Monday, November 21, 2016

How to Deal with an Unaccountable Federal Bureaucracy

A big question of our age, perhaps the big question, is how to prune back the huge, hegemonic and dominatory power of the federal government.

It is not just the question of 2,000 page bills in Congress that nobody has read. As E. Donald Elliott writes in The American Spectator, the bigger problem is the administrative and regulator apparatus.
[M]ost of our law today is made by officials in the agencies and the courts who are not responsible to the people and often do not reflect their common sense. Call this the “three smart guys in a room” problem: a small group of self-appointed agency experts get together and come up with a rule that sounds good to them in the abstract and then (some times after notice and comment and judicial review), the rest of us have to live under it unless Congress disproves it and the President does not veto the Congressional disapproval of a rule enacted by his own Administration.
So Elliott has a small, but significant suggestion. The federal bureaucracy has three levels. There are the executive positions that serve at the pleasure of the president. There is the great mass of bureaucrats. But in between is the Senior Executive Service (SES). Out of the total of 2.7 million bureaucrats the SES consists of 7,800 senior officials just below the presidentially appointed positions. And they serve for life or until they retire, and they are the main source of the "three smart guys in a room" problem. Writes Elliott:m
Congress should enact term limits for members of the “Senior Executive Service” (SES) and make them subject to periodic retention votes by the Congress. SESers are the barons just below the temporary Presidential appointees confirmed by the Senate.
But will that make a dime's worth of difference? A bureaucrat is a bureaucrat and what bureaucrats have learned over the last century is the philosophy of administration and a world view that regards sensible regulation and centralized provision as the very meaning of life, the universe and everything.

Aside from the natural instinct of bureaucrats to centralize and control, there is another problem. Aside from the fact that government is injustice, administrative government cannot respond to changing circumstances. That is why we see continual government failures that never get fixed. And the one thing that government cannot do is cut spending programs, except the armed forces after a war. The recent lesson of Venezuela is a case in point. The government could not bring itself to cut its headline programs in the aftermath of the oil price collapse after 2014. So it has ended up with massive inflation and the failure of all its spending programs. Why is this? It is because the beneficiaries of the spending programs are the government's supporters. To cut spending is to break faith with the government's supporters, so governments always crash and burn before cutting its programs.

Charles Murray has another idea, in his By the People: Rebuilding Liberty Without Permission. He doesn't think that moving the deck chairs on the government Titanic is going to do it. So he proposes a strategy of disobedience, a way of outflanking big government to regain our freedom.

The problem is, as I outline in a blog post, is that the the current legal system allows the government to convict you of a crime for a mistake rather than a self-consciously evil act, and with the rise of the regulatory state, there is no way to roll back government. So we must start a guerrilla war against government. He calls it "Opening a New Front," and I have blogged about it here.

The idea is to fight back against government and gum up the works of the regulatory machine. Murray wants us to turn the tables on the mid-level bureaucrat, and say to him: you touch me and I'll make your nice secure job a hell. The idea is to crate a "Madison Fund" to protect "ordinary citizens who are being victimized by the regulatory state." The Madison Fund would come to the help of citizens being victimized by a bureaucrat and make life hell for him. Call it reverse-regulatory terrorism: eat one bureaucrat and terrorize ten thousand. Take away their pensions and you take away their reason for living.

You can see how important Murray's idea is when you consider the issue of the IRS and the Tea Parties. The IRS, encouraged by some Democratic senators, decided to slow walk the applications of Tea Party groups for 401c(3) status. Nothing happened to Lois Lerner, the bureaucrat in charge of the outrage, and nothing happened to the truculent IRS commissioner that basically told the investigating congressional committees to go pound sand.

So. Will the new Trump administration Do Something about regulatory hegemony and injustice? I am not holding my breath.

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