6. THE FIXERS
In Ronald Reagan's White House, it was the office of vice-president that was designated as the chief fixer for aggrieved business interests. Industries that were unhappy with any federal regulations, existing or prospective, were instructed to alert George Bush and his lieutenants. The power of the White House would be employed to intimidate and squelch any regulatory agencies that seemed upsetting to American business.
The official language was less blunt, of course, but the meaning was made clear to every lobbyist and corporate CEO when Bush was appointed chairman of the President's Task Force on Regulatory Relief in early 1981. In collaboration with the Office of Management and Budget, Bush was empowered by executive order to review and suspend -- and effectively throttle -- new regulations emerging from every agency and department of the federal government. C. Boyden Gray, the vice-president's counsel, told the U.S. Chamber of Commerce what to expect: "If you go to an agency first, don't be too pessimistic if they can't solve the problem there. If they don't, that's what the task force is for."
Bush's office and OMB became a shadowy court of appeals where Republican business constituencies could win swift redress -- without attracting public attention or leaving any record of what had transpired. In most instances, the corporations had already lost the argument somewhere else, in Congress or during the long public rule-making process or in lawsuits. Vice-President Bush privately turned them into winners.
The auto industry managed to kill a package of thirty-four air-pollution and safety regulations, including the one for air bags. The auto companies fed their ideas to James C. Miller III, executive director of the Bush task force, who had been a regulatory consultant to General Motors just before he entered the White House. The Chemical Manufacturers Association contacted C. Boyden Gray, whose old law firm, Wilmer, Cutler & Pickering, represented CMA. In a "Dear Boyden" letter, a CMA vice-president urged Gray to scotch a new EPA regulation on pretreatment of industrial chemicals that are dumped into public waters. The rule had been nine years in the making, first authorized by the Clean Water Act of 1972. The Bush task force suspended it and told EPA to give the matter further study.
The White House apparatus killed, stalled or watered down hundreds of regulations and boasted of the billions it had saved private industry. Warning labels on children's aspirin were abandoned for the drug companies. Safety rules for underwater divers were weakened for the offshore oil drillers (George Bush's line of business before he entered politics). Cotton-dust controls were blocked for the textile industry. Industrial air pollution standards were set aside for the steel industry. And so on across dozens of fields of federal law enforcement. [1]
The White House interveners, intent on secrecy, usually communicated their demands orally to the regulatory agencies. As one said, the absence of any written memos or letters "leaves no footprints." Nor did they ever explain who exactly was demanding the changes. Bush's aides were not discreet, however, about bullying civil servants. James Miller, the task force director, boasted that prudent regulators would not question OMB's power to recast things, for fear of losing their jobs.
"You know, if you are the toughest kid on the block, most kids will not pick a fight with you," Miller said.
The presidency cannot be counted upon to uphold law because the White House has become the capstone of lawless government -- an institution that rewrites law behind closed doors for the benefit of the few who have political access. Irregular as it seems, the White House's centralized control over the law's actual language has been broadly accepted by the political community as a convenient "solution" to the stalemated politics of governance. As a practical matter, this irregular new use of power became institutionalized during the last decade and the White House fixes continued unabated when George Bush became president himself.
These unpleasant facts provide the keystone for our larger examination of the breakdown of democracy. The presidency itself has been transformed into something quite different from the civic expectations. Instead of the bully pulpit where a national leader can speak for the broad public interest, the presidency has become the last step in the charade.
In the age of mass media, the president is shielded from scrutiny by qualities that other politicians cannot claim -- the mythic powers of his office and his ability to broadcast the largest and most deceptive messages of all. In modern government, starting in the New Deal, the White House accumulated an imbalance of power over the legislative branch because it was always seen as the great protector of the national interest and of the weak and defenseless. Now, the protection is regularly employed on behalf of the powerful.
In principle, regulatory reform could have been an important function when Ronald Reagan took office in 1981. After years of tortuous hearings and litigation, scores of major new regulatory rules were nearing completion. The Bush task force might have undertaken a serious study of the conflicting goals and unfilled promises that Congress had produced.
But this "reform" initiative was driven, not by principle or disinterested analysis, but by a cocky contempt for whatever the regulatory agencies had decided. Lawmaking, in a real sense, would be done in the privileged setting of the White House, cloaked by the executive privilege that protects the president's advisors from public scrutiny. The laws would be reshaped, quite literally, to satisfy the very parties at whom they were directed.
Environmentalists and other reformers naturally protested, joined by anxious members of Congress who understood the power implications. But they couldn't change much. "OMB operates in secret and it's undemocratic," said David Vladeck, a lawyer with Public Citizen. "You have this very important rule-making process that's open and accessible. Then at the end of the process it's subverted by the fact that most of the important decisions are made in secret and nobody knows who influenced the decision.
"Regulations sometimes go into the black hole of OMB and never emerge again. Rules were completed years ago and haven't been heard from since. Other regulations go into OMB looking like trees and come out looking like rose bushes. It's an anathema to democracy to have all these decisions made on the basis of a record the public never sees."
OMB continued to exercise its irregular powers just as Zealously once Bush became president himself. During his first year in office, OMB changed, returned or scuttled 24 percent of all new regulations -- a slightly higher rate of tampering than occurred during the early Reagan years, according to OMB Watch, a public-interest monitoring group. The leading targets were Labor, HUD, Education and EPA.
Furthermore, Vice-President Dan Quayle succeeded Bush as personal appeals judge for business friends of the Bush-Quayle administration. Quayle became chairman of a Presidential Council on Competitiveness, which promptly ordered EPA to kill an ambitious new regulation on recycling -- a pollution-prevention measure the Bush administration had boasted about a year earlier as proof of its commitment to the environment. What happened? An administration source told Michael Weisskopf of The Washington Post: "There was the strong sense that they needed to give business something. Business has a lot of concern that we lost our commitment to deregulation. [2]
Quayle's operation was as secretive as Bush's and has tampered with or killed new provisions in law for preserving wetlands, reducing power-plant pollution, protecting workers from formaldehyde (an OSHA regulation ten years in the making) and reducing toxic emissions. The promises made in the new Clean Air Act were swiftly unraveled by White House deal making. "This is not only horrible policy, it is clearly illegal," Representative Henry Waxman, a chief architect of the clean-air legislation, complained.
How does Dan Quayle pick his regulatory targets? The same way George Bush did -- business picks them for him. OMB Watch reported: "While the council seems to involve itself in virtually every controversial health, safety and environmental regulation that makes its way through the federal bureaucracy . . . Quayle himself has said that he consults most often with business leaders who can tell him better than economists, 'how the clock is ticking,' and the council's executive director has said, 'When they [industry groups] feel like they are being treated unfairly, they come to us.'" [3]
Business lobbyists and executives, not surprisingly, defend the White House intervention since OMB has become a useful tool for them in the tangled politics of regulation. Most members of Congress, despite partisan divisions, are quite willing to tolerate this irregular form of lawmaking. In 1990, Congress declined to enact legislation proposed by Senator John Glenn and Representative John Conyers of Michigan that would have modestly circumscribed OMB's freewheeling power to rewrite laws. The White House's private intervention provides another safety valve for clients and Congress will not be held responsible. Senators may occasionally rail at OMB for gutting a law, but they can also send disgruntled constituents to OMB for relief. [4]
"OMB does their dirty work for them," said Gary D. Bass, executive director of OMB Watch. "Then when OMB does something outrageous, like on the asbestos standard, they hold oversight hearings and get a lot of press. It's a charade. That's the way the game is played."
If Democrats in Congress have been passive on the issue, it is partly because the Reagan and Bush administrations were doing aggressively what the Carter administration (and Nixon's and Ford's) had attempted to do more timidly. Aping the antiregulation critique from business academics in the late 1970s, Jimmy Carter's Council on Wage and Price Stability defined federal regulation as a major source of inflation and began reviewing new rules and arguing with agencies over whether they needed to be so stringent. The White House advisors lost the arguments at least as often as they won, in part because Carter himself was ambivalent.
Carter's aides, like Reagan's, responded mainly to industry complaints, not broad principle, but with somewhat less certitude that business was always right. At one point, policy analysts from Carter's Domestic Policy Council were wearing respiratory masks around the Executive Office Building, trying to demonstrate to OSHA that this was a cheap and easy remedy for the brown-lung disease afflicting textile workers. Their stunt did not succeed.
Douglas Costle, then the EPA administrator, observed that in his arguments with the Carter White House over pollution standards, "I would say that probably three out of every four [White House] comments on our rule-making were cribbed right from industry briefs." [5]
The rationale for White House control is usually stated as a principle of sound management. "My perspective is entirely presidential," said Stuart• E. Eizenstat, Carter's domestic-policy advisor and now a lawyer for corporate interests. "I want a president, whether Republican or Democratic, with the ability to control executive agencies. The president, as CEO of a trillion-dollar corporation, ought to have the management tools to control."
The trouble with this metaphor is that government is not a business enterprise. It has powers to coerce or penalize (or reward) that belong to no private institution. It has obligations, as well, that are unique -- including the Obligation to uphold the law. Managing government to save money for industrial corporations versus enforcing a new environmental law is a political question, not an argument for business economists, and, in a democracy, it is supposed to be settled in the regular order of political decision making.
The centralized control in the White House, with no public access or accountability, conveniently escapes those obligations. It also short-circuits all of the other processes by which the law is supposedly fashioned, both in Congress and in the Executive Branch's laborious rule-making procedures.
Even Eizenstat, an advocate of White House control, concedes the dilemma: "There is this problem, no question about it, of going through a full-blown regulatory process in the agency with a full public record and then having the president come in with a club at the end to decide it. It's not fair to let some unseen hand get into the cookie jar at the last moment."
The notion that the president personally decides these questions is, of course, a fiction. More typically, the regulatory laws are being rewritten by anonymous political advisors and eager junior analysts, who may have strong ideological biases in favor of business but very little experience in the complex fields of government they are now presiding over.
Among the thirty-two desk officers reviewing regulations in Reagan's OMB, a quarter had graduated from college less than five years before, half less than ten years before. Nearly half of the regulatory analysts had no federal agency experience at all; another 31 percent had none in their area of responsibility. Typically, they had studied economics or public administration at an East Coast university. These young people heard regularly from business lobbyists and sometimes sought out business's opinions, but they were not confidants of Ronald Reagan. [6]
A young policy analyst who was making large judgments on environmental law in the Carter White House acknowledged, in so many words, that he was winging it. "Since I never knew what decision the President would make or would have made if an issue ever got to him, I had no choice but to pursue my own vision of what was good," the analyst told an academic interviewer. [7]
The other popular argument for White House control is that only the president or his agents can impose rational priorities on the scattered actions and impulses of the various regulatory agencies, whose bureaucrats have a self-interested incentive to augment their own power. Since the private economy cannot afford the cost of unlimited regulation, it follows that someone should make broad choices about how much is too much.
Out of this logic, the practices of cost-benefit analysis have flourished. The Reagan administration was the first to require all agencies to produce a "Regulatory Impact Analysis" for every new rule they promulgated -- presumably to determine what society would gain and what it would lose from each new regulation.
Instead of broad priorities, the system of analysis produces its own bizarre inconsistencies and favoritism. The techniques for making these judgments are so sloppy and so vulnerable to special-interest manipulation that the notion of rational decision making has become a bad joke among government insiders.
A Labor Department "Regulatory Impact Analysis," for instance, calculated the reduced costs for employers and government if affirmative-action enforcement was limited to large firms. But the analysts did not examine the losses for women and minorities that would result from nonenforcement. The Department of the Interior's RIA on leasing Alaskan oil reserves acknowledged that local Eskimos would suffer while the nation's energy consumers benefited, but the analysis did not bother to quantify the Eskimos' loss. A General Accounting Office study of fifty-seven Regulatory Impact Analyses conducted under OMB guidelines found twenty-three RIAs that made no effort whatever to calculate the benefits of the proposed regulations.
In other words, under the guise of disinterested analysis, OMB is employing a heavy tilt toward business interests and against any new regulation that would cost them money. The analytic process, in fact, has created a web of skewed facts that OMB casually accepts or even encourages -- twisting the data to fit a desired political conclusion.
The Department of Agriculture, for instance, counted higher wheat prices for farmers as a benefit for the national economy in its justification for federal price-support regulation. But the Department of Labor counted lower wages for construction workers as a national economic benefit too, justifying its effort to weaken wage standards on federal construction projects. They cannot both be right, unless one believes that farm incomes are somehow superior to labor incomes. In terms of political preferences, that is what the Reagan administration did believe. [8]
All of these examples have one consistent threat -- ideological bias. OMB's behavior, in case after case, is not only strongly guided by the business lobbyists linked to the president's political debts, it is also driven by an underlying ideological assumption that the laws themselves are wrong-headed and ought to be neutralized as much as possible. This is a respectable position in the legislative debate and regularly articulated by free-market conservatives, but it is also the position that lost when the regulatory laws were enacted. The White House has the power to reverse it.
When the Food and Drug Administration attempted to assert control over new health claims that some food manufacturers were making for their products -- a practice regulated since FDA's creation eighty years ago -- an OMB desk officer complained that it was "antithetical" to the administration's free-market principles. Rather than regulation by FDA, she proposed, "Let the marketplace, not the government, set the agenda for the types of claims that will be made."
When business interests were ambivalent about a new regulation, the OMB analysts sometimes actively solicited opposition. An executive of Fieldcrest, asked to comment on new mandatory commercial reporting requirements for the 1990 Census, requirements her company supported, complained: "It is my fear, however, that the Office [of Management and Budget] has already made its decision in this matter and has polled members of the industry seeking justification for a negative finding." [9]
The most telling evidence of OMB's political favoritism for political clients is revealed when industry changes its mind about a new regulation. In case after case, the OMB analysts dutifully change their minds too.
The food industry opposed the new FDA regulation on health claims in advertising until it began to fear that an aroused Congress might enact something worse. When the food manufacturers dropped their opposition to the FDA proposal, so did Bush's OMB. The textile industry spent years successfully forestalling cotton-dust regulation through the White House until it decided that federal regulation might be a good idea, after all. When the textile industry accepted cotton-dust controls, so did the Reagan White House. The chemical industry, likewise, flip-flopped on the question of OSHA's "right to know" regulation for hazardous substances, once it became clear that many states were enacting their own tough measures. The Office of Management and Budget abandoned its objections too.
The law, in other words, has been reduced to a continuing political contest -- its meaning always subject to eleventh-hour fixes. Every president naturally responds to his own constituencies and his own ideological preferences; White House fixes did not begin with modern government. But what is different and without precedent now is that the shadowy practices of backroom politics have become institutionalized -- and even exalted -- under the rubric of rational governance. The scandal of these White House manipulations of law is that they provoked no scandal -- no fervent inquiries by the press and no general sense that something deeply abnormal had crept into the American idea of democracy.
Stuart Eizenstat, in defending OMB's new powers, argued that environmentalists and other reformers waste energies attacking the White House oversight machinery. Instead, he suggested, they should concentrate on electing the kind of presidents who will be sensitive to upholding the environmental laws rather than serving corporate interests. But, I asked, doesn't that sound as if the law is up for grabs? Eizenstat erupted in exasperation at the naivete of my question.
"Of course the law's up for grabs!" he responded. "The law's always up for grabs. That's why you win elections and appoint judges. That's why Reagan appointed five hundred federal judges. The law is not an inflexible instrument like a cannon that can be lined up and fired. It's a flexible human instrument that responds to political power.
"That's what having political power is all about, for chrissakes. When you have the power of the presidency, you have the capacity to put people in place who will be sensitive to upholding these laws. When you lose that authority, you're left with futile rear-guard actions."
This is not what Americans expect or deserve from their government -- that the laws will change with the election returns. Nevertheless, Eizenstat is correct: The law is up for grabs.
***
Even the White House does not get the last word, since, as many of the cases have illustrated, any aggrieved party can still sue. OMB's supposed ability to settle regulatory disputes in a rational manner has been tested again and again in federal courts during the last decade. More often than not, the White House judgment was found to be in error -- that is, inconsistent with the original laws. "We never want to go to the courts," said David Vladeck, the litigator for Public Citizen. "This is our last choice. But the courts are our Maginot Line against industry."
"Many of the cases we win today we win before very conservative judges who are very attuned to the concern about courts overstepping the line between law and policy," Vladeck said. "But they just overturned an OSHA regulation of formaldehyde on the grounds that it had no scientific justification -- it was the regulation OMB told OSHA to issue. These judges are very conservative but they're also honest and they too object to that kind of lawlessness."
For the last twenty-five years, it is true, the federal courts have served as the powerful arbiter that enforced legal deadlines on reluctant regulators or brushed aside specious protests from the regulated industries. Scores of court orders and decisions have been issued to uphold the terms of modern regulatory laws, most often in response to citizens who sought strong enforcement.
But pushing political questions off onto the courts is not a democratic solution. It may work well enough for citizens who are lawyers or who can afford to hire them, but it inevitably denies representation to most citizens. Judicial lawmaking encourages brokered decisions, negotiated deals done at tables where only the litigants are represented. Federal judges themselves are not answerable to the voters.
Besides, as the history of regulatory law enforcement demonstrates, fashioning law by litigation doesn't seem to work very well. It produces years, even decades of delay and uncertainty but often ends in laws as muddled as the originals passed by Congress.
Liberal reformers, who are effective litigators themselves, mostly ignored the democratic contradiction when the judicial remedy was working for their causes. Environmentalists and consumer advocates found an open door and sympathetic hearing before a federal judiciary that was mostly appointed by John F. Kennedy and Lyndon Johnson. Now the majority of federal judges are conservatives, appointed by Reagan and Bush, and they are gradually closing the door.
"In the early eighties, we were finding the courts to be very receptive," said David Doniger, lawyer for the Natural Resources Defense Council. "You'd almost go in with a calendar rather than a brief and say, 'The law says this is supposed to happen in six months or a year,' and you'd get a court order. More recently, we've had more trouble. The appeals court in the District of Columbia is being more aggressive in saying, if there is no explicit deadline, we're going to assume Congress did not intend one and we'll give the agency as much time as it damn well pleases."
The D.C. Circuit Court of Appeals, the natural venue for legal challenges against federal agencies, has itself become something of a political battleground, where the ascendant conservative majority argues with the receding liberals over the court's role in enforcing regulatory laws. Chief judge Patricia M. Wald, one of the liberals, used the same metaphor as David Vladeck but with a different twist: "The [liberal] traditionalists still hold, but like the Maginot Line, the strength of their dedication and the limits of their endurance is in some doubt." [10]
The Supreme Court, now dominated by a majority of Reagan conservatives, is, likewise, changing the ground rules -- bluntly warning active litigators like the NRDC that they will be less welcome in the future if they challenge Executive Branch interpretations of the law. The Reagan conservatives are advancing behind the general principle that political decisions should be made by accountable political officers of government, not by unelected judges. It also happens, however, that this principle is compatible with the judges' own ideological biases. The conservative justices are generally hostile to federal regulation, especially if it offends business interests. If the federal judiciary was once dominated by liberal biases dressed up as legal doctrine, it is now captured by conservative biases in the same clothing.
The conservative critics are offended, down deep, by the modern legal doctrine, both judicial precedents and often the regulatory laws themselves, that has given legal standing for citizens at large to intervene, including advocates from generalized "public-interest" groups. The conservative legal strategy reveals which side of the struggle the judges are on. They would like to push the citizens and their public-interest advocates out of court and severely limit or even abolish their right to sue (unless citizens can demonstrate that their own personal injury is at stake in the regulatory issue). The regulated companies would naturally retain their standing to sue since they are directly affected. Former D.C. Appeals Judge (and rejected Supreme Court nominee) Robert H. Bork put their argument plainly:
"These last two decades, it has come to be thought that individuals can go to court to assert their own parochial views of the public's legal rights. This is contrary to the traditional rule that a citizen cannot sue a prosecutor to require him to enforce law in a particular way or even to enforce the law at all. Courts recognize 'prosecutorial discretion,' which means that important aspects of policy are left in the hands of Executive Branch officials who are accountable only to their superiors and to legislative oversight." [11]
A less attractive way of stating Bork's point on "prosecutorial discretion" would be to say: If the president decides to not enforce a law in order to please an industrial client, that's his business. Citizens have nothing to say in the matter unless they can prove they are going to be personally poisoned as a result. If they don't like it, they can write their congressman or try to elect a new president. Bork's doctrine sounds like a jurist's version of "the law is up for grabs."
The federal courts, nonetheless, are gradually moving toward the Bork view of things. In an important 1984 decision, Chevron U.S.A. v. NRDC, the Supreme Court held that an agency's definition of a regulatory law should be accepted as a "permissible construction" that will not be second-guessed by federal courts so long as it does not clearly violate an explicit statement of intent from Congress. Thus, the Executive Branch -- led by OMB -- will be given far more latitude to decide for itself what the law really means.
As one of the losing lawyers in Chevron, David Doniger, not surprisingly, thinks the decision was a damaging precedent. "EPA defined the sources of air pollution, as the law required," Doniger explained, "then, by changing the definition in 1981, it excepted 90 percent of the sources -- boilers, blast furnaces and so forth. We brought that up to the Supreme Court and said this is crazy. They did define the sources but nobody would accept that as a reasonable definition. The Supreme Court was almost petulant. They said that, since the term was never defined in the original law, they could not decide what Congress meant and they accepted EPA's definition as a reasonable construction. Reasonable meant: not off the wall. There wasn't anybody in government who expected to win that case and we had no idea we would lose."
An aggressive minority on the Supreme Court, led by Justice Antonin Scalia, is trying to shrink the ground for private citizens even further. Justice Scalia argues that when courts examine congressional intent, they cannot look beyond the language of the statute itself. Thus, the frequent practice of consulting committee reports or reading the floor debate on congressional amendments would be abandoned.
Judge Wald warned that this is really a way to ignore the context in which Congress acted and to let judges tease their own meanings out of the words in a statute. "Several [Supreme 'Court] opinions this past term that eschewed legislative history replaced it with what sometimes looked like a free-form romp through the 'structure' of a statute or its 'evident design and purpose,'" Wald wrote in 1990. "The phrases 'Congress must have meant this or that' or 'Congress probably did this for that reason' appear often in such opinions without apparent source other than the writing judge's mindset."
Her conservative colleague on the D.C. appeals court, Judge Laurence H. Silberman, embraced the new standard enunciated in the Chevron decision but conceded that it implies a "notion of statutory plasticity" -- law whose meaning is flexible, from one administration to the next. This permissive doctrine is being promoted by the same conservatives who espouse a strict-constructionist interpretation of the Constitution, based on the original intent of the Founding Fathers. [12]
The real power shift, however, is not to the courts but to the president. The largest losers will be not only citizens but also their elected representatives in Congress. In practical effect, the so-called conservatives are tampering with the fundamental balance of power set forth in the Constitution -- shifting the ability to write law from the Congress to the Executive Branch or, more accurately, to anonymous Executive Branch political advisors and policy analysts.
In an era when Congress seems permanently controlled by Democrats, conservative thinkers have decided that the presidency, since it is usually held by Republicans, is the nobler branch of government (a generation ago, when the presidents were liberal, conservative thinkers espoused the opposite view). Modern conservatism, while preaching platitudes about local control, has become a force for centralizing the power of government still further -- the same ideological reflex that conservatives once denounced in liberalism.
"There's no limit to the courts removing themselves from issues," Doniger warned, "and at some point our system breaks down. You could have executive decision making with no judicial review. The consequence is a shift of power. Not only are the courts giving up power but they're empowering the Executive Branch at the expense of Congress."
In the extreme case, if this doctrine prevails, the elected representatives could be reduced to a hortatory assembly -- passing laws that are no more than righteous pleas to the president, asking him to do the right thing. The chief executive would effectively retain the power to respond or ignore the legislative expressions, as he wishes. This imbalance of political power would resemble the arrangement in underdeveloped nations with authoritarian regimes, but no one mistakes those governments for democracy.
***
The deeper governing maladies that undermine democracy cannot be resolved by judicial fiat or administrative tinkering. The habits of hollow laws and random nonenforcement are deeply embedded in the political culture and are fundamentally political problems. If these can be solved at all, the solutions will likely be found only in politics.
The ambivalence of modern politics involves a deep ideological confusion about the nature of government and, as Lowi said, "the problem of power." In one dimension, the old conservative nightmare of big government came true and now sprawls in tangled reality before a disenchanted public -- a government without limits or priorities or the standards for establishing either. [13]
This proliferation of government activity in the private sphere did not lead to the pluralist sense of justice that liberal reformers sought when they set out to address the claims and grievances of myriad groups and interests. On the contrary, the government's decision making now crudely replicates the same injustices of status and wealth and power found among private citizens and institutions in the society at large. That is the nightmare facing liberals -- old liberal reforms that now work to defeat liberal values.
Conservatives, however, were corrupted in the process too. Despite their nostalgic rhetoric about small government, the conservatives' principles are now largely defined by their clients. Over time and with superior resources, conservatives have learned to manipulate the system in behalf of monied interests more efficiently -- and brazenly -- than the liberals who preceded them in power. Conservatives have perfected the politics of symbolic action first popularized by liberal presidents and taken it to audacious levels, employing deft public relations to mask the compromised laws and special-interest fixes.
Though I have focused mainly on regulatory laws and the power of corporate interests to neutralize them, the debasement of law and governing principles is a much larger problem that, indeed, spreads across the governing landscape. The same compromised standards are displayed, less distinctly, on the spending side of the federal government. A generation of politicians in both parties has learned the art of broad symbolic gestures -- enacting programs that do not and usually cannot fulfill their slated purposes. Loose-jointed discretion and interest-group favoritism permeate the federal budget and the tax code as well.
This casual use of governing power sows its own public resentments that eventually come back to haunt the politicians. In every important instance, the government is not spending enough to fill the needs it claims to address, but the general public imagines that these domestic programs are a wildly generous giveaway of tax dollars. The poor, for instance, especially the black poor, are thought to be blanketed in federal handouts. Yet even the best-known federal programs -- food stamps or welfare -- fall far short of serving the universe of citizens who are in need of help.
To take the starkest example of this public confusion, the majority of the people who are officially poor -- more than 60 percent of them -- receive no cash assistance from the government whatever. Yet popular resentment assumes the opposite. Nearly 40 percent of the poor receive nothing at all from the government, neither cash nor other kinds of aid. It is difficult to understand how welfare checks have undermined the work ethic among the poor, as conservative scholars claim, when most poor people receive none. [14]
The federal budget is littered with such unfulfilled commitments to different groups of almost every kind, not just those in poverty, and new ones are added annually. The impulse to legislate in this manner is by now bipartisan, and every year Congress and the president agree to extend the Charade in some new direction or another. People clamor for it. Politicians wish to respond. Very few public officials have the nerve to insist that, if the government is not serious about addressing the problem, it ought not to legislate at all.
Just as the New Deal era fostered the exceptionalism and special-interest deal making that now permeate government, the New Deal also produced an opposite model of how government should use its power -- Social Security. The Social Security system succeeded and endures, both politically and fiscally, because it was created as a universal program, not an interest-group deal. Despite minor internal contradictions, Social Security makes a promise that it has kept for more than fifty years -- everyone pays in and everyone is entitled to receive benefits.
Applying the same standard elsewhere-designing universal programs with a conception of social purpose broader than targeting a single afflicted group-is much more difficult, of course, and would no doubt eliminate many marginal programs. But it is the only road that leads to a sense of equity as well as an effective government.
Most industrial nations of western Europe, after all, have largely succeeded in following that principle, whether for health care or family-allowance payments or social protections. The well-developed "safety net" systems in Germany and France, for instance, are not only far more generous than America's and more equitably administered, but they also enjoy nearly unanimous political support, from the left to the right.
To confront the random lawlessness in the regulatory government, some obvious remedies are suggested in the misshapen institutional arrangements. The idea of a centralized regulatory review by the Executive Branch is defensible, for instance, only if it is brought out in the daylight and formalized so that everyone can participate. Since no chief executive will ever surrender the confidentiality of executive privilege, this necessarily means removing the OMB review mechanism from the secrecy of the White House itself. A regulatory oversight agency might still be answerable to the president, but not as a place for private fixes.
Congress, likewise, needs a mechanism, however crude at the outset, for facing squarely the conflicting trade-offs and ambiguities it has written into law. No single legislative committee can digest these questions objectively, since it might be asked to throttle its own baby. A joint congressional committee for regulatory review, as Robert Litan of the Brookings Institution has proposed, could ask broad questions and force the conflicts and fuzzy mandates back into the arena where they belong -- the lawmaking body of government. If government is going to make trade-offs between business profit and human life, it at least ought to make them in a public debate.
The federal courts could become a radical and positive influence in forcing this sort of reform -- by refusing to enforce laws that are designed to be unenforceable. The conservative judges, instead of protecting business or centralizing power in the executive, ought to develop legal doctrine that confronts the problem of lawlessness directly. If a law is so vague and meaningless that regulations cannot be rationally drafted for it, then courts could throw the law back to the people who wrote it -- the Congress. This would produce political embarrassment and eventually greater self-discipline among the lawmakers. It would also short-circuit the long-running sagas of litigation and nonenforcement that are now so commonplace.
The regulatory agencies themselves might be given similar leverage, an ability to declare honestly in some public forum that Congress has given them a legal obligation they find impossible to fulfill. A necessary corollary to that innovation would be a stronger protective mechanism for civil servants so that agency professionals could disclose, without fear of political reprisal, that the law's original meaning was being subverted by political insiders on behalf of their clients. In everyday reality, these new powers would probably be seldom invoked -- by either the courts or agency administrators or civil-service professionals -- but their mere existence would be therapeutic.
Administrative reforms such as these, however, cannot by themselves erase the permissive culture that fosters the deception and deal making in the first place. These attitudes and reflexes have been formed over two generations of American politics; escaping from them will not be accomplished easily or any time soon. Neither political party has the institutional capacity, much less the ideological inclination, to confront the permissive culture in a seriously critical manner. A modest beginning would be for them to acknowledge what the public already grasps -- the status quo is a lawless swamp.
The fundamental solution must originate with citizens outside Washington, for it requires nothing less than to change the political culture itself. Politics has to develop a fierce, new governing impulse to displace the old one -- a skeptical perspective toward the reigning assumptions about how government is supposed to govern. Only the people can bring this into the arena and impose it on the governors.
I would describe this impulse as a kind of functional conservatism -- as distinct from the corporate interest-group conservatism practiced by contemporary Republicans and most southern Democrats. This temperament would have to dig through the tangle of empty laws in search of the deeper principles that most Americans will endorse. It would have to ask, case by case, if the government really intends to use its legal authority to change things or merely wishes to make pleasing gestures.
Politicians following this new perspective would need the stamina to resist dubious banners and the self-discipline to reject inflated claims that do not correlate with broad purposes or have any plausible chance of actually being achieved. This would be nasty work for a political community used to making indulgent gestures and, against the facts of present behavior, it is very difficult to visualize. Still, the old order is failing and people everywhere recognize it. The next step must be to mobilize the political imagination -- and courage -- to construct a new order in its place.
If government were serious about environmental protection, for example, it would direct its authority at the sources of pollution, not the symptoms -- the production processes and products that throw off the billions of pounds of harmful substances every year. It would ban outright the use of some chemicals or force a radical reduction in other pollution emissions by mandating new technological processes for industry, agriculture, transportation and other sectors. If companies refused to change their own processes, the government might underwrite the creation of high-tech waste-treatment centers and compel industries to use them for a fee.
The principle behind this example is that government ought to use its coercive powers only if it is serious about achieving results. Once the chemical and oil industries began paying the real price for producing their hazardous wastes, they would have a strong incentive to reduce their pollution, an incentive more reliable than public relations. The federal tax code, to cite another example, now subsidizes the exploitation of virgin materials, trees, minerals, raw land, with generous tax preferences while government at the same time is supposedly promoting recycling. If government were serious, the tax incentives would be reversed -- to penalize the exploitation and reward the frugal use of resources. [15]
Is the government serious about compliance with the law? Corporations are not the only flagrant abusers of the permissive law but they are the most important ones. If the government were serious, it would create a standardized system for penalizing corporate offenders at the place where they feel real pain -- the bottom line. Ralph Nader has proposed a set of reforms for government procurement that would effectively close the window to companies that repeatedly violate laws or defraud the government on contracts.
A broader discipline could be applied to virtually all business enterprises through the U.S. tax code. A corporation that accumulates a record of antisocial behavior, including criminal violations, would be forbidden to cash in on the lucrative tax exceptions that are enacted to subsidize various business sectors. Why should other taxpayers augment the profitability of a company that, year after year, chooses to violate or evade the law?
Withdrawing tax privileges in a systematic way is another example of political remedies that speak directly to power -- applying the government's public authority to private behavior in a way that will produce real results. Such a negative tax incentive would swiftly alter the cost-benefit calculations that corporations make on whether to comply with new environmental or health and safety laws. Once the practice of abusing the law carries real costs -- with real dollar signs -- compliance may seem like a more logical choice.
These and similar ideas, of course, are exceedingly difficult -- perhaps impossible -- to envision in the present politics of the nation. That is because these ideas speak directly to the power relationships that envelop government and have deformed democracy. Anyone who operates successfully within the status quo will have little incentive, it is true, to disturb the present realities. That incentive has to come from the people.
***
Asking politicians to be more honest or courageous is an empty proposition by itself. The political system will not suddenly become self-disciplined or righteously skeptical of its own well-worn habits. None of the above ideas will be remotely possible unless the governing elites at the national level, including both political parties, feel threatened by some larger political force or the federal government in all its branches perceives a larger challenge to its dominance.
As it happens, the random stirrings of such a crisis are already visible in the vast deterioration in respect for federal authority. Federal law is now widely dismissed, both by aroused citizens and by local and state governments, as incoherent or unwilling to act meaningfully on public problems.
In some areas, citizens are using state legislatures as a bulwark against Washington, trying to prevent the worst outcomes that flow from the hollow laws enacted at the national level. In other instances, citizens skip over government altogether to confront powerful interests bluntly on their own turf. These shifting lines of struggle are still indistinct but perhaps foretell a historic reversal in popular political attitudes.
For two generations in American politics, Washington was the place where progressive reformers came in search of justice, whether it was civil rights or economic reforms, educational aid or environmental protection. The federal government's reputation as the most reliable source of social and economic justice has been destroyed, particularly during the last decade of Republican presidents but more profoundly over the last twenty-five years. As Professor Lowi predicted, interest-group liberalism "was almost inevitably going to produce a crisis of public authority." The crisis appears to have arrived, expressed by the mutual contempt between the people and those who govern the nation.
Engaged citizens of many different persuasions have concluded that, given the power realities that grip the national government, they must seek redress elsewhere, however limited or inadequate it might prove to be. On the whole, these are not the small- government conservatives following the anti-Washington rhetoric of Ronald Reagan, but people who call themselves liberal or progressive. They include as well countless citizens who wear no particular ideological stripe, but are simply seeking government action on the public problems they care about.
The power to govern still largely resides in Washington, but its centralized authority to decide things unilaterally for the nation is under challenge on many fronts. No one understands this better than corporations, which recognize the threat to their own political power and have largely reversed their own historical hostility to federal power. Conservative pundits still prattle on about the "new federalism," but conservative business interests now regularly lobby to defend Washington against rival centers that are trying to decide things for themselves.
Business sectors, it turns out, want to keep decision making consolidated at the federal level, where they have a better opportunity to manage the outcomes, whether the issue is product-liability lawsuits or pollution standards. Having gained substantial control over their old nemesis -- the big government built by liberalism -- industry now regularly defends big government against its smaller competitors.
This new struggle is found everywhere and on many different fronts. The state of Maine enacted a statute banning low-level radioactive wastes from landfills in the state -- trying to counter the federal government's decision to deregulate these substances as harmless. As Washington stalled, Hawaii and Vermont passed the first laws in the nation to control chlorofluorocarbons (CFCs) that threaten the atmospheric ozone. Portland, Oregon, banned plastic cups. Alabama prohibited out-of-state hazardous wastes from being trucked to a huge chemical dump in the state; industry sued, backed up by the federal government. When Iowa enacted a landmark ground-water-protection law, followed by Arizona and Wisconsin, the food industry lobbied Washington to preempt the states' efforts to regulate agricultural chemicals (the Bush administration endorsed the industry's demand). While Congress dallied for a decade over new clean-air legislation, eight New England states had already adopted California's tougher air pollution standards. [16]
These challenges to federal domination and many others like them have the potential to scramble the old lines of political conflict that for two generations delineated the standard liberal-conservative assumptions about politics. The battlegrounds are at least shifting in provocative new directions. The new battle lines, in effect, reflect people fighting back -- trying to accomplish something real in public affairs, despite the deformed power relationships and other obstacles.
The story of the democratic condition is not told by government alone, because there is always the other side of the two-way mirror -- the people. The next section of this inquiry turns in that direction -- citizens at large who are engaged in their own irregular politics, struggling to be heard and to force power to listen. Many Americans have given up on democracy in Washington, but they are still looking for it elsewhere.