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Activism in Defense of Liberty Is No Vice

May 15, 2012

I think that judicial activism has been unfairly denigrated. I have come to the conclusion that, because of my own experience as an activist, I need to speak up in its defense.

I engaged in quasi-judicial activism 25 years ago as a hearing officer for the Corporation Commission. I believe that my activism was beneficial because it was a contributing factor to the largest successful deregulation inArizona’s history.

TheArizonaconstitution provided for the regulation of a diverse group of corporations that were labeled as “public service corporations.” That label made them sound like they deserved to be regulated by the government. These corporations included providers of transportation, such as airlines, buses, taxis, and ambulances.

This regulatory scheme said that, if the carrier in the field (whether truck, bus, or airline) is performing adequately, then no additional carrier may be allowed, even if the Corporation Commissioners believed that competition better served the public.

Even if an existing carrier was deficient, the Corporation Commission had to allow that carrier time to improve its service. The existing carrier always seemed to be able to temporarily improve its service; at least until the threat of a new carrier being allowed was eliminated.

Because the regulatory scheme served to protect the carrier rather than the public, it was supported by the trucking lobby. Corporation Commissioner Bud Tims knew that this happy status quo for the truckers would not change unless we found a way to bring competition into the marketplace. Therefore, with Tims’ encouragement I began to find unmet “needs” and to recommend allowing more competition. Existing monopoly carriers considered my recommendations unwarranted activism.

Nevertheless, the three Corporation Commissioners usually went along with these recommendations. The trucking lobby was increasingly concerned about this potential for new competition. Their concern heightened when the Commission drafted a new law that would change the regulatory philosophy to explicitly call for more competition.

Since the proposed regulated competition seemed so reasonable and, therefore, likely to pass, the trucking lobby decided to push for a referendum authorizing complete deregulation—believing it would not pass. This strategy backfired.

They had not counted on the fact that other influential people would get involved. Governor Bruce Babbitt decided to get behind deregulation. That unleashed the research capacity of the Arizona Department of Transportation and long time free market advocate, John Semmens. Since there is much data that is easily available which is overwhelmingly persuasive regarding the benefits of increased competition, it was not difficult to support deregulation.

Senator Bill McCune organized the independent truckers, the ones who did not enjoy the monopoly protection of the Corporation Commission, but wanted the opportunity to compete. They staged some very impressive demonstrations, such as circling the Capitol with their 18 wheel rigs.

The campaign successfully influenced public opinion. The voters approved complete deregulation andArizonaconsumers are still experiencing the benefits today.

These benefits would likely not have happened without an activist stance at the Corporation Commission. Does that make it right? I would say yes. My logic is simple: Government has only one legitimate purpose and that is protecting individual liberty. Each person involved in making laws, or enforcing them, or adjudicating them, should be an activist in pursuit of individual liberty.

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