Читать книгу Freedom at Risk - James L Buckley - Страница 7
ОглавлениеOn Liberty and the State
In 1976, when I was running for re-election to the United States Senate, it was my misfortune to have Daniel Patrick Moynihan for an opponent. (He beat me handily.) During our first encounter, Pat told the audience that although I was a fine fellow, I was stuck in the eighteenth century. In response, I confessed that I was guilty as charged and acknowledged my total commitment to the values and principles imbedded in the Declaration of Independence and the Constitution. I neglected to mention my fealty to the economic insights contained in Adam Smith’s Wealth of Nations. The relevant question, of course, is whether those eighteenth-century values, principles, and insights remain relevant to the problems and needs of the vastly changed world in which we now live. I believe they do.
American independence was won and the Republic created by a remarkable generation of men who turned a rebellion against the British crown into a transforming moment in human history, one based on the revolutionary proposition that all men are created equal and are endowed by their Creator with fundamental rights that no government has the moral authority to set aside. But with the gaining of independence, the Founders faced the formidable task of creating a government that could operate effectively while respecting and protecting the liberties for which the Revolution had been fought. As James Madison described the challenge in The Federalist Papers:
In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
The Founders had no illusions about human nature; they understood that the drive to accumulate power, whether by an individual despot or a parliamentary majority, was the historic enemy of individual freedom. So they incorporated two “precautions” into the Constitution: its system of checks and balances and the principle of federalism. In describing the latter, Madison explained:
The powers delegated by the proposed Constitution to the federal government are few and defined. ... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
During the debates over the Constitution’s ratification, many expressed a concern that this division of responsibilities was not clear enough in the document itself. As a result, the first Congress made the division explicit in the Bill of Rights, whose Tenth Amendment reads as follows: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Even with those safeguards in place, the Founders understood that the preservation of our liberties ultimately depended on the American people’s continuing exercise of what was then referred to as “republican virtue”—the subordination of personal advantage to the public good. Hence Benjamin Franklin’s answer to the woman who, at the close of the Constitutional Convention in Philadelphia, asked him what form of government the American people were to have: “A republic, madam, if you can keep it.” The ultimate responsibility for preserving the Republic would lie with the people.
The Founders’ division of governmental labors accords with the venerable principle of subsidiarity, which recognizes a hierarchy of responsibilities, beginning with the individual. Thus, under that principle, you and I are expected to earn our own livings and provide for our own families, and governmental responsibilities are allocated to the lowest levels able to exercise them. Thus, the governmental decisions most immediately affecting people’s lives are to be made by those who are the closest to them and have the most intimate knowledge of the relevant facts and conditions.
This design served us well during the first 150 years of our national existence—so well that in commenting on the American Constitution, the eminent British historian Lord Acton declared that “by the development of the principle of federalism, it has produced a community more powerful, more prosperous, more intelligent, and more free than any other which the world has seen.” The Supreme Court, however, has proven an unreliable guardian of constitutional virtue. Over the years, decisions expanding the reach of the Constitution’s Commerce Clause have effectively repealed the Tenth Amendment. As a consequence, our nation has been converted into an administrative state overseen by a fourth, extra-constitutional branch of government in which unelected officials write rules that reach into every corner of American life.
Few appreciate the speed with which this transformation has taken place. Federal statutory law is to be found in the United States Code. In 1935, at the outset of the New Deal, the Code consisted of a single volume containing 2,275 pages of statutes. This was the work product of Congress since it first met in 1789. Today, the Code consists of thirty volumes of statutory law. But the expansion of the Code’s Title 42 provides the most telling evidence of the nature of the changes that have been taking place. In 1935, Title 42 was labeled “Public Education” and contained just eighteen pages. Eleven years later, Title 42 had been renamed “Public Education and Welfare” and had grown to 128 pages. Thanks to Lyndon Johnson’s Great Society, by the time the 1970 edition was published, Title 42 had exploded to 3,022 pages.
Over the next thirty years, that number more than doubled—and that is just the tip of the iceberg. Those and a host of other federal statutes are administered by bureaus and agencies that in turn issue streams of marching orders that have the force of law. By 2010, the Code of Federal Regulations consisted of 225 volumes containing 35,367 pages of detailed, fine-print regulations. This expansion of federal controls has reached a point where I sometimes indulge a fantasy in which America’s extraordinarily productive society wakes up one day, like a latter-day Gulliver, to find itself immobilized by the last regulatory strands that bureaucratic Lilliputians have spun over it during the night.
What is of particular interest is the degree to which the federal government has intruded on the responsibilities of the states. In the ten years from 1966 to 1976, for example, federal grants to state and local governments, each with its own set of marching orders, grew from $13 billion to $56 billion. By 2010, these grants-in-aid programs cost over $236 billion. Worse still are the unfunded mandates by which Congress commands the states to spend their own money to meet Washington’s priorities rather than their own.
It is hard to conceive of a more dramatic departure from the Founders’ plan. But setting aside the propriety of the Supreme Court decisions that made these intrusions on state authority possible, the question before us is whether transforming the federal government into a European-style administrative state will lead to a better life for most Americans. In arriving at an answer, we need to consider three things: first, the competence of a central government to handle other than the kinds of core responsibilities contemplated by the Constitution; second, the financial consequences; and third, the impact on Congress’s ability to do anything that can be described as truly thoughtful.
In addressing the first, one must keep in mind that government is by nature monopolistic, rigid, and political. A federal bureau or agency is immune to the disciplines of the marketplace that, in the private sector, promote efficiency and weed out losers. If costs exceed budget, government will raise taxes or borrow money to pay for the overruns; and if a program fails to achieve its goals, the congressional response is to throw more money at it. Congress will rarely admit that a program was ill advised and cancel it: to the contrary, even the worst of them is protected by the “iron triangle” consisting of the legislators who created it, the bureaucrats who administer it, and the groups that benefit from the status quo, however flawed. Moreover, while private enterprises and individuals are able to respond overnight to new circumstances and act quickly to correct errors in judgment, once a regulatory regimen is locked in place, it is enormously difficult to change. All federal programs are subject to congressional oversight, of course, but Congress is too preoccupied with current agendas to scrutinize the management of more than a fraction of the programs it has created.
Then there is the matter of politics. Because Congress is a political animal, it is inevitable that where there is a conflict between politics and common sense or Economics 101, politics will usually decide the issue. Career legislators are extremely reluctant to take any action that would offend important constituencies. To cite some typical examples: It is conceded (and the experience of states like Texas confirms) that tort reform would reduce medical costs by tens of billions of dollars, but, lest tort lawyers be offended, that most obvious reform was ignored by congressional committees intent on a trillion-dollar restructuring of our health-care system; sugar-beet farmers are kept in business by restrictions on the importation of cane sugar that cost 300 million American consumers over $1.9 billion a year; and to protect manufacturers in their constituencies, Republican and Democratic congressmen exhibit rare bipartisanship in continuing the production of weapons that the Pentagon no longer needs or wants.
Misguided political decisions are to be found, of course, in state governments as well as in Washington, D.C.; but one of the virtues of federalism is that the states serve as laboratories that are able to test a variety of approaches to shared problems. If one state makes a costly mistake, only its own citizens will suffer the consequences. On the other hand, if an initiative proves successful, other states can profit from the example. Furthermore while Washington issues one-size-fits-all regulations to states as diverse as North Dakota and Hawaii, state governments are able to tailor their directives to the specific conditions that obtain in their states.
The 2008 housing meltdown is a classic example of what the costs can be when Congress imposes an ill-conceived policy on the entire nation. Under the original understanding of our federal system, a concern for expanding home ownership might be appropriate for the states, but it is not appropriate for the federal government. A few years ago, however, Congress decided this should be a national priority and enacted a succession of laws that pressured lenders into making improvident loans while providing them, courtesy of Fannie Mae and Freddie Mac, with an open-ended market for the high-risk mortgages they had financed. Imaginative Wall Street marketers in turn packaged the obligations and distributed them around the globe. As Harvard economist Jeffrey Miron notes, “[P]rivate forces jumped willingly on a runaway train, but it was government that built the train and drove it off the cliff.” Such are the costs that can be imposed when government interferes with the workings of Adam Smith’s “invisible hand” on a national scale.
Unfortunately, Congress’s failure to anticipate the practical consequences of its actions is not surprising. Few of those drawn to elective office have had any significant personal exposure to the disciplines of the marketplace. Thirty-odd years ago, when I was in the Senate, I witnessed such an astonishing display of economic innocence in a floor debate that I checked the biographies of my colleagues in the Congressional Directory. I could find only eighteen who had had any significant experience in business or agriculture. Sixty-three of the hundred senators were lawyers who had moved into one government position or another within a half-dozen years of graduating from law school. So it is hardly surprising that they should exhibit so little understanding of economic causes and effects. Thus, while lawmakers will castigate corporations that relocate overseas, they refuse to bring taxes on American businesses in line with those paid by their foreign competitors; nor will they recognize that when marginal tax rates rise beyond a certain point, those who make the high-risk investments that launch the new enterprises that have revolutionized our economy will instead devote their ingenuity to sheltering their incomes from taxation.
The second reason for declining to ask Washington to take over matters that lie within the competence of the states is financial. The states have limited borrowing powers, and so they are ultimately restrained by the willingness of their citizens to be taxed. The federal government, however, has virtually limitless borrowing power, which it is now exercising to a dangerous degree. And unlike the states, it is ultimately able to lighten the burden by debasing the dollars with which it will meet its debt obligations and, in the process, impoverishing its citizens.
During the 1960s, when Lyndon Johnson’s Great Society programs were being unveiled, Senator Everett Dirksen of Illinois observed, “A billion here, a billion there—pretty soon you’re talking real money.” Now, it seems, the word that trips off political tongues is “trillion.” Within a few months in 2008-09, Presidents George W. Bush and Barack Obama commandeered more than $1.5 trillion in order to restore liquidity to the financial markets and jump-start a recovery. Obama added about a trillion to what had been Bush’s record-setting half-trillion-dollar deficit. Meanwhile, after a year of contentious debate, Congress bulldozed a trillion-dollar health-care bill into law. All of this required Congress to raise the debt ceiling to $14.3 trillion, on top of an unfunded Medicare/Medicaid/Social Security liability of $107 trillion. No doubt about it, we’re talking real money. What is in doubt is whether we will ever be able to pay this debt; and if so, at what cost to future generations and the resilience of our economy. This runaway spending has to be contained, but that will happen only if we change some now deeply ingrained political habits.
Finally, there is the cost to Congress and the quality of government itself. Once upon a time, the Senate could be referred to, with reason, as the world’s greatest deliberative body. But that was long, long ago, when Congress was in session no more than six or seven months a year and its members worked at a leisurely pace. They had the time to study the bills under consideration and discuss them with their colleagues, and they were routinely in their respective chambers to hear the merits debated. They could do so because Congress pretty well limited itself to the half-dozen areas of responsibility assigned to it by the Constitution. And when their work in Washington was over, they would return to their home communities and resume their normal lives. They were essentially citizen legislators.
The situation today is radically different. Congress’s compulsion to scratch every itch on the body politic has so overwhelmed congressional dockets that members live on a treadmill. Although they may be reasonably informed on the legislation generated by their own committees, that represents only a fraction of the bills on which they will be called upon to vote. So, on most matters, they will cast their votes on a largely reflexive political basis; and because nearly all of today’s members of Congress are career legislators, a member’s calculus will inevitably include an assessment of the impact of a particular vote on his chances for re-election rather than being based solely on his best judgment as to where the public interest lies.
It is that calculation, I suspect, that has encouraged the changes we have seen in the scope of our social programs. What began as a system of safety nets for our most needy citizens (e.g., welfare, Medicaid, food stamps) has evolved into a broader concern for the comfort of the electorate at large. Witness the promises to ease the lives of the middle class that are now a routine part of presidential campaigns. This trend is reflected in the striking changes that have taken place in the obligation to pay federal income taxes. In 2000, before the first George W. Bush tax cuts took effect, 25.2 percent of those filing federal income-tax returns had no tax liability. By 2007, that figure had risen to 43.4 percent. Over the same period, the share of income-tax receipts contributed by the wealthiest 1 percent increased from 20.8 to 40.4 percent. So much for the notorious tax cuts for the rich.
These costly distortions of the original constitutional plan need to be reversed. But how do we go about it? How do we wean the public of the illusion that money that comes from Washington is somehow free? My recitation of the costs of doing things Washington’s way is hardly new. The problem has been that too few Americans have been sufficiently aware of the profound changes that have taken place in how we govern ourselves. Call it the frog-in-a-pot-of-slowly-warming-water phenomenon: until very recently, the increases in economic and other regulations, the intrusions on the authority of state and local governments, have been too gradual to alarm the public at large.
Fortunately (if that is the proper word!), the excesses of the Obama administration may have turned the heat up fast enough to ignite a public rebellion against the dramatic expansion of federal power that is now occurring. In its first year in office, the administration persuaded Congress to enact a $787-billion stimulus package that to date has stimulated little more than a growth in government jobs; took over two car companies and a fistful of banks; nationalized large segments of our health-care system; and launched programs that will increase our national debt from 40 percent of our gross domestic product to a projected 80 percent within the next ten years. This should be shock therapy enough to induce the American people to return to constitutional virtue, and there are signs that that might in fact be happening—witness a mid-2009 poll of independent voters which found that 56 percent of those polled favored “smaller government with fewer services,” three times the number who had held that position just one year earlier. A mid-2010 poll of likely voters found 63 percent holding that position.
I am not such a romantic as to believe that we can return to the division of governmental labors that obtained even fifty years ago. Too many federal programs are too deeply imbedded in our society, and too many institutional adjustments have been made to accommodate them. What we can do is consciously establish strict standards for the adoption of new federal initiatives, standards based on the spirit if not the letter of the Constitution. In the first instance, we must call a halt to all new grants-in-aid programs and then see which of the existing ones we can pare away. By definition, these do not relate to national imperatives, because the states retain the option of declining them. In the second instance, before Congress adopts a new program that is within the competence of state governments, we must require that it first explain why the program must be of universal application.
To illustrate how these standards would work in practice, I cite two relatively recent expansions of federal authority. Washington’s assumption of responsibility for the environment clearly meets the test. Air, water, and wildlife move across state boundaries, acid emissions generated by industrial plants in the Midwest will kill fish in New England lakes, and the conversion of Carolina wetlands into trailer parks can affect fisheries up and down the Atlantic coast. On the other hand, George W. Bush’s “No Child Left Behind” program and earlier interventions into the field of education by previous administrations are out of bounds. As bad as too many of our public schools are, they clearly fall within the competence of state and local officials; and, although that point alone is sufficient to rule out federal intervention, there is no reason to believe Washington can do a better job of managing the schools: witness the District of Columbia school system, for which the federal government is constitutionally responsible.
My proposed reform, therefore, would retain federal responsibility for the health of the environment, but it would shutter the Department of Education. The weeding out of unwarranted federal programs, of course, can’t be accomplished overnight. Phasing out the myriad grants-in-aid programs, for example, will take time because of the commitments that state and local governments have been required to make in order to qualify for federal dollars. This must be done, however, if we are to restore to state and local governments the autonomy and authority they need to deal with their own responsibilities in their own ways, and if we are to free the federal government to concentrate on concerns that require attention at the national level.
The argument will be made that many of these programs are justified because poorer states don’t have the resources to provide their citizens with the level of services that every American ought to have. Education and welfare will be cited as examples. If this is indeed true (and we should note, for example, that the amount of money spent per student is an uncertain measure of educational quality), and if the need to help the poorest states provide these services can be considered a legitimate national obligation, there is a far better approach to that problem than the creation of federal education, welfare, or whatever programs that are imposed on all the states, rich or poor. My brother William F. Buckley Jr. had the answer to that problem in a book, Four Reforms, that was published in 1973. In it he suggested that the efficient way to meet those objectives would be through a system of block grants limited to the have-not states. The only requirement would be that those funds be used for the broad purposes (education, welfare, etc.) for which the grants were made. Under this approach, Washington would not be telling the recipients how to educate their citizens or how to look after their needy—in short, would not be telling them how to meet their own responsibilities under the Constitution. Nor could it use the presumed needs of the poorer states to impose federal regulations on the wealthier states, which have the resources to meet the needs of their own citizens.
The problem with this proposal is that Congress finds it almost impossible to dispense funds without encumbering them with detailed instructions on how they are to be used. I say “almost” because in 1972 Congress initiated a “revenue sharing” program in which grants with minimal strings attached were made to states and localities, rich and poor alike. But these represented only a tiny portion of federal transfers to the states, and the program has since been discarded. Revenue sharing was a nod to the spirit of federalism, but no more than that.
A return to federalism, of course, won’t guarantee that we will end up with less intrusive, less costly government, because states are quite capable of smothering their citizens (and economies) with expensive care. What it will do is enable the people of each state to determine for themselves whether the benefits of particular programs warrant their cost. In making those judgments, they will have the advantage of being able to compare the results of their state’s initiatives with those of others. And if they make those comparisons, they might ask why the most politically conservative states had the lowest rates of unemployment during the 2008-09 recession, or why the wealthiest, most heavily taxed, and most liberal ones, such as New York, New Jersey, and Connecticut, should have suffered such devastating deficits. They might also compare different approaches to health-care reform, such as Indiana’s health-savings-account option for state employees, Texas’s curbs on tort-litigation recoveries, and Massachusetts’s mandatory insurance requirements, to see which best serves the cause of affordable health care. If they decide that the human and financial costs of their own programs are unacceptable, it will be far easier for them to modify those state programs than to secure a revision of the federal rule book.
But it will take more than a return to federalism to safeguard our individual freedoms. In the first and last analysis, this requires that our people continue to prize their liberties, continue to assume responsibility for their own well-being, continue to understand (as recent polls indicate a majority of them still do) that a more limited, frugal government is in the public interest as well as in their own. Unfortunately, however, the siren song of “entitlement” is having its effects. That Americans believe they have a right to promised Social Security benefits is understandable, because they have been required to pay into the system throughout their working lives. But too many are beginning to believe they have a right to have government provide a buffer against the vicissitudes of life that earlier generations believed it was their own responsibility to cope with.
The rights guaranteed by the Bill of Rights all take the form of limitations on government action: Congress is forbidden to pass any law that will infringe on our rights to express our views, to worship as we please, to enjoy the privacy of our homes. Today, however, there is a tendency to conjure up new rights that add up to a right to pick one’s neighbors’ pockets. I witnessed that mindset on a recent trip in Alaska. During a discussion of health care, a bright young naturalist remarked that he had chosen a low-paying profession, the implication being that because he had elected to earn less than he was capable of doing, he had a right to expect others to help him pay his medical bills.
My healthy young friend’s concern over the cost of his future care is hardly an isolated one. Although most Americans were satisfied with their own medical insurance, the escalating cost of the same and the fact that a significant proportion of our population is uninsured placed the issue at the top of the 2009-10 political agenda. As is all too typical these days, the cures offered by President Obama and enacted by Congress focus on further government interventions in the medical marketplace rather than on getting rid of impediments to the free-market competition that could bring us more effective care at a lower cost. As such, they provide insights into the political class’s approach to a problem.
This one began with a particularly unfortunate unintended consequence of World War II’s wage controls. Industries competing for labor were not allowed to do so by offering higher pay, but they were permitted to sweeten the employment pie with fringe benefits. The cost of these benefits was deductible in computing the employer’s taxes, but, for reasons unfathomable, it was not treated as income in computing the beneficiaries’ taxes. This was the reason American companies began to purchase health insurance for their employees. And so today, 61 percent of working Americans have employer-provided health insurance. But because the users of the policies haven’t purchased them themselves and have no incentive to shop around for the most economical medical services when they need them, the insurers who create health-insurance packages and the professionals who deliver medical services are not subject to the competitive pressures that bring about greater efficiency and lower prices.
To compound the injury, state governments have been in the habit of requiring policies to cover more and more procedures, many of them discretionary, thus adding to the cost of insurance while denying their citizens the right to purchase more reasonably priced policies that may be available in other states. So instead of harnessing the efficiency of the marketplace by converting the cost of employer-provided policies into extra pay and allowing individuals to buy their own medical insurance and deduct the cost in calculating their personal income taxes, instead of allowing them to purchase policies offered in any state, and instead of approaching reform in stages so that we might assess how each worked in practice, the political class’s answer to our medical problems was to extend federal regulation over the entire field—with the horrendous unintended consequences that will inevitably occur when the federal government takes over one-sixth of the economy in a single act of legislative and executive hubris.
Where the marketplace has been allowed to work is in the development of medical devices and pharmaceuticals. As a consequence, and in part because the top individual tax rates have been low enough to provide incentives for the very substantial risks that entrepreneurs must be prepared to take to bring new medical technology and medicines to the market, the United States has been producing the lion’s share of the innovations that have transformed medical care here and around the world. Yet Congress has chosen to help pay for its trillion-dollar health-care bill by imposing higher taxes on the medical industry and on the individuals who help to finance it.
We won’t be able to bring our expanding administrative state under control and avoid national bankruptcy until the American people insist that we do so. This requires that our citizens rediscover that the price of cradle-to-grave security is the ultimate erosion of their freedoms. This is the hard lesson that history has to teach. When I contemplate current trends, I am haunted by Edward Gibbon’s description of democracy’s demise in ancient Athens:
In the end, more than they wanted freedom, they wanted security. They wanted a comfortable life and they lost it all—security, comfort, and freedom. When the Athenians finally wanted not to give to society, but for society to give to them, when the freedom they wished for was freedom from responsibility, then Athens ceased to be free and was never free again.
It was this experience, and that of countless other failed democracies, that the architects of the American Republic took into account in writing their “auxiliary precautions” into the Constitution. They were not ivory-tower theorists. Rather, they had scrutinized the historical record and knew that the one constant in human affairs is human nature itself, and that, left unchecked, its drives and weaknesses will inevitably undermine free institutions. They gave us a Constitution designed to contain those destructive impulses, a governmental structure that remains as applicable to today’s world as it was to theirs.
I pray that Gibbon’s epitaph will never be read over the American Republic, but time is running out. What we desperately need today is the leadership to focus our people’s attention on the consequences of the present drift. I am convinced that a majority of Americans remain capable of understanding what is at stake, and the success of Newt Gingrich’s “Contract with America” in bringing about the Republican revolution of 1994 demonstrates that that understanding can be translated into effective political action. Unfortunately, once in power, the Republican congressional majorities fell victim to the seductions of office and betrayed their own revolution. But if an indulgent Providence gives us another chance—and President Obama and the congressional leadership may have unwittingly hastened that possibility through their arrogant overreaching—perhaps the next time reformers gain control they will have learned from this very recent history.
There are signs that that may prove to be the case. The tea-party phenomenon and the polls suggest that a significant number of Americans now understand both the seriousness and the nature of the threat to their freedoms, and that they are determined to do something about it. In a very few years, we will know whether they have succeeded—or whether we have slipped irretrievably into the suffocating embrace of an all-caring state, with all that that implies.
In the meantime, we can take comfort from the old saying that God takes care of fools, drunks, and the United States of America.
