Category: Denialists’ Deck of Cards

The denialist can almost always argue that a proposal is unconstitutional. After all, businesses were afforded many civil rights before women achieved suffrage.

This is a very powerful argument in the post-9/11 environment. And if you’re a denialist worth your salt, you can figure out a way to claim that your industry is a potential target for terrorism. Danger! can be used to get things done quickly, as Verisign realized when it wanted to move a “root server” without following normal process. In Department of Commerce officials’ emails, Verisign made pleas to declare an emergency to get their way: The company wants “to push us to declare some kind of national security threat and blow past the process,” one e-mail said. The subject line of another message described the company’s “request for immediate authority to effect address change.”

“Can’t be enforced” is a different argument than “it won’t work” (the Jack of Diamonds). Here, the denialist is usually threatening to operate an offending practice overseas, or oddly enough, arguing that because a proposal doesn’t give someone a right to sue, it isn’t worth passing. Of course, if the proposal gives one a right to sue, the denialist uses the opposite argument: the proposal is enforceable, and the denialist will complain of frivolous lawsuits.

Giving money to the leadership of the Senate and House is a great strategy, because no proposals will be considered at all if the leadership blocks them. The leadership is rarefied; one only taps them in desperate situations

Believe it or not, I’ve heard industry lobbyists say that they’d stop doing business in California/America if certain consumer protection regulations passed. It’s totally implausible, but still a high-value card.

The denialist can always raise the specter of “big government.” As in, the proposal at issue will create bigger government, complete with appeals to fears of world government and stuff like satan. This is a high-risk card because big business loves big government.

Sometimes the success of a consumer intervention will create “blowback,” and allow the industry to not only win but also demand other concessions.

An excellent recent example of regulatory blowback came with the creation of the federal Do-Not-Call Registry. In creating the registry, the Federal Communications Commission also tried to tighten regulations on “junk faxes,” unsolicited commercial fax messages. The FCC ruled that “junk fax” senders had to document that they had consent from recipients of their messages. The junk faxers organized into a huge coalition (the deceptively-named “Fax Ban Coalition”), lobbied Congress, reversed the FCC’s rule and actually make it easier to send junk faxes by having deceptively-named “Junk Fax Protection Act” passed.

If the denialist is on the brink of losing, a number of high stakes arguments can be made. The bear/bull market argument is one of my favorites. Just look at tax policy–no matter what the economy is doing, tax cuts are the solution. And in privacy, if the economy’s weak, there shouldn’t be interventions to protect consumers; if the economy’s strong, interventions could make the market weak!

If there’s a bear market, obviously there shouldn’t be interventions in the market, right? If there’s a bull market, obviously there shouldn’t be interventions in the market, right?

Two related arguments–the denialist will say that the regulation won’t work. And they won’t help in finding a way to come to a reasonable solution. Finally, continuing in the teenager theme, the denialist will argue that they won’t comply, even if directed to by law. Rule of law be damned!

The fifth hand brings increasing petulance. One common tactic at this point is to admit to the behavior in question, and like a teenager, say “we’ll we’ve always done this,” and therefore we should be able to continue to do so.