an individual basis, sometimes refocused, perhaps even eliminated, and other times strengthened. But wholesale scraping of the rules, or an across the board impediment of implementation, is a different story altogether and should be viewed as a scheme to free wrongdoers to engage in conduct with externalities that place the unwary at peril.

Regulatory roll back may very well be consistent with the goal of the financial institutions, pharmaceutical giants, and corporations to be free from rules that protect us from harm or that provide equal opportunity and fair wages. But this definition of freedom is surely not the Freedom that is consistent American Democracy and - in the words of the pledge of allegiance - "liberty and justice for all."

* William “Bill” Nettles served as the U.S. Attorney for the District of South Carolina from 2010 to 2016. Known for his progressive understanding of the justice system, Bill’s track record consists of many notable accomplishments: he pursued Wall Street for “robo-signing” cases; he developed a top-tier Qui Tam division; and notoriously, he shifted a great deal of emphasis toward the prosecution of fraud and white-collar public corruption cases, adding prosecutors to cities across his state for that purpose and recovering significant amount of money for the government.

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