As many people should know, Obsidian Wings is often a bastion of worthwhile discussion and debate combined with unapologetic opinion in the sea of hackery and straw men that is the political blogosphere.  Over the last several days, the site’s most prolific blogger, as well as an expert on communications law and a passionate advocate of net neutrality, Publius (known in real-life as law professor John Blevins) was kind enough to indulge me (who once likewise blogged using a derivation of Publius as a pseudonym) in an exchange of e-mails on the interplay between regulation, legislation, and democratic accountability, and what the FCC’s recent actions on net neutrality say about it.  For the sake of the readers’ sanity, I should note upfront that the questions get significantly shorter and more focused as the interview wears on, and Publius may deserve sainthood for his ability to respond to the first question at all.

Mark: One aspect of American policy that tends to get little attention in our public discourse is that of administrative law, rulemaking, and adjudication, not to mention even more discretionary issues such as enforcement priorities.  Yet, at least on the federal level, this is quite often where the real “action” is.  With some notable exceptions, it seems (to me, at least) that it is physically impossible for government agencies to uniformly enforce all of the laws and regulations on the books, almost no matter how many resources we give to those agencies. Meanwhile, rulemaking procedures are often immune from the kind of democratic accountability that theoretically exists in the legislative branches – they are uniquely low-visibility, often – though certainly not always - attracting the input only of the most interested players with the biggest budgets.  Even where rulemaking succeeds in overcoming these more basic regulatory capture concerns, the resulting regulations are still inevitably of the one-size-fits-all variety, such that the largest players often wind up increasing their comparative advantage over small players, even where it was the malfeasance of the large players that created the impetus for the rule in the first place.  Additionally, the wide grant of quasi-legislative powers and enforcement discretion to administrative authorities has seemingly given Congress the ability to duck responsibility for its own action or inaction by allowing it to blame agency bureaucrats and appointees for various problems.  For example, we often hear GOP politicians argue quite plausibly against gun control legislation on the grounds that it is only necessary to enforce existing gun laws; meanwhile, to take another issue near and dear to my heart, Democratic politicians avoid responsibility for the nasty effects of the Consumer Product Safety Improvement Act by claiming that those effects are the result of an improper interpretation by the CPSC.

First, I do think the benefits of a strong administrative state outweigh the harms.  My vision of the administrative state isn’t quite as bleak as what you described, though I certainly share some of your frustrations and skepticism.

In general, I think problems with the regulatory state often reflect external problems.  For instance, if wealth and power are concentrated, then those disparities in political power will be reflected in rulemakings.  If, by contrast, there is less concentration, then rulemaking will benefit from more adverse, competing “vectors.”

Similarly, if one of our political parties views regulatory action essentially as a means to enrich industry, then that too will be reflected in the ultimate rulemaking and adjudications.  But that’s a problem with the intellectual state of the political party more than with the administrative state.

Finally, if the broad public isn’t organized and engaged (particularly at an institutional level), that too will be reflected.

But it doesn’t have to be that way.  Indeed, I think the FCC’s recent actions on open networks and net neutrality show the promise of administrative action, and undermines public choice skepticism (a topic we’ve discussed before).

First, the proposals show that you don’t necessarily need powerful rich industry groups to make change happen.  Open networks are the result of lobbying by underfunded, idealistic public interest organizations like Free Press.  The bigger content companies like Google aren’t doing much heavy lifting.  And I think, frankly, that Democratic policymakers are more attentive to policy at this point in history.

Second, the FCC’s actions show the importance of political mobilization and organization-creation.  In many instances, rich industry groups get their way simply because they’re the only people in the room providing information to policymakers.  In a sense, policymakers often read the brief from only one party.

With the rise of public interest and watchdog organizations, policymakers have more sources of information.  The process, therefore, isn’t hopelessly corrupt — it’s just that a lack of organization is depriving policymakers from hearing other voices.  Legislative and regulatory staffers are busy, and it’s an enormous benefit to receive useful information wherever they can get it. [Read more →]

I’m not sure how well Freddie and I addressed the central question of our discussion last night, to wit, how to overcome the institutional problems in our representative democracy.  But the discussion about health care alternatives and the lack of significant hope for Wyden-Bennett has gotten me thinking about the role of divided government not only in limiting government (which is a standard libertarian argument for divided government), but also, counterintuitively, in ensuring that changes (whether of the government-growing, government-limiting, or size-neutral variety) that do become law are meaningful.

In the six months that Democrats have had control of the Presidency and overwhelming control of the House and Senate, they have pushed three particularly major pieces of legislation: a stimulus package, cap-and-trade, and health care reform.  In each case, Republican/conservative opposition has been pretty much unified and, uhh, outspoken (Sens. Collins and Snowe notwithstanding).  Also in each case, the resulting legislation has been a huge letdown to liberal wonks and, really, the liberal “base” in general – at best, this group has viewed the legislation as a disappointingly inadequate (if important) step in the right direction, and in some cases has even viewed it as counterproductive (see, e.g., the reaction of various environmental groups to Waxman-Markely). 

In response, liberals have typically been blaming “Blue Dog” Democrats for insisting on watering the legislation down to a ridiculous level, although I’ve also seen attempts to blame Republicans for having no interest in negotiating in good faith such that the only way to pass legislation is to horse-trade with the Blue Dogs.

To a certain extent, I think this finger-pointing is accurate – Blue Dog Democrats with relatively conservative constituencies have very much been at the center of watering down these proposals, or at least adding on various goodies for their constituencies that have the effect of undermining the legislation’s purpose.  Similarly, there would be little need for horse-trading with the Blue Dogs if Republicans had any interest in passing legislation that would fix the problems these piece of legislation are supposed to fix – that’s not to say that the legislation would meet the liberal ideal if Republicans were serious about these problems, just that it would better reflect good faith ideas about how to correct those problems.  So, if Republicans were serious about health care, for instance, the result wouldn’t be the liberal ideal of single-payer, but it would probably be something along the lines of Wyden-Bennett, which just about everyone agrees would be a meaningful reform that would solve a lot of our system’s biggest problems. 

At the same time, though, this finger-pointing at Blue Dogs and Republicans misses something pretty important – no matter who’s in power, there are always going to be squishy centrists on the side of the majority who have constituencies that need to be bribed and/or appeased in any reform legislation.  Similarly, whenever you have single-party control of government, the opposition party will have no real reason to do anything other than be the “Party of No” – if a reform achieves its goals, the party in power will get all the credit, ensuring the party out of power falls even further out of power; if the reform fails, the party out of power will be able to heap all the blame on the party in power – but only if the party out of power almost uniformly opposes the legislation. 

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[N/B: See below for a significant update/clarification]

One of the criticisms levied at the alternative health care proposals discussed by E.D. and I over the last few weeks has been that these proposals, which rely heavily on vouchers and/or subsidies, are irrelevant to the debate that is actually taking place.  Yet this is not really true – in fact, as it turns out, these proposals are quite similar to Senator Wyden (D-OR)’s bipartisan proposal, which has 14 co-sponsors in the Senate.  A good summary of this proposal is here (Wyden’s proposal appears to rely on tax credits, as commenter Willybobo has advocated, rather than vouchers, but the premise is the same).  A better discussion that places Wyden’s proposal and the more-dominant “public option” proposal in context is here.

Yet this proposal, despite bi-partisan support, has exactly zero chance of going forward.  It has, so far as I can tell, been largely ignored by grassroots advocates of health care reform, who have largely jumped on the “public option” bandwagon, however flawed that legislation will be if it is to become law. 

What is so particularly strange about this is that the legislation that is most likely to actually pass will ensure that our health care system places even more emphasis on employer-based health care coverage – even though the employer-based nature of our system is the single biggest cause of that system’s problems. 

For all the comparisons between European and American health care, the employer-based nature of the American system is the one element that both sides of the higher echelons of this debate seem to ignore consistently.  Yet it is the one element that actually distinguishes the American system from just about any system in the world – and not in a good way. 

As Wyden points out in the Slate article above, the employer-based system traps people in jobs that they would otherwise leave, which reduces labor flexibility even as the capacity for employer mobility increases at breakneck speed.  Beyond that, as I’ve tried to point out on numerous occasions and as our friend Kip recently pointed out, the employer-based system ensures that the consumer and the customer are two very different entities with two very different sets of interests.  Meanwhile, the leading proposal adds ever-more complications to the already too-confusing tax code to raise money to pay for the additional expenditures – and, importantly, these complications are not just as a result of the surtax on the wealthy.

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“If companies that are “too big to fail” are too big to exist, then bills that are “too long to read” are too long to pass. This sort of behavior — passing bills that no one has read — or, that in the case of the healthcare “bill” haven’t even actually been written — represents political corruption of the first order. If representation is the basis on which laws bind the citizen, then why should citizens regard themselves as bound by laws that their representatives haven’t read, or, sometimes, even written yet?”

~ Glenn Reynolds

Congress passed the gigantic, $787 billion “stimulus’’ bill in February – the largest spending bill in history – after having had only 13 hours to master its 1,100 pages. A 300-page amendment was added to Waxman-Markey, the mammoth cap-and-trade energy bill, at 3 a.m. on the day the bill was to be voted on by the House. And that wasn’t the worst of it.

~ Jeff Jacoby

(h/t Conor)

Conservatives like to talk about limiting government, but it’s a lot more difficult to do in practice than in theory.  It is rather like quitting a bad habit – much more difficult than picking it up (which is a fairly good analogy for growth of government in general).  And it’s a lot easier to talk about such limitations when not in power than when the tables turn.  The process of limiting government is subject to all sorts of backlash and unintended consequences, and more often than not it is simply a talking point.

Once government has grown, it’s extremely difficult to cut it back – reason enough, in my mind, to keep it as limited as possible from the outset.  But I think practical steps can be taken to limit the state, and often as not, these can be done by limiting lawmakers themselves, making the legislative process more transparent, and focusing not simply on the limits but on the process.

I like the “read the bill” movement.  I think it would curb Democratic excesses and make Republicans honest.  I think that we should go further, though.  All bills passed in Congress should be limited to exactly the stated purpose of the bill.  If separate laws need to be passed, then they should be passed separately.  There is no reason to include non-germane amendments in our legislation ever.  Take that option off the table.  Why does a tourism bill include E-verify laws?   We need to not only require shorter, more accessible bills which our lawmakers are required to read, we need to put a cap on the breadth of laws and regulations and hand-outs that each bill can include.  [Read more →]

In comments downblog, Roque Nuevo is looking for something to back up E.D.’s assertion that “No other foreign policy lobby is as active or as strong as AIPAC.”

Whatever one’s feelings about American policy in the Middle East, I don’t think his overall point should be that controversial.  I spent a fair amount of time around Capitol Hill in the late ’90s/early 2000s, including several months as an intern in a Congressional office during college.*  Prior to that experience I had never even heard of AIPAC, even though I was then fully supportive of US Middle East policy.  By the time I went back to school, the letters AIPAC were as branded into my head as NAM and NRA.  Indeed, AIPAC has a lobbying budget that ranges between about a 25-40% of all other foreign affairs lobbies combined, although it is still modest compared to many domestic lobbying budgets.  AIPAC events were and to my knowledge are some of the most heavily attended gatherings and policy forums on Capitol Hill – of any interest group, full stop. 

And I have to say, I don’t think there’s anything sinister or wrong about AIPAC acting this way – their modus operandi is quite similar to just about any other influential interest group.  They do a magnificent job of grassroots lobbying, with an active grassroots membership, maintain the wonkish aura of intellectualism that is so necessary to be a credible think tank, and lobby on a set of issues where Americans are broadly sympathetic to their goals. 

The problem is that AIPAC is just about the only well-organized and broad-based interest group with a focus on foreign policy: the Cuban-American and, to a lesser extent, the Greek-American lobby, are well-organized but not broad-based; and the Irish-American lobby is broad-based but not particularly well-organized.  Moreover, none of those interest groups are concerned with issues that are remotely as important as American policy in the Middle East. 

Worse, there really aren’t any credible interest groups that provide an opposing viewpoint to AIPAC on Middle East policy, which leaves AIPAC as the only credible interest group to whom members of Congress can turn for policy advice.  To be sure, there are interest groups who offer a competing viewpoint, but they are either small and disorganized or radicals that have no discernable interest in a “safe and secure Israel.”

Despite the deep contempt and suspicion in which Americans hold lobbyists, lobbyists fulfill an enormously important role in our political system.  By the very nature of having enough of an interest in an issue to lobby the government on that issue, lobbyists accumulate far more expertise in their area of interest than any given legislator, and often more than most relevant Executive branch officials.  This makes them valuable sources of information for formulating policy, especially when a given official sympathizes with the group’s overall objectives but lacks the knowledge necessary to craft policy that achieves those objectives.  Such a scenario happens quite frequently – after all, legislators and government officials are humans, not omniscient beings, and the number of issues on which any given official has more than a passing knowledge are going to be quite few just like any other human.

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