How To Revive Federalism: By ‘Saving Congress From Itself’

How To Revive Federalism: By ‘Saving Congress From Itself’

In a new book, ‘Saving Congress From Itself,’ James Buckley points out a simple fix that can make a big difference in helping restore American self-government.
Michael Rosen
By

Saving Congress from Itself: Emancipating the States and Empowering Their People,” by James L. Buckley. Encounter Books (December 2014), $19.99.

At 91, James L. Buckley is arguably the only living American who can articulate on the basis of his own biography a coherent argument about the proper political and legal limits of federal and state government.

Buckley, the younger brother of conservative legend William F. Buckley, is one of a handful of Americans who have served at the highest levels of the legislative, executive, and judicial branches.

Elected to the U.S. Senate in 1970 on the Republican and Conservative Party tickets, Buckley served a single term, after which he joined the Reagan administration as an undersecretary of state and later joined the bench of the venerable U.S. Court of Appeals for the D.C. Circuit.

Indeed, “Saving Congress from Itself,” Buckley’s taut brief for ending federal grants to the states, draws on his “experience as a United States Senator who has some knowledge of the temptations faced by elected officials, and as a federal appellate judge who has had to deal with the costly litigation that opaque regulations can generate.”

In the book, Buckley proposes a straightforward plan that would “result in a major reduction in federal spending while freeing Congress to focus on the critical national issues that are its unique responsibility.”

The central problem he examines concerns the federal government’s costly, inefficient, and democracy-eroding tendency to shoulder local burdens it’s just not competent to handle. “Congress’s current dysfunction,” Buckley writes, “is rooted in its assumption, over the years, of more responsibilities than it can handle…Its members now live a treadmill existence that no longer allows them time to study, learn, and think things through. Instead, they substitute political reflex for thought.”

Focusing Congress’s Attention by Limiting Its Power

It was not always thus. At one point in the not-too-distant past, Congress considered its constitutional authority limited to matters of “general,” that is, national, importance. Buckley plumbs the depths of the legal dispute, which originated in the Constitution’s enumerated powers, in its “general Welfare” clause, and in the Tenth Amendment.

These stricter notions of the ‘general Welfare’ gave way to the contemporary interpretation of the term to mean, colloquially, ‘anything generally good for any Americans.’

At its most basic, the Constitution in Article I, Section 8 expressly assigns certain limited powers to Congress in furtherance of the “general Welfare.” These include the powers to: tax and borrow, establish naturalization rules, coin money, punish piracy, declare war, raise armies, and regulate interstate and international commerce. Meanwhile, the Tenth Amendment “reserve[s] to the States” any powers not delegated to the federal government.

In 1822, President James Monroe vetoed a road repair bill he deemed unconstitutional because Congress’s power to spend was properly limited “to purposes of common defense and of general, not local, national, not State, benefit.”

But gradually, these stricter notions of the “general Welfare” gave way, especially amidst the New Deal, to the contemporary interpretation of the term to mean, colloquially, “anything generally good for any Americans.”

Alas, that understanding of “the general Welfare” has become as unquestioned as it is absurd. “If the spending power is to be limited only by Congress’ notion of the general welfare,” Supreme Court Justice Sandra Day O’Connor wrote in a 1987 dissent, “the Spending Clause gives power to the Congress…to become a parliament of the whole people, subject to no restrictions save such as are self-imposed. This was not the Framers’ plan, and it is not the meaning of the Spending Clause.” Sadly, her brethren disagreed.

Federal Grants Are Ruining Federalism

But so what? Shouldn’t Congress provide for all Americans? Buckley spends the bulk of this elegant, slim volume illuminating the three key problems with federal grants to states: they’re expensive, they’re inefficient, and they’re corrosive.

The three key problems with federal grants to states: they’re expensive, they’re inefficient, and they’re corrosive.

First, expense. Buckley reckons that grants-in-aid cost the federal government $700 billion annually: an estimated $641 billion in direct costs in FY2015, plus another $60 billion in federal administrative costs. States, counties, and municipalities also shoulder the financial and operational burdens of implementing the grants, which include navigating the vicissitudes of outdated federal regulations, such as the “locally prevailing wage” requirements of the 1931 Davis-Bacon Act, and expending untold sums on lobbying at the federal level.

Second, efficiency. Federal funding enables states and their subdivisions to externalize the costs of the various programs, and thus spend “other people’s money” in improvident ways. Grants-in-aid incentivize overspending in the same way a per-diem spurs a traveling employee to “use it or lose it.”

By contrast, when the U.S. Department of Health and Human Services recently capped its contributions to Rhode Island’s Medicaid program, and liberated the state from some of the more onerous Medicaid regulations, costs actually declined, as did emergency room utilization and appointment wait-times.

Finally, and most importantly, corrosion. “One of the most insidious aspects of grants-in-aid programs,” Buckley explains, “is the diffusion of responsibility that makes them so attractive to federal and state officials alike.” The federal government’s offer of, say, a $100 million contribution to an infrastructure project is often enough to tip the scales that state officials use to assess the project’s worthiness—and, by extension, to channel state money away from more pressing (albeit relatively more expensive) concerns not deserving of federal attention.

State officials lose their connection to their constituents the more they become administrators of federal regulations.

For instance, he highlights his native Connecticut’s construction of a 9.4-mile dedicated “busway” of minimal utility, secured by $459 million in federal funds and only $113 million in state monies. He also cites his own senatorial experience and quotes a 1992 Supreme Court holding that “accountability is thus diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not pre-empted by federal regulation.”

Worst of all, state officials lose their connection to their constituents the more they become administrators of federal regulations, and states cease to serve as laboratories for democracy the more uniform those strictures become. “The surest way to kill state initiatives,” Buckley writes, “is to impose federal regulatory straitjackets on them.”

Who Will Spearhead This Reform?

Buckley’s proposed solution is simple: immediately terminate all federal programs offering grants to states, counties, and cities, and replace them with block grants to states that would taper off over several years.

It’s true that a handful of lawmakers who embody Buckleyite ideals of restraint might take up his call.

While he predicts this scheme will “appall the political establishment and the private interests that benefit from grants-in-aid programs”—witness, for instance, the chattering class’s furious denunciation of House Budget Committee Chairman Paul Ryan’s proposal to block-grant Medicaid—Buckley reasons that “Americans across the political spectrum will be able to embrace my reform both as taxpayers and citizens.” (Buckley also appends some clever arguments for term limits and campaign finance reform; he was, after all, the lead plaintiff in the landmark 1976 Supreme Court case Buckley v. Valeo.)

It’s true that a handful of lawmakers who embody Buckleyite ideals of restraint might take up his call. Unfortunately, those happy few either, like Michigan Rep. Justin Amash, lack any serious national following or, like former Oklahoma Sen. Tom Coburn, recently threw in the towel.

“Under the Constitution, the federal government’s sole purpose is to protect our liberty, not provide us things,” Amash wrote in a 2013 op-ed. “The government protects liberty by defending the nation from foreign attack, maintaining open trade among the states and foreign nations, and pursuing a few other limited functions.”

In fact, Amash went on to observe, “this limited role for the federal government takes courage to embrace. It is easier to keep providing things—using other people’s money and incurring large debts. But that is not what the Constitution allows, and it is not what works. Providing things, where necessary, is for local governments, religious institutions, charities, families, and friends.”

Coburn, too, proved to be a bipartisan side-thorn, stinging big-government Democrats and earmarking Republicans alike. “To those of you through the years whom I have offended, I truly apologize,” Coburn said during his farewell address in November. “I believe the enumerated powers meant something,” he continued. “When I have offended, I believe it has been on the basis of my belief in Article I, Section 8.”

By and large, fiscal conservatives seem far more animated by sexier causes, like repealing or defunding Obamacare, or aim at financially fatter targets, like Medicare or Social Security reform.

Alas, there doesn’t seem to be a groundswell among supporters of either party—let alone in the Supreme Court—to restore the Section 8 limits to their proper place in our political order.

Sure, the 2012 GOP platform lamented the federal government’s unfortunate tendency to “perform functions that are better performed by the States” and declared that whether “legislation is a State or federal matter must be determined in accordance with the Tenth Amendment, in conjunction with Article I, Section 8.”

Specifically, it decried Medicaid as “simply too big and too flawed to be managed in its current condition from Washington” and instead, like Ryan, called for “block-granting the program to the States, providing the States with the flexibility to design programs that meet the needs of their low income citizens.”

And, yes, some bedrock originalist lawmakers like Sen. Mike Lee offer airplay to “the notion that the Constitution gives the federal government only limited, enumerated powers, while reserving all other powers to the states,” as Lee put it in “The Freedom Agenda,” his 2011 book exhorting passage of a balanced-budget constitutional amendment.

But by and large, fiscal conservatives seem far more animated by sexier causes, like repealing or defunding Obamacare, or aim at financially fatter targets, like Medicare or Social Security reform. So-called “process” issues like limitations on Article 1, Section 8 are more dull (Lee writes that he thought “voters would be bored” hearing about it), more complex (as Supreme Court jurisprudence has evinced), and less partisan (congressional Republicans, too, indulge the temptation to reward their constituents with local funding), and therefore much less of a focus for policymakers.

Buckley appears to recognize the challenges his proposal will confront, acknowledging that it would “deny members of Congress their easiest paths to reelection, threaten the jobs of the thousands of employees of the federal agencies and bureaus that oversee the programs, deprive governors and mayors of their readiest access to funds they don’t have to raise from their own taxpayers, and distress the hordes of special interests that rely on the programs.” (Is that all?) In an August interview with the Wall Street Journal’s James Taranto, the author pegged his odds of success at “one chance in two million.”

Yet as Buckley has convincingly shown both in this book and throughout his legislative, executive, and judicial career, renewed attention to the state-federal line is urgently needed. One can only hope lawmakers as courageous as he will heed his call.

Michael M. Rosen is an attorney and writer in Israel and an adjunct fellow at the American Enterprise Institute. Reach him at [email protected]

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