Elon Musk and the rule of law
The government has to be strong enough to enforce the law, or there is no law
An important story from Elizabeth Spiers
But Musk has demonstrated over and over again that he believes that laws do not apply to him and has faced minimal consequences for violations, which no doubt reinforces that perception. He has thumbed his nose at the Securities and Exchange Commission, manipulating Tesla’s stock price via tweet, an offense for which he had to pay a fine of $20 million, which is less than 0.1 percent of his wealth. He has illegally tried to sabotage union organizing efforts at the company, with no financial penalties whatsoever. And Alameda County ultimately caved to his demands that he be allowed to reopen the factory in Freemont, while imposing no consequences for violating the initial order.
These are not isolated acts; they’re ideological. Following the SEC fine, Musk said in a 60 Minutes interview that he did not respect the SEC, a sentiment that was apparent to anyone paying attention well before the interview. The truth is, Musk doesn’t respect any agency or government body that would hold him accountable. He does not fundamentally believe any person or organization has the authority or right to constrain his behavior.
In the end, the law is not enforced by “the government” because “the government” is an abstraction. In the end, the law must be created and enforced by specific individuals, and these individuals need to be powerful enough in their own right that they can take on individuals who are also powerful.
On the rightwing, there are libertarians who will fight any restrictions on oligarchs such as Elon Musk. Such libertarians are at war with the concept of the rule of law. They want no laws to limit a man such as Musk, who they feel should be free to operate on whim alone. In such cases, the libertarians are indistinguishable from fascists, who also believe the wealthy should be free to rule by whim.
On the leftwing, there are many who want to see the government given the power to go after people like Musk, however, sadly, the left is not unified on this issue, because there are also those who are opposed to both the oligarchs and the government. Some on the left view the government has so powerfully corrupt that it corrupts everyone who interacts with it. There is a somewhat populist (and even anarchist) branch of the left that is focused on reducing the power of the government, and to some extent they overlap with libertarians, especially on the issue of favoring direct referendums.
Such left-leaning idealists imagine that society can be governed by purely democratic referendums in which the whole public can participate. However, once a law is passed by referendum, how is it enforced? Without enforcement, it is no law, and yet enforcing it brings us back to the issue of giving power to the government. Those whose inclinations are libertarian or anarchist tend to be good at theorizing liberty, but they are not good when thinking about the details of implementing the enforcement mechanisms that make a law real.
If the political establishment blocks reform, it is understandable that the idealists will then cast about for the answer to the question, “How do we outflank the political establishment?” And it is easy to see why direct referendums might seem like an answer to that question. And yet direct referendums are often won by whoever can do the most advertising on television and social media. Another way forward, that the idealists need to consider, is that they should elect their fellow idealists, and change the internal rules of the legislature to make it easier for newly elected idealists to better set the agenda and thus outflank the political establishment, from inside the system.
It is understandable that reformers on the left should often be frustrated with an inability to pass necessary reforms. However, in their frustration, progressive reformers sometimes push for referendums that only make things worse:
The frustrations of the idealists continues to increase the more they feel that true reform is almost within their grasp, yet unattainable for mysterious reasons. What might those mysterious reasons be? Perhaps, they think, this mysterious force is the backroom deals made by unethical politicians, and so if their power was reduced, then real reform would be possible?
A different approach is to give more power to those who are in the government, trying to do the right thing. But too often, progressive activists undercut progressive politicians…
[Imagine some category of business that has been granted a special tax exemption, and imagine idealists who want to end that tax exemption, and they elect one of their own hoping the elected idealist can end the tax exemption.] That elected idealist must now spend a few years learning the system, and acquiring favors, so as to gain the power to pass a law they care about. However, that struggle to slowly acquire favors and influence is largely invisible to those idealists who never run for office. From their point of view, every time they elect an idealist, the idealist then becomes a sellout who waits many years before taking action on the issue that is their number 1 top priority. The idealists who never run for office then think that the solution to the problem is to allow direct elections via referendums, so then they won’t be betrayed by some idealist who promises one thing but then does nothing in office. But then, when the issue becomes a referendum, the category of business that is lucky enough to enjoy this special tax exemption mobilizes heaven and hell to fight against the reform, and after many millions of dollars have been spent on television and online advertisements, the public is frightened into voting against the reform.
The point is, if we want to build the kind of government that can bring about a true “rule of law” — a rule that applies the law equally to everyone, then we need people in the government to be as powerful as the oligarchs against whom they do battle. Populist arguments that we strip government of power is simply going to leave people like Elon Musk free to do whatever they want.
So if we want to build a world where someone like Elon Musk suffers the consequences of breaking the law, then we are going to have to push through some of the reforms that we’ve talked about in other essays on this Substack: longer terms in office, easier ways to pass laws, a truly independent justice department.