The representative legislature has also been a victim of modern habits of mind, which tend to value identity over locality, rationalism over representation, and decision over deliberation. Each of the three branches of American government (which correspond to a division of functions found in all modern governments) has its own distinctive principles of operation and legitimacy. The judiciary’s principles are reason and resolution—courts determine the facts of a dispute, resolve the dispute by deduction and inference from texts and precedents, and explain their reasoning publically. The executive’s are (since the Age of Jackson) personality and action—presidents incarnate important features of national character and aspiration, dominate political attention and debate, and take personal actions that settle some matters in a stroke and redefine others by changing the “facts on the ground.”
The legislature’s principles, representation and compromise, are relatively unimpressive. Representing geographic localities is not what it used to be, because of the globalization of commerce and culture and increased personal mobility; locality is not without political importance, but many people today care much more about representation of their personal values, group identities, and vocational and avocational interests. Individual legislators have little capacity for decisive personal action: on their own they can campaign, give speeches and interviews, write letters, question hearing witnesses, and cast votes, none of which hardly ever resolves anything. Their primary assignment is to negotiate and horse-trade with other representatives of similar, differing, and conflicting interests and values, leading to collective decisions that no one is entirely happy with or, quite frequently, to no decision at all.
When you have time, read the whole thing (it’s long). Pointer from Carl Eric Scott.
I agree with much of DeMuth’s diagnosis, which is that the dangerously powerful regulatory state has emerged in part due to the structural weakness of Congress. However, I do not think that his proposed solutions, the most prominent of which is ending the Senate filibuster, even approach providing a solution.
Off the top of my head, the reform that I would propose is to regularly re-charter all regulatory agencies. Perhaps every three years. You could use that re-chartering to rein in the jurisdiction of agencies. You could re-charter the FCC in a way that takes away any authority to regulate the Internet. You could re-charter the EPA in a way that takes away any authority to regulate carbon dioxide, or at least make it regulate carbon dioxide within a well-defined Congressional mandate. Re-chartering the FDA. Re-chartering the Federal Reserve. It could get to be quite fun.
Rechartering sounds interesting. Three years might be too frequent, given how long it takes to spin up a new chunk of bureacracy, but it depends on how much “rechartering” involves.
I’ve been watching Orange is the New Black, and they delve into privatized prisons among many other things. It occurred to me that while any one private company might be very poor at managing prisons, at least the government has an opportunity to switch to a new company ever so many years.
With a purely public prison, I don’t know what the government can do if it discovers that terrible people have gotten entrenched in the management. It’s just like with a public school. A higher up can try to transfer the problematic personel, but they’re just going to end up in the same position at a different prison.
For the specific examples you give, I think it very unlikely that powerful people in Washington will agree with any of those changes. The Internet is here, and Washington, like other national governments, is going to do everything it can to obtain jurisdiction and start sucking out taxes and giving away gifts to constituents.
What to do would be to have line items of the charter that would be force to get an up or down vote. Watch how fast they can move with automatic shutdown as the default.
This is why I’d like to see a President Hillary — a successful impeachment would do wonders for congressional morale. I’m confident she will sufficiently annoy 67 senators to make this happen.
However enticing “Rechartering” may sound, it would require legislators of a totally different set of motivations (and abilities) to have any meaning or effect.
The federal legislators are not motivated to take oversight **actions,** despite the motivations for oversight **hearings* and inquiries.
They do not want the tasks of going through regulations, rules, orders, etc., etc., let alone to decide what should be eliminated, modified (or to what degrees). They simply would not give that task any useful efforts beyond the opportunities for publicity or (again) representation of particular interests.
There could be sunset for all regulations – only to see them rise again the morrow morn; when they more likely should be killed or extensively modified in their resultant application. Congress is simply too big for the job (with too many other more attractive things to do) and the job is too big for the qualifications of its members.
On this Blog, on August 5, under the comments to Cochrane’s views on the regulatory state, I posted the suggestion for a “New Court” that could have qualified people to deal with the regulatory impacts and how they are applied, with plenary powers over the operation of agencies and their personnel. That Court would do what legislative oversight is supposed to do, present that action to Congress to reject or accept (not modify). It would also give Congress an instrument for “referrals” for action from oversight hearings.
As said elsewhere, this is not a matter for “reform.” We are at a point requiring containment, then constraints, then restraints throughout the regulatory state. Congress won’t do that; but, they might create a Court that could.
Representantive democracy does not expect or require politicians to be diligent technocrats. The main advantage of rechartering is that an agencies that survive must find ways of being inoffensive to both sides. The agencies can supply the diligent technocrats to figure out how. For example the EPA would probably decide to stop overeaching into citizens’ back yards.
The potency of the reform will be limited: politicans do not want to be blamed for massive shakeups. That’s why departmental budgets are not re-negotiated from zero each year. That’s why various “temporary” perks are always renewed. But requiring rechartering is at least no worse than the status quo.
We do not now have, nor have we had for some decades representation (installed by a democratic process) of the principles most commonly held by the expanding electorate.
What we have is delegation of authority through that democratic process (which lacks adequate limitations).
That delegated authority is most often exercised to “represent” particular interests.
We do not have “representative democracy.”
That is brilliant. But how bout, for example with the EPA, let’s start by sticking to the original charter that does not justify regulating a natural component of air.
This is a a very good article. Articles saying Congress-is-risibile are a dime a dozen. But this is one of the few that offers convincing explanations of why this is so, and why it is a bad thing. And it surely the only one containing statements like
A better solution for most regulation is that it should be done by insurance companies. This is how it works in the private sector.
An insurer has an incentive to balance risk-taking with the need to allow for innovative and profitable activities. If the insurance company is too lax, it will have to pay out too much and lose money. If the insurance company is too tight, it will lose out on money from premiums.
So rather than regulate the financial world via the Fed, do it via the FDIC (or better have a multiple competing deposit insurance companies, so if one goes bust, the ones that are sound can takeover, the regulation becomes better over time).
The FDA could become an insurance company that insures against losses from lawsuits against drug-makers and medicine providers.
For the “insurance” example:
Those entities are engaged in the “spreading” (not taking and keeping) of risks. In doing so effective evaluation of risks does become critical to the function of spreading.
The concentration of risks into an “agency” with an ultimate asset base of taxation could not have the same results as one of spreading. We have already seen that repeatedly in the cases of regulatory (domestic & international) attempts at risk evaluation from an “external” perspective.
Richard-
The scheme obviously fails if the insurance company can get bailouts and suffer no consequences. The insurance company would thus have an incentive to take many risks. The scheme also fails if the insurance money can take in enormous premiums in the short-term and pay out handsome bonuses and dividends, thus stripping the company of its equity. Even if the company goes bust every twenty years, all the agents have would still make money.
If the insurance company has government backing, or if the total risk to the population far exceeds what the insurance company can possibly pay out, then incentive structures would need to be altered to prevent the heads-I-win, tails-you-lose dynamic. For instance, the FDIC could be structured so that all bonuses and dividends are held in escrow for five years, and liable to clawback for ten years. Double liability equity holders could be reintroduced. Executives could be given reverse stock options (options that pay out no more if the company grows, but pay out much less if the company shrinks).
Here’s a simplier alternative: Sunset all laws every 8 years and repeal the Administrative Procedures Act; instead allow Congress to pass hand waving laws and then have Executive agencies write enabling regulations, but these would only become laws after enactment by Congress. It probably wouldn’t stop the Leviathan, but it would be better than the current system; especially if it got rid of the Constitutional abomination of “independent agencies.”