As 2014 drew to a close, the mainstream media were full of laments about the “least productive Congress.” Or more precisely that the just‐concluded 113th Congress was the secondleast productive Congress ever (since the mid‐1940s when these tallies began), second only to the 2011-12 112th Congress. But what’s the definition of a “productive Congress”? One that passes laws, of course, lots of laws. Congress passed only 297 laws in the past two years, exceeded in slackerdom only by the 284 laws passed in the previous two years of divided government.
All this productivity analysis assumes that passing laws is good, and passing more laws is better. But as the year ended, we also saw plenty of indications that many, perhaps most, laws — that is, most mandates, bans, regulations, taxes, subsidies, boondoggles, and transfer programs — do more harm than good.
Two articles in the Washington Post on December 6 reminded me that too many laws impede enterprise, charity, innovation, and growth.
Brian Levy is vice president of a company that works to develop and fund energy efficiency and renewableenergy projects. Inspired by the “micro‐houses” movement, he decided to build his own tiny house in the expensive District of Columbia. For $77,000 he built a house that’s 11 feet wide and 22 feet long, with 210 square feet of living space. It has a galley kitchen and a full‐size bed, the Post reports — although he can’t sleep overnight there because of a provision in District law.” A 210‐squarefoot house wouldn’t be my cup of tea. But it’s his house, and it won an Award of Merit from the American Institute of Architects. Why can’t he live there? Because, the Post reports, “the alley next to his lot is not 30 feet wide and does not connect to a public street.” So much for encouraging innovation and the green economy.
Another story the same day reported that the Charles Darwin Research Station on the Galapagos Islands, off the coast of Ecuador, supports itself by operating a small store — “selling mostly clothing with the Charles Darwin Foundation’s logo. But then it added swimsuits, sunglasses, Ecuadoran chocolate and artwork, and the local traders cried foul. A local mayor agreed and shut down the store.” The Research Station is also hampered by a U.S. tax provision that prevents the Galapagos Conservancy from fully funding it. So U.S. tax law and local cronyism may combine to shut down “the oldest and most prominent research organization in the famed archipelago that inspired Darwin’s masterwork, On the Origin of Species.”
Far worse than those unfortunate outcomes was the fate of Eric Garner, who died in a police chokehold after he resisted the attempt to arrest him for selling individual cigarettes — “loosies” — on the street. Why do people sell cigarettes on the street? Because New York has the country’s highest cigarette taxes, and cigarettes smuggled in from low‐tax states such as Virginia can be sold much more cheaply. Garner had been arrested more than 30 times, most often for selling cigarettes on the street. Yale law professor Stephen Carter wrote in the days after Garner’s death:
It’s not just cigarette tax laws that can lead to the death of those the police seek to arrest. It’s every law. Libertarians argue that we have far too many laws, and the Garner case offers evidence that they’re right. I often tell my students that there will never be a perfect technology of law enforcement, and therefore it is unavoidable that there will be situations where police err on the side of too much violence rather than too little. Better training won’t lead to perfection. But fewer laws would mean fewer opportunities for official violence to get out of hand.
In his book Overcriminalization: The Limits of the Criminal Law, Douglas Husak of Rutgers points out that federal law now includes more than 3,000 crimes, and there may be 300,000 or more federal regulations enforceable through criminal punishment at the discretion of an administrative agency. Which is why criminal defense attorney and Cato adjunct scholar Harvey Silverglate titled his book Three Felonies a Day.
As I wrote at USAToday.com, “the more laws we pass, the more chances there are for people to run afoul of the police. Especially when we outlaw peaceful activities, such as smoking marijuana, selling untaxed cigarettes or feeding the homeless.”
If Congress wants to be really productive, it should repeal laws. It could start by reviewing the laws that create 3,000 federal crimes. And federal, state, and local governments should consider whether it’s really a good idea to use armed agents to enforce laws and regulations about selling orchids or raw milk, letting your child play in the park, or writing a school story about killing a dinosaur with a gun.