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Revolutionaries burn a carriage in front of the Chateau d’eau in Paris during the French revolution. Lithograph, Nathaniel Currier. 1848.

“In one sense, at any rate, it is more valuable to read bad literature than good literature. Good literature may tell us the mind of one man; but bad literature may tell us the mind of many men….The more dishonest a book is as a book the more honest it is as a public document.” ~G.K. Chesterton, Heretics 

Limitarianism: The Case Against Extreme Wealth by Ingrid Robeyns is a very bad book. Writing a review of it thus presents a challenge. Who wants to read a review that is the equivalent of shooting fish in a barrel of dead fish? Yet, while reading Robeyns’ tendentious screed, I was faced with the absolute certainty that quite a few of my colleagues and students would love this book. Chesterton’s observation thus puts the right question forward. The interesting thing about Limitarianism is not why it is so very flawed, but rather why Robeyns and others would think it was good. 

The thesis of the book is simple. Robeyns thinks it is wrong for anyone to have more than a million dollars in wealth, but she will agree to a compromise of a maximum wealth of ten million dollars. Robeyns doesn’t care what currency unit you use (dollars, pounds, or euros) as long as there is an enforced maximum. To the immediate reply that a 100% tax on wealth over that amount might be problematic, Robeyns repeatedly insists that she isn’t necessarily advocating that tax rate. Not that she thinks there is anything wrong with a 100% wealth tax, there are just other ways to get there. For example, you could convince everyone in the world it is bad to have lots of wealth. 

The bulk of the book is Robeyns shouting at the reader about why anyone having high wealth is so incredibly bad. First: “It’s Dirty Money.” Some wealthy people acquired their wealth by stealing it. Obviously, that is an argument against theft, not high wealth, but in a perfect example of how this book works, having established that we all agree stealing is bad, Robeyns then notes that people get wealthy in lots of other similar ways — like only paying whatever they are required to pay in taxes or owning companies that pay wages less than what Robeyns thinks workers should be paid. You see? Stealing wealth and not paying more than you owe in taxes are both “dirty money.” So, high wealth is evil. 

The roll call of reasons why high wealth is evil goes on like that for a couple hundred pages. High wealth is bad because it “undermines democracy” when wealthy people convince legislators to vote for things Robeyns doesn’t like. High wealth is “setting the world on fire” because rich people use airplanes and some corporations produce and use fossil fuels. Nobody deserves high wealth because wealthy people need a society in order to protect their wealth from theft, and the social contract should be fair and inclusive, not allowing people to get high wealth because of inheritance, luck, or having talent and the ability to work hard. Allowing some people to have high wealth is bad because “there is so much we could do with that money,” the “we” meaning (of course) people like Robeyns. High wealth is bad because it leads to philanthropy, which is terrible because the wealthy person gets to decide who should benefit from the philanthropic enterprise. 

Most of all, it would be good for the wealthy people themselves to give up their wealth because being wealthy is not only psychologically bad for the wealthy, but also the children of the wealthy really suffer from growing up with wealth. So, if you care about the kids, don’t let them grow up wealthy. I know that last sentence sounds like I am exaggerating and that there is no way Robeyns is as extreme as the last three paragraphs make her sound. But here is Robeyns: “People are free to make themselves as unhappy as they like. But that doesn’t take away our societal responsibility toward their children.” Similarly, the rich “are just as vulnerable, psychologically, as the rest of us, and if we care about the vulnerability of other people in general, then we should also care about how excessive wealth can destroy the lives of the super-rich.” 

There is an aura of unreality hovering over nearly every page of this book. The most jarring portion comes early when Robeyns sets out to refute anyone who thinks that all the wealth in the world today has been a big benefit to the poor. Lots of people are under the impression that there is less extreme poverty in the world now than there was in the past. Robeyns is here to assure us that this may not be true. Again, it may seem hard to believe Robeyns really says this. But, “the dominant narrative—that in the past everyone was very poor, and we have greatly reduced extreme poverty on a global scale—is misleading at best.” How is it possible that Robeyns could raise doubt about the fact that there is less extreme poverty today than there was in the past? First, the data before 1981 are not perfect, so maybe people really were better off in the past. Second, if instead of using $2 a day in income as the measuring line for extreme poverty, we use a higher number, then there are more poor people today than we estimate using the lower number. (Not surprisingly, she does not note that no matter what threshold you pick for extreme poverty, the global rate has declined.) 

Robeyns is willing to concede, however, that maybe there is more wealth in the world than in the past. But, even if so, the higher levels of wealth still aren’t a good thing. Because some people have much higher wealth than others, we cannot say that the increasing wealth is actually a good thing for the poor people who, while they may no longer be starving to death, are not as rich as the super wealthy. Her inability to acknowledge joyfully that there has been a massive decline in extreme poverty over time is tied very closely to the strangest parts of the book. There is no place in this book where Robeyns seems aware of the mechanisms by which wealth is generated. In Robeyns’ view, some very bad people have acquired a large amount of wealth by doing very bad things, and thus the net result of all that increase in wealth is negative no matter what has happened to the poorest people in the world. 

As I said at the outset, writing an entire review just documenting how bad this book is would be an incredibly easy task. Pick a page at random, and you’ll find multiple examples of an argument neither cohesive nor persuasive. The question is: how is it possible that the book is this bad? The answer is found in the Introduction. On the third page, Robeyns notes, “For a long time, I felt that there was something wrong with an individual amassing so much money, but I couldn’t properly articulate why.” So, she “decided to deploy my training in philosophy and economics to answer the question: Can a person be too rich?” The arguments in this book did not lead Robeyns to her conclusion; she started with the conclusion. When you start your investigation already knowing the answer to the question, then you may not notice that the reasons you offer for your conclusion are not persuasive to someone who is skeptical about the conclusion. If it seems like the arguments are non sequiturs attacking straw men, that isn’t important to Robeyns. The conclusion is right even if the arguments fail. The result of this approach is a religious book written for the already converted. 

What makes Robeyns’ book so useful for understanding what many people are thinking is that it becomes obvious that people who want to get rid of high wealth are not reaching the conclusion because they are persuaded by reasons of the sort found in Robeyns’ book. Instead, it is an article of faith. If having high wealth is inherently evil, then the conclusion is obvious. There is no reason to permit inherently evil acts to continue if we can stop them. Trying to explain why high wealth is evil is beside the point; it just is. 

Ten Years After, the 1970s rock band, provides a marvelous way to think about this mindset in “I’d Love To Change the World.” “Tax the rich, feed the poor/ ‘Til there are no rich no more.” I have always thought those lines were pretty funny and highly ironic; taxing the rich to feed the poor doesn’t help end poverty; it just gets rid of the rich. But, in reading Robeyns’ book, my realization was that there are people who do not think those lines are ironic. Taxing the rich to feed the poor is desirable not because it will help the poor, but simply to get rid of the rich.  

Of course, the idea that a society should get rid of the wealthy is not new. Lycurgus, the crafter of ancient Spartan society, implemented a whole series of radical changes (breaking up large land holdings, forbidding the manufacture of luxurious items, inhibiting trade with other cities, forcing everyone to eat at communal meals) in order to rid Sparta of the rich. He seemed total unconcerned that Sparta would be a poorer society; Lycurgus’ ideal Spartan lifestyle was one devoid of any hints of luxury. 

Lycurgus provides an interesting contrast to Robeyns. Both have the ideal of a world in which there “are no rich no more.” There is an intellectual honesty in Lycurgus’ implicit argument that a poor-but-equal world is superior to a rich-but-unequal world. That is not what Robeyns is arguing, however. Limitarianism wants to have it both ways. Robeyns wants to get rid of the wealthy, but does not want to get rid of the wealth. In Robeyns’ Limitarian Paradise, there is no trade-off between the technological marvels and phenomenal wealth in the modern world and limiting everyone to no more than one or ten million dollars of wealth. Somehow, we can redistribute all the wealth in the world and still keep on generating just as much wealth in the future, even though creative and hard-working people have hit their personal limit on wealth. Robeyns argues this will happen if we develop a culture “where material gain is not the leading incentive — where people may also choose to work hard because of personal commitment, challenges they have set for themselves, or for intrinsic pleasure, esteem, and honor.” 

To pretend that you can have all the riches of the modern world and eliminate the ability for anyone to become wealthy is a sure sign of someone who has no understanding of how all this wealth was generated in the first place. Robeyns’ book, however, provides insight into why people advocating income limitation plans often seem so unaware of how economic growth occurs. If getting rid of rich people is akin to a religious mandate to rid the world of evil, then of course it is safe to impute bad motives to anyone arguing that there are possibly benefits to the world from allowing people to do things that will make them wealthy. Despite appearances, Robeyns book is not really an attempt to persuade anyone of her beliefs; instead, it is an insight into the minds of zealots. 

Andrés Manuel López Obrador addresses a press conference. EneasMx. July 2024.

Here in the US we don’t normally have much interest in the domestic politics of our neighbors Mexico and Canada. Mexico, for example, is part of our presidential election only insofar as immigration is a top issue. But we don’t ask “why are people from throughout Mexico and Latin America crossing our border in large numbers?”  

Mexicans aren’t just fleeing their homeland to enter the relatively safe and stable US – they are now leaving Southern Mexico for Guatemala, of all places, amid the near civil war there between feuding drug lords in Chiapas. As Mexico’s political system deteriorates, crime is increasing, and the outgoing president, Andres Manuel Lopez Obrador (or AMLO as he is known) completes his quest to eliminate the independence of the country’s judiciary. 

AMLO’s administration has followed in the footsteps of other left-wing populist leaders in the Western Hemisphere in Venezuela, Colombia, Bolivia and Nicaragua. He has decried “neoliberalism,” consolidated power, appealed directly to the poor, working class, and alienated middle-class of Mexico. During his time as president, AMLO had many confrontations with the Mexican Supreme Court specifically and the judiciary more broadly. Particularly in the last few years of his presidency as his power increased and his respect for the law declined, he and the court clashed as he tried to expand the power of the military, pull back from fighting crime and tried to ‘pause’ stable, productive economic relations with the US. This prompted him to push through a “reform” that will see every judge throughout Mexico subject to regular election, not lifetime appointment as American federal judges are, and Mexican judges were previously. 

He is promoting the reform as a way to eliminate judicial corruption, but this is a charade. The reform is merely a way for his party, the powerful Morena party, to exert control over one of the last independent institutions in the country. Judges will be beholden to political interests, not law. Voters in Mexico are completely unprepared to understand what makes a “good” or “qualified” judge. A voter in the capital of Mexico City, a metropolitan area of perhaps 20 million people, would be voting for thousands of judicial candidates with no information other than party identification, including for the Supreme Court. Money will purchase judges and corruption will far outstrip the problems the system now faces. 

Some US states, and some countries, have various forms of “elections” for judges, be it options for recall, yes or no votes on maintaining a judge, or even a few with regularly competitive elections. But federal courts are appointed for life, which provides some insulation from political forces. So why has Lopez Obrador decided to make this radical move? In Bolivia, which has judicial elections, the Economist just recently described the electing top judges as a “disaster” which poisoned the country’s politics. What’s bad for the nation as a whole, though, can still be very good for a power-hungry politician. In Bolivia, the two main competitors for the presidency are jockeying for support from the elected court and everyone understands that the court’s decisions are motivated by nothing more substantive than politics. 

In some ways, this looks like a return to the days of the monolithic PRI party that dominated Mexican politics in the 20th century. But there’s an additional reason why AMLO has proposed the reform. Destroying the judiciary as a counterbalance to the elected power in Mexico is straight out of the playbook populists have used to consolidate their control. In Venezuela, for example, President/Supreme Dictator Nicolas Maduro had his hand picked Supreme Court stamp his stolen election as legitimate, and AMLO has dreams of a similar scenario when the US or a future Mexican president comes after him for aiding Mexican drug traffickers or forces him to explain how he and his sons have bank accounts in the Cayman Islands or Switzerland stuffed full of pesos. Once the judiciary is under control, populists next take over the central bank and begin to intimidate independent media outlets. The institutional and social checks on majoritarian power are eliminated creating an opportunity for dictatorship, and lifetime rule and enrichment through graft. 

How is this related to immigration and relations between the US and Mexico? Those Mexicans who are leaving for other countries see very limited economic opportunities, no domestic security, and no hope in their political institutions after a six-year assault on foreign investment, the rule of law, and economic development under President Lopez Obrador. Daniel Ortega in Nicaragua, the Castro boys in Cuba, Maduro in Venezuela and now AMLO, all claim to be men of the people fighting for the common person against the evil forces of capitalism and imperialism. Shockingly, the situations in their countries deteriorate, their citizens flee, and they consolidate their grip on power. 

More than $35 billion in direct foreign investment in Mexico is now on hold according to the Wall Street Journal. The peso, which has historically been a very stable currency, has dropped 15 percent since the judicial ‘reform’ was announced. Protests from the legal community and the political opposition are intensifying. In at least five of Mexico’s states, battles between rival drug organizations have produced bloodshed and instability. The costs to the Mexican nation will be enormous. Eliminating an independent judiciary may very well force Mexico to pull out of the USMCA, the replacement for NAFTA. Remember Mexico is the United States’ largest trading partner, and vice versa. Such a shift will have devastating economic effects on both sides of the border. 

But three sets of interests benefit from Lopez-Obrador’s plan. The first is the old institutional power brokers in public and private unions. The move towards economic and political liberalization undercut their ability to pursue graft, control jobs, and influence policy. They’d like a return to the “good old days” of no foreign businesses interfering with their rule of the labor market, which will increasingly become blurred as the private sector shrinks while the economy contracts. 

The second set of interests are those involved in the illegal drug trade. In the past, analysts argued that while the Mexican government lacked the capacity to effectively fight the war against the large cartels that once ruled the drug trade, under Lopez Obrador two things have changed. The first is that the days of the large cartels are in the past. The Netflix series Narcos is great television, but there is a reason it is set in the 80s and 90s. Now smaller operations, more prone to violent turf wars with unstable business operations, have replaced the once mighty cartels with bloody results. The second is that Morena has used local alliances with those in this new entrepreneurial drug “industry” to help ensure they have convincingly won local and state elections. 

Lopez Obrador in fact helped shield some of the larger drug organizations from US prosecution, which led to his infamous “hugs not bullets” policy. Whether he was motivated by a newfound interest in humanitarianism or following the requests of his friends in the drug industry, AMLO diverted military and police resources away from fighting the drug traffic. Unsurprisingly hugs did not stop the drugs, and the US responded by pressuring the Mexican government to work with them for high profile arrests, like that of the son of the notorious “El Chapo,” now in a US prison. According to press reports the Blackhawk helicopters and troops sent in to get him were not hugging anyone. 

Finally, this new system benefits the army, which is another important strategy in the populist playbook. As we’ve seen in Venezuela, once politicians control the formal political institutions and the criminal activities in society, they need the support of the army. Military coups are part of the landscape and history of Latin America.  

Lopez Obrador has adroitly freed the military from fighting the drug war, something they had no desire to do. Instead, he has placed the military in charge of lucrative endeavors like managing ports and airports. They have taken over the construction of major infrastructure projects. These activities are all in direct violation of the Mexican Constitution, and the Supreme Court ruled against these moves just last year in one of their many fights with AMLO. The possibility for political power and of course further bribes and graft at ports and large construction projects shouldn’t be difficult to predict. He has also essentially placed the police under military control, which has expanded the army’s power base. 

The third winner in all of this is Morena, and indirectly Lopez Obrador. His party controls Mexico, and should the judicial reform pass, their formal power may rival if not exceed that of the PRI. While some observers are hopeful that his successor Claudia Sheinbaum may pivot in a different direction and guide Mexico towards more moderation, it’s difficult to see how she might do so if she chooses to reject AMLO’s legacy. As one astute observer noted to me, while it is possible she may become her own leader and wish to escape AMLO’s shadow, a more likely alternative may be that she follows the Medvedev/Putin model and is simply complicit in allowing his rule to continue into a second term. After all, this observer said, it is AMLO who controls Morena, and Morena is the most powerful civilian force in the nation. 

The losers here are obvious. First and foremost, Mexicans of all social and economic classes will lose the lifeline that NAFTA/USMCA, economic liberalization, and attempts at political liberalism has created. Millions of Mexicans ascended from working class status “clase trabajadora” to the middle class through manufacturing jobs and foreign investment from the US and abroad. As others have correctly outlined, those treaties depended on a guarantee of an independent judiciary. While some of those commercial agreements may transfer to international commercial courts, many won’t. Existing investment may wither, and new investment will almost certainly go from paused to stopped.  

AMLO himself has a vision of Mexico that is very much anti-development. He has a romantic vision of an early twentieth century, rural Mexico. Whether his base will realize (too late) what that means for the future is difficult to tell. But if I were to predict the future, I’d return to the issue of immigration. While many across the political spectrum are falling all over themselves to oppose “illegal” immigrants, immigration has long benefited the US. Whether it was the waves of Southern European immigrants at the end of the nineteenth and start of the twentieth century, the Irish immigrants from the 1850s after the Irish potato famine, or even the many Venezuelans who have entered the US recently, running for their lives from Maduro and his Cuban handlers. Immigrants come with skills, and they are willing to take risks and work. Once we move past the political grandstanding, we will eventually see how good it is to get a new influx for our workforce. 

But in the short term, these developments will be problematic for the US because Mexico is right next door and heading down a very dangerous path. Empowering one party, strengthening the military, destroying checks and balances, and allowing criminals to have free rein throughout Mexico will not end well for other countries. The attractions of militarism and the reliance of a strong hand “la mano duro,” as it is known in Latin America, is tantalizing. But it is a fantasy, a mirage that leads to dictatorship. Mexico should reject the abolition of its independent, albeit imperfect courts. If they need more evidence of how this will end, they shouldn’t look to AMLO for promises but look to Venezuelans and how their courts have protected the only one person — the dictator, not his subjects. 

Economic misconceptions persist due to misguided intuitions that overlook complex factors, a preference for principles over outcomes, the influence of epistemic bubbles, and political tribalism. Despite frequent refutation flawed ideas endure, requiring constant vigilance from economists.

Harwood Economic Review

Table of Contents

Governments, Not Markets, Impel ESG
Allen Mendenhall and
Daniel Sutter

Investors Make Houses More Affordable, Not Less
David Youngberg

Sense and Nonsense on Petrodollars
Peter C. Earle

Boosters Beware: Stadiums Aren’t Magic
Art Carden

Protectionists Are Wrong: Free Trade is the Path to Prosperity
Vance Ginn

Overpopulation: An Ancient Myth Refuted
Aidan Grogan

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A young waitress cheerfully takes orders from a group.

In Leave Me Alone and I’ll Make You Rich: How the Bourgeois Deal Enriched the World, Deirdre McCloskey and I distinguish the Bourgeois Deal — ”leave me alone, and I’ll make you rich” — from the Blue Blood Deal of aristocratic oligarchy and the Bureaucratic Deal of the modern welfare state. The Bourgeois Deal is the ethos of Adam Smith’s Commercial Society, and the permission-requiring and command-giving Blue Blood and Aristocratic Deals are the ethos of the Political Society. A single sentence embodies each:

Bourgeois Deal, Voluntary, Commercial Society: “May I take your order?”

Blue Blood and Bureaucratic Deals, Administrative Society: “That’s an order!”

Note the assumptions here about political equality — or the lack of it. The person saying, “May I take your order?” voluntarily subordinates himself to another’s wishes. The person saying, “That’s an order!” subordinates others to his wishes. The person saying, “May I take your order?” invites others to evaluate a menu of options in light of their own knowledge and preferences. The person saying, “That’s an order!” compels others to ignore their own knowledge and preferences. The commercial society’s order-taker asks people to cooperate. The administrative society’s order-giver commands people to cooperate.

Which respects others’ humanity and dignity? Which respects their knowledge, experience, and autonomy? 

Consider a chicken restaurant. “May I take your order?” contains a lot of information. It says, in effect, that a team of people who are there of their own volition — even if being there is the best of a lot of very bad options — stand ready to fry chicken obtained from one willing seller with knowledge about chicken farming and put it on a bun obtained from another willing seller with knowledge about baking. These willing sellers, in turn, went into their occupations with the conviction that raising chickens or baking buns would be the best way to provide for themselves and their families.

Political choices are different. The candidate who covets your vote offers an exchange of sorts — a “plausible belief,” to quote Thomas Sowell — in exchange for a vote. Still, it’s a plausible belief that the candidate will give orders that the voter finds congenial, and with luck, to other people. It is, in effect, an offer to make someone else do what you want them to do without you having to go to the trouble of offering them something better than their alternatives. It’s an offer to give other people “offers” they can’t refuse.

The great American statesman Daniel Webster put it this way in 1837:

There are men, in all ages, who mean to exercise power usefully; but who mean to exercise it. They mean to govern well; but they mean to govern. They promise to be kind masters; but they mean to be masters.

“That’s an order!” might be necessary under certain circumstances. Firms exist because of prohibitive negotiation and transaction costs. The military has a chain of command. It might be necessary to tolerate an evil like taxation to avoid the greater evils of invasion, subjugation, and domination. “Because I said so” isn’t an entirely indefensible response to a child wondering why he can’t drink the stuff in the bottles under the kitchen sink. These are exceptions to the general rules that Adam Smith, and so many after him, have thought should govern relationships between adults and equals, not general rules to which liberty is the exception. 

When we’re asking about the kind of society we want to live in, it might be possible that we should want to live in a society where we recognize one another’s right to say “no, thank you” to an offer — that is to say, a world where people take orders instead of give them.

Close-up of the in vitro fertilization procedure, with needle injecting into egg under microscope.

During the most recent debate with Vice President Harris, former President Trump declared that he has “been a leader on IVF… everybody else knows it.” Trump, of course, was referring to his recent campaign promise that the government pay for or that insurance be mandated to pay for all IVF treatment costs.  

Whether Trump’s proposal would make him a leader is a point of debate, given Democrats and introduced a bill mandating insurance coverage of IVF earlier this summer. But whatever the case, Trump’s IVF proposal would certainly lead in the wrong direction. 

The proposal has many downsides. To begin with, government-funded IVF would be enormously costly. A back-of-the-envelope estimate indicates that government funding IVF would cost about $7 billion annually. This figure assumes that the average IVF cycle costs between $15,000 and $20,000, doctors perform about 413,776 assisted reproductive technology (ART) cycles annually, and IVF constitutes more than 99 percent of ART procedures/​cycles. 

This figure, however, assumes that the current number of ART cycles and average IVF cycle costs stay consistent, which is highly unlikely. Currently, most patients self-pay for IVF, which limits IVF use. Furthermore, a subsidized program creates new incentives for would-be parents to delay childbearing or engage in elective fertility preservation, leading to growing use of the program over time.  

Israel provides a case in point: in Israel, IVF has been publicly funded since it was first introduced in 1981. Reliance on the technology has grown since then, when it was a nascent technology, and between 1990 and 2012, the number of IVF cycles increased eightfold.  

Some of the increase in utilization is no doubt due to innovations that improve the procedure’s effectiveness. For instance, the development of intracytoplasmic sperm injection (ICSI) in the early 1990s meant that IVF became beneficial to a much larger portion of the population, as ICSI helped resolve many cases of male infertility. Even since major technological innovations like ICSI, IVF utilization in Israel has grown. The percentage of births attributable to IVF in Israel in 1995 was only 1.7 percent, but by 2018 that figure had nearly tripled. 

In large part due to its generous policy, Israel also has by far the highest per capita IVF use of any country. Israel’s generous IVF program funds unlimited IVF until a woman has delivered two live children, and benefit eligibility continues up until 45 years of age. Israel also covers elective fertility preservation, and in line with Trump’s proposal, Israel’s policy covers “all treatment costs,” including medication, procedures, testing, and more advanced add-ons like preimplantation genetic testing (PGT).  

If the US implemented a program that subsidized or mandated coverage for “all treatment costs,” substantial growth in IVF use would likely occur. Current IVF use in Israel is more than six times greater per capita than in the US. In countries like Denmark, which subsidize IVF generously but to a lesser extent than Israel, IVF use is still more than four times greater per capita than in the US.   

If a US policy were so generous that it induced Israeli levels of IVF use, the program would cost around $43 billion annually, or about what the federal government spends annually on its major housing rental assistance programs (housing vouchers and project-based rental assistance). Even if the program were “only” generous enough to induce Denmark’s level of IVF use, it would cost $27 billion per year, or more than NASA’s annual budget. 

Yet, unlike the federal government’s housing assistance programs, the benefits of an IVF subsidy would surely be regressive if fertility patterns hold. Under existing patterns, women with higher education or higher income are more likely to delay childbearing: according to CDC research 42.9 percent of women with a bachelor’s degree or greater delivered their first child at 30 or older. In comparison, just 3.3-10.5 percent of women with less than a bachelor’s degree delivered their first child at 30 or older. But older women are also more likely to run into fertility issues and subsequently utilize IVF. 

Given the current national debt and deficit’s threat to our economic stability and the related need for fiscal restraint, creating a new, expensive entitlement program with benefits captured by highly educated and high-income beneficiaries is misguided.  

Even setting aside such a program’s steep price tag and regressive profile, would the money be “worth it”? Trump’s stated motives for the program are pro-natal, yet it is not clear that a subsidized program would actually result in more births.  

The new incentives created by such a program suggest that growing reliance on IVF alongside fewer births overall is possible or likely. This is partly because would-be beneficiaries may falsely believe that a subsidized or mandated policy allows them leeway to delay childbearing, only to find that childbearing is more difficult later in life, even with the assistance of reproductive technology. 

Countries like Singapore, Japan, Australia, and Denmark have subsidized reproductive technology and still seen fertility decline in recent years. And in all countries that subsidize IVF besides Israel — a unique country not only because of its extremely generous subsidies but also its broader cultural commitment to natalism — the fertility rate is currently below replacement. 

Beyond the program’s enormous cost and uncertain or negative influence on births, a subsidy or mandate would conflict with some taxpayers’ views on conception and reproduction. While most Americans disagree with more extreme views put forward by IVF critics, it is nonetheless reasonable that critical parties not be forced to subsidize activities that they find objectionable. 

Although Trump’s plan is a disaster from the perspective of cost, incentives, and value neutrality, IVF is a true medical miracle for many couples with fertility challenges. Protecting IVF means protecting individuals’ freedom to avail themselves of the most successful procedure to treat a range of fertility issues and create human life, and doing so is critical.  

But protecting IVF from efforts to limit its use and reduce its efficacy does not mean subsidizing or mandating coverage. Trump and future policymakers would do well to enthusiastically defend the procedure, but avoid the cost and pitfalls of a government-supported industry. 

Table of Contents

Executive Summary

Key Points

Introduction

What ‘financialization’ is, and isn’t

Class warfare by any other name

Resource allocation and productivity

In defense of profits

The usual bogeymen

Private Equity

Hedge Funds

High-Frequency Trading

Banks

Mergers & Acquisitions

Dividends

Stock buybacks

Passive ownership/indexing

Cures that are worse than the disease

Monetary and fiscal policy getting a pass

Conclusion

Executive Summary

Despite its ubiquitous use in modern America, the term ‘financialization’ is deeply misunderstood. Evidence shows the concept’s meaning often changes in different contexts. In some instances it serves as a relatively benign catch-all term for anything construed as a “greater role for the financial sector in the economy.” Others have described financialization as a “mismatch between the public interest and Wall Street interest.” In some instances, it is misunderstood as the simple pursuit of profit. 

As the term ‘financialization’ has gotten more mileage in recent years, critics have seized on the ambiguity of the word to wage class warfare and attack capital markets, which are little understood. Among the most heavily criticized institutions and actions in the financial sector are the following: hedge funds, private equity, high-frequency trading, stock buybacks, dividends, and banks.

Key Points

This paper explores how the term ‘financialization’ has been employed—and explains why it should not be confused with mere financial sector activity—and demonstrates how its critics have done the following:

Inadequately defined the term

Used a critique of the financial sector to disguise rank-class envy

Failed to understand the nature of markets and the primacy of resource allocation

Demonized instruments of financial markets that have been overwhelming positives for economic growth

Proposed policy initiatives that would unilaterally do more harm than good

Failed to see the most egregious actors in that which distresses them: excessive government debt and excessive monetary policy

Introduction

The term ‘financialization’ has received significant attention in recent years and is seeing far greater use in the vernacular of policymakers and thought leaders. The term is used in different ways by different parties, and a plethora of agendas exist behind these discussions. What’s clear is that there is growing interest in the role of financial markets in the broader economy.

While a treatment of financialization that embraces nuance is difficult in our time, no treatment will be coherent without nuance. The different uses, agendas, and contexts matter, and using vocabulary to poison a well is easy to do in this discussion, and also counterproductive. This essay explores the underlying concerns behind financialization, and seeks to more accurately describe what market forces do while addressing misconceptions about ‘financialization’ and free markets.

Conscious effort is required to avoid the laziness embedded in the label to paper over a class warfare argument. At the same time, advocates of robust capital markets concede that financial activities exist that offer limited productive value. In other words, it is entirely possible (and, indeed, will be the position of this paper) that what is often referred to as ‘financialization’ is no such thing at all, and is rather a misguided attack on all capital markets. And yet, it is also entirely possible (and the thesis of this essay) that a consortium of policies has facilitated what can be called financialization, and these policies should be rebuffed as contrary to the aim of a productive economy which facilitates maximum opportunity for flourishing.

In this nuance, we find the tragic irony of this contemporary debate. A growing movement, increasingly bipartisan, hostile to various activities in financial markets, has identified the wrong targets for critique. In so doing they not only have demonized healthy and vital components of an innovative economy but have missed the culprits who do warrant our attention. The reasons for this misidentification of cause and effect vary from a weak understanding of financial market reality to more severe ideologically driven errors. When the critics of financialization show a weak understanding of the problems they seek to solve, their proposed solution can only be flawed, incomplete, and misguided. Activities pejoratively referred to as financialization that are healthy and useful need to be defended. Likewise, activities, policies, and incentives that pollute the engines of a healthy economy need to be criticized. In short, a lot is on the line in this contemporary discussion.

The first section of this paper seeks to define what financialization is and what it is not. Upon establishment of a clear definition, analysis is needed to determine what is negative and what is positive. Once defined, an objective assessment of the causation of this phenomenon is in order.

After clarifying what financialization is, it will be useful to note the dangers of class warfare in the debate. This essay strives for an intellectually honest critique of any economic development or policy disposition that is weighing on the cultivation of prosperity. It does not seek to exploit or incite class envy. Nor does it seek to utilize demonization as a substitute for argument.

Critics of financialization, or at least those prone to using the term, have concerns about economic productivity and how resources are currently allocated. A basic refresher in how markets work and how resources are most efficiently allocated will be a useful foundation for this study.

In a similar vein to how class warfare underlies many misguided attacks on financial markets, a vigorous defense of profits is paramount to this discussion. Financial activity that hurts the common good is fair game for our scrutiny; an activity that is criticized merely because of its profitability is not. This essay will explore why corporate profits are vital in a prosperous society.

There exists a lengthy list of expected targets of criticism, even beyond the abstract and poorly defined “Wall Street.” Specific vehicles, institutions, and activities such as private equity, hedge funds, high-frequency trading, both commercial and investment banking, the payment of dividends, the buyback of corporate stock, and passive ownership of public equity all receive the ire of today’s market critics. In each case, their concerns ring hollow, incomplete, or woefully inaccurate.

An abundance of policy solutions now circulate seeking to remedy various conditions described herein. Eliminating bad solutions and embracing good solutions, all the while considering expected trade-offs, must be our aim. Unfortunately, many proposed remedies must be considered worse than the disease, and for this reason, also deserve our attention.

Likewise, it behooves us to consider the positive innovations in financial markets, fruits of a market economy and society ordered in liberty, that have demonstrably improved conditions for prosperity and flourishing. It does critics of finance no good to analyze that which is prima facie problematic without also looking at the clear positive results that robust financial markets have made possible.

And finally, we must look at that which is truly responsible for downward pressure on economic growth and productivity. Critics of financial markets so often reach over dollar bills to pick up pennies, concerning themselves with benign activities that present nothing more than a cosmetic concern, while ignoring the substantial and measurable negative impact of excessive government indebtedness, an obese regulatory state, an inefficient tax system, and most ignored of all, monetary policy that substantially misallocates resources.

Re-orienting our understanding of this subject will promote a cogent direction in economic policy and better move us towards the proper aim of financial markets—human flourishing.

What ‘financialization’ is, and isn’t

‘Financialization’ can mean different things in different contexts, but it generally carries negative overtones. The definition matters because, for some (including the author), there is a ‘financialization’ phenomenon that warrants significant criticism. But upon closer scrutiny, the actions most often described as ‘financialization’ warrant no such criticism. A coherent definition also allows for precision in what is being scrutinized and criticized, while failure to define the term properly risks generating an inadequate critique of what should be criticized, and a wrongheaded critique of that which should not.

There is an abstract but fair context in which financialization is a catch-all term for a “greater role for the financial sector in the economy.” At that level, it is a reasonably benign description and does not necessarily indicate any malignant effects on the economy as a whole or specific economic sectors. Here ‘financialization’ simply describes a scenario whereby capital markets activity becomes more prominent.

Other conceptions of financializations, however, are explicit in their condemnation of the manner in which financial markets re-allocate capital in ways that increase profits to owners of capital but without paying heed to what such critics’ conceptions of social justice or equality. An example of this is an American Affairs article that views financial actors as tools of “market worship” which, its author claims, undermines a just and responsible society.

A more particular definition of financialization might incorporate the influence or power of financial markets in overall economic administration. If we referred to the ‘technologization’ of society we would more likely be referring to a greater use of technology than increased power for technology elites, but it seems fair to allow for the inclusion of both—some increase of use and some increase of power.

Regardless, however, of what sector of the economy is having a new noun made out of its description, greater use of that sector is not self-evidently problematic. It may even be an obvious improvement (“medical sophistication”). Indeed, one could argue that influence or power is expected when greater utility is found in a particular segment of the economy. Whether it be consumer appetites or just general product novelty, the influence of various segments of the economy ebb and flow quite organically around their use, relevance, and capability. A generic increase in the use of financial services and accompanying influence lacks the specificity necessary to identify it as problematic.

As the term ‘financialization’ has gotten more mileage in recent years, those concerned with its allegedly malignant impact have taken advantage of the ambiguity, complexity, and mystery of capital markets (real or perceived) and present them as a malignant force. In this sense, class envy is a more likely description for much of what is described as financialization. It is therefore incumbent upon us to break down the ambiguity of where financial sector activity might be putting downward pressure on productivity, and where the term is being used only for its well-poisoning virtues.

Because financialization involves some basis for warranted criticism, mere financial sector activity is not the same as financialization. Likewise, increasing financial sector profits should not be considered the same as financialization. Critics are fair (prima facie) to suggest that if such profits come at the expense of other sectors, and at the price of total economic growth, then there may be a problem. However, the mere accumulation of financial sector profits is not financialization unless, in a zero-sum sense, such profits result from a decline in total profits and productivity. This will be a tough burden to overcome.

Is financialization the same thing as securitization, i.e., manufacturing financial products (securities) around other aspects of economic activity and streams of cash flow? Does the economy suffer when more components of economic life are securitized, meaning, capitalized, traded, valued, priced, and institutionally owned and monitored? Does securitization distract from organic economic activity, product innovation, and customer service? Or does it facilitate more of the above, mitigate risk, and enhance price discovery? Does securitization invite profits into the financial sector, while benefiting the public good by opening new markets for healthy activities (i.e. auto loans, inventory receivables, debtor financing, and more)? Is a critic of financialization willing to say that securitization enhances economic opportunity and activity, but still must be viewed skeptically because of the enhanced profits it produces for the financial sector?

Some have said that financialization produces a “mismatch between the public interest and Wall Street interest.” This may be getting closer, if we believe that scenarios exist where the production of goods and services that make people’s lives better are contrary to the wishes of Wall Street (i.e. our nation’s financial markets). Do those who invest, steward, trade, and custody capital do better when that capital is put to work for the public or against the public? It would be a high burden of proof to suggest that the financial sector at large (distinct from an individual actor) has interests disconnected from the broad economy.

The above listed distinctions and clarifications should make critics of Wall Street be more careful in framing their critiques of the financial sector. Confusing the financial services sector by giving the public exactly what it wants for working against public interest is a profound mistake. Close analysis of this dynamic reveals that what Wall Street is often being criticized for is not working against the public interest, but rather giving the public exactly what it wants too liberally. From subprime mortgages to exotic investments, many products and services may prove to be bad ideas, but they can hardly be called things that “Wall Street” distributed to “Main Street” against the latter’s will.

Nor should financialization’s problems be confused with the mere pursuit of profit. To the extent that critics of the profit motive exist, their philosophical objections are hardly limited to the financial sector. The productive pursuit of profits in a market economy is a good thing, and this judgment does not exclude the financial sector. The profit motive is not a problem in ‘financialized’ or in ‘non-financialized’ enterprises. Economic activity intermediated by financial instruments does not suddenly take on a different character. Rather, the problem is where more productive activities are substituted for less productive activities. If the production of goods and services towards the meeting of human needs is replaced by non-productive ‘financializing’, a problem exists that requires attention.

As we shall see, such ‘financialization’ does, indeed, exist. However, the culprits behind such are never the ones targeted by financialization’s loudest critics[1].

Class warfare by any other name

Associating Wall Street with greed and callous disregard for the public is not new. While Hollywood portrayals of Wall Street in the 1980s and 1990s focused more on hedonism and a general profligate culture, there has been a multi-decade distrust of “money changers” and various representatives of the financial markets of America. “Wall Street” has the disadvantage of being nebulous. It has not been known in a geographical context for a century, and its linguistic shorthand for capital markets is ill-defined and understood. What it is, though, is an easy target of the envious. It suffers from the lethal combination of being affiliated with riches and success, while at the same time lacking a clear definition. This tandem allows for an all-out class warfare on the very concept of Wall Street without any need for nuance or specificity.

Greed, arrogance, corruption, and disregard for the common good ought to be repudiated regardless of the industry in which they occur. These character components are common traits in fallen mankind, not unique to the financial sector. The particular disdain felt for Wall Street is really class envy that receives intellectual and moral cover from the widespread impoverished understanding of what our financial markets and the actors within them do.

We thus need a sober separation of the envy of wealth and success from a granular understanding of the work being done in any sector of the economy. A middle-class worker may believe a Hollywood A-list actor is grotesquely overpaid, or they may be jealous of the generous compensation that such an elite group of professionals enjoys, but demonizingall “acting” or “entertaining” makes no sense. Reasonable people can hold different subjective opinions about the talent of a given celebrity, but analyzing their theatrical or cinematic skills is hardly enhanced when buried underneath an intense jealousy of their compensation.

The same dynamics unleashed by envy and lack of knowledge applies to Wall Street and particularly the scrutiny of financialization’s role in driving or hindering economic productivity. That such a dynamic is common should not allow it to stand. Our economy either has a problem with financial sector activity in itself hindering productivity, or it doesn’t. We either need policy reforms to limit the use, power, and influence of financial markets, or we do not. The reality of this discussion is that those components of the modern economy that have most distorted and hindered economic growth are not as easily demonized as Wall Street, because bad policy, bad ideas, and the folly of central planning do not fall into a class envy narrative. A vital ingredient in our task is correctly identifying that class warfare is part of the ‘financialization’ critique.

Resource allocation and productivity

Getting to the core of this issue becomes possible once we accept that financialization, properly understood, is the substitution of productive activity with non-productive activity.. Financial markets involve the intermediation of capital in facilitating transactions, but they do much more. When one speaks of financial markets taking from another part of the market, what does that mean? How can we identify when this is occurring? What should we do about it?

Much of the problem comes down to not knowing what a market is.  If markets were created by the state, or imposed by a third party, one could argue that the financial sector is negatively impacting markets.  But a market is not imposed or created by the state or any other disinterested third party. A market is two people transacting. Embedded in market transactions are all sorts of realities about the human person.  Humans make choice and act individually.  They have subjective tastes and preferences, have reason, are fallible, have a high regard for self-preservation, and tend to pursue what they regard as their self-interest.

Given that humans are also social beings, most market activities also involve some degree of social cooperation.  Our transactions with one another often take place in the context of a community.  Our transactions often involve access to goods and services for entire communities. Steve Jobs did not make the iPhone for his childhood friend; he made it to scale distribution globally. Some products are purposely more limited in scope and appeal. The complexity and inter-connectedness of markets cause us to forget that markets are actions of mutual self-interest between free people.

When we hold to the fundamental basics of the market we are in a better place to consider where a financial sector may enhance the facilitation of our market objectives. Likewise, when we forget what a market is, we are more likely to be tempted by the allure of third-party actors to intervene, oversee, regulate, plan, and control the economic affairs of mankind. We forget that a market is grounded fundamentally on human actions at our peril.

In the context of free men and free women making a market together, negotiating the terms of trade, commerce, use of labor, and other conditions of economic activity, we can see both individually and cooperatively where financial markets can be a powerful tool of facilitation. Currency facilitates divisibility in exchange at the simplest and historically earliest of levels. Trading a herd of cattle for water presented challenges; trading with a currency to allow for settling accounts without impossible barter exchange values changed the world. Currency rationalizes exchange and facilitates more of it.

But it still must be said: the currency is not the end, but the means to the end. The financial instrument that facilitates the accumulation of water or cattle of whatever the goods or services may be is a mere tool. The resources being allocated, traded, pursued, exchanged, and acquired—enhances productivity and quality of life—are separate from the financial instrumentation. This intermediary functionality of money is a feature, not a bug. At the most basic of levels, it was the initial function of financial markets to drive resource allocation and free exchange.

It would be disingenuous to assert that all we mean, today, by financial markets is its intermediary function in exchange. Currency remains a vital part of economic activity and for much of the same reasons it was thousands of years ago. While the discussion of the financial sector facilitation of resource allocation begins with currency and it evolves, the fundamental function does not. When capital is made available for projects, the goods and services underlying the capital are still paramount. The use of debt or equity to entice support of a project invites a risk-reward trade-off, and creates a new “market,” but it does so towards the aim of an underlying market. Will customers like this product, or not? Will this entrepreneur execute? Is this cost of capital appropriate for this endeavor? Financial markets represent the pursuit of a return on capital, and yet, the return that capital rationally pursues comes from an underlying good or service.

Forgetting these points leads to economically ignorant conversations where you hear critics of financial markets suggest that we must stop talking about “cash flows” and “financial engineering,” and start focusing more on productive activity, customer satisfaction, and innovation. Where are “cash flows” from, if not the sales of goods and services? When financial activity is considered in the prospects of a business, or even for macroeconomic impact, it is all in the context of a “means to an end” – the instrumentation of finance to generate wealth-building activities. Financial resources (debt capital, equity capital, deposit funds, working capital, etc.) are evolved tools for driving resource allocation.

Our capital markets have matured and fostered innovation because, like our culture, they embrace and help us calibrate risk-taking. Devoting a significant amount of financial resources to a risk-taking enterprise is inappropriate for a person of limited means with certain obligations and monthly cash flow needs, lacking the capital to absorb losses. But the great projects that enhance our quality of life represent the risk of failure. Bank depositor money has only a limited capacity for loss absorption; a widow’s retirement savings might have no capacity for loss absorption; but money pooled and targeted for equity investment contains the risk-reward character suitable for investment. That our financial markets have developed, further, into more complex structures for both debt and equity, as well as various securitized options, does not alter this basic fact: Money is a mere instrument in allocating resources.

Have financial markets in the economy over the last five decades put downward pressure on capital expenditures, as we are often told? Quite the contrary, the empirical support is overwhelming that the evolution of capital markets enhanced capital expenditures over the last fifty years. The trendline was broken after the global financial crisis, but the upward trajectory of capital expenditures is indisputable.

Likewise with “non-residential fixed investment,” the so-called business investment component of how Gross Domestic Product (GDP) is measured, we see a steady increase in tandem with financial markets evolution. A post-crisis interruption of trendline growth will be better explained shortly, but fundamentally business investment has stayed robust as financial markets have innovated, grown, and evolved.

Perhaps an increased role of financial markets in the economy has not hurt capital expenditures or investment into new goods and services (i.e. R&D, factories, inventories, machinery, etc.), but has siphoned off profits from other sectors. Those making that specious claim carry the burden of proving it, but the empirical evidence is not up for debate. As the financial sector has become a modestly higher percentage of GDP, total national income has risen, making obsolete the fact that the financial sector’s portion of that income has risen, too.

The claim that profits from trade and production have been replaced with profits from financial activity is incoherent at best and patently false at worst. Profits inside the financial sector are tangential to the underlying activity of resource allocation. The financial sector is certainly capable of incorrectly allocating resources. Inherent to risk capital is the possibility of loss. Do financial markets allocate capital, subject to the trade-offs of risk and reward, more resourcefully and efficiently thanthe alternatives?.

What are those alternatives? One option is significantly limited access to capital markets, thereby limiting the instruments available for economic output. Another option is to meet capital needs with an expanded role for the state instead of using private capital. Again, the contest is between robust financial markets, declining financial markets, and greater governmental allocation of resources. These are the options on the table, and this is so because of what a market is. Markets allocate resources based on the decisions of people operating in their self-interest. Condemning financial markets for easing the operation of natural processes hampers economic growth and invites crony corruption.

In defense of profits

The topic of corporate profits is integral to discussions of financialization. Financial markets critics worry that profits have become problematic, and that ‘financialization’ is to blame. For our purposes, it is reasonable to ask if we are concerned with how profits are generated, or if we are concerned with what is being done with profits. 

Many critics of financial markets claim that its profits are not connected to social productivity. This implies the existence of “socially unproductive” profits. Support for this view seems reasonable if we are talking about the profitability of certain unwholesome activities—strip clubs, online pornography, so much of the mindlessness of a gaming technology culture, etc.

But is the sentiment of “socially unproductive profits” putting a burden on profit makers and profit-seekers that is unfair?  The general objective of meeting the needs of humanity through a profitable delivery of goods and services is unobjectionable. Profits become problematic when they are ill-gotten (fraud, theft, corruption), and yes, many would concede that profits from legal but also immoral activities warrant discussion.  Yet the burden of creating fruitful and uplifting profit-creating activities belongs to the people in the market place and the associations and communities that constitute civil society – not the state. When undesirable activities occur, it is not the profit pursuit behind the activity that is the problem, but rather the problem itself. The last concern we should have with hired hitmen is their financial aspiration!

Concerns about “socially unproductive profits” is a category error that lacks a limiting principle. The creation of “socially productive” profits by disinterested third parties via intervention, cronyism, or some other form of central planning has to be read in the context of its trade-offs. The unintended consequences unleashed in this vision for society are catastrophic. It is not the burden of financial markets to resolve the tension that can exist between worthy social aims and profit-seeking activities. It is also untrue that financial markets exacerbate this tension. Because markets reflect the values, aims, interests, and intentions of free human beings, the financial resources behind these market-making endeavors will reflect the values of the people engaged in them. Demonizing the profit motive per se misidentifies the appropriate solution of moral formation and strong mediating institutions.

The financialization critique of profits is built on class envy and economic ignorance (not how profits are created, but what is being done with them). Robust financial markets allow for optionality that supports flexibility, choice, and future decision-making (for example, dividends, stock buybacks, and investing in corporate growth). Risk-taking owners receiving profits incentivizes future investment, promotes facilitates cash flow needs for investors, and enables consumption that satisfies other producers, and makes possible charitable bequests and other activities. Nothing in the prior sentence is possible without presupposing the existence of a profit. Optionality in what to do with profits is vital. The assumption that only the reinvestment of profits into more hiring, wage growth, further inventories, or other forms of business investment are appropriate is short-sighted, arrogant, and lacks factual evidence. Yes, some reinvestment of profits is generally warranted for the sustainability of a business. Many more mature companies reach a free cash flow generation that does not require additional capital reinvestment, but many do. Decisions around profit allocation are impacted by competitive pressures, company culture, investor desires, and other complexities.

What is not complex is that profits are the sine qua non of the entire discussion. Financial markets are a tool in generating profits whose very distribution is the subject of this discussion, and financial markets provide greater possibilities for how those profits are distributed. Profits themselves are not problematic, and in no way do financial markets “financialize” what is done with those profits. Optionality should be heralded, not condemned.

The usual bogeymen

At the heart of the modern crusade against financial markets are objects of ire: the institutions, innovations, and categories that become convenient targets for those who lament the role of the financial sector in the economy. As previously noted, these complaints are often reducible to rank class warfare. However, accepting the concerns at face value allows us to analyze many financial market innovations. This assessment should result in gratitude for capital markets, not condemnation. The following list is just an overview.

Private Equity

Perhaps no component of financial markets has become more caricatured and demonized than what is known as “private equity.” The words carry more connotation than just “equity ownership of companies that are not publicly traded.” The private equity industry is large, powerful, and dynamic, and has become a vital part of the American economy. To critics, this is something to bemoan. An objective analysis comes to a very different conclusion.

At its core, private equity represents professional asset managers serving as general partners, putting up some equity capital themselves (in amounts that can be majority ownership or often very limited), raising further equity capital from professional investors as limited partners, and taking ownership positions in companies. While the ownership is usually a majority position, it is almost always intended to be temporary (assume 5-7 years as a median hold period), and is very often financed with debt capital on top of the equity the general and limited partners put in.

The targets being acquired may be distressed companies whereby some enterprises have suffered deterioration and distress, and the hope is that new capital, management, and strategy may right the ship. But often the targets are highly successful companies that have achieved a certain growth rate and strong brand, but require additional growth capital to scale, more professional or seasoned management, or some synergistic advantage that a strategic partner can bring. And beyond the objective of “repaired distress,” and “growth and scale,” there is often an exit strategy for founders and early investors who can monetize what they have built by selling to new investors who could have any number of strategic or financial considerations in the acquisition (roll-ups, ability to introduce greater operational efficiency, etc.). Motives and objectives of buyers and sellers vary across private equity, and the industry’s growth and success have facilitated a highly specialized, niched, and diversified menu of private equity players.

There are various arguments made against the industry that are sometimes at odds with one another (they return too much capital to the owners compared to workers; but also, the returns are terrible and the industry is a sham). Opponents see private equity as either too risky, too opaque, too illiquid, too conflicted, or too unsuitable for the common good of society. Each concern deserves analysis.

First, the notion that private equity returns are terrible ought to be the greatest encouragement to the cottage industry of those concerned about private equity. If the returns on invested capital coming back to private equity investors were terrible, or even subpar, in any market known to mankind this industry would self-destruct over time. Sponsors would not be able to raise money. Limited partners would find other alternatives for the investment of their capital. Even acquisition targets (who generally carry some skin in the game) would seek better buyers out of their self-interest. Could some constituency of “sucker” leave some lights on longer than one might expect? Sure. But as a growing, thriving, popular institution in capital markets, private equity would evaporate if it were not generating returns that satisfied its investors. This strikes rational market students as obvious. Now, the range of return outcomes has historically been much wider for private equity managers than public equity managers, and the delta between top-performing managers and bottom-performing managers is much wider in private markets than in public markets. This is an advantage to the space, as skill is more predominantly highlighted, and noteworthy advantages are more statistically compelling, purging the space of poor performers and attracting more capital to diligent asset allocators. But no rational argument exists for why the largest, most sophisticated investors on the planet (institutional investors, pension funds, sovereign wealth, endowments, and foundations) would maintain exposure to private equity strategies with either inappropriate fees or inadequate results. If one believed that private equity was damaging to economic growth or the public good, poor investment results would be the ally of their cause.

Second, opacity and illiquidity are features, not bugs. Entrepreneurial endeavors are not straight lines. Businesses routinely face headwinds, cyclical challenges, unforeseen circumstances, and interruptions to strategy. Likewise, investors routinely face emotional ups and downs, sentiment shifts, and volatility of temperament. That a reliable capital base exists in private equity which prevents the latter (investor sentiment) from damaging the former (the realistic time frame needed for a business to succeed) is a huge advantage to the structure of private equity. Of course, some investors’ circumstances render illiquidity unsuitable for them. The solution is not to strip the illiquidity advantage and patient capital that it presents from private equity, but rather for free and responsible investors to exercise agency, and not invest where not suitable. Private equity provides a highly optimal match between the duration of capital and the underlying assets being invested.

Opacity is similarly beneficial. The better way to say this is that public markets suffer from the curse of transparency, meaning that competitors, the media, and all sorts of interested parties with any kind of agenda, are made privy to the deepest of details of the company’s financials, disclosures, and circumstances. For clarity, this is a trade-off that publicly traded companies accepted for other advantages to being public, but it is just that—a trade-off. All things being equal, there is no reason that a business would want the world to know its trade secrets, and financial dynamics in near real-time, let alone challenges and obstacles, especially not its competitors. The opacity of being private is not a negative; it is a tautology (when a company is private, it is private).

Finally, there is the concern that private equity is a negative force for workers. Specifically, the argument goes that private equity’s pursuit of operational efficiencies, the use of debt to fund the acquisition itself and subsequent growth, and the period promised to investors for an exit, all pit the interests of capital against the workers. There is, however, a fatal flaw in this argument, and that concerns the empirical data. Private equity-owned businesses employ 12 million people in the United States, a 34 percent increase from just five years ago. Eighty-six percent of private equity-owned businesses employ less than 500 people, and half of all companies with private equity sponsorship employ less than 50 people[2].

Interestingly, the National Bureau of Economic Research[3] found that where net job losses did occur (three percent after two years of a buyout and 6 percent after five years), it was predominantly in public-to-private buyouts and transactions involving the retail sector. Put differently, 20 percent or more job losses were highly likely had a public retail company failed, but a “take private” transaction minimized those losses. The same study found that private equity buyouts lead to the rapid creation of new job positions and “catalyze the creative destruction process as measured by both gross job flows and the purchase-and-sale of business establishments.” In other words, those who claim private equity leads to worse circumstances for laborers must establish that the jobs lost would not have been lost anyway.

That investors are not driven by the employee headcount is a given, similar to workers who are not driven by the ROI for investors. The argument for free enterprise is that there is a reasonable correlation of interest between all these parties and that the natural and organic tension between labor and capital is healthy and best managed by market forces. Demonizing this specific facet of financial markets (private equity) for possessing the same embedded tension as all market structures are selective, dishonest, and unintelligible.

Private equity defenders need not avoid the facts of failure. Private equity-backed businesses do sometimes (albeit rarely) fail. The reason is that businesses often do fail. The dynamic nature of market forces, changes, trends, consumer preferences, macroeconomic conditions, cost of capital, competitive forces, manager skill, and company strategy all lead to the very real possibility of failure, or what we learn as children to call “risk.” That private equity is not immune to risk is not a criticism. According to the Bureau of Labor Statistics, 20 percent of small businesses fail in the first year, 30 percent fail by the second year, and 50 percent by the fifth year[4].  Small business suffers a high rate of failure (and attendant job losses) because small business is hard. A more stringent regulation of small business or vilifying small business, though, would seem absurd to most reasonable people.

What about the argument that private equity uniquely increases risk by its use of debt?  As we will see, there is a large actor in the American economy whose use of debt is threatening workers and the general welfare, but that actor is not the private equity industry. The capital structure of a business ought to be optimized to drive a healthy and efficient operation. Sub-optimal use of debt creates credit risk for lenders, and because debt is senior to equity in the capital structure, it threatens the entire solvency of the equity investors. In other words, ample incentives exist to prevent reckless debt use from doing damage. What is paramount, though, is that risk-takers suffer when there is a failure. Private equity works against the socialization of risk, but it doesn’t eliminate the existence of risk.

The private equity industry has added trillions of dollars to America’s GDP over the last four decades, employed tens of millions of people, added monetization and liquidity to founders and entrepreneurs, and created access to capital for talented operators who make the goods and services that enhance our quality of life. No part of this warrants skepticism or ire.

Hedge Funds

Similar criticisms exist for the hedge fund industry as private equity, in that many without skin in the game feel the fee structures and performance results are underwhelming. Again, it bears repeating that for the anti-hedge fund crowd, this outcome would be ideal. Indeed, over-priced and under-performing strategies have no chance of surviving over time. Some return-driven, self-interested investors must find something compelling within the hedge fund industry that keeps them returning for more.

That objective is a risk and reward exposure not correlated to the beta of traditional stock and bond markets. Idiosyncratic strategies may involve various arbitrage opportunities and the pursuit of mispriced securities and relationships, but the fee level and performance reflect an entirely different characteristic than that offered by broad stock and bond markets. This is not unknown to the investors of hedge funds but it is the entire point. Correlation is cheap (i.e. index funds), and non-correlation comes at a cost. Top-performing managers and strategies command a fee premium, and sub-par managers lose the Darwinian battle for assets. Market forces have a funny way of sorting this out, without the commentary of disinterested third-party critics.

Sebastian Mallaby’s masterful More Money than God: Hedge Funds and the Making of a New Elite[5] pointed out that hedge funds privatized gains and losses in the events of the 2008 global financial crisis, whereas the banking system allowed the socialization of losses even as gains had been privatized. Put differently, the banking system inherently poses systemic risks, risks that can be (and should be) mitigated and monitored. The hedge fund industry, though, represents an ecosystem of capital allocation, price discovery, information sharing, and profit-seeking, all with highly privatized risk and reward (as it should be).

Hedge fund criticism is always reducible to concerns the critics have with individual hedge fund operators (political, persona, etc.), or rank class warfare. That an alternative investment world exists where idiosyncratic trades can be executed, contrarian themes pursued, and various knobs of risk turned up and down (often with leverage and hedging) is an overwhelming positive to American enterprise.

High-Frequency Trading

High-frequency trading (so-called) has become a popular scapegoat for the anti-financial markets crowd. Advancements in digital technology have enabled complex algorithms to trade large blocks of shares of stock in nanoseconds. Those who have invested in this technology and infrastructure have bet on the ability of technology to identify opportunities and deliver value through speed and execution. Banks, insurance companies, and institutional investors can buy large blocks of stock quickly. Human decisions are disintermediated in favor of computers, and those utilizing high-frequency trading are accepting the trade-off that algorithms, speed, and execution will offer advantages over the cost of losing human interaction.

A trade-off is just that: a trade-off. The benefit of technological advancements in the trading of our capital markets has been unprecedented levels of speed and liquidity, which has meant dramatically lower costs of execution. Across our public stock and bond markets, trading costs are virtually zero, and bid-ask spreads are nil.

The advantages of high-frequency trading are obvious. But what about the disadvantages, and not merely the loss of human interaction the principal is now exposed to? Does this innovation pose the possibility of systemic risk, enhanced volatility, and system errors in our financial markets? Again, a better question would be: does high-frequency trading represent an exacerbation of those risks relative to what existed before it? Volatility, a mismatch of buyers and sellers, trading errors, and any number of market realities existed before high-frequency trading, and exist today (albeit with a bare minimum of instances of actual damage done). Market-making is a complicated business, and there is no question that high-frequency trading facilitates the making of a market (matching buyers and sellers, in this case at light speed). Opportunities for manipulation are highly regulated, and the net benefits from this innovation have spread to all market participants in greater liquidity, improved price discovery, and diminished trading costs.

Banks

From the days of the 1946 film It’s a Wonderful Life, the notion of a bank failure has been the subject of public fear and trepidation—and for good reason. Banks exist to hold customer deposits, facilitate customer payments from those deposits, and generate a profit by lending out those deposits at a positive net interest margin (i.e. the spread between interest paid to depositors and the interest collected on money lent out). Banks have largely been in the business of residential mortgage lending, but also handle 40 percent of commercial real estate lending in America[6]. Hundreds of billions of dollars of small business loans are also processed by commercial banks, funded by the capital base of the banks, which is largely depositor-driven.

That the banking business model effectively amounts to short-duration funding (i.e. bank deposits) being matched to long-duration loans (i.e. mortgages and business loans) is a theoretical flaw that is intended to be remedied by (a) Capital reserves, (b) Diversification, and (c) Quality underwriting. Liquidity issues can still surface when banking assets (the money they have lent out) prove to be longer duration than its liabilities (the money it owes its depositors back). Capital requirements mitigate if not fully eliminate, this risk, yet admittedly favor large banks to regional banks due to the disproportionate impact these requirements have.

Nevertheless, our financial markets, largely through trial and error and the lessons of experience, have increasingly presented the banking system as a store of value and a medium for payment processing, with engines of risk and opportunity increasingly coming from other aspects of financial markets. Banks still have a vital role to play in lending needs. Bank failures are increasingly rare, and competition has created ample optionality for the products and services banks offer (i.e. mortgages, credit cards, business loans, etc.).

Mergers & Acquisitions

Straight out of the class warfare playbook is the belief that investment bankers are money changers with no productive economic aim who are looking to squeeze money out of good and productive companies. Concerns about excess corporate deal activity are not limited to those who bemoan investment banking. Consider the words of one of the most highly regarded investment bankers of the last 75 years, Felix Rohatyn, atop his perch at Lazard in 1986:

In the field of takeovers and mergers, the sky is the limit. Not only in size, but in the types of large corporate transactions, we have often gone beyond the norms of rational economic behavior. The tactics used in corporate takeovers, both on offense and on defense, create massive transactions that greatly benefit lawyers, investment bankers, and arbitrageurs but often result in weaker companies and do not treat all shareholders equally and fairly … In the long run, we in the investment banking business cannot benefit from something that is harmful to our economic system.[7]

Like under-performing hedge funds or poor execution from high-frequency trading, the cure for bad Mergers and Acquisitions (M&A) is M&A. Markets will not support premiums irrationally paid for acquisitions (over time), and boards will not tolerate management eroding value through bad mergers (over time). Bad deals will happen, and good deals will happen, and short-sighted investment bankers will be incentivized to promote deals that do not represent good financial, strategic, or social sense. And yet, to not have access to robust merger and acquisition opportunities is to take away optionality in capital markets that are desperately needed. Competitive forces evolve over time in ways that can combine the embedded strengths of one company with the embedded strengths of another, creating value. The diversification of talent and subject matter expertise, properly channeled, is a huge benefit to our complex enterprise system and has allowed for the pairing of tremendous talent and corporate ecosystems that have created trillions of dollars of wealth. The simplicity of casting aspersions on all mergers and acquisitions because of the cases where some transactions proved ill-conceived is dangerous and harms economic opportunity. While it is incumbent on corporate management, company boards, and especially shareholders to resist unattractive M&A (that is, those with skin in the game), access to such innovation of capital markets is a vital part of our free enterprise system.

Dividends

Though not yet as demonized as stock buybacks, the return of corporate profits to minority owners via dividends is viewed as an example of ‘financialization’—as the favoring of owners of capital over the workers who help create corporate profits. Of course, these two things are not mutually exclusive. Owners are only paid dividends with after-tax profits, and profits are only realized after workers are paid. Dividends represent a substantial incentive to feed equity capital into businesses and therefore facilitate capital formation. The dividends then cycle through the hands of the risk-takers into their consumption desires or reinvestment aspirations. Any argument against dividends is an argument against profits, and an argument against profits is an argument against a market economy.

When we look at companies that failed after paying out dividends and buying back stock, the conclusion that it was a net loss to society requires an assumption of facts not supported by the evidence.  That company not returning cash or buying back shares but continuing to invest in a failed business is what would have eradicated value.  Cash to shareholders via share purchases or dividends allowed those owners to re-deploy capital in better businesses. And since dividends and share buybacks can only take place with after-tax profits, we are not talking about companies eroding the capital base of the company to pay them, but rather the allocation of profits after the fact.

Stock buybacks

Like dividends, share buybacks with after-tax corporate profits is a form of capital return to shareholders. As a professional dividend growth investor, I have ample reasons for believing dividend payments are a superior mechanism for the interests of shareholders. But the idea that share buybacks are inherently dangerous, short-sighted, or anti-worker, is demonstrably false. Once again, we are not talking about eroding the capital base of a company, but rather how to return capital to the owners of a business when that capital is enhanced by profit creation. Because many employees in public companies are paid via stock issuance (restricted shares, stock options, etc.), stock buybacks offset the theoretical expense that this form of executive compensation represents.

Examples exist of companies buying back stock at what is later revealed to be a high stock price, later running into cyclical challenges with the company operations, and having less cash to work through those times than they otherwise would have. All cases of a business challenge not perfectly predicted ahead of time are exposed to this risk. It does not address the underlying issue of share buybacks. If a company knew that it would later face an existential crisis and suffer a cash crunch, using the after-tax profits to pay down debt, pay bonuses to workers, or do anything other than increase reserves, would be unwise. This is not a unique burden for share buybacks, but rather a general challenge for businesses that are not guaranteed a perpetual path of easy profits.

Markets often provide incentives for corporate managers to use share buybacks more favorable to their compensation metrics than other forms of capital return. This is problematic. But it is a problem that must be addressed by those who bear risk, among managers, boards, and shareholders. The state has not proven itself a model capital allocator. For government to put its thumb on the scale of how companies allocate their capital is to invite distortion, corruption, and flawed information into economic calculation.

Passive ownership/indexing

Finally, there is the so-called passive ownership dilemma.  An enormous increase in the popularity of low-cost index funds has led to a wide disintermediation of ownership across public equity markets.  Passive stakes are voted on by non-beneficial owners like Blackrock and Vanguard. As the intermediaries who are legal owners, their agendas may conflict with the agendas of their customers. This issue can be solved in one of two ways: (1) Investors themselves will determine that their chosen intermediary is voting or operating in a way that does not serve their interests, and either choose a different intermediary or investment option; (2) Passive equity facilitators and managers will present innovations and options to solve for this tension.

The growth of passive/index strategy and the perceived power it gives these asset managers is a worthy conversation. It does not negate the substantial advantage of low-cost ownership and easy liquidity and access to public markets for investors, but it warrants attention and alteration to ensure that investors are receiving the best representation that achieves the highest returns on investment. Nevertheless, that attention and innovation are sure to be found in a combination of both #1 and #2 in the previous paragraph, and not by limiting the advent of passive equity ownership vehicles.

Cures that are worse than the disease

Opponents of financial sector growth have argued that the public interest calls for a variety of draconian measures to curtail freedom in capital markets. Introducing friction in financial sector activity by limiting its growth, protecting other economic actors, or generally reallocating capital in a way that central planners find more advantageous for the public good would accomplish this objective. All of these ideas carry unintended (or sometimes intended) consequences that would be counter-productive to the aim of economic growth.

A policy proposal to both suggest and critique is a special transaction tax on various stock and bond transactions in American public markets. Progressive politicians have taken advantage of the public popularity of this rhetoric (a “Wall Street tax”) to suggest that “free money” can be found by removing it from ‘financialization’ and into the coffers of the federal government for some spending initiative (Medicare for All, the Green New Deal, etc.). What is never understood, or otherwise is completely ignored, is that this money is not free. It comes out of financial transactions. This means that it becomes an additional cost to be borne by the private economy. The price may be paid by smaller investors who would incur greater trading costs, or it may be paid with less net money received in a particular transaction, leading to a less productive outcome over time for market actors rationally allocating resources. Regardless, it is not “free.”

Nor should we forget, it is not likely to work. Large institutions have resources outside of the United States for trading capital. Such a money grab would leave higher costs for smaller investors and sophisticated investors would pursue global options that avoid such a burden. Incentives matter, and the unintended consequences here would not curtail excesses in financial markets while raising money for other social aims. Rather, it would move money offshore, empower global competitors, and damage those who are not the target of the policy.

Some have suggested that making debt interest cost non-deductible would remove incentives to take on debt, thereby protecting workers in the case of companies exposed to excessive leverage. Of course, lowering the business income tax rates also better protects workers, and so removing a tool used to reduce that tax burden is simply the inverse when it comes to workers. Driving tax obligations higher does not protect workers. To the extent the policy succeeded in limiting debt, astute commentators might wonder what those costs would be. What is the debt being used for and what uses of capital would now be sacrificed if this policy suggestion prevailed? Will companies have less working capital, less liquidity, and be more susceptible to an equity sale (where job losses would be more likely, not less)? These expensive policy proposals have failed to count the costs, and in this case, the cost would be monumental. More than likely, the loss of deductibility of the debt would just be priced into the market rate of the loans, leaving less interest income for the lenders and banks, not a higher after-tax interest expense for the borrowers. In other words, it would be ineffective at best, and distortive at worst.

Various other proponents of de-financializing the economy suggest that increased tax rates would do this, including matching the tax rate on capital to the tax rate on income. The present tax policy is inefficient, but not for the reasons suggested by critics. Presently, a long-term capital gain of $100,000 creates a tax burden on the entire $100,000 in the tax year it was realized. However, a loss of $100,000 only allows for a $3,000 deduction in the year it was realized. This law was passed in 1977 but has not been updated for inflation. Furthermore, when a gain of $100,000 on capital is realized (real estate, stock, etc.), if their holding period was 10, 20, or 30 years, a significant part of the nominal gain was eroded by inflation, leaving the real gain to be a fraction of the total nominal gain. However, the capital gain tax is paid on the entire nominal gain.

Fundamentally, taxes on investment income are “double taxes”—as the money was already taxed when it was first earned (i.e. income), and now is facing additional tax when it is being invested (capital gains or dividends). But if that basic fact does not trouble the anti-finance constituency, the notion of matching income rates to investment tax rates can surely be done by lowering earned income tax rates. An increase in investment tax rates stifles capital formation, disincentivizes risk-taking, freezes capital in static projects, and impairs economic growth. If one wants to make a “fairness” argument for equal rates between tax on capital and labor, that fairness is already stretched in that the tax on capital represents a second tax on the same dollar. But if they persist in the fairness argument, lower ordinary income rates will likely be an agreeable solution for those wanting to protect capital formation.

From transaction taxes, to greater scrutiny of private equity, to changing the tax rules on debt or investment income, to various regulatory burdens on financial actors—no proposed solution from the anti-financial crowd serves workers or the cause of public interest. Rather, these and other proposed policy solutions invite hidden costs (and some that truly are not hidden), build state power, and damage broad prosperity.

Monetary and fiscal policy getting a pass

This concluding section can reasonably be called a tragedy. As was established in our early pursuit of a definition of ‘financialization,’ there is, indeed, an unattractive phenomenon that sub-optimally allocates resources. This ‘financialization,’ however, is not a by-product of more profitable investment banks, larger private equity managers, or increased technological capacity in capital trading. This ‘financialization’ where less productive activities take precedence over more productive ones is not created by Wall Street. Rather, the culprits are the very forces that the anti-finance critics are so often looking to play savior: the governmental tools of fiscal and monetary policy. In other words, the regulatory state, Congress, and the Federal Reserve are actors involved in this discussion, but not as fixers. The modern critics of finance have failed to identify the root causes of ‘financialization’ and in so doing have not only enabled the damage to continue but have invited them to do far greater damage, still.

No single factor has put greater downward pressure on economic growth than the explosion of government indebtedness, particularly, the ratio of that debt to the overall economy.

Common ground exists with those worried about diminished economic productivity and what that means to workers, and indeed, all economic actors. That common ground has not parlayed into shared despair over the growth of government spending, the growth of government debt, and the crowding out of the private sector both represent.

Furthermore, post-financial crisis monetary policy has been a series of gigantic monetary experiments that have served to do the very thing that critics of financial sector activity profess opposition to. Defenders of interventionist monetary policy may claim that it served to stimulate the economy post-crisis and to reflate the corporate economy as the household sector de-leveraged in the aftermath of the housing bubble. Yet even the most zealous defenders of that trade-off could not argue that such a monetary framework came at no cost. That cost was a substantial increase in real financialization.

The fiscal components are easy to identify. Government debt represents dollars extracted from the private sector either in the present or future tenses. A Keynesian would argue that such debt when used for productive projects like the Hoover Dam adds to GDP (a positive multiplier). However, present debt explosions have not been to build a Hoover Dam. Post-crisis spending exploded above the trendline, well before the 2020 COVID pandemic. The spending response to COVID created a huge outlay of expense, unfortunately as the pandemic subsided and all pandemic-related expenditures were completed, expenditures resumed far above the trendline, and far above the level of economic growth.

The federal government is doing what Goldman Sachs, Blackstone, and JP Morgan have never done—removing resources from the productive portion of the economy to the non-productive. It is outside the scope of this paper to evaluate what government spending projects ought to be. One can believe that current spending priorities are legitimate without believing they are productive. Some cost of government is necessary, and that funding will come from the private sector. However, when the cost of funding the government grows exponentially quicker than its revenue sources, and when the level of debt accumulates to the absolute levels it has, and with the annual debt funding costs it has, then declining productivity is the ultimate result.

Economic growth pulled into the present means less economic growth in the future. In the current debt predicament, this is not even economic growth pulled forward, but rather the accumulation of seemingly endless transfer payments. This extraction of wealth from the private sector to fund income replacement does not produce anything nor build anything. A real GDP growth rate that has declined from over +3% to below +2% measures the impact on economic output.

The monetary component of this strikes at the heart of resource allocation. If the Federal Reserve was tasked with holding interest rates at a natural rate, it would be at that level where economic activity would be most “natural”—where the interest rate was neither incentivizing nor disincentivizing economic activity. For 14 of the last 16 years, the Fed held the interest rate at or near zero percent, well below the natural rate in all but the most extreme crisis years out of 2008. That artificially low cost of capital extended the lifeline of many over-levered economic actors, and in the early years of post-crisis economic life likely facilitated some productive reflation. Yet over time, the perpetual zero-bound rate target encouraged economic actors to bypass the production of new goods and services for financial engineering. Incumbent assets in the economy—real estate or equity stock already in existence—could be bought and levered with little financial risk, with the low cost of leverage intensifying returns for these economic actors. Such activity was far more attractive than the creating new projects, sinking capital into new ideas, and innovating with one’s capital at the risk of loss. The zero-bound was a substitute for new goods and services, and it has taken a toll on productive economic investment.

Likewise, a prolonged unnaturally low rate facilitated ongoing resources into sub-optimal assets, keeping “zombie” companies alive where a natural cost of capital would have expedited their demise. While seemingly generous in its impact, the real cost of this process is in the resources that do not work their way to innovation, new growth, and new opportunities. Overly accommodative monetary policy extends the lifeline of those whose time has come and gone preventing fresh ideas from receiving the capital and human resources they need to breathe life into the economy. It fosters malinvestment, distorts economic calculation, and wreaks havoc on economic growth.

The twin towers of fiscal and monetary policy are powerful economic levers. On one hand, the fiscal tool crowds out the private sector and inhibits innovation by taking from the growth of the future to fund excessive spending today. On the other hand, the monetary tool uses the cost of capital to manipulate economic activity, ignoring the diminishing return and obvious distortions created by their efforts.

If one is looking for a malignant financialization, they have found it, and Wall Street is nowhere near the scene of the crime.

Conclusion

Critics of financialization have:

Ambiguously or inadequately defined the term,

Used a critique of the financial sector to disguise class envy,

Failed to understand the nature of markets and the primacy of resource allocation,

Demonized instruments of financial markets that have been overwhelming positives for economic growth,

Proposed policy initiatives that would unilaterally do more harm than good, and

Worst of all, failed to see the most egregious actors in that which distresses them: Excessive government debt and excessive monetary policy

An optimal vision for the economy does not favor the financial sector over the “real economy,” nor does it pit the financial sector against the real economy. Rather, an optimal vision sees financial markets as capable instruments in advancing the economic good and public interest. A large public bureaucracy cannot improve the economic lot of workers, and diminished financial markets cannot optimally allocate resources to the real economy.

The need of the hour is better price discovery, starting with the price of money. The cost of capital as a tool of manipulation in the hands of our central bank has facilitated ‘financialization’ and hampered productive economic activity. The tools of modern finance can advance the cause of prosperity when we limit distortions in economic decision-making, maximize the availability of resources in the sector of the economy most equipped to utilize those resources productively, and remove impediments to growth.

Human beings are capable of great things. Advanced financial markets enhance those capabilities and build opportunities for the future.

[1] For an entire case study on poorly defined ‘financialization’ and ignoring data to allow a false narrative to stand, or twisting to data to create a false narrative, see https://americancompass.org/yes-financialization-is-real/, by Oren Cass.

[2] American Investment Council, Economic Contribution of the U.S. Private Equity Sector, Ernst & Young, May 2021.

[3] National Bureau of Economic Research, Working Paper 17399, Private Equity and Employment, Jan. 1, 2012.

[4] Bureau of Labor Statistics, Survival of Private Sector Establishments by Year, March 2023.

[5] More Money than God: Hedge Funds and the Making of a New Elite, Sebastian Mallaby, Penguin Press, June 2010.

[6] MacKay Shields Insights, Mark W. Kehoe, Banks and Commercial Real Estate, April 11, 2024.

[7] The New Crowd, Judith Ramsey Ehrlich, Harper Collins, January 1990.

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Signage at the East River Plaza mall in Harlem, NY reflects grocery options competing side-by-side, including warehouse clubs and discounters. 2021.

Nearly two years ago, Kroger and Albertsons, America’s two largest traditional brick and mortar supermarket companies, agreed to a $24.6 billion merger. Ever since, the Federal Trade Commission has argued against allowing the merger, claiming that it would “lead to higher prices for groceries and other essential items” and “lead to lower quality products and services.” 

That led to a just-completed hearing (whose results have not yet been announced) about whether to grant an injunction against the merger, until the FTC takes its case before one of its administrative law judges. There are also state level challenges. On the other hand, Kroger has sued to challenge the constitutionality of the FTC trying their case before a “home team” ALJ rather than an actual trial in federal court.

However, the picture the FTC is painting of the “biggest getting bigger,” leading to consumer harm, is so muddled it cannot support their argument.

To begin with, simply looking at the increased number of stores in a merged K-A chain–to over 5,000–is far less indicative of any increased market power than it is being presented as. The reason, seldom even mentioned, is that “the vast majority of Kroger and Albertsons stores are in markets where the other is not located.” That means that in the vast majority of areas, where their footprints do not significantly overlap, merging the chains will create no increased market power to harm consumers. In all those places, the FTC case that merger will cause consumer harm collapses. In contrast, the claims in support of the merger, that it will allow merged operations to lower costs and make them more effective competitors for shoppers’ patronage at all their stores, still makes sense. 

The magnitudes involved are instructive. Most measures put the number of overlapping stores at about 1,400 (roughly 28 percent). How believable is it that K-A would go to the great expense of integrating all their operations just to be able to raise prices in no more than 28 percent of their stores? Not very.

In addition, not every case where the chains’ stores are in proximity would cause competitive concerns. I live in one such area. My wife and I live roughly a mile from a Ralphs (Kroger) and a mile in the other direction from a Vons (Albertsons), and between us, we shop at both of them multiple times in most months. But if they merged, it would not be a competitive disaster that puts us at risk. We are even closer to a Trader Joes and a Sprouts (in what was previously an Albertsons store) which we also shop at. We are two miles from a Walmart neighborhood market and a Target with a sizeable supermarket section. We are within 5 miles of Costco (and another one is being planned even closer to us), Sam’s Club, a Walmart Super Center and an Aldi. We also use Amazon and Instacart to get groceries. There is intense competition, whether or not Vons and Ralphs merge. But if that merger made them a stronger, lower-cost competitor, we would gain as consumers. And our case is not so unusual. Supermarket News has reported that “the average family today shops at five different grocers on a regular basis.”

Even if we ignore the fact that proximity does not equate to monopoly power to abuse consumers, it would only require roughly 700 divestitures (half of the number of overlapping stores, or 14 percent percent of the over 5,000 combined stores)–to address all such market power concerns. And Kroger has from the beginning offered to make divestitures to ameliorate the FTC’s competitive concerns (which have long been satisfactorily utilized for that purpose in grocery mergers), making it all but impossible to believe that such a Kroger-Albertsons merger would harm consumers. Interestingly, the FTC argued that the company who would manage the divestitures (C&S Wholesale Grocers) might not operate as efficiently as Albertsons, which would undermine competition. But since Albertson’s costs are reportedly higher than Kroger’s, the FTC is essentially admitting the case for the K-A merger increasing their efficiency. 

We must also understand that in antitrust, the higher the market share forecast to result from a merger, the greater the presumption of greater monopoly power and harm to consumers, and the more likely the FTC could prevail in litigation (despite a recent series of court losses due to its over-reaching). That provides a FTC determined to win with a massive incentive to manipulate market definitions to make monopoly power appear even where it doesn’t exist. For instance, say you had a small store on a street corner which sold salt, among other things. If it was the only store on that corner selling salt, defining the relevant market as sellers of salt on that street corner would make you a monopolist, even though you had no market power in fact. 

That explains why the FTC has in this case reached back into their long-rejected 1960s bag of anti-consumer tricks to get their desired result, aiming to uphold Justice Potter Stewart’s famous dissent that “The sole consistency I can find is that, in [merger] litigation under Section 7 [Of the Clayton Antitrust Act] ‘the Government always wins’.” Or as I put it elsewhere, “The government’s desire to demonstrate monopoly power to justify the rejection of a merger led to a cottage industry of sorts, finding ways to distort measures…to find monopoly power where there was no power to hurt consumers.”

In recent years, the FTC has defined the relevant market for such mergers as including “traditional” brick-and-mortar supermarkets (of which Kroger and Albertsons are the largest) and food and grocery sales at hypermarkets (Walmart supercenters). Further, they have viewed the relevant market as only including stores where a consumer could purchase all or nearly all of their household’s weekly food and grocery needs at a single stop at a single retailer, within a range of between two and 10 miles (depending on circumstances).

That definition is nowhere near reasonable today, unless that the goal is to maximize the apparent monopoly power a K-A merger would create, in spite of the current grocery market being perhaps the most competitive one in history. 

Walmart stores that are not supercenters are excluded. But Walmart and Sam’s Club have more than 5,300 stores, and its grocery revenue is more than twice that of Kroger and Albertsons combined. And when it comes to local competition, it is worth noting that 90 percent of the US population lives within 10 miles of a Walmart store.

Wholesale club stores, like Costco (and Sam’s Club and BJ’s Wholesale Club) are omitted from that definition of the market, which is particularly problematic because they also have a larger catchment area than supermarkets. Further, it is hard to see how they are not part of the relevant market when roughly 40 percent of Americans are Costco members, an average Costco (the world’s second largest grocer) store sells five times the groceries of the average US supermarket, and Costco does half again as much business as Albertsons.

Online sellers like Amazon/Whole Foods are also excluded, even though it is the worlds’ fifth largest grocer, and closing in on Albertsons. Aldi (also owner of Trader Joe’s) is excluded (as a “hard discounter” or “limited assortment” store), even though a quarter of Americans now shop there. Instacart sales are excluded, as are natural and organic markets and ethnic and specialty stores.

Looking at the broader grocery market also undermines the FTC claims. Kroger might be the biggest traditional grocery retailer, but they sell fewer total groceries in the US than Walmart, Amazon, or Costco. Even after the proposed Kroger-Albertsons merger, it would only represent 9 percent of those grocery sales. And while a Kroger-Albertsons merger would appear to threaten competition based on their share of the FTC’s market definition, traditional supermarkets have been losing a great deal of market share to those excluded from that definition, showing just how effective they are as competitors. Since 1998, warehouse clubs and supercenters have seen their share of retail grocery sales double, while supermarkets’ share dropped by more than a quarter. In 2020, 98 percent of people who regularly bought “center aisle” products like paper towels, cleaning supplies and canned goods bought them at a grocery store, but by 2023, 37 percent said they bought none of those goods in a grocery store, largely shifting to online purchases. And now about one out of eight consumers buy their groceries “mostly” or “exclusively” online.

These results are summarized by the National Academies of Sciences description of the retail grocery sector as “highly competitive,” largely due to the growth of warehouse clubs, superstores and online retailers, which are overlooked by the FTC’s market definition, not threatened with monopolization by the prospect of a Kroger-Albertsons merger. And no amount of repetition of claims that consumers are being protected by the FTC’s actions makes it true.

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Artist’s concept of a central bank digital currency.

When it comes to designing digital currencies that protect the identity and transactions data of their users, developers have made a lot of progress in a relatively short period of time. It is technically feasible to design a retail central bank digital currency — or, CBDC — that promotes financial privacy. But one must also consider what is politically feasible. Unfortunately, there is little prospect that the United States government would actually adopt a privacy-protecting CBDC.

If adopted, a CBDC will eventually — if not initially — be used to surveil the transactions of Americans.

The government is already using existing technologies to surveil its citizens. There’s no reason to think the government would give up its ability to monitor transactions with the introduction of a CBDC. Indeed, it seems much more likely that the government would seize the opportunity to expand its capabilities. Therefore, it is absolutely crucial to maintain a private banking system firewall between the government and our transactions data.

Let’s start with the status quo. The government has essentially deputized the private banking system to monitor customer transactions. Banks keep records on customer transactions, which the government can access by subpoena. The government also requires banks to report suspicious activity and currency transactions in excess of $10,000.

As Nick Anthony at Cato has shown, the real (inflation-adjusted) reporting thresholds have gradually declined over time. When the Bank Secrecy Act rules were rolled out in 1972, banks were required to report currency transactions worth $10,000 or more. If that reporting threshold had been indexed to inflation, it would be around $74,000 today. Since it wasn’t indexed to inflation, banks must file many more reports today on transactions worth much less than those that would have triggered a reporting requirement in the past.

Other thresholds are even lower. For example, money-service businesses must obtain and record information for transactions worth just $3,000.

The government vigorously defends its ability to monitor transactions. It prosecutes those making transactions just below reporting thresholds —a separate crime called structuring. It seizes cash and collectibles, which make it more difficult to monitor transactions, even in cases where there is no evidence of criminal activity. And it undermines new financial privacy-protecting technologies.

Consider the government’s response to cryptocurrencies, some of which offer a high degree of financial privacy. The Financial Crimes Enforcement Network requires cryptocurrency exchanges to register as money-service businesses and comply with Know Your Customer requirements. If transactions can ultimately be traced through the blockchain to these on- and off-ramps, then the financial privacy that cryptocurrencies offer is largely eroded.

Consider the government’s response to cryptocurrency mixing services, which make it more difficult to trace one’s transactions back to an exchange where his or her identity may be discovered. The Office of Foreign Asset Control has added the wallet addresses of mixing services to the Specially Designated Nationals and Blocked Persons list, effectively making it illegal for Americans to employ those mixing services.

Why would a government work so hard to ensure it can monitor transactions just to turn around and issue a financial privacy-protecting CBDC? Again: it seems much more likely that the government would issue a CBDC that bolsters its ability to monitor transactions.

The ostensibly private messaging service ANOM serves as a useful comparison. ANOM was not private. Unbeknownst to its users, ANOM was actually the centerpiece of the Federal Bureau of Investigation’s Operation Trojan Shield. Messages sent using the ANOM app were not only delivered to recipients, but also to the FBI’s database.

The FBI maintains that it did not technically violate the fourth amendment by using a backdoor in the messaging app to snoop on US citizens, because it transferred the data to Lithuania, where foreigners would snoop on US citizens and then tip off the FBI when illegal activity was suspected. Think about that. The FBI developed the ability to spy on US citizens, promoted the use of the enabling technology, and then handed the data collected by this technology over to foreign nationals in order to circumvent the Constitutional constraints designed to safeguard US citizens from such activities. These efforts not only undermined the due process afforded to criminals — though that would be bad enough. It also facilitated the snooping on perfectly lawful messages. Some of these messages involved intimate details shared between romantic partners. Others involved protected conversations between attorneys and their clients.

If the government will build a backdoor into a messaging app — and has been caught trying to bribe engineers to install others — then one should expect it will build a backdoor into a payments app, as well.

Americans do not have much financial privacy today. We would have even less financial privacy if not for the private banking system firewall between the government and our transactions data. This firewall isn’t perfect. But it is better than nothing. 

To see how such a firewall promotes financial privacy, consider the Internal Revenue System’s efforts to access the customer data of Coinbase in 2016. At the time, Coinbase was boasting that it had 5.9 million customers — many more than had reported crypto holdings to the IRS. Citing this discrepancy, the IRS secured a John Doe summons.

In 2017, I described the summons as follows:

Basically, the IRS wants any and all information that Coinbase has so that it can sift through that information for the slightest hint of misreporting. It has requested account registration information for all Coinbase account holders, including confirmed devices and payment methods; any agreements or instructions that grant third party access or control for any account; records of all payments processed by Coinbase for merchants; and all correspondence between Coinbase and its users regarding accounts.

Needless to say, the scope of the summons was very broad.

Recognizing the duty — and, perhaps more importantly, the profit motive — it had to protect its customers, Coinbase appealed. Eventually, the courts decided that Coinbase would have to hand over some customer data on around 13,000 high-transacting users.

Kraken has also resisted an overly broad summons to hand over customer data to the IRS, to similar effect.

I hold the old-fashioned view that, in a liberal democracy, the government should have to demonstrate probable cause before acquiring the authority and ability to sift through one’s financial records. The degree of financial privacy afforded by the current system certainly falls short of that standard. Nonetheless, it affords much more financial privacy than one could reasonably hope for if the government held the data, as would likely be the case with a CBDC.

Financial privacy is very important for a free society. What we do reveals much more about who we are than what we say. And what we do often requires making payments. In order to exercise our freedoms, we must be able to selectively share the details of our lives with others — and withhold such details from those who would otherwise use them to harm us.

We should take steps to bolster financial privacy in the United States. The introduction of a retail CBDC would be a step in the wrong direction.

Table of Contents

Introduction

Prolegomena To Any Future Federalism That Will Be Able To Present Itself As Such

The Necessary Conditions of All Possible Experience of Competitive Federalism

Cartels at Every Level

Against Perpetual Peace (Among the States): The Supreme Court’s Federalism, So-Called

Energy in the Executive, and the Court

Conclusion

References

Download the Explainer

Introduction

Some three decades ago, Federalism! resonated in demands for congressional term limits, restrictions on Congress’s commerce powers, and support for the Supreme Court’s state-protective jurisprudence. Those days are long gone. The conservative agenda has shifted; its more libertarian contingents have devoted themselves to the project of re-limiting a centralized, sprawling “administrative state.” Still, federalism remains a fixed star in our constitutional firmament. States remain the default setting of American politics, from federal elections to the nuts and bolts of day-to-day politics and administration. There are reasons to be cautiously optimistic about a rejuvenated federalism—provided one understands federalism properly, and provided key institutional players discern the opportunities.

Federalism is a “they,” not an “it.” Good federalism is competitive federalism. It compels junior governments—states—to, well, compete for the talents, affections, and assets of mobile citizens. Consumers and producers can sort themselves into jurisdictions that provide an attractive mix of amenities and public services at an acceptable tax price. Call it preference satisfaction: more people get more of what they like. Successful state experiments may induce others to follow; the dispersion of state school choice policies over the past decade may be an example of such “yardstick competition.” Finally, the fear of losing productive firms and citizens may help to discipline spendthrift, overregulating state governments.

Competitive federalism’s antithesis is “cooperative federalism,” which envisions the states and the central government not as rival power centers but as partners in a collective enterprise. That enterprise is the production of a social-democratic model, characterized by high transfer payments, copious social services, and an ample supply of environmental amenities, nowadays mostly related to climate policy. I have described this arrangement as “cartel federalism,” the better to capture “cooperative” federalism’s central institutional dynamic: to wit, the displacement of institutional competition with the production and distribution of rents among politicians, bureaucrats, and concentrated industry sectors.

Competition among governments resembles competition in private markets in this respect: most producers loathe it. State governments that try to satisfy a high demand for redistributive policies also run a high risk of out-migration. To curb the flight risk, they collude and induce the federal government to suppress competition on important margins and, ideally, all of them. Barring unusual political conditions (about which more below), those state demands meet with ready supply by Congress. Witness federal labor protections, workplace safety rules, and “cooperative” arrangements from Medicaid to the Clean Air Act. It is a common but bad mistake to label those exertions as nationalist impositions on the pitiful states. They are mostly demand-driven by states—more precisely, their political elites.

In earlier writings, ranging from my academic tome, The Upside-Down Constitution to a Mercatus Center booklet titled Federalism and Constitution: Competition versus Cartels to more journalistic entries such as a recent National Review essay “How the Roberts Court Mangles Federalism” I have argued (not very originally) that competitive federalism has numerous advantages if you put a premium on living in a reasonably free and prosperous society. More controversially, I have tried to show that our Constitution facilitates (and, rightly understood, nearly commands) competitive federalism. This essay connects the dots in the contemporary federalism landscape and touches on high-toned law and economics jazz to shed light on competitive federalism’s present condition and prospects.

Those “dots” lie in plain sight: the ruinous state of our public finance; the raging contentions between “red” and “blue” states; the grim brawl over “climate policies” that have no prospect of reducing global temperatures by a single degree; and the federal courts’ increasingly prominent role, which they have yet to comprehend. This all hangs together in a way that should encourage federalism’s true friends.

Prolegomena To Any Future Federalism That Will Be Able To Present Itself As Such

In a widely cited article, Stanford economist Barry R. Weingast identified the parameters of competitive, “market-preserving” federalism:

States underneath a central government possess sufficient institutional authority and integrity to engage in political and economic competition over “some range” of fiscal, labor, educational, environmental, and other salient policies.

States have autonomy over conduct within their jurisdiction, provided (a) they permit free entry and exit and (b) their activities do not cause excessive externalities. Enforcement of these conditions is entrusted to the central government.

Competitive federalism requires limits on federal transfer payments made to subordinate governments.[1]

Look at this list, and then our federalism: your heart sinks. Formally at least, the powers of Congress reach into every nook and cranny of daily life. States’ autonomy has been severely limited and compromised. “Cooperative” federalism dominates in most domestic policy arenas: education, disaster relief, and health care, to name a few of the more significant pieces. These federal-state arrangements appear immune to any serious reform effort.

Federal transfer payments to state and local governments are hardly “limited.” In 2023, they equaled $1.1 trillion, or roughly 18 percent of all federal outlays. A small share ($48 billion) pays for roads and other pieces of our crumbling infrastructure. In contrast, Medicaid accounts for 56 percent of transfer payments ($616 billion). The program has grown by leaps and bounds over the past quarter-century—first, because of the Patient Protection and Affordable Care Act (ACA); more recently, through “emergency” Covid funding. Toss in $167 billion for various forms of “income security”: the overwhelming portion of federal payments bankroll current consumption and straight-up income transfers to state budgets. Worse, the programs have become increasingly debt-financed.

Federal transfers and conditional funding programs have proven to be the Achilles heel of competitive (constitutional) federalism for a full century. The programs erode state autonomy. They create fiscal illusions, inflate the demand for public services, and produce bloated intergovernmental bureaucracies with powerful interest group support. (Federal education funds benefit students only incidentally. Mostly, they inure to the benefit of the National Education Association.) Persuasive critiques of this regime have come from many quarters, including the first Reagan Administration. Yet meaningful reforms have failed to materialize, and the programs have continued to grow.

However, things look substantially better concerning points (1) and (2). States, Weingast et al write, must have sufficient autonomy to compete over some range of policies. “Competitive federalism” is a question of more or less. At one end, we do not want or permit state competition over the basic attributes of equal citizenship. Conversely, no central government can erase state competition on every margin.   

How wide, then, is the range? By international comparisons, American federalism is still among the most competitive in the world, alongside Switzerland. States compete vigorously. At least, their political leaders think so. Not long ago, Florida Governor Ron DeSantis and California Governor Gavin Newsom—back then, still presidential aspirants; since replaced by candidates from those two states—engaged in a highly publicized debate over their states’ social and economic models. Think tanks and trade associations rank states on numerous metrics—business, climate, housing affordability, and even religious liberty.[2] The copious supply suggests a demand.

The Necessary Conditions of All Possible Experience of Competitive Federalism

Prospectively, the question is whether competitive federalism’s range will expand or contract. As a rule, you want to bet on its erosion. Specifying competitive federalism’s formal conditions is easy; sustaining them over time is fiendishly hard. Try locking political elites into a regime that disciplines and constrains them: over time, they will figure out a way to establish cartels. State cartels, moreover, have a crucial advantage over private producer cartels: they are represented, via their states’ delegations in Congress, in the central government that organizes the requisite transfers and prevents defections.  Thus, competitive federalism can thrive only under unusual political conditions.

The most crucial condition is enough states that cannot be bamboozled or bribed into cartel arrangements. They must stand firm against blandishments, on matters they deem of existential interest to their internal governance. The divide need not be fifty-fifty. Given the legislative hurdles to enacting a federal law, there must be enough states to block cartelization.

Tragically, the issue that kept federalism competitive through the antebellum era was slavery. There could not be a Commerce Clause so broad as to permit Congress to govern that most “internal” of state affairs, and the idea of bribing states into a slavery-but-not-too-much-of-it cartel was too absurd to have occurred to anyone. Compartmentalizing the intractable issue along state lines was the only path.

Slavery is mercifully long gone—not because of some federalism compromise but of Grant v. Lee. But history offers other, less harrowing examples of competition-protective political constellations. Early twentieth-century federal prohibitions against child labor, for example, were an attempt by progressive states to wipe out the advantages of producers in less regulation-minded states. (All states already had child labor prohibitions at the time, though not as strict as the federal statute.)  After the Supreme Court invalidated the federal statute in Hammer v. Dagenhart, 1918, efforts to establish a uniform national standard foundered on the opposition of some 16 states—at the time, enough to block even proposed constitutional amendments. Not until 1938 did child labor prohibitions appear in a federal statute (the Fair Labor Standards Act).  By then, child labor had effectively disappeared (except on farms—which, sure enough, were exempted from those provisions of the FLSA).

Today’s political environment, too, features a stable, cohesive bloc of pro-competitive and uniformly “red” states, led by Texas and Florida. Their business model rests on low taxes, a relatively permissive regulatory environment, and (crucially, we’ll see) affordable energy. “Blue” states, led by California, New York, Illinois, and Massachusetts, champion an opposed, social-democratic model.   

Intense competition between these two blocs manifests itself in a high degree of out-migration of capital and labor from blue to red states. Texas and Florida have experienced substantial in-migration, especially for high-income earners. Disproportionately, those folks come from California, New York, and Illinois.[3]  

All this is known even to casual observers of American politics. Still, the sectional divide among the states features several underappreciated aspects worthy of note.

First, while there are reasons to lament the polarization of our politics, it has made competitive federalism more salient and resilient. Red states deem their advantages nonnegotiable, and they cannot be bribed or cajoled into federal schemes that they view as a threat to their business model. To this day, for example, ten states have resisted the considerable temptation to participate in the ACA’s Medicaid expansion.

Second, the regional divide between the states resembles that of the Gilded Age: anti-cartel states mostly in the South; pro-cartel states (New York, Massachusetts, Illinois) mostly in the North, now joined by California. Back then, however, the backward Southern states were the periphery of the American economy, that was dominated by the industrial and financial powerhouses in the North. Now, as noted, many of those same states are the most dynamic, fastest-growing jurisdictions, while blue states are bleeding businesses, well-to-do citizens, and congressional seats. In that crucial respect, competitive federalism is alive and well.  It belongs to the winners.

Third, competitive policies tend to come in clusters. A typical low-tax state will also feature right-to-work laws, policies that support cheap and abundant energy, and a business-friendly environment. (It will also tend to resist “wokeness” and identity politics.)  While no citizen or business will migrate to a red state for any individual policy reason, everything happens on the margin; when many advantages come in a package, they do matter.

Conversely, pro-competitive states will view even incremental federal impositions as threats to their business model. For example, these states have resisted the National Labor Relations Board’s initiatives to re-classify large cohorts of workers and contractors as “employees” along with extending the reach of federal labor law in other ways. Those controversies between unions and employers have a pronounced federalism dimension. California wants a high minimum wage and other dubious entitlements and therefore demands them as a floor for the nation. Texas et al predictably resists California Uber Alles initiatives.

Fourth, the institutional forum matters. Outcomes differ when disputes are fought in Congress, administrative agencies, or courts. To be sure: Congress still exercises powers with profound federalism implications. An important example is the $10,000 cap on the state and local income tax deduction (“SALT”) enacted in the early days of the Trump Administration. That reform increased competitive pressures on high-tax states with large numbers of wealthy and high-income households. Almost surely, it hastened the exodus of high-income earners from those states. The SALT cap is scheduled to expire in 2025. The timing promises a major congressional brawl in the first year of the incoming administration.

Increasingly, however, the decisive federalism arena is a set of constitutionally unprovided-for actors—to wit, administrative agencies. As Yale Professor Abbe Gluck put it once, federalism’s contours were shaped by the Constitution, principally meaning the federal judiciary.[4] Then, federalism came from Congress. State bargains were haggled out in bipartisan committees whose members often had more in common with one another than with the rest of their parties. Now, the federalism arena is dominated by the Executive, under statutes that delegate vast regulatory and fiscal powers to administrative agencies.

An administrative government is a presidential, White-House-directed government. Thus, the exercise of regulatory power and the distribution of trillions of federal funds will be shaped by partisan calculations. The calculus will not always benefit states that are governed by the sitting President’s party. Especially in election years, federal funds and regulatory forbearance tend to be directed disproportionately at swing states that are within reach of the President’s party. Substantive policy objectives, too, may prompt a political “misdirection” of federal funds or regulatory demands. In the early years of the ACA’s implementation, for example, the Obama Administration’s HHS officials trolled the country and offered ever-more generous financial and regulatory terms to red-state officials, to persuade the laggard states to participate in the ACA’s Medicaid expansion. Similarly, the panoply of “green” boondoggles authorized by the Biden Administration’s Inflation Reduction [sic] Act may wind up disproportionately in red states, most of which still allow industrial facilities to be permitted and built within reasonable time. That said: under present conditions, competitive federalism is itself a partisan issue. Given the Executive’s dominance over federalism relations, that is the arena where the contentions will be fought.

And that, in turn, entails that many federalism disputes will return to the institutional arena where the Founders chiefly housed them and where its contours were defined for much of our history:  the federal courts. Over the past three-plus decades, just about every significant federal regulatory initiative has been subject to judicial intervention, often at the instigation of coalitions formed by state Attorneys General. Federal immigration policies, student loans, Covid policies, and environmental and energy policies have all been challenged by one state bloc or another.[5] And “bloc” is just the right word. Bipartisan litigation is a rarity. The state AG coalitions are grimly partisan, and they have remained remarkably stable.

With great regularity, the cases have ended up on the Supreme Court’s doorstep. Curiously, though, the Court has shown no comprehension of the federalism dynamics, nor for that matter its own central role. Understanding this perplexity requires a bit of political economy and historical context, and an excursion into the New Deal’s lasting, lamentable legacy.

Cartels at Every Level

Federalism requires robust constitutional safeguards, not simply against federal overreach but also and perhaps more so in federalism’s “horizontal,” state-to-state dimension. Any federal order will pose countless conflicts and coordination problems between and among states. There should be rules for such disputes.

Those rules can be supportive of state competition, or not. Most federal constitutions, for example, allocate tax revenues between the central government and the subordinate entities and then mandate a redistribution of funds from rich states to poor states. That is a constitutionally mandated cartel arrangement. Our unwritten New Deal Constitution enshrines a similar arrangement in the form of conditional funding statutes that put vast sums in the hands of state-level bureaucracies and are now unreformable. Our written Constitution, in contrast, contains nothing of the kind. Instead, it teems with pro-competitive federalism provisions.

Competitive, “market-preserving federalism” requires free exit and entry between states. That’s the Privileges and Immunities Clause (Article IV Section 2— “the cornerstone of the union,” in Alexander Hamilton’s estimation).

The Constitution contains additional (qualified or categorical) prohibitions against state imposts and duties, interstate compacts, and laws impairing the obligation of contract (Article I Section 10).

States must give “full faith and credit” to each other’s records, proceedings, and public acts (Article IV Section 1).

From that general structure, one can readily infer another precept: equal states must have authority to govern their citizens and territory, not sister states’. The guiding principles are free entry and exit; non-discrimination; non-aggression; and comity.

Per Weingast, those conditions must be enforced “by the central government.” Which branch, though—the political branches, or the federal courts?

Legislative coordination will almost invariably proceed on terms European lawyers call “positive harmonization,” meaning a uniform or minimum standard across jurisdictions—distinct from neutral, market-preserving rules. Federal legislatures anywhere in the world are abysmal even at deciding what should belong to the central government and what should belong to the local governments. They are almost entirely incapable of deciding what belongs to which state—in other words, to make rules that delineate equal states’ jurisdictions vis-a-vis each other, on neutral, “market-preserving” terms. Any set of such rules will produce losers and winners, and the losers will demand protection or compensation—a “harmonizing” baseline for labor law, environmental standards, and countless other matters across the country.

Judicial coordination, in contrast, will invariably proceed on “negative,” market-preserving terms. The courts’ sheer lack of institutional capacity prevents them from conjuring up and enforcing harmonizing standards. They can, however, break down barriers to competition.

This holds across a wide variety of federal arrangements. In the 1960s and 1970s, for example, the European Union project was floundering. The Court of Justice of the European Union (CJEU, then still the ECJ) took it upon itself to produce an “ever closer union” by breaking down member-states’ protectionist barriers. For a time, the ECJ jurisprudence generated a much freer, more common, and competitive market. The interlude lasted for roughly a decade until the European Commission (EC) increased its capacity and produced what Margaret Thatcher, in a terrific put-down of EC President Jacques Delors, called “harmonization through the back Delors.”  

American history offers much the same lesson. Throughout the nineteenth century, the Supreme Court was the chief engine of economic integration. It broke down state trade barriers to interstate commerce. The Court’s principal tools were now-discredited doctrines: the dormant Commerce Clause, and federal general common law.

In the early decades of the twentieth century, though, Congress took over. In the New Deal era, the Supreme Court officially ceded the field. In pathbreaking decisions such as Wickard v. Filburn (1943) and Yakus v. United States (1944), the Court vastly expanded the powers of Congress and administrative agencies over the nation’s economy.  At the same time, decisions from Erie Railroad (1938) to International Shoe (1943) vastly expanded the states’ powers to govern transactions in interstate commerce without fear of federal judicial reprobation. The constitutional barriers were flattened, and the road was paved for unchecked cartel federalism of conditional funding programs and federal minimum standards.

For some three decades, this worked tolerably well. As already noted, federalism compromises were haggled out in Congress, by bipartisan committees that in turn closely supervised “their” executive agencies. Under their watchful eyes, the Federal Communications Commission administered the “Ma Bell” monopoly over long-distance calls, with a proviso to dole out some of the proceeds to local carriers. Congressman Jamie Whitten’s Agriculture Committee ensured that the Ag Department would cast a benign glance, if any, at state-sponsored cartels from Florida’s sugar producers to California’s Sunkist. Federal transfer payments greased some of those deals, but those payments remained limited (by modern standards) and chiefly funded infrastructure investments, not consumption.

None of this survived the Great Society, the vast expansion of the regulatory state, the inexorable rise of executive, and presidential government, and the partisan polarization of American politics at all levels. The bipartisan committees that once engineered federalism bargains are no more. Many of the cartels have broken, mostly for good. Ma Bell no longer rings except for octogenarians and disco fans. The “Detroit bargain”—domestic automakers’ protections for unions and a de facto exclusion of black labor in exchange for tariffs—is no more.

That form of Congressional mediation among states has been supplanted by various “green” subsidies on the supply side; competition between union and right-to-work states in the production process; and EV mandates on the consumption side. In short, the central “competition versus cartel” question that the New Deal had sought to settle has become fiercely contested between stable blocs of partisan states.

In that environment, one might think (or at any rate hope) that the judiciary would rethink a federalism order inherited from the New Deal, and instead re-assert constitutionally grounded rules to dampen sectarian litigiousness and to keep the states out of each other’s hair. However, the Court has failed to supply a single rule of that kind. In important respects, it has made matters worse. Federalism’s fate largely hangs on the Justices’ escape from self-imposed dogmatism.

Against Perpetual Peace (Among the States): The Supreme Court’s Federalism, So-Called

Consider two landmark decisions of the Court’s 2022-2023 Term. In National Pork Producers v. Ross, a splintered majority upheld a state statute prohibiting the sale of pork products in California unless the animals were raised under conditions deemed sufficiently humane by the state.  In the second case, Mallory v. Norfolk Southern, a narrow majority held that any corporation that registers to do business in a state thereby consents to the jurisdiction of that state’s courts even if neither the plaintiff, nor the defendant, nor for that matter the injury, had anything else to do with the state. In the case at bar, a Virginia railroad worker with temporary residence in Ohio sued a Virginia company over injuries sustained in Virginia. Naturally, he sued in Pennsylvania, where the trial lawyers reign and Norfolk Southern is perforce registered to do business.

Both decisions give carte blanche to states that contrive to govern actors and conduct in other states. The Pork Producers theory contends that any state can bar the import of goods from any state with supposedly odious production conditions: a state with or without right-to-work laws, or with or without medical leave for, say, late-term abortions. According to Mallory, any state may establish jurisdiction over any enterprise registered to do business in the state—that is to say, all of them. Both cases permit and incentivize states to “compete” on the least plausible margin: mutual aggression.

Justice Neil Gorsuch wrote both opinions, with an unwarranted snark, a proudly pronounced indifference to practical consequences, and the perennial refrain: If the pork people or the railroad barons don’t like it, they should go to Congress.

Pork Producers and Mallory directly address horizontal federalism questions (respectively, the dormant Commerce Clause and the scope of personal jurisdiction. Very similar questions arise in regulatory and administrative law cases. Administrative law scholars have designated their field “the new federalism,” because practically any comprehensive federal regulatory scheme will have massive distributive consequences between and among states. Often, regulators and state officials know who the winners and losers will be. Again, the Supreme Court’s opinions and decisions show no comprehension of the federalism stakes. The Court bears a great responsibility for helping fuel a “federalism” of mutual state aggression. Energy and environmental cases provide proof.

Energy in the Executive, and the Court

Energy and environmental cases constitute a disproportionate share of multistate litigation. An overwhelming number of those cases arise under and over the Clean Air Act (CAA); of those, the great majority have to do with the regulation of greenhouse gases.

The proximate cause of these contentions is a momentous 2007 decision captioned Massachusetts v. EPA. A 5-4 majority of Justices held that (1) the Commonwealth had “standing” to sue EPA over its failure to address greenhouse gas emissions from automobiles. States, you see, deserve “special solicitude in the standing analysis,” providing them with a right to sue in cases where no private party would have access to a court. The Court held that (2) greenhouse gases could and probably had to be regulated as “pollutants” under the “capacious” definition of the Clean Air Act (CAA).

En route, the majority deployed supposedly state-friendly rhetoric. Poor little Massachusetts could not do anything meaningful about climate change; the least it could expect was for the federal EPA to do its duty. This was and remains a complete and probably willful misunderstanding of federalism’s constitutional architecture and political economy.

A dozen-plus blue states supported Massachusetts. A roughly equal number of states, however, protested the initiative. Those, naturally, were red states, almost all with a large domestic fossil fuel industry and low energy prices. Despite Massachusetts’ artful pleading, the opposing states saw the initiative for what it was: a full-scale attack on the national energy industry and, consequently, producer states’ essential competitive advantage. Massachusetts v. EPA mentioned the inter-state aggression inherent in Massachusetts’ attempt to rope in a federal agency as its handmaid—the actual federalism issue in the case—with not a single word.

On a benign interpretation, the Massachusetts v. EPA Court attempted to cram the climate change question into Congress. (No one at the time thought greenhouse gases could effectively be regulated under a CAA built for conventional pollutants and localized pollution.) However, after the Obama Administration torpedoed a compromise cap-and-trade bill then rattling around in Congress, the carbon wars, unleashed by Massachusetts v. EPA, played out in federal agencies and the courts. The state coalitions have remained stable over the intervening 17 years (and counting). The states continue to litigate every EPA rulemaking on the issue.

Note well the competitive federalism aspects of the carbon wars unleashed by Massachusetts v. EPA. From any realistic environmental perspective, the agitation seems hard to comprehend. Even EPA’s most ambitious initiatives, from various permutations of the “Green Power Plan” to EV mandates, will do practically nothing to stem wildfires or rising sea levels—not a century hence, and surely not here and now.

Elected politicians (including state attorneys general) don’t usually have long time horizons. They do care about near-term calculable payoffs. Political elites in California, New York, or Massachusetts face a high internal demand for environmental amenities, or at any rate, belief satisfaction. Hence come fracking bans, state EV mandates, and other interventions that drive up the cost of energy. Such energy prohibitions immediately concern consumers and those producers who require reliable energy, from data processors to smelters. The only plausible way for “net zero” states to neutralize the attendant competitive and comparative advantages for “drill, baby, drill” states is to raise the price of energy in those states. Antitrust lawyers call that behavior “raising rivals’ costs.” The most viable way of achieving that end is to enlist the support of federal regulatory agencies, from the EPA to the Department of Energy to Federal Energy Regulatory Commission and National Highway Transportation Safety Administration. Et voila: the blue states’ relentless crusade for federally sponsored energy cartels, and the red states’ fierce insistence on protecting their considerable advantages on this vital margin. 

Over the years, the Supreme Court has grudgingly corrected course, but only up to a point. “Special solicitude” state standing is probably gone, and some of EPA’s more adventurous maneuvers to engineer a zero-carbon world, or perhaps to make the planet spin westward for a change, have fallen victim to restrictive judicial doctrines. None of that, though, provides much assurance. Once the Supreme Court has declared some interest group theater open, it rarely rings down the curtain. And the play is no fun—not for regulated enterprises who must fear that their long-term investments will be turned into stranded assets by the next administration, and not for production-oriented states.

Conclusion

We face a mixed picture for the recovery of competitive federalism. A rock-solid bloc of pro-competitive states provides the foundation, and a comparison point against the bloated model of hyper-spending and over-regulated states wanting to impose cartel federalism nationwide. Yet, transfer programs will continue to grow; any meaningful reform must await a rip-roaring debt crisis. Competitive federalism’s prospects in the regulatory arena depend now, as they have for some two decades, on the outcome of the next presidential election, and the one after that.

Under any scenario, the Supreme Court will play a prominent role in the (competitive) federalism arena. We can charitably describe the Court’s record as dismaying.  On the authority of Pork Producers and Mallory, each state has full authority to exercise universal legislative and judicial jurisdiction over all other states. No obstacles—not even explicit constitutional provisions—stand in the way. That will have to change.

The sensible perspective—and a prompt to suitably inclined political actors and legal entrepreneurs—is to heed Monty Python’s sage advice: Always look on the bright side of life. There is no way but up, and some political actors possess the incentives and the capability to pursue a competitive federalism agenda, with a fair chance of making progress.

By way of timely comparison, the seemingly impregnable “administrative state” had a dismal year in the Court’s just-concluded Term. The Chevron mandate to defer to agencies ended, as did agencies’ authority to adjudicate disputes over private rights. Much as the Supreme Court commentariat chalks this up to judicial appointments, it was foremost a product of a long-term intellectual rethinking among academics, think tanks, policy advocates, and litigators—non-profit law firms, state attorneys general, and occasionally commercial lawyers—who took up those cudgels and, over time, learned how to deploy them.

It may seem odd that so much of federalism’s future may hang on a bunch of lawyers and judges. Then again, America’s federalism, more than any other country’s, has always been a lawyerly province, because we live under a constitution that makes it so. It remains for those jurists to discern contemporary federalism’s favorable background conditions, and to litigate and rule accordingly.

References

[1] Barry Weingast, “The Economic Role of Political Institutions: Market-Preserving Federalism and Economic Development,” The Journal of Law, Economics, and Organization, Volume 11, Issue 1, April 1995, Pages 1–31.

[2] See the US News & World Report ranks for state competitiveness here Rankings: Economy – States With the Best Economies (usnews.com); See also Will Ruger and Jason Sorens’ Freedom in the 50 States: An Index of Economic and Personal Freedom Freedom in the 50 States 2023 | Cato Institute; Climate rankings here https://taxfoundation.org/research/all/state/2024-state-business-tax-climate-index/; housing affordability here https://www.nar.realtor/blogs/economists-outlook/state-to-state-migration-trends-in-2022; and religious liberty here https://lawliberty.org/religious-freedom-in-the-states/?mc_cid=e4f7d717f3&mc_eid=fabd919e4b

[3] See this assessment for understanding how competitive federalism separates winners and losers: https://wirepoints.org/new-2020-irs-migration-data-reveals-which-states-won-and-lost-the-competition-for-people-and-their-wealth-a-wirepoints-50-state-survey/

[4] Abbe R.  Gluck, “Our National Federalism,” Yale Law Journal, Vol. 123, No. 6, April 2014.

[5] Marquette Professor Paul Nolette’s website provides a searchable database of multi-state lawsuits against the federal government, all the way back to the Reagan Administration.

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