‘Administrative state’ exists, but it's not a liberal conspiracy

Government is too complicated.

People dislike government that is remote, bureaucratic and burdensome. Some conservatives believe we live under “the administrative state,” many regulations are written by anonymous agency staff.

Is government under the control of bureaucrats who cannot be held politically accountable and probably have a liberal agenda?

An easier and more obvious explanation of why government seems to have become disconnected from average voters is that it results from the current legislative process. Members of Congress and state legislators empower bureaucrats by the laws they pass – or don’t pass.

Let’s say Congress, composed of the elected representatives of the American people, decides the government should do more to protect air quality. It passes a law expressing that intention, but leaves it to executive branch agencies to produce the regulations necessary to achieve the new law’s goal.

Because we believe that many issues are complicated and technical, legislators accept that they cannot deal with the details but must leave them to experts who will act in good faith to carry out legislative directives. They routinely ignore the possibility that a simple mandate would not need detailed rules.

Legislators can give voters the impression of being responsive to popular sentiment, while allowing the moneyed interests that support their campaigns the opportunity to influence the regulations. 

Action by major interests, represented by an army of lobbyists, may be the true lawmaking.

The most suspicious critics call rulemaking by civil servants and powerful interests “the deep state.” 

Unlike Congress, the regulatory process takes place outside of the public view.

The result is not a simple new law, but many complicated regulations, quite far from the original statute. The intent to improve air quality may be lost.

In the end, issues may end up in court where judges are asked to tell us what legislators meant. That’s why we now pay great attention to the political views of Supreme Court justices. They have been forced to legislate, because Congress has intentionally avoided making unambiguous statements of law.

President Trump last week announced action to cut back on the job protection of federal employees. It looks like an erosion of the non-political civil service, which may make it more vulnerable to political control.

Americans take pride in government employees who follow the law. They are supposed to act without pushing their own views or following directives of elected officials that violate the law’s intent. But the law may have allowed Trump to remove employees arbitrarily. His action may end up in court.

The new tax law requires too many rules. For example, it could have directly addressed how far states might go to work around the newly restricted deduction for property taxes. Instead, Congress left it to the states and the IRS to work it out.

The Federal Communication Commission decides on “net neutrality,” the system that prevents Internet search providers from charging more or providing less service to some consumers. The law should have made that determination without leaving any discretion to regulators.

Laws should not leave loose ends. Civil service laws, environmental protection and consumer financial safeguards should not be subject to change by the will of executive branch officers or powerful interests.

Congress needs to make clear and simple policy decisions and to ensure that their meaning does not depend on who is applying the law. That requires legislators to be more hands-on rather than passing responsibility on to bureaucrats.

Incomplete lawmaking happens at the state level as well, though for different reasons. The fact that Mainers will use ranked choice voting in June while at the same time deciding if they want to suspend it pending constitutional action reflects the failure of the Legislature to make a simple and clear decision.

Proponents of referendums and bond issues seem to believe that the governor will follow the popular will and not his personal views. They continue to propose bonds without stripping away his discretion to refuse to issue them. Similarly, voters pass Medicaid expansion, but the proposed bill lacks funding.

The political problem with seeking legislative clarity is that legislators may more readily be held responsible when voters understand their actions. That’s a risk of leadership.

Popular confidence in government could grow if legislators chose to make the laws more simple and clear. If problems arise in the application of the law, they can be fixed by legislators, not by courts.

The “administrative state,” though not a liberal conspiracy, is a real threat. To halt its growth, Congress and state legislators must take more responsibility.

Can any constitutional right be ‘absolute’? How about the Second Amendment?

I support the Second Amendment.

Despite what you may hear, almost everyone does.

That’s because it is part of the Constitution, and it would be hard to find any American who does not support the Constitution. It contains seven original articles and 27 amendments, and virtually every American supports all still in effect – including the Second Amendment.

Just because you support the Constitution may not mean that you like all of it. The Fifteenth Amendment, adopted in 1870, supposedly assured voting rights for African Americans. Because of opposition in some states, that right did not begin to take full effect until 1965.

Though bound by the Constitution, some states refused to apply it for about a century. There’s little sign that people who favor background checks on gun purchasers would say the Second Amendment should simply be nullified under state laws, as was the Fifteenth.

Are there any movements to repeal parts of the Constitution? Yes, there are people now ardently advocating repeal of a part of the Fourteenth Amendment giving American citizenship to any person born within the boundaries of the United States. They oppose citizenship for such children if their parents are illegal or undocumented immigrants.

But it is much harder to find similar groups devoting their efforts as actively to repealing or even amending the Second Amendment. Even people who are unhappy with the Supreme Court decision on firearms have accepted it.

So why do some politicians and gun organizations attack those favoring limits as not supporting the Second Amendment?

In 2008, the Supreme Court ruled in favor of people’s right to own and use guns. The decision was written by the late Justice Scalia, a conservative judge. It overruled a District of Columbia law that could undermine that right even in your own home.

The Court said, “Like most rights, the right secured by the Second Amendment is not unlimited.”

In the decision, Scalia wrote for the Court that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws impos ing conditions and qualifications on the commercial sale of arms.”

The decision also confirmed the government’s right to control “dangerous and unusual weapons.”

Gun control opponents, while applauding the Court’s ruling on firearm ownership and use, disagree. They believe that the Second Amendment, unlike other constitutional rights, guarantees an “absolute” right on which no limits may be placed.

The argument about whether you support the Second Amendment turns on this point.

Without much evidence, “absolute” gun supporters charge that those favoring limits want to repeal the Second Amendment and would start by requiring background checks on purchasers. Simply because they propose any limits, they are supposedly on the slippery slope to outright repeal.

Absolutists may worry about what followed the Supreme Court ruling that women may have abortions. Some state governments disagree, and they have created increasingly restrictive ways to reduce or eliminate abortions through limits clearly intended to overrule the Supreme Court decision.

After mass shootings of innocent people, defenders of an absolute Second Amendment argue against new limits, claiming we should focus exclusively on the shooters and not place any obstacles on their easy access to guns.

Can we reasonably expect to identify in advance every mentally ill or deeply disturbed person in a country of 320 million people? Impossible. So access to guns, which can be used to quickly kill groups of people, might be made a little more difficult.

 

The issue could be seen as a conflict between the right to “life, liberty and the pursuit of happiness” for ourselves and our children, promised by the Declaration of Independence, and the Second Amendment right to “keep and bear arms.”

Which right would come closer to being absolute? Must we accept the killing of school children, followed only by routine and pious expressions of official sympathy, because the Second Amendment cannot be subject to any limits?

We cannot ignore the Constitution, including the Second Amendment, and remain “united.” But, as a civilized people, we should not ignore the increasing plight of innocent school children shot down by killers with easy access to guns.

The obvious answer in the vast and diverse American democracy must be compromise, which would involve some limits, at least including full-scale background checks, but not repeal.

I support the Second Amendment. But I cannot accept that it is the Constitution’s only absolute, unlimited right.

Conservatives, liberals issue joint warning: extreme populists threaten majority rule

When leading conservatives and liberals agree on what’s wrong in the country, it’s worth paying attention.

The American Enterprise Institute, which produces conservative policy proposals, and the Center for American Progress, which plays the same role for liberals, announce they “disagree vigorously” on policy, but have agreed on a jointly published report on American society.    

They find we’re in serious trouble.  The problem is the threat of what they call “authoritarian populism.” 

Populism has a long history of average people standing up to the elites, who try to run the country.  But when populists believe they have the right to ignore democracy’s majority rule, they become “authoritarian.” 

People claiming to be “the true voice of the people” assert they can overrule the majority, threatening the “domestic tranquility” that the Constitution promises.

The report identifies three causes of the country’s populism problem:  (1) political division and unresponsive government, (2) economic inequality and (3) cultural differences and racism.

Many people find that government does not produce the change they want and many candidates have promised.  Trust in government has declined. Younger and low-income people vote much less than do older people who retain some confidence in government.

Elites dominate the political process through their campaign and lobbying spending.  Organizations representing business account for 72 percent of lobbying spending, while labor unions spend one percent of the total.  The benefits to business come at a cost to average people, the report notes.

Politicians play to their core constituencies, meaning they are less likely to compromise with those on the other side.  Politics is more about getting re-elected than about good government.  The result is that government produces fewer results, disappointing hopes for change and building distrust. 

On the economy, the report suggests that discontent arises more from belief that the system is rigged against average people than from the wealth gap between the top managers and their employees.

For example, after the Great Recession a decade ago, banks got big bailouts rather than average people.  And few bankers were punished for contributing to the economic crisis. 

Increased productivity and outsourcing to lower income countries cost jobs.  These days, the federal government tries to counter these trends by trying to go backwards.  Better trained workers are needed, but good programs are often lacking.  At the same time, the best educations go to the children of the elite. 

The effects of this real gap between need for skilled workers and the lack of adequate training can be seen in the number of men of prime working age who are unemployed.  The level is about the same as in 1940, at the end of the Great Depression.  This leads to “anger and frustration.”

Militant populism sees the elites favoring African-Americans, immigrants and Muslims.   By the middle of this century, the majority of Americans will not be white.  Politicians, including Donald Trump, “exploit anxieties related to such demographic change.”  

 

To be fair, some may feel that change is taking place more rapidly than they can accept, but mistakenly believe it can be halted or reversed.

“The Trump campaign took advantage of anxieties around immigration, race, and Islam, leaning into white identity politics with explicitly racist appeals,” according to the report. Though the issues are not identical, the same sentiments have arisen in Europe.  Dissident views on race and culture are troublesome when linked with political and economic discontent.

The two organizations want solutions, not just “a tepid middle-of-the-road agreement.” 

The political parties must undergo realignment.  Their present and future supporters expect them to become more responsive to today’s issues and less tied to their traditional and sometimes outmoded or irrelevant platforms.

That means politics should accept some of the arguments of traditional populism.  Average people have some reasonable concerns about political control by affluent elites, promoting their own interests.  The “establishment” will have to give some ground to “outsiders.”   See Bernie Sanders.

One form of “radicalism” that’s justified is more vigorous pursuit of corruption, nailing politicians and corporate cheaters.  When people see strong action, it satisfies some of their populist instincts.

Finally, the two organizations urge a “new affirmative patriotism.”   It could appeal to both conservatives and liberals who share “deep suspicion of America’s overseas military actions; alarm about the rise of a surveillance state; mistrust of major institutions; and suspicion of global elites.”

As chief of state, the president of the United States should provide unifying patriotic leadership.  So long as President Trump limits his role only to leading his own political movement, he allows and encourages the wrong kind of populism.

Does Billionaire Buffett put profit over principle?

When you’re called “the Oracle of Omaha,” ranked as one of the wealthiest people in the world, and speak with a kind of folksy directness, people listen.

That’s Warren Buffett, the head of Berkshire Hathaway, the huge investment company that seems to operate as a personal extension of the man.

Last week, the firm held its annual shareholders’ meeting in Nebraska, where it is headquartered, and tens of thousands of people attended. The meeting, recalling the hippy gathering decades earlier, is known as the “Woodstock of Capitalism.”

They listened to Buffett answer questions for about five hours, an appearance unlike that of any other corporate leader.

He was asked about his attitude to the tax cuts passed by Congress. He is well known for opposing tax reduction, especially for the wealthy. He complains that his tax rate is less than his secretary’s and generally supports Democrats.

But Buffett had warm words for the Republican tax overhaul. Why? It’s aimed at helping corporations and Berkshire Hathaway more than most.

He said that he does not mix his personal and professional views. He willingly discusses his thoughts on tax cuts, but as the keeper of shareholder interests, he supports tax measures that boost profits, in his company’s case by tens of billions of dollars.

Under the U.S. free enterprise system, profits are the reward investors receive for the risk they take in backing corporations. If the outfit is well run – Buffett is a star at Berkshire – they may expect to see profits boom. His investors are well rewarded.

Buffett made clear that he sees his responsibility as gaining profits for today’s investors. Thanks to his success, investors expect more of the same in the future. But that means Buffett won’t endanger their investment return for his view of taxes, even if he believes tax cutting is contrary to the national interest.

His views echo much of the Trump administration’s economic policy. Across the government, from taxes to the environment to banking, the administration favors corporate interests over policies to fight poverty or climate change or to protect borrowers.

Take environmental policy. President Trump pulled the U.S. out of the Paris climate accord because American participation might limit the use of fossil fuels, especially coal. Companies engaged in extracting and processing these fuels are the chief beneficiaries of his move. Their short-term interest is profits.

When a shareholder raised environmental issues at the Berkshire meeting, Charlie Munger, Buffett’s sidekick, feigned falling asleep. You cannot produce good profits, it seems, if you worry too much about air quality.

Any harmful effects of Trump’s environmental policy are simply denied or delayed, while profit gains may come before the next election. If your constituents are corporate operators, you favor them now and don’t allow views of the long-term effect of climate change to influence your policies.

Though Buffett buys and holds his investments in the belief they will remain profitable for years, Trump does not take the long view. It matters little that coal is fading as it gives way to natural gas and renewable energy, if it can provide an immediate and politically profitable boost.

At least one analyst has pointed out that the Trump policy is not market oriented so much as business oriented. Promoting coal undercuts increased economic efficiency, which is what the market should produce. Helping coal is only about immediate profit and the false promise of retaining jobs in a dying industry.

The effort to promote business over the individual’s interest runs through Trump policy. The tax bill has given the false impression of cuts for average taxpayers. Their withholding has been lowered in hopes of influencing their votes in November.

But next April, when the expected tax refunds for many don’t materialize, they will learn the hard way about short-term fixes. Far greater corporate tax benefits will continue.

The soundness of the banking system, the level playing field of the Internet, and the protection of the shoreline are all being sacrificed to business interests. That’s all right, in theory, because booming business should add jobs, though unemployment is now about as low as it can get.

Buffett is a chronic optimist. He believes the U.S. will survive and flourish, because it always has. He notes the country survived the Civil War. Tell that to people who suffered under Jim Crow laws for another century after the war ended.

Buffett divorces his personal integrity from investment decisions. For a man who invests for the long run, that approach seems to be short-sighted.

Privacy, security, truth vulnerable -- but here’s an answer

You leave your home, get in your car and drive off to shop, go to the bank and say hello to a friend.

As usual, in the rear view mirror, you see a car following you.  It’s not the same car every day, but one’s always there.  The vehicle never comes close, and the driver never tries to talk with you.  But, when you stop, he or she stops, always taking notes.  It’s a bit unnerving.

That really doesn’t happen, at least that you’re aware of.  Not in the world you can see.  But in the invisible world, it is happening all the time.  You are being followed, and some people know almost everything about you. 

What you read, what you write and what you buy, even your political views, can be accessed by corporate and political data collectors or lone hackers.

The explosion of the Internet to allow for massive, personal communication and greater commerce has transformed the world.  Believing in the anonymity provided by huge numbers using social media, many have abandoned their privacy.  Undisciplined use of social media destroys privacy.

While this cannot be undone, it can be slowed. The best way to protect privacy and prevent misuse of the Internet is for individuals to actively protect as much of their privacy as they would like to keep. 

A single tool can increase privacy and also improve security and drastically reduce “fake news.”  Paper.

Privacy begins with communication.  A snail-mail letter goes only to the intended recipient not as a “Reply to All” message.  Because it takes more effort than email or texting, we can think more carefully as we write.  Usually, nobody, except law enforcement, can know what’s in the envelope.

Right now, many people blindly trust billing.  Instead of refusing printed receipts, we should ask for them and review monthly statements from banks and credit card companies.  Look at the Central Maine Power billing investigation, though it only occurred when bills skyrocketed.

Along the same lines, people would do well to obtain and keep bills, statements and tax returns.  They are hard-copy records of their financial lives, not entirely dependent on data stored on remote computers and accessible only through the Internet.

The ‘cloud” in which one can store personal data on a distant computer is a useful idea, but can anyone say with absolute certainty that their information is secure from prying eyes or tampering?  At least, we should print out the most essential records.

Some people remember paper’s value.  While checks are giving way to electronic wallets and transfers, their rate of decline has markedly slowed.

Using checks could even affect retail prices.  Merchants don’t pay for accepting checks, but their credit card charges involve bank fees.  If their costs are lower, some merchants might share the savings. 

How vulnerable is your electric service?  The federal government has reported that Russian hackers have already been able to penetrate some parts of the electric grid.  They could greatly disrupt the economy if they closed down a major part of it.

The electric transmission system was operated for decades using printed manuals.  While it did not work as well as it does today, it still could be operated by people flipping switches.  The problem is that operating manuals have been discarded. Bring back the paper manuals and test operations by the book once a year.

But there’s an even bigger role for paper.  Your vote, even if counted electronically, should be cast on a hand-marked paper ballot. If the Russians undermined electronic tabulation, printed ballots that could be counted manually as a backup. 

By the way, when outsiders try to influence an election by false reports spread over social media, there’s even a paper solution for that.  The newspaper you may now be holding or the verifiable electronic version of it cannot be used by a hacker in China or Russia to lead voters astray.

Russian tampering in the 2016 elections depended mainly on use of the social media, which were never intended to be reliable news sources.  Newspaper reports, subject to review by editors, and clearly identified opinion, like this column, can block freelancing by foreigners. Fact-checking, done by some papers to rebut fake news, also helps.

The electronic age is like the rising tide.  It cannot and should not be stopped.  But it is not a replacement for old-fashioned paper.

The hard copy in our own possession is the best way to maintain privacy, promote security and keep informed.   That’s worth some extra effort on our part.