Political Order and Political Decay (76 page)

As an example, political scientist R. Shep Melnick has described the way that the federal courts rewrote Title VII of the 1964 Civil Rights Act, “turning a weak law focusing primarily on intentional discrimination into a bold mandate to compensate for past discrimination.” Instead of providing a federal bureaucracy with adequate enforcement power, “the key move of Republicans in the Senate … was to substantially privatize the prosecutorial function. They made private lawsuits the dominant mode of Title VII enforcement, creating an engine that would, in the years to come, produce levels of private enforcement litigation beyond their imagining.” Across the board, private enforcement cases grew from fewer than 100 per year in the late 1960s to 10,000 in the 1980s, and more than 22,000 by the late 1990s.
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Expenditures on lawyers increased sixfold during the same period. Not only did direct costs of litigation soar; costs were incurred due to the increasing slowness of the process and uncertainties as to outcomes.
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Thus conflicts that in Sweden and Japan would be solved by quiet consultations between interested parties through the bureaucracy are fought out through formal litigation in the American court system. This has a number of unfortunate consequences for public administration, leading to a process characterized, in the words of Sean Farhang, by “Uncertainty, procedural complexity, redundancy, lack of finality, high transaction costs.” By keeping enforcement out of the bureaucracy, it also makes the system far less accountable.
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In a European parliamentary system, a new rule or regulation promulgated by a bureaucracy is subject to scrutiny and debate, and can be changed through political action at the next election. In the United States, policy is made piecemeal in a highly specialized and therefore nontransparent process by judges who are often unelected and serve with lifetime tenure.

The explosion of opportunities for litigation gave access and therefore power to many formerly excluded groups, beginning with African Americans. For this reason, litigation and the right to sue has been jealously guarded by many on the progressive left. But it also entailed large costs in terms of the quality of public policy. Kagan illustrates this with the case of the dredging of Oakland Harbor. During the 1970s, the Port of Oakland initiated plans to dredge the harbor in anticipation of the new, larger classes of container ships that were then coming into service. The plan had to be approved by a host of governmental agencies including the Army Corps of Engineers, the Fish and Wildlife Service, the National Marine Fisheries Service, the EPA, and their counterparts in the state of California. A series of alternative plans for disposing of toxic materials dredged from the harbor were challenged in the courts, and each successive plan entailed prolonged delays and higher costs. The reaction of the EPA to these lawsuits was to retreat into a defensive crouch and not take action. The final plan to proceed with the dredging was not forthcoming until 1994, at an ultimate cost many times the original estimates.
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Examples like this can be found across the entire range of activities undertaken by the U.S. government. Many of the travails of the Forest Service described earlier can be attributed to the ways its judgments could be second-guessed through the court system. This had the effect of effectively bringing to a halt all logging on lands it and the Bureau of Land Management operated in the Pacific Northwest during the early 1990s, as a result of threats to the spotted owl under the Endangered Species Act.
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When used as an instrument of enforcement, the courts have morphed from constraints on government to mechanisms by which the scope of government has enormously expanded. For example, special education programs for handicapped and disabled children have mushroomed in size and cost since the mid-1970s due to an expansive mandate legislated by Congress in 1974. This mandate was built on earlier findings by federal district courts that special needs children had “rights,” which are much harder than mere interests to trade off against other goods or to subject to cost-benefit criteria. Congress, moreover, threw the interpretation of the mandate and its enforcement back into the lap of the courts, which are singularly poor institutions for operating within budget constraints or making complex political trade-offs. The result has been an increasing flow of limited education dollars going to special education in school districts around the country.
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The solution to this problem is not necessarily the one advocated by many American conservatives and libertarians, which is to simply eliminate regulation and close down bureaucracies. The ends that government is serving, like regulation of toxic wastes or environmental protection, are important ones that private markets will not pursue if left to their own devices. Conservatives often fail to see that it is the very distrust of government that leads the American system into a far less efficient court-based approach to regulation than that of democracies with stronger executive branches.

But American progressives and liberals are complicit in creating this system as well. They were equally distrustful of bureaucracies that had produced segregated school systems in the South, or that had been influenced by big business interests, and were happy to inject unelected judges into social policy making when legislators proved insufficiently supportive.

This decentralized, legalistic approach to administration then dovetails with the other notable feature of the American political system, its openness to the influence of interest groups. Interest groups get their way through their ability to use the court system to sue the government directly. But they have another, even more powerful channel that controls significantly more power and resources: the U.S. Congress.

 

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CONGRESS AND THE REPATRIMONIALIZATION OF AMERICAN POLITICS

How nineteenth-century clientelism has been replaced by interest group reciprocity; how interest groups affect the quality of public policies; whether interest groups are good or bad for democracy; repatrimonialization of the American state

American politics during most of the nineteenth century was, as we have seen, thoroughly clientelistic. Politicians mobilized voters to go to the polls by making promises of individualized benefits, sometimes in the form of small favors or outright cash payments, but most often through offers of jobs in government bureaucracies on a federal, state, and municipal level. This easy ability to distribute patronage had big spillover effects in terms of official corruption, in which political bosses and members of Congress would skim off benefits for themselves out of the resources they controlled.

These historical forms of clientelism and corruption were largely ended as a result of the civil service reform movement described in chapters 10 and 11, and it is safe to say that neither is the chief threat facing the American political system today. While each incoming administration makes more than four thousand political appointments in the federal government—far more than in any other advanced democracy—political parties are no longer in the business of the wholesale distribution of petty government offices to loyal supporters. There have of course been egregious cases of outright individual corruption, such as those leading to the convictions of California congressman Randy “Duke” Cunningham in 2006, and Illinois governor Rod Blagojevich in 2011. But rules against this type of corruption are extensive and strict, to the point where compliance with the government's voluminous disclosure and conflict of interest rules has become a deterrent to the willingness of many qualified people to serve.

RECIPROCAL ALTRUISM

Unfortunately, the trading of political influence for money has come back in a big way in American politics, this time in a form that is perfectly legal and much harder to eradicate. Criminalized bribery is narrowly defined in American law as a transaction in which a politician and a private party explicitly agree upon a specific quid pro quo exchange. What is not covered by the law is what biologists call reciprocal altruism, or what an anthropologist might label a gift exchange. In a relationship of reciprocal altruism, one person confers a benefit on another with no explicit expectation that it will immediately buy a return favor, unlike an impersonal market transaction. Indeed, if one gives someone a gift and then demands a gift in return, the recipient is likely to feel offended and refuse what is offered. In a gift exchange, the receiver incurs a moral obligation to the other party, and is then inclined at another time or place to return the favor. The law bans only the market transaction but not the exchange of favors, and that is what the American lobbying industry is built around.
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I argued earlier that kin selection and reciprocal altruism are the two natural modes of human sociability. They are not learned behaviors but are genetically encoded in our brains and emotions. A human being in any culture who receives a gift from another member of the community will feel a moral obligation to reciprocate. Early states were called patrimonial because they were regarded as the personal property of the ruler, who used his family or household, and friends—oftentimes the warriors who helped him conquer the territory in the first place—to staff his administration. Such states were built around these natural modes of sociability.

Modern states create strict rules and incentives to overcome the tendency to favor family and friends. These include civil service examinations, merit qualifications, conflict-of-interest rules, and antibribery and corruption laws. But the force of natural sociability is so strong that it keeps coming back, like the proverbial thief who, being blocked by a locked front door, tries the back door, windows, and basement crawl space.

It seems to me fair to say that the American state has been repatrimonialized in the second half of the twentieth century, much in the same way as the Chinese state in the Later Han Dynasty, or the Mamluk regime in the century prior to its defeat by the Ottomans, or the French state under the Old Regime. The rules today blocking overt nepotism are still strong enough to prevent this from being a common political transaction in American politics, though it is interesting to note how powerful the urge to form political dynasties is, with all of the Kennedys, Bushes, Clintons, and the like.

Reciprocal altruism, on the other hand, is rampant in Washington, D.C., and is the primary channel through which interest groups have succeeded in corrupting government. As legal scholar Lawrence Lessig points out, interest groups are able to influence members of Congress in perfectly legal ways simply by making donations and waiting for unspecified return favors. At other times it is the member of Congress who is initiating the gift exchange, favoring an interest group in the expectation that he or she will be rewarded down the line with campaign contributions. Often the exchange does not involve money. A congressperson attending a conference in a fancy resort on, say, derivatives regulation, will hear presentations on why the banking industry does not need to be regulated without hearing credible alternative arguments. The politician will be captured in this case not by money (though there is plenty of that to go around), but intellectually, since he or she will have only positive associations with the interest group's point of view.
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The explosion of interest groups and lobbying in Washington has been astonishing, with 175 registered lobbying firms in 1971 rising to 2,500 ten years later, and then to more than 12,000 registered lobbyists spending more than $3.2 billion by 2013.
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The distortive effects of this activity on American public policies can be seen in a host of areas, beginning with the tax code. Economists agree that all taxes potentially detract from the ability of markets to allocate resources efficiently, and the least inefficient types of taxation are those that are simple, uniform, and predictable, which allow businesses to plan and invest around them. The U.S. tax code is exactly the opposite. While nominal corporate tax rates in the United States are much higher than in other developed countries, very few American corporations actually pay taxes at that rate, because they have negotiated special exemptions and benefits for themselves.
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Of the old elites in France prior to the revolution, Alexis de Tocqueville said that they mistook privilege for liberty, that is, protection from state power that applied to themselves alone and not generally to all citizens. In the contemporary United States, elites speak the language of liberty but are perfectly happy to settle for privilege.

Some political scientists have argued that all of this money and activity have not resulted in measurable changes in policy along the lines desired by the lobbyists, implausible as this may seem given the sums readily invested in the process.
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Often, however, the goal of interest groups and lobbyists is not to stimulate new policies but to prevent outcomes unfavorable to themselves but in the public interest from ever seeing the light of day. In other cases, they make existing legislation much worse than it would otherwise be. The American legislative process has always been much more fragmented than in countries with parliamentary systems and disciplined parties. The welter of congressional committees with overlapping jurisdiction often produces multiple and conflicting mandates for action, like the “three separate proposals embodying radically different theories about the nature of the problem” that were embodied in the 1990 National Affordable Housing Act, or the multiplicity of mandated ways of enforcing the Clean Air Act. This decentralized legislative process produces incoherent laws and virtually invites involvement by interest groups which, if not powerful enough to shape overall legislation, can at least protect their specific interests.
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For example, Barack Obama's Affordable Care Act in 2010 turned into something of a monstrosity during the legislative process as a result of all the concessions and side payments that had to be made to interest groups, including doctors, insurance companies, and the pharmaceutical industry. The bill itself ran to nine hundred pages, which very few members of Congress were able to review in any detail. In other cases, interest groups have been able to block legislation harmful to their interests. The simplest and most effective response to the financial crisis of 2008–2009 and the hugely unpopular taxpayer bailouts of large banks would have been a law that put a hard cap on the size of financial institutions, or else dramatically raised capital requirements that would have had much the same effect.
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If such constraints existed, banks taking foolish risks could go bankrupt without triggering a systemic crisis and government bailout. Like the Depression-era Glass-Steagall Act, such a law could have been written on a few of sheets of paper. But this possibility was not seriously considered during the congressional deliberations on financial regulation. What emerged instead was the Wall Street Reform and Consumer Protection, or Dodd-Frank, Act, which, while better than no regulation at all, extended to hundreds of pages of legislation and mandated reams of further detailed rules that will impose huge costs on banks and consumers down the road. Rather than simply capping bank size, it creates a Financial Stability Oversight Council tasked with the enormous job of assessing and managing institutions deemed to pose systemic risks, which in the end will still not solve the problem of banks being too big to fail. Though no one will ever find a smoking gun linking bank campaign contributions to the votes of specific congressmen, it defies belief that the banking industry's legions of lobbyists did not have a major impact in preventing the simpler solution of simply breaking up the big banks or subjecting them to stringent capital requirements.
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