The Conservative Sensibility Read online

  Still, today’s government, like Gulliver among the Lilliputians, is almost tangled in its thousands of threads of commitments. This presents a striking contrast with the nimbleness of government at the dawn of modern liberalism. On day two of FDR’s famous first hundred days he ordered a national bank holiday. On day five Congress passed his banking bill almost unanimously. On day seven, in spite of a revolt by ninety Democrats, the House passed his bill cutting veterans’ benefits and federal employees’ pay. On day twelve he submitted a farm bill that presaged many of the subsequent follies of federal agriculture programs. The House passed it on day eighteen. On day seventeen, FDR proposed the Civilian Conservation Corps; it became law three weeks later. On day thirty-six he proposed the Tennessee Valley Authority; he signed it into law on day seventy-six. On November 2, 1933, he was given the proposal for a Civil Works Administration to employ people on such public works as street repair and digging sewers. By November 23, 800,000 people were employed; five weeks later, 4.25 million—8 percent of the nation’s labor force. Today it would take many months just to prepare the environment impact statements for such a program.

  The governmental activism of the 1930s, Ronald Reagan’s formative years, may or may not have been, on balance, wise, but at least the activism was driven by something dire—the Depression. Imagine: One day in May 1934 a dust storm, stretching from Texas to Canada and soaring 15,000 feet, blew east. Dust settled on FDR’s desk and on ships hundreds of miles out on the Atlantic. By December, two of every five South Dakotans were on relief—the nation’s highest percentage. In July 1935, the grasshoppers returned. The government activism of the 1960s, the years of Ronald Reagan’s political ascent in opposition to that activism, was driven by the self-interest and hubris of the government. By then, government itself—the governing class—had become the largest interest group, lobbying itself for the enlargement of itself. Other than the Civil Rights Acts of 1964 and 1965, the creations of governmental activism of the 1960s, unlike those of the 1930s, had few glittering consequences because they were not produced by the sort of broad, powerful political forces that produced, say, Social Security and unemployment insurance. What, then, produced much of the activism of the 1960s? A class of professional reformers whose mission was to change the parameters of politics.

  In the 1960s there began the explosive growth in the number of subjects considered political and suited to government attention. Perhaps this had something to do with Lyndon Johnson being the first president to have spent almost his entire adult life in Washington. Be that as it may, by the end of the 1960s, Daniel Patrick Moynihan was worrying about the increasing introduction into politics and government of ideas originating in the social sciences, ideas that promised to bring about social change through manipulation of society’s most basic processes. This was, he said, part of a transformation of politics: “Not long ago it could be agreed that politics was the business of who gets what, when, where, how. It is now more than that. It has become a process that also deliberately seeks to effect such outcomes as who thinks what, who acts when, who lives where, who feels how.”54 This is why, as James Q. Wilson said, there emerged in the 1960s “a true national state within the confines of a constitutional system designed to ensure that no such state would be created.”55

  The administrative state inevitably means executive government and the derogation of the legislative branch, both of which produce exploding government debt. In explaining these perverse effects of progressivism, Christopher DeMuth explains contemporary government’s cascading and reinforcing failures. Executive growth fuels borrowing growth because of the relationship between what DeMuth calls “regulatory insouciance and freewheeling finance.” Government power is increasingly concentrated in Washington, Washington power is increasingly concentrated in the executive branch, and executive branch power is increasingly concentrated in agencies that are unconstrained by legislative control. Debt and regulation are, DeMuth says, “political kin”: Both are legitimate government functions, but both are now perverted to evade democratic accountability, which is a nuisance, and transparent taxation, which is politically dangerous.56

  Today’s government uses regulation to achieve policy goals by imposing on the private sector burdens less obvious than forthright taxation would be, burdens that become visible only indirectly, in slower economic growth and higher prices. Often the goals that government pursues surreptitiously are goals that could not win legislative majorities—e.g., the Environmental Protection Agency’s regulation of greenhouse gases following Congress’ refusal to approve such policies. And deficit spending—borrowing—is, DeMuth says, “a complementary means of taxation evasion.” It enables the political class to provide today’s voters with significantly more government benefits than current taxes can finance, leaving the difference to be paid by voters too young to vote or not yet born.57

  Two developments demonstrate, DeMuth says, how “delegation and debt have become coordinate mechanisms of legislative abnegation.” One is Congress’ anti-constitutional delegation of taxing authority to executive branch regulatory agencies funded substantially or entirely by taxes the agencies levy, rather than by congressional appropriations. For example, DeMuth says, the Federal Communications Commission’s $347 million operating expenses “are funded by payments from the firms it regulates,” and its $9 billion program subsidizing certain Internet companies is funded by its own unilateral tax on telecommunication firms. The Consumer Financial Protection Bureau, another freebooting agency not tethered to the appropriations process, requests and receives a share of the profits of the Federal Reserve banks. A second development is “the integration of regulation and debt-financed consumption.”58 Recently, a 2013 Washington Post headline announced: “Obama administration pushes banks to make home loans to people with weaker credit.”59 This illustrates DeMuth’s point about how unfettered executive government uses debt-financed consumption and “regulatory conscription of private markets” to force spending “vastly beyond what Congress could have appropriated in the light of day.”60

  High affluence and new technologies have, DeMuth believes, “led to unhealthy political practices.” Until recently, the three basic resources required for effective political action—discretionary time, the ability to acquire and communicate information, and persuasion skills—were scarce and possessed only by elites. But in our wealthy and educated society, interest groups can pressure government without being filtered by congressional hierarchies. Legislative leaders—particularly committee chairs—have lost power as Congress has become more porous and responsive to importuning factions using new media. Congress, responding to the increased difficulty of legislating, has delegated much lawmaking to specialized agencies that have fewer internal conflicts. Congress’ role has waned as that of autonomous executive agencies has waxed. The executive has driven the expansion of the consumption of benefits that are paid for by automatic entitlement transfer payments, by government-mandated private expenditures, and by off-budget and non-transparent taxation imposed by executive agencies.61

  Government used to spend primarily on the production of things—roads, dams, bridges, military forces. There can be only so many of such goods. Now, DeMuth says, government spends primarily for consumption: “The possibilities for increasing the kind, level, quality and availability of benefits are practically unlimited. That is the ultimate source of today’s debt predicament. More borrowing for more consumption has no natural stopping point short of implosion.”62 Funding the welfare state by vast borrowing and regulatory taxation hides the costs from the public. Hence its political potency. Until the implosion.

  THE RULE OF “VELLEITIES” VERSUS THE RULE OF LAW

  DeMuth notes that Congress often contents itself with enacting “velleities” such as the wish, found in the 900-page Dodd-Frank financial reform act, that “all consumers have access to markets for consumer financial products and services…[that are] fair, transparent, and competitive.” How many legislato
rs voting for the bill even read this language? And how many who did read it understood that they were authorizing federal rule makers to micromanage, for example, overdraft fees? In Dodd-Frank, Obamacare, and much else, the essential lawmaking is done off Capitol Hill, by unaccountable bureaucratic rule-making. Fish gotta swim, birds gotta fly, and regulators, too, have a metabolic urge to do what they were created to do. Hence, DeMuth says, they often pursue their missions beyond the point of diminishing marginal returns, using health, safety, environmental, and other standards “with costs exceeding any plausible measure of their benefits.” Regulatory power is executive power, which can be checked and balanced only by the other two branches. But, DeMuth notes, although courts can, under the Administrative Procedure Act, block regulations that are “arbitrary,” “capricious,” or “an abuse of discretion,” courts usually defer to regulators, partly because courts are usually without requisite scientific or other expertise.63

  The problem of excessive judicial deference is the subject of the next chapter. Here, however, note this: As the administrative state distorts the United States’ constitutional architecture, Supreme Court Justice Clarence Thomas becomes America’s indispensable constitutionalist, urging the judicial branch to limit the legislative branch’s practice of delegating its power to the executive branch. In four opinions issued in 112 days between March 9 and June 29, 2015, Thomas indicted the increasing incoherence of the court’s separation of powers jurisprudence, a subject that is central to today’s argument between constitutionalists and progressives. The former favor and the latter oppose holding Congress to its responsibilities, restricting both delegations of legislative powers and executive discretion.

  “The Constitution,” Thomas noted, “does not vest the Federal Government with an undifferentiated ‘governmental power.’” It vests three distinguishable types of power in three different branches. The court, Thomas said, has the “judicial duty” to enforce the vesting clauses as absolute and exclusive by policing the branches’ boundaries. Particularly, it should prevent Congress from delegating to executive agencies the essentially legislative power of formulating “generally applicable rules of private conduct.” Such delegation, Thomas says, erases the distinction between “the making of law, and putting it into effect.” This occurs when Congress—hyperactive, overextended, and too busy for specificity—delegates “policy determinations” that “effectively permit the President to define some or all of the content” of a rule of conduct. Today, if Congress provides only “a minimal degree of specificity” in the instructions it gives to the executive, a deferential court, Thomas says, abandons “all pretense of enforcing a qualitative distinction between legislative and executive power.” As a result, the court has “overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure.”64

  The administrative state, so inimical to conservatism’s aspiration for government limited by a constitutional structure of rival branches, depends on something conservatives too frequently and reflexively praise. It depends on judicial deference to the majoritarian institution of Congress, even when Congress delegates its legislative powers to unaccountable agencies. In an 1887 essay, then-professor Woodrow Wilson of Bryn Mawr College said that the complexities of modern life demand government by expert administrators with “large powers and unhampered discretion.”65 When, during the New Deal, the court became permissive about Congress delegating essentially legislative powers, there was, Charles J. Cooper says, “an implicit bargain: The Court would permit Congress to delegate—and the administrative state to exercise—legislative, executive, and judicial power, but it would review administrative exercises of such power to prevent lawlessness and abuse.” However, three decades ago the court “reneged on the deal,” adopting the principle (called “Chevron deference,” more about which anon) that it lacks the competence to be other than deferential.66

  The court said, in a Wilsonian spirit, “judges are not experts.”67 Today, we are governed by Wilson’s clerisy, but it does not deliver what is supposed to justify the overthrow of James Madison’s constitutional system: efficient, admirable government. Evidence that Congress may, however, be rediscovering its institutional conscience was the maiden speech delivered in 2015 by Republican Nebraska senator Ben Sasse, a Yale University PhD (in history) and former college president. He rose from his desk—the one he requested, the one that formerly was used by another academic in politics, Moynihan—and asked: “Would anything be lost if the Senate didn’t exist?” He said: “The growth of the administrative state, the fourth branch of government, is increasingly hollowing out the Article I branch, the legislature—and many in Congress have been complicit in this.”68

  If Congress is to regain the role that sensible conservatives favor as the First Branch of government, or if Congress is even to be an effective check on, and auditor of, the executive branch, it must do something that might irritate some conservatives: It must spend more on itself, on larger and more knowledgeable staff. If the separation of powers is to function anything like a true balance of powers, Congress must, at a minimum, “know what the executive branch is doing.” This was not an insurmountable burden until the twentieth century. In 1900, there were eight federal departments (seven new Cabinet departments have been created since 1953) with 230,000 employees, 135,000 of them working for the Post Office. “Congress could roughly apprehend the rudiments of the whole of the federal government.” Since then, there have developed severe “information asymmetries.” Such asymmetries actually were intensified as an unintended consequence of civil service reform. The Pendleton Act of 1883, essentially ending federal patronage, “expanded the knowledge gap between legislators and executive agencies.”69 Executive bureaucrats are specialists; legislators are generalists. They are harried generalists who spend about one-third of their time on policy-making and oversight, devoting the rest of their energies to constituent services, messaging interest groups, traveling in their constituencies, and preparing for the next election (fund-raising). Congress is in Washington Tuesdays through Thursdays about one-third of the year. The government grinds on 365 days a year.

  The Senate has crippled itself with rules that are sanctified neither by long tradition nor the logic of the Senate’s purposes. So Senate rules should be changed to rectify a mistake made half a century ago. There was no limit on Senate debate until adoption of the cloture rule empowering two-thirds of senators present and voting to limit debate. This occurred on March 8, 1917—twenty-nine days before Congress declared war on Germany—after a filibuster prevented a vote on a momentous matter, the Armed Ship Bill, which would have authorized President Woodrow Wilson to arm American merchant ships. (Of course he armed them anyway.) In 1975, imposing cloture was made easier by requiring a vote of three-fifths of the entire Senate, a change the importance of which derived from what Majority Leader Mike Mansfield (Democrat of Montana), the longest-serving majority leader in history, had done five years earlier: He created the “two-track” system whereby the Senate, by unanimous consent or the consent of the minority leader, can set aside a filibustered bill and move on to other matters. Hitherto, filibustering senators had to hold the floor, testing their stamina and inconveniencing everyone else to encourage the majority to compromise. In the fifty-two years after 1917, there were only fifty-eight cloture motions filed; in the almost fifty years since 1970, there have been almost 2,000.

  A minority should be able to extend debate in order to compel debate and, perhaps, compromise. Post-1970 filibusters, however, are used to prevent debate. As Representative Tom McClintock of California says, “The mere threat of a filibuster suffices to kill a bill as the Senate shrugs and goes on to other business.” McClintock urges the Senate to make a “motion to proceed” to consideration of a bill undebatable and hence immune to filibustering. “Great
debates should be had on great matters—but not great debates on whether to debate.” And he says the Senate should abandon the two-track system. This would prevent the Senate from conducting other business during a filibuster but would require filibusterers to hold the floor. It was this mutual inconvenience that, between 1917 and 1970, made filibusters rare and produced pressure for compromise to resolve the impasse. As a result of today’s Senate paralysis, McClintock says, “the atrophy of the legislative branch drives a corresponding hypertrophy of the executive branch.” The promiscuous use of faux filibusters—requiring sixty votes to proceed with consideration of, or votes on, ordinary legislation—blurs the implicit constitutional principle that extraordinary majorities are required only for extraordinary matters, such as proposing constitutional amendments, overriding vetoes, and ratifying treaties.70

  The trivialization of filibusters—no longer requiring them to be strenuous and disruptive events—has deprived them of dignity. Restoring them to what they once were would affirm the principle that mere majoritarianism—simply counting numbers; government by adding machine—should be tempered by a reformed filibuster as a mechanism for measuring the intensity of a minority’s opposition to a majority position. The Constitution affirms the power of each house of Congress to “determine the rules of its proceedings,” so any Senate procedures are compatible with the Constitution’s text. But the practices made possible by the post-1970 rules have contributed to institutional disequilibrium, destabilizing the Constitution’s design by inciting a dangerous expansion of presidential power. Hence Georgetown Law professor Randy Barnett and Jay Cost of the American Enterprise Institute urge forbidding filibusters of appropriations bills: “Democrats have discovered that if they block individual appropriations bills, the entire operation of government will inevitably be rolled into an omnibus appropriations bill, and the majority must either accept it in toto or face a partial shutdown of the government. This maneuver has largely eliminated Congress’ ability to discipline the executive via line-item spending cuts.”71