Christmas Eve Presents...A Frant!

     NB: The third word in the title is a present-tense verb...and boy oh boy, is the present ever tense!

     I like FEE, the Foundation for Economic Education. It was founded by one of God’s true gifts to Mankind, the great Leonard E. Read. It’s included among its operators and organizers such free-market notables as F. A. “Baldy” Harper and Dean Russell. It’s done a lot of very important work promulgating the defense of free markets and freedom generally. It deserves the support of all advocates of freedom.

     But as the saying goes, even Homer nods. And FEE has just published an article titled – drum roll, please:

How $10 Million for Gender Programs in Pakistan Got Tied to a COVID Relief Bill

     ...which doesn’t explain how $10 million for “gender programs in Pakistan” got tied to a COVID relief bill, except by making a general reference to “logrolling” and “public choice” economic theory.

     Breathes there a student of politics, public policy, and legislation who doesn’t know about logrolling? What conceivable good is a thousand-word article that “explains” one of the most egregious cases of absurdity in legislation since World War II without actually explaining it?

     Whereupon your humble Curmudgeon has decided, despite the hour, that it’s time for him to take up his leaden rapier once again.

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     “Grab much too much, or you’ll get nothing at all.” – Kurt Vonnegut, God Bless You, Mr. Rosewater

     In the more, ah, speculatively inclined circles of Christian thought, a great deal of attention is given to “signs of the Last Day.” This is, in my opinion, unwise. After all, Christ Himself said that “you shall know not the day nor the hour.” Why then should anyone strive to predetermine and predict “the day and the hour?” You can’t get a better authority than the Son of God, so give it up!

     But of some things we may be reasonably certain. One of them is that the days of integrity in legislative office are over. Federal legislation no longer has more than an incidental connection to its avowed purpose:

The primary purpose of all federal legislation is to enrich legislators, their relatives, their cronies, and their electoral backers.

     Grab-bag bills such as this “COVID relief bill” are not exceptions. Indeed, the more piously a legislator trumpets his concern for the commonweal in promoting such a bill, the more likely it is that it will fill his rice bowl, or those of his relatives and friends, with luscious gravy from the federal tureen. The “urgency” of providing American citizens “financial relief” from the dislocations brought on by the Kung Flu lockdowns is a prime opportunity for loading up a bill with cleverly disguised personal enrichments.

     And this particular bill allocates $10 million to “gender programs in Pakistan.”

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     As a rule, the longer a legislator has sat in his seat, the more influence he has over Congressional operations. They can contrive to extract large payments – sometimes in the multimillion-dollar range – from massive spending bills. However, brand-new Congressvermin have very little pull, and must make do with the crumbs from the big boys’ table. This is likely to be such a case.

     Now, to preserve the appearance that an appropriation of $10 million to “gender programs in Pakistan” is really about gender programs in Pakistan, a few steps are required. There must be an office established for the creation, operation, and supervision of gender programs in Pakistan, probably as a sub-sub-subdepartment of the Department of State. That office must then be staffed. though perhaps not with many actual bodies. A titular director, a secretary for him, and a small staff will be hired, and “work” will begin.

     Several months later, the director will issue a “white paper” about the design of the gender programs in Pakistan and how his office will establish the infrastructure for them. The paper must be no less than a certain length, and its Flesch-Kincaid Score must be no less than a certain value, to discourage outsiders from familiarizing themselves with it. All of that will surely absorb nearly the whole of the $10 million. Perhaps a few dollars will make it into the hands of some Pakistani government official, though in these latter days of the Republic that’s not guaranteed.

     What has actually happened, rather than the creation and operation of any gender programs in Pakistan – a virulently Islamic country that would never countenance any such thing – is this:

• Several well-paid federal sinecures have been created;
• Relatives or cronies of some Congresscritter have been hired into them;
• Expenditures have been directed toward firms in some Congressclown’s district;
• The federal deficit for fiscal year 2021has been increased by $10 million.
• Another office has been added to the federal bureaucracy.

     Extinguishing that office and the associated federal jobs will be a labor for the ages. Should it take fifty years to kill it, whoever might succeed in doing so would deserve the honors of millennial heroes.

     I have no Congresswhores’ names to put to the above narrative. Yet I am confident that it is as near to an exact description of how “$10 million for gender programs in Pakistan” found its way into a “COVID relief bill” as it is possible to concoct. I mean, really! “Gender programs in Pakistan?”

     What is significant about this particular case in federal graft engineering is only that someone noticed it before it could be enacted in law. In all other ways, it’s just “business as usual” for Leviathan and its innumerable remora.

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     Apologies for polluting your Christmas Eve with the above. It’s a compulsion of sorts for me to drip vitriol onto such infamies. I’ve been doing it for so long that it’s almost a reflex at this point.

     But on to happier matters. As you might have expected, the Fortress is ablaze with the Christmas spirit. The tree is lit and the packages – all two of them – are arrayed thereunder. The CD of traditional Christmas carols is in the player and will start as soon as local ordinances permit. (We play The Messiah tomorrow – the whole thing, not just the Alleluia Chorus.) The crab cakes went bad, so we’ll be having chicken teriyaki for our Christmas Vigil dinner. What about you, Gentle Reader?

     May His Coming fill your home with light, love, and joy.

The Rule Of Law In America: An Autopsy

     For our lead-in, here’s WeirdDave at Ace’s Place:

     What idea was the cornerstone of the ideological wall that the Founding Fathers used to construct this nation? What single, simple concept embodied everything that they hoped to create, and would serve as a yardstick for future generations to measure their path?

     “This shall be a nation of laws, not men”

     This was the idea that galvanized a group of Englishmen to revolt against an overreaching crown. This was their solution to prevent future totalitarian regimes from subjecting their progeny to depravities that they themselves were suffering. It was not only to be the framework of the new nation, but also the mortar holding it together, binding both citizen and official into a web of interconnecting loyalties and obligations. Rule by man could, no, inevitably would, be capricious. Rule of law was as constant as the northern star, providing the only model where justice could be guaranteed with tyranny excluded.

     A bit dramatized and overwritten, but the essential points are there. To avert the possibility of tyranny, whether monarchical or oligarchical:

• The law would be “public property,” made by open, Constitutionally defined processes;
• It would be comprehensible by any reasonably intelligent adult;
• It would bind all Americans without exception.

     And it seemed to work very well for quite a long time. But then, it wasn’t the sole pillar of the new Republic. It collaborated with several others:

• The limited powers of the federal government;
• The essential weakness of the state governments;
• The widespread armament of the American citizenry;
• And the great reluctance of the legislatures to tinker.

     It’s that last point that’s most on my mind this morning.

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     It was observed, by Thomas Jefferson among others, that legal stability is a necessary precondition for the knowability of the law, and thus for the effectiveness of the rule of law. Jefferson was particularly scathing about the federal judiciary’s arrogation of the power to “interpret” the law, including the Supreme Law, the Constitution:

     "Contrary to all correct example, [the Federal judiciary] are in the habit of going out of the question before them, to throw an anchor ahead and grapple further hold for future advances of power. They are then in fact the corps of sappers and miners, steadily working to undermine the independent rights of the States and to consolidate all power in the hands of that government in which they have so important a freehold estate." -- Autobiography, 1821

     "The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them." --Letter to Spencer Roane, 1821

     "It has long been my opinion, and I have never shrunk from its expression,... that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary--an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed." --Letter to Charles Hammond, 1821

     "The judges... are practicing on the Constitution by inferences, analogies, and sophisms, as they would on an ordinary law. They do not seem aware that it is not even a Constitution formed by a single authority and subject to a single superintendence and control, but that it is a compact of many independent powers, every single one of which claims an equal right to understand it and to require its observance." --Letter to Edward Livingston, 1825

     To Jefferson it was clear that stability in law, and thus its knowability by the common citizen, were incompatible with a judicial regime capable of “interpreting” it to mean other than what it said in its plain English text. His insights in this regard are among the many marks that cement his place as the supreme genius of the Founding Era. They seem queerly prescient when read in this age of the Republic.

     But for all his brilliance, Jefferson, who lived at a time when “regulation” was synonymous with “law,” and legislators were relatively ordinary men who would lay down their regular responsibilities for six or eight weeks each year to decide a few questions, adjourn, and return to their homes, could not have foreseen the incessant, frenetic, wholly unrooted dance of the legislatures and regulatory bodies that were to come.

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     Legal stability begets knowability: the citizen’s ability to know what’s required of him and forbidden to him. But stability in law doesn’t rest solely on plain-English wordings stoutly resistant to creative “interpretations.” It also requires:

1. Limits to legal scope;
2. Steadiness of existing laws;
3. A small, inexpansible volume of laws.

     The first condition was supposed to arise from constitutionalism: the requirement that every law conform to the higher law under which it was made. Each county would have its charter, which would be subordinate to the state’s own constitution, which would in turn be subordinate to the Constitution of the United States. The powers thus conferred upon a legislature would be circumscribed in a fashion that precluded the violation of recognized rights and ensured that constitutional and charter obligations would be respected.

     The second condition seemed to be guaranteed by the democratic process, which would elevate common citizens to seats in the legislatures. “Common citizens” as legislators! Today, when politics has become a career and ascent even to a county legislature requires prodigious expenditures of time, money, and effort, the notion seems fantastic. Yet the Founders assumed it would be so, because Americans would all have other pursuits, to which they would be attached and would want to return.

     The third condition...well, let’s just say that none of the Founders, Jefferson included, could possibly have imagined the volume of laws and regulations under which we labor today.

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     The best indicator for the unbearable luxuriance of law is the legal library even the humblest practitioner is required to maintain. Hundreds of thick volumes populate the shelves...but even perfect knowledge of their contents would not be a sufficient guide to the law, for today’s lawyer is perforce a specialist. He operates in a corner of the law, defined by subject matter and geographical application, and dares not venture beyond it without consulting another lawyer whose specialty would adequately supplement his. If the heavily educated, licensed practitioners of law are so confined, what, then, could the common citizen know of it?

     When legislation constitutes a lifelong career rather than a brief stint in public service, when unelected, faceless regulators have carte blanche to “make rules” with the force of law, and when judges who are essentially proof against correction can interpret black to mean white, there can be no “rule of law,” for the requirements of the law are inherently unknowable.

     We await arbitrary enactments and alterations by career politicians.
     We hang on judicial decisions about the meanings of ordinary English words.
     We swim through seas of “regulations” decreed by unelected persons according to processes unbound by Constitutional norms.

     The rule of law, once a vital organ in our philosophical body, has been wrenched out, hacked up, and left to rot.

     It’s time we admitted as much, buried the remains, and acted accordingly.

The Ultimate Manifesto, Part 2: Legislative Irresponsibility

     We saw one inducement to it in Florida, in the chaos after the 2000 presidential balloting. The state legislature had made it a requirement that election returns be certified no later than seven days after the balloting. The Florida state supreme court ruled that seventeen days must be allowed...and the legislature did nothing.

     We saw an egregious case of it in the Bipartisan Campaign Finance Reform Act, a darling of the odious John McCain that purported to reduce the influence of “big money” on elections. The proponents could not have failed to know that their bill was unConstitutional. For that matter, President George W. Bush, who signed it, said as much but signed it anyway. It was left to the Supreme Court to strike it down. Its legislative proponents merely shrugged and continued onward.

     We saw an eruption of it in New York State’s Orwellian “SAFE Act.” That act, as written, outlaws the use of detachable rifle or pistol magazines that hold more than seven rounds. Many supposed defenders of the right to keep and bear arms voted for that bill...realizing only afterward that it criminalizes the use of virtually every firearm owned by anyone in the state, as no magazines that small are available for most such rifles. Yet the legislature did nothing, instead allowing Andrew Cuomo to decree, by “executive order,” that the ban would not be enforced just yet.

     We saw a major explosion of it in the Patient Protection and Affordable Care Act (ObamaCare), as legislators openly voted to pass a bill of whose contents they were utterly ignorant. When it developed that a key provision of the Act, expressly designed to induce the states to erect “health care exchanges” by the open admission of one of its chief architects, failed to produce the desired conformity among the states, not one of the bill’s legislative proponents stepped forward to say “Yes, we meant it to operate this way.” Instead they allowed John Roberts et alii to claim telepathic powers and rule on what they “intended.”

     Congressmen and United States Senators take oaths to the Constitution, which defines their offices. State legislators take similar oaths to their states’ constitutions or charters. Then they proceed to violate those oaths, serene in the knowledge that nothing will be done to them for doing so. As icing on this distasteful cake, they routinely pass bills that delegate, de facto, lawmaking power to unelected bureaucrats: persons who can’t even be turned out of office electorally.

     Federal legislators receive salaries of $175,000 per year for their “labors.” That’s apart from their franking privileges, travel privileges, office budgets, the salaries of their staffs, and so forth, which easily total to eight figures once all the bills are paid. State legislators are remunerated less opulently -- $79,500 per year in New York, exclusive of expenses – but still well above the average salaries of their constituents. At those prices, you’d think that you have a right to hold them accountable for their performances.

     You’d be wrong.

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     It is the case, apparently immune to “wave elections” or similar upheavals among Us the People, that a legislator, once elected, can reasonably expect to remain in “his position” until he chooses to retire. They’re harder to get rid of than an infestation of roaches, a species with which they share more characteristics than that one alone.

     I hardly need comment on the many documented cases of felonious behavior among legislators. Those tend to make headlines, at least in certain fora. The ones that involve sexual misconduct are especially salacious, but the ones that involve sale of access and influence have far more serious impact upon our notions of governmental integrity. After all, we can’t help but wonder: For every one we catch, how many others do we miss?

     Ferdinand Lundberg put it most memorably:

     ...it is a settled conclusion among seasoned observers that, Congress apart as a separate case, the lower legislatures -- state, county, and municipal -- are Augean stables of misfeasance, malfeasance, and nonfeasance from year to year and decade to decade, and that they are preponderantly staffed by riffraff, or what the police define as "undesirables," people who if they were not in influential positions would be unceremoniously told to "keep moving." Exceptions among them are minor. Many of them, including congressmen, refuse to go before the television cameras because it is then so plainly obvious to everybody what they are. Their whole demeanor arouses instant distrust in the intelligent. They are, all too painfully, type-cast for the race track, the sideshow carnival, the back alley, the peep show, the low tavern, the bordello, the dive. Evasiveness, dissimulation, insincerity shine through their false bonhomie like beacon lights....

     As to other legislatures, Senator Estes Kefauver found representatives of the vulpine Chicago Mafia ensconced in the Illinois legislature, which has been rocked by one scandal of the standard variety after the other off and on for seventy-five years. What he didn't bring out was that the Mafians were clearly superior types to many non-Mafians.

     Public attention, indeed, usually centers on only a few lower legislatures -- Massachusetts, New York, New Jersey, California and Illinois -- and the impression is thereby fostered in the unduly trusting that the ones they don't hear about are on the level. But such an impression is false. The ones just mentioned come into more frequent view because their jurisdictions are extremely competitive and the pickings are richer. Fierce fights over the spoils generate telltale commotion. Most of the states are quieter under strict one-party quasi-Soviet Establishment dominance, with local newspapers cut in on the gravy. Public criticism and information are held to a minimum, grousers are thrown a bone, and not many in the local populace know or really care. Even so, scandalous goings-on explode into view from time to time in Florida, Texas, Louisiana, Oklahoma, Missouri and elsewhere -- no state excepted. Any enterprising newspaper at any time could send an aggressive reporter into any one of them and come up with enough ordure to make the Founding Fathers collectively vomit up their very souls in their graves.

     [The Rich and the Super-Rich, 1968]

     Somehow I doubt that Lundberg, were he still among the living, would continue to except the United States Congress, especially considering how gaining a seat in that body seems guaranteed to make its occupant wealthy. Rare is the U.S. legislator whose net worth is less than $5 million; I cannot name one whose net worth is less than $1 million. The usual derisive dismissal is to comment that “we have the best legislators money can buy.” Whose payrolls they occupy is left to the hearer’s imagination.

     Now that the courts, both state and federal, appear willing to rewrite their laws for them, what more can we expect? Considering that they normally continue in office despite any and all departures from integrity – does anyone else remember the censure of Charlie Rangel, long a ranking member of the tax-writing House Ways and Means committee, for not paying his taxes? – what prospect is there of compelling them to walk the line?

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     When irresponsibility among those with authority goes unpunished, it tends to increase. It’s certainly increased among “our elected representatives” in the decades since World War II. So has the average tenure in office of those...persons, a phenomenon for which We the People bear the odium. After all, isn’t “turning the rascals out” our responsibility?

     Of course, there is what H. L. Mencken said:

     The government consists of a gang of men exactly like you and me. They have, taking one with another, no special talent for the business of government. They have only talent for getting and holding office. Their principal device to that end is to search out groups who pant and pine for something they can’t get and promise to give it to them. Nine times out of ten that promise is worth nothing. The tenth time it is made good only by looting A to satisfy B. In other words, government is a broker in pillage and every election is a sort of an advance auction sale of stolen goods.

     At each election we vote in a new set of politicians, insanely assuming that they are better than the set turned out. And at each election we are, as they say in Motherland, done in.

     How about it, Gentle Reader? Do you still think your vote matters? Do you still believe that “elections have consequences” – consequences of the sort you would favor? Would you still vote to return “your” Congressman or Senator to office on the grounds that “he’s better than the other guy” or that “we can’t afford to lose his seniority?”

     More anon.

Quickies: The “Fast-Track” Trade Bills

     These bills have been represented as everything but a cancer cure. Their supporters claim they would be nothing but good for America. Their opponents denounce them as a stroke against Americans’ jobs and general well-being. Both arguments are irrelevant.

     Mike Flynn makes the only salient point:

     It is almost impossible to verify these claims, however, as very few people actually know what’s contained in this trade deal. The current draft is literally locked away in a room in Washington. Only members of Congress are allowed to even review the current treaty language. Any notes they take of the treaties details are confiscated at the door when they leave.

     Obama used his presidential prerogatives to classify the bills, such that only persons with a security clearance are permitted to know what’s in them. Moreover, the bills’ classification level – Confidential; Secret; Top Secret; the rarefied levels above – is also unknown to the public, so even those of us with security clearances can’t be sure we’d be allowed access to them, apart from the esoterica of “need to know.”

     Lawmaking in secret. Reaction 1: How much more un-American can you get? Reaction 2 comes a bit more sedately: How does this compare with the lawmaking of the early Republic?

     Before the emergence of high-speed communications and mass media, all federal lawmaking was done in secret, though de facto rather than by conscious intention. However, that’s not a reason to relax about the TPP and TAA bills, for in those early days there was a strong (albeit inaccurate) presumption that Congress would remain within its Constitutional limits...and before the creation of the huge military necessitated by our involvement in the wars of the Twentieth Century, once the citizenry heard about a Congressional transgression, it could do something about it.

     Things aren’t what they used to be, eh, Gentle Reader?

Flappers: The Political Class Of Which We Do Not Speak

     My attention was turned in this direction by a brief piece at Crusader Rabbit:

     ‘Rubio, Graham Refuse to Answer Whether They Read Obamatrade Before Voting on It’

     ....Somebody tell me again what is the point of voting?

     Keith has the right of it; at least, I can’t disagree with his obvious anger. However, the headline above isn’t a major revelation of a previously closely-held secret. It’s an open matter, and has been for some time, that Congressmen and Senators never read legislation. That includes legislation they have submitted to the floor.

     They have flappers for that.

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     For those who have never read Gulliver’s Travels:

     At last we entered the palace, and proceeded into the chamber of presence, where I saw the king seated upon his throne, attended on each side by persons of prime quality. Before the throne, was a large table filled with globes and spheres, and mathematical instruments of all kinds. His majesty took not the least notice of us, although our entrance was not without sufficient noise, by the concourse of all persons belonging to the court. But he was then deep in a problem, and we attended at least an hour before he could solve it. There stood by him on each side a young page with flaps in their hands, and when they saw he was at leisure, one of them gently struck his mouth, and the other his right ear; at which he startled like one awaked on the sudden, and looking towards me and the company I was in, recollected the occasion of our coming, whereof he had been informed before. He spoke some words, whereupon a young man with a flap immediately came up to my side, and flapped me gently on the right ear; but I made signs, as well as I could, that I had no occasion for such an instrument; which, as I afterwards found, gave his majesty and the whole court a very mean opinion of my understanding. [Part III, Chapter II]

     Here we see the Laputan institution of the “flapper:” a servant whose function is to “flap” the ears of his master when, in the opinion of the servant, it is desirable for the master to hear what is being said. Plainly, the “servant” exercises considerable power over the “master”...a condition substantially replicated by the arrangements in the two Houses of Congress.

     Congressmen and Senators all possess large staffs. Those staffs have internal hierarchies resembling the sort you’d find in any business office. The staff members are aware of their boss’s overall political orientation, his priorities, and his positions on the issues of most importance to him. When legislation reaches the floor of his house, staffers portion it up among themselves, read it as closely as possible, decide whether the boss should speak or act on it, and note where he would be likely to take exception to it.

     Legislation is crafted in a similar fashion: the legislator gives general orders to his chief of staff, who then sets the others to work composing a bill to that end. Parkinson’s Law kicks in at this point. A staff of twenty or thirty is inherently incapable of writing a short bill. Among other things, each staffer wants the final product to have his fingerprints on it, to prove his importance to his coworkers and to the legislator. The consequence is invariably a bill that runs to dozens if not hundreds of pages, reads as if it had been assembled from a congeries of legal treatises, obsolete encyclopedias, and phone books, and contains almost as many internal contradictions and ambiguities as there are words in it.

     No, the legislator doesn’t read the bill. He has a chief of staff to assure him that the final product expresses his intentions suitably for the purpose. Really, what other function, aside from bossing the rest of the crew around, would such a head factotum serve? (Whether the chief of staff himself reads the bill is undetermined at this time.)

     That’s what you’re paying $175,000 per federal legislator per year, plus many millions in staff salaries, office expenses, travel expenses, franking privileges, and miscellaneous perquisites, to do.

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     The power and importance of legislators’ staffs becomes even more visible when we address the pernicious mess called constituent service. No legislator is ever the first person to hear from an aggrieved constituent. Whether that “front man” deems the constituent deserving of the legislator’s “service” will determine whether he gets it, to what extent, and for what reciprocal price...and the “front man” will have opinions, preferences, and biases of his own. Few are the constituents who automatically receive the benison of a legislator’s immediate and undivided attention; it typically takes an eight or nine digit bank balance to enter that highly desirable class.

     There’s one good thing about Congressional staffs that cannot be said of the rest of the federal apparatus: they’re not protected by the civil service laws. They can be fired, or disciplined in other ways, at the discretion of their legislator...if, that is, he can be made interested in and disturbed by what they’ve been doing in his name. Yet their power, as “flappers” who can direct or withhold the attention of their employer, is undeniable. They constitute an unelected layer of government arguably more important than the legislatures themselves.

     So it comes as no surprise that two Senators, both of whom have thrown their hats into the Presidential ring, should decline to say whether they’d read the ObamaTrade bill before voting on it. It’s a poisoned inquiry; the truth would harm them politically while a lie would be far too easy to detect and disclose. The questioners know this and use the question in an attempt to weaken politicians they dislike, even though every federal legislator, if compelled to speak the truth, would answer the same way.

     This is the reality of extra-Constitutional government in the year of Our Lord 2015. Don’t care for it? Either overthrow it or find a suitable asteroid. There are no other options.