The budget process, and legislation in general, now functions by fostering clientelism, allocating alms to special interest groups.
The current budget reconciliation bill is a travesty of what was intended when Congress enacted the Congressional Budget Act of 1974, in the hope of limiting budget deficits and fostering surpluses—in the language of its preamble, “to assure effective congressional control over the budgetary process” and “to establish national budget priorities.”
Although misuse of the new procedure originally arose from its use to authorize tax cuts, it now has become a “log-rolling” device. The federal constitution, unlike those of many of the states, contains no provision limiting appropriation bills to a single subject or object, and the procedure has become a method not of limiting appropriations to revenues but of aggrandizing the size of government by creating new programs, many of which could not secure enactment on their own, even if they were exempt from the Senate filibuster rule.
In protesting the actions of Republicans in Congress in 2004, Senator Robert Byrd declared: “the majority party takes advantage of the limitations on amendment and debate allowed by the Budget Act to shelter controversial legislation from public discussion. I helped to craft the Budget Act of 1974 and I can tell Senators that we never contemplated that reconciliation would be used to shield from debate legislation that spends the Social Security surplus and increases deficits.”
The vice of this procedure is the aggravated clientelism it fosters. Legislation no longer fulfills the liberal ideal, espoused by Friedrich Hayek, of “uniform rules laid down in advance” and gaining their force from citizen activity in response to them; it now functions by allocating alms to special interest groups.
At one time, it was thought that it was wrong for Congress to allocate funds for use in particular localities or for the relief of particular individuals. It was thought that the national government lacked power to build roads except for military purposes. Although the early Democratic presidents regretted this lack of authority, they acknowledged it in a series of veto messages during the Jefferson, Madison, and Monroe administrations, culminating in President Jackson’s veto of the Maysville Road bill. Similarly, there was reluctance to make direct cash grants to individuals. Early rewards for veterans took the form of land grants requiring individual effort to exploit; even these were suspect, as was shown by President Buchanan’s veto of the original Homestead bill. The experience with veterans’ pensions after the Civil War, which exploded to be the major item in the national budget, led President Coolidge to forswear cash grants in relieving the Mississippi valley flood in the 1920s and to hostility toward veterans bonus payments by the Republican presidents of the 1920s and even by Franklin Roosevelt.
Inhibitions of this sort disappeared with the relief programs of the New Deal, partisan abuses of which gave rise to the Hatch Act. Increasingly, federal programs took the form not of acts uniformly addressed to all or wide classes of individuals—like the general corporation laws, the homestead acts, and the G.I. bill—but of appropriations and grants of wide discretionary powers to administrative agencies.
Although many of the New Deal programs expired with World War II and the return of prosperity, the Great Society programs of the 1960s more than took up the slack. I can recall an era in the late ’60s when a mid-level employee of a bank could rent an apartment directly opposite the Mayflower Hotel in Washington. Today, even a multi-millionaire would be hard-pressed to do so in an area filled a mile deep with office buildings of the maximum allowable height, filled with lobbyists and law firms. The sycophants of Washington have caused it to resemble nothing so much as the last days of the Court of Versailles.
These developments have been the product of massive congressional abdications of authority in favor of the federal executive. Since the president now commands wide discretionary authority to reward or punish particular geographical constituencies, the independent judgment of congressmen has been impaired.
The last significant challenge to this tendency was the unanimous invalidation in the Schechter case of 1935 of a statute authorizing the President to promulgate economic codes of conduct for all industries. This was, said the Court’s most liberal member, Justice Cardozo, “delegation run riot; no such plentitude of power is capable of transfer.”
The current reconciliation bill runs it close; the delegations in it are not in one easily focused on and invalidated section of the act, but in 15 or 20 sections of it. Under it, the federal executive, with little policy guidance, is given authority to erect whole new systems of preschool education, day care and elder care; to reconfigure the dental profession; and to make massive investments in housing, including reviving direct federal construction of the family housing developments that are the most spectacular features of inner-city slums.
The political regime it fosters and contemplates was that vividly described by the Cornell political scientist Theodore Lowi in his End of Liberalism, originally published in 1969: “a government that is unlimited in scope but formless in action, [that] can neither plan nor achieve justice because [interest-group] liberalism replaces planning with bargaining and creates a regime of policy without law, replac[ing] elected representatives with interest groups as proxies for citizen participation.”
The debate on the reconciliation bill has focused on raw numbers, not on the drastic policy changes it will foster in transferring primary responsibility for the care of the young and old from families to the national government and in destroying professional autonomy in several professions. The Biden administration is currently engaged in “buying off” the few declared Democratic opponents of these and other provisions of its bill, of which the public remains largely ignorant; thanks to past excesses, it has many tools with which to do so.
The education and housing portions of the proposal are equally bad: allowing a generation of college students to welsh on student loans; reviving federally-built low income projects like the deservedly demolished Pruitt-Igoe project in St. Louis in partial place of the voucher system introduced by Secretary Carla Hills in the Nixon administration; failing to provide tax incentives for accessory apartments; and providing money for public schools without the four necessary reforms—repeal of federal restraints on school discipline, a building-level board for each school, abolition of education-methods course requirements for high school teachers, and extra pay for teachers in scarce science, language, and special education disciplines.
Enactment of the reconciliation bill in some destructive form can be prevented only by educating the grass roots of its policy implications and in appealing to the Democratic senators and congressmen who are about to retire, and who are keeping their heads down, not to further destroy the influence and power of the legislature of which they are a part. The wide delegations and lack of care for subsidiarity in society are bad enough; worse still is a mechanism making possible creation of programs for which there is no popular or political majority through a device fostering linkages and blackmail.
George Liebmann is the president of the Library Company of the Baltimore Bar and the author of numerous works on law and politics, most recently Vox Clamantis In Deserto: An Iconoclast Looks At Four Failed Administrations.
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