James Buckley: Saving Congress From Itself

I had an opportunity to sit down with Senator James Buckley about his new book, “Saving Congress from Itself: Emancipating the States and Empowering Their People.” Here is the entire conversation.]

Gayle Trotter
I’m speaking with Judge James L. Buckley. For starters, am I right calling you Judge Buckley? You’ve served at a senior level in all three branches of the federal government.

Senator James Buckley

Well, the protocol says senator, but the Senate is in bad order these days (laughs).

Indeed.

I’ve spent six years in the Senate and 15 years hearing cases.

GT
You wrote a new book entitled, Saving Congress from Itself: Emancipating the States and Empowering Their People. Many people are asking how this can be done. What is your thesis?

There is a category of legislation that has become today’s pork for Congress, and it’s gotten totally out of hand. A Supreme Court decision back in 1937, Steward Machine Co. v. Davis, opened the door. Let me define the category. I’m talking about programs that offer subsidies to states and local communities for a vast variety of the responsibilities that have the unique character that they are the exclusive constitutional business of the states.

What would be an example of this type of legislation?

Teacher training. There are 72 programs for teaching training. They’ll get conflicted with one another. Also, there is a single lane bridge joining two towns 12 miles from my home. Two million federal dollars will be spent to replace that bridge.

GT
This is in Connecticut?

Yes. Anything you can think of is probably covered by one federal grant or another and even some things you would never dream of are also covered — care of the homeless, transportation, education, filling potholes, job training. One that I stumbled across, again, in a nearby town, I read about in the local newspaper. Plymouth, Connecticut (population 12,000) was awarded about half a million dollars to broaden the sidewalks of two streets leading to a school.

Why would they do that?

Very simple, because there is a new Senate bill called “The Federal Safe Routes to School Program.” The purpose of the program is to fight juvenile obesity by encouraging children to walk or pedal to school and they’re getting half a million dollars for that. The problem, aside from the question of whether it is effective, is that members of Congress are now devoting a major portion of their time into either creating these programs or helping local constituencies get a federal grant for local purposes.

GT
You write about how senior congressmen handed out sample schedules to some freshmen congressman, giving them a suggestion of how to allocate their time. What struck you, and struck me in reading your book, is how significant an amount of the congressman’s time spent while they’re in Washington is devoted to fundraising.

Yes. That brings up another concern of mine and one that has earned me immortality in law schools. When I was in my six years in the Senate, I never picked up the phone to raise money. I never went to fundraisers. I’d say pretty words, but other people did the work.

That’s astonishing.

The 1974 Campaign Finance Reform Act placed a limit on what an individual could give to a candidate. That means that you have to be constantly looking for money, and now, according to that schedule you’re referring to, three or four hours a day are often devoted to just picking up the phone and begging. If you didn’t have that limitation on contributions, there would be no problem raising whatever you needed to have a decent campaign. Just because you were in office, you would attract funds.

GT
You gave as an example your successful Senate campaign and also the presidential primary campaign of Senator Eugene McCarthy. When you each were running, neither of you would have had as much success as you did if you had to stick with what ended up being the law and was upheld by the Supreme Court in the case that is your namesake, Buckley v. Valeo. If you had to stick with raising those smaller amounts, you would never have had the seed money to kick off your campaigns.

I could never have gotten off the ground. I was a third-party candidate, which means that you have to sound plausible. One family gave me $18,000, which is now totally off base. This amount allowed me to commission polls and get things started up. A friend put up securities against which he borrowed $40,000 for my campaign. With that money, I was able to persuade the press that I was viable. In the case of McCarthy, he was challenging a sitting president, namely, Lyndon Johnson, and 12 individuals gave him $1 million. He could never have gotten off the ground but for that amount, and the fact that he was able to bring an effective challenge caused Johnson to decide not to run for reelection.

You make the point that with the individual contribution limits, congressmen and senators are very distracted from the job that American voters have put them in Washington to do, and you suggest abolishing those individual contribution limits. Current campaign finance law requires disclosure of who contributes and this has had a negative effect. We see that problem with the former CEO of Mozilla, Brendan Eich, who was forced to resign, essentially, because he had donated to the Proposition 8 debate in California, and you suggest doing something different to avoid this problem.

The Supreme Court supported the limits for an individual saying that this is in the interest of avoiding corruption or the appearance of corruption, and those are real considerations and concerns. The argument in favor of allowing everyone to give what they wanted to was to require disclosure. So you knew who was giving to whom and therefore you could draw whatever conclusion you wanted.

But as you mentioned, in recent years, people would scrutinize who gave to what and start harassing them. Vicious threats, personal threats, boycotts, you name it, and suppressing, basically, their political speech. It occurred to me that the way to fight that problem is to make it illegal for a candidate to know who is contributing to the candidacy and that can be done very simply, establishing a bank and say this bank is the agent of X and Y election campaign. You send the money to that and once every week a check will go out with no names on it other than the bank’s name, presumably. I think that would work.

GT
You quote James Madison that, “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.” Is that possible?

Madison is referring to the need to have institutional controls. This was built into the constitution by a group of extraordinary individuals who had actually studied the history of failed attempts at political liberty, going back to Greek and the Roman times. They did this in two ways: first of all, have the separation of powers at the federal level, a Congress that could hold a president in check, a president who could veto legislation, and a Supreme Court who could say that the Congress or the president weren’t playing by the rules. The other, and extraordinarily significant control, was to limit the powers, delegate it to the federal government, and reserve everything else to the states so that you had, in theory, the states in tension with the federal government.

If the federal government started messing around with matters that were the exclusive authority of the State of Utah, presumably people in the State of Utah would go to the courts to regain control. And the ultimate thought, what Madison also said at that part of the Federalist Papers, ultimately, it’s the people who’ve got to control both of them. My book is focused on what has absolutely neutered and undermined, the concept of federalism, the separation of powers. Through these federal bribes, Congress uses money to concern itself with matters that it has no constitutional authority to write laws about, but invites the states to accept contributions for roads, for teachers, this, that, and the other, but if you’ll accept that money, you are bound by all the tangle of regulations that Congress or different bureaucrats have attached to that money.

You call that “persuasion by seduction” in your book, right?

It’s persuasion by seduction or bribery (laughs).

GT
You served as a senator and as a federal judge. You mention that when you were a senator, you were not familiar with the term “subsidiarity”, but you understood intuitively how important that concept is to a successful democracy. Can you explain?

Yes. Supreme Court decisions have muddied the definitions in the Constitution. The commerce clause, for example, has been used to say that a farmer who is growing wheat for his own cattle’s consumption nevertheless is interfering with commerce. There is another provision in the Constitution called the spending clause which authorizes Congress to spend money “to pay debts and provide for the common Defence and general Welfare.”

It was impossible, when I was in the Senate, to say when someone proposed legislation there was no real hard constitutional guide anymore, basically words in the Constitution, and they were no longer being applied that way by the Supreme Court. That is how I found myself in judging whether or not a particular bill was any of the business of Congress to go to the logic of the separation of responsibilities, and so I said, “If this is something that the states are capable of handling or if a local community is capable of handling, it is precisely the kind of responsibility that the people who drafted the Constitution said the federal government should pay nothing about.”

I later learned that this is an ancient principle of governance and it’s called the rule or principle of subsidiarity. What that says is that human responsibilities will be exercised at the lowest level capable of handling them, beginning with the individual. You are going to decide how you’re going to spend your own money, how to earn it, you’re responsible for the education of your children, etc. Then if it’s the fire department — well, a town, is able to decide how many people to hire or, where I live, they’re all volunteers, and what kind of equipment you need, etc. It would only work if one government was in charge of national defense, Army, Navy, and so on, one in charge of currency, one in charge of the post office. Those are national as opposed to local or state responsibilities.

Some argue that the complexity of today’s world demands that we have more laws. You point out in your book that, in 1934, the entire United States Code took up one volume, and now it takes up 25 volumes?

I think it’s over 30 now.

GT
Over 30 volumes?

They expand so fast I can’t keep up with it.

Yes. You point out, too, that the Code of Federal Regulations, which are the implementing statutes by the executive branch agencies have swelled, too. For some of the most recent and most controversial bills, like Dodd-Frank or the Affordable Care Act, many regulations have not been finalized and many have not even been written yet for comment.

Right. Congress never can know the impact of the laws they pass because the details are handled by agencies whom nobody elected and nobody can fire. But, yes, we live in a more complicated world and maybe we need more laws, but they don’t have to be national laws. If the State of Connecticut, where I live, wants to convert itself into a social democracy, it’s doing it pretty well (laughs) and running up its deficits.

GT
Beyond the fact of the enormous dollar amounts of the grants-in-aid programs that you have shown create lots of problems, what are the hidden costs of such federal programs?

At the federal level, there are now 1,100 such program. They are now authorized, in this coming year, to distribute $641 billion (which is one out of every six dollars spent by the federal government). But, also, you need to establish a bureaucracy to draw up the rules, decide which applications for grants are appropriate, supervise what the states are doing to make sure they abide by the rules, and so on. This requires that you add another ten percent, that’s the estimate, so that is extra cash out of the federal government.

One of the critical costs to the federal government is that the members of Congress are spending so much of their time on matters that are none of its business, and they’re ducking, therefore, or failing to come to grips with entitlement reform, with tax reform, immigration laws, and what we do about the troubles in the Middle East and all the rest of the things that only Congress can handle.

At the state level and at the community level, the variable costs explode. First of all, they, too, must establish their own bureaucracies to go through the book of “gifts.”

It is a 3,000 page long book with all the programs?

Yes. They also have to manage them according to the federal rulebook, but other things come into play. For example, they can totally distort the states’ own priorities because if Congress says, “Here is a program that’ll contribute $4 for every $1 that the state puts up,” that gravitates the people in the state house (the governors and so on) towards those things where they can say to their own people, “Gee, we’ve got all of this money from Washington, and we only put up XYZ,” and example after example of how that takes money away from top priorities.

Another thing is that Congress, over the years, has created all kinds of mandates which means if any federal money is used for a particular purpose, suddenly you’re not only bound by the rules affecting that particular program, but you trigger other obligations. And I’ll give you one example: There is something called the Davis-Bacon Act, and it provides that any time a federal dollar is used for construction (roads, buildings, you name it), the workers must be paid the equivalent of union wages, irrespective of what the price is required to get decent labor locally. And in many instances, this can add 20 percent to the cost.

Take the Education Disability Act. If you get into that field, suddenly there are 1,700 pages of regulations, that are costly, that add to what you have to do to get that original grant. One county in Virginia, I think it was in 2003, found that it was struck with $260 million of uncompensated obligations. Now, that’s serious money. It doesn’t go into what people see as the cost of this program, but it is part of the total cost.

GT
Explaining the demands on our congressional representatives, you write about how a senator goes on a bus tour of his state, and he asks his constituents what they’re concerned about because, like Senator John Tower told you when you were new in the Senate, a senator’s first job is to be reelected. What does he hear from his constituents? He hears that they need help with jobs. They’re concerned about the price of college. They’re not talking to him about what’s going on with entitlement reform or other pressing national issues.

Yes. The average citizen’s most immediate concerns are the things happening in his own neighborhood. The street that isn’t working, the pothole there, the quality of the education, and then that example you gave, the bus schedule that is only being kept open after 8:00 at night thanks to a federal program. Now, these are things that are the business of city councils and governors. Yet, they’re absorbing this huge amount of a newly elected senator’s at this time, who ought to be spending that time, not riding the bus to chat with constituents, but getting up to date on the solid national problems he’s being asked to solve.

How do lobbying groups like trial lawyers associations, by their advocacy, help create a program like Obamacare by advocating against tort reform?

(laughs) The thing is — and lobbyists, of course, can work a state capital just as well as well as Washington, D.C. — it saves a lot of time if you get the federal government to impose the craziness on 50 states. And that’s, of course, one of the problems, that Washington will come up with one law to fit every situation which analytically just makes no sense. Because when you’ve got a State of Hawaii and a State of New York, their problems are dramatically different and one needs to handle them in different ways by people who know that there is a different climate in Hawaii than there is in upstate New York, etc.

The rigidity of the rules create expenses just because you end up doing things that make no sense, but money is pouring out. There is another reason these things create expense. If you are spending somebody else’s money, you’re not nearly as careful as you are if you’re spending your own money so that there is a waste there. There isn’t that attention to detail.

Another cost is that because when you have any one of these 1,100 programs at work, because the state official in charge of implementing that program is bound by the rules made in Washington, you can’t hold that state official responsible for monetary waste or for the failure of the program to work.

GT
You quote Ronald Hartwell who wrote, “Intellectuals dislike [classical] liberalism because the market economy does not reward them according to their own estimate of their obvious social wealth. Intellectuals, therefore, prefer economic systems which give them a place in the sun, in which their cash rewards are almost certainly higher, and in which their power rewards are undoubtedly higher. Increasing the power of the state measurably increases the power of intellectuals.” Does this make you think of MIT Professor Jonathan Gruber, who criticized the intellect of the American voter while bragging about being an architect of Obamacare?

(laughs) I hadn’t thought of the connection. I say in my book that the quote may be a little harsh.

Yes, you do.

(laughs) But it makes an important point. One of the rationales for having the federal government draw up the rules for filling potholes and so on is that the federal government can attract the finest minds, the greatest expertise, and therefore can do a better job than the states can. These people are human beings. They find themselves in a position where they can satisfy the understanding of how it should work. They may have no practical experience. When you think of the headlines in the past year, the inefficiency and worse of the IRS, Veterans Administration, Centers for Disease Control, etc., I hope it’s blown in the public mind the myth that Washington necessarily knows better.

The fact is — and I have no doubt at all — that Washington can attract the people with the greater PhDs and Professor of such-and-such at Harvard and so on, but I would rather have somebody design a bridge across to join these two little communities who is part of the community, knows what the people want, knows what the labor costs are, and so on, than somebody who is in the federal Department of Transportation.

GT
What problem does careerism create for federal politicians and those they represent in DC?

Once upon a time, service in Congress, and this goes back many years, was a privilege to serve while you were leading your ordinary life. You were not making this a lifetime commitment. Once, psychologically, this becomes your lifetime and you’ll end up with a generous pension at the end of the line, you start cutting corners in order to ensure your reelection. Or you start taking bus rides to say “I’m getting close to my constituents and I’m learning about their concerns in their heart, and I’ll see what I can do about them when I get back to Washington. Therefore, when I get back to Washington, I get them a grant to handle this, that, and the other, or create a brand new program to show that I care.”

It is a diversion of time from what they should be doing. In Congress everyone understands that this is the imperative, get reelected. I recall, if you’re in the Senate, the senators are doing so much in Congress they can’t do anything very well. You may know very little of what’s going on in this committee event. The bell rings, you rush, there is going to be a vote and a member of your staff is there and says this is the bill. He knows nothing about it. You know nothing about it. You go to somebody on the relevant committee and say, “What’s this about?” I remember the year before I was up for reelection, a good friend on the finance committee said, “Jim, this is a lousy bill, but you live in that liberal state called New York and you’re going to be up for reelection next year, therefore, you’ve got to vote for it.”

So did you?

No, I didn’t. (laughs) And I didn’t get reelected.

GT
A man of principle. How do you propose to get your idea going?

These programs I’ve been talking about, as a category, for whatever reason, they have never attracted a discussion, or criticism, or analysis. There is one exception at Cato Institute, Chris Edwards, who has focused on the cost of this kind of legislation in the terms that you and I have been discussing. Generally, people will say “I do” or “I don’t approve of this particular bill that’s gonna send some money to do this for the homeless.”

Or the bridge to nowhere.

Or the bridge to nowhere. If the public at large comes to realize the true cost (and this isn’t a liberal versus conservative thing, just across the board), they will know that if you care about not wasting money and you care about retaining the ability as a voter to influence what happens in your state and in your community, then you’ve got to be for this proposal of doing away with this diversion from the original constitutional plan.

This means that I hope this book will start the conversation going, start the analysis coming. Ultimately, it’s up to Congress, unless the Supreme Court reverses a decision that it made back in 1937. But we have a recent example of how if you can stigmatize a practice it can be abolished. Do you recall a quaint word called “earmarks”?

An appropriation bill four or five years ago had over 1,000 earmarks. One senator, Tom Coburn, started attacking them and he was able to so stigmatize the practice that two years ago, he persuaded Congress to abolish earmarks. So this sort of thing that I propose is not impossible.

How will you measure the success of your idea: 1) if it makes people think; 2) if it changes something; or 3) if it is completely implemented? You are proposing all of these programs to be abolished over a period of five to six years?

No, I’m proposing that they be immediately abolished, but because these programs have grown to a point where the average state receives 30 percent of its revenues from them, you can’t stop that flow of money. The same legislation that says all of these programs are terminated will also say, however, we realize that states and communities have, at this very moment, the expectation to receive various grants of this much money this coming year. So Congress will create block grants, and that is money with no strings attached, in that amount and transfer them to the states and then phase out those grants over a six-year period, which will give the states and the federal government the time to revise their respective tax laws so that 100 percent of the money being used to repair Connecticut roads will come from Connecticut taxpayers, a simple proposition.

GT
Some might argue that the way it is right now is good because we are experiencing redistribution from wealthy states like Connecticut to poorer states like Mississippi, but you address this?

I say that this is a reasonable concern but that it’s simplistic to handle it that way. Let’s use education for example, because we all believe that a certain minimum level of education is required for Americans if we want to have a thriving society.

Yes.

One way to redistribute from Connecticut to Mississippi is to say, “Okay, Mississippi, here are so many millions of dollars, which you must use for education, but we’re not going to tell you how to educate your kids.” If you do that, you’re not telling Connecticut that in order to help Mississippi, we’re telling you how to educate Connecticut children. You would get away from all the red tape and phase it out.

But I also pointed out that to decide how you want to distribute money, you’ve got to take into consideration something called cost of living. I give this example, the per capita income of Mississippians is 75 percent of the per capita in Hawaii, but the cost of living in Mississippi is only 50 percent of what it is in Hawaii, and I don’t think anyone is going to suggest that people in Mississippi should want to send money to Hawaii. I’m just pointing out that these are some difficulties.

GT
What surprised you most in writing this book?

Among other things, how hard it was to put dollar figures on a lot of these costs I’ve described. Overhead you can do, and the money going out, and so on, but how do you quantify the distorted incentives, priorities, and so on. I spent six years in the Senate, two years in the State Department, I heard cases for 15 years as a judge, and I was utterly unaware of the existence of this category and its implications as opposed to individual programs. I didn’t realize that the root of that was this obscure Supreme Court decision in 1937, and it was only when these things came together that I realized that this was modern day pork and that this was, again, human nature being what it is, a reason to understand why members of Congress were spending so much of their time on state and local affairs rather than national affairs. No one thing surprised me, except this thing pulled together over about a three-year period.

Your younger brother, Bill Buckley, wrote that he hated writing but he loved having written. Do you agree?

He was a very fast writer. I saw him sit down on a typewriter, looking at a television program when he was running for mayor on election night in New York City, not expecting to win. He typed this column, he changed two or three words, and out it went to over 200 newspapers around the United States. Every paragraph you see in that book, I had to write, rewrite, scrub, and redo. Writing for me is extraordinarily difficult.

What were Bill Buckley’s last words to you, if you remember them?

“I’ve got to go upstairs. I’m not feeling well.” This was after lunch at his house. He was having terrible emphysema and other problems. He was just in very bad health.

GT
Do you think there is anything about Bill Buckley, his personality, or his conduct, that is misunderstood or perhaps not properly appreciated?

His utter generosity, utter imaginative generosity, thinking of ways of helping people in creative ways, because he, on Firing Line, it could be acerbic and this, that, and the other, but he was just a wonderfully warm, caring, human being.

Thank you very much.

First published on Townhall in January 2015

About the author

Gayle Trotter

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