Setting the Record Straight

This article was originally written on June 6, 1980

I received in a recent mail delivery — along with the other junk mail from other sources — one of those four page "reports" that individual congressmen are fond of sending to people in their districts. This report was from a man who informed me that he was my "representative" in Congress. By all appearances, I think this man sincerely believes himself to occupy that status! I must admit to some confusion on this latter point, however, because his report was only addressed to "Postal Patron." That's hardly the kind of personal greeting one expects from a "representative." It's kind of like having an attorney address a letter to a client "to whom it may concern," or having a young man write a love poem to his girl friend and address it to "occupant." At the very least, I would think that a man who professes to be my "representative" could afford me the luxury of a more personal report, such as a telephone call or a hand-written note.

I don't want to sound as if I am picking on this man. In spite of his claiming to "represent" me, I don't even know him. Judging from his picture that appears five times in the four pages, he seems to be a nice person: he certainly smiles a lot. But I must say that, until I received his report, I was not even aware of his name. This raises the interesting question of how he ever got to be my alleged representative in the first place.

The report told me of the many things he was up to, as my "representative," but without ever enlightening me as to how he got the job. I certainly hadn't voted either for him, or for any other candidate to go to Washington on my behalf. Neither had my wife — who is also a "Postal Patron" at our house and, presumably, another person whom this man is claiming to represent.

Whatever the origins of this congressman's current employment, he goes on to state, in his report, that "government regulation is an accepted fact in our complex, technological society. No one questions the necessity of regulation — only its scope." This is the clearest evidence that this man does not represent me for, if he did, he would surely be aware that I do "question the necessity of regulation" and, far from accepting such practices I totally reject them. The congressman has obviously been getting incorrect information about my preferences. Perhaps if he had been giving me those personal telephone calls, or had stopped by my house on one of his periodic visits to his district, I could have straightened out his confusion.

What all of this points up is the absurdity, the wholly fictional nature, of the system of so-called "representative government." I am certain that there are many people in this man's district who do "accept" and not "question the necessity of regulation." But there are also many who accept one of the regulatory schemes, but reject another, for each of which the congressman may have cast a favorable vote. How, then, can this man — or any other politician — claim to "represent" both sides on this question? If he genuinely represents me, he ought to be following my wishes; he ought to introduce legislation to abolish all government regulation of people's lives. Better yet, he ought to introduce a constitutional amendment providing for the "separation of society and state," a measure that would serve, in a broader context, the same restrictions on state power as are embraced by the idea of "separation of church and state!"

If, as an attorney, I were to undertake to represent both the plaintiff and the defendant in a lawsuit, not only would I be subject to disciplinary action by the state bar association, but would be open to a damage action from either party (or both) adversely affected by my dual relationship. Perhaps there is a lesson in how such conflicts of interest are handled elsewhere, which could be applied to politicians and other government officials who claim to "represent" us.

I have long thought it would be instructive to set up a test case to have the courts determine the status of these alleged "agents." We could, prior to an election, send letters to those seeking to be elected as our "representatives" and tell them (1) that we intend to vote for them as our "representative," and (2) spell out, in detail, the positions we wish them to take on any issue that is important to us (e.g., never to vote for a tax increase or any extension of governmental authority). After this person is elected, send them another letter telling them that we had voted for them and reminding them of our previous instructions. Once the politician takes office, we can begin that process of "eternal vigilance" which, as July 4th speakers are fond of reminding us, "is the price of liberty." As soon as the politician votes contrary to our previous instructions, we could sue for damages (e.g., if he voted for a tax increase), and for a writ of mandate compelling that "representative" to follow our instructions in the future. After all, no client would (or should) tolerate his attorney disregarding his instructions; no corporation would allow its sales representatives to act contrary to its directives; no principal, in other words, need ever put up with an agent ignoring his or her orders. Why should politicians be any different?

I am not so foolish as to imagine one would get a favorable ruling from the courts. Judges, representing one of the enforcement arms of state power, would see the implications that such a lawsuit would have to the maintenance of political authority. But the courts would, I believe, be forced to rule that elected officials are not, in fact, the "representatives" of anyone — particularly since the voting process, like activities in an adult bookstore, are conducted in the secrecy of a private booth. Any court would likely dismiss this as a "frivolous" lawsuit, leaving us with at least a judicial declaration of political reality. The state, itself, would have told us that it is frivolous for us to imagine that elected officials "represent" us in any way to which, unlike our true agents, they might be answerable for harms they do to us.