Transcript

Trevor Burrus: Welcome to Free Thoughts. I’m Trevor Burrus.

Aaron Powell: And I’m Aaron Powell.

Trevor Burrus: Joining us today is David Schoenbrod, Trustee Professor at New York Law School. He is the author of DC Confidential: Inside the Five Tricks of Washington. Welcome to Free Thoughts, David.

David Schoenbrod: Thank you very much. I’m glad to be here.

Trevor Burrus: Most people think Washington is broken.

David Schoenbrod: Right.

Trevor Burrus: At least in my experience. You watch television and shows [00:00:30] about Congress and polling, but in your book it almost seems like it’s more broken than people think. Do you agree … even as broken as people think Washington is, it’s worse than they imagine?

David Schoenbrod: Yes, it is. I agree. The reason that the book shows it to be worse than people think is I try to explain why it’s broken. I mean, we know that Washington doesn’t work for us — the polls show that overwhelmingly. We know [00:01:00] that politicians are tricksters. What I tried to do in the book is to explain how they get away with the tricks even though we know they’re tricksters. The problem with the tricks is that they take credit for rosy promises, get credit for rosy promises, but manage to shift blame for the bad consequences. That’s why government’s broken. So, how do they do it? Well, they get away with these tricks for the same reason that magicians can seem to pull rabbits out of hats — [00:01:30] we don’t see the sleights of hand. So, what the book is really about is the sleights of hand through which they get away with promising us the sky and give us dirt instead. Once I am able to point out the sleights of hand, then it’s possible, again, to point out the ways of stopping the trickery.

Aaron Powell: You say Washington doesn’t work for us. There are two senses of “work” there. So, on the one hand, it’s not … Do [00:02:00] you mean that Washington is broken and that it doesn’t provide us with the things that it ought to, and/or it doesn’t work for us in the sense that it works for someone else? That when it’s doing its thing it’s doing it in the service of someone else or some other set of desires than us, the voter?

David Schoenbrod: Aaron, that’s a good question. I think it doesn’t work for us in three senses. Sense number one: the statutes they pass [00:02:30] are not designed to do good for us. They’re designed to make the politicians look better, and this is a fault of both the left and the right. This is not a left versus right thing, it’s an us versus them thing. Second of all, the tricks allow them to take support from businesses, from unions, all kinds of advocacy groups, do favors for them in return for that support, but avoid blame for the bad consequences [00:03:00] for us of catering to these special interests.

Third, it doesn’t work for us in the sense that most of the time the politicians spend — I’m talking about members of Congress here — is on fundraising and PR, not legislation. Guidelines presented by the Democratic National Congressional Committee to incoming freshman legislators suggest to spending two hours a day on legislation, four hours a day on [00:03:30] fundraising, and many more hours on various sources of PR. Given that they’re only here three days a week in Washington, that means the average member of Congress spends less time on legislation than an amateur golfer does spend on the golf course on weekends.

Trevor Burrus: And they also might be golfing, too, so that would even compound the problem.

David Schoenbrod: That’s right.

Trevor Burrus: You would never even know.

David Schoenbrod: It’s so good to know we have a president who’s an avid golfer, like his predecessor [crosstalk 00:03:57].

Trevor Burrus: I know. It’s been a trend for a while, I feel like. [00:04:00] One thing you say in the book that I found to be very interesting is something that I’ve made a point to people, especially outside of the Beltway, is that there’s more agreement in Washington amongst policy people than many people would think. That you get a bunch of Cato scholars and a bunch of people from the Center for American Progress, which is a liberal left think tank, and say, “Okay, you guys have despotic power of the government for ten days, and you have to vote … You can put things into … get 90% votes from both people, and there would be a lot of things [00:04:30] that we would agree on with them, and even if you made the consortium bigger that there’s a lot of problems in Congress, but in terms of things to fix there’s a lot of agreement.

David Schoenbrod: I agree with that. Absolutely. In the book, I discuss a book by Ralph Nader that makes just that point, that left and right agree on a whole bunch of stuff. The reason that the politicians don’t is because the trickery allows them to take extreme positions without dealing with trade-offs. So, for example, [00:05:00] members of Congress could say, “I’m against pollution killing children,” and then others politicians … and sometimes the same one will say, “I’m against regulations killing jobs,” right? So, they’re avoiding the necessary trade-offs, the inevitable trade-offs between environmental protection and the economy, which allows them to take extreme positions, which leads to a kind of schizophrenia in government. [00:05:30] It’s that schizophrenia that creates the polarization that in turn causes the gridlock that keeps Congress from resolving issues that need to be resolved.

Trevor Burrus: Should libertarians … sometimes we like to talk about that gridlock is not that big of a deal, that it’s not that big a deal if Congress can’t get things done. A really efficient can be just as scary as inefficient government. Should libertarians also endorse making Congress work better?

David Schoenbrod: [00:06:00] The inefficiency here, the gridlock here, does not cause government to do nothing, it causes the government to do what it was doing before, which is often a lot worse than nothing. There’s often opportunities for government to produce more good with less constraints on liberty, and the government is unable to get there because of the gridlock.

Aaron Powell: Is this a relatively new phenomenon? Like we point at a time in the past when Congress worked or worked better than it does now?

David Schoenbrod: [00:06:30] Yes. Now the approval rating of the federal government’s about 19%. It was the same before Trump was elected as after. In 1964, the approval rating of the people … 76% of the people thought the government was doing a pretty darn good job. So„ the falloff happened from around the late 60s onwards, and that’s when the tricks began.

Aaron Powell: Is approval rating the best [00:07:00] way to judge how well government is working? Like maybe the people weren’t paying as much attention then as they are now, or maybe they were less turned off by the bad things government was doing than they are now. I mean, government did all sorts of awful things, and Congress did all sorts of awful things and passed all sorts of terrible policies during that time when its approval rating was quite high. So, what’s the connection necessarily between working in the three senses that you talked about earlier [00:07:30] and approval rating?

David Schoenbrod: It seems to me that a libertarian ought to believe in the efficacy of the marketplace. The customer of the government is the people, so if the people are dissatisfied with the product they’re getting from their supplier, I think that should count for a whole lot. I don’t believe that people were worse informed back then than now. To the contrary, back then when the government, when officials had to deal with trade-offs, [00:08:00] they were doing more concrete things. You saw the trade-offs they were making. Now, what we get is slogans, so it’s very hard to understand what the slogans imply. If they’re gonna slogan in terms of, “Protect health at any cost,” well what’s the cost? Well, they aren’t telling us. They’re hiding that. They’re gonna slogan, “Oh, I’m gonna increase spending for this, or cut taxes on that.” They’re not telling us — they’re hiding from us what the consequences will be. I think we’re worse [00:08:30] informed now because of the trickery.

Trevor Burrus: I mean, there definitely were slogans. I mean, there was definitely campaign rhetoric. Are you just saying that they-

David Schoenbrod: Oh, yes. But they had their fingerprints on bills, which involved trade-offs, so that they were more responsible for the burdens as well as the benefits of the legislation. What the tricks do is allow them to take credit for the benefits, but to hide the cost. I’ll give you an example. In 1934, [00:09:00] 1935, when Congress passed social security … and I certainly understand the principled arguments against social security. My grandfather thought it would be the ruin of the country. That was the grandfather who was not the socialist.

Trevor Burrus: I imagine.

David Schoenbrod: At that point, what Congress did was to impose taxes fully sufficient to fund social security pensions then and into the indefinite future [00:09:30] as the program was then conceived.

Trevor Burrus: So, they told people they were raising taxes?

David Schoenbrod: They told people they were raising the taxes, so they were responsible for the promised benefit and for the looming taxes. When President Johnson and Congress, in 1965, set up medicare, they promised us we would get medical care in our old age, but did not impose taxes sufficient to do it. They were hiding the cost. That’s a great example, a very vivid example of how they get credit [00:10:00] and shift blame. The blame is shifted to some future Congress, which is gonna either have to cut out medicare benefits or raise taxes. I know for me, I started paying into social security 59 years ago when I was 16 years old with the promise that I get a pension when I retire. Well, the program’s run now is the fact that … I saved some money means my pension’s gonna be cut.

In contrast, when President Roosevelt … [00:10:30] and I’m not saying he’s a great guy. I have a lot of problems with Roosevelt. He said, “The public should own these pensions as fully as if they bought it from a public enterprise, from a private enterprise.” That’s not the social security system we have, and I bet you’re going into the future … a lot of folks who thought they could depend upon government medicare in their old age are gonna find in some ways they got to buy it all over again. In fact, I have to buy it all over again because I now have to pay a higher … because I’m reasonably well off, I’m gonna have [00:11:00] to pay a higher premium going forward than if I was not well off.

Aaron Powell: Let’s turn to those tricks. You say there’s five of these tricks that explain …

David Schoenbrod: Right. The first one is the money trick, and I already illustrated that. When they make very tangible and concrete … the good stuff they’re giving you and hide the longterm costs. The second trick that I’ll talk about-

Trevor Burrus: I think we should … I want to talk about the money trick a little bit. Like, the budgeting, how do they do the budgeting?

David Schoenbrod: [00:11:30] Oh, boy.

Trevor Burrus: I mean, I know it’s really complex, but basically you’re saying that they might do something or say, “We’re going to pay 10 billion dollars for this, and we’ll adjust something on the bottom that in 20 years will theoretically save the government 10 billion dollars, and therefore we’re zeroing out,” which just seems like a sleight of hand.

David Schoenbrod: Let me make a suggestion to you.

Trevor Burrus: Okay.

David Schoenbrod: One, you just asked me, “How do they get away with hiding the cost?”

Trevor Burrus: Okay. There you go. Straight up, how do they get away with hiding the cost?

David Schoenbrod: Well, first of all, they put most of the emphasis [00:12:00] on the budget for the next ten years. The problem with that is that Congress knowing that shifts income from beyond the ten years forward in time into the present ten years, the upcoming ten years, and it shifts costs from the current ten years beyond. So, the deficit for the coming ten years is not nearly as important or big as the deficit’s looming in future decades. [00:12:30] That’s number one. Now, they also pretend to care about the longterm by telling the Department of Treasury to do something called the “Financial Report of the United States”, but this is full of … and that’s supposed to be a longterm projection, but it’s full of trickery in many ways.

For example, the Financial Report has glowing, happy generalities at the beginning, but the bad news is hidden in the footnotes on page 250. [00:13:00] Beyond that, they released the Financial Report of the United States without a press release, without a press conference, often on the day before Christmas in order to ensure that it doesn’t get covered in the press, and it doesn’t get covered in the press worth a bit. So, basically, they’re using these devices and many others to hide the real costs of what they’ve taken credit for.

Aaron Powell: It seems odd that that wouldn’t get covered in the press if it’s that [00:13:30] egregious, and it seems like they’re so going out of their way to hide these things. I mean, journalists know that this report exists. They know when it comes out. Why doesn’t it then get covered? I mean, don’t we have … We have a press that seems interested in the tricks that Washington gets up to in DC.

David Schoenbrod: Well, I don’t have a good answer for that. But I actually … There’s a couple things that come to mind. First of all, it takes work. Second of all, it takes expertise. [00:14:00] It’s not as if there’s no coverage of it, but it’ll be like a few paragraphs in an “Investor’s Business Daily”. It is not a headline in “USA Today”, and it’s certainly not featured in “The New York Times”.

Trevor Burrus: I think when it comes to longterm fiscal numbers regarding the United States, it levels while you’re talking about distances to Jupiter. You try and use these metaphors. You’re like, “This is ten million miles beyond [00:14:30] Uranus is to,” … and then everyone’s like, “Okay, that’s just all very far away from me,” so if you tell them that debt increased by two trillion dollars, I’m not sure it means that much to people.

David Schoenbrod: No, exactly. It’s an abstraction, whereas they concretize the good things. So, you get a letter from social security saying, “This is how much you’re gonna get per month that’s brought down home to you.” Now, if they were gonna do something that concretizes the cost, they’d send you a letter that would, and this could be done, estimate [00:15:00] how much it would cost the average family in terms of tax increases or spending cuts per year for the federal government not to go bust, in other words to keep the debt-equity ratio stable. There ought to be a calculation in that letter also, I would say, that, “Due to the actions of Congress in the last two years, this is how much that figure’s gone up or gone down.” Now, once you have that [00:15:30] you could hold your representative’s accountable for their votes that did that.

Whereas who could you blame for the debt? I mean, that has to do with the actions of thousands of representatives over many years. Beyond that, the letter ought to say that if Congress waits another year to begin opposing this annual cost on you, this is how much greater it’s gonna be, so then they’ll be accountable for doing nothing on it, right? So, it’s like the specific [00:16:00] versus the abstract. In order to make that kind of calculation and to really begin to make it concrete for the average family would take a lot of work. It would take more expertise than the average reporter has. And I’ll tell you, when writing this book I had to try to figure out how I could concretize. So, I went to a fellow by the name of Jagadeesh Gokhale, who worked for Cato.

Trevor Burrus: Yep. He was our former colleague, yeah.

David Schoenbrod: And I [00:16:30] said, “Jagadeesh, help me,” and he wrote a paper. It took him I think over a year, and this is a PhD economist who’s analyzed this kind of thing before, to do all of the calculations. He was hindered in the work because both democratic and republican presidents keep a secret of the budgeting projection program they use to make the calculations, so that’s something [00:17:00] else that would be an obstacle for the average reporter. This is as much a dark secret, probably a bigger dark secret than if the CIA kept it. And then Snowden … If it was the CIA, Snowden could reveal it, but it’s kept so amorphous it can’t be revealed.

Aaron Powell: So, then the solution to the money trick would be this transparency. It would be a more immediate and concrete scoring of bills, so that you can say-

David Schoenbrod: And bring it [00:17:30] to the family mailbox so individual families understand what’s gonna happen to the average family. We can’t tell you what’s gonna happen to your family ‘cause that would depend upon knowing how Congress is gonna react to all of this. But we can tell you what’s gonna happen to the average family. That’s a powerful enough message.

Trevor Burrus: I think last I heard it was something like $62,000 per person or something like that to pay off the national debt. That’s a [00:18:00] huge number. If you did just get a bill in the mail, it’s like, “Here you go. You owe us all this money in order to pay off the debt [crosstalk 00:18:07].”

David Schoenbrod: We don’t necessarily have to pay the national debt. We could be fiscally solvent and prudent if we keep a debt to the end of time. What can’t is the debt-income … national income ratio can’t grow. We could calculate what it would take to do that.

Trevor Burrus: What’s the tipping point on the debt?

David Schoenbrod: [00:18:30] Well, we don’t know.

Trevor Burrus: What is theoretically the tipping point? What would happen for it to flip? Not exactly where, but …

David Schoenbrod: Well, if we got to a point where lenders would not lend to us then we’d be bust. If we got to a point where lenders would not lend to our government unless … without much higher interest rates then we’d have to really, radically scale back spending and increase taxes far more than we otherwise would have to. [00:19:00] Now, what that point will be is impossible to say because it depends on so many factors, some of which are psychological. So, we can’t tell where the break point will be, but this we know, and this is from Dr. Gokhale, in the long run government cannot pay out more than it takes in. Now, yes, it could borrow, but that means it’s gonna have to pay out more because it borrowed. The long run spending [00:19:30] can’t exceed long run tax revenue.

Once we know that, we could calculate what the current policies mean in terms of revenue and spending, discount that to the present, and figure out how much you have to change that per year to make the two equal out, then we could divide that among the population, and then now we know the average impact per household. For the rest it’s just arithmetic. So, then that’s what Dr. Gokhale [00:20:00] has done, and the government should do it. It’s outrageous they don’t. They require lenders under the Truth in Lending Act to do that when we borrow money, but when they borrow money on our behalf they don’t apply, they don’t have a “Truth in Spending Act”.

Trevor Burrus: Well, I’m sure that … There are people at NASA who are really good at using large numbers, right? There’s good, smart mathematicians who could calculate into the trillions.

David Schoenbrod: You could do this with your iPhone.

Trevor Burrus: Oh, okay.

David Schoenbrod: It would take a lot of [00:20:30] tapping, but you could do it.

Trevor Burrus: Moving into the next trick, which you call the “debt guarantee trick”, which … “debt guarantee trick”. What is that, and how does that work?

David Schoenbrod: Okay. The government as we know from sad experience guarantees the debts of too big to fail financial institutions and many other private debts as well. Now, when government began to get into [00:21:00] guaranteeing the deposits of banks back during the Depression, it limited the guarantees to small deposits and it insisted on this limit for this reason — that it wanted the banks to be subject to the risk that if they engaged in too much risky conduct, made too many risky loans in pursuit of higher profits that the big [00:21:30] investors would not deposit money with them, would not buy their bonds, and that would therefore temper the risk taking of banks. That’s what made banks conservative. But starting in the 60s, the federal government began to guarantee the debts of financial giants. That meant these financial giants could engage in risky kinds of lending, which pay higher profits to them, without having to be concerned about having to pay higher [00:22:00] interest to borrow money because after all the people who lend the money shouldn’t be concerned ‘cause the federal government’s guaranteeing their debts.

That greatly increased the profits of these too big to fail banks for many decades, but when bad times came in 2007, they were on the verge of going bust and the federal government came in. It cost the federal government some money, but the real tragedy was the riskiness of these big financial giants [00:22:30] drove the economy into recession. Millions of people lost their life savings, and their homes, and so on. It was terrible. Now, the thing is people think that the federal government has no choice but to guarantee those debts, and assuming that’s so it’s still the fact that no private business would guarantee the debts of another private business without charging a fee, and the fee would be higher the riskier the bank. [00:23:00] That would have the same effect of tempering the risk taking appetite of these big banks. But the government didn’t do that before 2007. It passed the Dodd-Frank Act in 2010, but didn’t do that again, so the debt guarantee trick goes on even though Dodd and Frank promised they’d ended it.

Trevor Burrus: What is the benefit that Congress is getting … You said the general thing here is [00:23:30] members of Congress are trying to reap benefits and hide the costs. Was the benefit here that they saved the banks? Or …

David Schoenbrod: The benefit they get is they increase the profits of the banks, which means the members of Congress of both parties get a lot of big campaign contributions from Wall Street financiers, but they shift the blame for the financial crashes and the bailouts to whoever happens to be in office when the bailouts happen. So, George Bush and whoever was in Congress in 2007 and [00:24:00] 2008, they took the blame, but for decades previously democrats and republicans were getting big campaign contributions.

Trevor Burrus: The next trick is the “federal mandate trick”.

David Schoenbrod: Okay. Well, we’ve all heard about federal mandates, so this is what’s involved. Prior to the advent of the federal mandate trick in the late 1960s, the federal government basically left the states alone with two [00:24:30] major exceptions. One, the states had the duty to obey constitutional rights, and, two, if the states were gonna take a federal grant they had to do what the federal grant required. So, if they took a highway grant, one of the conditions was they use decent concrete. Makes sense, right? Okay. So, what Congress figured out how to do in the late 1960s and early 1970s was to use that [00:25:00] same idea of grant conditions to force states to do things that they otherwise might do. So, Congress would promise a benefit, like cleaner air. “Okay, citizens, you’re gonna get cleaner air and it’s gonna be done by the states if they take the highway grant. If they take the highway grant … They can’t get the highway grant unless they do what we tell them to do to clean up the air.” That way Congress got to promise cleaner air, but the blame for [00:25:30] the burdens needed to clean up the air would fall on the governors, and the mayors, and so on.

So, you could say to yourself, “Well, why in the world would a governor go about cleaning up the air the way Washington says you should do it?” Which is pretty darn complicated, let me tell you. The answer is that it would be political suicide for a governor or a mayor to turn down federal highway money, because after all who paid for the money? It was the tax payers of the state, and there’d be a lot of jobs lost in the state [00:26:00] if there wasn’t the highway money. So, you might ask yourself the question, “Well, wouldn’t that be political suicide for members of Congress to vote on these grant conditions like that?” The answer is Congress never votes on that stuff. There’d been dozens and dozens of roll call votes on the Clean Air Act, but they’ve always avoided roll call votes on these mandate requirements ‘cause they don’t want to be blamed. [00:26:30] So, they vote for clean air, but they don’t vote for cutting off the funds to their constituents.

Aaron Powell: If Congress isn’t voting for those mandates, who is making those mandates?

David Schoenbrod: Oh, no. They’re in the statute, but they don’t hold a roll call vote on the mandates.

Aaron Powell: Oh, okay. Okay.

David Schoenbrod: So, I mean, it’s kind of like a wink. They’re all agreeing to go along with this thing, I mean, in the Senate anyway … Sometimes in the House or with the Senate there’s ways of blocking the votes, and then, of course, Congress passed the Unfunded Mandate Reform Act. [00:27:00] It was designed to stop this kind of thing, but then special rules get adopted in the House and the Senate to prevent votes on these things still.

Trevor Burrus: Well, it’s very hard for a past Congress to bind … it’s impossible for a past Congress to bind a future Congress technically, although-

David Schoenbrod: Yeah, but there are rules that … House and Senate rules [inaudible 00:27:21] gonna get changed, but there are also special rules, and they have an excuse. Their excuse is this is there’s so many mandates in [00:27:30] so many bills, most of which make perfect sense, like highways have to be built with concrete’s that’s good; highways have to have a yellow line down the middle; buh-blah, buh-blah, buh-blah. So, if you didn’t have rules that limited amendments on this kind of stuff, any one member of Congress could stop any one statute by just insisting on roll call votes in everyone of them. So, I have the solution. I have a way of getting votes on the controversial mandates without allowing a single member of Congress to [00:28:00] stop Congress in its tracks. The answer is this — think about how the National Football League deals with complaints about rulings on the field.

Trevor Burrus: You mean the review of the film in the-

David Schoenbrod: Yes. Right. You get so many a game, and so I would say that every member of Congress gets one roll call vote on a mandate. If you win you get another, and if you win you get another, and so on and so forth. Now, that begins [00:28:30] to change how things work in the drafting process in Congress because if your bill has one of these things in it and it gets overturned, the bill is just sort of turned on its head, so you begin to draft them differently. Also, members of the Congress have an incentive to use their challenge in a way that’s gonna produce good PR at home. They don’t want to have it lost, so it totally changes the whole mechanics, the incentives of the legislative drafting [00:29:00] process, so we can get votes on the really controversial, troublesome stuff, but most of the mandates would slide through because they’re widely supported, like decent concrete.

Trevor Burrus: The next trick, the fourth trick, is the regulation trick. This is something that I do a lot of work on, the administrative state and the legal part of Cato. It does continually aggravate me that most laws are not passed by Congress anymore, but they are conveniently avoiding both blame and can take credit [00:29:30] if they so choose. So, how does the regulation trick work?

David Schoenbrod: Okay. The way that regulation worked until the 1960s was this — is Congress either passed the rules of law itself, the rules of conduct, which meant that Congress got credit for the benefits of the rules and blame for the burdens, or it handed the job over to administrative agencies, generally in very bland statutes, open-ended statutes that said, “Here’s our problem, you solve it,” which [00:30:00] meant that the agency got most of the credit and most of the blame. There’s some reasons for concern about whether this fits within the Constitution. I’ve written a book that says it doesn’t, but that’s history.

By and large, the agencies didn’t do that bad a job, but things went haywire around 1970 when Congress passed the Clean Air Act where it said, “Okay, everybody gets a right to clean air. You could enforce it in court, and by the way the duties [00:30:30] to obey that right, to fulfill that right will be announced by the EPA.” So, Congress gets the credit for giving everybody a right to healthy air, but it’s the agency that has to announce the duties, so the duties come on its letterhead. The agency gets the blame for the duties, and, of course, then the members of Congress lobbied the agency not to impose duties that are tough on constituents or contributors, which means the agency does not fulfill the rights, which means then the members of Congress, often the same ones, [00:31:00] blame the agency for not fulfilling the rights, so it’s just a cakewalk for members of Congress. That’s the regulation trick.

Aaron Powell: So, all of these tricks seem so screwy on their face. The regulation trick of blaming them for not doing something, but then when they try to do it imploring them not to do it. Do the members of Congress recognize how silly these things are and they just do them anyway because they benefit in all the [00:31:30] ways that you’ve described? Or are they oblivious to the “Keystone Cops” look of all of this?

David Schoenbrod: No, I think they are and are not aware. I mean, I have had members of Congress with jurisdiction over the Clean Air Act say to me, “Uh-oh, we got to stop the blame shifting.” They know all about it. On the other hand, it’s the way that business gets done, [00:32:00] so the ones that are younger come here not even aware that these are tricks or differences from the past — this is just how government works — and they’re socialized into this. It’s like you’re a freshman in college and people wear white sneakers, or whatever it is, you just fall in. But I think that many of them do not feel good. They know that their jobs involve a large amount of fakery, and they rationalize it this way, “If I don’t do this, [00:32:30] the other party is gonna gain seats in the next election, and people even worse, who behave even worse than I do will get elected.” That’s not an illogical rationale.

I mean, if you believe your party has the better stance for the public — I think almost all of them do — then winning and keeping your majority is the most important thing and losing that is just terrible. [00:33:00] So, that’s why I say our attitude ought not to be hate the members of Congress, even though they are ludicrous, but rather hate the game — change the game. So, that’s why I’m proposing ways of changing the rules of the game to stop the tricks. So, for example, what I would do with the regulation trick is to have a procedure that says, “The most important regulatory decisions must be voted on [00:33:30] in Congress, whether they’re to regulate or to deregulate.” Now, the republicans have a bill called “The REINS Act”, which claims an intention of doing that, but it’s not framed in terms of making Congress responsible. It’s framed in terms of being against regulation.

The whole premise of the bill is that … I mean, the REINS stands for “Regulations from the Executive in Need of Scrutiny” as if the problem [00:34:00] originates in the agencies. The problem originates in Congress commanding the agencies to do all of this regulations, and if they don’t they could be sued in court by citizens, right? So, there’s a trick there. And then, what the statutes says is that it deals only with the increases in regulatory cost not deregulation, which ensures that the democrats are never gonna support it in the Senate, which means it’ll never pass. So, this is another example of the [00:34:30] trickery. The republicans who support REINS could take credit for being responsible, but never have to shoulder responsibility ‘cause REINS will never pass. This is heaven.

Trevor Burrus: Yep. It makes sense if you could have … You could still have the agencies. They can still use their expertise, but then after they come up with what the rates should be then Congress has to actually vote on those things.

David Schoenbrod: Exactly.

Trevor Burrus: That’s crazy enough it just might work. It sounds like somewhat constitutional government.

David Schoenbrod: Well, and indeed, James [00:35:00] Landis, who was the New Deal’s guru of administrative law and later Dean of Harvard Law School, proposed just this thing in a book written in 1938. Steven [Breyer 00:35:13] in the Law Review article showed how it could work, but it’s advantageous to members of Congress right now not to have this reform because then they don’t have to be responsible.

Trevor Burrus: Now, the final trick is “the war [00:35:30] trick”. This is the most depressing one.

David Schoenbrod: It is the most depressing one. It’s the most depressing one because it involves the most solemn decision of government, which is to go to war. We’ve only had five declared wars in the history of our country, but the rest of the wars were specifically authorized by Congress for the first 160 years of the country. This would not have surprised the framers because most wars in Europe, at the time, were not declared [00:36:00] wars, so they expected undeclared wars, but the habit was for 160 years that Congress would specifically say, “I authorize this war. Not just that we funded it, but we’ve authorized it.” That changed with Korea in 1950. President Truman said he didn’t need to get authorization from Congress ‘cause it was just a police action. Turned out 33,000 Americans died in it, plus lots of other people. [00:36:30] The public was very much against this, and by the way the polls show that the public is very much against presidential government. It wants Congress to be involved, even though it has a low opinion of our president and Congress.

So, anyway, because the public opinion was against unilateral presidential decisions to go to war, Congress passed the War Powers Act in which supposedly Congress says to the president, “You can’t go to war unless you ask us first.” [00:37:00] Now, what’s happened is if the war is noncontroversial then the president does ask for authorization. If it’s controversial, and particularly if people really don’t know whether it’s going to be popular in the long run, then Congress finds it advantageous not to be asked. So, the president and Congress in those cases collude for the president to go ahead anyway. Like, for example, in Libya, members of Congress of both parties told Obama, “Go into Libya, but don’t ask us to vote [00:37:30] on it.” So, that means that the members of Congress march in the victory parade if it turns out to be popular and blame the president if it turns out to be unpopular. Disgusting.

Trevor Burrus: Yeah, it does start to seem that this sort of crazy experiment is falling apart in the Constitution that we’re having no accountability for-

Aaron Powell: And you’ve offered particular [00:38:00] solutions to each of these tricks — particular ways that we could change the rules to head them off — but all of these changes would require government deciding to change the rules.

David Schoenbrod: It would require Congress in particular to change the rules.

Aaron Powell: But if Congress has embraced these five tricks because they work to its advantage, the advantage of its individual members, what incentive do any of them have to change any of these rules?

David Schoenbrod: Okay. Well, first [00:38:30] of all, they know that the federal government is not popular, and they know that Congress in particular is unpopular. Second, they wake up in the morning and look in the mirror knowing they’re going to work for the most unpopular, despised organization in the country. That can’t be fun. Talking to them, they don’t like it. But on the other hand, it makes perfect sense for them individually to keep up with the tricks because otherwise they may well lose their majority. [00:39:00] On the other hand, if they all agree to play by new ground rules, they could earn a modicum of self-respect — stop being so ridiculous. And I agree with you, they look ridiculous in doing this stuff, and they know they look ridiculous doing this stuff.

That in and of itself isn’t enough, but if we begin to have even a critical mass of citizens who started running to their representatives saying, “I’m for the ‘Honest Deal Act’. I’m for this kind of thing [00:39:30] where the tricks get stopped,” then we begin to change the way the electoral process works because then if a member of Congress says, “I’m for the ‘Honest Deal Act’,” that may be a source of some additional support in the next election, and after all if it does pass then the other side is bound, too, and besides I don’t have to start taking responsibility until after the next election, [00:40:00] right? Then you can imagine it from the point of view of a state legislator who wants to be in Congress. So, that legislator introduces in the state legislature a state version of it. By the way, the appendices of my book outline the “Honest Deal Act”. They outline what a state version would be. So, then the state legislator introduces in the state legislature, throws his hat in the ring, or her hat in the ring for Congress, and it challenges the incumbent.

“Are you [00:40:30] for the ‘Honest Deal Act’ of the federal government or not?” “I am for it.” Right? That begins to provide somewhat of an opening, and so I think the essential first step here is for people to go to my website — dc-confidential.org — and there’s a tab there, “Take Action.” In two minutes, you could send an email to your senators and representatives asking them to do the right thing. [00:41:00] If people began to do that, I think we’re gonna begin to see people introducing legislation along this front. I’ve had discussions in the last couple of days with some people in Congress who are beginning to work on this, but it’s gonna happen faster if folks at home get off their butt for a second, or sit on their butt and go to the computer and send these emails then we’re gonna begin to, I think, make some tracks.

Trevor Burrus: Thanks for listening. This episode of Free Thoughts was produced [00:41:30] by Tess Terrible and Evan Banks. To learn more, visit us on the web at www.libertarianism.org.