Читать книгу DC Confidential - David Schoenbrod - Страница 11

CHAPTER 3

When the Five Tricks Began

For too long, Washington has operated on the “something for nothing” principle. Both parties have promised their constituents the world.

—FORMER NEW YORK CITY MAYOR MICHAEL BLOOMBERG (2011)¹

In 1970, Senator Edmund Muskie of Maine had a problem. He had been the Democratic Party’s nominee for vice president in 1968 and was a leading contender for its nomination for president in the 1972 election. His hopes of taking the White House soared with the surprisingly large turnout for the first Earth Day on April 22, 1970. This surge in concern for the environment helped Muskie because he was known as “Mr. Environment” in Congress. This distinction came from his having authored key environmental legislation, especially on air pollution. Therein lay his problem.²

Only three weeks after Earth Day, Ralph Nader charged that Muskie’s air pollution statute sold out the public’s health because of his “preoccupation with the 1972 election.” According to Nader’s study, Muskie’s statute shirked the “hard choices” needed to protect the public’s health by leaving them to bureaucrats under the control of the White House and members of Congress working in cahoots with industry. In Nader’s words, the government “starting with Senator Edmund Muskie” had failed to clean the air.³

Muskie’s statute had neither defined the rights that people have to clean air nor the duties businesses have to emit less pollution. In it, Congress had left those critical choices to administrative officials. That is also what it had done in many previous statutes, saying to an agency, in essence, “Here’s a problem, solve it.” By shunting hard choices to an expert agency, such statutes often give legislators political cover,⁴ but Muskie stood exposed to Nader’s attack because it came at a time of escalating environmental concern and was directed against a leading candidate for president.

To keep his title of Mr. Environment and his hopes for the presidency alive, Senator Muskie needed a statute that would give him credit for cleaning the air. Yet, a statute that actually imposed the burdens needed to deliver clean air would also bring him blame, and thereby cost him votes and campaign contributions in the 1972 election. Yes, the Civil Rights Act, for which he had voted in 1964, also imposed burdens that were unpopular with some voters. That vote, however, was an easy choice for him because the civil rights statute imposed duties to stop bigoted conduct, which voters in most parts of the country viewed as evil. In contrast, legislating clean air would require imposing burdens not only on reckless polluters but also on reasonably responsible businesses as well as city governments and ordinary citizens in their capacities as motorists, employees, and consumers of electricity and home heating fuel.

To get credit but avoid blame, Muskie cleverly came up with a different sort of regulatory statute. While his earlier statute had said to the agency, “Here’s a problem, solve it,” the air pollution bill that he introduced in 1970 appeared to say, “Here’s our solution, implement it.” The new bill promised everyone healthy air in seemingly precise terms, but generally left an agency to define the duties needed to clean the air. In contrast, in the Civil Rights Act of 1964, it was members of Congress who imposed the duties to enforce the right against discrimination.

Because President Richard Nixon didn’t want to leave the environmental glory to a potential rival in the 1972 general election, he, too, proposed a bill that promised benefits but shifted responsibility for imposing the commensurate burdens. Competition between Muskie, Nixon, and others who wanted to run for president in 1972 helped to produce a Clean Air Act that Muskie sponsored, both parties in Congress joined in passing with hardly a dissenting vote, and Nixon signed with fanfare on December 31, 1970.⁵

The Clean Air Act would mean, according to Muskie, that “all Americans in all parts of the country shall have clean air to breathe within the 1970s.” The statute gave the job of deciding which duties to place on various pollution sources to a newly created administrative agency, the Environmental Protection Agency. Nonetheless, Muskie insisted that the statute “faces the air pollution crisis with urgency and in candor. It makes hard choices.”⁶

Only on auto manufacturers did Congress directly impose a duty to clean the air. The Clean Air Act decreed that new cars sold from 1975 on must emit 90 percent less of three key pollutants. Because administrators had failed to impose significant duties on auto manufacturers under the pre-1970 legislation—a failure for which Nader gave Muskie particular grief—Congress itself had to impose a major duty on them. The legislators were able to impose this duty without shouldering too-much blame because auto manufacturers at the time were in bad repute for making unsafe as well as dirty cars.⁷ Voters would, of course, end up paying more for cars with effective pollution-control devices, but that would be years after the statute passed, and voters would get the bad news from auto manufacturers rather than legislators. They would also, of course, get cleaner cars.

The cleaner new cars manufactured in the 1970s would, however, fall far short of producing the “clean air . . . within the 1970s” that Congress had promised. To meet the statute’s targets for clean air would have required cuts in emissions from power plants, steel mills, municipal incinerators, and dozens of other facilities including homes, as well as requiring motorists in some areas to use their cars less. None of this was made explicit in the statute.

To bolster the legislators’ claim that they had made the hard choices needed to produce healthy air by the end of the 1970s, the statute

• required the EPA to issue regulations sufficient to protect the public’s health from all pollutants everywhere in the United States;

• established deadlines by which the EPA must do each part of this job; and

• authorized citizens to sue the agency for failing to meet the deadlines.

So Congress granted everyone the welcome right to healthy air, but told an agency to impose the unpopular duties needed to vindicate the right. That shifts most of the blame, political scientists find, to the agency.⁸

With the 1970 Clean Air Act, Congress began to deal with regulation in a new way. During the progressive era that began in the late 1800s, Congress had given agencies broad discretion to shape regulation. The theory was that experts insulated from political pressures would staff these agencies and use a scientific approach to make the correct choices. Viewing the work of these agencies as scientific rather than political, Progressives saw this arrangement as consistent with “government of the people, by the people, for the people.”⁹

Another strain of progressivism, however, looked down on the people’s government that President Lincoln celebrated at Gettysburg. Herbert Croly, cofounder of the New Republic magazine, wrote in 1909 that “the average American individual is morally and intellectually inadequate to a serious and consistent conception of his responsibilities.” Captains of industry such as J. P. Morgan and John Rockefeller shared that view. So, too, did many socialists.¹⁰ One of them was my father’s father, Nathan Schoenbrod. As a young man in Chicago at the dawn of the twentieth century, he was one of a group of students who worked their way through law school by making cigars. They took turns reading their textbooks aloud while the others rolled the tobacco. Socialists all, they hoped that sooner rather than later people would see that the individual pursuit of private advantage leads to inhumane results. They would then cede power to expert leaders who would run the world as good parents run a family—lovingly but with complete authority. Why complete authority? Because if the leaders had to account to voters, selfishness and shortsightedness would inevitably return, or so they thought. These socialists, too, believed in rule by experts.

In sum, highly educated people with divergent policy preferences wanted Congress, when establishing federal regulations, to state only general objectives and leave the pivotal choices to experts in agencies supposedly insulated from politics. And Congresses professed to do so for many decades. In experts we trusted. That trust continued into the 1960s but came undone with the increasingly widespread realization that members of Congress, the president, and their staffs interfered with the decisions of these experts who were supposedly insulated from politics.¹¹ Nader drove the point home.

In the 1970 Clean Air Act, Congress pretended to make the hard choices sufficient to protect people’s health from air pollution by ordering the EPA to make those choices and directing the courts to require the agency to fulfill that order. Supposedly, the public’s health would still be protected and the experts would decide how to go about it. Everyone would have an ironclad right to healthy air, or so the statute promised.

Now, let us consider whether the 1970 Clean Air Act fulfilled that promise.

To bring lawsuits to enforce the rights that the Clean Air Act and other environmental statutes seemed to confer upon citizens, a group of ardent young attorneys set up an environmental advocacy organization, the Natural Resources Defense Council. I joined them in 1972 and, during the 1970s, litigated to get the EPA to protect the public’s health from an air pollutant particularly dangerous to children—lead.

Refiners had long put lead additives in gasoline as a means of reducing refining costs. But because the Clean Air Act required that, starting in 1975, cars must have newly manufactured pollution-control devices that would be destroyed by lead, legislators made quite clear that they expected the EPA to order the petroleum industry to allow only lead-free gas in the new cars. Otherwise, Congress would have looked stupid for requiring motorists to pay for the pollution-control devices and then allowing them to be destroyed by gas containing lead. So with this order the legislators were protecting their own reputations, not the public’s health from lead. After all, the statute gave no explicit directions about what the EPA must do about the lead in the gasoline used until 1975 and in the hundred million old cars that would still be on the road when the 1975 cars came on the market.

To protect children from all this lead, the EPA would have to order refiners to limit the lead that they added to the gasoline used by those cars. This would, however, raise the price that motorists paid at the pump and cut the profits of some companies. Because the statute left it to the EPA to decide how much pollution would have to be cut to protect health, and how to go about cutting the pollution, motorists would place most of the blame for any increase in the cost of gasoline on the agency rather than the legislators.

When the EPA began to develop the regulation to protect public health by cutting lead in gasoline, the petroleum industry sought help from members of Congress. Legislators—liberals as well as conservatives—quietly lobbied the agency to stop the regulation and it did. Because the statute had assigned the protection of health to the EPA, voters would place most of the blame for failing to protect children from lead in gasoline on the agency rather than the legislators.

The Clean Air Act instructed the EPA to cut lead to healthy levels by 1976, but the agency failed to meet this deadline. On behalf of environmental and antipoverty organizations, I personally filed lawsuits and won judgments on the basis of the agency having violated the law, but the action the agency produced in response fell far short of the statutory promise. Early in the litigation, the EPA’s deputy administrator, John Quarles, candidly told me that even if the court ruled in favor of the children whom I represented, the agency would drag out implementation so that the victory would have no impact. I ended up winning the suit and the victory did have some impact, but not nearly that which the statute promised. Forcing the EPA to take its time were the White House and members of Congress of both parties, who played both sides down the middle. The upshot was that children’s exposure to lead from vehicles increased over the first half of the 1970s.

For the EPA’s failure on lead, I initially blamed the Republicans who occupied the White House and therefore controlled the agency until 1977. When the Democrat Jimmy Carter became president that year, I hoped that his tough campaign talk on the environment would translate into tough action on lead. To the contrary, under President Carter the EPA reduced the already-weak protection of children that his Republican predecessors had issued.¹²

If the 1970 statute had openly decided how fast to cut the lead in gas rather than leaving the choice to the EPA, Congress itself would have required the lead to be taken out much more quickly than the EPA did. Public demand drove Congress to legislate on air pollution in 1970, just as public demand had driven it to legislate on civil rights in 1964. Of the air-pollution problems, the public cared most about the lead pollution from gasoline. Bumper stickers of the time read “GET THE LEAD OUT.” Of course, the pressure to cut lead would have run up against resistance from industry, but that happened with new cars, too, and the result was a 90 percent cut in emissions by 1975. Moreover, the auto industry had much-more power than the chief opponents of cutting lead in gasoline—the lead-additive makers and the small refiners. In my opinion, if Congress had decided how much to cut lead in gasoline, by the mid-1970s the reduction would have been, at the very least, 50 percent.

By leaving it up to the EPA to decide how much lead to cut from gas, Congress delayed getting most of the lead out by at least a decade. Based upon EPA calculations of the health benefits of eventually eliminating lead in gas, this delay cost approximately fifty thousand lives (about the number of American deaths in the Vietnam War), and so severely injured the brains of a hundred thousand other people that their IQs fell below seventy.¹³

This ending may seem too awful to be credible, but consider this: In 2016, President Obama declared a state of emergency because one-twentieth of the children of Flint, Michigan, had blood lead levels above five micrograms. In the 1970s, virtually 100 percent of New York City’s children had blood lead levels above that level, and the average blood level in children across the United States was three times that level. The great bulk of these children got their lead primarily from gasoline, which is what led to the EPA’s finding that removing lead from gasoline produced big benefits.

The legislators left the hard choice of how much lead to cut in gasoline to the EPA rather than making it themselves because handing it off was better for them. If Congress had made the decision, its members would have faced blame, both from voters who wanted more protection of health and from voters who wanted lower burdens. That would have been a “hard choice.” In contrast, by telling the EPA to “protect health,” legislators from both parties feigned making a hard choice and got credit for protecting health but in fact shifted the blame for the burdens and failure to protect health to the EPA. That’s the trick.

The members of Congress did not agree on what to do about pollution, but they did agree that they should get credit and not blame. That’s why they voted for the Clean Air Act almost unanimously. The legislators neither rose above their differences nor dealt with them openly but rather hid them, which of course stifles open debate.

If Congress had to make all the hard choices in 1970, it might not have passed a Clean Air Act. Yet, as chapter 8 explains, my proposal is not to require members of Congress to make these choices when enacting regulatory statutes but instead to require them to vote on the major regulations the regulatory agencies later produce. Having already passed the Clean Air Act and many other regulatory statutes, they lack the nerve to repeal those statutes.

The needless deaths resulting from lead added to gasoline in the twentieth century are now history, but the Clean Air Act still costs lives today, even though it also does much good.

The EPA tells us about the good. The Clean Air Act did get rid of lead in gasoline in the end and will continue to do more good. By 2020, the statute as amended in 1990 will halve the emissions coming from the pollutants that harm our bodies. The most harm comes from fine particulates in the air we breathe. The particulates are so tiny—several thousand of them could fit inside the period at the end of this sentence—that they get deep into our lungs and pass into our blood. According to the EPA, halving them will prevent at least 200,000 heart attacks; 255,000 bronchitis cases; and many other diseases each and every year. If the EPA is correct, the average American thirty-year-old will live one year longer as well as many years healthier as a result of the reduction, and the cost of halving pollution is paltry, only one-thirtieth the value of the benefits.¹⁴

Moreover, according to the EPA’s interpretation of the science, cutting the emissions by another half would likely have proportionate benefits. So, for example, cutting pollution by three-quarters rather than a half would add another half year to the life of the average thirty-year-old. The technologies needed to do so already exist. (All of these assertions are based upon the Obama administration’s conclusion that cutting pollution will have proportional benefits down to low levels of pollution, and the Bush II administration also reached a similar conclusion.)¹⁵ Nonetheless, the agency still says the Clean Air Act will cut pollution by a half, rather than three-quarters.

In sum, the EPA can count the extra lives that it could save, but can’t under the current Clean Air Act. The reason is that to take advantage of something-for-nothing trickery, Congress has built two false assumptions into the statute and left them there.

False Assumption 1: “All air pollutants have safe levels.” Congress in 1970 instructed the EPA to reduce pollution below the level at which it harms health. This instruction is based upon the assumption that for each pollutant, there is a level above zero at which it does no harm to human health. Yet, in 1970, Senator Muskie believed that assumption to be false. As he later stated, “Our public health scientists and doctors have told us that . . . air pollution [at any level] is harmful,” adding that the Clean Air Act is based on the assumption that there is a threshold below which pollution does no harm, “although we knew at the time it was inaccurate.”¹⁶

This assumption was a politically convenient lie. It enabled legislators to instruct the EPA to set mandatory air-quality goals at “safe levels” and achieve those goals regardless of the cost. While this instruction led them to claim they had made the “hard choices” needed to protect health, this was gibberish. The only safe level for many pollutants is zero, or so close to zero that achieving it would cost so much that even eco-ardent legislators would freak out.¹⁷

This assumption is still in the statute. To avoid imposing politically impossible costs, the EPA under every presidential administration claims to comply with the statute, but each continues to violate it by setting the goals at levels insufficient to protect health completely.¹⁸ Because Congress uses a trick, the EPA gets tricky, too.

Congress could stop the lying now by choosing how much to cut total emissions of the most-widespread pollutants, but that choice would necessarily be a compromise between protecting health and holding down the costs of pollution control. In making that choice, the legislators would have to subject themselves to blame, both from voters who want more complete protection of public health and from voters who want lower pollution-control costs. Because Congress refuses to shoulder responsibility, the EPA must continue to set the supposed “health” goals on the basis of political feasibility. The second false assumption that the legislators built into the statute reduces the political feasibility of cutting pollution.

False Assumption 2: “Air pollution is a local problem.” Congress in 1970 assumed that unsafe levels of air pollution come primarily from nearby pollution sources. This assumption is false. A big part of the pollution that we breathe comes from factories and other sources hundreds or even thousands of miles away.¹⁹

The false assumption was, however, politically convenient for federal legislators. It enabled them to look to the states to require pollution sources within their borders to cut emissions sufficiently to achieve the mandatory air-quality goals the EPA had set. Members of Congress said this arrangement would give state officials the opportunity to allocate the cleanup burden among the wide variety of pollution sources in their jurisdiction. It has become clear today that this arrangement was nonsensical because a state on its own can do relatively little to reach the air-quality goals for the deadliest pollutants, fine particulates, and ozone, the bulk of which come from out of state.²⁰

The Clean Air Act still requires the states to take the lead in cutting emissions, but in 1977 Congress added an embellishment. The statute now tells the EPA to tell the states to tell the pollution sources within their borders to protect downwind states from emissions. This circuitous response to a national problem has guaranteed complexity and years and years of delay. It is not good for anyone’s health, pocketbook, or faith in the democratic process. Congress still looks to the states to solve a national problem so that its members can shift the blame to them for the costs of controlling pollution. According to a report from the eminent National Research Council, this roundabout way of controlling pollution consumes

extensive amounts of local, state, and federal agency time and resources in a legalistic, and often frustrating, proposal and review process, which focuses primarily on compliance with intermediate process steps . . . and draws attention and resources away from the more germane issue of ensuring progress towards the goal of [protecting health].²¹

Members of Congress could get rid of the two false assumptions in the Clean Air Act by directly regulating the nationally important pollution sources. We know this because in 1990 Congress did directly regulate nationally important sources of one pollutant: acid rain.²²

The acid rain came most prominently from sulfur and other pollutants emitted by power plants in the Midwest. In 1971, President Richard Nixon proposed placing a tax on sulfur emissions, which could have gone a long way in reducing acid rain. Groups as diverse as the National Association of Manufacturers, the Sierra Club, and the National Academy of Sciences supported the sulfur tax, but the idea went nowhere in Congress.²³ And it’s no wonder: Passing such a tax would have required members of Congress to shoulder the blame for the burdens of pollution control. So they left the problem to the EPA.

As the concern about acid rain mounted in the 1980s, eastern states bitterly complained that it damaged forests, lakes, crops, and lungs. These states asked the EPA to regulate the emissions, but the agency refused to set a mandatory air-quality goal for acid rain because achieving such a goal would be politically infeasible. Quite apart from acid rain, Congress had many urgent reasons to revise the Clean Air Act, but the acid rain issue got in the way. Legislators from Eastern states, faced with angry constituents, would not support any revision that failed to cut acid rain, while legislators from the Midwest feared that supporting cuts in acid rain would anger their constituents. The legislators could not dodge their constituents’ anger by telling the EPA to impose the duties needed to control acid rain because (1) cutting emissions from Midwestern power plants was the chief way to cut acid rain, (2) cutting these emissions would impose costs on plant owners that would force the state utility commissions to increase electricity rates, and (3) the power plant owners and state commissions would tell consumers that it was Congress that had caused their electricity bills to jump. The impasse helped cause years of crisis in air pollution control.

To break the impasse and end the crisis, Congress eventually took a new tack in pollution control: Congress itself would decide how much to cut acid rain emissions but let the sources of pollution rather than the regulators decide where to cut acid rain emissions. This new approach reduced the cost of pollution control and so made it more palatable to Midwestern legislators. The administration of President George H. W. Bush recommended this approach and Democrats and Republicans in Congress joined in passing it.

Here, more specifically, is what Congress did: It prohibited any plant from emitting sulfur without an allowance to do so and kept the number of allowances within an annual cap that would decline to 50 percent from current levels of sulfur emissions. The allowances were distributed among power plants but could be bought and sold. Such trading meant that a plant that faced a high cost to cut emissions could save money by buying allowances from another plant that could make extra cuts in its emissions at a lower cost.

This cap-and-trade approach achieved the 50 percent cut in sulfur emissions that Congress promised on schedule and saved electricity consumers and plant owners billions of dollars, compared to traditional regulation. Moreover, cap and trade vastly simplified the government’s job, reducing it to doing the bookkeeping needed to ensure that no plant’s emissions exceed the allowances it holds. The entire program would now be run by fewer than fifty EPA staffers, compared to the many thousands of federal and state staffers required to regulate pollution the tricky way. Finally, because the program required that firms emitting more than their allowances must pay a steep automatic penalty, they have an almost-perfect record of compliance, far better than with traditional regulation. As a candidate for president in 2008, Barack Obama, stated: “A cap-and-trade system is a smarter way of controlling pollution” than traditional top-down regulation. With top-down regulation, as Mr. Obama explained, regulators dictate “every single rule that a company has to abide by, which creates a lot of bureaucracy and red tape and often-times is less efficient.”²⁴

With the acid rain program, Congress indulged in neither False Assumption 1 (that there is a completely safe level of emissions) nor False Assumption 2 (that pollution is a local problem) but instead used the “smarter way” to cut pollution.

The tax approach that President Nixon proposed in 1981 is like the cap-and-trade approach in these respects and also in requiring members of Congress to take a measure of responsibility for the burdens of pollution control. It took nineteen years of delay and a crisis for Congress to take that responsibility.

The failure in reducing lead in gasoline and the eventual success on limiting acid rain are only the beginning of the evidence that by leaving the hard choices to the EPA, Congress harms the public. Although Congress promised in 1970 that the agency would achieve health-based air-quality goals for the most widespread pollutants by the end of the 1970s, most Americans still breathed air that violated these supposedly mandatory goals into the 1990s. Congress also promised in 1970 that the EPA would promptly protect health from less widespread but especially hazardous pollutants. Yet, the EPA was unable to deal with the great bulk of these pollutants until Congress took some responsibility in 1990. The greatest gains in controlling pollution have come in those rare instances where Congress did take responsibility; examples include not just the acid rain program but also cutting emissions from new autos by more than 90 percent, requiring new cars to use lead-free gasoline, and totally eliminating chemicals that destroy stratospheric ozone.²⁵

Given Congress’s successes when it finally took responsibility for the hard choices required to solve environmental problems, it should also apply the cap-and-trade approach to other widespread pollutants. That is what the Breaking the Logjam project of New York Law School and New York University School of Law recommended.²⁶ The project brought together environmental experts, including me, from across the political spectrum to show how to reform the Clean Air Act and other obsolete environment statutes. One of the experts who worked with me on the air-pollution recommendations for the project was Ross Sandler, my litigation partner at the Natural Resources Defense Council and now my New York Law School colleague. The leaders of the project—Richard Stewart, former chairman of the Environmental Defense Fund; Katrina Wyman, his colleague on the NYU faculty; and I—wrote a book, similarly titled Breaking the Logjam, outlining our recommendations. The book received favorable endorsements from high environmental officials appointed by presidents of both parties.

When Richard Stewart and I met with people from both parties on Capitol Hill, they praised the project’s recommendations and said they wished that Congress had already enacted them. After all, the recommendations would produce healthier air at less cost. Yet, they also doubted that they could get them enacted. Why? Updating the Clean Air Act to build upon the success of the acid rain program would require legislators to take responsibility for hard choices on how clean to make the air. On the other hand, if they left the act unchanged, they could continue to pin most of the blame for both the dirty air and the burdens that the Clean Air Act does impose on the EPA and the states.

In sum, leaving the Clean Air Act unchanged was good for legislators but bad for us, their constituents, because a something-for-nothing statute made them look good to us even as they harmed us. And so it remains that Congress last revised the Clean Air Act in 1990, more than a quarter century ago, although we have since learned much about smarter ways to control pollution.

Congress began down the road toward something-for-nothing legislation in pursuit of laudable ends. The passage of the Civil Rights Act helped build popular support for legislation to deal with other instances of unfairness in our society.²⁷ It was unfair that the poor had to rely for medical care upon the quirks of charity and local government, especially as the costs of care escalated. It was unfair that pollution increasingly poisoned us and our environment. Moreover, the American government undeniably had the capacity to do more to address these problems, as was evident from its outstanding successes. The government had, as already noted, gotten the people through the Great Depression, won World War II, invented the atomic bomb, built the interstate highway system, come to preside over the world’s richest economy, and put humans on the Moon.

While these earlier successes had not come from using the Five Tricks, Congress would resort to them in dealing with the new challenges of health care and pollution. One reason is that whereas outlawing racial discrimination had required imposing burdens on a distinct subset of voters—bigots—with whom most other voters did not sympathize, financing health care for the poor and controlling pollution would require imposing burdens on most voters.

Another reason Congress resorted to the Five Tricks is that it had begun finding it tougher to make the hard choices needed to achieve compromise. Its Democratic and Republican contingents, once overlapping in ideology, were increasingly ideologically distinct, as political scientists have found. Moreover, as has also been found, while members of Congress had once communicated with their constituents primarily through broad-based organizations with ideologically diverse memberships, such as the Kiwanis or Elks, legislators were increasingly finding themselves dealing with organizations dedicated to fiercely advancing a particular agenda on a single issue, such as environmental protection, abortion rights, right to life, or lower taxes.²⁸

Thus, members of Congress prefer to pass something-for-nothing legislation rather than make hard choices for which they would take heat. In writing the Medicaid and Medicare statutes in the late 1960s, Congress left to future Congresses and states the job of raising most of the money needed to pay for caring for the poor and aging in the future. In writing the Clean Air Act and other environmental statutes in the 1970s, Congress left it up to federal agencies and states to impose most of the duties needed to protect health.²⁹

Congress could get away with something-for-nothing legislation because our government’s past successes made it seem credible. Because our government presided over the world’s richest economy, it could afford medical care for everyone, or so people thought. Because it had sent humans to the Moon, it could make the air absolutely healthy on Earth, or so people thought. Besides, to question such legislation was to coddle unfairness. Democrats and Republicans joined in passing these statutes.

Although something-for-nothing legislation takes many forms, they all share one essential feature: The current Congress and president leave to some other body—a federal agency, the states, or future Congresses and presidents—the task of defining the burdens needed to actually deliver the benefits. This shifts most of the blame for the burdens that come with delivering the benefits, or the failure to deliver them, away from the members of the current Congress.

Once federal legislators had gotten away with claiming the credit yet shifting the blame for Medicare, Medicaid, the 1970 Clean Air Act, and other early instances of something-for-nothing legislation, they resorted to such trickery throughout the entire gamut of federal activity (see chapters 4 and 7).

In designing Congress, the Constitution sought to put a virtuous circle at the center of our government (discussed in chapter 2). Subsequent eras brought many important changes in the structure of American government. In the late 1960s came the trickery and, with it, the illusion of legislation that could produce something for nothing. Judge (now Justice) Stephen Breyer has shown how something-for-nothing environmental statutes produce a “vicious circle,” by telling the EPA to produce benefits by imposing burdens—burdens that the legislators failed to acknowledge in passing the statutes.³⁰

When the EPA has attempted to implement the statutes and constituents voice objections to the burdens, legislators have pressured administrators not to impose those burdens. This, in turn, means that the agency has failed to deliver the promised environmental quality. As a result, environmental advocates blast the agency and complain to members of Congress, and Congress responds by ordering the agency in yet-more-absolute statutes to protect the environment, still of course without taking responsibility for the required burdens. The result of this vicious circle, as Breyer showed, is that the EPA sometimes fails to stop major environmental harms for modest costs, and sometimes stops trivial environmental harms at huge costs.³¹

Not only in the environmental arena but in general, something-for-nothing legislation has turned the virtuous circle into a vicious circle, by promising benefits government fails to deliver and burdens legislators fail to forewarn us of. As a result, all sides feel cheated.

Voters, of course, know that the promises of something for nothing, or very little, are too good to be true, and so we sense that trickery is going on even though we don’t quite understand how it works. The sense that cheating is going on negates the broad agreement on the fairness of a democratic system that is able to, in political economist and professor James M. Buchanan’s thinking, maintain legitimacy despite rancorous politics (see chapter 2). With cheating in the air, people grab for what they can get.

By using the tricks, Congress fails to perform its function described in chapter 2—to set realistic expectations and thereby provide a context in which society can prosper and its members can individually pursue happiness. To the contrary, Congress tells everyone, in essence, that he or she is entitled to butt in at the head of the line, much as the corrupt officials in The Hunger Games tell each and every combatant, “May the odds be ever in your favor.” The conflicting expectations that Congress creates set up our government to disappoint. No wonder we think our government is broken.

Moreover, by failing to face up to the inevitable trade-offs between benefits and burdens, Congress fails to educate voters about what makes sense and is fair. Legislators tell us what they are against rather than what they are for. Most legislators say they are against killing children with pollution. Most legislators say they are against killing jobs with regulation. What they say depends upon whom they are talking to. Such absolutism is possible in sound bites or tricky statutes, but not in deciding how much to cut emissions of a pollutant, where trade-offs between health and jobs are inevitable. Similarly, by using the Money Trick, legislators can position themselves as against cutting spending or raising taxes, yet avoid saying in concrete terms how they would restore balance. But only when government leaders focus on the concrete rather than the abstract can they tap into our shared sense of fairness.³²

You might not remember all the ins and outs of the Clean Air Act when you finish reading this book, but please do remember the lesson that its story illustrates: The tricks let federal legislators avoid personal responsibility for hard choices. This helps them keep their jobs but prevents them from doing their duty—to forthrightly decide issues of legislative policy through open debate. The Constitution assigns them this duty in order to soothe divisions within society. When they fail to do their duty, these divisions get aggravated. Thus, a Congress that indulges in such tricks is antisocial, like a jerk who butts in line, but with far-greater destructive consequences because Congress has so much power.