Living in the Loopholes

Loopholes Oregon Center for Public Policy

We are living in the loopholes. We exploit loopholes in our documents and in our laws. We exploit privacy laws and consumer protection laws. We create a safeguard against one scam or sneaky work-around and a new way to skirt that safeguard is instantly dreamed up. It does speak volumes for our creativity but not so much about our character. Perhaps since opportunities to climb the economic and social ladder have gotten scarce exploring the frontiers of the art of the con are the only places left for self-expression and achieving a sort of trashy success. More and more of us don’t seem to worry about where our money comes from these days because we don’t have that luxury.

There have always been con artists, probably since time began and traders wandered to distant tribal groups to barter their wares for food and whatever passed for payment. Early traders may have been welcomed and fussed over for their news of other people and their exotic goods from distant geographical locations. Still I bet some traders had a reputation for being more honest than others.

Although people in towns all over the world cheated each other in business deals, property deals, and every other way imaginable, the gypsies were often shunned for their disregard for laws and boundaries and were even rumored to have kidnapped children. Perhaps they were just too blatant about their insistence on an alternate lifestyle unlike that of most people who were beginning to settle in one location (a city, a town). It is difficult for people who at least pretend to live a rule-based life to incorporate those who are seemingly lawless. But sneaky lawless behavior is often tolerated.

The fewer opportunities there are to earn a substantial wage the more likely people are to look for loopholes. So as soon as we got our “do not call” lists people came up with the robocall. Making robocalls seems like a terrible way to earn a living wage and offers, I suspect, little social stability. But judging by the fact that I almost never bother to answer my phone anymore the “business” is thriving. And the “do not call” fix does not work for robocalls. Phone companies say they are working on a new fix but robocalls must be a difficult thing to stop because that has not happened so far.

We seem to be living in an age when finding loopholes compares to mining for gold. I would say that it is because we have a con man for a President, but it predates 45. The Republican Party, the Conservatives, and wealthy donors have been mining loopholes in our Constitution and our laws for some time now and the prize is money, of course, but the bigger prize has been power and finding ways to hold on to that power.

Obstruction is not forbidden in our laws although it sort of undermines the whole idea of governance so it mines a loophole. Republicans have used this tactic time and time again here at the beginning of the 21stcentury to great effect. When a former Chief Executive of our nation had to resort to governing in limited fashion by Executive Action because of obstruction, the Republicans just bided their time until they took over the executive office and then overturned all the previous Executive Actions, which do not have the longevity of actual laws. When faced with public resistance to their occupation of our halls of government they resorted to issuing their own Executive Actions.

There are American people trying to “turn” state governments red in order to compile a magic number of states who will vote for calling a new Constitutional Convention. These people are not in the government, although they certainly have allies in the government. They are wealthy people, corporate people who do not want to stop using the fossil fuels that funnel wealth around the globe and that have so successfully fueled their businesses. They understand fossil fuel. Solar energy, wind energy, hydropower, electricity, and all alternative energies reek to them of what they disparage as the “new world order”, at a time when all these rich old people are trying to make the “new world order” the same as the “old world order.” These new energies seem wimpy to them compared to oil and gas and even nukes. It is true that we probably cannot power the world as we know it with only the alternative energies so far available. But changes on earth (melting ice caps, more extreme weather) tell us that we must find a way to wean ourselves from using fossil fuels. What new laws do you think they would like to make at their new Constitutional Convention?

More loopholes. We are learning that impeachment has no teeth and certainly can’t be used when one party controls our entire government. We are learning that there is really no case of a President who is bad enough to invoke the 25thAmendment. Even the Emoluments Clause, although it makes a rule prohibiting Presidents from making money from their powerful position, is not enforceable because, apparently, a sitting President can neither be subpoenaed nor indicted. We have laws against nepotism – unenforceable. Unfortunately we have no laws against Tweeting.

When the Republicans, or anyone, operate in the loopholes of our laws our laws lose their force and we find ourselves in that place everyone keeps talking about, a Constitutional Crisis. Sounds bad doesn’t it. Well it is. Because it means our democracy/republic as we know it could fail. It doesn’t mean our Constitution gets a bad grade; it means it no longer has any power as an instrument of American governance. Of course there is always that promise of that Constitutional Convention our oligarchs are trying to convene. Not exactly the idealistic base one would hope for when forming a new government to equal our old one. I think we can say goodbye to “we the people” if this is our eventual fate.

It is the newest trend in Europe for a man, so far it is always a man, to get himself elected in a democratic election and then to find loopholes in either the country’s laws or in the resolve of the people. Certain patterns seem to work to turn democratic nations into autocracies. Finding ways to intimidate a free press, at first verbally and then with arrests and perhaps even mysterious deaths is part of the authoritarian playbook. Dismantling legislative bodies or filling them with toadies is also in there. And turning the judicial system into a body that merely rubber stamps executive policy. Then you create new language, a linguistic loophole and you call your dictatorship an “illiberal democracy.” You exploit some fear that you have magnified in your people’s minds, you find a loophole through their usually principled ideals, and that’s how you hold onto power.

Living in the loopholes is an insidious way to live our lives. It leads to dark underground places that undermine the worth of individuals and of a culture as a whole. It makes us lawless and disrespectful. How can you respect anyone who lets her/himself be conned by anyone as despicable as you. It leads to loss of freedom and fear. It makes everyone suspect. Who is honest, who is cheating? Who is stealing away your personal power and/or your personal property, and invading your privacy? Who is aiming to turn you from an autonomous actor into someone who must obey or hide in the shadows? We can’t hope to plug every loophole. Plug one, another opens. The only way to fight the trend towards exploiting loopholes is to call it out and make it shameful. Living in the loopholes could take away our democracy/republic and land us in an autocracy. It could happen here. It could happen now. It only starts with a robocall.

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