We don't need more laws: Column

Counting the bills Congress passes can't tell us whether it did a good job.

A recent article in The Hill described the now-adjourned 113th Congress as "historically unproductive," observing that "few Congresses have sent less bills to a president in 20 years."

This, I'm afraid, reflects a common journalistic belief that when legislatures are passing legislation, they're producing something valuable. But while it's true that when oil wells produce oil, or gold mines gold or automobile factories cars, those entities are being productive, it's not so clear that every time a legislature passes a law it's producing something of value. In fact, there's good reason to suspect just the opposite.

When Congress passes a law, it is pretty much always either limiting someone's freedom or spending taxpayer money. Sometimes those are good things: The civil rights laws of the 1960s took away the freedom to engage in racial discrimination, and the spending of World War II and the Cold War defeated the evils of Nazism and Communism.

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But most congressional action doesn't rise to that level, and much of it — things like pork-barrel projects or bills that protect special interests from competition — is a net loss. Even worse, once legislation is enacted, it becomes very difficult to repeal. That's too bad. Bills that are passed generally limit freedom or spend money; repealing laws generally expands freedom and saves money.

What's more, the accumulation of laws creates a drag on both prosperity and freedom. Jonathan Rauch calls the problem Demosclerosis, in his excellent book of the same name: Special interest laws build up kind of like arterial plaque, eventually choking off freedom. Economist Mancur Olson calls the same phenomenon "the web of special interests." In his book The Rise and Decline of Nations, he suggests that this web will inevitably lead to economic and political stagnation, and can usually only be broken by some sort of catastrophic event, like a lost war or a revolution. Or we could just repeal some of the laws.

But nobody in Congress sees repealing laws as job No. 1. Well maybe one does, but he's not doing such a great job getting it done. Last year, House Speaker John Boehner said, "We should not be judged on how many new laws we create. We should be judged on how many laws we repeal."

And for that, at least, I have a proposed solution. It's not really my idea, though I fleshed it out a bit in a law review article and a speech at Harvard Law School a while back. If the problem with Congress is that nobody sees repealing laws as job No. 1, why not create a legislative body that can only repeal laws?

The growth of laws and regulation in America has reached the point that pretty much everyone is a felon, whether they know it or not. But nobody in Congress gets much in the way of votes by repealing laws. All the institutional pressures point the other way.

So in a third house of Congress — let's call it the House of Repeal — the only thing that the elected legislators would have the power to do would be to repeal laws, meaning that for them, all the votes, campaign contributions, media exposure and opportunities for hearings would revolve around paring back the federal behemoth. It's an extension of James Madison's principle (or, possibly, Alexander Hamilton's) enunciated in Federalist No. 51 that, since politicians are always ambitious, in a free society "ambition must be made to counteract ambition."


Though the details, as with all constitutional provisions, matter a lot, the key virtue of a House of Repeal goes beyond the details: The point of its existence would be to give someone in the federal government an incentive to give us less law rather than more. Right now, only the federal judiciary is free from incentives to create additional regulation (though not necessarily free from incentives to create additional legal complexity), but federal judges get no reward for striking laws down. There is no institutional incentive to do so. Yet it seems that things are much more likely to get done in our system if some institution benefits from the doing.

It would take a constitutional amendment to create a third house of Congress, but those happen from time to time — usually when the populace thinks that the existing system is letting them down. Looking around at American politics today, the prospects for constitutional change don't look so bad.

 Grey Templar wrote:
At the very least, the law should be in plain language. IIRC there actually is a law which says as much, but I don't think people follow that when writing some laws.

 Tannhauser42 wrote:
It's a nice idea in theory, but it's built on the idea that congress has no incentive to repeal laws. The underlying issue is that politicians have no real incentive to do a good job in the first place. Getting voted out of office means nothing when you can promptly get a job as a lobbyist, analyst, commentator, think tank member, etc. As long as they can ride the political gravy train for life, there is no incentive to do better.

Yes, I'm bitter, and I could use a nice single malt right now.

 Tannhauser42 wrote:
It's a nice idea in theory, but it's built on the idea that congress has no incentive to repeal laws. The underlying issue is that politicians have no real incentive to do a good job in the first place. Getting voted out of office means nothing when you can promptly get a job as a lobbyist, analyst, commentator, think tank member, etc. As long as they can ride the political gravy train for life, there is no incentive to do better.

 d-usa wrote:
Oklahoma has a simple legislative rule in our constitution:

No bill can deal with more than one subject.

They can't write a massive bill dealing with a ton of unrelated stuff. Its a simple rule that would clear up a lot of this "can't pass this bill unless 15 senators stuff it with pet projects" stuff.

Of course out state legislators are unable to follow it...

 d-usa wrote:
Oklahoma has a simple legislative rule in our constitution:

No bill can deal with more than one subject.

 whembly wrote:


I find the idea of one bill = one subject intriguing, but is it practical?

 whembly wrote:

Pass a new Constitutional Amendment for the creation of a new "house" within Congress...

 dogma wrote:

 whembly wrote:

Pass a new Constitutional Amendment for the creation of a new "house" within Congress...

Adding an additional layer of complexity will not positively affect the manner in which Congress functions, especially in this case as the proposed third house could unilaterally overrule anything accomplished by the other two. At least when the President shuts down a bill with a veto the matter is over and done, and likely was clearly communicated before the relevant bill even passed. Under the proposed system there is no such element of finality, a bill could pass both houses and still remain in debate indefinitely, even long after it has taken effect.

 Grey Templar wrote:
At the very least, the law should be in plain language. IIRC there actually is a law which says as much, but I don't think people follow that when writing some laws.

 Jihadin wrote:

KISS system gave up a long long llloonnngggggg time ago

Senior Democrats, dissatisfied with the party’s tepid prescriptions for combating income inequality, are drafting an “action plan” that calls for a massive transfer of wealth from the super-rich and Wall Street traders to the heart of the middle class.

The centerpiece of the proposal, set to be unveiled Monday by Rep. Chris Van Hollen (D-Md.), is a “paycheck bonus credit” that would shave $2,000 a year off the tax bills of couples earning less than $200,000. Other provisions would nearly triple the tax credit for child care and reward people who save at least $500 a year.

The windfall — about $1.2 trillion over a decade — would come directly from the pockets of Wall Street “high rollers” through a new fee on financial transactions, and from the top 1 percent of earners, who would lose billions of dollars in lucrative tax breaks.

The plan also would use the tax code to prod employers to boost wages, which have been stagnant for four decades despite gains in productivity and profits.

“This is a plan to help tackle the challenge of our times,” Van Hollen said, previewing a Monday speech at the Center for American Progress. “We want a growing economy that works for all Americans, not just the wealthy few.”

With Republicans in control on Capitol Hill, Democrats have little hope of pushing the plan through Congress. Instead, they are looking to craft an alternative to GOP plans to cut tax rates for the top earners, and to shape a new Democratic agenda for 2016 that offers voters the promise of genuine change.

The plan marks a rejection of the more cautious approach to economic policy taken last year by President Obama and Democratic leaders. That strategy — which emphasized raising the minimum wage, achieving pay equity for women and easing the burden of college debt — tanked with voters. Democrats lost 13 seats in the House and nine in the Senate, ceding control of that chamber to Republicans.

Individually, the policies polled well, but they were too narrow to inspire voters who were less interested in social justice than in broad economic advancement.

“The challenge is a big one. You have to think big, you have to think forward, and you have to think new. You have to think new and fresh,” House Minority Leader Nancy Pelosi (D-Calif.) said in an interview, endorsing Van Hollen’s proposal. Van Hollen said that he has briefed senior administration officials and that they were receptive.

Since the election, Obama, too, has begun to conceive more
muscular policies with broader appeal, including a plan to make two years of community college free for most students.

But even that idea tinkers at the edges of the problem in a nation where wages for most workers have been stagnant over the past 40 years. Meanwhile, the lion’s share of economic growth has flowed to the top 1 percent of earners, households pulling in an average of $1.4 million a year, according to 2011 data from the nonpartisan Congressional Budget Office.

“Too often, Republicans and too many Democrats think that macroeconomic growth is pretty much all you need to lift the middle class. And there’s no question that overall growth in GDP and corporate profitability are necessary. But they’re obviously not sufficient,” said Jared Bernstein, a former Obama White House economist now at the liberal Center on Budget and Policy Priorities.

Van Hollen’s plan recognizes “that there needs to be more policy in place to help reconnect middle-class families with overall growth,” Bernstein said.

Although income inequality was the dominant theme in Democratic campaign speeches last year, the party has long lacked “a comprehensive [policy] strategy for dealing with this fundamental problem,” Van Hollen said.

Instead, Democrats echoed Sen. Elizabeth Warren (D-Mass.), the liberal icon who charged in dozens of appearances on behalf of Democratic candidates that the system is “rigged” against the working class by powerful special interests, particularly Wall Street bankers.

That message rang true for liberals, who poured into auditoriums and fields to hear Warren speak. But the centrist voters who decided most races broke against Democrats.

In an election postmortem, Democratic firms SKDKnickerbocker and the Benenson Strategy Group found that the party’s message had been off target, even for much of the base. Although the economy is growing and the jobless rate has fallen, most voters still don’t feel it.

Sixty percent of moderates and 62 percent of independents said they would favor “a candidate who emphasizes growth” over one who wants to “improve the economy through economic fairness.” More than 70 percent of Republicans favored a “growth” message, and Democrats split 50-50 on the question.

Many Democratic lawmakers are now making the same point.

“We need a pro-growth economic agenda,” said Rep. Richard E. Neal (Mass.), a senior Democrat on the influential House Ways and Means Committee. “We need to embrace the traditional Democratic positions of optimism and aspiration.”

Enter Van Hollen, 56, the senior Democrat on the House Budget Committee and a former chairman of the party’s campaign arm for House races. Close to Pelosi and the White House, he has emerged as one of the party’s big thinkers on economic policy and political strategy.

Like many Democrats, Van Hollen argues that creating a more prosperous middle class is the best route to overall growth in an economy driven by consumer spending. He began working on his action plan even before the November blowout, a tacit acknowledgment that he saw that the party’s agenda was weak.

“You can’t just say you’re going to address things like the middle-class squeeze without policy. Otherwise, it’s just talk,” Van Hollen said. “This plan attacks the chronic problem of stagnant middle-class income from both directions, creating bigger paychecks and letting workers keep more of what they earn.”

To spur employers to increase pay, the plan would target corporations, prohibiting companies from deducting executive performance bonuses in excess of $1 million, a benefit worth $66 billion from 2007 to 2010. To claim the deduction, companies would have to demonstrate that workers had shared in the company’s good fortunes by increasing wages about 4 percent, on par with inflation and productivity growth.

Other provisions would provide incentives to companies that give workers a share of corporate profits and invest in job training, through apprenticeship programs or partnerships with community colleges.

Blossoming wages would also stretch further under the plan, primarily through the paycheck bonus, worth $1,000 to individuals and $2,000 to couples. The idea is similar to Obama’s “Make Work Pay” credit, part of the 2009 stimulus package, but Obama’s credit was temporary and, at $400 per person, much smaller.

Van Hollen also proposes to:

●Increase the tax credit for child care from $3,000 per person to $8,000, or $16,000 per couple.

●Create a “saver’s bonus” of $250 for workers who put at least $500 a year into retirement or other savings accounts.

●And reduce marriage penalties for dual-income couples, particularly the working poor.

To avoid increasing federal budget deficits, Van Hollen proposes to limit tax breaks for the top 1 percent of earners, who are on track to reap more than $2 trillion over the next decade from favorable rates on capital gains, the mortgage-interest deduction and other “tax expenditures,” according to the Congressional Budget Office.

He also calls for imposing a 0.1 percent fee on stock trades, an idea under consideration by the European Union. That proposal would raise as much as $800 billion over the next decade, primarily from high-volume traders, Van Hollen said.

All told, the package is about a third of the size of tax cuts enacted under President George W. Bush. It would transfer about 0.6 percent of national income, or gross domestic product, from millionaires and Wall Street traders to about 150 million American workers, with the paycheck bonus alone reaching at least 100 million workers.

“We believe our economy grows faster when all paychecks are rising,” Van Hollen said. The plan, he said, “would put meat on the bones” of promises Democrats have been making to voters for a long time.

 djones520 wrote:
Oh wait... I thought tax cuts increased the deficits?

Shortly after Election Day in 2012, a Mitt Romney supporter moaned to POLITICO about the failed GOP nominee’s performance: “We had no message, and we gave it to the worst communicator in the world.”

Two years later, Romney is mulling over another campaign for the White House, and this time, he says, things will be different.

In meetings with and individual calls to donors, supporters and former staffers, Romney is making it clear that he is likely to run, putting his time frame for a decision at “weeks, not months.”

Romney, who made a fortune in the financial sector and was cast by Democrats in 2012 as a heartless businessman, wants to make tackling poverty — a key issue for his 2012 vice presidential running mate, Rep. Paul Ryan — one of the three pillars of his campaign. The former Massachusetts governor also says he’ll have a different communications staff and hopes to show voters a version of himself they didn’t get to see last time. (There’s even a Netflix documentary he can point to.)

Yet interviews with more than a dozen staffers and supporters who have recently spoken with Romney reveal conversations in which he promises a “different” path forward without providing specifics about what that means as far as mechanics and his own sometimes gaffe-ridden performance. And, aside from most of his communications team, Romney would still be expected to bring back the majority of his old staff, sources said.

“He really has to show people that he’d do it differently, rather than just say he’d do it differently,” said a former top adviser to Romney, one of half a dozen alumni to speak Monday with POLITICO. “He needs to assure folks he’d take a much more direct approach to laying out the vision for his campaign versus having those decisions driven by a bunch of warring consultants.”

Romney announced Friday that he is considering running in 2016, in what would be his third attempt at the presidency. The first time, in 2008, he ran as a conservative. His decision came after Jeb Bush, the former governor of Florida, said he was actively exploring a White House run. On Monday, Ryan announced that he will not run for president, possibly an indicator that he believes Romney is serious.

“A lot of people don’t think Jeb has the fire in the belly,” said one uncommitted Republican donor, who expressed “shock” that Romney is considering another race.

Romney didn’t leave much in the ashes of 2012 that was worth replicating. He was a skilled debater, but his campaign was criticized for its threadbare messaging, staff insularity, a lack of data savvy and a fatalistic approach to the press. Yet even that failed effort was meticulously prepared for by Romney, with years of tending to donors’ neuroses and staffers’ concerns.

And amid growing speculation that Romney would jump in the 2016 fray, doubts have persisted about his ability to improve his own performance. His own party’s chairman, Reince Priebus, responded to calls for Romney to run again at a recent donor luncheon in Manhattan by pointing out the candidate’s many self-inflicted wounds.

Romney and his top aides have often attributed the loss to events out of their control. Within two weeks of the loss, Romney bluntly told a large number of donors on a conference call that Obama unfairly put his thumb on the scale with policy “gifts” to key constituencies, “especially the African-American community, the Hispanic community and young people.”

“In each case, they were very generous in what they gave to those groups,” he said at the time.

Romney allies have also insisted to the former Massachusetts governor, and he has echoed in conversations he’s had, that the main reason he lost in 2012 was that he was running against an incumbent president, and that he would have an easier path in 2016. In 2012, Romney veered well to the right to win over primary voters, moves many believe cost him in the general — but he has scoffed in private conversations at Bush’s insistence that he won’t do the same in order to win the nomination.

Regardless, “I think he’d be the first person to tell you, absolutely,” he needs to run a better race, said Robert O’Brien, a California-based Republican donor who was recently courted by Texas Sen. Ted Cruz but who decided to wait to see where Romney stands. O’Brien, who said he’d received a call from Romney in recent days, added: “If he decides to run, I think you’ll see a different campaign and I think you’ll see a campaign in which the American people get to really know Mitt Romney as a person.”

Bush and Romney already are calling many of the same donors and operatives, in some cases within hours of each other, to make their pitch, round up support and lay claim to staff. Romney has also called at least two key officials in the early primary state of New Hampshire, former Sen. Judd Gregg and his successor, current Sen. Kelly Ayotte, sources said. Romney and Bush are among prominent figures invited to the Republican National Committee meeting in San Diego this week, RNC spokesman Sean Spicer confirmed to POLITICO. Bush is not planning to attend the meeting, an aide to the former Florida governor said.

Romney, who just a year ago categorically ruled out a third White House run, is to some extent playing catch-up. Some of his former supporters are lining up behind Bush for 2016, and some staffers are reluctant to join him again. Romney has been burning up the phones to top members of his old finance team, and he hopes to bring back a majority of his old staff, sources said.

“There’ll be a lot of old faces and some new faces,” said one source who’s spoken with him.

Romney has been in frequent touch with his longtime adviser Stuart Stevens, although it isn’t clear whether he would be brought back in the chief strategist role he held last time. But Russ Schriefer, Stevens’ partner and ad-maker, is aligned with New Jersey Gov. Chris Christie.

People like former RNC official Ray Washburne have committed to playing key roles in a Christie campaign. And a number of donors say some Romney alumni would sooner back Christie than Bush, who’s had past friction with Romney.

Polls show Romney as the leader on the GOP side and faring better in a general election than Bush. But the reality is likely to be harsher than the numbers suggest. For one thing, the emerging GOP field is large and includes several potentially strong contenders from gubernatorial and senatorial ranks.

“It would be difficult, hand-to-hand trench warfare,” said Dave Carney, a New Hampshire-based strategist who was Texas Gov. Rick Perry’s top adviser in 2012. “The class of competitors this time around are a class or two above the 2012 group of contenders. Misreading of polling data is a common affliction that unsuccessful, and too many successful politicians suffer. His first hurdle would be to explain how this campaign would be different then his last two failures.”

A senior Romney adviser in 2012 said the former Massachusetts governor would approach the primaries very differently “by virtue of experience,” determined not to utter the kind of self-destructive statements he did last time in order to outflank his challengers on the right. For instance, in 2012, he suggested pursuing policies that lead undocumented immigrants to “self-deport” — a remark that cost him badly among Hispanic voters in the general election.

Besides a focus on helping the poor, the other two pillars he’s told people he would build a new campaign around are supporting the middle class and a muscular foreign policy, an area where he believes he was strongly vindicated from his 2012 campaign against President Barack Obama. Romney, for instance, warned about the strategic threat posed by Russia, which many at the time thought was an overstatement.

The multimillionaire also is cognizant of the damage done last time by his derisive remarks about “47 percent” of the population, whom he cast as moochers.

“If he does go forward, there will be heavier doses of foreign policy,” a senior adviser told POLITICO. “That was a strength of his last campaign. A lot of what he said has been borne out … All that feeds into a narrative.”

“The economic focus has to be different as well,” he added. “There will be more focus on mobility and softer economic issues. There will also probably be more on upward mobility and opportunity.”

Another senior official on the 2012 Romney effort said the campaign then struggled to scale up after it secured the GOP nomination. He believes a 2016 campaign would be organized from the start with a general election victory in mind.

“The value for the Obama campaign in ’12 was the muscle memory,” the adviser said. “They’d gone through the battles together and had trust. That doesn’t mean you have to have the exact same team. You need the structure, but you don’t need the exact same people. In ’12, the Obama people could tap into the talent they had in 2008. In many ways, we have that type of apparatus in place for Mitt.”

Advisers mulling over a 2016 Romney redux also hope the campaign will be smarter about spending. “Institutionally, they could raise the same amount as last time,” a senior Romney alum said. “But, by having a team that knows where the pitfalls are, we could be 30 percent more efficient.”

Another senior adviser who just spent time with Romney described him as genuinely relaxed and much looser than during the marathon of the 2012 campaign, but that he appears “very serious” about running again. The adviser said Romney is not as worried about money and support materializing as the coverage of the last few days suggests.

“His assumption is, if he decides to run, a lot of that stuff will come online,” the adviser said. “He has a desire to be president. I’m not sure if he has an overwhelming desire to run for president. I tend to think this will flush out over the next 10 days.”

Longtime Romney confidant Eric Fehrnstrom said it is premature to sketch out what a campaign organization would look like when the former governor has not made a final decision on whether to run. But he spoke to why Romney is giving the race another look.

“Our economy is still not as strong as it could be, long-term growth is in doubt, workers have gone a long time without pay raises and can’t save for a kid’s college or their own retirement, and around the world there’s deep concern that as America’s leadership has unraveled, hostile forces have filled the vacuum,” Fehrnstrom wrote in an email. “Mitt Romney spoke to these issues in the last campaign, he was right on many of them, and I expect if he runs again they will form the core of another campaign for president.”

James Carville, a longtime backer of Hillary Clinton, the presumed front-runner for the Democratic nomination in 2016, said Team Romney is engaging in wishful thinking. He not only has fared poorly with minority voters, a growing bloc, in the past, but the economy has improved significantly since 2012. Carville pointed out that Romneyites like to say what he got right but leave out that he predicted economic calamity if Obama was reelected.

“We know the demographics are going the wrong way for him, and if the trend is any good, it looks like the economy is going to be going the wrong way [for Romney too],” Carville said. He added that more generally, “2016 is going to be a challenging year for Republicans.”

But another alumnus of Romney’s presidential campaigns said a new effort would “tell the story of Mitt better.” Several Romney veterans recalled how well the accounts from parishioners in Romney’s Mormon community resonated with voters who had been bombarded with ads about his tenure at Bain Capital.

The documentary “Mitt,” released by Netflix last year, further improved Romney’s image. Campaign operatives had resisted giving the filmmakers access, but Romney’s five sons opened up family meetings and other private conversations. The result was a production that humanized him and his Mormon faith.

“The movie really pulled the curtain back,” one Romney alum said. “It’s a good story to tell. We didn’t do that last time, and it allowed Obama to paint a caricature. We’d show him as a person more. In the first campaign, we were so afraid to even mention the ‘M’ word. Now it doesn’t even matter.”

Tom Rath, a New Hampshire-based Republican and a longtime Romney backer who also received a call from him, said he believes the different circumstances of 2016 versus 2012 are in Romney’s favor. He also expects Romney to make up his mind “sooner rather than later.”
“The context of this campaign will be very different than the one we ran last time,” Rath said. “There’s not going to be a lot of surprises to him.”

 Medium of Death wrote:
Off topic, but why didn't you vote for this clearly prescient man?

 Medium of Death wrote:
Off topic, but why didn't you vote for this clearly prescient man?

 d-usa wrote:
When will we do the "sponsor suits" in politics?