Dec 13 2019

Who Gets to Decide?

One of the things I like about blogging is that it is an interactive forum. Often times the conversation in the comments dwarfs the original article in scope and depth. I use this to learn as much from my readers as they do from me, and improve my understanding of topics and ability to communicate them. Sometimes points raised in the comments deserve the treatment of a full blog post, not just answers in the comments.

Yesterday I wrote in support of crowdfunding sites like GoFundMe applying standards to protect their users from fraud and abuse, specifically not allowing their site to be used to fund clear medical quackery. I took the time in this article to spell out my basic approach to the concept of regulation, because it is a common theme here. Part of skeptical activism and science communication is consumer protection against fraud and abuse. I believe that proper regulation is essential to protect the public from fraud, and so I am often called upon to defend the very concept of regulation itself.

One commenter raised what I find to be the two most common pillars of objection to regulation – the slippery slope argument and the question of who gets to decide. Neither objection, when used as a blanket or overreaching argument against regulation, is valid. Let’s start with the slippery slope.

For background, a slippery slope argument is one that concludes that if step A is taken, this will lead inevitably or very likely to step B. Since most people would find B unacceptable, we should be cautious about taking step A. To support this argument it is often further argued that there is no difference in principle between A and B, and therefore in order to be fair and internally consistent, we cannot take step A without B. This form of argument becomes a slippery slope fallacy when the premise that A inevitably leads to B or should if we are being consistent is simply wrong, or at least an unwarranted assumption. Remember, we are talking about informal logical fallacies here, so they are not always wrong. That depends on the specific context.

What the slippery slope fallacy ignores is that ethics and legislation is often about balancing two or more valid principles and concerns. When it comes to regulation we are often talking about freedom vs security or protection. Striking a balance between these two does not mean we will inevitably surrender all our freedom, any more than it means we will inevitably live in total anarchy. In fact, legal principle and precedent enshrines this balance – the state has the right to regulate various things, but must demonstrate a compelling interest before encroaching on a recognized personal freedom.

Let’s take helmet laws as an example. People have the freedom (in principle) to decide for themselves if they want to wear a helmet when riding a bike or motorcycle, but governments often assert their right to decide for individuals, and essentially make it a fineable offense to ride without a helmet. What is the state’s compelling interest? Well, if you get into an accident which results in brain injury, you may become a burden to the state and therefore others. Your injury would affect other people, by raising their health insurance premiums, or using public resources. Is that enough? Regardless of where you come down, the deeper point is – the decision is based upon a balancing of these various concerns. We can make an individual decision without obligating every similar decision to be decided in the same way. If we allow the state to force us to wear helmets, that does not mean they have a green light to micromanage every single life decision we make. Or if we decide the state does not have that right, that doesn’t mean they also don’t have the right to enforce speed limits. For every decision, the state has to demonstrate a compelling interest which is greater than the personal freedom being sacrificed. Each decision is individual – no slippery slope.

In the case of banning quackery from crowdfunding sites, the commeter wrote:

If we remove or regulate the choice of a few fools to donate money so some other fool can travel to Mexico and see a quack, then we should logically prevent fools from travelling to Vegas to gamble, or buying tobacco, or contributing to Trump’s presidential campaign (see what I did there?).

They are assuming not just a risk of progression from A to B, but that logically we must regulate B if we regulate A. As I stated, this absolutely does not logically follow. This argument also ignores the fact that there are other remedies other than banning, such as required transparency. We can ban quackery without banning gambling. People can gamble for entertainment, as long as the odds are transparent and there is no cheating. We might also use other regulations to minimize abuse, such as mandating posting gambling hot-line numbers in casinos (I don’t know if this is a thing, I’m just making it up as an example). The casino industry is, in fact, highly regulated.

Further they are making two different types of slippery slope fallacies – one of degree and one of kind. Since proper regulations are based on the principle of balance, it does not follow that one regulation must lead to a more extreme one – by definition. But the commenter goes way beyond that fallacy, to assuming a progression in kind, from regulating medical quackery to individual voting. That is the worst kind of slippery slope fallacy, essentially arguing that if we give the state any power they inevitably have total power. Even trying to be charitable here, it seems the logic is that if we allow the state to protect us from ourselves, by necessity we must give them total power over our lives, even to the point that they can dictate for whom we vote, which is antithetical to our entire system of government.

I also have to point out that characterizing the victims we are trying to protect as “fools” is unfair, an unwarranted assumption, and also flies in the face of basic skeptical and critical thinking principles. You don’t have to be a fool to be desperate because of a serious medical illness. You don’t have to be a fool to be conned by a sophisticated scam, and you are not a fool simply because you lack sophisticated medical knowledge. I wholeheartedly reject this characterization, because it blames the victim, and also can be used to dismiss any law or regulation that seeks to protect the public from fraud and abuse.

The second type of objection, which often flows from the slippery slope fallacy, is this – who gets to decide? The commenter wrote:

Where does it end, and who decides what is an appropriate project to be crowdfunded, and what isn’t?

I actually addressed this in the original post, but will expand my explanation here. While this is framed as a question, it is not a sincere question but one intended to create doubt and confusion (as if there is no reasonable answer). The unstated assumption is that the “who” is either arbitrary, or unfair, or represents oppressive power. This is not warranted. There are also many ready examples to answer this question. Who, for example, gets to decide who gets a medical license, or is granted hospital privileges? Who decides whether or not to approve a new drug or medical procedure? Who decides what the speed limit should be?  Who determines what the standard of care is? Who decides what is fraud, or what constitutes criminal behavior?

When given further context, the deep naivete of the question comes into focus. The question of who gets to decide is fundamental to our society, to our system of government and the many other institutions that allow our civilization to function.

In the US we live in a representative democracy. For any legislation, the “who” is our elected representatives, who are answerable to the voters. As I often have to point out, I am not arguing that our system is perfect, without perverse incentives, or ways to cheat the system. We have to consider questions of money in politics, lobbying, the tyranny of majorities, and many other factors. It’s a mess. I like the description that democracy is the worst possible form of government, except for all the others. But that is the system we have. So if  you are seriously questioning who gets to decide, then I suggest you take a good basic civics course. You can also see, for example, our entire judicial system.

But there are also many non-governmental institutions as well, for example I already mentioned hospitals granting privileges. Often times governments will recognize such institutions, and may even codify their standards into statute. For example, the AMA’s code of professional ethics has been codified by many states into their regulations of licensure for doctors.

So, ideally, when it comes to complex technical, scientific, or professional questions, the answer is – proper experts. There are many examples of how this can work well. Experts are vetted and approved, and follow a transparent process with published guidelines. They are tasked with defending their decisions, and may be required to have a public comment period before deciding. There may also be an appeal process if you think you have been treated unfairly. When it comes to the government, if you think they are not handling the process well, vote them out. For a private company, if you think they are failing the process, use their competition.

Getting back to GoFundMe and quackery, as I stated in the original post, they can employ medical and ethical experts to advise them on proposed funding campaigns that may constitute harmful quackery. They can use experts like peer-review. And they can offer an appeal process if you think your campaign was improperly banned. If they do not do this process well, then customers will vote with their feet, and go to Kickstarter or someone else. If an entire industry is dysfunctional, then that tends to attract government regulation. Industries that self-regulate well can avoid government intrusion.

Again – the real question is, where and how do we strike the proper balance? The whole complex system is one long experiment, and is constantly evolving. We can then look at history, and different industries, and see how the balance has worked out, and use that to make improvements.

I reject the notion that we have no choice but to throw up our hands, scrap any notions of common-sense regulations, and let anarchy reign.


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