tv David Schoenbrod Discusses DC Confidential CSPAN May 14, 2017 10:32am-11:52am EDT
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professor david schoenbrod book "d.c. confidential: inside the five tricks of washington." at the outset i would note the book features forward by both governor howard dean and senator mike lee. and now let me quickly introduce our panel. all three are very distinguished and accomplished. this is i can assure you the shortened version. david schoenbrod is a professor of law at new york law school and typically contributes to the editor pages of the "wall street journal," the "new york times" and other publications. he held an undergraduate degree in mathematics from yale, postgraduate degree in economics from oxford and his law degree from yale law school. we are pleased up with us adam white, from the hoover institution and an adjunct professor at the antonin scalia law school. he is notable right has been published in many places and is collected at adam j white.com. he received his undergraduate at
the university of iowa and his jd cum laude from harvard law school. rounding out the panel is former congressman martin frost two serves as the vice president for the of former members of congress. he served on the house for 26 years and helped many leadership positions, while representing the dallas-fort worth area. he's the author of a book with former coxswain tom davis davis, the partisan divide, congress in crisis. he holds degrees in journalism and history from university of missouri and a law degree from georgetown university. before i turn over to david i just want to note for all of you that following the panelist remarks will have ample time for question and answer so pleased to be thinking about the questions that you like to ask our panelists. with that, david, the floor is yours. >> well, thank you, nate, and thanks to the federalist society for sponsoring this event and
thank you as well to representatives of frost and professor whyte for participating. i'm very much looking forward to the discussion with all of you. when i was a little boy my grandfather taught me to recite the gettysburg address. we here highly resolve that these dead shall not have died in vain, that his nation under god shall have a new birth of freedom and that government of the people, by the people, for the people shall not perish from the earth. with these words, lincoln honored those who died in the civil war. in teaching those words to me, my grandfather honored another soldier, my father, who was at that time laying wounded in france. lincoln could claim that america already had government by the
people, because whereas in england at the time of the gettysburg address, most people couldn't vote because of property ownership qualification, almost every american state had abolished it. at that time african-americans and women could not vote in the united states, but he was calling for a new birth of freedom that ultimately resulted in their having the vote. when i was a young man i was proud to play a small part in this people's government. that was early in the 1960s, and at that time in american history polls showed that 76% of the voters trust of the government to do the right thing just about always, if not always. today that number is 19%, and upholding fall and our belief in the government. in washington, does deserve this distress for reasons that began in the 1960s.
previously trust was built on members of congress taking responsibility for the consequences of key decisions. in other words, they took credit for the benefits of their decision but also blame for the burdens imposed by the decisions and this would tend to align the interests of legislators and their constituents. then in the late 1960s, legislators of both parties begin to legislate in new ways that shifted blame away from them, and thereby really undermined government out by and for the people. the blame shifting began innocently enough. by the mid-1960s, we saw our government as working wonders. it had worked wonders. it got us to the great depression company that won world war ii, and it invented the atomic bomb nuclear energy,
built the interstate highway system we now had the stocks economy in the world by far. this was a great government and so necessary wil wanted it to do more. we demand it do more. things like clean up the environment but also understandably we wanted this government to do so without imposing a lot of burdens on us. and also understandably members of congress wanted to satisfy us. and that's what they set out to do. and in the clean air act of 1970, congress promised healthy air without heavy burden. and what they convinced himself would deliver this was something called technology forcing the idea was that if congress had a definite deadline for producing clean air, that would force industry to invent affordable technology that would in fact,
deliver healthy air without costing too much. this was plausible in the sense that just the previous year in 1969, americans landed a man on the moon and congress explicitly said, members expressly said that if they could do that come if they can land a man on the moon, they could make the air healthy on earth. that's what people believed. both parties signed on, both parties voted overwhelmingly for the clean air act. but technology forcing did not work as was hoped. for example, to meet the deadline for producing healthy air in southern california, would have required taking three-quarters of the cars off the road, and that wasn't going to happen. it begin to happen, members of congress on both sides of the aisle started to privately lobby epa not to do it come not to impose those heavy burdens. epa by large complied and then
congress had -- publicly blame epa for not cleaning up the air on time. sound familiar? i might have missed a slide. that's fine. so once congress began this new way of legislating, there was no going back because the key ability to shift the blame for bad consequences had changed. they could legislate in ways that look to make rosy promises regardless of the impact. they put into the clean air act 940 separate commands to the epa administrator to regulate. many of these commands require dozens if not hundreds of different regulations. those were judicially enforceable commands, okay?
and they also wrote these commands in ways that are complicated to obscure the responsibility for consequences. so what we have is a fabulously complicated system for regulating air pollution. this is from gina mccarthy, barack obama epa administrator, each sector 17-20 rolls that govern each piece of equipment and you've got to be a neuroscientist to figure it out. that's the clean air act today. and beyond that, there's no personal an incentive on part of members of congress to update it come to simplify it, to make it make more sense because all the blame is either shifted to the epa or the states. so in fact, the clean air act has not been amended since 1990. that's over a quarter of a century ago, even though there are much better and smarter ways of cleaning up the air. it's left as is, and i'm blaming both parties for this.
not one party, not the other, both. so as we went from a situation where the interests of constituents and legislators was aligned to one where their interests are in conflict. so well, i'm against -- and often the same one say i'm against regulation killing jobs. this is schizophrenia. it's not legislation. and eyewitnesses to the schizophrenia close because as a lawyer for the defense counsel i brought the cases to get rid of gasoline and as result of this mess, approximately 50,000 of my clients died. and it was going to that experience that drove me out of environmental advocacy and into academia because i want to pick out what the heck is going on. and what i discovered comes down to members of congress use five
key tricks to shift blame. now, voters know that politicians are tricksters, or today's politicians are tricksters, so how is it that congress gets away with it? it's for the same reason -- here we are. it's for the same reason that magicians can seem to pull rabbits out of hats. my book is about revealing the flights of hands that let the tricks be seen even though we know tricks are going on. these tricks come through new system of legislating for enacting laws and spending programs that let m legislators and presidents of both parties, they begin to use them in the late 1960s and early 1970s so that's the basic thesis of the book. i want to go through these five tricks and explain in a nutshell how they work.
one trick is the regulation trick. previously congress at sometimes adopted rules or regulations on the sales. that gave members of congress credit for the benefits of the regulation also blame for the burdens. they also sometimes said to an agency here's a problem, solve it. becky the credit and the blame to the agency. but what happens with the regulations which began large with clean air act in 1970 is congress that a way to take credit for the benefits but shift blame for the burden. that's what they did. and so, and the way they do this basically is they enact statutes the grant for a specific restated rights. so congress could say i gave you this, i gave you this right. but they give the job of imposing the duties to deliver on the right to the agencies so
the agency gets the blame for the burdens. so they end up shifting the blame to the agencies. that's the sleight-of-hand. another trick is the money trick. it begin in so enough in the later 1960s. previously congress generally raised the revenue needed to pay for the things they promise like tax cuts are very social programs that people like. occasionally there were big deficits like during the great depression, during wars, that congress usually first course afterwards intended to pay things off. but in the later 1960s, congress began on a course of systematically and on large-scale running deficits in a way that deficits, with current policy, which is keep going up into the sky. this effectively, it allows
congress to shift the blame for the burdens needed to pay for these goodies to their successors in office. so basically what they are doing is kicking the can down the road, as people here on male color. what is the sleight-of-hand? sleight-of-hand that makes this work is that congress makes the benefits very tangible, very concrete. so you're going to get a letter every year saying your social security benefits are going to be this much money down to the dollar. but what about the cost of all these things? they hide that. they hide that. so it's, you know, they take credit for the good stuff, avoid blame for the bad stuff. both parties. federal mandate trick. previously, before the late 1960s congress had required states to honor constitutional rights and to meet basic conditions when they accepted federal grants.
if the state took a federal grant to boulder highway, they could use crumbly concrete as to use good concrete. fast not a problem. so that when members of congress, they could take credit for paying for the highway but they also had to take blame for raising the money to give the grants to the states. members of congress happened upon a way to get credit and shift the blame to the governors and mayors and other state and local officials, basically what ends up happening is that the congress invites the states at the dinner and leaves them to pay for the bill. the clean air act illustrates this yet again. congress got the credit for clean air, but it imposed upon the states the burdens, the job of imposing the duties, the burdens needed to do much of the cleanup. credit for congress, blame on
governors and state legislators. what's the sleight-of-hand? indicates that the clean air act, states must regulate as the federal epa dictates or else lose their federal highway grants. for any governors to give up a highway grant, is political suicide. you might ask yourself the question, wouldn't it be political suicide for members of congress to vote for a provision that says we're going to threaten to take what estates highway grant likes the sleight-of-hand is at this. congress does a vote on that stuff. dozens and dozens of roll call votes on the clean air act, nary a one was on punishing the state. so congress washes its hands of blame. congress had previously loan guaranteed the payment at some private debt like, for example, the federal deposit insurance
corporation guarantee of the small deposits in banks. initially they guarantee was for deposit up to $2500. the reason for that low limit was so that bigger deposits, bigger depositors would know the money was at risk, which would mean that you wouldn't put your money in a bank that was doing risky lending or was overleveraged. which would indicate that bank safe, but starting in the late 1960s congress implicitly began to guarantee the deaths, all the debts they can spot of the too big to fail banks. so think what that did. that let these banks borrow money on the cheap, because they're backed by the federal guarantee, on the cheap even though they were engaging in risky lending operations, even though they were leveraging higher and higher and higher, borrowing more and more money which makes ability to repay the
debt more questionable. this exploded upwards the profits of these too big to fail institutions, in good times. but in bad times it led to the financial crisis that caused such misery in 2008. millions lost their homes, as you all know. and lost their jobs and retirement savings. very sad. so the public necessarily get angry about it, so we got dodd-frank. let me tell you, the debt guarantee trick continues under dodd-frank. it's still going on. so what's the sleight-of-hand? the sleight-of-hand is of this. congress pretends the government is not guaranteeing these debts but if you look at the interest rates on bond market and you know perfectly well they are guaranteeing these debts. the lenders and borrowers know these debts are, in fact, guaranteed. congress plays tricks when it comes to war. during that country first 160 years we never went to war
without congress taking responsibility either by declaring war or more commonly by approving the war explicitly by statute. in 1950 president truman put the troops in korea saying it was a human approved peace action. some peace action, right? some 30,000 americans died. we have have vietnam and cambodia and all that in the early 1970s. the public a very angry and that force congress to pass the war powers resolution, which in theory forces of the president to come to congress and get congress to vote on the hostilities. except there is a loophole. and the loophole allows members of congress and presidents to avoid voting on our truth being involved in combat if it's controversial. for example, libya. members of congress went to obama and said please go into
libya, get rid of that gadhafi cabot don't make his foot on it. when she. then there's a congress had the nerve to criticize obama for not obeying the war powers resolution. terrible. so we end up in wars when we really haven't looked into and abated as a country what makes sense. and sleight-of-hand is congress can't pretend to want to be responsible because they had the war powers resolution, and they blame the president for disobeying it. think about the consequences. this means no matter how the war comes out, if it's popular the members of congress can march in the victory parade. if it's unpopular they put the entire blame on the president. now, presidents have been in on the tricks, to come with a war trick the president unilaterally gets to treat the army as his army. and on the other tricks,
presidents take credit and shift blame pic you could even say the president is the trickster in chief. talking about presidents of both parties. so what can we do about it? my key advice is this. don't hate the player. hate the game. individual legislators are stuck. if any one legislator or in one party gets up a trick, they risk losing to the other side. so what we need to do is to change the rules of the game and that would help to return the people to power, make it a a government of four and by the people. congress and the president could commit themselves to ground rules by statute or let me give you an example of how this could happen. the money trick. think about the truth in lending act. it makes it a crime or lender like a bank bank to lend you money without getting a piece of
paper that states exactly how much you're going to have to pay every month to pay off the loan. let's apply the same thing to congress. under the honest deal act. here we would get a piece of paper, along with that envelope that has the letter that tells you how much her social security is going to be, there should be a letter in their saying well, for government to make ends meet in the long run, this is how much per year the average family will have to be either in terms of tax increases or spending cuts. and by the way, this is how much that figure has been increased or decreased during the last congress. and by the way, if we don't start putting that on the public now, this is how much greater it will be down the road. which will tell voters that is going to be a terrible future for their children and a very questionable retirement in terms of medicare and social security unless we can to face up to the
snippet that's when to shift the blame back to where it belongs, to what should. not to beat up on members of congress, but what members of congress be honest with us, that makes us honest with yourselves about whether we want, really want these somethings we keep the nanny from the government. and that's how the government responds, i don't have prescriptions on that. i just think it have to be decided by elected officials who can no longer keep the constituents in the dark. and this has analogous ways of dealing with the other tricks. and all of this is late out on the website for my book. it's www.d.c. confidential.org. if you look on the second over on the top how to get an honest deal, there's a summary of the
app regularly and by the way, if you go all over to the right where it says games, there's some online games that are kind of fun that will explain to you exactly how these tricks work, and betty by the book and it's only three dollars a trick. [laughing] i think we can get this honest deal act, at least i think that an optimistic moments. it's a statute, not a constitutional amendment. it is about honesty. it's not about left versus right which is why i think howard dean and michael are supportive of the book. the key thing is this. if voters were to think about it, they want an honest deal, and i think dear bosses, members of congress for whom you work, you know that deep down in their heart they want to do honorable service for the constituents. and they often don't have time to think about the kinds of things i'm talking about, we are documented today. but i think they want to know about these things. i want you to go back to your
offices and talked to the members you vote for anything to them why they should be for an honest deal. thank you for your attention. [applause] >> well, thank you, david come for this book and thank you to the federal society, one of my favorite organizations, for and buy to join this conversation. it's a tough act to follow, not just the book and a substance but also the promise of video games, which is hard to top. let me start with a movie scene that i think is relevant to the conversation today. one of the opening scenes of the godfather, vito corleone is in his office and this lounge singer tide comes in, frank sinatra knockoff. comes in and is baking the godfather for help, the hollywood producer is treating imported. he to get this big role. what should i do, godfather?
he's crying. vito corleone jumps up out of his seat and that's thanks enough to buy the call and starts slapping in the face and says you can act like a man. here's wha why i think that sces relevant. one of the sadder moments of recent years in congress and washington in general was the moment when the house of representatives was left with no choice but to file lawsuits against the president over overstepping its bounds. just like a frank sinatra the movie, i understand why he asked for help, why did what he did but it still a sad scene in the movie. i thought the lawsuits were sad thing. the first branch was reduced to going to a federal district court and asking some district judge to solve this constitutional crisis, was a very sad moment, very sad moment. it was a moment that revealed that congress at the point really had given away its powers, not in that moment but over the course of decades a
given away its powers, especially to the executive branch, the minister agencies. this book is a bipartisan effort including the forward by governor dean and senator lee. i would like to hearken back to one of my intellectual heroes is a progressive, the late john healey whose david's work reminds me of very much. in the same as and distress, he focused on the problem of delegation and how it had against our democratic values come a value of accountability. .. .... .... ....
>> because of accountability. accountability is frightening stuff. i admire professor heely for pointing it now and now the professor doing it today. there is good books on the collapse of congress. from the person running regulatory affairs for the white house and the former oi chief criticizing congress. but i think they diagnose congress has shifted from first branch to the next state. it is hard toosz a way out. the fact there is these agencies out there invested with immense
power that can try to solve problems in lieu of congress has much less incentive to bargain with the congress. we know the president can walk away from the bargaining table and use agencies to achieve policy. it has a gravitational pole on politics. we lack a theory of what congress is and what it should be doing.
i think it is good having these debates especially with the debate. i think the solution has to be the solution james madison identified in the federalists. we are counting on ambition to counter act ambition. i don't have a question for that but i think this book, and other parts of the book, focus on how do we shame congress into doing the right thing. that is part of ambition but not
and i am wondering what it was culturally or polytpolitically the shifts that led to that? at the end of your remarks, you said your reforms are legislational not constitutional. what about constitutional change? i thank you very much for this. [applause] >> i will make fairly brief remarks and give you time to ask
questions. i wrote a book i coauthored with tom davis. tom was chairman of the republican committee for four years and i was chairman of the democratic congressional committee for four years. we didn't share it at the same time so remained friends. we have spoken at several n presidential libraries and universities and talk about the problems we see in congress now. the premise is correct. congress should be the first here put congress doesn't function that way most of the time. in the book, the partisan divide crisis and we set out a number of reasons is the president
punted this. you saw that with obama and you see it with trump. one of the lawsuits adam mentioned involved immigration refo reform refused to act. i think that was used in describing one of the presidents. obama sat around and said if these guys don't act i will and that is the dreamers. the young people brought to the united states when they were young, grew up in the united states, and may be subject to deportati deportation.
obama stayed that and the courts said no, that wasn't expect what he did and then there was a lawsuit brought challenging what the president was doing but if congress had acted during the 6-7 years preceding that on immigration reform the president would never have had the opportunity to issue that order. somehow congress has to have the courage and desire to exercise its power. we pointed out, the reason you have this deadlock in congress these days there is a variety reason. 80% of the congressional districts are drawn to be safe districts for one party or the other. whichever party is in control of the legislature will jerry mander the districts in favor of
that party. the result is members in congress are more vulnerable in the primary of their party. very few members of congress are defeated in the primary party. many members live in mortal fear they will have someone to their extreme run against them in their own primary that is low turnout and a lot of outside money spent and they can be defeated in the primary. members are reluctant to be seen in public with the other side or enter into joint legislation because they will be punished. we suggested you could have independent commissions draw districts. it is done in five states and new york just decided to do it and maybe you would not have districts that were so crazy looking and didn't punish bipartisanship which is what
safe districts do. and i know david this wasn't the purpose of the book but the role of money in politics is specific in terms of being a deterrent for any action by congress. members of congress fear an outedicide group -- outside group. members are risk advance and we know they could head their way in a general election and they don't takes chances. they don't try to exert their authority as an institution.
the problem with that is the supreme court has said money equals speech and it is first amendment issue and it goes to your question, adam, in terms of are there constitutional amendments that would be considered and one would be decided congress has the authority to regulate the amount of money spent in the race and require all contributions be disclosed. will congress do that? that is unlikely. that is true whether you have a democratic or republican party. members of congress like the system in which they were elected. they understand it and it makes them feels better. it is hard to bring about inconstitutional change in this country. i point out we were founded in a revolution that represents conservative government. it is hard to pass law, hard
amend the constitution and hard to affect change unless you have a super majority in both houses of congress and a president of your own party. the federalists put on program in january kicking off the idea of studying the role of congress and i pointed out that time and got a lot of puzzled looks and some may be in the room i pointed out just because the republicans and the president and both houses of congress doesn't mean they will do everything they want. and in fact, we have seen that early on there have been divisions in the majority party. the best example of this the passage of the civil rights of 1964.
he identified civil rights as his number one priority. the filibuster in the senate would have prevented consideration of this legislation. you had a lot of anti civil right folks and they are not around today. johnson went to the republican leader from illinois and said you are from illinois. you need to be for civil rights. you are from the land of lincoln. dirkson thought about it and decided johnson was right and provided the republican votes to break the anti civil rights filibuster. the question is could that happen today? if johnson were alive and in his glory could he maneuver something like that? the and answer is no.
we have a poisoned partisan atmosphere in this country that is difficult to form coalitions and particularly difficult because of the role of outside money and one-party districts and making people fearful in taking actions which strengthen the role of congress. congress should be a strong institution. the war power act is different. it was passed in the '70s as reaction to involvement in vietnam. the president can commit troops in an emergency for up to 606 days and then has to come back and get a vote of congress -- 60 -- to continue having the troops in the field.
presidents of both parties have taken this is unconstitutional. the president is commander and chief and has the right to declare war and he can pretty much do what he wants to. interestingly, even though democratic and republican presidents have taken the through it is unconstitutional, two republicans presidents voluntarily agreed to comply with the war powers act. george h bush and george w bush. they both voluntarily asked congress to pass a resolution authorizing the use of troops and congress did on a bipartisan basis. there were a number of those who
didn't. i happen to think that the people who are arguing in favor of that right now are correct. there should be a vote in congress. if we are going to be engaged in this continuing war there ought to be a vote by congress. it shouldn't just happen because of the desires of a particular president. this is an interesting time and i think the federalist society is doing the right thing about raising questions but there are a lot of complications that could prevent congress from exercising its proper role as the first branch and there will have to be institutional changes
if congress is going to do that. >> let me respond to your questions. >> you have to push the thing down there. >> thank you. okay to adam's comments, thank you for your thoughtful observations. how to make congress more ambitious? i think about what they parents did when i was a so-so high school student. they pointed out i would suffer the consequences if i continued that way. i think making congress more responsibility for the consequences of what they do would help. second point, what about the '60s? i point out general things like the civil war and depression but if you look at individual tricks you will see things that helped trigger that like the debt
guarantee trigger trick. we avoided any great financial turmoil since 1929. we can do it. the regime was there. think about mandates. well, in the '60s the states were in bad order. the seven states were rebelling against the supreme court and requirements against the 14th amendments, riots in the northern states, the book pointed out this made congress more willing to come down on the states. regulations, this idea of having enforceable rights at the federal level, that would be imposed throughout the country through an agency that was unthinkable before you had the xerox machine. there are a lot of other technological changes in how
science work that made it thinkable for congress to regulate the rights. when asked about constitutional change and if i think that is part of the answer. where made a tactical decision not to talk about constitutional change because i think constitutional amendments are an excuse to keep the tricks going. take the balance budget amendsment. it ain't going to pass but gives members of congress who have constituents who care about fiscal responsibility a way to say i care about fiscal responsibility while not doing a darn thing about spending your taxes. it is a distraction. i would talk more about constitutional change if i thought it was plausible and we could have meaningful constitutional change. we were able to standoff that.
representative frost makes good points on jerry mandering. i agree it is a terrible problem. i thought about talking about it in the book but couldn't figure out a good solution so shut up. as to the role of money, i agree it is terrible. i would say the tricks let the money talk louder because they give people away of satisfying money but avoiding blames for the adverse consequences on their constituents. bipartisan, i think the tricks help cause the partisan divide. if you are regulating about air pollution in terms of what percentage to cut there is a middle ground. you don't want to cut it 0%, you don't want to cut it 100%. you don't cut it 100%.
you don't grow beans without some air pollution. but the tricks low -- allow you to take polarize positions. i am against pollution. i am against loosing jobs. many people think the war powers act is unconstitutional. the war powers act works on giving a command to the president; you must bring the troops home. that is inconsistent with the commander and chief clause but by version would be cutting off funding. i think it is a misinterpretation of the war powers act on the books to say the president doesn't have to go to congress if he pulls the troops out within 60 days. no.
the fact specifically requires president to come to congress at the beginning of the hostility and i think president trump was to be faulted since he said i got out in 60 days so never needed to ask congress. wrong, wrong, wrong. thank you for the comments and look forward to the continuing discussion. [applause] >> when people ask questions, they don't have to go into great detail but if they work in the house, senate or just an interesting citizen. >> identify yourself and i will repeat the question from the podium.
>> i am from the cato institute. you talked about the war power exception and how the 60 days oen only applies to an attack on the united states. my question is what has congress done to delegate this? has congress done anything and how would you fix this problem beyond the war powers act? >> what congress has done, the congressional leaders, have gone to various presidents and said you are about to commit treason let's have a vote. that is what happened with the bush's. the leadership went to the president and said you are better off as president if we can demonstrate that the koupt country is behind you. short of that, i am not sure what could be done. >> i would reformulate the act to make it absolutely clear that the president needs to go to congress simultaneously or at least within days of the beginning of the hostilities.
that is what i would do. >> other questions? >> your solution seems to be providing more information about the consequences of congressional enactments. i think that calls for engagement from the citizens who hold them accountable. can you talk more about your view of the role of the citizen? i think citizenry is not in the place to take on more information. it is information overload at this point. what would you suggest to embrace their role? >> to repeat the question: how do we encourage citizens to be more involved in this process? what role do they have to mrap addressing these tricks? >> there is a number of books that talk about our citizenry
and how informed they are. some say they are not informed and don't know what acronyms and blah blah are. jeremy walter says political scientists do a disservice because they basically excuse what is fraud on the part of the legislatures. there is another group of scientists, page and shapiro who publish in chicago press, saying we have looked at 50 years of polls and it is amazing the extent in which ordinary voters have nuance position about policy, questions, the problem is they are being misled. so my answer to your question is let's give people straightforward information for a change. >> you know, it is interesting because we have a lot of young
people in the room. anyone know what year the internet went online? anyone want to hazard a guess on that? '89. a lot of people don't realize the internet is a relatively recent thing and there is no such more information available today. the question is because you don't have editors in many cases, you don't have anyone reviewing what is posted, what do we do about that? how do we make sure information people can easily access is accurate? mike zuckerberg is being questioned about why they let a murder show on facebook for a couple hours and it is a question on should the government intervene in what is
available to the public. i used to be a journalist, worked in newspaper and magazines, before i went to law school and got in politics. i am not for prior restraint or censorship. but somehow as a society, we have to deal with the fact there is so much inaccurate information available to anyone in the public. it is an enormous problem for us right now. >> next question. go ahead, sir. >> i am a third year law student at georgetown law. it seems the administration is sort of on auto pilot and if they were to internalize the functions it would just not get done. on the senate side, the legislative filibuster is a cap going forward.
so in terms of congress makes decision it would require a filibuster. >> the question is about the legislative filibuster, also is it realistic to ask congress to take back these duties from the administratef state which as he characterized it seems to be on auto pilot in a lot of ways. >> i think there is a lot of ways that the congress is less functional than it used to be. one is a larger proportion of the staff and the budget devoted to legislation, much more is devoted to constituent servicemeservice. members spent more time here. and i think what that reflects is with congress less
responsible, they tonight have to gear themselves up to producing good legislation. i think that ending the tricks would be helpful on the filibuster front because i think it would help by making the situation depolarized. i remember talking to one staff senator director and explained the proposal and he had if this was an act they would have to start paying attention. whether it would require a filibuster i don't know. but i would start with ending the tricks and see what the animal will do on its own and then see. >> adam? >> i have a couple thoughts on this.
in congressman frost's remarks we used the word legislative vacuum. i use that term a lot. i understand and appreciate the internal checks and balances within congress and the legislative process. one of the cost, though, is is there a vacuum in the policy space that in the short term will be filled by the courts. i think it is time to rethink things like the legislative filibuster. i am not saying i am against it but i think it needs to be rethought recognizing what one of its costs are. second thing, and again it comes from a very good impulse. in the 1990s the republican congress came in and wanted to cut costs in congress and cut back on their own staff. i understand why they did it. but the cost is the grs isn't as
well equipped -- congress -- to keep up with what is happening in the administrative state. maybe it is time to think about bulking up the constitutional capability. and finally, i think congress' muscles have atophry from lack of use. that is one thing i like about the reins act. it is controversial and not may favorite regulatory reform bill right now but one of the good things is it would force congress and the agencies to return to come sort of converivaticonve conversations. agencies would know they need buy-in before imposing the cost of the regulations. that would be a good way to get the wholes working, the muscles working again, but to return congress' institutional interest
and teach them to the speak the language of legislation again. >> i am an adjunct professor at uw political management and every course i teach i always have one of the classes dealing with the use of social media and congressional offices because that made a big difference in terms of the way your bosses communicate with the public. when i was first elected in 1978, we had foodeal with the franken commission and mas mailing had to be submitted to the commission, reviewed. unless something happened in the last year or two i don't think there are any restrictions or limits on what type of things can be communicated by social media by a congressional office.
a lot of congressional staff time is devoted to social media. that makes a big difference these days. congre congresswoman view their roles differently than when i was first elected to congress. what i do is i have young staff members from relatively new member and explain what they do on behalf of their boss. it is fascinating but not really about legislating or changing law and i am curious what people in the room think. >> you have lived this and seen it first hand so i am reluctant to question this.
i live in the ivory tower at stanford. but political parties are blamed for detaching the interest. congressmen see themselves first and foremost as members of the party either aligned or against the president. what do parties do? they organize, spread information, and they route funding to candidates. it seems to be a verse internet and restrained speech is one of things that could decrease the party's power over organization and information distribution. likewise, in terms of funding i know super pacs have their problems and there is a lot to be said about reforming campaign financing laws but super pacs are a source of funding outside of the stb established party
structures and they have ties and roots detached from the party. super pac and the internets seem like one of the solutions of the problems. >> adam, let me be clear. there are two types of super pacs. one candidate specific, which has to register and disclose n contribut contributors. the others are c4 and don't have to register with anyone other than the irs and don't have to disclose their con trib -- contributes. we spoke out against the campaign finance reform skwhie did we do that? we took the position that parties were centralizing force in american politics and what
mccain-feingold did was to take money away from parties, large contributions by individuals, labor unions and corporations. i had to file a report everything three month disclosing the soft money contributions i got as chairman of the d triple c. i sat down and said don't you i understand you will weaken the role of parties and this money is going somewhere. if you take it away from political parties it will go to groups on the fringes. i didn't appreciate the size of the amount of money going to the fringe groups would be and what a big role they would play. i said to the proponent of the bill don't you understand this money is going to be spent in unregulated ways under your legislation and his response was we fixed that. we took care of that.
i said what do you mean? he said we have a provision in the bill, the c4s, could not spend money within 60 days of a general election or within 30 days of a primary. my response was what happens if that is not constitutional and his response was our lawyers told us it was okay. it was not okay. citizens united said it was not okay. now you have enormous amount of unreported money flowing to the extremes in a way i don't think the reformers fully appreciated or understood when they put this piece of legislation together and you can't change that. i get e-mails, you get e-mails from people saying send us money and we will do away with citizens united but that was based on a constitutional provision, the right to spend
and raise money in the political arena and the only way you could change that to prevent these outside groups that don't have to report their money from doing that would be to amend the constitution. now, congress could in theory require these outside groups to report all their con tributocon but congress is unlikely to do that. whoever is in charge in congress, likes the system they were elected under stow is unlikely congress will pass legislation requiring c4s to report who their contributors are. that is an enormous problem that will only get greater and these groups have a greater influence and make members of congress timid, fearful they will lose in their next primary and i happen to think both democrats and republicans run for office for the right reason. they want to make this a better country.
they run for the right reasons. we talk about the department of parties and i particularly want to tell you about how the dissempowerment of parties has undermined the ability of congress to legislate. i want to talk about the reins act which adam white mentioned a statute that would require congress to vote on major regulations from agencies.
he answers commands from congress so we might want to think about it in terms of legislation from the legislatures. the reins act is another trick. the basic idea is one that comes from democrats coming back from the new deal. they had to draft statues in the '90s called the congressional responsibility act and that got bipartisan buy in but shifts along the way from a name that is pro-responsibility and anti-regulatory with many poison pills that would cause democrats never to sponsor it. so it will never pass the senate
because it is for legislative responsibility. it is for anti-regulations. sponsors on the house will never get this. in my book, i have ways of changing ways to make it pro-responsibility. for one thing, it ought to apply not just to major rules that increase regulatory burdens but it should apply to rules that decrease regulatory protection. that is accountability. it is about assuming a posture or poise. >> very good. any other questions from the audience? >> it has been an interesting conversation. people in both parties share the view that congress need to assert itself.
this is not the view of one party. in fact, you can suggest that strong presence in both parties have decreased the role of congress. so it is something i as a democrat i want to see congressplocongress more assertive and i think many of you want the somthing. -- the same thing. we will see what happens. yes? [inaudible question]
educate proper civic lessons and culturally we prefer a strong executive and it is turning natural rather than congress intepgz -- intentionally shifting those roles? >> i hope we get more civics on the books. in the meantime, i hope college students look as my games because it is kind of a physics lessons. i think part of the problem is that the president would present himself or herself in a co-herent way. it is a single voice where congress is in cohereant and there are many voices and i think that is a bigger problem in the age of television than it was before because you didn't
see the president before the age of television. i think the communication modes bring out the fact that congress is hobbled by the fact that it is speaking with too many voices. i think the tricks are part of it too. congress men looked ludicrous. i agree with representative frost that i think most people who run for congress want to do an honorable job. but they just don't look good because they are playing the tricks. you know it. they just can't figure out how to tricks work. we know it. >> i will give an antidote that reinforces the issue of the television age. when reagan was president, some of us on the democratic side whenever we gave the state of the union or joint session of congress, would step off the floor and go back in the cloak
roamseoom and we could watch hi television because he was better on the television than in person. a magnetic person whether he was john kennedy or ronald reagan. magnetic television personality makes a big difference in terms of how the public sees the power of the institutions. >> i would say i think it is important the president by nature is more energetting it is important to show the nature of the presidency be the strongest branch. hamilton recognizes with famous line like there is energy in the executive but elsewhere in hamilton's writings in debates
with madison he said the president has the first advantage. the president can take action swiftly and change the terrain in which the legislature acts. one of the original tricks was putting the legislative branch in article i not article ii even though i think the founders recognized the power of the executive branch. that is one of the reasons why i wonder if ultimately constitutional reform is necessary. i think inherent in our system, setting aside the technological we live in, the fact the president has immense power in his office that congress can't compete with. >> the early part of history, the legislative branch was more assertive and the executive branch not as powerful as it has been in the recent years. >> it ebbed and flowed. >> any other questions? i think we have had a wonderful discussion today.
professor, i thought we would conclude with you offering thoughts about the mentors you dedicated the book to. >> yes, that would be lovely. >> not to put you on the spot. >> i dedicate this book to a few people. neal henderson who grew up in rural minnesota and second is judge robinson for whom i clerked. he was one of the lawyers for the naacp crimes in the brown versus board of education. he with thurgood marshall and others. and the third was john door who was head of civil rights under robert kennedy. he was the one who walked up to the governor of mississippi and asked him who he was and was
shepherding an african-american student into a previously segregated state school and john door answered the question i am the law. i worked for john door in the restoration project in brooklyn. they modeled professional and courage. going from the small towns in virginia they had a lot of guts and neal did to and so did john because he was in danger of being shot at many places and many times. so, for me, writing this part of the book because it was so ambitious and took on issues and it took three times longer to write than my previous books, it took courage on my part to take on something so big.
they were of comfort to me in this process and that is why i dedicated the book to them. >> okay. very good. can we give the website again? >> yeah. it is dc-confidential.org. >> is it available on amazon? >> it is. that may be the easiest way to get it. it is $15 and change. so a few hours per trick. >> our dres is f fedsock.org/articlei. i want to thank our great panelists. thank you all for joi u