Why We Should Care that 279 Members of Congress Have Promised Not to Do Their Jobs

"For heaven’s sake, you have Grover Norquist wandering the earth in his white robes saying that if you raise taxes one penny, he’ll defeat you. He can’t murder you. He can’t burn your house. The only thing he can do to you, as an elected official, is defeat you for reelection. And if that means more to you than your country when we need patriots to come out in a situation when we’re in extremity, you shouldn’t even be in Congress."—Former US Senator Alan Simpson, “I Guess I’m a RINO”

       When the current moment becomes history, I suspect that historians will be as baffled as I am by the fact that 238 members of the House of Representatives and 41 Senators—all but three of them Republicans—have signed something called the “Taxpayer Protection Pledge” in which they promise that they will never (ever, ever) cast a single vote to raise taxes. Given that “the power of the purse” is one of the most important duties entrusted to Congress by the Constitution, the pledge they have taken amounts to a solemn oath not to do their jobs.

       Let me be very clear here. I am not saying that the job of a legislator is to raise taxes. It is to determine, by the facts available at a given moment, what the appropriate rate of taxation should be. This is not an easy job; it requires a painstaking balancing of different interests and potential consequences, which is why legislators get large staffs, big salaries, and choice parking in downtown Washington DC to deliberate about such things. Nothing shuts down the purpose of a deliberative body quite like an a priori declaration that you will not, under any circumstances, deliberate.  

       Anyone making an absolute and unconditional promise not to ever vote to increase taxes must, of logical necessity, accept one of the following statements: 1) that there will never ever ever come a time when raising the tax rate is in the best interest of the country; or 2) that something (i.e. campaign contributions, the political support of the anti-tax lobby, etc.) is more important than doing what is in the best interest of the country.

       Since no politician will ever admit to believing the second statement (as true as it might be), the only possible grounds for signing the tax pledge is that one believes that there is NOTHING that could EVER justify a tax increase, which is clearly an insane position to take, our not being gods or having access to the future and all.

       The Founders—especially Alexander Hamilton—thought about this stuff quite a bit, and they tried hard to design a system that would be capable of responding to anything that the future might throw at them or us. In Federalist #34, Hamilton argues that the government’s power to tax should be virtually unlimited because the issues requiring a government response are impossible to anticipate:

We must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity.

          What is the “Taxpayer Protection Pledge” if not a unilateral decision by an individual elected official to limit the government's capacity to raise revenue for an indefinite period of time? It assumes, not only that the government does not need more revenue right now; it assumes that the government will never, under any conditions, need more revenue. Such an assumption as Hamilton clearly understood, is an abdication of the Constitutional responsibility to govern.

       Alan Simpson has apostatized from the Republican Party to tell us that now would be a good time to consider raising taxes--and cutting spending--in order to reduce the deficit. There are some fairly compelling reasons to listen to him. The federal tax rate is currently at its lowest point since the end of World War II, and, not coincidentally, the deficit is higher as a percent of GDP than it has been since 1947. Serious economists on both the left and the right agree that we cannot manage the debt without raising taxes, and Americans support modest tax increases for deficit reduction by a 2-1 margin. And yet, as Simpson acknowledges, we will almost certainly not see any Republicans voting to increase taxes any time in the near future because “Grover Norquist won’t let them.”

       The important question, now, is ours: why do we keep sending people to Congress to do a job that they have signed a written agreement not to do?

If He's Running for President in 2012, Why Does It Sound So Much Like 1954?

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.--James Madison, Federalist #10 

In an increasingly diverse and growing nation of over 300 million citizens of varying religious, ethnic, and cultural backgrounds, this benefit has only grown in significance and impact since the Founders contemplated and implemented federalism. From marriage to prayer, from zoning laws to tax policy, from our school systems to health care, and everything in between, it is essential to our liberty that we be allowed to live as we see fit through the democratic process at the local and state level.—Rick Perry, Fed Up!, p. 27

    If we look closely, we can see that the majoritarian tyranny Madison feared is simply the flip side of the “responsiveness to the people” aspect of state sovereignty that fringe conservatives praise. Rick Perry’s sunny dictum that “states allow us to live with people of like minds” should scare the socks off of people who live in states where their minds (or bodies, or economic values, or religious beliefs) are unlike those of their neighbors, as the Perry doctrine comes perilously close to declaring open season on their basic civil rights. 
     Though Governor Perry clearly has other political issues in mind, his words have an eerie resonance with the stance that most Southern states—including Texas—took against civil rights for African-Americans for most of the 20^th century. On the issue of marriage, for example, the State of Texas had one of the nation’s strictest laws against interracial marriage until the Supreme Court’s Loving v. Virginia decision overturned all such laws in the United States. Schools, health care facilities, public transportation, and most other state-controlled services were similarly segregated throughout the South until the federal judiciary forced states to comply with the Fourteenth Amendment and grant all people within their borders basic civil rights.

    But we need not go back to the Civil Rights Era to see the rights of minorities being invaded “through the democratic process at the local and state level.” A Pew Research Center report released on August 30, 2011 documents 37 challenges to proposed mosques and Islamic Centers in the United States between 2008 and 2011, nearly all of which included some element of community discomfort with the Muslim religion. Most of these construction projects have been allowed to proceed, but often only with some pressure from the federal Department of Justice, which launched 16 investigations of Religious Land Use violations between May 2010 and August 2011. Without some federal check on the power of state majorities to "live as we see fit," I suspect that American Muslims would have a difficult time securing the right to worship freely in a number of state and local jurisdictions.

     Perry’s assertion that states “allow us to live with people of like minds” posits a world that simply does not exist—a world in which every citizen of a particular state has made an affirmative decision to live among people who share his or her values and perceptions. In this world, people are not constrained to live in certain places by economic circumstances, family ties, job opportunities, health-care needs, etc. Those who don’t like a certain political climate can simply move around until they find a more suitable one.

     This is not how life works for most of us. We live where we live for all kinds of reasons, most of which have very little to do with whether or not our governor packs heat on his morning jog. Conservatives live in Massachusetts, liberals live in Texas, Mormons live in Alabama, Catholics live in Utah, and everybody has certain fundamental rights that are not subject to the whims of the people around them. While majorities will generally get their way on most political issues, they cannot get their way all the time, or our society will cease to be free. The Founding Fathers who supported the Constitution, and wrote the Federalist Papers, understood this clearly.
     But Perry, too, is making an argument about what the Founding Fathers supposedly believed. In the fashion of a true proof-text patriot, he closes out his “states allow us to live with people of like mind” argument with a quote from a bona fide member of the Founding Era:

As one pro-states Revolutionary-era politician writing under the pseudonym of Agrippa said, “The idea of an uncompounded republic [with millions of] inhabitants all reduced to the same standards of morals, of habits, and of laws is in itself an absurdity, and contrary to the whole experience of mankind.” Just as each individual is unique, so, too, do we come together to form unique communities with differing needs. (27)

     To spell out what nearly all observant readers will have already guessed, “Agrippa”—also known as James Winthrop, a minor state official in Massachusetts—was one of the Constitution’s most dedicated opponents.

Making a Liar out of Madison: The “McConnell Plan” and the Separation of Powers

“It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”— James Madison, Federalist 48

          Over the last few weeks of budget negotiations, we have seen partisan bickering raised to an art form. We have seen factionalism within one major party destroy a potential compromise and demagoguery from the other party destroy almost any hope of a negotiated settlement. We have seen legislators use their power over government borrowing to press for unreasonable concessions from the President, and we have seen a President use the threat of a veto to thwart the will of the people, as expressed in the most recent Congressional elections. 

         We have, in other words, seen the government work exactly as the Founders designed it.

          Government is supposed to be messy. It was designed to be contentious and inefficient. One of the clearest things that comes through in the Federalist Papers is that we are supposed to have a hard time changing big stuff. This is because the Constitutional design sets different interests against each other in an infinite variety of combinations, requiring constant negotiation, revision, and compromise. Madison especially believed that power had to be diffused through a very elaborate system as a check on the natural ambitions of human beings:

 Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. 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. (Federalist #51)

          Madison’s gist here—which became a central design element of the Constitution—is that power will always seek more power, and that pretty much everybody in any branch of government can be counted on to want to increase their own power at the expense of others. The entire Constitutional system is built around this assumption.

          This means that the system can handle any amount of partisan bickering and obstructionism. That's what it was built for. What it cannot handle, however, is one branch voluntarily giving up power to another branch because it fears the political consequences of exercising that power. The way the system is designed, you are supposed to want more power than you have, but you absolutely have to be willing to exercise the power that you've got. Otherwise, whoever is willing to take responsibilities that nobody else wants will end up with the power as well and have a clear path to dictatorship.
          The current Congress, however, appears more than willing to protect Americans from its own failure to govern by transferring to the executive branch the responsibility (and therefore the power) to make politically difficult decisions. We saw this last month in the vote to condemn the US mission in Libya (the symbolic vote) while, at the same time, caving completely on the issue of paying for it (the meaningful vote). As a result, the mission in Libya continues, and the executive power to commit troops without a Congressional declaration of war remains unchallenged. 
          While Congress frets and fumes about the War Powers Resolution, nobody has ever pursued a lawsuit about it long enough to let the courts weigh in on its Constitutionality. Nobody wants a clear Supreme Court victory giving Congress back its authority to declare war would--least of all the members of Congress, who would then have to start exercising the tremendous responsibility of doing so. Better to take a purely symbolic vote against the action in Libya and then abjectly refuse to take responsibility for that belief by actually doing something about it. 

          Given this dynamic, nobody should be surprised about Mitch McConnell’s plan to prevent America from defaulting on its debts and triggering another global financial crisis. The essence of the plan is simple: Congress transfers the responsibility for the debt limit to the President and gives itself a veto only if 2/3 of the members of both houses can agree (which, of course, they never will). The debt ceiling gets raised, America keeps its AAA bond rating, Obama takes the heat, and the Republicans can faithfully report back to their core constituents that they “voted against raising the debt ceiling”--even thought they will have done nothing of the sort. 

          The plan is good politics, and I suspect that it, or something very similar, will win the day. But it is bad statecraft. It represents yet one more legislative concession of power to the executive branch, not because the President wants the power, but because the Congress does not want the responsibility. And that is a very bad reason to make a liar out of Madison.