Executive overreach in financial matters can produce bipartisan opposition. Civil forfeiture laws, especially, have produced massive windfalls for governments at the expense of people who often had only tangential connection to the associated crime. Stories of towns subsidized by speed traps and federal courts profiting from the publication of legal documents have elicited similar outrage.
All of these abuses look like a grab-bag of governmental heavy-handedness, but they are united in more than that: each one is also a violation of the separation of powers that once defined American government. In dividing governmental power among the executive, legislative, and judicial branches, the Constitution’s authors looked to keep any one office-holder from gaining unrestricted power. In doing so, they created a government that required supermajorities to do anything of importance, making it difficult to restrict the people’s liberty.
Some modern pundits regard the separation of powers as a useless relic, especially when one part of the government stands in the way of some law or program they want (see, for example, these screeds against it by Dylan Matthews and Matthew Yglesias). But attachment to the idea is not simply a matter of historical accuracy or fidelity to the Constitution as written; it is also among the most important means of preserving liberty.
As James Madison wrote in Federalist 47 (quoting Montesquieu’s “The Spirit of the Laws”), “There can be no liberty where the legislative and executive powers are united in the same person …[or] if the power of judging be not separated from the legislative and executive powers.” A free people, in Madison’s mind, requires a government of divided powers.
Civil Forfeiture Is a Prime Example
Consider one of the worst examples of undivided power in modern times: civil forfeiture. The practice, in which the state seizes and permanently retains property suspected to have been involved with a crime (a crime for which the owner has not yet been charged or convicted), has become common in police departments across the nation. As Scott Shackford wrote earlier this year, the public has started to become aware of civil forfeiture and, overwhelmingly, they do not like it.
Part of their objection likely stems from the low burden of proof required. When the state fines people because they committed a crime, the accused must first be convicted by a jury that believes them guilty beyond a reasonable doubt. With civil forfeiture, mere suspicion by police is sufficient. Most Americans would find such a system unjust on its face, even if a judge and jury were required to sign off on it.
But the problem goes deeper. In allowing police departments to not only seize but also retain the proceeds of civil forfeiture, the state severs the link between the legislature and the executive. The legislature is the branch of government most closely connected to the voters, being elected more frequently and from smaller districts than the executive elected state- or nationwide. The more the executive becomes self-funding, the less control the legislature has over it. Put more simply, an executive that does not need to ask the legislature for funds is one that does not need to ask the people for permission or respond to their concerns. Self-funding is self-rule.
The results are already apparent. While legislative appropriations are a matter of public record, how the proceeds of civil forfeiture are spent is often opaque. As the Institute for Justice noted in a recent report, “[m]ost jurisdictions lack any reporting requirements for forfeiture expenditures, and the limited data … provide very little insight into what law enforcement does with forfeiture funds.” Even when information is available, it is often unhelpful: 43 percent of the funds Pennsylvania seized, for example, were reported to have been spent on “other,” a category so broad as to be useless.
The source of the funds is similarly difficult to ascertain. When a legislature raises funds, it must consider the voting public’s opinion on equity. If they tax one group disproportionately, they risk raising the voters’ ire, or even running afoul of equal-protection guarantees. Funds raised by civil forfeiture have no such restrictions, and the executive alone chooses who gets stuck with the bill. It is perhaps unsurprising to note, therefore, that a 2015 American Civil Liberties Union report found that 53 percent of civil forfeitures in Montgomery County, Pennsylvania, were against black people (only 9 percent of the county is black).
The New Feudalism
Civil forfeiture may be the best-known method of extra-legislative funding, but it is not the only one. The fines generated from minor infractions of law often also go directly to the police department that issues them. The result is a system that rewards vigorous enforcement and punishes leniency and common sense policing.
This facet of law enforcement funding is not new. Sheriffs in medieval Britain were paid based on the “perquisites of justice,” i.e., fees ordinary people paid them to perform their duties. More fees meant more pay. The system carried over to the United States, as well, as one man told historian John Kobler in describing Prohibition-era justice in Texas:
The old sheriff, Jess Robbins, and his deputies worked on a fee basis. The penalty for being drunk and disorderly was a fine of $17.80. The county got $2.80, the deputy who brought you in got $5, and Jess got $10.
In later decades, public authorities under the control of Robert Moses put a stranglehold on New York’s transportation funding for decades, collecting road and bridge tolls and spending them again without legislative input. In our own times, the practice remains common, as in this 2013 report from Augusta, Georgia, which noted that $2 from each traffic ticket issued went directly to the sheriffs’ retirement fund.
A system that was mildly unfair in those days becomes massively unjust in an age when the laws regulating people and property have drastically multiplied. With so many violations to choose from, police departments get to select the source of their funding. It is not shocking, therefore, when they choose to enforce laws most vigorously against those with the least power and wealth.
Abuses in the Judiciary
It is not only the executive that looks for independence from the legislature. In a May 2016 article for Wired, April Glaser reported that one part of the federal judiciary takes in nearly five times the revenue needed to sustain itself, and diverts the remainder to other purposes.
The system in question is PACER, a database of federal court documents. Anyone wanting access to a court record must pay ten cents per page, a price that would make sense for ordering paper copies, but for electronic documents is far too expensive. As Glaser wrote, “the Administrative Office [of the United States Courts] reported collecting $145 million in PACER fees, five years after projecting annual operating costs of less than $30 million.”
As in the executive branch abuses above, it is not easy to find out where exactly the excess money goes. According to the plaintiffs in a class-action lawsuit, some of the money went to courtroom infrastructure upgrades, even though the E-Government Act of 2002 only allows the judiciary to charge enough “to reimburse expenses in providing these services.” This is not a one-time abuse of an unexpected windfall: Wired took the judiciary to task for overcharging for PACER way back in 2009.
In 2014, Joseph Shapiro of NPR reported on similar abuses in state courts around the country. Half of the fines leveled in one Michigan county went directly to fund the judiciary: “Those costs include the salaries of court employees, for heat, telephones, copy machines and even to underwrite the cost of the county employees’ fitness gym.” Shapiro’s report focused on the problem of these costs, like those of civil forfeiture, falling disproportionately on the poor, but the lack of legislative oversight on a growing pot of the people’s money is just as troubling.
Both Sides Against the Middle
The danger from the Left is from those who want self-perpetuating government that functions independent of the people’s will. But there is also a danger on the Right, from those who want government to be “run like a business.” Presumptive Republican presidential nominee Donald Trump recently told reporters he would be happy to approve construction of the Keystone XL pipeline, as long as the federal government received “a piece of the profits.” Instead of taxing corporate profits, Trump thinks the state should use its muscle to take a piece of the business, like a mafioso demanding protection money. Earning profits in exchange for services rendered is a normal practice in private enterprise. In a government, it is extortion.
As government grows in scope and strength, so do opportunities for it to fleece the public through extra-legislative fees. The government’s role has changed since 1789, but it is more worthwhile than ever to examine the principles on which that government is based. Returning again to Madison and Montesquieu in Federalist 47, we can see what they thought would be the result of unchecked power being concentrated in one branch of government:
Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.
Madison and the other Founding Fathers knew that any government, no matter how noble its beginning, would eventually be controlled by people who wanted to aggregate their own power without the interference of the citizenry. What he did not count on is the willingness of one branch of that government, the legislature, to acquiesce in power grabs by the other two.
By letting the executive and judicial branches collect and appropriate funds, these state and federal legislators have abdicated the power of the purse, the power that the Revolutionary generation thought would make the legislature the most powerful branch. To regain that power, and to restore liberty in the areas of government in which it has been lost, they must take back their basic function and demand that no funds be dispersed except through the (comparatively) open and honest process of legislative appropriations. It’s time to end self-funding government.