When the ledger is hidden, liberty is already wounded

The Washington Examiner reports that more than five hundred hospitals, spread across forty-five states and the District of Columbia, are openly defying federal law requiring them to publish their prices. The piece states plainly that this is not a glitch but a business model — meaning the concealment is calculated, not accidental. Let that settle for a moment. An institution that holds a citizen's life in one hand and his bill in the other has chosen to keep the bill secret, and has done so long enough that the pattern is now unremarkable.

I confess I knew nothing of modern hospital finance or the particular statutes at issue — that knowledge belongs to this century, not mine. But the shape of the civic problem is as old as commerce itself. When a party to a transaction possesses all the information and the other party possesses none, there is no bargain — there is only surrender. A citizen who arrives at an emergency room does not arrive as a free negotiating agent. He arrives in pain, often in fear, and entirely without alternatives. To meet that citizen with a hidden price list is to treat him not as a free man but as a captive.

I have long held that monopoly and opacity are two faces of the same coin. The great danger I warned my countrymen against was not merely the king's prerogative but any accumulation of power — public or private — that removed the citizen from the equation. A hospital network that dominates a region and refuses to disclose its charges has become, in practical effect, a private legislature: it sets the law of prices for everyone within its reach, answers to no electorate, and suffers no meaningful consequence. That is not a market. That is a private government, and private governments are no friends to liberty.

The Washington Examiner notes that the noncompliance is spread across forty-five states — which tells me that neither the federal mandate nor the state regulatory arms have yet found an enforcement mechanism with sufficient force. Here I would counsel the friends of federalism to be honest with themselves: where a harm is this geographically diffuse, and where the injured party is every ordinary citizen who cannot shop among hospitals as he might shop among merchants, the argument for a robust federal remedy is at least as strong as the argument for leaving it to the states. I say this as one who distrusted consolidated federal power with considerable consistency — but I also said that the general government must be adequate to the general good. Selective transparency is not a general good.

What is the remedy? First, disclosure — real, machine-readable, enforced disclosure, with penalties that actually sting institutions of this size. (I mark this inference, not recollection: fines calibrated to a small business will not move a multi-billion-dollar health system.) Second, an educated citizenry that understands it has a right to this information and demands it. The press — imperfect as it always is — has done its duty here by naming the offenders and calling the concealment what it is. That is exactly the press's republican function, and I honor it. The rest is up to the citizen and to the representatives he sends to do his bidding. A republic that cannot compel its most powerful private institutions to tell the truth about their prices has already ceded a portion of its sovereignty to those institutions — and sovereignty, once ceded, is slow to be recovered.