Brink Lindsey, Steven M. Teles. The Captured Economy: How the Powerful Enrich Themselves, Slow Down Growth, and Increase Inequality. Oxford: Oxford University Press, 2017. 232 pp. $24.95 (cloth), ISBN 978-0-19-062776-8.
Reviewed by Julia Schwenkenberg (Rutgers University – Newark)
Published on H-Socialisms (March, 2019)
Commissioned by Gary Roth (Rutgers University - Newark)
Regulatory Capture and Inequality
In The Captured Economy: How the Powerful Enrich Themselves, Slow Down Growth, and Increase Inequality, Brink Lindsey and Steven M. Teles assert that a bipartisan blind spot causes politicians on the left and the right to miss what truly ails the US economy: powerful interest groups have captured the political process to benefit from government regulation. According to them, regressive regulation has throttled economic growth and redistributed income to the wealthy. This has led to a nativist-populist backlash which is putting our democracy in peril. Yet, they contend, politicians do not consider bipartisan ways to reform regressive regulation. Liberals and progressives believe the government to be a positive force for justice and are blind to its ability to distribute rents up the income distribution. Libertarians and conservatives blindly seek to shrink government, even though addressing regulatory capture would require an expansion of government expertise to counter the influence of powerful lobbyists. Worse, both sides favor populist economic policies that impose further restrictions on markets, such as limitations on trade.
The first two chapters, “Rigged” and “The Rents Are Too Damn High,” summarize the current economic and political climate and present general evidence that regulation has created rents for the most powerful individuals and corporations. Lindsey and Teles describe how sluggish economic growth and stagnating wages for those in the lower half of the income distribution have coincided with rising top incomes. This has led many to believe that the economy is rigged, and they are right, the authors claim: there is something to the “folk theory of inequality,” whereby the elites have rigged the economic and political system in their favor (p. 4).
“Rents” in this context are defined by economists as gains above the “normal profit” generated in a perfectly competitive market. In fact, competition ensures that profits, which are earned by firms after all factors of production (including labor) have been paid according to their productive contribution, are always shrinking toward zero. Why? Excess profits attract new competitors into the market who compete away these rents. This mechanism moves resources to where they are most productive. In addition, the prospect of earning above-normal profits during the time it takes the competition to catch up encourages innovation. But under certain conditions the market can produce excess rents that are not competed away; economists refer to this as market failure. Consider your internet service provider. The infrastructure investments that are necessary to serve an area are a natural entry barrier: unless you can convince a large enough group of households to switch, it probably is not cost effective for a new provider to enter the market. Utilities are regulated because they tend to be so-called natural monopolies. Regulation can generate permanent rents as well and the term “rent-seeking” is generally used to describe an activity of securing income for oneself by exploiting laws or regulations without adding value to society. This reduces economic growth because rewards go to those who are capturing existing rents and not to individuals and firms that are the most productive or innovative.
In chapter 2, the authors present evidence that this competitive market mechanism might have stalled. For example, profits for US corporations have increased significantly since the mid-1980s while the rate of new business formation has been declining. Lindsey and Teles suggest that increasingly restrictive regulation has been detrimental to the health of the US economy by reducing competition. But when assumptions about the ideal functioning of markets are violated, government intervention can lead to more efficient and fair outcomes. Some would argue that deregulation and the lack of anti-trust enforcement to counter market concentration rather than the restriction of entry by the government are to blame. Furthermore, technology and globalization might also be important drivers of increased concentration and profits.
Nevertheless, Lindsey and Teles make an important observation about the redistributive effects of regulation. The authors argue that the motivation behind regulation has been shifting. The government used to help workers at the bottom of the earnings distribution by legislating workforce protections and by supporting businesses that employed low-skilled and semi-skilled unionized workers. During the past decade more and more policies have been benefiting higher-income individuals by lowering their taxes or by increasing their earnings and capital market returns as “rents are created for corporations in skill-intensive industries” (p. 31).
The next four chapters present what the authors call “case studies.” The chapters cover finance (chapter 3), intellectual property (chapter 4), occupational licensing (chapter 5), and land use (chapter 6). Lindsey and Teles argue that the government should not provide insurance for the financial sector, that intellectual property should not be protected, that government regulation of who can enter an occupation is an illicit entry barrier, and that zoning is a tool to capture undeserved land rents. The analyses in these chapters mix academic literature and statistics with advocacy to build the authors’ case that the powerful are using these policies to enrich themselves. In their takedown of government regulations, the authors often seem to ignore that regulations have policy justifications. Their case studies left me wanting a deeper dive into the actual political process specific to the policies discussed in these chapters. But politics is mostly left out and relegated to the last two chapters of the book. There, the authors reveal that they believe any progressive policy justifications are merely a guise to implement regressive redistribution. I will turn to these chapters below.
The first of the case study chapters covers the sector of the economy that is most notorious for rent-seeking, driving up inequality, and capturing regulators. From Bernie Sanders to Donald Trump, the Left and the Right seem to agree that Wall Street has bought off politicians and enriched itself at the expense of Main Street. Luigi Zingales urged finance academics in his 2015 American Finance Association presidential address to acknowledge the negative aspects of the industry and to use research to curb the rent-seeking dimension of finance. Zingales also highlighted the distortionary role played by government through subsidies and noted that the new regulatory institutions set up after each financial crisis are inevitably captured by the industry. Financial regulation is a complicated and hotly debated issue. What do we learn from Lindsey and Teles that we have not heard before?
Lindsey and Teles emphasize that they are not against regulation of the financial sector. But to them, government involvement has been distorting outcomes in favor of the powerful and is destabilizing the economy. The origin of inequality and crisis is regulation not market failure or the failure to regulate.
The chapter brings up many issues, but there are two implicit government subsidies of the financial sector that the authors implicate in the financial crisis and as tools to enrich the wealthy. Both are implicit to government policies that have the explicit goal of supporting and protecting individuals without extensive resources. In particular, these are government guarantees for mortgages to encourage lending to lower-income home buyers and deposit insurance provided through the Federal Deposit Insurance Corporation (FDIC) to protect individuals from losing their savings in a bank failure and to prevent bank runs during crisis. Why do the authors find these so problematic? Lindsey and Teles consider subsidies to the mortgage industry regressive regulation because home buyers do not receive direct payments to help them purchase a home. The government funnels subsidies through the financial industry, which generates rents for financial professionals who tend to be rich. Worse, this policy can have a destabilizing effect on the economy by encouraging excessive risk-taking, which coupled with excessive reliance on debt by financial institutions—encouraged by FDIC subsidies—led to the last financial crisis and the Great Recession.
In their view, the government should not encourage the private sector to supply services through indirect subsidies; the government should provide direct transfers to individuals. Lindsey and Teles believe that politicians not only are captured by industry but are also trying to conceal the true size of the government from their constituents. The authors are right in arguing that generally direct subsidies to low-income beneficiaries are less vulnerable to capture than convoluted schemes that involve for-profit institutions. But would direct transfers correct credit market failure? In areas like student loans, the need for credit could be eliminated if state governments provided free public college education to low-income students. In this instance, direct payments might be a workable and welfare-improving alternative to the current system. But here the financial sector cannot be completely avoided. The authors suggest matched contributions for down payments, but these do not address the underlying problem, which is that low-income borrowers are inherently riskier to lend to because they lack collateral. Without an extensive credit history the less well-off cannot signal that they are reliable borrowers. A government-provided down payment might be counterproductive by sending a bad signal while government guarantees or insurance gives the lender the needed long-term security to give out a thirty-year mortgage. Moreover, the government just provides a guarantee while the financial markets provide the cash.
With respect to FDIC deposit insurance, Lindsey and Teles explain that they not only consider the moral hazard this insurance might cause for the financial institutions but also point out that moral hazard exists for depositors (moral hazard implies that people might take too much risk because they do not face the entire cost of their actions in case of failure). They would like to see depositors researching banks and their riskiness. This places undue burden on consumers who cannot be expected to have the necessary know-how. Does government-provided insurance encourage risk-taking? Yes, that is partly what insurance is for. What is excessive risk-taking? What is abuse of the government guarantee? That is what sound financial regulation should be defining and preventing.
Next, in chapter 4, the authors take on the protection of intellectual property (IP). In 2018 the Nobel Prize in Economics was awarded to Paul M. Romer for his pioneering work on the role of knowledge creation and IP rights protection in long-run economic growth. New ideas lead to progress. Limited monopoly rights are necessary for innovators to recoup their up-front investments in research and development.
Yet there are no simple policy solutions; the very nature of knowledge and monopoly make IP regulation extremely complex as well as vulnerable to capture. Knowledge can spread at almost no cost once it exists and can be used to create goods and services, cures, and new discoveries. Knowledge is a non-rival good, which means my consumption of knowledge does not preclude you from consuming the same information; we can both have the same piece of cake and so can everyone else without diminishing it. Therefore, societies that care about the spread of knowledge and progress want it to be freely available to all. The problem is that while the spread of knowledge is relatively cheap, its creation and conversion into concrete products is not, which means societies that care about knowledge should provide public funding but also make concrete new knowledge proprietary to encourage people to invest in innovative, knowledge-creating activities. Regulation needs to strike the right balance. In the United States, IP rights protection is guaranteed in the Constitution. In particular: “Congress shall have power ... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The United States Patent and Trademark Office (USPTO) administers the patent laws passed by Congress. “Any person who ‘invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,’ subject to the conditions and requirements of the law.”
Whether a discovery qualifies for a patent is determined by specialists in USPTO’s technology centers that have jurisdiction over different fields. The USPTO employs over eleven thousand people and about half a million patents are filed every year. A patent secures property rights for fourteen to twenty years. Filing a patent application is complicated and requires specialized legal knowledge. In contrast, copyright is granted automatically—you do not even have to register your work—and lasts for the author’s lifetime plus an additional seventy years. The judiciary decides on patent disputes and appeals against decisions of the USPTO. Court decisions sometimes go all the way to the US Supreme Court. Thereby patent law is constantly evolving and, as technology changes concurrently, has become more and more complex. There is a lot of money at stake for corporations, and the rents from temporary monopoly protection, which are meant to incentivize progress, might also provide incentives to hold other companies back and solidify market power. Evidence of regulatory capture of the process at the USPTO does exist.
In Lindsey and Teles’s view, there has been a “radical and ill-considered expansion” of IP protections, and “as a result, the rents that now accrue to movie studios, record companies, software producers, pharmaceutical companies, and other IP holders amount to a significant drag on innovation and growth, the very opposite of IP law’s stated purpose” (p. 65). Elsewhere in the book, they refer to the US patent system (and the Food and Drug Administration) as an “illegitimate power grab” (p. 144). There are several claims here: first, IP protection, at least how it is currently implemented, reduces innovation and economic growth; and second, it is a “tool for unjust enrichment” (p. 89). The first is an empirical question, the second perhaps a matter of moral philosophy. The last section of the chapter is devoted to the authors’ arguments against a moral case for IP.
Regarding the effects of IP protections on innovation and growth, the authors tend to draw strong conclusions from the available evidence (or lack thereof). The academic literature on IP protection is mixed. There is evidence that the lack of patent protection favors inventions that are hard to imitate and that copyright protections increase the quantity and quality of creative output. Yet the evidence also supports that there is no benefit from extending copyrights beyond the lifetime of artists and that extremely stringent IP protections hinder the diffusion of knowledge. The benefits of patents might be strongest only for the pharmaceutical and chemical industries.
Further, Lindsey and Teles argue that IP protection is reducing innovation, because as technology has been weakening IP protections, there has been an increase in creative expression and many software innovations have been made open source. But this argument only works if weakened IP protections were causing an increase in innovation (then strengthening them might cause a decrease in innovation). In fact, file sharing has made it both cheaper to spread artistic expression and harder to get paid for it. But artists apparently do not need to get paid as “nonpecuniary considerations predominate in motivating creative expression” (p. 70).
Open source software actually shows us that two systems can coexist. In the first, we have proprietary software, which is developed and maintained by firms that get licensing fees and pay their professional developers a salary for their efforts. The second is open source, which is freely accessible under an open source license and volunteer contributors work on it for free. Sometimes companies such as Tesla make their innovations open source because they want the industry to develop faster. This is different from companies that only seemingly provide their software without licensing fees but then recoup their investment by harvesting user data, such as Google with their Android operating system or Facebook with their social network. A truly open source system only works when contributors also have jobs for which they get paid. In fact, an alternative to a system with property rights would be one where innovators and artists would draw a salary either from the state or a wealthy benefactor. Our government provides funding for research and the arts. Public and private universities allow tenured faculty to pursue innovative projects in the arts and sciences. Academic publishers tend to capture some of the public benefits, a practice Lindsey and Teles rightly object to. The authors bring up important criticisms of the current IP system, such as the length of protection, fair use, patent trolls, and for-profit academic publishing, but their arguments often go beyond advocacy for reform or a call for more research. Thereby they simplify a complicated issue to their main message: regulation will always be captured and is the origin of stagnation (they temper this message somewhat in the final chapter).
In chapter 5 Lindsey and Teles turn to occupational licensing. The percentage of the workforce subject to licensing requirements has increased from 10 percent in 1970 to almost 30 percent today. Licensing boards are usually made up of professionals in the licensed occupation who have a motive to restrict entry to keep prices high. If state governments instead had consumer welfare at heart, Lindsey and Teles argue, the types of occupations that are regulated and the training requirements to obtain a license should be consistent across states. The authors document that this is not the case. Moreover, training should be more stringent for occupations where the incompetent could inflict more harm. Yet cosmetologists have to complete 372 days of training on average, whereas medical emergency technicians (EMTs) only have to complete an average of 33 days. (Don’t confuse EMTs with paramedics who require much more training; in New York, for example, about one thousand hours.)
Occupational licensing is one of the few areas where both sides of the political spectrum actually agree that reform is necessary. The Barack Obama White House released a thoughtful report on occupational licensing in 2015, cited by Lindsey and Teles, which included recommendations to states on how to better align licensing requirements with consumer protection. The report conveys the general consensus that the current system is too restrictive and imposes unnecessary costs on consumers, who face high prices, and workers, who might be discouraged from entering occupations due to onerous bureaucracy and fees. This summer, Congress followed up and passed bipartisan legislation. Trump signed it into law on July 31, 2018.
But Lindsey and Teles push further. Their critique goes beyond the licensure requirements for hair stylists and florists; they attack licensing for doctors and lawyers: “In all these professions, mandatory licensing is one element of a larger system of rent extraction, one that encompasses not only restricting the supply of practitioners but also inflating demand for their services. The end result is higher prices, worse service, stunted innovation, and large and ill-gotten gains for groups that crowd the upper percentiles of the income scale” (p. 99). Unfortunately, the authors do not dig deep enough to substantiate their claims. Perhaps that would have required writing the entire book on medical licensing. Alternatively, I wish Lindsey and Teles had done an actual case study and chosen one top-earning profession and a concrete analysis of how these powerful and rich professionals have distorted occupational licensing in their favor.
With respect to medical doctors, for example, they raise two important avenues for regulatory capture: the control of medical school slots by the American Medical Association (AMA) to restrict entry into the profession and scope of practice restrictions for related occupations, such as nursing, to keep these lower-earning, but perhaps sufficiently qualified practitioners, from taking a larger slice of health-care profits. The AMA directly controls the number of medical school slots through their accreditation process while the nation faces a doctor shortage. Is this evidence of a flagrant entry restriction? The authors do not discuss the accreditation process in detail. If, for example, class size were based on resources per student, then inadequate funding to guarantee medical school quality for more students might be a problem. Are universities co-conspirators? It seems the number of residencies has apparently been frozen since 1997 due to Medicare funding shortfalls. In fact, the Association of American Medical Colleges is well aware of the shortage and blames the bottleneck created by Congress: “While medical schools have increased enrollment by nearly 30% since 2002, the 1997 cap on Medicare support for graduate medical education (GME) has stymied the necessary commensurate increases in residency training, creating a bottleneck for the physician workforce.” It seems here, too, that bipartisan legislation is in the works. Is the problem really occupational licensing or a broken health-care system?
A more feasible case study might have been the scope of practice restrictions. According to Lindsey and Teles, twenty-one states have started to reform and allow nurse practitioners to diagnose diseases and prescribe medication. Are there indications that state medical boards differ in their political influence? Why is reform possible in some states but not in others?
Finally, in chapter 6 on land use, Lindsey and Teles discuss zoning as another example of regressive regulation. Curiously, the most egregious example of how land-use regulation has been used to discriminate against the less powerful is not mentioned: red-lining. Red-lining is also an example of how government homeownership policy has been captured to build wealth for white Americans while discriminating against African Americans. This has generated long-run intergenerational inequality. Even today, there is evidence of discrimination against African American borrowers by mortgage lenders who are insufficiently regulated.
Instead, the authors focus on the housing affordability crisis in a few urban centers, such as Boston, San Francisco, and New York. The main argument goes as follows: First, the modern economy generates positive agglomeration effects for human capital. In short, the more smart people stick together, the more productive they become. Second, this is good for economic growth and even the low-skilled benefit because they get paid more for their services where the rich can afford them. Regional earnings inequality has been on the rise, as a few urban areas’ productivity far outpaces the productivity of the rest of the country. Third, we are losing out on economic growth and equality because people are prevented by zoning to move to where they are most productive. Workers should be migrating until earnings and productivity differences are eliminated. Zoning regulation prevents sufficient new housing construction and the country loses out on potential economic growth while unskilled workers are stuck in rural areas or lesser cities. People might even be forced to move to unproductive places such as Atlanta or Austin, a “flight from opportunity,” according to Lindsey and Teles (p. 119).
New York City has a population of over 8.5 million people, which makes it the most populous city in the United States and more than double the size of the second largest city, Los Angeles. Its population density at 27,000 per square mile is the highest of any major city in the country. New York City is a great example of a productivity cluster. Lindsey and Teles seem to miss the consequences of their preferred theory: human capital complementarities turn the standard competitive market model upside down. Because productivity increases as more and more high-skilled people move into the cluster, market competition does not equalize wages across geography; it does the opposite. What puts a break on this growing inequality between locations is a counteracting force: congestion. Congestion eventually forces people to start new hubs in other cities, such as Austin. Lindsey and Teles argue that congestion is artificially generated by zoning restrictions and that it is “through perpetuating and entrenching geographic inequality that potential output is squandered” (p. 121). But in a world with self-perpetuating increases in productivity generated by an agglomeration of human capital, inequality would not be self-liquidating; in fact, output would be maximized at the most unequal distribution of high-skilled labor across the country. In this scenario, large-scale developments for low-skilled workers might rise at the periphery of the rich centers, cheap enough to allow more workers to move to serve the wealthy who bid a bare minimum for their services. From a welfare perspective, that is certainly not what most people want.
There is no question that zoning has been used to keep poor residents out of affluent neighborhoods, but an important reason for congestion is that space is finite and an unrestricted urban land-use regime might benefit the rich more than the non-rich. Who would get to build and live in the most productive and desired places? In New York City changes in zoning restrictions stoke fear of gentrification. Land-use regulation and the tax system need to be reformed to achieve a more efficient and equitable distribution of housing and to avoid capture by ruthless property developers. But creating equitable, diverse, and sustainable urban centers and rewarding employment for low- and middle-skilled workers is not as simple as eliminating zoning regulations.
The final two chapters of the book turn to politics. Chapter 7 addresses why the political system favors the powerful and chapter 8 makes recommendations on how to rent-proof politics. For Lindsey and Teles, narrow interests are often better organized than the silent majority because they have more to gain or lose from government intervention. If special interests have deep pockets, their ability to take over deliberation is amplified and they are often able to sway politicians in their favor. In addition, the authors define the following four biases of our political system that skew outcomes toward powerful rent-seekers: information asymmetry, an attractive policy image, low-profile institutions, and the tendency to ask the private sector to achieve social objectives. Industry and professional organizations have the resources to hire lobbyists and commission research to support their policy positions. Politicians rely on this information to avoid negative consequences from their policies that could harm their reelection bids. The positive policy image is created as a cover. Even though market failures, such as those discussed above, do exist, policies are not designed to actually achieve efficiency and fairness, but they are used to enrich rent-seekers. Ordinary citizens are unaware of how decisions are made at the local level, and even though decisions are often made in public meetings, these are not widely publicized to outsiders. Finally, the government tends to involve the private sector in delivering policy objectives, but this creates rents that are easily captured by well-organized rent-seekers. Lindsey and Teles intersperse paragraphs on how these biases might have acted on their case studies. I would have liked to see this analyzed in more depth within the previous chapters, while the rest of chapter 7 would have provided a good introduction to the political system alongside the second chapter’s observations on the economy.
In their concluding chapter, the authors call for “more effective, critical deliberation” to rent-proof politics (p. 153). Lindsey and Teles describe themselves as “liberaltarians.” They take a stark anti-regulatory stance throughout the book, but they believe in a strong government, a government that defends competition because if competition were reinstated, equality and growth would ensue. To their credit, they do not claim that their view is necessarily the only truth. They believe that after open-minded, fact-based, critical deliberation, regulations and policies will move in the direction their analysis prescribed, but they do not give concrete policy advice in their conclusion. They would like to see structural political change. We need to “give government back its brain” by investing in our civil service (p. 159). The disinvestment started long before the Trump administration’s attack on career civil servants and the disastrous overreliance on special interest lobbyists for information and research. For Lindsey and Teles, we also need to support and replicate (at the state level and in other policy areas) such institutions as the White House Office for Management and Budget that provide expert bipartisan policy evaluations.
This is all sound advice. But having all but capitulated to “the powerful,” Lindsey and Teles also proclaim: “In the present context, the ironic implication is that efforts to claw back upward redistributing rents depend significantly on the willingness of wealthy individuals and foundations to provide funding and organization” (p. 155). This strikes me as a sad reflection of our times and somewhat bizarre policy advise. But perhaps it could be interpreted as fundraising. Lindsey and Teles also see a role for the judiciary to roll back regulations because “the sheer number of licensing and land-use restrictions in place over thousands of jurisdictions nationwide is more than even a well-resourced anti-rent organizational network could effectively challenge directly” (p. 170).
Lindsey and Teles recognize the importance of research and facts in a democracy and show that this information is best provided by a bipartisan third party rather than interest groups that are directly affected by legislation. But they miss two institutions that already exist: the free press and academia. Both have come under attack in recent times by “fake news” and news aggregators that copy and opine rather than investigate and by the erosion of tenure and dwindling public funds for research. Universities must play a vital role not only in the creation of scientific knowledge but also as government and industry watchdogs. “Critical deliberation” does not come on the cheap. Lindsey and Teles call on wealthy donors and charitable trusts, but we should not give up on our publicly funded democratic institutions yet.
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Julia Schwenkenberg. Review of Lindsey, Brink; Teles, Steven M., The Captured Economy: How the Powerful Enrich Themselves, Slow Down Growth, and Increase Inequality.
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