Free Government and the Rules of the Game

Richard Nixon was no paragon of public virtue. Still, when John F. Kennedy won the 1960 presidential election, probably on the basis of voter fraud in Illinois and Texas, Nixon refused to challenge the results. Nixon understood the good of the country required that candidates accept the results of less-than-perfect elections.

Chicago Mayor Richard M. Daley had manufactured enough votes to swing victory to Kennedy in Illinois and vice presidential candidate Lyndon Johnson did the same in Texas—and with them went the nation.

Even so, to challenge a national election on the basis of a relatively small, if strategically placed, amount of fraud could have been disastrous. A republic can’t survive for long if its people doubt their leaders gained power in a legitimate fashion. Fighting over the details—even when those details affect the outcome—would undermine the political system and free government.

Al Gore was no Richard Nixon. In 2000, when some questionable vote tallies (or “hanging chads”) showed up in Florida, Gore sought to claim victory there and, with it, the nation. He called in the lawyers. Only a split Supreme Court decision stopped Gore from re-running the election before a hyperpartisan state supreme court that had already begun to pervert Florida’s state constitution in service of a Gore victory.

And now we live in the midst of Democrats’ (and some Republicans’) ardent refusal to accept the legitimacy of Donald Trump’s presidency. There was no pro-Trump voter fraud, of course, only debunked claims of “collusion” and loud disapproval of the character and policies of the victorious candidate and his supporters.

Nevertheless, the anti-Trump “resistance” has been strident and persistent, endlessly “investigating,” demanding impeachment, and obstructing legislative initiatives and presidential appointments alike.

Checks and Balances Are Not Enough
I merely note in passing the hypocrisy here. People who accused President Trump of being a poor sport and were sure he would refuse to accept an electoral loss have constructed their own alternative universe of Trumpian illegitimacy, justifying selfish and destructive conduct on a massive scale. But the more frightening story lies deeper, in the widespread breakdown of public morals that brought us to this point.

By “public morals,” I mean nothing so pedestrian as sexual conduct but, rather, loyalty to our constitutional order. The bar is not terribly high here (even Nixon had managed it, after all). But, as James Madison wrote in defending the Constitution, a people must have “sufficient virtue for self-government” or the only thing to keep them from “destroying and devouring one another” will be “the chains of despotism.” The more powerful the person, the more dangerous the loss of virtue will be.

Our constitutional system provides all kinds of incentives for members of Congress and others to follow the rules of the game by accepting elections, discouraging electoral violence, negotiating in good faith, and, most importantly, upholding the basic duties of their offices.

But checks and balances are not enough; a certain amount of public morality is needed, too. In a system where ambition counteracts ambition there must be an internal check on that ambition, a recognition shared by all parties that each of us must respect the rules, even if that means we lose an election or policy dispute, so that our civil social order can survive.

Power Plays
Sadly, America’s loss of public morals has taken place over many years, largely unnoticed, and corrupted our very understanding of what public morality demands.

We’ve heard a great deal since 2018 about how President Trump is “undermining the Constitution” with his rhetoric and his pugnacious attitude toward congressional adversaries. And it is obvious to any constitutionalist that over the past century, the executive branch has gained far more power than the Framers of the Constitution intended.

But the main culprit in Congress’ loss of power has been Congress itself. The result has been a perverse set of incentives that undermine our constitutional order and encourage destructive behavior masquerading as public virtue.

Members of Congress “investigate,” which generally means grandstand, shout, and preen, because that is all they have left. They have given away their legislative power in exchange for permanent tenure of office, the glamor of television cameras and, with them, perhaps a shot someday at the White House.

As a result, the administrative agencies govern most of America most of the time. For the past 30 years, presidents have gone along with this arrangement, sometimes tinkering at its edges, sometimes wielding administrative power to “fundamentally transform” our society.

When Donald Trump threatened to blow up it up—or “drain the swamp”—leaders within the administrative state weaponized every institution they could, from the IRS to the FBI to the CIA, to stop him. And now the Democratic-held House of Representatives wants to use its own powers of oversight to achieve what the bureaucracy could not: eliminate an existential threat to the current, unconstitutional system of melded powers.

Make Congress Legislate Again
A bit of history is important here.

Beginning in the New Deal and accelerating exponentially with Lyndon Johnson’s “Great Society,” Congress ceased passing real laws, instead saying, in essence, “let there be clean air” and “let there be safe workplaces,” then leaving it to bureaucratic agencies to draft actual rules and regulations in place of actual laws.

Rather than work at writing legislation (and taking blame as well as praise for their handiwork) members for half a century have concentrated on legislating impossible goals, then “overseeing”—that is, criticizing, blaming, and blustering over—bureaucratic failures. Members have become media stars and some real corruption has been revealed, but the posturing has distracted Congress from its real job (legislating) and too often has turned politics into a vulgar circus.

It also has entrenched a system in which agencies enjoy ever-increasing budgets and authority so long as they keep members and their more powerful donors happy. Real electoral accountability has almost disappeared, and bureaucratic accountability is a sham in all but the most embarrassing circumstances.

From Filibuster Reform to Abuse
In the Senate, we can see how this system has broken down the customs that support public morality.

Our “greatest deliberative body” was designed to stop more legislation than it makes for the simple reason that a free country requires a limited government, in which only proposals that a large majority of the people’s representatives believe are in the public interest become law. This is why the Senate always has had supermajority requirements, usually embodied in the right to “filibuster” or block votes on a bill or other action, provided 40 members are willing to wait out a long set of speeches and arguments.

But the filibuster was turned into a farce decades ago. Ever since an ill-conceived “reform” in 1975, senators have been able to “filibuster” by simply saying the word. No longer do they have to stay on the floor, speechifying and doing without nourishment and bathroom breaks. Like legislation itself, there was no longer anything real or legitimate about the filibuster. Business goes on as vast national programs continue interfering with Americans’ lives, all while Senators posture and point fingers when they are not holding them up to the wind.

Members of both parties share the blame. The corrupt ideologue, former Senator Harry Reid of Nevada, and the politically malleable Republican Majority Leader Mitch McConnell (R-Ky.) both have put short-term victory above loyalty to the Constitution. And so the filibuster, “blue slips” regarding judicial appointments, and other customs meant to encourage reasoned discourse, whether slowly or quickly, are being undone. The result is a Senate that no longer fosters reasoned deliberation and consensus-building. Instead, like the House, the Senate is a collection of posturing hecklers pretending to govern.

Rebuilding the Bases for Public Morality
It would be wrong to say that our republic is in danger merely because of “bad people.” Politicians of all stripes for decades now have been working within a system of corrupt incentives. Having forgotten their true constitutional duties—to protect the public from foreign enemies and maintain peace among the people in their states and localities—public leaders have sought to provide all good things to all people. From economic security, to health, to happiness, the federal government now considers itself guardian of our well-being.

No government can provide these things. No politician can retain public morality if he or she tries. And no people can remain free if it tolerates the attempt.

If our Constitution is to survive, we must rebuild the bases for public morality. This means, first, bringing to account all those who weaponized the administrative state and those in Congress now protecting them.

More broadly, it requires re-establishing limited government. No Congress can write comprehensive legislation for a free country of more than 300 million people. Power must be handed back to the states and—more importantly—the people by requiring that members of Congress actually write any legislation that is applied to them, and that their legislation actually comport with the terms and intentions of the Constitution.

Congress must do a better job of doing less if we are to remain a self-governing people. The only other options are a loss of free government or a breakup of the republic itself.

Photo Credit: Getty Images

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