Gridlock: Why Congress Is So Contentious & The Effects On Passage Of Good Laws – Guest Essayist: Richard E. Wagner

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Congressional Gridlock

Probably every resident of a large city has experienced gridlocked traffic. The traffic lights in front of you are green. Yet you can’t move because your path is blocked by cars stuck in the intersection because their path is blocked by a red light. By the time those cars have cleared the intersection, your light has turned red, so you sit there caught in gridlock.

Traffic gridlock is real and most of us have experienced, some of us regularly. The term gridlock has also been applied to Congress, and with increasing regularity over the past few decades. Some imaginative observers have even developed measures of gridlock. One measure with some intuitive plausibility is a ratio between the pieces of legislation enacted and the pieces that were introduced. Gridlock thus becomes synonymous with unfinished business or unenacted legislation.

When faced with gridlock, whether of traffic or of legislation, the normal human response is to decry the gridlock and to seek to overcome it. Just how this might be done depends on one’s political agenda, about which many possibilities exist. One agenda might try to reduce gridlock by pricing the use of roads during periods of peak congestion, which would reduce the volume of traffic. A quite different agenda might try to create subsidized systems of mass transit, which would increase budgetary requirements. Regardless of one’s agenda, one notable thing about gridlocked traffic is that all drivers agree that sitting in traffic is a waste of time and that they would prefer to arrive more quickly at their destinations.

This situation does not pertain to Congressional gridlock. Without doubt, there are people who would like to see legislation flow more quickly through Congress. Equally without doubt, however, there are also people who would like to see the flow of legislation slow down, and even stop in some cases. How one appraises and reacts to gridlock depends to some significant extent on what one thinks is the proper scope of government in society.

In this respect, the American Constitution established a system of divided and separated governmental powers that created obstacles to the enactment of legislation. Gridlock was built into our constitutional system. That built-in gridlock has been intensified by the Progressivist transformation of the federal government that has been underway over the past century or so.

Through this transformation, the federal government has shifted increasingly from producing real goods and services to transferring income among people. When the federal government was especially heavily devoted to doing such things as providing military services, keeping rivers and harbors navigable, and providing interstate highways, we faced a situation where most people thought those services were reasonable things for the federal government to do even if there were disagreements over budgetary details. Within this setting, there was much scope for compromise among members of Congress, which facilitated enacting budgets in timely fashion.

Rarely are budgets enacted in timely fashion these days. The last time Congress did so was 1996. Since then, continuing resolutions along with occasional shutdowns have become the standard mode of operation. Even worse, Congress has now placed over two-thirds of the budget on automatic pilot. Congress has thus reduced the items with which it must deal, and yet performs ever more poorly with respect to that reduced menu of items.

Through the progressivist transformation, the federal government has become increasingly dominated by programs to redistribute income and wealth. This shift in the pattern of governmental activity shrinks the scope for compromise, increasing gridlock in the process. As the federal government has moved away from supplying real goods and services that most people probably value to some degree and toward taxing some people for the benefit of others, gridlock is the natural product of the clash between those who are forced to pay and those who would benefit. And do not forget in this respect that approximately half the population is free of liability under the personal income tax, making government costless to the extent it is financed by the personal income tax.

To be sure, we should always expect some gridlock inside political processes, as was recognized at the time of the American Constitutional founding. Our present political system, however, seems to have created a significant cleavage between those who would like to be left alone by the federal government to pursue their peaceful dreams and projects and those who seek to receive support at someone else’s expense.

Yet we must recognize that governments can’t create wealth. All they can do is take and redistribute wealth that other people have created. This property of government was recognized at the time of our Constitutional founding, and we need to recapture that founding wisdom. This does not entail streamlining government to reduce gridlock, but rather requires restoring our Constitutional system of free enterprise and limited government.

Richard E. Wagner is Holbert Harris Professor of Economics at George Mason University.

Congressional Oversight Of Federal Bureaucracy – Guest Essayist: Richard Wagner

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It is commonplace to assert that Congress exercises oversight over federal bureaus and executive agencies. But is this a reasonable assertion? Or might it represent a romantic yearning for an earlier and simpler age, or even for an age that never existed?

Article I, Section 1 of the Constitution declares that “all legislative powers herein granted shall be vested in a Congress of the United States.” What is known as the nondelegation doctrine holds that Article 1, Section 1 prohibits Congress from delegating legislative authority to executive branch bureaus and agencies. A rigorous application of the nondelegation doctrine would undoubtedly overturn much of the so-called progressivist legislation of the past century, for that legislation confers on executive agencies the ability to make rules as well as to administer them, and also often to judge complaints about their actions.

Within the traditional concept of separation of powers, Congress creates the laws of the land through legislation, the President and the bureaus and agencies that comprise the executive branch executes and implements those laws, and the judiciary determines whether Congress and the President have conducted themselves properly in using their powers of office. The image of a separation of powers reminds one of a carton of Neapolitan ice cream with its three distinct zones of flavor. Actual democratic practice has a strong tendency to swirl the flavors together, rendering it impossible to get a bite of one flavor alone without obtaining all three flavors. The nondelegation doctrine seeks to restrict the ability of Congress to delegate its rule-making authority to executive bureaus and agencies.

In what is surely one of the most significant books so far this century, Philip Hamburger asked in 2014: Is Administrative Law Unlawful? Through some 500 pages of densely packed analysis and argument, Hamburger answers his question resoundingly in the affirmative. The reader of this book comes away with a good sense of the radical transformation our system of Constitutional government has been undergoing for the past century or so.

The American republic was founded on a constitution of liberty where people were pretty much their own bosses, as was reflected in our Declaration of Independence’s recognition that “governments derive their just powers from the consent of the governed.” The United States was founded on a rejection of the European feudal heritage where government was the province of the well-bred and the rest of us had no option but to mind our stations in life.

The spread of the administrative state through Congressional delegation of legislative authority to executive agencies has been establishing a contemporary form of feudal government. No longer is there a class of people who are born to be lords of the manor. But lords of the manor are spreading among us all the same. These lords attain their positions not by birth but by advancing into the higher regions of bureaucratic administration.

While Congress does sometimes inquire into executive actions without receiving responses, more common is a Congressional disinterest in the bulk of the activities of those executive agencies and bureaus. Congress delegates such powers all the time across nearly all arenas of governmental action. A few highly publicized instances arise where executive agencies defy Congressional inquiries. The usual pattern, however, is a general Congressional disinterest in the activities of most bureaucratic agencies most of the time.

This observation about the absence of strong Congressional interest in nondelegation points to a valuable insight about human nature in politics that the American Founders would clearly have appreciated. Why does Congress delegate legislative authority when it doesn’t have to and, indeed, is precluded from doing so by a plain reading of the Constitution?

A good starting point for addressing this question surely resides in recognizing that increasing the amount of oversight Congress must exercise will interfere with other activities that members of Congress would prefer to do. One of those activities is providing constituent services, which occupy a great deal of time by Congressional staffs. With constituent services, Congressional staffers help constituents to deal with problems their constituents face in dealing with executive agencies and bureaus.

Without the delegation of legislative authority to executive agencies, those constituent problems would be blamed on Congress. With delegation, however, these are blamed on bureaus and agencies. Members of Congress thus receive gratitude from constituents for helping them to navigate the bureaucratic jungle they allowed to grow in the first place. Members of Congress can improve their electoral prospects by refusing to exercise the oversight that a plain reading of Article 1, Section 1 requires of Congress. Even more, exercising such oversight would reduce the ability of Congress to enact even more legislation, and yet Congress lives in large measure on enacting legislation that various interest groups in society favor.

Richard E. Wagner is Holbert Harris Professor of Economics at George Mason University.

Rule Of Law And Separation Of Powers: Preservers Of Liberty – Guest Essayist: Richard E. Wagner

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It is a commonplace of democratic rhetoric to assert that we residents of democracies are governed by law and not by men. To be governed by men means that those who hold power can create privileges for themselves and their allies. In contrast, to be governed by law means that holders of power gain no advantage from holding power because law pertains equally to everyone.

It is easy to see why democracies assert that they exemplify the rule of law, for it projects the image that politicians are equally subject to the same laws as everyone else. This claim on behalf of the rule of law seems intuitively obvious once democracy is defined as a system of self-governance. But the claim that the sun rose in the east and set in the west was also intuitively obvious prior to the 16th century, when that intuition was recognized as being wrong.

Claims on behalf of the rule of law must confront the inconvenient fact that law cannot possibly make and enforce itself. Only people can make and enforce law.  How can law rule over people when it is people who make law? Is it possible to bridge the gap between this inconvenient fact and claims on behalf of the rule of law?

The American Constitutional Founders thought so, provided that power was divided and separated among holders of pieces of power. Rule of law and separation of powers are thus close cousins within the constitution of liberty on which the American republic was based. The original Constitution established a federal form of government where power was divided and separated in several ways. The federal government was limited to a few enumerated powers, with all other activities reserved to the states or to individual citizens. Federal power, moreover, was divided between legislative, executive, and judicial branches. Even more, the executive power was divided between the two most popular politicians in the land prior to the advent of political parties when President and Vice President were coupled.

Rule of law thus requires division and separation of powers, and in a manner that prevents collusion among holders of power. A key feature of governance through a rule of law is recognition that people should not be judges in their own causes. This recognition was robustly alive at the time of the American constitutional founding. With collusion among holders of power, however, holders of power can come to be judges in their own cause, thereby violating the central feature of any concept of rule of law.

In the original Constitution, the federal Senate was appointed by individual state legislatures. This arrangement created a form of Council of States within the federal Congress. The situation changed dramatically with the direct election of Senators in 1913. The direct election of Senators led to the establishment of what Michael Greve in The Upside-Down Constitution calls cartel federalism in place of the earlier system of competitive federalism. Through cartel federalism, the federal government and the states act as a cartel to act on behalf of dominant interest groups within society.

Erosion in the rule of law can be illustrated by the ability of governments to take private property. The Fifth Amendment to the Constitution allowed for a taking of private property, but only under tightly restricted conditions. That taking must be for a genuine public use. Furthermore, the owner of the property must be justly compensated for what was taken.

It is easy to see how these restrictions on the taking of private property reflected rule of law principles. By requiring the taking to be for public use and accompanied by just compensation, governments were placed on roughly the same footing as individual citizens who sought to acquire someone else’s property. Governments and their officials did not have special powers that individual citizens lacked, for anyone can always offer to buy someone’s property. This is the rule of law in operation.

Rule of law is a staple claim of democratic sensibility and ideology. It is not, however, an automatic quality of democratic government; it is not a natural political condition. It is rather a variable quality of constitutional arrangements inside of which democratic governance proceeds. Rule of law requires the absence of some apex of power; however, powers distributed among the many tend to funnel into power held by the few. The 20th century Italian sociologist Robert Michels described this tendency the iron law of democratic oligarchy. A tendency is not inevitability, however, and rule of law and separation of powers are important facets of a constitution of liberty, though these must be fought for continually because they don’t arise naturally, and they won’t remain in place tomorrow just because they are here today. Liberty is a perpetual struggle against forces of social and political entropy.

Richard E. Wagner is Holbert Harris Professor of Economics at George Mason University.

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Federalist 10: Political Stability And Good Governance – Guest Essayist: Richard Wagner

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Federalist No. 10: Controlling the Violence of Faction

The central idea behind the American constitutional republic is expressed in her first constitutional document, the Declaration of Independence: governments derive their just powers from the consent of the governed. This idea is simple to state and hard to implement.

We must recognize that ideas can’t implement themselves. They can be implemented only within some political structure. All political structures entail a tendency for governments to act on behalf of factions within the population, and then to assure us that they are promoting the common interest all the same.

In Federalist No. 10. Madison tells us that “by faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

Madison was referring to the ability of some people to use the powers of government to their advantage by imposing disadvantages on other people. Faction is a quality of human nature that resides in our abilities to see our favored projects as especially beneficial for society. Someone might think a marshland would make a wonderful wildlife refuge. That person could always buy the land to create the refuge, perhaps forming a corporation to do so. Doing this, however, would be costly to those who desire the refuge. A cheaper alternative might be to petition a legislature to fund the refuge. In this way, taxpayers who do not value the refuge would be forced to support the refuge. This situation illustrates faction at work: a small but influential group of people can secure support for their favored projects by forcing other people to pay for them.

To some extent, virtue within the citizenry can limit the reach of faction as people refrain from using their powers to exploit other citizens. Yet interest could always override virtue, due to the ability of people to convince themselves that their pet projects are invariably publicly beneficial. For this reason, Madison looked to the constitutional structure of government as an instrument for limiting the reach of faction.

In this respect, the American Constitution featured a strong preference for local government, where people knew one another, over national government where most people were strangers. The American Constitution sought to limit faction by explicitly enumerating the powers of the federal government, with everything not enumerated being limited to states and to individual citizens. For the past century or so, however, this Constitutional limitation has pretty much given way to plenary authority by the federal government.

Between the Revolution initiated in 1776 and the Constitution established in 1789, America was governed under Articles of Confederation. The Articles recognized 13 independent states along with establishing a Continental Congress. That Congress, however, had no ability to tax and regulate individual citizens. All it could do was request support from state legislatures. In February 1787, the Continental Congress established a Convention to meet in Philadelphia to recommend repairs to the Articles. What emerged from that Convention, however, was not repair but a new Constitution that established a national form of government.

What ensued was a two-year period of intense controversy over ratification of the new Constitution. The 85 essays that comprise what we now know as The Federalist were a series of newspaper articles written to support the Constitution against opposition from those who wanted to continue with the Articles. Despite the ensuing controversy, we should note that both proponents and opponents of the new Constitution agreed that the prime purpose of government was to secure individual liberty. They also recognized that intrusive government was the prime danger to liberty, even though it was also recognized that some government was necessary to preserve and protect the American system of liberty.

Madison sought to explain how the proposed Constitution entailed a structure of fragmented and limited powers that would limit the damage created by faction. In being founded on a Constitution of liberty, the American republic expressly rejected the system of feudal duties and obligations that characterized the European societies of the time. Starting around the time of Theodore Roosevelt, however, the Progressivist movement within America has been striving to reinstate some of the status-based relationships of feudal times. This fits the Progressivist vision of government as the principle source of goodness in society. A battle for the soul of America has been underway for about a century, with the principle fault line being whether government is a virtuous artifice that is central to human flourishing, and with faction enabling governments to do their inherently good work, or whether government is a necessary evil that is always in danger of trampling on individual liberty.

Richard E. Wagner is Holbert Harris Professor of Economics at George Mason University.

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