The case for conservative civil disobedience

So how do how small-government conservatives conduct civil disobedience in practice? Sit-ins at the EEOC? Occupy OSHA? Or maybe thousands of senior executives chanting, “Hey hey, ho ho, innovation-stifling regulatory regimes have got go!”

Murray’s proposal is less dramatic and more ingenious. The regulatory state has two related weaknesses, he explains: It relies on voluntary compliance, and its enforcement capabilities are far inferior to its expansive mandate. So he proposes a private legal defense fund — the “Madison Fund,” honoring the father of the Constitution — that businesses and citizens can rely on for representation against federal regulators. By engaging in expensive and time-consuming litigation on behalf of clients that refuse to comply with pointless rules, the fund drains the government’s enforcement resources and eventually undercuts its ambitions. The state can compel submission from an individual or company with the threat of ruinous legal proceedings, Murray writes, “but Goliath cannot afford to make good on that threat against hundreds of Davids.”

The result Murray foresees is a “no harm, no foul” system, in which violations that cause no disruptions or injuries go ignored by regulators, because punishing them is too troublesome. He also imagines the rise of “occupational defense funds” in which trade groups pool resources to serve as a sort of insurance against regulators. In the unlikely event of a federal inspection of a particular business establishment, such funds could cover the fines.