Charles Kettering (1876-1958), an American inventor who among other things was responsible for the electric self-starter in automobiles, once said, “A problem well stated is a problem half solved.” In other words, if you ask the right question, your chances of finding the right answer increase. At the end of a tumultuous year, we still have more questions than concrete evidence as to the factors which resulted in the electoral college victory by Donald Trump. But I am going to leave that inquiry where it rightfully belongs, in Robert Mueller’s office.
The inquiry at the forefront of my cerebral cortex for the past two weeks has been, “How did we end up with a tax bill which is so unpopular and is so counter to everything we know about the impact of tax policy on the general welfare?” In a December 19, 2017 interview with CNBC’s John Harwood, Senator Mark Warner (D-VA) called the measure “the single worse piece of legislation since I’ve been in the Senate.” Explaining his opinion, Warner suggested three causes.
- The process by which the bill was “cooked up in secret.”
- Experts who understand tax policy were not given an opportunity to share their knowledge.
- Because of the hurried time frame, lawmakers did not have the benefit of public review.
However, these are only visible symptoms of a dysfunctional system. To understand the underlying root cause for this flawed process you have to ask a different question. I suggest the following. “What is different in 2017 which precipitated the violation of 226 years of what John McCain called ‘the regular order’?” For the answer, all you need to do is listen to Representative Chris Collins (R-NY). “My donors are basically saying, ‘Get it done or don’t ever call me again.'”
Bottom line. It all goes back to Citizens United v. Federal Election Commission, in which the Supreme Court by a vote of 5-4 declared the free speech clause of the First Amendment of the U.S. Constitution prohibits the government from limiting independent political expenditures. While it is true this decision is seen as corrupting the electoral process by allowing individuals and organizations (including for-profit corporations) to finance campaigns, an overlooked consequence is its equally devastating impact on the legislative process.
Take the recent tax bill as an example. In the old days (pre-January 21, 2010, the date of the Citizens United decision), the fate of legislation was somewhat determined by the effectiveness of those D.C. swamp creatures known as lobbyists. However, the ability of these “guns for hire” to influence members of Congress depended largely on their ability to provide accurate information to support the policies or provisions their employers wished to see enacted. This information was provided either to a member of the appropriate committee, committee staff or presented in testimony before the committee. Contrary to popular belief about lobbyists, this was a valuable service in support of healthy public debate. Don’t believe me. I refer you to James Madison in Federalist No. 10., who argued the true danger lay in uniform thinking not the give and take between individuals with competing personal interests and passions.
While Citizens United metaphorically compares money to free speech, prior to 2010, a better analogy would have been information, facts and statistics to free speech. In this latter case, lobbyists are akin to compensated “messenger gators” who inhabit the swamp along the Potomac. However, there were safeguards. These “reptiles” had to register. And, as mentioned above, members of Congress who used bogus information could find themselves in embarrassing situations. And the purveyor of bad data would not survive for long. Even in a quagmire, trust is everything.
So when you hear Donald Trump and his followers cry, “Drain the swamp,” it is not because they think lobbying is evil. It is because the lobbyists are no longer needed. Not when their employers can “buy” a member of Congress’ vote instead of influencing their deliberations with information that makes a valid case for their position. Remember Congressman Collins’ statement? One of those donors is none other than Charles Koch. According to a May 18, 2017 article in USA Today, “Koch, who viewed Trump’s candidacy warily, now is racing to build public and congressional support for plans to overhaul the tax code.” As an example what this means in monetary terms, Utah Senator Orrin Hatch, chairman of the committee which wrote the tax bill received $10,000 from the Koch Industries PAC in 2017. Or remember “Mr. Regular Order” John McCain? He received $16,360 from Koch’s PAC and supported the tax bill. Why go to all the expense of paying lobbyists and staffing a high-rent K Street office when you can directly feed the kitty for a fraction of the cost?
Like most things, we may not fully appreciate the swamp and its inhabitants until they no longer exist.
For what it’s worth.