“Don’t Regulate Me or I’ll Capture You!”

That’s the headline of Brett Frischmann’s insightful post at Madisonian. Frischmann notes that all-too-frequently in public debate, “the ‘risk of capture’ argument leads people to conclude that government should simply not act or regulate, and should instead ignore whatever problem or market failure that would otherwise justify intervention.” That’s one reason why I’ve said that the “price” of a capture argument should be the concession that much more public financing of elections is necessary. That may raise Lindblom’s “circularity” problem at present, but dynamically it appears to be the only way to avoid capture in the long run.

Frischmann also congratulates Larry Lessig on his advocacy for reform of the political process, and I’m glad he’s addressing the larger political forces behind the fine-grained legal issues most law profs study. He may well get us closer to a more fair and open political process. But in the meantime, here’s an interesting story on the nature of political change possible in the current political environment:

Phillip Morris . . . threw an enormous multimillion-dollar party for Republicans last month because they wanted the Family Smoking Bill passed, which would force tobacco companies to lower nicotine levels. Phillip Morris, in opposition of the other tobacco companies, actually wants this legislation because they dominate the low-nicotine cigarette market.

Unfortunately, the big tobacco interest in trade policy is not quite as benign.

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