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.
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| 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.
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| 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
