Freedom at Risk. James L Buckley

       Overloading the Federal Horse

       I delivered the first version of this speech towards the end of my Senate term and modified it from time to time as I gained experience in the Executive and Judicial Branches of government. Its underlying theme is that Washington, D.C., is no longer capable of truly thoughtful, effective government because it is overwhelmed with responsibilities that the Constitution had reserved to the states—and which the states are fully capable of handling. The following variation on this defense of federalism was delivered at the Northwestern University Law School in November 1990.

      It has been my lot, over the past twenty years, to serve in each of the three branches of the federal government. So rather than give you a learned summary of recent trends in administrative law, I thought I would unburden myself of some observations on the institutional gridlock that is beginning to paralyze important areas of that government.

      Over the years, the basic structure of our government put in place by the Founding Fathers has served us well; so well, in fact, that, in the two hundred years of its existence, we have found it unnecessary to make any significant change in its constitutional design. This is an extraordinary record of stability, and Americans have every reason to be proud of their charter; but at times they need to be reminded that it consists of more than its first ten amendments.

      As is evident from recent Supreme Court confirmation hearings, there is a tendency these days to equate the Constitution with the Bill of Rights, which, however majestic an affirmation of fundamental values, is nonetheless a constitutional afterthought. The fact is that the principal concern of the Constitution’s authors was with structure: how to frame a government that would be effective, but never threatening. The grand design that emerged from the constitutional debates proved a brilliant answer to the challenge that James Madison posed in the following terms: “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

      The Framers met that challenge in two ways: first, by dividing the powers delegated to the new government among three separate but equal branches; and second, by reserving to the sovereign states all authority not delegated to the national government. The first, of course, embodied the doctrine of the separation of powers; the second, the principle of federalism.

      It was this last element of our constitutional design that commanded the admiration of the British historian Lord Acton. In a turn-of-the-century lecture on the American Revolution, in which he catalogued what he believed to be the Constitution’s significant failings, Lord Acton nevertheless concluded that “by the development of the principle of federalism, it has produced a community more powerful, more prosperous, more intelligent, and more free than any other which the world has seen.”

      Two centuries have now elapsed since the Founding, and notwithstanding the jockeying that constantly occurs between the legislative and executive branches to establish which is the more equal, the separation of powers remains an integral part of our governmental system. On the other hand, the three branches of the federal government have, over the years, engaged in massive raids on the constitutional prerogatives of the states, to the point where, today, there is virtually no governmental responsibility that the Supreme Court will find beyond the reach of federal authority.

      In the process, we have seen so great a transfer of power, authority, and initiative from state capitals to Washington, D.C., that the former have in many areas been reduced to the role of mere executors of federal policies. At the same time, we have so overloaded the federal horse that its ability to bear its expanded responsibilities is increasingly in doubt.

      In January 1971, when I arrived in Washington as a newly elected senator, I came armed with a recent study of the inner workings of Congress. Its authors had concluded that the workload of the average congressional office had doubled every five years since 1935. Given the fact that, in simpler times, Congress worked at a leisurely pace and was in session for only six or seven months a year, its members could take the initial increases in stride simply by devoting more hours per day and more months per year to their work. Over time, however, the available hours and months were exhausted, and the increasing demands could be accommodated only by fundamental changes in the manner in which Congress went about its business. Inevitably, every new federal initiative will trigger a chain reaction of constituent questions and complaints, consultations with bureaucrats and special pleaders, and oversight hearings by an expanding number of committees and subcommittees—all at the expense of legislative quality.

      I can certify that during my own six years in office, I witnessed both a sharp increase in the already frenetic pace of the Senate and an equally sharp decline in its ability to get very much done that could honestly be labeled “thoughtful.” By all accounts, these two trends have continued unabated. It may well be that the Senate remains “the world’s greatest deliberative body”—I can’t make that judgment because I don’t know enough about the others. But I believe it must be said that the Senate can no longer claim to be a great deliberative body, and this is no reflection on the quality of its current members. The simple fact is that their days are so fractured by competing claims on finite time that they, as well as their colleagues in the House, have too often found themselves incapable of handling many of their most fundamental obligations, such as the timely enactment of the annual appropriations required to provide for the orderly funding of the federal government’s activities.

      In recent years, we have seen the spectacle of Congress racing against the clock as a handful of senators and representatives patch together multi-thousand-page, mega-billion-dollar continuing resolutions that are then rushed into law, unread by their colleagues, so that the federal machinery will not grind to a complete halt. In every instance, boondoggles have later been discovered in the fine print—legislative contraband smuggled in by one or another senator or representative who could not possibly have secured its approval through open hearings and debate.

      This year’s protracted exercise has confirmed the worst we have come to expect. After heroic huffing and puffing, the congressional leadership managed to produce a deficit-reduction bill that increases overall spending by 8 to 10 percent despite the cuts in defense spending. And, yes, the boondoggles are still there. While it is too early to tell how many billions in pork are stashed away, preliminary digging by columnist James Jackson Kilpatrick has uncovered a $19-million appropriation to study the contribution of bovine flatulence to the greenhouse effect—yes, cows produce methane. What makes this example particularly intriguing is that the study had twice been eliminated from Senate legislation, and had not been included in any House bill. Yet the $19-million study reappeared, presumably by spontaneous generation, in the final bill that both houses rubber-stamped into law in the final hours of the 101st Congress.

      While the pace and pressures of life on Capitol Hill appear to have destroyed its capacity for deliberative lawmaking, committee and subcommittee chairmen are nonetheless able to find the time to micromanage the Executive Branch’s conduct of a host of federal programs and, in the case of the Senate, to convert confirmation hearings into political inquisitions.

      But I am being unfair. Congress’s erratic performance is to a large degree the result of a workload that has grown too great to permit either reflection or attention to detail, so it is not surprising that its members will turn instead to government by political reflex and political theater. What is clear from the experience of the past few years is that fundamental changes will have to be made before Congress can once again provide the thoughtful service the nation needs.

      The problems besetting the Executive Branch are of a different order. The overloading of a legislative body will ultimately lead to paralysis, because each of its members is required, in theory if not always in practice, to reach an informed judgment on each item