At the beginning of the new year, in 1776, Thomas Paine published a Pamphlet to support the Patriot cause, Common Sense. He wrote with clear, concise and beautifully simple word pictures that successfully rallied American colonists against the over-reaching rule of the British crown.
First, Paine set the stage by noting that the public often mistakes society with government. This happens in our era, too. We mistake laws flowing from our state’s bureaucratic agencies as cultural or societal necessities, but they are not. Paine paints a picture where people are allowed to freely engage and work together to accomplish private tasks that improve the community, without requiring central planning or authority. He notes society and government are different, and,
“… they are not only different, but have different origins. Society is produced by our wants, and government by our wickedness; the former promotes our happiness POSITIVELY by uniting our affections, the latter NEGATIVELY by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher.”
I recommend reading Paine’s small booklet because you will see similarities between what Paine describes from 250 years ago and what we experience in Oregon today. Namely, Oregonians are continually pounded by an unrelenting tide of laws, rules and regulations that burden the average farmer, rancher, forester, timber hauler, accountant, retailer and entrepreneur beyond measure.
For example, during the Legislature’s 2019 session, there were 2,768 bills introduced, with about 700 laws signed by the Governor. The several hundred, or more, rules and regulations which have not yet been spawned will soon be flowing downstream from the agencies which are tasked with enforcement.
No doubt, our errors in self-governance partially stem from our own failings. I know this because I often get letters, emails and phone messages where people suggest their version of a great legislative idea. You already know the refrain, “There ought to be a Law…”
These ideas, might be wonderful, but there are always trade-offs and other issues to consider: what does it cost, who makes the rules, how many rules will get created, what sanctions will be imposed, who governs enforcement, how will discrepancies be judged, are the desired outcomes accomplished, what are the unintended consequences that will seep through the fabric of our communities?
To illustrate, my wife was recently at a large retail outlet standing in line with 6 individuals ahead of her and 5, or more, behind her. They were all waiting for service, with some exhibiting more patience than others. The two young men at the counter were doing a great job of helping each customer and did so with courtesy and efficiency. As one of the clerks finished his task, the next customer moved forward.
With clear frustration, the clerk said, “I’m sorry but I have to take my, ‘legally mandated’ break now.” While he was closing his station, he added sympathetically, “I know it’s busy, but I have no choice, I have to take this break.”
My wife said she thought this, “young man could have carried an elk carcass back to camp all by his lonesome.” So, although he could have continued to service the queue, he was required to follow the legislated mandate and leave his customers hanging.
Review, Oregon Revised Statute Chapter 653, which deals the employment conditions my wife encountered. I would bet most of us will struggle to understand it and its implications. Today, Oregon has so many laws on the books, with countless defined terms, caveats, exemptions and carve-outs it is hard to know what is appropriate and what is outlandish.
To analyze this unnerving trend, the Mercatus Center at George Mason University created a tool known as State RegData – a platform for analyzing and quantifying state regulatory text by looking for words and phrases like “shall,” “must,” “may not,” “prohibited,” and “required.” These are the phrases typically used to signify legal constraints and obligations. The tool identified 167,401 restrictions in the 2017 Oregon Administrative Rules containing roughly 14.8 million words.
It would take an individual about 821 hours—or almost 21 weeks—to read the entire Oregon code. That’s assuming the reader spends 40 hours per week reading and reads at a rate of 300 words per minute. For comparison, in 2016 there were over 1.08 million additional restrictions in the federal code. Individuals and businesses in Oregon must navigate all of these restrictions to remain in compliance.
These rules represent a flanking maneuver against private, consensual, free-market capitalism. Capitalism is defined as private ownership and control over the means of production, where the surplus product becomes a source of income for its owners. By contrast, socialism is defined as social ownership of the means of production so that the surplus product accrues to chosen groups within the larger society.
If “ownership” means the right of an owner to organize and dictate the application of various resources – be it capital, equipment, or labor – then today, we have surrendered that decision-making authority to the state. The state now has the power to rule, organize, and manage (or own) nearly every business.
Agencies can subtly control the means of production through their regulatory requirements – employment, emissions, wages, schedules, margins. Government can over-see and run a business through rules and regulations without suffering from unsightly legal or economic issues that would typically surround a hostile takeover. In this way, bureaucrats and commissions can execute ghostly control over all aspects of any business via the machinery of the state.
As our last budget cycle proved, this has immediate benefits for the state enterprise. However, in the long-run, it is terrible for businesses, their customers, employees, futures, longevity and prosperity.
Daniel Webster, a statesman, lawyer, orator, and Secretary of State for three Presidential administrations recognized our problem and summarized our dilemma like this,
“Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.”
If we don’t stand for rural-Oregon values and common sense… Who will?
Oregon State Senate 28