THE LEGISLATION GAME
Attorney Jonathan Emord
March 1, 2010
Drafting legislation to expand federal power has become a popular sport in Washington. It is no longer necessary for a member to have proof of a genuine problem, problems can be declared even without proof of their existence or upon the prediction that they will soon be upon us. Fiction is just as good a basis for drafting legislation as fact, or so most members who play the legislation game see it.
The way it works is simple. If you are a member of the House of Representatives or the Senate, you receive a steady stream of lobbyists into your office weekly. Or, if you are particularly anxious to build a new constituency, you can simply contact a leading figure and invite them in to see you. Most often, however, members just sit and wait because soon folks will come knocking. You then decide which of those visiting has the greatest money to give to you or the greatest popular pull or, preferably, both.
You then have your staff meet with the folks who come to visit first (no politician likes to tell constituents that a solution does not exist for their problems). The staff consists of young college age kids, often on unpaid or low paid internships, who usually have very little idea about the world beyond their interest in coming to Washington, D.C. for a semester or two. These kids listen often to professionals, lobbyists and lawyers and executives who call for regulation. Most often they call for regulation to protect their own economic interests but say it is for a public good.
The staff then assembles a brief for the member. The chief of staff edits it and summarizes it. The member reads the thing (or not) but decides which of the issues to champion. The member is often not much more savvy when it comes to American history, the Constitution, or the law than his interns, and is often more interested in securing re-election and campaign contributions than doing anything for anyone else. So as the member listens to the briefing, he is variously musing: If I help these people will they give me money? If I help these people will I be able to crow about doing something that I know will bring me money and support? If I help these people will it offend any of those who give me money now or who support me?
Then after the briefing the member may say, okay, let’s draft the bill. Does he then draft it? No, not ordinarily. Often the party seeking the bill already has it drafted for him. He then takes the bill, submits it to legislative counsel working for the House and Senate, and they translate it into a final bill with the member’s name on it. The member may then circulate it among colleagues for them to sign onto it.
The member may then introduce it on the floor of the House or Senate and issue press releases, crowing about his or her effort to stem some perceived or trumped up horror. The constituent group likewise crows about the member. The media covers it, particularly the local media. The member gets new campaign contributions. The member gets a new constituency to shore up his or her chance for re-election.
The bill gets assigned to a committee where it usually dies. The member ordinarily knows that will happen. He still gets credit for the bill from the special interest groups and can tell those groups that they must marshal support for the measure. He may give it little or no support himself, signaling to colleagues that he really does not care, or he may try to drive it through. The degree of action on his part is rarely seen by constituents unless they are big concerns with a lobbying presence on the Hill. Then, if he has introduced the measure he has to appear supportive of it, or they will lose faith in him and move to another “champion” to move the legislation through the Congress.
This is democracy. The problem with the present state of it is that there is no brake to stop the advance of government as there once was. Constitutional doctrines that used to block government growth have largely been eschewed to let government grow. So if the law will destroy businesses, put people out of work, or cause an agency of the government to violate life, liberty, or property rights, it marches on nevertheless.
Now very few bills ever pass the House or the Senate and fewer still do without significant amendment. But modern bill making involves amendments that often place onto a popular bill far less popular special interest measures. The effect is to create a train with a significant upfront engine that the public clamors for and many often shabby cars linked on behind that select special interests desire.
In the absence of constitutional scruples, respect for rights to life, liberty, and property, and appreciation for the need for separation of powers, modern law making moves government in the direction of ever greater control over all private affairs. Bit by bit, day by day new laws and the thousands of regulations promulgated under them by the agencies eat away at liberty until there is nothing left but the crumbs.
The great weight of this movement toward relying on federal law to resolve every problem, to advance every interest, and to satisfy every demand is to bring under the monopoly control of the state the myriad of things that used to function privately. To say that this is a constitutional dereliction of duty is to put it mildly. This is a rejection of a limited federal republic in favor of a government of unlimited powers. Because those powers are vested principally in the unelected federal bureaucracy, it is a rejection of a limited federal republic in favor of an unlimited bureaucratic oligarchy.
We may rightly view almost all federal legislation as the nemesis of liberty. As lawmaking becomes more commonplace, liberty becomes scarcer. We spend more of our time not working for others but working for the state. The effect is to transform each of us into a public servant. The result is to politicize everything private.
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It should come as no surprise to us, then, that almost every major industry maintains an army of lobbyists in Washington who pursue legislative initiatives to protect market leaders from competition. This is the legislation game and so long as most members of Congress play it there will be those who join in the game. Those who play benefit; the rest of us suffer, and our Constitution of Liberty gives way to a Constitution of Tyranny.
© 2010 Jonathan W. Emord - All Rights Reserved