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Earmarks and Enlightenments

with 13 comments

Okay, I couldn’t think of a decent post title this morning–sometimes it gets like that.

And I have been thinking a lot about the next part of the Defense, which starts with the Enlightenment and goes from there. 

In an odd way, that big blackout came at just the right time–I had just gotten to the point where I was going to look at the next place where it looks as if a reintroduction of the Liberal Arts led to a better overall moral practice in society at large, and then the lights went out.

It sometimes feels like some kind of cosmic metaphor. 

But let me get back to the issue that is still, oddly, at hand.

Mique says that there are a lot bigger problems than the fact that agencies composed of unelected functionaries get to make “regulations” that are in fact laws—such as earmarks, for instance.

But I don’t agree, and for a number of reasons.

First, though, let me say that I don’t think it is possible to have ANY kind of law, no matter how passed, that would not result in lawsuits at at least some time and place.   As long as citizens are allowed to challenge laws in court, they will. 

And I think that’s fine.

Making sure that all laws are non-contradictory with other laws and as clear as possible is, however, the necessary condition of making them just.

The difference between earmarks and agency-issued “regulations” is, however, fundamental–earmarks are bad practice, but they’re within the paramaters of democratic government.  Agency “regulations” are not.  By whatever name we call them, they are laws issued by unelected bodies.  

That is the very essence of what democratic government is not. The very same law–for instance, that raw meat and cooked meat cannot be stored in the same container in a restaurant kitchen–is acceptable when passed as legislation by elected representatives and unacceptable when issued as a regulation by unelected agencies.

The issue is in the nature of the imposition of the law, not the content of it.

Earmarks, on the other hand, are just the latest wrinkle on an old problem with the structure of the United States government–and part of the issue is that the problem is not entirely a problem.

In the US, the chances that a Congressman will be elected have very little to do with his or her positions on big issues like abortion or the war in Iraq, and much more to do with what is called “constituent service.”

If you have a problem with the Social Security people, or the EPA, or any other government agency, what you do is call your Congressperson’s office.  That office then “looks into it” for you–and quite often solves the problem one way or the other. 

A Congressman is reelected largely on the basis of what his constituents can say he is doing for them.  Poor constituent service will kill a Congressman’s reelection no matter what his politics.  That’s why Waterbury, CT dumped Gary Frank for a Democrat, even though Frank’s ideological positions were MUCH closer to those of his constituents than Chris Murphy’s will ever be.

But “constituent service” can also mean bringing projects to your district that help the local economy or create jobs. 

Before earmarks became the method of choice for this, any Congressman trying to get some  benefit for his district had to contend with the opposition of lots of other Congressmen who also wanted benefits for theirs or who wanted the same benefit–and with a process that could make the entire issue a little too public come the next election.

Earmarks provided a way to get nearly everybody everything they wanted–the Congressman and his constituents got their projects and could go back to their districts claiming to have “done something” for the voters, and a lot more of them got done than would have been done otherwise because the process of approving them wasn’t as public and therefore didn’t generate as much heat as they might have.

This is as true of cases where the earmark expends funds on giving grants or favor to private companies as when they direct federal projects to a specific area.  Private companies employ people in the district.

There were other methods of doing the same thing in the past, and we’ll get rid of the earmarks and something else will show up to do the same thing in the future.

The only way to stop the process–the ONLY way–would be to prevent the US government from making such grants to anybody, anytime, at all.

And that would stop lots of things both sides want–it would put an end to government investments in green jobs and new technologies as well as grants to Congresswoman Smith’s favorite strip mining company. 

So today it’s earmarks, and tomorrow it is something else.  But earmarks do not in any way violate the fundamental legitimacy of a democratic government, and rule by unelected agencies does.

A system whereby laws are enacted not by the representatives of the people but by functionaries who have not been elected to anything, and where the content of those laws is not negotiation and compromise by the elected representatives of the people but designated “experts” who are presumed to know better than the citizens they rule–

Such a government is no longer of the people, by the people and for the people.  It’s an oligarchy, and a real one–far more real than “the corporations are running our lives.”

The corporations aren’t.  The agencies increasingly are, and they are increasingly bold about instituting regulations they know perfectly well the mass of people will oppose.

And the consequences are considerably more frightening than anything I can think of that a corporation could do to me.

Take, for instance, a little item in my latest copy of Reason magazine.  Reason is the monthly publication of the Reason Foundation, the country’s largest libertarian organization and one that–so oddly!–seems to spend a big whacking hunk of its time on personal liberty issues instead of valorizing businessmen and dreaming of a free market utopia.

Gee, I wonder how that happened.

Anyway, the item was this–and the people here from Pennsylvania can check it out for me.

Pennsylvania has a “child abuse registry” rather like the “sex offender registry.”   It’s a public list of people who have committed child abuse.

Except–80% of the people on it have been convicted of no crime whatsoever.  They have been placed on the list by state social service agencies, who are not required to presume their innocence, get a warrant for the search of private houses, adhere to a beyond a reasonable doubt standard of proof, or in any other way recognize what are supposed to be the accused Constitutional rights.  What’s more, they base their “findings” on regulations that have been passed by no legislature and standards that they are allowed to institute largely without democratic oversight–and they are completely and utterly unaccountable to anybody.

They can’t even be sued.

(It was a PA case where a six year old boy was removed from his parents house on charges of sexual abuse that turned out later to have been made by a neighbor with a grudge, then put into foster care where he was raped by his foster father and contracted HIV.   The parents challenged the state law that forbids suits in such cases, and Sandra Day O’Connor cast the deciding SCOTUS vote against the parents on the assumption that the need to protect ‘the children” meant that suits could not be allowed.  Everybody makes mistakes.

And that’s why I’m not in favor of “tort reform.”  We already have tort reform for most government agencies.

It’s also why I was never a big fan of Sandra Day O’Connor.)

Anyway, I’m not worried about earmarks, and I know that getting governments to pass laws and forbidding agencies to issue them won’t solve all our problems.

But a government passing laws is a legitimate democratic system, no matter how far it gets its head up its ass.

A government where laws are issued by agencies is not a democratic system at all. 

And one where such agencies cannot be held accountable on any level–cannot even be sued when they do something as life-destroying as the two illustrations above–is beyond just out of control.

Written by janeh

January 7th, 2012 at 11:16 am

Posted in Uncategorized

13 Responses to 'Earmarks and Enlightenments'

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  1. My take is a little sideways. It’s very important–critical, even–that laws must be clear and non-contradictory. I would add knowable and known, and it’s another aspect of my problem with detailed government. You can either learn how to cook or learn 1,000 pages of OSHA regulations on restaurants. There are, I’ve been informed, 7,000 federal regulations having to do with the manufcture of automobiles, which is one good reason no one in the United States starts a car company in his garage.

    But I don’t think having the EPA write rules is undemocratic–stupid, perhaps, but not undemocratic. To run a large complex structure–and even the government of 1800 was both–you have to delegate authority. The Army is a nice example. In my military days, I could have been punished–imprisoned or fined, if I made a big enough fool of myself–for not rolling up my sleeves, having insignia sewn on crookedly or oversleeping a 4:30 AM formation. Congress did not pass a law requiring me to roll up my sleeves on a particular day or sew my insignia on straight, and it certainly didn’t set the time for early PT formation at Fort Huachuca. It gave my superiors authority to make those decisions and enforce them. I’d say that’s fair enough. The important thing is that (a) Congress does properly delegate the authority, (b) as said, that the person affected by them knows what’s required of him, and (c) that it not be impossible to comply–as, for example, if the rules are contradictory.

    On earmarks, I agree that we can’t get rid of something very like them. Even if you restricted government to law enforcement and national defense we’d have Senator Byrd triumphantly carrying home the FBI fingerprint center to West Virginia and Teddy Kennedy telling the Navy they WERE going to buy more (Massachusetts-made) F-14’s whether they needed them or not.

    That said, I think earmarks are rats nibbling at the roots of democracy, and they have to be suppressed as much as possible. You can’t get entirely rid of weeeds, either, but that doesn’t make weeding unimportant.

    Frankly, if we just gave every Congressman a set sum of money to be spent in his district, subject to the consent of the other congressmen, I could live with that. Someone gets a bridge, someone a subway and someone else repaves a runway: fair enough. But as long as seniority lets some Congressmen scarf up more pork than others, the difference between the earmark potential of the most senior and the least senior representatives is a fine levied on any district so impertinent as not to re-elect a congressman. This is a very bad thing. Maybe worse, Jack S. Phogbound isn’t just bringing the pork to the district: he’s bringing it to particular people in the district, who have probably paid or flattered him to get it. This is bad economics. You never, EVER want an investor to decide the highest return he can get on his capital is to rent a politician. You are trading machines, factories and research monopolies, because you pay a politician, one way or another, to get rid of competition. This is also a blow at democracy. The fundamental democratic principle is that everyone is to be treated equally. The fundamental principle of earmarks–as with most detailed legislation, come to that–is “special rules for special people.” Even if the process is entirely democratic, “four wolves and a sheep voting on what to have for lunch” undercuts the moral basis for democracy.

    Which, again–and here I’m in entire agreement–is what happens with legal immunity of the type she describes. If I destroy lives through malice or incompetence, I ought to expect legal consequences. A system under which the “civil servant” does not fails that “treated equally under the law” test.

    But this does not make me opposed to tort reform, because I’m looking for exactly what we’ve discussed earlier–clear, comprehensible non-contradictory laws–and, as a result of that, people who are not subject to being sued because they have remained within those laws. This, I think, requires enough consequences to discourage malicious shakedowns masquerading as legal actions, and some standard system of assessing damages to the whole thing looks more like law and less like a lottery.

    But once we do that, we should make very sure the system extends to malicious and incompetent government employees.


    7 Jan 12 at 2:59 pm

  2. Nah.

    The analogy is false.

    Congress has delegated to the armed services only the right to regulate the behavior of the members of those services–NOT to make regulations that apply to the rest of us.

    I’ve got no problem to delegating the right to make regulations FOR MEMBERS OF THE AGENCY to the FCC, EPA and CPS.

    I DO have a problem with delegating Congress’s power to make laws–LAWS, which is what regulations are–for the rest of us.

    Yes, the world is complicated.


    It’s Congress’s job to make laws, and the Constitution gives no right to anybody else to do it, certainly not to a agency full of unelected people who make decisions by–well, whatever. Anything.

    I want the agencies stripped of all power to make law, no matter what they call the law in question (‘regulation” being the term of choice at the moment)

    That will almost certainly put a stop to things like agencies deciding that any and all spanking, no matter how mild, is automatically “child abuse,” and hundreds of other things that run counter to the popular will and that could not be enacted by elected assemblies.

    If it means Congress and the state legislatures will have to work harder–so be it.


    7 Jan 12 at 3:45 pm

  3. Don’t kid yourself. They’ll just bury it in a 1,000-page bill and pass it all the same. If Congress–or the President–wanted to stop the regulatory agencies from doing this sort of thing, it would stop in about half an hour. The politicians enjoy having the cut-outs, but the cut-outs aren’t doing anything the politicians as a body disapprove of–and if the population were sufficiently outraged, the politicians would back water.

    You want a procedural fix, but the problem is attitude. Change the attitudes, and the same procedures wouldn’t lead to the current–and hateful–results. If you don’t change the “I’m smarter and therefore have the right to micromanage you” attitude, your only defense is the enumerated powers–and you’re a century too late.


    7 Jan 12 at 7:11 pm

  4. Well, as I said earlier, in Australia regulations made by Federal agencies go before a Senate Committee for review, and they are often turned back on the agency responsible if they are held to be politically, legally or otherwise inappropriate. The agency might slip a few through (and I’m sure it happens) but the Committee legal staff usually filter out the most offensive. Perhaps, the real problem is the general move towards greater authoritarianism in our societies.

    But, yes, I agree in principle – the process is inherently undemocratic.


    7 Jan 12 at 7:12 pm

  5. Oh–and I promise to take the civil service analogy seriously just as soon as OSHA has the right to imprison recalcitrant employees, and maintains its own judicial and penal system for that purpose. Delegation of authority is delegation of authority–and to some degree necessary.


    8 Jan 12 at 12:07 am

  6. Back in the day, we were taught that one can delegate responsibility, and you can delegate authority, but you can’t delegate accountability. Part of CAPT Parmenter’s responsibilities is to ensure the health and safety of his unit at Fort Courage. He can delegate the responsibility for keeping F Troop’s quarters clean and well-maintained to Sgt O’Rourke, and can delegate sufficient authority to O’Rourke to get the job done, and he in turn can delegate to CPL Agarn.

    But if the troops get sick from filthy quarters, and the barracks falls down from neglect, it’s Parmenter who wears it, not his subordinates.

    However, what’s been happening over probably gradually over the past 40 or 50 years is that authorities at all levels right up to the politicians in Congress/Parliament, have been finding new and creative ways to avoid personal accountability. That, I think, is the main reason for the appearance of these allegedly “independent” and “arms-length” authorities being given the powers to make binding legislation. Politicians can hold their hands to their hearts and say, “Who, ME?”, and then busily set about “fixing” a problem that they happily conspired to create. Or not.


    8 Jan 12 at 4:34 am

  7. There used to be a custom by which a Minister resigned if one of his subordinates really screwed up , and a PM could (although in practice rarely if ever did) resign if one of his Ministers screwed up badly enough. Now, resignations can still ensue if you disagree badly enough, and how long ago was it that a Canadian Minister resigned when the public found out that a visit to the troops in Germany included a visit to a strip joint. And, of course, an entire Canadian elite unit of the armed forces was disbanded following a scandal about the murder of a prisoner.

    But as a general rule, the idea of ministerial responsiblity seems to have gone by the wayside. It’s unfair, of course, to have to resign when someone you never met several layers below you in the food chain screwed up badly, but I wonder if it helped with honesty and reduced injustice?


    8 Jan 12 at 8:49 am

  8. I agree: both that you can’t delegate responsibililty, and that a lot of what’s going on is precisely, that–an effort to evade responsibility. (Anyone remember Nancy Pelosi on KELO?) The regulatory bodies provide a certain amount of political cover, but they’re not doing anything the elected oficials don’t approve of. I will go further: I think as a body our elected officials LIKE the regulations to be vague and contradictory. This makes everyone guilty, and makes everyone in need of the services of politicians in and out of office to “straighten matters out.” Clear simple non-contradictory rules, whether laws or regulations, mean no $10,000 “speaking fees” for influential former congressmen or cabinet members.

    It can be taken to extremes, but by and large I approve of ministerial responsibility–just as I approve of holding a commander responsible for the conduct of his troops, and this applies even to the ones he has no direct contact with. If it is known that the C.O. is deadly serious on this or that subject, that attitude goes down the chain of command pretty quickly. If it’s known that the C.O. doesn’t much care or never bothers to check–well, that word may spread even more rapidly. I could tell some stories. There are probably a lot of abuses in various government departments that the boss didn’t order–but not too many that he didn’t condone, one way or another.


    8 Jan 12 at 10:29 am

  9. A liberal saying much the same thing as all the above:


    “Liberalism has not expanded because it has not had a Martin Luther, a leader committed to stripping away the corruptions, complexities and indulgences that have grown up over the years.

    If you’ll forgive some outside advice, President Obama might consider running for re-election as Luther. It’s not enough to pick a series of small squabbles and then win as the least ugly man in the room. He might run as someone who believes in government but sees how much it needs to be cleansed and purified.

    Make the tax code simple. Make job training simple. Make Medicare simple. Every week choose a rent-seeker to hold up for ridicule and renunciation. Change the Congressional rules. Simplify the legal thickets that undermine responsibility.

    If Democrats can’t restore Americans’ trust in government, it really doesn’t matter what problems they identify and what plans they propose. No one will believe in the instrument they rely on for solutions.”


    10 Jan 12 at 9:18 am

  10. Michael, good luck with that. I’d have said, analogically, that Big O is a Renaissance Pope: it is precisely the “legal thickets,” “rent-seekers,” “complexities” and “corruptions” that he is most concerned with preserving and expanding.

    I suppose it depends on whether one thinks liberalism’s purpose is to mitigate capitalism or simply to grow government. But also note that if the purpose is mitigation, then at some point government has to stop growing, and liberalism’s work will be done. That’s true of any political movement, of course, which is why I’m a little leery of people who talk of expanding an ideology instead of accomplishing a political objective.


    10 Jan 12 at 4:47 pm

  11. Robert said: “Big O is a Renaissance Pope: it is precisely the “legal thickets,” “rent-seekers,” “complexities” and “corruptions” that he is most concerned with preserving and expanding.”

    Which is precisely why when anyone who voted for him whines that he hasn’t lived up to expectations, I say, “You knew he was from Chicago when you voted for him.” I mean really. He’s from Chicago, has worked in politics all his adult life, and you expect probity and integrity from him?? REALLY? What part of “from Chicago” don’t you get?

    It’s like they think he somehow miraculously never encountered The Machine and is free from their taint. I scoff.


    10 Jan 12 at 6:57 pm

  12. from the same article that Michael posted:

    The most important explanation is what you might call the Instrument Problem. Americans may agree with liberal diagnoses, but they don’t trust the instrument the Democrats use to solve problems. They don’t trust the federal government.

    A few decades ago they did, but now they don’t. Roughly 10 percent of Americans trust government to do the right thing most of the time, according to an October New York Times, CBS News poll.

    Why don’t Americans trust their government? It’s not because they dislike individual programs like Medicare. It’s more likely because they think the whole system is rigged. Or to put it in the economists’ language, they believe the government has been captured by rent-seekers.


    10 Jan 12 at 7:36 pm

  13. Lymaree, be fair: he was from Chicago, but he wasn’t, if you will, from Chicago politics. He was never an alderman. He never held a position in a city administration. There were other warning signs, but not that one, I think.

    Of course, Chicago has a reputation for EFFICIENT corruption: if Chicago politicians spent money on an Obaman scale, they’d be very rich, but they’d also have built a lot of roads and bridges–very little Solyndra-style waste, apart from the actual corruption–and no ideology. I’d rather hoped for Chicago-style results.


    10 Jan 12 at 7:45 pm

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