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Another Perspective
No Regulation Without Representation
Three cheers for the Pledge to America’s promise to regulate the regulatory state.
Having excoriated the Bush administration and Republicans in Congress — on this site and elsewhere — for falling short of principles on TARP and mortgage bailouts for irresponsible borrowers and lenders (both of which have been magnified by the Obama administration), I now find myself in a strange position of partially defending House Republicans from conservative attacks on their “Pledge to America.”
Oh, well, there is a first time for everything!
Unveiled Thursday, the document has been the object of sharp criticism by RedState’s Erick Erickson and by my friends at TAS for a lack of specifics. This is true in some areas, as is true for most campaign documents.
Moreover, the pledge does contain at least one specific and important policy proposal that would go a long way toward reining in the regulatory state and restoring constitutional, accountable government. It is along the lines of recommendations we at the Competitive Enterprise Institute have made in our publications such as the biannual Agenda for Congress and annual Ten Thousand Commandments by CEI Vice President Clyde Wayne Crews.
On page 8 of the 21-page document, in the section entitled “Our plan to end the uncertainty and create incentives for job growth,” there is an important sub-pledge to “rein in the red tape factory in Washington.” It makes the important point — one that CEI and other free-market groups have long been stressing — that “excessive federal regulation is a de facto tax on employers and consumers.”
More importantly, this section contains a substantive idea that would in effect regulate the growth of the regulatory state. The document states: “We will require congressional approval of any new federal regulation that has an annual cost to our economy of $100 million or more. This is the threshold at which the government deems a regulation ‘economically significant.’ If a regulation is so ‘significant’ and costly that it may harm job creation, Congress should vote on it first.”
The principle of “no regulation without representation” is something Crews and others at CEI have been shouting from the hilltops for years, usually to deaf ears in Congress, even among Republicans. But it looks like with this pledge, lawmakers are at least hearing part of the message that the legislative branch needs a mechanism of accountability for costly and counterproductive regulations that stem from the laws Congress passes.
And in this case, the pledge has been preceded by proposed legislation in the current Congress. Rep. Geoff Davis (R-Ky.) introduced the REINS Act almost a year ago containing this very provision of affirmative congressional approval for major rules. The bill now has more than 70 co-sponsors. This week, Sen. Jim DeMint (R-S.C.) introduced a Senate companion with 12 co-sponsors.
The issue is not just one of good politics or even good policy, but of constitutional government as well. Article 1, Section 1 of the Constitution vests “all legislative powers” in the U.S. Congress. Yet what most often happens in today’s administrative state is that regulators in the executive branch, technically changed to enforcing provisions of laws, actually write much of the law as applied.
Sometimes this takes place due to creative interpretations, such as defining a farmer’s wetland the size of a mud puddle as a “navigable waterway” under the Clean Water Act. But more often than not, Congress under the control of both parties has been deliberately vague so as to pass the buck to regulators and escape accountability. New York Law School Professor David Schoenbrod has called this practice — and his critique of it published by Yale University Press — “Power Without Responsibility.”
The recently passed 2,500-page Dodd-Frank Act, for instance, gives the Bureau of Consumer Financial Protection the power to ban an “abusive” financial product without defining what “abusive” means. You can bet when the agency defines as “abusive” a product or service that many constituents like, Congress will wash its hands of the matter and blame the agency.
Similarly, the Sarbanes-Oxley Act of 2002, passed after Enron by a GOP-controlled House and signed by President George W. Bush, required companies to maintain and accountants to sign off on “internal controls” without defining what these were. The SEC and Public Company Accounting Oversight Board broadly interpreted the term to include trivial items such as the number of letters in an employee’s password.
This broad interpretation has cost companies a bundle and made it prohibitively expensive for smaller companies to raise capital by going public, while serving little purpose for shareholders. Not just Republicans, but Democrats from Speaker Pelosi to Sen. John Kerry have called these rules excessive. But in eight years under both parties, Congress did nothing to provide relief from these rules until this year when it passed a partial exemption in Dodd-Frank for the very smallest public companies.
“No regulation without representation” is a simple, good-government rule that should be embraced by both parties. The GOP pledge should be commended for recognizing the principle, although time will only tell if words will be followed through with actions.
About the Author
John Berlau is Senior Fellow for Finance and Access to Capital at the Competitive Enterprise Institute and blogs at OpenMarket.org.
Letter to the Editor View all comments (38) | Leave a comment
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Kylie Estwick| 9.24.10 @ 7:29AM
Wow, I find myself in rare agreement (with the spirit of the piece at least) with an American Spectator column!
However, it should be pointed out the "regulation without representation" notion would easily be circumvented any vague argument made by the standing administration that the regulation in question is in the "interests of national security OR prosperity". That last part is particularly salient. What is means is the administration could use the spirit of the law to circumvent the letter of the law at will.
One more point...isn't adding another layer of Governmental procedure only adding MORE red tape? I thought the mantra was "less government" not more???
Just curious. Thanks.
rainmaker1145| 9.24.10 @ 2:25PM
Who are you kidding? All they have done is identify the insiders of this latest Republican establishment scam so the Tea Parties can run candidates directly against the perpetrators of this fraud in the next two election cycles.
Get real: if they were going to do it they would have done it - Reagan left office 22 years ago and they haven't done it.
If they were serious there would be legislation on the table.
If they were really committed they would be demanding and conducting a Constitutional Convention under Article V to make these "changes" permanent.
They aren't doing these things. Why? Because it is just a scam to mollify us into letting them continue to steal money from us. I know many of you believe Paul Ryan. I know from personal experience that the man is just a careerist looking to position himself for higher office - he only cares about us serfs for money and votes. Cantor has been in office since 2001. Did you see the Cantor Bill for a Balanced Budget when Bush was President? No, the spending was okay then, wasn't it? Did you see him out front to privatize or at least try to fix Social Security when Bush brought it up in 2005?
And you are going to fall for this sucker ploy now - and swallow this treacle on face value and swoon before the feet of these liars? Come on...
These people are just trying to scam you into silence so they can continue stealing our money. They are doing NOTHING for us. They are STEALING our money - that is all. Voting for Republicans is like voting for Democrats. They are all just stealing the money and this "pledge" is just being used to wax our behinds and fill our ears with more nonsense.
Ask yourself - if they were really serious about putting an end to regulatory excesses, wouldn't the logical thing to do be a constitutional amendment on this? It would, but they don't want to do that because that would end the billions of dollars of lobbyist money that bribes these pigs.
If they really were serious about the budget, wouldn't they just say it will be a balanced budget on a reconciled basis instead of all of the dancing?
It's just bull from a bunch of losers who have been scamming us for more than a decade and when it doesn't happen next year you are going to be mad at people like me for saying you were told, but preferred to believe that an old man in a red suit who smelled like reindeer poop was going to bring you toys so you sat outside all night until you died of exposure. Tell me you aren't that stupid.
Joel S. Hirschhorn| 9.25.10 @ 10:51AM
Constitutional Traitors
Joel S. Hirschhorn
In recent days the idea of using the Article V convention option in the Constitution received support in an article by Texas US Senator John Cornyn published on the Fox News website. He noted “Recent polling suggests that a plurality of Americans support a convention to propose a Balanced Budget Amendment to the Constitution if Congress will not do so.” He made a good case for using the convention option by saying it “would be part of a national conversation that could last well beyond one or two election cycles. The very length of the convention and ratification process would allow the American people ample opportunity to judge proposed reforms, and ensure that they would strengthen the checks and balances that have served our nation well.”
A few days later, on the pages of the Wall Street Journal a strong case was made for a “repeal amendment” that would give state legislatures the power to veto federal laws, something worth proposing. Though the oped by a professor and the Speaker of the Virginia House of Delegates did not say so, obviously Congress would never propose such an amendment. That means using an Article V convention whereby state delegates could propose new amendments just as Congress has done, which the Speaker has acknowledged elsewhere.
At the same time a policy report from the Goldwater Institute recommended that “states seriously consider” using the convention option “to restrain the federal government.”
So the issue of using this convention option that Congress has refused to convene despite hundreds of state applications and that establishment powers on the political left and right have long opposed merits serious examination. Start with this: Americans overwhelmingly say they love and respect the Constitution and usually specific amendments, though often different ones on the political left and right. Three frameworks help understanding why most Americans oppose using the Article V convention option. Two explain why convention proponents have not been able to impact most opponents that fit these two frameworks. I offer a third framework or plan of attack which I believe will work.
First, consider the craziness framework. Many Americans have been taught to fear using the convention option, even though it has never been used. They are irrational. This is like being afraid to eat the fruit of the constitutional tree first planted by the Founders even though no one has ever tasted or been harmed by the fruit. Such people stubbornly think they are acting rationally; I think they are crazy and irrational. This delusional thinking based on what is imagined to might happen is not easily changed, because such people have been purposefully and successfully brainwashed. They have an emotional block.
Rather than fear a runaway convention, people should fear our runaway politicians and government. As quoted in the Goldwater Institute paper Ann Stuart Diamond pointed out that the interpretation that an Article V convention would or could rewrite the whole Constitution “is often a rhetorical ploy to terrify sensible people.” The convention can only offer specific amendments. It is time for Americans to recognize their fear of a convention as having no basis in fact. And that those promoting fear themselves fear the reforms in government that a convention could propose.
Second, consider the analytic framework. Many Americans use what they think are rational, substantive arguments. Convention proponents use facts based on the exact language in Article V or other historical facts to objectively contradict wrong-headed thinking. But correcting the record has not worked sufficiently, largely because opponents invent their own facts, ignore correct ones, and consume disinformation disseminated by convention opponents. They have an intellectual block. Cognitive dissonance works to prevent the pain of accepting new information incompatible with their negative views about a convention.
We should not invite, respect or participate in arguments by opponents that fit these two frameworks. We should, in particular, recognize and condemn morally offensive fear mongering used intentionally by convention opponents. Convention opponents seeking protection of their ability to influence the political system and selling fear and disinformation must face their constitutional guilt.
Converting convention opponents to proponents requires a paradigm change, which is very difficult. However, the current justified high level of dissatisfaction with government, politicians and both major political parties and the strong desire for reform of government justify use of a new approach.
The patriotic framework better gets to the root of the problem from a rule of law perspective. Rather than condemn convention opponents as irrational or ignorant, we condemn unpatriotic constitutional hypocrites. When they openly oppose the convention option they are constitutional traitors.
With the patriotic framework we take advantage of frequent strong public support for constitutional amendments not proposed by Congress, including these: In 1996, 74 percent of Americans favored a constitutional amendment to limit the number of terms that members of Congress and the US Senate could serve. In 2005, 76 percent favored an amendment to allow voluntary prayer in public schools, and in 1983 81 percent favored it. In both 2000 and 2004 61 percent favored amending the Constitution so that the presidential candidate receiving the most popular votes would win, replacing the Electoral College. In 1995, a balanced budget amendment passed the House but failed to meet the two-thirds requirement in the Senate by a single vote; this year there is a strong national movement to get it and a number of other amendments that would surely earn broad public support.
The basis for the new framework is this: Virtually everyone professes respect and admiration for the US Constitution and knows that it includes a process for amending it. But if someone opposes using the Article V convention option, then he or she is an unpatriotic constitutional hypocrite. When they openly oppose a convention they are a constitutional traitor replacing the Founders thinking with theirs, putting themselves above the law.
Moreover, it is impermissible to pick and choose what parts of the Constitution are supported and obeyed. Similarly, elected public officials who swear obedience to the Constitution cannot pick and choose which parts to obey. Such behavior makes a mockery of the supreme law of the land, the rule of law, and our constitutional republic. Silence by public officials on the issue is cowardly opposition to using the convention option.
No one can accurately forecast exactly what a convention would propose, but we do know that continuation of the status quo will not eliminate the corruption and dysfunction sustained by the two-party plutocracy. The two major parties are rejected by 58 percent of the public for not effectively representing them, but a convention is far more attractive than forming a competitive third party. Many reforms can only be achieved through constitutional amendments that Congress will never propose; this is inarguable. Voting in elections to get reforms is passé. A hard truth to take, but one that an increasing number of Americans have begun to accept.
Amending the Constitution in our modern world should compete with ordinary elections. With Internet news, blogging, email, tweeting, texting and myriad other forms of instant communication, holding a convention is a new way to satisfy public thirst for true reforms, not promises. Amending the Constitution can be done relatively quickly. Of the 27 amendments to the Constitution, seven took one year or less to become the law of the land because of public engagement. The 26th amendment (giving the right to vote to 18 year-olds) took only 3 months and 8 days to be ratified in 1971! Public pressure works. It will work for and against specific amendments. Americans deserve the constitutional opportunity that Congress has deprived them of.
Americans must be taught this: Just by being in the Constitution the convention option demands public support. Citizens are obliged to support it. People cannot be allowed to have it both ways and be two-faced and hypocritical. Embrace the convention option or be openly and aggressively condemned for unpatriotic hypocrisy and behavior that undermines the sanctity of the Constitution and the rule of law, both crucial for maintaining the integrity of our republic.
Trust is the crucial issue. So many Americans have lost trust in their government and politicians but far less so in their Constitution. Trusting the Constitution means trusting the Founders’ wisdom in providing the Article V convention option. They anticipated the day when citizens would lose trust in the federal government, which has surely arrived. The convention option bypasses Congress, the President and the Supreme Court; it gives power to the states and citizens. Wisely, ratification by the states is required for any proposed amendments from a convention, providing a hedge against dangerous amendments. When it comes to reform and making government work for we the people, the greatest risk for the nation is not using the convention option.
What political powers on the left and right fear and oppose we the people must demand. They are guilty constitutional traitors. We must be courageous patriots. There is no room for compromise with convention opponents. We must shame and embarrass them; they are lousy citizens. The time to argue about specific amendments is when the convention is in session and delegates must contend with public sentiments and later when proposed amendments are considered for ratification by states.
We cannot know with certainty whether holding a convention would revitalize the nation. But refusing to use the convention option as a constitutional path to reform disrespects and undermines our constitutional republic. The sorry state of the nation demands that we do more than just talk about it. This year every candidate for the House and Senate should be compelled to publicly support using the convention option. Lack of support for it should be grounds for defeating them.
[A shorter version of this article was presented at the Thomas M. Cooley Law School Article V symposium in Lansing, Michigan on September 16, 2010; contact Joel S. Hirschhorn, a co-founder of Friends of the Article V Convention, through delusionaldemocracy.com.]
rainmaker1145| 9.27.10 @ 8:42AM
Awesome article...
Tim*| 9.24.10 @ 9:29AM
We Tea Party Rebels Support Jim DeMint.
"We must put a stop to the reckless and costly anti-free market regulations that are destroying jobs,” said Senator DeMint. “When the Obama Administration hasn’t been able to ram their anti-job polices through Congress, they’ve empowered unelected, unaccountable bureaucrats to force them through using regulations. "
The Tea Party Rebellion Escalates .
Rise Up !
Petronius| 9.24.10 @ 9:34AM
As usual, they still don't get it. What most voters want is an end to the market place prohibitions enacted by Liberals that piss us off no end. Repeal the light bulb law, the toilet law, and C.A.F.E. standards on our cars. Bring back freon. Eliminate the quality standards of the Clean Air Act that do nothing but drive up our utility and fuel costs. End the drilling, logging, and mining bans that smother our industries. Repeal all nanny state laws that protect the citizen from himself starting with mandatory seat belt usage. Repeal all punitive excise taxes that have the effect of limiting and prohibiting otherwise lawful activities, like taxes on aviation gasoline that have grounded many part time pilots, lessened sky diving, and hurt flying schools, and the new 30-40% tax increase on tires. Anything and everything that affects Joe 6pack's wallet and standard of living should be reviewed. And if any tax or regulation is found to be unduly onerous and unnecessary, eliminated. One person businesses are under relentless attack by government at all levels at present. Handymen are the hardest hit because they are non union. But anybody who works alone on a fee for service basis has a bigger bulls eye on his back than ever before. And most of all; end quota hiring, promoting, and any other social engineering. Who people desire to associate or trade with is not within the purview of any government entity. There is a fundamental difference between a right and a privilege that most people never learn.
Redstateboy| 9.25.10 @ 2:05PM
A M E N !!!!!
Len| 9.24.10 @ 11:05AM
Uhm..hello? What regulations are those that under the US constitution the congress is allowed to enact. The US constitution being one of delegate power, powers to regulate businesses or environmental concerns were left to the states, so how about a pledge (sort of like the oath to uphold the US constitution) to get rid of unconstitutional regulations?
BTW, even if the congress had authority to pass laws with regulatory power, it would still have to be the congress doing so and not the agencies, as the congress passes laws and the agencies carry out the laws. Regulations are part of laws, and as such the congress cannot redelegate delegated powers. It violates the agent principle understood in making the US constitution.
Nunya| 9.24.10 @ 11:20AM
Absolutely correct. All of the "alphabet soup" administrations are extra-Constitutional, along with Executive Orders. There is no allowance for these in the Constitution, and frankly they ALL need to be abolished, IMHO.
Warrior | 9.24.10 @ 12:02PM
Thanks Len! I was wondering if I was the only one that sees these Pledge items as just being a little less liberal than the democrats. Again, they are not attempting to return the powers back to the congress, they are going to set artificial limits in which these unconstitutional powers are levied by unelected appointees. The Pledge is not attempting to bring us to a free market economy, eliminate deficit spending, reduce the size of government or even make a half-assed attempt at returning to a Consitutional government. My favorite is to return to spending at 2008 levels, which of course was only just north of a $400 billion in deficit spending. Unless power is returned back to the states, the choice of parties we are making is simply adjusting the speed in which we are socializing.
Tim*| 9.24.10 @ 12:14PM
Once We Get Our Tea Party Candidates seated on November 2nd ,we'll have more leverage to shove The GOP into The Constitution and The Free Market .
The Tea Party Rebellion Escalates .
Rise Up !
rainmaker1145| 9.24.10 @ 3:20PM
From your lips to God's ear.
Mike Rogers| 9.25.10 @ 1:29PM
Indeed getting to the meat of the matter.
The reason I think that Newt Gingrich is a great ideas man, but would make a terrible president is that he still thinks that central government can legislate on healthcare and economics. instead of just getting out of the way.
We send the best we can to DC to try to cut back its power, but even more important, we elect the strongest people to state government to enforce the bill of rights and make the federal government do it's one and only real job - defense and international relations!
Regulatory review is good, but anything blatantly unconstitutional, including most of the agencies should simply be repealed, and declared void by the states: Push and pull method.
Nunya| 9.24.10 @ 11:18AM
Our government has grown out of control, and I see no limits on it in the near future, regardless of some new "Contract with America II".
Those in power have no inclination or desire to remove themselves from power, any move of that direction will need to come from We the People. Unfortunately, most of "We the People" are asleep at the wheel (or are just plain stupid)--how else to explain how ~40% of the population can call themselves "liberal" or "progressive"?
As Petronius stated above, "There is a fundamental difference between a right and a privilege that most people never learn".
Absolutely right on. I would add that there's a reason why our rights are not taught in schools any more. It makes things much more difficult for our ruling class when the "subjects" know what their rights really are.
Al Adab| 9.24.10 @ 11:55AM
The Mandarin class, those unelected functionaries of the regulatory agencies, daily promulagate rules- having the force of law- which control ever more aspects of our lives. Here indeed in the great danger to a free, self-governing, people. Regulation without Representation is truely a clear and present danger to our Constitution and our society. That this battle has been ongoing for almost fifty years makes it no less urgent today. We have finally arrived at, "the hill we need to die for". Generations of our posterity will look back to these days and either curse our names for failure or sing our praises for our actions in defense of their (and our) Liberty.
Gary Blackman| 9.24.10 @ 11:59AM
If they gain power, I'll know conservatives are serious when they dissolve the Department of Education. Until then, it's all lesser-of-evils hot air. Seriously, how can anyone maintain a straight face and deny that educaiton is a local issue?
Len| 9.24.10 @ 12:12PM
Right, the states made the US constitution by ratifying what was framed, and nowhere do we see education as being understood as being put in the hands of the federal government. Further, such a grant of power was actually considered and rejected by the framers, so if they rejected such a grant of power, then it was never put to the states to ratify such a thing, and as the 10th says the states then have reserved or kept back such authority.
I would go further though and say that from both an economic and rights perspective, government should not be involved in education at all. That's another discussion though.
Mike Rogers| 9.25.10 @ 1:32PM
Yes, indeed - there are many bad and unnecessary agencies, but the Dept of Education takes the cake.
This is the litmus test of a serious conservative government - kill the DoE and reload to go after most of the rest! Happy hunting!
Brother From Another Planet| 9.25.10 @ 2:25AM
Why would they give "specifics"? They want to win a few seats. Dumbass.
They will do nothing. And do nothing if they gain control. Just like they have always done.
Chef Schnauzer| 9.25.10 @ 7:12AM
I see the tan lips moving but.......
The back-slapping Jerry Ford slackers that make up the core of the republican party have made a side-line of lying to conservatives. If you're going to vote with the socialist (or progressives or what ever you want to call them) then go home and change your party dress. The price for the label 'moderate' had to be testicular - the establishment threw in a tanning bed too !!!!! Yeah - go Buckeyes.
JmsA| 9.25.10 @ 9:12AM
As long as the current Republican leadership, Boehner, Cantor, McConnell, Kyl, etc., remains in place, nothing will change. It's all window dressing.
Gary Blackman| 9.25.10 @ 10:30AM
Exactly right. The GOP establishment relates much more closely to the DC-Democrat culture and ruling lifestyle than to us peasants and the founding principles. They will not go quietly. They will attempt to co-opt the new arrivals with every threat and trick in the book.
First, regain overall power from the Democrats, then clean house within the Republican Party. This primary season has been quite encouraging and has shaken the ruling establishment. Many critical fights to come.
Mike Rogers| 9.25.10 @ 1:39PM
Too true- all of these are frauds - Boehner tries to sound serious, and then caves on a whim.
Cantor tries to attach himself to Ryan's budget plan, while pleading to keep his own bloated and expensive staff.
McConnell has been on the wrong side way too often. Etc., etc.
Ryan is more the genuine article, Pence is for real, Flake is for real; in the senate, DeMint is superb, Dr No (Coburn) is for real, and more...
Meanwhile, reinforcements are coming - the TEA partyers MUST keep up the intensity through November, maybe even until January to shame any attempts at lame duckery.
After that, rest and recharge briefly, then full tilt for more conservatives in 2012.
blarset | 9.25.10 @ 12:15PM
Another establishement think tank. The elite-ist , pro-," two party go alongers". The best and brightest the established two partiers have. Please no more intellectualism -from ,"The very people who are the problem". Sheesh what part of grass roots dont AEI understand.
Spyder308| 9.27.10 @ 2:10PM
What AEI would like is to have corporations send in Senators and Representatives to Congress directly.
Since corporations have all the same rights as people, even though corporations have no consciences, corporations should probably have representation in congress.
How is that for a dumb idea?
chester arthur| 9.27.10 @ 10:56AM
I'd lower the point at which congressional approval would be needed to $1 million.That's not much to a bureaucrat,but a healthy sum to the rest of us.The regualtory agencies are just a way for congress to do something unpopular and escape the blame at election time.CAFE standards kill,seat belt,toilet flush,and light bulb regulations are simply not the government's business,and the freon ban was clearly based on impossibly inept science.A nice start would be to cut regulatory agency budgets in half,and then start cutting by 5% a year until they become advisory panels rather than extra-legal rule makers.
Joanna | 6.6.11 @ 6:14AM
The time is definitely right for change.
UTI Treatment
Joanna | 6.6.11 @ 6:14AM
The time is definitely right for change.
UTI Treatment
Adult toys | 7.4.11 @ 3:38AM
To me, it's the least important thing in the world to be "politically correct".l like the space.support.
thank you.