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July 2, 2010

the corruption that the financial reform bill reveals

I support the pending financial reform bill as about as good a product as our legislative system is likely to produce, but it also illustrates how badly that system is broken.

Congress has negotiated for months to produce a bill that is 2,000 pages long, full of special exemptions and breaks that no individual could even count, let alone understand, prior to passage. The legislative process has offered rich opportunities for professional lobbyists and their clients. Steven Brill estimates that $15 million was spent to lobby on one particular technical provision that reduced corporate tax obligations by $10 billion--an excellent return on investment. Brill observes:

The passage of the bill will by no means end the process of negotiation. Binyamin Appelbaum writes in The New York Times:

Part of the problem is campaign finance: firms that are regulated by the federal government also fund elections, in a scandalous conflict of interest. Another contributing factor is the fillibuster, which gives individual Senators far too much leverage. But I would like to draw attention to a different problem that will persist even if (unlikely as that may be) we remedy the other two flaws.

Law-making has been substantially replaced with rulemaking and administration. In a republic, "law" classically means consistent, durable, binding principles that are enacted after public deliberation. Laws should not change arbitrarily--without substantial changes in the outside world--nor be subject to exceptions and negotiations after passage. The Constitution (article 1, section 1) vests "all legislative powers" in Congress, although the presidential veto power gives the White House a role in lawmaking as well. Under our system, Congress and the president are supposed to make laws that are as durable and coherent as possible. Interest groups and party blocs will inevitably negotiate before a law is passed, although there is also supposed to be a public deliberation about matters of principle and philosophy. Once the president signs the bill, it is supposed to be fixed until significant changes in the world require reform.

But meeting those standards would be hard for elected politicians. They could be held accountable for their own momentous decisions, and they would have nothing to offer interest groups once they had passed any important law. They are tempted to act in quite a different way. First, instead of deliberating and passing coherent, durable statutes, they issue voluminous and constantly amended statutes--too long for anyone to read before the vote. That may be inevitable in a complex modern society, but Congress compounds the problem by delegating its lawmaking role--not so much to the president and the cabinet as to administrative agencies, civil servants, and special courts within the executive branch.

They do this by passing statutes that empower regulatory agencies to make policy within very broad outlines. In 2004, federal agencies generated 78,851 pages of proposed rules, filling 69 volumes of the annual Federal Register. The number of pages has crept almost steadily up, from one volume of 2,620 pages in 1936 (when the government was more powerful and activist, but also more coherent, than it is today).

This process has several advantages for legislators. It defers decisions and makes them provisional and negotiable, so that no interest group ever loses a fight definitively. It allows elected officials to take credit for general principles, even if they conflict, and then blame bureaucrats who actually make choices. A classic but not atypical example is the "dual mandate" that Congress gave to the Federal Reserve: to maximize employment and control inflation. Those goals often conflict in practice, but Congress claims to have mandated both and can critically question any Federal Reserve Board Chairman who fails to achieve both. Finally, a process of continuous negotiations favors organized interest groups, the very ones that give campaign contributions and physically appear on Capitol Hill.

James Madison explained why such "mutable" policymaking is disastrous, using words that now seem prophetic:

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