Monday, October 29, 2018

Government by Consent or Expertise

I’ve been going through a Hillsdale online course (their newest, I think) called Congress: How It Worked and Why It Doesn’t. In his introduction, Hillsdale President Larry Arnn points out that the title refers to both past tense—“when it worked”—and present tense—“it doesn’t.” There isn’t anything in the title that says, “And how we get it to work again.” I’m halfway through, but I’m hoping there will be something hopeful like that.

Anyway, in our ongoing primer on the Constitution here, it’s appropriate to talk about what has been going awry with Congress over the past century.

According to Article I of the Constitution, legislation happens in the legislature, composed of two houses: the House of Representatives, which is based on population, and the Senate, which provides equal representation for the states. The two houses have to come into agreement on any legislation that they pass along to the president for his signature, before it becomes law.

But the self-proclaimed progressives, such as President Woodrow Wilson, and others of his time—Herbert Croly, John Dewey, both Theodore and Franklin Roosevelt—thought they knew better than the founders about how things should be run.

They set out, rather matter-of-factly, to overturn the US Constitution, and replace it as they saw fit. And they and their followers, over the course of a century, have been far too successful.

The idea, they claimed, was that life in the industrialized world was too complex to be handled by anyone but experts. They liked the idea of using the legislature to express the general will of the people—a desired outcome, like clean water or safer working conditions, for example—and then turning over all the details to some expert administrative body.

They claimed that this would better do the will of the people, and do it more efficiently—and separately from politics.

Dr. Kevin Portteus
screen shot from lecture 5 of
Congress: How It Worked and Why It Doesn't

Dr. Kevin Portteus, the teacher of this Hillsdale course, in Lecture 3: “Politics and Administration,” offers this definition:

Politics is politics in what we might think of as the ordinary sense, the martialing of votes, the changing of public opinion, and the enactment of a political program. Whereas, on the contrary, administration constitutes the implementation of the broad policies laid out in the political process.
It didn’t matter to the progressives that the legislature would be giving up their lawmaking power. Their “progressive” vision was all that mattered.

So Congress would pass vague “laws” requiring a general desired outcome. And they’d turn over the authority to accomplish that to administrative bodies of bureaucrats, with practically unlimited authority to set the rules, enforce them, and adjudicate disputes—all branches of power in one.

So now, besides voters and elected officials, the process has a third party. Dr. Portteus describes these extra-constitutional lawmakers, and three basic characteristics required in order to be one. Pay attention to the second one; there’s a lot there. And then, if you understand the second, how do you square that with the third?

That’s the bureaucrat, the administrator, the official. What does he look like? Well, Croly says, “The experts charged with the administration of these laws would become the official custodians of a certain part of the accepted social program. In other words, they must implement some portion of the progressive social platform. So if you’re put in charge of EPA, your job is to implement clean air and clean water policy. That’s your corner of a just society that’s your responsibility.
But, in order to do that, we need people who have three basic characteristics.
The first one is that they’re experts. They have to be trained experts in their particular fields. And we’ve seen this.
The second attribute of a progressive bureaucrat is that he be independent of the partisan political process. And this was the driving force throughout the Twentieth Century behind the creation of entities like independent regulatory commissions. Get the policymakers out of the electoral process, and get them out from under the control of elected officials, so that the people—public opinion—and the people’s elected representatives don’t get in the way of the application of expertise to solve these social problems.
It’s kind of interesting, when you think about it, because, in the progressive mindset, we’re going to have bureaucrats who are pretty far removed from the political process. And if you follow the logic of this argument, the end result of restricting the people’s ability to control government officials—the end result of that is going to be greater implementation of democracy. That is to say, the goals stated in the people’s legislation are going to be less likely to be subverted, because the people who are implementing them are going to have no interest except serving the public interests.
It sounds kind of naïve to us, but they really believed this. They really believed that you were going to have these people who were not gripped by self-interest in the way that the rest of us were, that somehow they would be outside of the ordinary limitations or foibles of human nature. And they would be responsive only to the public good.
And they really believed this. This was not cynical on their part. They were serious.
But, there was one other characteristic that you could not get around. And that is that these people must be committed progressives. They cannot be anti-progressives. Because, if they’re not committed progressives, then they will not zealously enforce the mission of the agency of the program over which they were put in charge.
Because, the danger in that circumstance is that, if such a person is put in charge of a program or of an agency, he would use that position as a vehicle for circumventing the will of the people as stated in legislation.
To give an example, a while ago, about ’99 or 2000, Bill Clinton had to fill a spot on the Federal Elections Commission, and he chose to fill that spot with a man named Bradley Smith. Now, Brad Smith is the expert in federal campaign finance law. And, so, there’s no doubt that he knows his stuff. And by putting him on the commission, he would be independent of the partisan political process. Now, Smith recounts in his book on free speech that his chief opponent, when he was nominated, was Clinton’s own vice-president, Al Gore. And, as Smith recounts in his book, he says, “The reason that Gore opposed me was not because I didn’t know my stuff, and it’s not because I was going to be a captive tool of special interests, because I had my position on the committee. What he objected to was the fact that I questioned the wisdom and the constitutionality of current and proposed campaign finance restrictions. In other words, that I was not committed to zealous enforcement of federal campaign finance programs and the implementation of new and ever more restrictive programs.”
So, you can’t have someone who doesn’t believe, for instance, in greater restrictions on pollution at the head of the EPA. That person is, by definition, because of ideology, ineligible for the position. He must accept—the progressive administrator must accept the basic progressive impulse of society and of the program he is supposed to run. And, as Croly says, “He qualifies for his work as an administrator quite as much by his general good faith as by his specific competence.” So, in other words, as important as his technical ability is his commitment to progressivism.
So, non-progressives, if you want to call them conservatives, are by definition ineligible to hold any of these administrative positions.
You saw similar dismay over various Trump appointees, but in particular Betsy DeVos over Education. The Department of Education still exists at the federal level after almost two years—which is disappointing to some of us. But the fear from the other party is that she might “gasp!” find something to cut. And the very nature of a federal agency is that it must keep growing. Reagan found similar pushback on his policies as well, even failing to end the then-new Department of Education.

In this and other agencies, some of the difficulty come from within the agency. Perhaps not every employee in an agency is a fully committed progressive (which means Democrat or socialist, but only very rarely a non-conservative Republican). But most are, by definition.

Thomas Sowell
image from here
There’s a story, a pivot point Thomas Sowell talks about his time at the Labor Department, after finishing his PhD in Economics as a Marxist. In short, he was studying the sugar industry of Puerto Rico, and whether the Labor Department’s setting of minimum wages was leading to unemployment. There was a way to test whether this was true, or whether a competing theory about hurricanes harming the crops was the cause. Thomas Sowell figured out they could get data about crops standing in the fields before hurricanes to tell them. That data wasn’t in the Labor Department; it was in the Department of Agriculture. There was huge pressure not to even ask for it, but he filed a request:

That was 1960. I have yet to receive an official reply to my request.
This was more than an isolated incident. It forced me to realize that government agencies have their own self-interest to look after, regardless of the interests of those for whom a program has been set up. Administration of the minimum wage law was a major part of the Labor Department’s budget and employed a significant fraction of all the people who worked there. Whether or not minimum wages benefited workers may have been my overriding question, but it was clearly not theirs. They had reasons to want to believe that it did, but no real incentive to probe too deeply to find out.[i]
Learning that the administrative state had nothing to do with helping people, but only in preserving their own jobs, or putting forward their own ideology—that’s when Thomas Sowell went from Marxist to free-market economist.

In Lecture 5, “Legislation and Regulation,” Dr. Portteus says that government by consent, which we have in the Constitution, and government by expertise, as in the administrative state, are mutually exclusive.

What’s more, any intention of insulating the administrative lawmaker from politics is an abject failure. As Dr. Portteus concludes: 

It does not insulate rule makers from legislative politics. Regulatory agencies are buffeted by all of the political forces that affect legislators and sometimes more so.

It does not base rules on expertise, or even reason. And the CAFE[i] standards example is a wonderful case in point in this regard. And at the end of the day, it doesn’t serve the public interest. That is to say, this process gives undue weight to organized special interests, who influence the regulators and key politicians.
This is why, for instance, it has become so critically important, if you own a business of even modest size, that you have a lobbying operation….
So the regulatory process is something very different from the legislative process…. Over the course of the 20th Century, the regulatory process developed and established in the Administrative Procedure Act is a very different way of making policy from the process established in the Constitution for making laws. The modern one attempts to substitute for, and posit itself as, the parallel legislative process. But it really leads to a transformation of the regime, because it yields a transformation in the way legislation is made.
Another day we can talk about what Congress is doing with its time, if it isn’t making laws. But for now, let’s just remind ourselves of this Spherical Model axiom:

Whenever government attempts something beyond the proper role of government (protection of life, liberty, and property), it causes unintended consequences—usually exactly opposite to the stated goals of the interference.

[i] Thomas Sowell, A Person Odyssey, © 2000, pp. 130-131.
[ii] CAFE is Corporate Average Fuel Economy

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