Monday, May 25, 2015

By the People: Part II: Opening a New Front

In Part I of By the People Charles Murray told us how our government is broken and can't be fixed by politics. The problem is that government has become practically lawless under the "living constitution" championed by the Progressives over a century ago. See By the People: Part One: Where We Stand.

But we are humans; we don't give up just because the political system is broken. So what should we do?

In Part II: Opening a New Front of By the People: Rebuilding Liberty Without Permission Charles Murray proposes a way of fighting back against lawless government.

Murray is proposing a program of civil disobedience, and that is a serious matter, for "The rule of law is the foundation of civilization." To resist the government Americans need a reason, and that reason is that "government is instituted to protect our unalienable rights." If it doesn't protect our rights, then "revolution is not treason, but the people's right."

Our America is founded not on some divine right or "ties of ethnicity and culture" but the right of people "to pursue their own interests without hindrance", and Murray enlists the German immigrant Francis Grund and Alexis de Tocqueville in his support. If that is so, then the federal government lost its legitimacy in the constitutional revolution of 1937-42 when the ruling class expanded the Welfare Clause and the Commerce Clause of the US Constitution to mean anything the rulers wanted.

Even though Americans have got used to life under unlimited government, they are getting progressively more suspicious of government. In 1958 Americans were asked whether they trusted government to "do what is right" and 73 percent agreed "just about always" or "most of the time." The trust level rose a bit in 1964 but then began a decline. In 1980, when Ronald Reagan became president, the trust level was down to 25 percent. The trust level went up under Reagan, then down, then up again at the end of the 1990s. But now it's down, hitting a low of 13 percent in 2014. It's easy to see why. "Washington looks like a sophisticated kleptocracy... [and] American government isn't supposed to work this way."

Murray develops three reason why government has lost the trust of the American people. It has "voided" three tacit compacts with the people. First, that the federal government would only provide freedom at home and defend from enemies abroad. Second, it "would not unilaterally impose a position on the moral disputes that divided Americans." Third, it "would make it easy for Americans to take pride in themselves," for good Americans were people "who made an honest living, took care of their families, and didn't bother anyone else". You can see the problem. Today our government wants to be in on every problem; it is imposing one-size-fits-all policies on moral questions on everything from abortion to marriage; and with the expansion of law, "Just about all of us are criminals now".

OK. So Murray proposes that we "ignore large portions of the laws and regulations with which we are burdened." But since we are Americans we must think about the limits to this. First, we are not going to license murder, destruction of property, etc. Second, we are not going to refuse to pay our taxes. Third, we are not going to muck up "public goods classically defined". What we are going to do is use "strict scrutiny" against the regulatory state. First, we are going to resist government telling us what to do with our land. Second, we are going to go resist the government meddling with the details of how people go about their work. Third, we are going to go after licensing laws. Fourth, we are going to insist that people be allowed to take "voluntary risks". Fifth, we are going to go after employment law. Sixth, we are going to go after "regulations that are arbitrary, capricious, or an abuse of discretion".

But we've got to be careful. Certain topics have a "halo" effect: everyone wants to protect the environment. And we want to choose to resist government in cases where the victim of government is trying to do the right thing. In other words, we want to push America towards a "no harm, no foul" regime.

Now it's time to describe the details of Murray's "Madison Fund, a privately funded foundation to map terrain and probe defenses while helping ordinary Americans who are trying to cope with the regulatory state." But how?

The dirty little secret is that the government doesn't have that much bandwidth to harass American citizens. In a table of regulatory agency staff numbers, Murray shows that your EPAs, your OSHAs, your FDAs, your CPSCs, etc. only have a couple thousand attorneys, 2,500 odd "investigative personnel, and 150 odd "administrative law judges." Those bureaucrats can only go after a few people at once. OSHA oversees "8 million worksites" with 2,200 inspectors that conduct about 27,000 inspections a year. EPA in 2013 conducted 18,000 inspections: this for the whole land area of the US. This "Goliath... is actually the Wizard of Oz." Pay no attention to that man behind the curtain.

Enter the Madison Fund. Its task will be simple. When a businessman or an individual wants to fight a bureaucrat,
the bureaucrat [can] say to him. "You do that, and we'll put you out of business."
The Madison Fund would be designed to change the terms of trade in this transaction. It will "tap the bureaucrat on the shoulder, and say,
We are taking over this man's case. We will litigate it as long as it takes.We will publicize that litigation in ways that will embarrass you and your superiors. None of this will cost our client a penny, and we will reimburse him for any fine you are able to impose. And if you come back and bother him again, we will go through the whole process again.
And we don't need to ask anyone's permission to start. All we need is one of the many billionaires that have made fortunes in past decades. It just takes one billionaire and "a few hundred million dollars." As far as expertise goes, we already have a bunch of foundations like the Pacific Legal Foundation that know how to do this stuff. But the current crop of litigating foundations are tiny; we need a Madison Fund that will grow to an annual litigation budget of "a few hundred million dollars a year." And the Madison Fund won't just be doing litigation; it will be doing publicity.

And another thing. The Madison Fund is just a start. What if professional associations insured their members against "government as an insurable hazard"? Why not? Murray proposes the American Dental Association for this task, for dentists are subject to a 307-page OHSA manual for dentists, not to mention employment law, EPA regulations etc. I don't know about your dentist, but my dentist is treating patients, managing employees, providing free services as a group home in addition to the full-time job of complying with the government's mandates.

But is this legal? Free assistance is legal; think Legal Services and public defenders. Overloading government bureaucrats? Well, the Madison Fund is not going to be faking evidence. It is going to be trying to exploit the system, just like lawyers do every day. The one snag might be reimbursing clients for fines.

Suppose the ADA started a Dental Shield program, to provide insurance for dentists against regulatory oppression. Then Dental Shield will go to bat for dentists getting torqued around by the local bureaucrats.

But what happens when "The Empire Strikes Back"?  Suppose you are an OSHA bureaucrat offended by the dentists and their Dental Shield program to protect dentists from bureaucrats. In retaliation, you unleash "wholesale inspections on dental offices, levying the maximum fines." But, of course, the dentist's Dental Shield fights back, "appealing adverse decisions" all the way to the federal courts. Dental Shield makes the pursuit of the dental citations more trouble for OSHA than it's worth. Now OSHA is facing the need to ask "Congress for more inspectors." It might not go down well on TV.

You and your bureaucratic pals could try to win the publicity battle with Dental Shield:
[You] are a duly constituted agency.. [keeping] America's workplaces safe. That important mission is being cynically compromised by dentists who, in collusion with Dental Shield... are endangering Americans seeking dental care.
Except that "Americans generally like their dentists". I know I like mine, and I would get right on the phone to my congressman, "Baghdad" Jim McDermott, in a minute if my dentist got harassed by the Feds.

Or the OSHA bureaucrats could try to get the courts to declare Dental Shield illegal. But that would mean getting out of the safety of their own domesticated administrative courts into the real court system. Maybe that's not such a good idea. Maybe in the end the bureaucrats could beat a strategic retreat and "limit its citations of dental offices to cases in which a genuine safety issue exists.

Then OSHA is retreating to a "no harm, no foul" policy, which is exactly what we want.

But is that what will happen? Murray has consulted legal experts and they have told him of all the "technical issues of procedure and precedent" that have to be dealt with. But Murray is optimistic; the Supreme Court will help, he thinks, provided that "its decision will have enough support." And the key is to get the courts to revise their interpretation of "arbitrary and capricious" to a position that stops favoring the regulators, both in the creation of regulations and their enforcement; then we can start to move the needle. Murray cites an EPA wetland case, Sackett vs. Ennvironmental Protection Agency, which gives cause for optimism. The Sacketts fought all the way to the Supreme Court and won with "the help of two pro bono lawyers from the Pacific Legal Foundation".

The next step is to attack the whole idea of the "disinterested expert" governing philosophy, as in:
  • Problems of public policy can be analyzed so that they yield objectively correct solutions.
Maybe that works when you are talking about sewer systems and smog reduction. But what about traffic signals, urban freeways, bike paths? "It's too politically sensitive to be left to the experts." In fact, "all public policy is ultimately political."
  • The people who frame these solutions are disinterested experts who can put aside their own biases and institutional self-interest as they go about their work.
First of all, most policy sciences are immature, e.g., climate science. And bias is inevitable. It was and is "monumentally naive" to think that experts are disinterested.

But will the Supreme Court give up on its policy of "deference" to regulatory agencies and actions and so create a level playing field where the regulatory agency no longer gets to play judge, jury, and executioner in its own case? Murray reckons it will if and when the Madison Fund and defense funds like Dental Shield start to show results and gum up the works. Then comes the collision, the crisis: "the courts will realize that they have to give people a chance at a day in court" but without "ten-year cases with forty-thousand-page case files."

Is all this possible? Can we reverse the Progressive model of the lordly educated ruling class and its disinterested experts dealing out wise and objective decisions all based on settled science? Or is Charles Murray sending us up over the top into a senseless trench warfare that nobody can win?

I'd say the answer is: Yes, But.

First of all the billionaire that sets up the Madison Fund has to be a guy with incredible cojones. That's because once liberals figure out what is going on their are going to be very angry. Already they don't like the Koch Brothers and their mild libertarian activism, and have taught millions of liberals to hate them. Imagine how they are going to react to the backer of the Madison Fund.

Second, I think that the tactics of using the reverse terrorist effect, of humiliating one bureaucrat to scare ten thousand, is brilliant. A Republican Congress can help by disbanding all the SWAT teams that every agency seems to need these days. And they can then cut the budgets of agencies that get publicized for arbitrary and capricious actions against mom-and-pop businesses. After all, if they've got the time for that penny-ante stuff, then their budgets must be too big.

Third, I think that the publicity battle is crucial. And here I think that the Obama years have helped us with their parade of idiot-left activism from the beer summit to the racist Justice Department to the "rape culture" activists to the follies of "hate speech", "microaggressions", climate deniers, and the rest. We need leaders who can teach the American people to experience the lefty activists as totalitarian bullies. How hard can that be? They are totalitarian bullies.

And that's the beginning, the middle, and the end of Murray's proposal. We must push back against the bullies, and the way to do that is for each of us to know that there is someone who "has our back."

Next, we'll look at Part III: A Propitious Moment

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