The Myth of Legislative "Expertise"

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At election time, one often hears of the alleged benefits of incumbent Congressmen.

Challengers are questioned about their "experience."

As anyone knows from applying for and starting a new job, "experience" and "seniority" can be highly overrated.

Surprise, surprise — they are overrated features of incumbent politicians as well.

Consider the notions that an incumbent politician is an "expert"at writing laws, at "getting things done," or at possessing some sort of mystical "vision" of the finished product he will shape from the clump of wet clay that is the American body politic.

First, consider the myth of expertise with respect to drafting legislation, i.e. writing laws. To be blunt, this is an utter joke.

In law school, on the theory that I would learn the secrets of the trade, I took a class on Legislation. For that matter, I complained to the administration that the Legislation class was not being offered, and voila, it was offered (other people must have complained as well).

The class was billed as teaching law students how to: a) interpret laws, and b) write laws.

This might sound silly, but there are "canons of construction" in the law. These are basically general rules to figure out what a law means when the "experts" that wrote and passed it couldn’t be bothered to say what the hell it meant in plain English.

Of course, don’t think that this is all an accident. As my professor — did I mention he was a Democratic state legislator from Ohio? — explained, lobbyists frequently desire that laws which are proposed have vague, unclear language. The Democratic state senator from Ohio who appeared as a guest lecturer made this point as well. That way, no interest groups can really get upset, and trial lawyers can go to town filing lawsuits, since no one is quite sure what the law means.

Everybody wins!

Well, except people who actually expect the law, and the "public servants" who write and uphold the laws, to act for the good of the community and "solve problems."

News flash: politicians exist to get elected, reelected, and deified after death. Consider the media agonizing over "the search for the Clinton legacy." A legacy is a politician’s raison d’etre.

For the record, the semester before I took my Legislation class (which, like most of law school, was much like high school, only worse, because it was in law school, and one would think there would be more intellectual activity than in a high school), the same story of legislative "expertise" in obscure drafting was related in a graduate class called The Legislative Process which I took in the political science department at Case Western.

The difference, of course, was that the political science class involved actual reading of books that were worth reading, as opposed to the single, dated paperback we read to supplement the text book for Legislation. The paperback, The Dance of Legislation (even the title stunk), was the whiny reflections of an idealistic young leftist who worked on Capitol Hill for a short time. Predictably, it was nauseating.

Of course, the textbook, co-authored by Abner Mikva, who has served as counsel in the Clinton White House, a Congressman from Illinois, and as Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, was also nauseating in its state-worship and positivist legal philosophy.

For example, here is what Mikva writes about the Public Choice School (this passage was originally published in the University of Virginia Law Review):

I have known a lot of public people over the years. Some undoubtedly fit the cynical description of "rent-seekers," but most have not….What I am suggesting…is that the motivations of politicians are far too mixed to be understood through the generalizations that…public choice theorists formulate about political behaviour. Most of the public choice theorists have eschewed holding public office, running for public office, or even talking to politicians. It is hardly surprising, then, that their descriptions of public officers are so skewed…My chief objection to the use of the public choice analysis is that it claims to be scientific and therefore infallible. (pp. 23-24)

I myself am a proponent of the Austrian School of economics (although I am not an economist), and recognize that the Public Choice School has some useful insights, and makes some errors. Mikva’s argument, however, is extremely weak. First, he argues from his own experience, which, although extensive, is not determinative of the truth or falsity of Public Choice theories. Second, he makes the shocking argument that public choice "claims to be scientific and therefore infallible." The Public Choice writers may be annoying to the governing class, but I do not recall — nor does Mikva reference — any of them claiming to be infallible.

(As an aside, Mikva’s career demonstrates that not only is there a revolving door from government to lobbying, there is a revolving door between the three branches of government. So much for the separation of powers).

Political scientists rightly point out that the legislative process is about favors, deals done behind closed doors, and influence peddling. Pork, wonderful pork, is the order of the day. The real action in Congress takes place in committee meetings and subcommittee meetings, away from television cameras and off the record. A Congressman may argue in favor of a bill in committee, or vote to bring the bill to the floor, only to vote against it in the House. The legislative process, it turns out, is fairly characterized in Frank Capra’s Mr. Smith Goes to Washington.

But back to a focused examination of that mystical task known so intimately by incumbents — legislation drafting.

Here is how Mikva and Lane describe the immensely important and difficult task of drafting a statute (they’re quoting Reed Dickerson’s 1986 work, The Fundamentals of Legal Drafting):

  1. General provisions normally come before special provisions.
  2. More important provisions normally come before less important provisions.
  3. More frequently used provisions normally come before less frequently used provisions (i.e., the usual should come before the unusual).
  4. Permanent provisions normally come before temporary provisions.
  5. Technical "housekeeping" provisions, such as effective date provisions, normally come at the end….

A good example of a statute that follows [the above] outline…is the National Voter Registration Act of 1993, which in outline form is as follows:

Section 1.Short Title
Section 2.Findings and Purposes
Section 3.Definitions
Section 4. National Procedures for Voter Registration
for Elections for Federal Office
Sections 5-8.[Details and Exceptions]
Sections 9-10.[Mandates to Agencies]
Section 11.Civil Enforcement and Private Right of Action
Section 12.Criminal Penalties
Section 13.Effective Date (p. 64)

And you know what — they’re right. Follow this link to a Pennsylvania statute, House Bill 985 of 1997, amending the Pennsylvania Liquor Code, and see for yourself.

But so what. Surely 20 years in the legislature cannot create more of an ability to follow a list of five directions which is less complicated than a boxed cake mix from Betty Crocker.

Perhaps the most difficult part of drafting — which incumbents are alleged to have mastered — is the use of striking out or underlining the text of bills, as well as using bold-faced type to designate certain language. Here’s a link to a clear explanation of the process, differing in no way from the substance of pages 69-70 of the Mikva and Lane book, provided for global viewing by my state representative (for the record, one of my ancestors once occupied that seat in the state legislature).

The above link to the Pennsylvania Liquor Code bill shows the difficult use of striking out text that is being repealed, underlining new text, and just reprinting the words that are going to stay.

The point, however, should be clear: this is nothing that a man of average intelligence cannot learn overnight. Besides, legislators have staff members who actually do the writing, and explain to the busy congressmen what the bills are about, so that the issue is of even less importance in deciding whether to toss out an incumbent.

Where, then, are we to find the supposed "expertise" of incumbent politicians?

How about the persistent myth that an incumbent possesses expertise in "getting things done?" Sadly, all that this adds up to is the claim that an incumbent is a master chef, doling out pork to his constituents and sending the tab to the taxpayers in the other 49 states. The reason that an incumbent can be seen as a master pork salesman is that he has been around long enough to ascend to positions of power within the legislative arena. Perhaps he is a committee chair, or otherwise a person who simply cannot be ignored because he controls vital decision-making positions.

This might be a good thing if the political class were looking out for the best interests of the political community. Instead, we find tax dollars, taken from American citizens, spent on subsidies to millionaire sugar producers, on providing electrical service to the rural South (which, unlike California, appears to have electrical service), on studying the contribution of bovine flatulence to global warming, on driving up the price of domestic honey and milk, on helping huge corporations advertise overseas, and on million-dollar office space in New York City (Mrs. Clinton).

So "getting things done" is no reason for re-electing politicians, unless they happen to cut taxes, or cut federal spending in real terms (rather than merely slowing the growth of spending). President Bush’s budget, for example, which the Democrats have predictably claimed will have black, brown, young, and old dying in the streets, raises federal spending on discretionary programs by 4% (other programs have automatic increases). Bush simply didn’t raise spending enough to please the Democrats, nor could he ever, even were he to triple government spending. The reason for this is that politics is about control and credit-claiming; the Democrats will never give credit to a Republican, since to do so would be to admit their own irrelevance.

Second, if we are not to find "expertise" in "getting things done," i.e., pork barrel spending, the last vestige of incumbent advantage must be their "great vision."

Bush the First was often criticized for lacking "the vision thing." But, we are told, courageous women like Hillary Clinton, Barbara Boxer, and Dianne Feinstein, or phony, plastic men like Al gore, or Chicken Little wannabees like Tom Daschle, and courageous (but insatiably amorous) leaders like Bill Clinton, had "vision" for where they would take America.

Hogwash.

What the Democratic politicians listed above all have is the desire to remake the world as they see fit. Rather than allow Americans to live their lives as Americans themselves see fit, the typical incumbent politician would rather tell Americans how they ought to live their lives.

When was the last time you heard a politician promise that he would get the government off your back and give you your freedom to live life as you believe is best? Even if a politician you know actually sad this, what did the modern-day Patrick Henry do in office? Contract with America, anyone?

Face facts: incumbent politicians, whether they have been in office for two or twenty-two years, have no magical abilities which require keeping them in power.

It must be recognized, however, that many of those who challengers would take the incumbents’ places in office are no different philosophically. Voters might throw out known scoundrels, but they may also usher into office potential scoundrels who have not yet had the chance to become infamous.

In 1992, for example, voters thought they had found a savior from George Bush in the person of a little-known governor from Arkansas, Bill Clinton. In 2001, many who voted for him, we hope, realized their mistake. While we may hope that newly-elected politicians would do better than their predecessors, there is no guarantee.

What America needs is not a change of the bodies filling the seats in Congress, but a change in political attitudes. American voters must come to understand that there is no free lunch. As Bastiat wrote in The Law, the system of legalized plunder — where everyone tries to live at the expense of everyone else — is doomed to failure. And yet it is precisely this doomed system which was institutionalized in the New Deal, and so many federal, state and local programs since the New Deal have expanded to liberty and prosperity-damaging proportions. Until Americans learn that taxes and government promises of magic wands can only harm, there be only ephemeral gains from a change of the membership of Congress.

Mr. Dieteman is an attorney in Erie, Pennsylvania, and a PhD candidate in philosophy at The Catholic University of America.

© 2001 David Dieteman

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