03/18/2013 04:22 pm ET | Updated May 18, 2013

The Koch Brothers and Structural Rules

The Koch brothers began by amassing power in the energy sector, and then gradually collected companies and built a conglomerate. In the last decade, they have been amassing power in everything protected by the First Amendment -- political speech, petition (lobbying), assembly (through Americans for Prosperity) and now they are making a direct go at buying the press. They are clearly interested in money, but I think the focus on their greed is not as helpful as the focus on their desire for power, the "machtgelust," the desire to dominate. They are not like King Midas, foolishly hoping for gold, or like Bloomberg, who seems most to want the status of monarch: instead, their desires for power and wealth and entangled each with eachother, each feeding the other in an acquisitive, ever-growing need.

This is not the place to record their sins against truth, climate and society, which are well-documented. The basic problem is that they have amassed such power in so many areas that they occupy a role that does not make sense within a democracy -- that of semi-feudal lords, who can demand that the mechanisms of government do their will.

Instead, I want to talk about how to respond to them. There is no reason to think that any appeal to civic virtue or patriotism or an obligation to a public sphere would have any meaning to David or Charles Koch, both of whom have an expressed disdain for that "love of equality" that Montesquieu talked about and Tocqueville witnessed in America, the love that is essential for a democratic self-governing society.

Nor is there much of a solution in the protests against products and efforts to boycott them. Unlike some individual companies that might at the margins respond to consumer boycotts, the Kochs' goal seems to be not in any particular product, but in power itself, and so these boycotts might cost a little -- and be ethically important to participate in for other reasons, including highlighting their reach -- but not actually have an impact on the overall strategy.

Instead, to solve the Koch brothers problem, we need to think of how they came to be in the first place, in a democracy dedicated to making sure that such powerful individuals cannot exist. They are not accidents, they are symptoms of something that is not working, and it is only the love of democracy and equality or an indifference towards power that keeps our other most wealthy citizens from overtaking this space.

One way to ask that is, if we could go back in time and create a world where the Kochs could never have amassed so much power, how would we do that?

What anti-conglomerate rules would have made a difference in the development of Koch Industries?

What rules about sitting on multiple boards would have made a difference?

What merger rules would have made a difference?

What per se rules about size would have made a difference?

I feel like understanding the answers to these questions -- working backwards from the Koch experience -- will help us work forwards.

One of the key jobs of democratic governance is choosing the nature of the marketplace we want to support. There is no natural market, no equilibrium to which markets, set "free," naturally tend -- we know that just by the briefest scan of world history. Instead, the general shape of a market, what gets encouraged and discouraged, is a public collective choice, and arguably one of the most important public and collective choices. Right now, we have chosen to support through our laws and institutions a marketplace that is highly concentrated and leads to the immense concentration of individual wealth, and a marketplace with no meaningful limits on the spheres in which one can use that wealth.

Going forward, too, there is little we can do about the Tribune bid, but should media corporations not be able to be subsidiaries? If so, what good definitions of media do we have? Just as many companies are becoming banks, many companies are also becoming media, in one way or another. What is Google if not a media company? How do we compare Google to the Tribune? We need a new competition policy for an information era, and I don't know what that looks like.

These are constitutional questions -- just as much if not more as Buckley v. Valeo is a constitutional question. They go to how we constitute ourselves, what we are made of. Our critical rights exist on top of our collective constitution, and the most virile rights will do little if the substructure is weak.

In Benjamin Franklin's written speech at the beginning of the Constitutional Convention, he argued:

Sir, there are two passions which have a powerful influence in the affairs of men. These are ambition and avarice -- the love of power and the love of money. Separately, each of these has great force in prompting men to action; but, when united in view of the same object, they have, in many minds, the most violent effects. Place before the eyes of such men a post of honor, that shall, at the same time, be a place of profit, and they will move heaven and earth to obtain it.

Franklin was animated by the fear that people would go into public office in order to get rich and powerful. He was troubled by the history of office-buying and selling in England. With the Koch brothers, they are buying offices wholesale, and the joined love of money and power is already having "the most violent effects" on the minds of the country. Their industries are both polluting and using a blend of paid media, paid pundits, paid think tanks and electoral spending to make sure that nothing serious is done about climate change. If they are willing to change the seasons of the year, we must be willing to change something far less permanent: the nature of our markets.