Testing the National Covenant: Fears and Appetites in American Politics

Chapter 3: FREE MARKET IDEOLOGY: Bearing on Other Centers of Power

49 3 FREE MARKET IDEOLOGY Bearing on Other Centers of Power Critics of free market ideology concentrate chiefly on the contest in power between business and government. However, other centers of power have a public responsibility, independent of their relations to either the marketplace or the government. This chapter focuses primarily on the relations of the marketplace to these other institutions—the professions, unions, universities, the churches, and the media—as the market bears heavily on their operations.1 CO-OPTING THE PROFESSIONS The professions of law and accounting provide the chief interface of business with the government and the public. The two professions purportedly guard the common good. Accountants belong to the only profession that explicitly carries the word “public” in its self-description—that is, “certified public accountant.” The word “accountant” implies a means of securing corporate accountability to the public. But accountants compromise the clarity and integrity of their public role when they define themselves as makeup artists, accenting quarterly reports for the sake of boosting stock market prices or distorting annual returns to avoid tax exposure. The Enron Corporation relied on the ingenuity of its accountants to give the illusion of glowing financial health. Accountants obligingly treated as profits in hand the merely anticipated long-range sales of assets acquired on borrowed money. This sleight-of-hand obscured the large number of variables that put such favorable outcomes beyond Enron’s reach. The lure of profits also produced a kind of mission creep in the practice of accounting, which the great firms sold to their clients under the catchy title of “one-stop shopping centers.” Some of the “big six” (so numbered at the time) accounting firms offered not only accounting and auditing but also consulting services to their clients. Some accountants (and lawyers) even entered into partnerships with their clients by devising entities that yielded themselves a percentage of ownership in an undertaking . Fire walls were built to protect the probity of the original accounting and auditing functions, but conflicts of interest became hard to contain. The financial yields from add-on enterprises overwhelmed the ordinary compensation for professional services, thereby affecting the balance between competing cultures within the accounting firm. Service to the common good tended to melt away. Traditionally, lawyers have considered themselves among the professions obliged to guard the common good. Roscoe Pound, the great jurist, famously wrote that the term “profession” “refers to a group . . . pursuing a learned art as a common calling in the spirit of public service—no less a public service because it may incidentally be a means of livelihood.”2 Lawyers purportedly must serve their clients under the constraints of their status and duties as officers of the courts. However, in the adversary system the particular service of defense attorneys as court officers lies in their loyalty to their clients, who in a democracy enjoy legal protection, even when they are in dispute with their fellows or at odds with the laws of the state. Thus the professional, for the sake of the common good, does not act directly as an agent of the state. In protecting under the law the rights of the lawbreaker, the deviant, and the distressed, the professional also serves society.The lawyer serves as an officer of the court even when defending the client against the state’s prosecution. Well and good. However, an imbalance sets in.Apologists for the zealous defense attorney in the adversary system usually invoke the picture of the powerless, resourceless individual pitted against the majesty of the state. But given the distributions of money and talent in the marketplace, the gifted lawyer today more often than not works for a large corporation.The poor and the middle classes often 50 Chapter 3 cannot pursue their grievances in court. Inequities in the distribution of legal talent and delaying tactics in the courtroom often stack the deck in favor of the powerful. The adversarial system, moreover, can encourage antinomianism in the client. The expert lawyer lets the client know how much he or she can maximally get away with. The lawyer treats the law not as a minimal statement of obligations to the neighbor that points beyond itself to a higher righteousness, but rather as a bright line that aids and abets the client’s attempt to crowd the border of unrighteousness . Client advocacy surely is the attorney’s public duty...