RE: Business, “The Authoritarian Way” (7/14/10) Ian Bremmer, “BP Is Lucky It Spilled in US Waters, Not Chinese,” USA Today

Not so fast, Mr. Bremmer.  In comparing China and the United States, your categories on statist vs. rule of law are correct.  However, the United States’ political philosophy has shifted.  The facts and logic point to the U.S. as the statist nation. China renders the death penalty for bribery.  Thankfully, the United States does not go that far or we might lose a good portion of Congress and most municipalities. But China makes no bones about its political philosophy. If you are making a decision to do business in China you cannot make the case of, ‘Who knew?”

Google had and has a choice:  it can do business in China or opt out.  Censorship is China’s rule of law and its regime makes that clear. China has not waffled on that position.  We may not agree with its position on censorship, but the decision is China’s, not ours. Google has been rattling its cage a bit for six months, threatening to withdraw from China unless China’s regime lightens up on the censorship.  The rattling helped Google to retake its position in the social responsibility community because of its newfound commitment to human rights.  In the end, however, Google simply decided to do business in China under China’s rules.  Google does not like those rules, but it has decided to live with them in the interest of remaining competitive.  Whether that either/or postulate is true is an analysis for another time.

BP, on the other hand, decided to do business in the United States under its rule of law.  It now finds that the rules change daily because that’s what statists do.  There is nothing in federal or state law that permits government officials to tell companies, regardless of how much damage they have done, that they have no choice but to ante up dough in an amount officials determine and, by the way, then take over the distribution of that money.  BP should be held accountable, under the law, for what has happened.  But due process is central to the determination of its liability and required for a mandate to ante up.  Those who have pointed to the due process issues in the actions taken against BP are quickly branded as “fringe” and “in big oil’s pocket.”  Be careful hurling insults at those who seek to adhere to the rule of law.  

Due process is the very foundation of the rule of law. Due process was not put into its place in the Bill of Rights to protect the folks and companies we like.  Due process was placed there to protect those we’d like to throttle . . . instantly.  Due process does not permit unilateral seizure of company assets without due process, no matter how many pictures of wildlife tug at our heart strings.  Call it your day in court, call it fact-finding, call it finding a basis for liability, call it all three – under our laws as they once existed, BP was entitled to all of them.  This company has not been given its chance to respond. It is quite easy to get comfortable with denying villains due process.  But what then will you do and where will we all be when the non-villain is handed the same fate?  The beauty of the rule of law is its universal application, something that guarantees justice to all involved, whether perpetrator or victim.

The administration’s off-shore drilling moratorium two-step  is yet another step contra to the rule of law. Just this week the administration has basically said, “Well, the courts and constitution be damned.  We still want a moratorium.”  The rule of law has been set aside as the drilling ban that a federal court enjoined as laughable (and a circuit court affirmed) is now back defiantly in place.  Rule of law includes the separation of powers, something that works its checks-and-balances magic to curb despots, statists, and others who are always acting in the name of something important. Those constitutional procedural protections are there to prevent individuals as well as branches of our government from unilaterally imposing their will in any given situation.  Those protections are needed especially when the conduct seems egregious and the cause seems just.  Perception is not the stuff of the rule of law. We may not like BP and what has happened to our beautiful waters and pristine states in the Gulf.  However, the essence of the rule of law is its ability to trump the exercise of raw power in situations in which there are raw emotions.  Mobs are often justified in their reactions, but the rule of law requires that mobs not rule when so exercised.

We may also be outraged by China’s laws on censorship.  But give the Chinese government its due (And we probably should anyway because there is a great deal coming due from us to them as our debt mounts). China does hold firm to its rules and we all know their rules BEFORE we do business with them. China does not put on airs. “Take it or leave it” is China’s rule of law that we find so appalling. Google decided to take it, China, its rules, and all their flaws, rather than leave — a voluntary choice. BP, on the other hand, had no choice, especially after the rules were changed mid-stream, or, in this case, mid-flow. Indeed, the U.S. is now best characterized as “Take it, rules changes and all, but you cannot leave.”  That notion of appalling ought to be rearing up about now . . . only the finger should be pointing this way.