Government and Politics

January 9, 2020 10:04AM

How to Make Congress Great Again

As I’ve argued repeatedly, Congress is a shell of its former self.

In last Sunday’s Washington Post, Paul Kane made the same point specifically with respect to Congress’s upper chamber. He wrote:

The Senate tasked with holding President Trump’s impeachment trial would be unrecognizable to most of its predecessors … By almost every measure, today’s Senate is the least deliberative in the modern era of a chamber that bills itself as the world’s greatest deliberative body.

Congress’s weakness threatens liberty because it reflects a breakdown of the Constitution’s structural check on overbearing government. In modern America, policy flows from regulatory agencies known in the aggregate as the “administrative state.” From 1995 to 2017, the executive branch issued over 92,000 rules, compared to 4,400 laws enacted by Congress.

Over the last forty years, alas, Congress abandoned oversight of the agencies it had legislated into existence. Meanwhile, the president’s grip over administrative policymaking tightened with each successive administration.

With Congress M.I.A., the president has become the policymaker‐​in‐​chief at the head of the administrative state. Indeed, the presidency has become so powerful that one of the two parties in Congress—roughly half the legislature—loses interest in executive overreach whenever “their guy” occupies the White House.

Our constitutional system of separate and competing powers—a bulwark for liberty—is dangerously out of whack. Which raises a crucial question: What do we do about it?

In the latest issue of InFOCUS quarterly, I offer a menu of options to “Make Congress Great Again”:

So, how do we make Congress great again?

Congress might be compelled to get its act together, even if it doesn’t want to.

For almost 80 years, the Supreme Court has refused to police how much power Congress transfers to the executive branch … [Yet] [f]or the first time since the New Deal‐​era, a majority on the Supreme Court has expressed a willingness to revisit the nondelegation doctrine. Were the Court to add teeth to its “intelligible principle” test, then Congress would be forced to curtail the breadth of its delegations to the executive branch.

Turning from the Supreme Court to Congress, there are many institutional reforms that the legislature could take to empower itself vis‐​a‐​vis the presidency.

Starting with the easiest measures, Congress could remedy its anemic staffing. In fact, the current level of committee staffing is commensurate with levels from the early 1970s, even though government has grown much larger and more complex in the five decades since.

Congress also could create new institutions to better compete. In the early 1980s, the president unilaterally established the Office of Information and Regulatory Affairs (within the Office of Management and Budget) to manage regulations out of the White House. Yet Congress has no commensurate capacity. There is an obvious need for Congress to create its own comparable mechanism to oversee agency rules.

Congress could adopt simple legislative fixes. For example, lawmakers used to regularly limit the clock on their delegations, such that an agency’s regulatory authority expired after a given time. These “sunset” provisions force Congress to periodically review the programs it creates, before these regimes are re‐​authorized.

Or lawmakers could make greater use of “resolutions of disapproval,” which allow them to veto individual regulations … 

If it wanted to get bold, Congress could pass more comprehensive reform. The Regulatory Accountability Act, for example, would require agencies to better justify rules that cost more than $100 million.

And if Congress wanted to regain the upper hand in one fell swoop, the House and Senate would get behind the REINS Act, which would require both chambers of Congress to approve all major regulations before they took effect.

These reforms are fantastic ideas, to be sure, but they’re all nonstarters for as long as love of party trumps institutional pride in Congress. You can lead a horse to water, but you can’t make it drink. Even were Congress to pass REINS, no doubt the House and Senate could find a way to avoid accountability.

Most likely, we need a new type of lawmaker, one who is cut from old cloth …

Read the whole thing here.

January 2, 2020 10:42AM

Wall Street Journal Editorial Board Misses the Mark on Congressional Staffing

Most days, the Wall Street Journal OpEd page runs multiple unsigned editorials next to the letters and across from the opinion columns. Last Friday, however, the Editorial Board gave its entire platform to a single composition, titled “Elizabeth Warren Has a Plan, Oh My.”

The editorial’s thesis is to “show where the American left wants to go” by presenting Senator Elizabeth Warren’s (D‑Mass.) campaign platform for president, which “exceeds what the socialist dreamers of a century ago imagined.”

The guts of the editorial are 26 bullet points each describing Warren’s policy initiatives, including “Wealth tax,” “Medicare for all,” and “Free college.” After listing Sen. Warren’s various “plans for that,” the WSJ Board concludes:

All this adds up to such an expansion of government that the temptation is to dismiss it as fanciful. But Ms. Warren is a shrewd and disciplined politician who isn’t supporting these ideas on an ideological whim … The question for Democrats: Is this the agenda they want to put forward in 2020?”

For my part, I’d add that Republicans are little better than Democrats on this score, at least in practice (if not in campaign rhetoric). Last month, for example, large bipartisan majorities in Congress passed a $1.43 trillion spending bill—up $50 billion over the previous year—that also raises the legal vaping age to 21. Our Republican president quickly signed the package. The upshot is that both parties collaborated on a spending bill defined by principles of Big Government and the Nanny State.

Setting aside the limited scope of the Editorial Board’s case, I have a bone to pick with one of their policy arguments against Sen. Warren.

Specifically, the editorial’s last bullet point, titled “Miscellaneous,” includes Warren’s pitch to “give congressional staff ‘competitive salaries.’” If the WSJWSJ‘s‘s institutional voice is to be believed, then lawmaker spending on congressional staff reflects the “expansion of government” and even “socialism.”

I share the Board’s concern regarding overweening government, but I think the editorial misses the mark on Congress’s support personnel. Though perhaps counter‐​intuitive, investment in congressional staff is an essential complement to the WSJ’s avowed goal—that is, checking the “expansion of government.”

Of course, Big Government today is largely coterminous with the administrative state. From 1995 to 2017, the executive branch issued over 92,000 rules, compared to 4,400 laws enacted by Congress. The regulatory agencies behind all this lawmaking didn’t materialize from thin air; rather, they were created by legislation, and Congress paired these “delegations” with an oversight framework.

Passed during the administrative state’s adolescence, the 1946 Legislative Reorganization Act established Congress’s strategy for supervising the regulators. The Act tasked issue‐​specific committees with a duty to conduct “continuous watchfulness” over administrative policymaking. To execute this mandate, the Act provided committees with professional staffs.

By design, therefore, committee staffers are crucial cogs in Congress’s oversight machinery, and this understanding served as conventional wisdom among lawmakers through much of the last century. Yet this prevailing sense abated during the 1980s and, ultimately, disappeared by the mid‐​1990s.

What happened? A shifting power landscape on Capitol Hill led to the decline of staff, both in status and number.

After World War Two, committees were the most consequential institutions in Congress; now, parties fill that role. Part of the reason for this change is demographic: The parties became more homogenous with the demise of southern Democrats and northeastern Republicans. At the same time that party rank‐​and‐​file were taking on hive‐​minds, opportunistic party leaders gamed the House and Senate rules to centralize power in their hands.

For ascendant party leadership in Congress, strong committees were a roadblock to the consolidation of authority. To weaken committees, party leaders sought to weaken committee staff.

Matters came to a head in 1995 on the first day of the 104th Congress, when Speaker Newt Gingrich and Republican leadership slashed committee staff by one‐​third, and the Senate soon followed suit. Because it was in the interest of both parties’ leaders to subdue committees, staffing never recovered

For example, there were 2,115 professional personnel in House and Senate standing committees in 2015, or less than two‐​thirds the total in 1991 (3,528). To be fair, party leaders invested in some parts of Congress–themselves. From 1995 to 2011, House and Senate leadership staff increased 35 percent and 38 percent (respectively).

Simply put, Congress doesn’t have the tools to oversee the administrative state it created. The WSJ grows a false narrative when its Editorial Board opines that Warren’s plan for congressional staff reflects an “expansion of government.” In a less sincere tone—his real purpose was power—Rep. Gingrich advanced the same arguments when he dropped the ax on committee staff in 1995. Though untrue and often disingenuous, it makes for a great talking point to claim that Congress should lead by example by starving itself in the name of fiscal prudence. Anyone who claims otherwise is branded as a spendthrift. That’s why staffing levels have never recovered.

In conclusion, I’ll turn to R St. Institute’s Casey Burgat, who’s been sounding this alarm for a while. He warns:

As the size and complexity of the federal government has continued to grow, Congress has deprioritized spending within the offices most responsible for legislating and conducting Executive Branch oversight.

December 18, 2019 5:30PM

It’s Not True That Impeachment Paralyzes Government (Unfortunately)

It’s a “solemn” and “sad” affair, impeachment: there are so many reasons to wear black. That’s what the pols and pundits tell us, anyway. Tonight’s House vote will unleash a host of plagues: stoking partisan furies, rattling the markets, and— worst of all from this town’s perspective—distracting Congress and the president from doing “the people’s business.” We’re in for a period of “squandered months during which official Washington is pulled apart,” U.S. News’s Kenneth Walsh warned in late September: brace yourself for “The Coming Impeachment Paralysis”


Some of us don’t find that prospect particularly terrifying, but your mileage may vary. In any case, after last week’s legislative onslaught, can we finally put this particular hobgoblin out to pasture—or wherever it is that worn‐​out hobgoblins go? For better or worse, it’s just not true that “nothing gets done” during an impeachment.

“Hidden by impeachment: ‘One of Trump’s best weeks yet,’” the Washington Examiner’s Paul Bedard crowed on Friday. In the midst of the impeachment drive, the president just keeps putting points on the board, including “a new U.S.-Mexico-Canada trade deal,” confirmation of his 50th appellate judge, “government family leave,” and—cue “Also Sprach Zarathustra”—Space Force! The New York Times hailed the $738 billion “defense” bill, which includes paid parental leave for over 2 million federal workers, as “part of a year‐​end burst of bipartisan legislating that has broken out this week, even as the Democratic‐​led House moves toward impeaching Mr. Trump.”

That impeachment paralyzes the government isn’t true now, and it wasn’t true in past impeachment struggles either. The 93rd Congress passed, and Richard Nixon signed, four major bills in between the House’s formal approval of the inquiry in February 1974 and the president’s resignation six months later. One of those laws, the Impoundment Control Act, you may have heard about in recent weeks: President Trump may have broken it when he held up military aid to Ukraine this summer. Of course, Watergate became all‐​consuming before the House voted for an impeachment inquiry. If you start the clock closer to when Nixon’s troubles really took off—say with the Saturday Night Massacre in late October ’73—you can add another half‐​dozen, including the War Powers Resolution (passed over Nixon’s veto) and the Endangered Species Act.

More recently, President Clinton signed four major bills during his impeachment “journey,” even while soul‐​searching for “the rock‐​bottom truth of where I am and where we all are,” after his fling with an intern. In October 1998, the “people’s business” included the Children’s Online Privacy Protection Act, the Digital Millennium Copyright Act, and the Iraq Liberation Act. For my money, the people would’ve been better off without most of those, particularly the latter, which became a vital talking point for Iraq hawks in the run up to George W. Bush’s disastrous war. But if, like House Minority Leader Kevin McCarthy, you measure legislative “productivity” in terms of big bills passed, that was a fairly productive session.

It’s true, nothing much is likely to get done for a month or so after the holidays, while the Senate holds President Trump’s impeachment trial. “The legislative and executive business of the Senate shall be suspended” while it’s ongoing, per the Senate Rules. But maybe we could use a break.

December 6, 2019 1:42PM

Big Government Conservatism Returns

Donald Trump ran and won by opposing many traditional Republican candidates and ideas. However, for two years or more, his administration seemed a lot like a traditional Republican administration though its President behaved rather differently than other presidents of either party. Now intellectuals are coming forth with manifestos articulating Trump’s revolution three years after the barricades were stormed. For example, we have For Real American Greatness, A Tech New Deal.

Readers interested in policy will be disappointed, even frustrated with this manifesto. It has one concrete proposal – prohibit Facebook’s Libra cryptocurrency. The rest is a mixture of mood, allusion, and “the future that awaits Americans” if the new conservativism is accepted. Presumably this document adumbrates the changed outlook of the new conservatives, and policy wonks will follow with their concrete proposals.

Let’s begin with five words in the title: American Greatness, tech, and New Deal. Conservatives embracing the New Deal, not as fact but as ideal, might seem strange. But many believe the Reaganite small government philosophy no longer sells on election day so new (old) ideas are warranted. How about American Greatness? Ok, but that’s not a new idea either: recall the American Greatness conservativism of 1997? They too rejected “the antigovernment, ‘leave us alone’ sentiment” and weren’t “unfriendly to government, properly understood.” The earlier American Government conservatives ended up wanting wanted to govern Iraq, not Facebook. Maybe with “tech” things will turn out better, though neither crusade has shown much concern for collateral damage.

Make no mistake, the new conservatives believe in government: “America’s innovative power and technological leadership are vital strategic assets. They must be safeguarded and leveraged with a new framework of policy and politics by the people, for the people, and of the people.” I am not certain how one uses a framework to safeguard and leverage “America’s innovative power and technological leadership.” But our authors are clear that private innovation and technological leadership are mere assets in the service of public power. Concretely, the talents and property of individuals are to be “leveraged and safeguarded” for collective ends. Indeed, our authors note that “like all corporations, tech firms exist at the sufferance of US law.” That would indeed imply a certain leverage for those who make law, at least. That does have a New Deal sound to it.

Our authors assert this change in outlook and doctrine is a necessary response to changes in the world: “Trump is a consequence of deeper causes that neither politics nor anything else can now reverse.” What might those causes be? I am not certain. The next sentence states:

Our digital technology has formed a new social and psychological environment that reshapes our very souls—our perceptions, sensibilities, and our habits of the heart.

Did Trump reshape our souls through his tweets? Or did a plurality recognize their souls were being reshaped and turned to Trump for relief?

Beyond this confusion, it’s interesting that self‐​identified conservatives would put so much weight on discontinuity. You can hardly continue past practices if people have had their souls reshaped. You could reach back beyond the immediate to the distant past, and the authors do gesture toward “America’s founding documents” in their conclusion. But then you would be fostering significant change if not revolution. You would hardly be a conservative. Perhaps we might conclude, if we know something about Leo Strauss and the Claremont Institute, that the authors are actually advocating we consult the documents of the second (and real) Founding, the New Deal mentioned in the title.

A leading if not dominant view now sees politics as constituted by “the distinction between friend and enemy.” Our authors have written a political document in that sense; tech companies are not their friends.

But thanks to the domineering influence of Silicon Valley’s own woke vanguard, the Right now recognizes that top tech companies are sowing threats to our most basic ways of political life.

Enemies threaten us in some way. Or in this case, many ways:

Speech controls are seen on the Right to betoken a deep anti‐​constitutionalism; the leading tech role in “woke capital” evinces a sweeping anti‐​Americanism; commitments to globalism at any price, even partnering with Chinese government researchers to develop tools with military applications, reveal anti‐​Western attitudes; and, finally, artificial‐​intelligence projects surpassing or consuming the capabilities and consciousness of users lay bare an anti‐​human philosophy.

Say what you will about this document, it is not short on political aspirations. Tech people are said to be against the Constitution, against America itself, against Western civilization, and against humanity while helping the Chinese develop their military. No wonder tech needs regulation!

The authors would have been more persuasive had they been more specific in their indictment of the tech companies. Perhaps their intended audience knows the specifics already and needs no persuasion. But their assertions are far from obviously correct.

Consider only the “anti‐​constitutional” charge against the companies. A lot of history and Supreme Court doctrine says the First Amendment does not constrain tech platforms. In line with their expansive view of government, our authors seem to think the private property of shareholders in Facebook and other companies are “our public square.” That seems implausible, and within the American framework, deeply anti‐​constitutional. Such demands carry little force absent arguments for what is after all, a significant change in the line between public and private.

In the end, our authors’ essay is not adequate to their aspiration toward a new American nationalism. After all, the nation’s elites, if not its citizens, are divided not least about what it means to be an American. But our authors’ strong view of the nation and its values is held by a minority, the people who are expected to affirm the mood of this essay. But our authors cannot and would not wish to impose their view of the nation on the majority of their fellow citizens that do not share that mood. They must persuade the unconvinced and that they have barely undertaken in this parade of unsupported assertions. Moreover, their heavy demonization of tech people will inevitably divide rather than unite Americans around any national ideal, including their own. For American Greatness fails on its own terms.

But perhaps its terms are misconceived. America is not an organic whole led by benevolent guardians toward national greatness. Our government is rather a set of institutions created to enable individuals to pursue their aspirations in justice and peace. Inevitably our success is measured by individual liberty not collective attainments, by mostly private rather than mostly public efforts. Such individualism will not satisfy collectivists urging identity politics or national greatness. But that individualism has been and will be the true source of American greatness.

December 5, 2019 12:25PM

Give the Gift of P. J. O’Rourke

The Cato Institute offers lots of great Christmas gifts — Pocket Constitutions (also a good gift for Bill of Rights Day!), books, apparel, even Cato‐​branded Lands’ End merchandise. But I have my own holiday recommendations that I’ve made before.

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I decided one year to give a young colleague a post‐​graduate course in political science and economics — P. J. O’Rourke’s books Parliament of Whores and Eat the Rich. So I went to my local Barnes & Noble to search for them. Not in Current Affairs. Not in Economics. No separate section called Politics. I decided to try Borders (RIP). But first — to avoid yet more driving around — I went online to see if my local Borders stores had them in stock. Sure enough, they did, in a couple of stores just blocks from the Cato Institute. Checking to see where in the store I would find them, I discovered that they would both be shelved under “Humor–Humorous Writing.” Oh, right, I thought, they’re not books on economics or current affairs, they’re humor.

Yes, P.J. is one of the funniest writers around. But what people often miss when they talk about his humor is what a good reporter and what an insightful analyst he is. Parliament of Whores is a very funny book, but it’s also a very perceptive analysis of politics in a modern mixed‐​economy democracy. And if you read Eat the Rich, you’ll learn more about how countries get rich — and why they don’t — than in a whole year of econ at most colleges. In fact, I’ve decided that the best answer to the question “What’s the best book to start learning economics?” is Eat the Rich.

On page 1, P. J. starts with the right question: “Why do some places prosper and thrive while others just suck?” Supply‐​and‐​demand curves are all well and good, but what we really want to know is how not to be mired in poverty. He writes that he tried returning to his college economics texts but quickly remembered why he hated them at the time–though he does attempt, for instance, to explain comparative advantage in terms of John Grisham and Courtney Love. Instead he decided to visit economically successful and unsuccessful societies and try to figure out what makes them work or not work. So he headed off to Sweden, Hong Kong, Albania, Cuba, Tanzania, Russia, China, and Wall Street.

In Tanzania he gapes at the magnificent natural beauty and the appalling human poverty. Why is Tanzania so poor? he asks people, and he gets a variety of answers. One answer, he notes, is that Tanzania is actually not poor by the standards of human history; it has a life expectancy about that of the United States in 1920, which is a lot better than humans in 1720, or 1220, or 20. But, he finally concludes, the real answer is the collective “ujamaa” policies pursued by the sainted post‐​colonial leader Julius Nyerere. The answer is “ujaama—they planned it. They planned it, and we paid for it. Rich countries underwrote Tanzanian economic idiocy.”

From Tanzania P. J. moves on to Hong Kong, where he finds “the best contemporary example of laissez-faire.…The British colonial government turned Hong Kong into an economic miracle by doing nothing.”

You could do worse than to take a semester‐​long course on political economy where the texts are Eat the Rich and Parliament of Whores. So, bookstore owners, leave them in the Humorous Writing section for sure, but also put copies in the Economics, Politics, and Current Affairs sections.

Still time to buy them for Christmas and educate all your family and friends while they think they’re just being entertained!

November 27, 2019 3:21PM

Voters Like Benefits But Don’t Like Paying for Them

A banner headline in the (paper) Washington Post today reports:

Poll: Americans like Green New Deal’s goals, balk at cost

Funny, that. When you ask Americans if they support a proposal that would “create millions of good, high‐​wage jobs and ensure prosperity and economic security for all people of the United States; invest in the infrastructure and industry of the United States to sustainably meet the challenges of the 21st century; [and secure] clean air and water; climate and community resiliency; healthy food; access to nature; a sustainable environment; and justice and equity” — they approve!

But when you tell them that it might “increase federal spending by trillions of dollars”—gee, ya think?—support collapses:

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This is not a new phenomenon, but it’s good to see leading pollsters such as the Washington Post, the Kaiser Family Foundation, and the National Opinion Research Center (which conducted the poll) picking up on the point. Cato’s director of polling, Emily Ekins, has found similar results:

The Cato 2018 Health Care Survey…first replicated the results from myriad other surveys finding a majority (65%) of Americans favor regulations that prohibit insurance companies from refusing to cover, or charging higher premiums to, people with pre‐​existing conditions, while 32% oppose. However, support plummets when Americans are faced with likely consequences of these regulations.

The new Cato 2018 Paid Leave Survey of 1,700 adults finds that nearly three‐​fourths (74%) of Americans support a new federal government program to provide 12 weeks of paid leave to new parents or to people to deal with their own or a family member’s serious medical condition.… However, majorities of Americans would oppose establishing a federal paid leave program if it cost them $450 a year in higher taxes.

Advocates often present policymakers with polls that show popular support for some proposed government program — the Green New Deal, paid family leave, child care, free college, etc. But those polls never seem to point out the costs of the free service. When a poll does note costs, support tends to drop by a lot.

Note that even this Post‐​Kaiser poll mentions the large increase in federal spending, but doesn’t point out that federal spending has to be paid for with taxes. In polls about “larger government with more services,” there’s evidence that if you remind respondents that “more services” means higher taxes, the margin by which people prefer “smaller government with fewer services” rises by about 9 points. So if Post‐​Kaiser had also asked respondents whether they would support the Green New Deal if it meant substantially higher taxes, support would have fallen further below 30 percent.

Any policymaker trying to ascertain what voters want should remember to look at both sides of the ledger: what they say they want in theory, and what they’re willing to give up to get that benefit.

November 25, 2019 3:29PM

Women Too Gutsy for Hillary Clinton

Hillary Clinton and Chelsea Clinton have a new book out, The Book of Gutsy Women. The publisher says they “share the stories of the gutsy women who have inspired them—women with the courage to stand up to the status quo, ask hard questions, and get the job done.” They certainly tell the stories of some inspiring women — Harriet Tubman, Helen Keller, Anne Frank, Maria Montessori, Marie Curie, and more. But I couldn’t help noticing some women who didn’t make it into the book’s 432 pages.

  • not Margaret Thatcher, who fought every day to make her way up in an almost totally male‐​dominated political system;
  • not Ayn Rand, who fled the Bolshevik revolution to become a bestselling novelist of ideas in her third language;
  • not Jeannette Rankin, the first woman elected to Congress, who became the only Member of Congress to vote against U.S. participation in both World War I and World War II;
  • not Anne Hutchinson, who fought the Puritan theocracy of Massachusetts and was banished from the colony;
  • not businesswomen such as Helena Rubinstein, Elizabeth Arden, and Estee Lauder, all of whom climbed out of poverty and built major cosmetics businesses;
  • not Marva Collins, Virginia Walden Ford, and Eva Moskowitz, who fought to give poor families alternatives to failing public schools;
  • not Lilli Vincenz and Barbara Gittings, who came out of the closet and fought for gay and lesbian rights when doing so could mean losing one’s job, family, or life;
  • not Deirdre McCloskey, who as a successful 53‐​year‐​old economist in 1995 decided to recognize her female identity and transition.

I suppose these women were just a bit too gutsy for the authors. Thatcher too capitalist, Rand too individualist, Rankin too antiwar, and so on. These women epitomize the line from historian Laurel Thatcher Ulrich: Well‐​behaved women seldom make history. And they don’t quite fit the parameters of Hillary and Chelsea Clinton’s East Coast Establishment woke‐​but‐​not‐​too‐​woke liberalism.