Transcripts For CSPAN2 David Schoenbrod Discusses DC Confidential 20170430

Staffers with us. I realize that for many of you, there assess recess period is a ray tint to get caught up on your backlog, schedule overdue doctor appointments, get home from work at a reasonable hour and prep for what is happening next week. Your work is essential and we are grateful for you taking the time too be here. The article one initiative is committed to important work and its worthy of your attention. Our purpose us to provide a nationwide, nonpartisan opportunity to discuss congress as an institution. We believe that now more than ever we must refocus on the founders ended design for the intended design for the legislative branch. Our aim is to pursue ideas and innovations to restore congress to its rightful responsibilities, which are essential to our Constitutional Order and protection of personal liberties. Today were happy to be hosting the great Panel Discussion of professor david schoenbrods new book, dc confidential. Inside the five tricks to washington. The outset i note that the book features forward by going to governor howard dean and senator mike lee. And now let me quickly introduce our panel. All three of them are very distinguished and accomplished is the shortened version professor schoenbrod is a trusty professor of law at new York Law School and frequently considered to editor badge over wall street journal, the New York Times and other publications. Has an undergreat degree in mathematics from trail, poet graduate dig few economics from oxford and a law degree. And adam white is an adjunct professor the Antonin Scalia law school himself notable writing has been published in men places is at am dam jury white. Com. He received the undergraduate the university of iowa and this jd cum laude at harvard law school. And then corporaller Congress Mark voss who is the vicepresident for the u. S. Association of formermers of congress. Congressman frost served 26 years and had many leadership positions representing the dallasfort worth area. He is the author of book with former congressman tom davis the partisan divide, congress in crisis. He has a law degree from georgetown university. Before i turn it over to david i just want to note for all of you that following the panelist remarks well have amp time for question and answer so be thinking about your questions youd like to ask our panelists. With that, david, the floor is yours. Well, thank you, nate, and thanks to the federal society for sponsors this event and thank you as well to representative frost and professor white for participating in this panel. I very much look forward to the discussion with all of you. When i was a little boy, my grandfather taught me to recite the get tis gettysburg address. We here hively resolve that these dead shall not thats died in vain, that this nation will have a firth before freedom and government of the people, by the people, for the people, shat nothing perish from the earth. With these word lincoln honored those who died in the civil war, in teaching those words to me, my grandfather honored old soldier, my father, who was laying wounded in france. Lincoln could claim that america already had government by the people because whereas in england tv ogettysburg address, most people cooperate vote because of a Property Ownership qualification. Almost every state has abolished it. At that time africanamericans 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 young man i was proud to play a small part in this peoples government. That was only in 1960s, and at that time in american history, polls showed that 76 of the vetters trusted the government the vote trusted the government to do the right thing just about always if not always. Today that number is 19 . An appalling fall in our belief in the government. In washington, does deserve this distrust for reason as 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 decisions and also plame 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 began to legislate in new ways that shifted blame away from them and thereby really undermineed government of, by and for the people. Blame shifting began innocent live enough. By the mid1960s, we saw our government. As working wonders. I had worked wonders. Got us through the great depression, won world war ii, inscripted dish invented the atomic book,m the highway system. We had the strongest economy in the world by far. It was a great government and so necessary live we wanted necessarily we want it to do more, 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 is what they set out to do. And in the Clean Air Act of 1970 congress promised healthy air without heavy burdens. And the what they convinced themselves would deliver this was something called technology forcing. The idea was that if congress set a definite deadline for producing clean air, that would forestry would force industries to deliver without costing too much and in the sense the previous year, 1969, america landed a man on the moon and Congress Said, members said and is explicitly said if they could land the man on the moon they would make the air healthy on earth. Both parties sign on. Both parties voted gem whelmingly for the Clean Air Act, but technology forcing did not work as was hoped. For example, to make the middle east the deadline, for producing healthy air in southern california, would have required taking threequarters of the cars off the road and that wasnt going to happen. So it began to happen was that members members of congress on bite sides the eye aisle started to privately lobby epa not item pose the heavy burdens and epa by and large complied, and then congress had the temerity to blame the epa for that cleaning up the air on time. Sound familiar . I feel i might have missed a slide here. I think were yep, its fine. Okay. So once congress began this new way of legislating, there was no going back because the ability to shift blame for bad consequences had changed the personal incentives of members of congress. They could legislate any n ways that let them make rosy promises regardless of the impact constituents in the cleanary act they but 940 commands for the epa to regulate. And those are extra judicially enforceable ponds, and they also rote the commands in ways that are complicated to obscure their responsibility for consequences. So we have fabulously complicated system for regulating air pollution, this is from Eugene Mccarthys Barack Obamas epa administrator, each secretarior has 27 rules the governor even piece of equipment and you have to be a neuroscience to figure it out. Thats the Clean Air Act today. And beyond that, theres no personal incentive on the part of members of congress to update it to simply identify 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 19 90. Over a quarter century ago. Even throw there are mutter and smarter ways to clean up the air. Its left as it. Im plating both parties. Not one or the another. Both. So we went from a situation where the interests of constituents and legislators was aligned to one where their interests in conflict. So to be able to say again and again im against pollution killing children the same ones say im against regulation killing jobs. This is schizophrenia, not legislation. And i witnessed this schizophrenia up close because as a lawyer for the National Resources Defense Council i brought the cases to get lead out of gasoline and as a result of this mess, approximately 50,000 of my clients died. And it was going through that experience that drove me out of Environmental Advocacy and into academia because i wanted to furring out what the heck is going on. What i discovered comes down to one thing, members of congress use five key tricks to shift blame. Now, voters know that politicians are tricksters, or todays politics are tricksters. So how does congress its for the same reason that musicians can sing to pull rabbits out of hat. People dont see the salute of hand. My book bit rei feeling the sleight of hand and these tricks come through a new system of legislating, for enacting laws and spending programs, that legislatorsors and of both parties they began to use them in the late 1960s and and early 1970s. They thats the basic thesis of the book. Want to go through the five tricks. One trick is the regulation trick. Previously congress had sometimes adopted rules and regulations themselves, and that gave members of Congress Credit for the benefits of the regulation and blame for the burdens. They also sometimes said to an agency, heres a problem, solve it. That gave the credit and the blame to the agency. But what happened with the regulation trick, which began whiff Clean Air Act of 1970, congress find way to take credit for the benefits but shift blame for the burdens. And so, the way they do this basically is they enact statutes that grant very specifically stated rights so congress could say, gave you this, i give you this right. But they give the job of imposing the adulties needed to deliver the duties needed to deliver on the right to the agency so the agency gets the blame for the burdens. So they shift the blame to the agencies. Thats the sleight of hand. Another trick is the money trick. It began innocently enough in the later 1960s. Previously congress generally raised the revenue needed to pay for the things that promised, like tax cuts of various social programs that people liked. Now, occasionally there were big deficitted, like during the great depression, during wars, but congress usually reversed course and tended to pay things up a. In later 1960s congress began on a course of systematically and large scale running deficits in a way that deficits with current policy just keep going up interest the sky. But what this does is it allows congress to shift the blame for the burdens needed to pay for these goodies to their successors in office. So theyre kicking the can down the road also people call it. The sleight of hand is that the Congress Makes the benefits tangible and concrete. So youll get a let every year saying your Social Security benefits are going to be this much money down to the dollar. What about the cost of all these things in they hide that. They hide that. So, its 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 a state took a federal grant to build a highway it couldnt use crumby concrete. Thats not a problem. So that way members of congress, could take credit for the highway and had to take blame for raising the money to give the grant to state. With the federal mandate trick, members of Congress Found a way to take credit and shift blame to state officials and what happens is that the congress invites the states out to dipper and leaves them to pay for the bill. Now, the Clean Air Act illustrates this yet begin. Congress not the credit for clean air but it imposed upon the states the burdens, the job of im posing the duties and to do the cleanup. Credit for congress. Blame on governors and state legislator. What is the sleigh of hand . States must dictate or use their federal highway grants. For any gov to give up a highway grant, is political suicide. So, you might ask yourself the question, will, wouldnt it by political suicide for members of congress to vote far provision that says that were going to threaten to take away a states highway grant . Well, the sleight of hand is this. Congress doesnt vote on that stuff. Of the dozens and dozens of roll call votes on the clear aint eight, nary a one was on punish thing states. So congress washes it hand of blame. Debt guarantee trick. Congress previously loan guaranteed the payment of some private debts like, for example, the federal Deposit Insurance Corporation guarantees of the small diet deposits in bank. Initially for deposits up to 2,500. The reason for that low limit was so that bigger deposits, bigger diet depositors would know their money was at risk which would mean you wouldnt put your money in a bank that was doing risky lending or was overleveraged. Which would tend to keep that bank safe. But starting in the late 1960s, congress began to guarantee the debt all the debts big and small of the too big to fail banks. That let these banks borrow money on the cheap because they were backed by the federal guarantee, even though they were engaging in risky lending operations and leveraging higher and higher and higher borrowing more and money which makes repaying debts questionable. And this exploded upwardded the profits of the too big to sale institutions in good times. But in bad times it led to financial crisis that caused such misery in 2008. Bills people lost their homes also you all know, and lost their jobs and retirement savings. Very sad. So, the public necessarily got angry about it. So we got doddfrank. Let me tell you, the debt guarantee trick continues under dodd frank. Still going on. So, what is the sleight of hand . The sleight of hadnt is this. Congress pretends the government is not guarantees these debts but you look the interest rated in bond market, you know theyre guaranteeing the debts. The lender the borrowers know these debts are guaranteed. Now, in Congress Plays tricked even when it comes to war. During the countrys first 160 years, we never went to war without Congress Taking responsibility either by declaring war or more commonly by approving the war by statute. Then in 1950 president truman put the troops into korea saying it was a u. N. Approved peace action. Some peace action. 33,000 americans died. Then we have vietnam and cambodia and all of that. The public got very angry and that forced congress to pass the war powers resolution which in theory forces the president to come to come and get congress to vote on the hostilities. Except theres a loophole and the loophole allowed mannoses congress to collude to avoid voting on troops being involved in combat if its controversial. For example, libya. Members of Congress Went to libya and good into libya and get rid of that gadhafi guy, which he did, and then they criticized obama for not obeying the war powers. So we end up in wars where we havent looked into and debated as a country what makes sense. And sleight of hand here is congress can pretend to want to be responsible because they have war powers resolution and blame the president for disobeying it. This mean nod matter how the war comes out, if its popular the members of congress can mark in the victory parade and if unpopular they put the entire blame on the president. Now, the president s have been in on the tricks, too. The war power the president gets to treat the army, his army and on the other tricked president s take credit and shift blame. You can even say the president is the trickster in chief. Im talking about president s of both parties here. So what can we do . My key advice is this. Dont hate the players. Hate the game. Individual legislators are stuck. If any one legislator, any one party gift gives up the tricks they risk losing to the other side. So what we need to do is change the rules of the game and that would happen to return the people to power, making the government by and for the people. Now, the congress and the president could have a statute. The money trick. Think about the truth in lending act. It makes its crime for a lender like a bank to lend you money without giving you a piece of paper that states exactly how much youre going to have to pay every month to pay off the loan. Well, lets apply the same thing to congress. Under the honest deal act. Here we would get a piece of paper that envelope that that the letter that tells you hutch your Social Security would be . There should be a letter in there saying, well,ing for government to make ends meet in the long run, this is how much per year the average family will have to pay either in termed 0 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 and if we adopt start levying thattenthat expene on the public now, this is it will be that much greater down the road and tells the verdict it will be a terrible future for the children and a terrible medicare and Social Security. That would put the blame where it should be. Not to beat up on members of congress but to help congress be hospital with us and make us honest with ourselves whether we want these somethings we keep demanding from the government. As to how the government is responding, dont have prescriptions on that. I just think i ought to be decided be elected officials who can no longer keep their constitutes in the dark and he honest deal act has a way of dealing with the other tricks, and all of this is laid out on the web site for my book, its www. Dcconfidential. Org and if you look the tab, how to get an honest de, was the summary of the act right there. And then on the right, there some online gamed that are fun that will explain to you exactly how the tricks work, but better yet, buy the book, its 3 a trick. So, i think we can get this honest deal act passed, i think not any optimistic moments. Its a statute, not a constitutional amendment. Its about honesty, not left versus right which is why howard dean and mike lee of supportive of the book. The key thing is this. Voters want an honest deal and your bosses, the members of congress for whom you work, you know that deep down in their heart they want to do Honorable Service for their constitute opportunities and dont have time to think about the things were talking about it to beau want to. So i want you to go back to your offices and talk to the members you work for, explain to them why they should be for an honest deal. Thank you for your station. [applause] well, thank you for in the book and thank you ford e Federalist Society for inviting me to join this conversation. Its a tough act to follow, not just the book and the talk but the video games. Let me start with a movie scene that it is relevant. The opening season to godfather. Veto corleone is at his daughters wed fog and his office and this lounge singer time cops in, Frank Sinatra knockoff, comps in and is begging the godfather for help, how the producer is treating him poorly, he ingredient the lead role, he is and vote vito glaze him by the colorful slaps him in the face and says, act like a man. Thats why the scene is relevant. One of the sadder moments of recent years in congress and in washington in general was the moment when the house representatives were left with no choice but to File Lawsuits against the president over the president overstepping his bounds and encroaching upon congress. Just like the Frank Sinatra character in the movie, i understand why he asked for help but still a sad scene in the movie and i thought the lawsuits war sad seen. The fact that congress was reduced to going to a Federal District court hat in hand and asking some district judge to solve this constitutional crisis. Was a very sad moment. Very sad moment. I think it was a moment that revealed that congress at that point had given away its powers. Not in that moment but over the course of decades, specially to the executive branch, the administrative agencies. This book is a bipartisan evident, including the forward bid governor dean and senator lee and so in that spirit id like to harken back to one of my heroes, john hart ealy, whose david work reminds me. In this book, democracy and distress, ealy focused on the problem of delegation and how it cut against the democratic values, values of accountability. Anyone a later book called war and responsibility in the preface, professor ealy offered some remarks which i quote a lot. Ill paraphrase them. He said we often thing of the shift in power from the legislative blatche to the executive branch as a usurpation, from the president grabbing power but thats a mischaracterization, its a distortion, we see Congress Giving away its power to executive branch, and he said, the reason why congress did is because of accountability, accountability is very frightening stuff, and so i admire professor ealy for pointing these things out and now professor schoenbrod for doing it here today. Today theres some good writing on the institutional collapse of congress. From naomi row, running the White House Office of Regulatory Affairs and chris demuth, the oir chief. They diagnosis that congress shifted from being the first branch to being a little more than an ombudsman for the Administrative State. I think this is a crisis. I think its a crisis not just because of the state were in, but that its hard to see a way out. We have reached a point where existence of the Administrative State deforms our politics. Agencies with immense power that can solve or try to solve problems in lieu of congress means a president has less innocenttive to bargain with congress and congress have less incentive to bargain, ear their because the congressmen aligned with tet president know the epa and the Treasury Department can save them in the end or the other side of the table, people the opposite peter think why should we bother going through the negotiatings and fight for this when we know the president and his party can just walk a. From the bargaining fable use agencies to achieve policy. So i think we reached a point where the Administrative State exits this gravitational pull on politics that reinforces the problems were discussing today. We reached a point where we lack a theory of what congress is and should be doing. Theres no shortage of legal scholarship and Political Science scholarship on the presidency and on the courts but i think it will do in returning to the first principle im a big fan of the article one project. I think its good we having these debates. Especially with the respect to the budget process. Thats something that deserves a lot of attention. The end over the day solution has to be she solution of james madison. Were counting on. Biggs to counteract ambition and we need the interest of the man, mr. L its the president or a congressman or a judge, to be attached to the rights of the place. So the question becomes, how too we make congressmen more ambitious as congressmen . Not as members of the president s party but as congressmen if dont have an answer for that. Thats just my first question for david. I think his book the honest deal act and other parts of the book focus on how to Shame Congress into doing the right thing. Its not all of it. How do we speak to ambition of congressmen as congressmen . I think is the real challenge and thats where the solution will be. To two other brief question is just leave you with. David identified the turning point being the 1960s. Thats when Congress Really did start to shift. Think thats an important inflexion point inflection point. And so much of what congress did in terms of empowering the Administrative State was either congress encroaching on the courts or billing on help leg guess. When Congress Credit created the first big agencies, interstate commerce, federal trade commission, congress was trying to push the courts athlete common law ratemaking and taking power investing it in independent commissions and you built on that over time campt pint where the 30s to the 60s where i shift scud that wang Congress Handing legislative power to the independent commission at are independent agencies and i want at the what was the force underlying the shift. And i note that the end of your remarks you said this is a legislative, not constitutional. What about constitutional change . Do you think if the honest deal act doesnt succeed, will with need some sort solve constitutional change . And if so what would it be in . Those are just questions. I quite like the book, just also i quite like professor shown bolds schoenbrods brief book so thank you very much for this. [applause] im going to make some fairly brief remarks and give you all an opportunity to ask questions. I wrote a book, almost a parallel book, david to yours, coauthored with tom davis, former Republican Congressman. And we didnt chair the same time so we remained friends, and tom and i have traveled around the country, spoken at seven president ial libraries and a number of universities, talking about the the problems we sunny congress right now and basic premise is correct, david, is that congress should be the first branch that was the intention of our Founding Fathers but congress for a variety of reasons doesnt function that way most of the time. One thing that the book is the partisan divide, congress in cries, and we set out a number of reasons that things have happened in the last two years or so have lessened Congress Role in the federal government and one chapter was the big punt, and that was how congress has, by not acting in certain areas, has punted those issues to the president and the president then has stepped in to fill the vacuum. You sat that with obama seeing that with trump right now. The lawsuit one lawsuit that adam mentioned involved immigration reform, and congress positively resolved not to act. That was an earlier expression i think that the professor nowstad used in describing congress decided to not change the immigration law, and so obama sat around and said if these guys arent going act ill do something by executive order and that involved the dreamersers ad thats we have just seen on tv in the last day or two, one of the young people brought to peitz by their parents when they were very young and grew up in the united states, and now may by subject to deportation, obama stayed that. The courts have said, no, that wasnt exactly correct. What he did. And there was a lawsuit brought challenging what the president was doing, but if congress had acted during the six or seven years preceding that on immigration reform, the president would never have had the opportunity to issue that particular order. And thats not the only instance where this has occurred. So somehow congress has got to have the courage and the desire to actually exercise its power and some of the things we point it out in our book, the reason you have this deadlock in congress these days, this paralysis, a variety of reasons. One thats 80 of the congressional districts are drawn to be safe districts for one party or the other, whichever party is control of the legislate youre, they were gerrymander the districts. The result is that members of congress in theory are more vulnerable in the primary of their own party than they are in the general election. Now very few members of congress are defeated in the Party Primary but in fact many members of congress of both parties live in mortal fear theyll have someone to their extreme run against them in their own primary, a prime theyre with relatively low turnout and a lot of outside money being spent. So members are reluctant to be seen in public with the other side, reluctant to interest irbipartisan legislation ball theyll be punished by primary voter if theyve do one thing we suggested is you could have independent commissions drawing congressam districts. Down in five states and new york will do it and maybe you wouldnt have districts so crazy looking and that didnt punish be bipartisanship which is exactly what safe districts do, and that could be done by initiative in referendum in states that could it. Congress can men debt it. Man tate it, unlikely, but in role of money in politics is so significant these days, in terms of bag deterrent for any type of action by congress because members of congress, again, fear a lot of money being dropped on their heads a few days before an election by an outside group where theres no reporting. C4s dont have to report who their contributors are, and members of congress are risk adverse and so they know that a lot of this outside could head their way in a primary or general eselection they dont take chance, dont try exert their authority as an institution or member of conditioning and there oar other reasons, too. The problem is that the Supreme Court has said that money equals speech and its a First Amendment issue so goes to your question, adam in terms ofthere any constitutional amendments that could be considered. One would be say that congress has the authority to regulate the amount of money spent in a race for congress or for the senate and to require that all contributors be disclosed. Will dong will congress dot that . Unlikely, whether its a democratic or republican majority. Members of congress tend to like the system under which they were elected. They understand it, makes them feel better. So very hard to bring about institutional change in this country. I often speak to high school students, and i point out, well, we were founded in a revolution. The revolutionaries institute a very conservative form of government, structurally. Its hard to pass law. It is hard to amend the constitution. And it is hard to affect chiang in this country. No matter who you are, unless you have a super majority in both houses of congress and a president of your own party, and i spoke to the federalist put on a program in january talking about the kick off the idea of studying the role of congress and i pointed out at that time and i go another lot of puzzled looks just because the republicans have the and both house the republicans have the president and both houses of congress doesnt mean they can do everything they want there have been divisions in the majority party. You could and its not impossible that congress could back more powerful institution by reverting to a degree of bipartisanship and the best example in any lifetime, not of many our you, book the passaging of the Civil Rights Act of 1964. Johnson became president of the kennedy assassination and identified civil rights as a priority. He knew how congress operated, and hi also knew that there the filibuster in the senate would have prevented consideration of this legislation because at that time you had lot of conservative democrats from the south in senate who were anticivil rights. Those folks nor longer around these days. And john saturday went to Everett Mckinley dirkson exthe republican leader from illinois. He said, ev, youre from illinois you. Need to be for civil rights. Youre from the land of lincoln, and dirksen thought about and it decided johnson was right and provided the republican votes to break the anticivil rights filibuster. The could do that today . Couldon john maneuver michigan like that . The answer is probably, no. We have such a poisoned partisan atmosphere in this country that is very difficult to form coalitions and is particularly difficult because of the role of outside money and because of the role of one Party Districts making people fearful of being involved in taking actions that would strengthen the role of congress, and thats what this is all about. Congress should be a Strong Institution and i just want to mention one thing because this was discussed in david your five points. The war powers act is difficult. And let me explain. I nope you know how it worked. It was passed in 70s as a reaction to our involvement in vietnam, and under the war powers act the president can commit troops in an emergency for up to 60 days and then has to come back and get a vote of congress to continue having the troop inside the field. President s of both parties, democrats and republicans, have tan the position that the war powers act is up constitutional. Constitution provide this president is commander in chief and while i does provide that congress has the right to declare war, the president is commander in chief and can do what he wants to. Interestingly enough, even though democratic and republican president s have both taken this view, that its unsuspensional, two republican president s voluntarily agreed to comply with the war powers october of act. That was george h. W. Bush, and george w. Bush. Before committing troops against saddam hussein, two different occasions and volunteer heir voluntarily asked congress to pass permission for the war. There were dissenting votes but congress did. That subsequent president s have been reluctant, to put it mildly to come back to congress and say well stipulate the fact that we have a difference of opinion about whether the war powers act is constitutional but well xi with and it there should be a vote before we have the person american trop troops in the field. Have too think people offering in favor oft of that right now are correct there should be a vet in congress. If wearing going engage in a continuing war against isis, which i would support if i were a member of congress, taught be a vote by congress. Shouldnt just happen because of the desires of a particular president. So this is an interesting time and Federalist Society is doing the right being that raising questions but there are another love complications that prevent congress from exercise thing proper role thats first branch and ha has to be some institutional change us congress can do that. Let me respond to some of your comments. First of all, to adams comments, think about what both of your your thoughtful observations. Let me just responsibility0. Oh to make congress more ambitious . I think about what my parents did trying to make me more ambitious when i would a soso high school student. I said if i tint to be a soso student i would suffer the consequence is. I think to make congress more ambitious is to make them more responsible for the consequences of what they do. Second point that adam makes or asks, what about the 60s in well, i point out some general things thing getting us through the war and depression but if you look at individual trick you can see thing that helped to trigger the tricks. Like the debt guarantee trick. I remember as a young economiest how proud i was of the provision. With avoided any great financial tumult since 1929. We can do it. The there was hubris there or think about man tates. Mandates in 60s the states were in bad order. The Southern States were rebelling against the Supreme Court and the requirements of the 14th amendment. There was riots in the northern states. Political scientists possibility out this made congress more willing to come down on the states. Regulation. This idea of having usually enforcible rights the federal level that would be imposed throughout the countrily to an agency, that was unthinkable before you had the xerox machine. You couldnt do it with a mimeograph machine. There technological changes in our science worked and made it thinkable for congress to legislate these rights. Adam asked about constitutional change. Die think constitutional change might be part of the answer . Well, made a taj tactical decision not to talk about to constitutional changes bus theyre used to keep the tricks going. Take the per rein perennial balanced budget amendment. It wont pass but a way to say i care about fiscal responsibility while not doing a darn thing about spending you tacks. Its a distraction. I would talk more about constitutional change if i thought it was plausible, we could actually have meaningful constitutional change, and besides that we were able to stop these tricks for the first 170 years or so of the republic with the current constitution. Representative frost makes a number of interesting and useful points. Gerrymandering, i agree, terrible problem. Thought about talking about it in the book but couldnt figure out a good solution so i shut up. As to the role of money, ail agree, its terrible. What i would say is the terrifics let me money talk louder because the terrifics give makes of congress way of satisfying the people that give them money and putting blame on their contention constitute constituents. I think the tricks help cause the partisan divide. Over regulating about air pollution in terms 0 what percentage to cut pollution, theres a middle ground, must be a middle ground. Dont want 0 or 100 . Cant cut it at 100 . Cooperate grow bean without have something air pollution. But what the tricks do is allow members of congress from either feature take polarizing positioned. Im against position, im against losing jobs. That takes away the middle ground where people inevitably have to give way to command sense. War powers act, how do you i know that many people think its unsuspensional in it unconstitutional. I suggest reformulating it in way that all would agree it would work. The water power acted works on giving a command to the president to the president you must bring the troops home. That its inconsistent with the commander in chief clause but the version would have to be cutting off funding. Also point out that it think its a misinterpretation of the war powers act on the books that says the president doesnt have to go to coaching he beautifuls the trooped out within 60 days. No, the act requires the president to come to congress medley and i think president obama was to be faulted for saying, well, sings i got out in 60 days never had to ask congress for the first place. Wrong, wrong, wrong. Anyway, thank you for your useful comments and i look forward a continuing discussion. [applause] it can i make a us. Describe what they do if have the work in a house office, Senate Office or a reporter or if theres someone just interested citizen. Please identify yourself and speak up. I will repeat the question from the podium. After you ask it. Please go ahead, sir. Im len watkins from the cato institute. You talked about the war powers resolution. The examination you talked about for 60 days only applies for attacks on the united states, territories and possessions and armed forces. My question is, what has Congress Done to delegate the power . How would you fix this problem beyond the war powers act . Well, what congress has done, of course, is the congressll yesterday leaderred have gone to president s and stayed youre about to commit troops and lets have a vote. That helped with george w. Bush and george w. Bush. The Congress Said to the president we can demonstrate the country is behind you. Short of that im not sure. Would reform late the act to make absolutely clear that the president needs to good to congress simultaneously with at least within days of the beginning of hostilities. Thats what i would do. Your solution seems to be providing more information about the consequences of congressam enactments. That presupposes some level of engage. Of the Citizens Holding the Congress People currently citizenry is not in a place to take on more information. Its information overload. What would you suggest doing to engage the citizens to embrace their constitutional roles to hold congress more accountable . How do we encourage citizens to be more involved in the process . What role do they have the play in tracing these tricks . Well in addressing these trick jazz. Number of books talk about the citizenry and the extent to which its informed. Some say well the citizens just arent informed and dont note what thinging aing a co him innd acronyms. Mean. One expert says the basically excuse what it fraud on the part of the legislators and two others say we have looked through 50 years of polls and its amazing the extent to which ordinary voterred have nopessed positions about nuanced positioned about politics. The problem is theyre being misled. Answer to to your question is, lets get people straightforward information for a change. Its interesting because, again, we have a lot of young people in the room. Anyone know what year the internet went online . Anyone want to hazard a guess . 89. A lot of people dont realizes, the internet is recent and theres so much more Information Available today, and the question is, because you dont have editors in many cases, you dont have anyone reviewing what is posted, how do we make sure that information that people can easily access is Accurate Information . And you may have seen Mark Zuckerberg on tv the last day trying to explain about facebook and what why did they let this scene of a murder be postfor a couple of hours on facebook . Its an extraordinarily interesting question about should government in any way intervene in what is viable the public . I used to be a journalist. I have undergraduate degree in journalism and worked as a Television Reporter before i went interest law and gallon in politicked. Im not for prior restraint or censorship but as a society we have to deal with the fact there is so much inAccurate Information now available readily to nip in the public to anyone in the public and i dont have an answer but its an emotorhome mouse problem for us right now. Okay. Next question. One reason that congressening get away the tricks tis theyre on out auto pilot. And legislative filibuster is a huge obstacle to bills going forward. In this vision of Congress Making these hard decisions that would require some form of the legislative filibuster. The question is about the legislative filibuster, and also is it realistic to ask congress to take back these duties from the Administrative State, which as he characterized, seems to be an auto pilot. Well, i think theres a lot of ways that congress is less functional than it used to be. One is that it used to be that a larger proportion of the staff and the money in the budget of congress devoted to legislation, whereas now much more its devoted to constituency service. We didnt used to have nearly as many district offices as we have now. Members spent more time here, and i think that what that reflects is the fact that with Congress Less responsible for the consequences of the legislation, they dont have to gear themselves up to producing good legislation. I think that ending the tricks would in and of itself be helpful on the filibuster front because i think it would help to by making congress have to deal with trade yawed it would help to depolarize to some extent. Give incentives to put more money into legislative work. I remember talking to a lottive he said if that was an act, that it have to start paying attention. What are it would require a filibuster, dont know, but i would start with ending the tricks and see what the animal will do on it own and then see. Adam . I have a couple of thoughts on this. In congressman frosts remarks he used a word that it think is very important, the legislative vacuum. Thats a termeye. Nature abhor ads a vacuum. One costs of that goes with the benefit is is theres a vacuum in the policy speights that will in the short or long run by filled by the president or the agency of the courts. The policy speights will be policy speights space bill be filled by somebody and its to tore think the legislative filibuster. Thick it need to be rae thought. Recognizing what wasnt of the costs are. Second thing that needed to be rae thought again comes from a very good impulse. In 1990s the Republican Congress came in and want ted cut cost inside congress, and they cut back on their own staff. Understand why. But the cost of that is that the Congress Just isnt as well equipped to keep up with what is happening in the Administrative State. Maybe it is time to become that bulking up congress own institutional capability. Maybe we need Something Like the Congressional Budget Office but for wreck regulations and i think congress muscles have atrophied from underuse. The raines is not my favorite bill. I like the regular larry to the raines act would force congress and agencies to rush to some sort of conversation. Agencies would know they would need congressional buyin before implementing or imposing the costliest of regular layings. And i think that would be a guy would for whenever metaphor you want to. Get in the meals working, get the muscles working again, but you return congresses institutionality interest to search them to speak this language again of legislation. An important step. I teach im am adjunct professor at gw school of political management and every course i teach, always have at least one of the classes dealing with the use of social media in Congressional Offices because that has made such big difference in the way your bosses, assuming your Congressional Staff members communicate with the public and its interesting, when i was first elect net 1978, we had to deal with the franken commission and had to submit it to the bipartisan franking condition. Had to be reviewed. Unless something has happened i dont think are any restrictions or limits on what type things can be communicated by social media by a Congressional Office, and a lot of a congressmans staff time now is devoted to social media. Some of you al may actually be involved in that in the Congressional Office and that makes a big difference these days, and congressman or congresswoman views their role a little built differently than the did when i first was elected to congress, because what i do is i have young Staff Members from a relatively new member of Congress Come in and explain what they do on behalf of their boston and its fascinating and also is not really about legislating. Its not really about changing law. Its all about look what my boss is doing, how do we talk to each other . And its not very substantive. I dont know be curious what the people in the room think. I could just good ahead. Im reluctant to quibble without but you have lived this and seen it first hand. Im in the ivory tower who actually has an ivory thank you tower for often Political Parties are blamed for detaching thes odd of the congressman from congress itself. So the strengthening of parties congress men see themselves as members of the party, either aligned withor against the president. What do party does . One of the thats, they organize, spread information and they route fund funding funding to candidates. A diverse internet and unrestrained speech could decrease the parties power over organizations and over information distribution, and likewise in terms of funning i know super pat super pacs have something problems but they are support of funding out of the establish it Party Structures and might actually if used the right way, could help infuse individual congress men and other official width tithes androots attached from deattached from the party. Super pacs and the internet are one of the solutions to one of the problems. Adam, melt be clear. There are two types types of sur pac. One are candidate, specific which have to register with the fec and dischelsea their contributors. The others are c4s which dont have to register with anybody other than that irs and tent have to disclose contributeyears and thats a major part of the problem. Men Mccain Feingold was being presented to congress, tom davis and i wering about the congress at that time and we both spoke out against the Mccain Feingold, Campaign Finance reform. Why . Because we took the position that parties were centralizing force in american poll sicks and what Mccain Feingold did was to take money airplane from money away from parties, by labor unions and individuals and they had to be fully reported to campaign commit yesterday. Had to report all the the soft contributions i got and i sat down with one of the prime sponsors of the bill and said dont you understand, one, bogey going to weak thin role of parties and, two, the money will good somewhere. Its not going disapril. If you take it away from Political Parties it goes to groups on the fringes. I didnt appreciate the size of the amount of money going to these Fringe Groups would be and what a big role they would play and i said to the proponent of the bill, dont you understand that this money is going to be spent in unregulated way under yourings . And his response was, oh, we fixedded that. I said what due you mean . Said, well, we have a provision in the bill that these outside groups cant the c4s. There werent party specific0 candidate they could not spend mow within 60 days of a general election or within 30 days of a program mary, and my response was, well, what would happen if that is not constitutional . His response was, our lawyers toll toll us its company. But its not okay. Citizen is united said its not could i and now you have enormous amount of money, unreported money, throwing to the extremes and they didnt appreciate when the put this legislation together and you cant change that. Get emails and you get emails from people saying, send us money and well do away with citizen united. Well, Citizens United was bait 0 a constitutional privileging, free speech, the right to spend and race money in the political arena, and the only way you can change that to prevent these outside groups that dont 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 contributors but congress is knowledge likely to do that. Whoever is in charge likes the system they were elected under so its Unlikely Congress will amend the constitution. Thats an enormous problem and will only get greater as time guess on and the groups will make members of congress timid and fearful theyre thing to lose their in next primary, and i happen to think that both democrats democrats democrats and republicans run for office for the right rope. They wanttake mace a better country. I may disagree but the run nor right reason, but once the get here and see what could be done to them in a Party Primary by secret money, then they become very timid and not very creative. I want to agree with congress man frost on this point about the disempowerment of parties and i particularly want to tell you about a become by Jonathan Roush of Brookings Institution who spins then argument in a free book available on the internet about how the disempowerment of parties has undermined the ability of congress to legislate. Also want to pick up then the raines act. This is a statute that would require congress to vote on major regulations from agencies, and it seems to mel the basic congress sent of congress basic concepts of Congress Voting is the question about the vacuum. I congress has to vote on major regulations the vacuum is filled and creates a dialogue between the agency and congress. If Congress Sees a way that the regulatory protection that people want could be delivered more cheaply but the statute gets to in the way then the agency well till it and congress will feel it wants to cheng the old stat that is 25 or 30 or 40 years old in order to allow better outlets to gives them more credit and less blame. The problem is basically one of agencies gone wild, whereas often the problem is 940 command from congress to the agency to regulate. Might want to think about it in termed of the legislation from the legislatorred that need a revision. Now, the raines act is actually another trick. The pacic idea is one that comes from the basic idea is one from democrats going back in deal that congress should want to take responsibility for major regulatory changes and i appeared author a constitute called the congressal responsibility act, and it did get bipartisan buyin, but then it got shifted along the way to from a name that is proresponsibility to antiregulatory with many poison pills in it that would cause democrats to never sponsor it. So a statute that passed the house in n january this year that will never pass the senate, because its not for legislative responsibility, its for antiregulation. So, sponsors of raines could be saying theyre for responsibility but never have to show any responsibility because the bill will never pass. Have a way to change trine make it pro responsibility. For one thing, apply not just to the rules demajor rule that increase regulatory burdened. It should apply to ruled that decrease regulatory protection. That is accountability. Right . Range notice about accountability. Its about staking out assuming a poise, posture. Very good. Any other questions from the audience . Its been an interesting conversation. And the book people in both parties share the view that Congress Needs to assert itself. This is not the view of one party. And in fact, you can suggest that strong president s in both parties have decreased the role of congress. So, its something i as a democrat want to see congress more assertive and i know many of you who are republicans want the same thing. See what happens. Yes good, ahead. One question. Kind of spoke to how to avoid [inaudible] i think thats true of what also also i know coming from the Good Environment a higher level of education, middle school and high school, always knew the president had this omnipotent force and thats just my current generation, but how much of that power shift do you see occurring from congress, the executive in order to avote accountable. How much in culture today as we grow up. The president and Congress Give allege News Conference at the same time, theyll shift to the president , hear what the president has to say. Do you think that shift is occurring if article 1 on the being taught and not in the course of aid of education do you see that as congress or a federal problem occurring and need to go back and reevaluate how were passing down general to [inaudible] to children. The question is, is the shift in power from congress and some of their roles and responses the relegation of that to executive, that occurring intentionally by congress over time or the gentleman is asking, is that more of a cultural trend were seeing, were fail log education give property civics lessons to children and we just prefer a strong executive and its occurring naturally rather than congress intentionally shifting those roles and responsibilities. Well, i agree. I think theres two too little served being taught. You didnt see the president before the age of television. I think, the means of indication about the fact that congress is hobbled by the fact that its speaking with this many voices. Congressman look ludicrous, right . Not that they are ludicrous people, i agree with representative but most people run want to do an honorable job but they dont look good. Theyre playing the tricks. You know it. We just cant figure out how the tricks work, but we know it . I want to give an anecdote that reinforces the issue. When reagan was president , someone on the democratic side, whenever you gave the state of the union or whether a joint session would step off the floor for a while, go back in the cloakroom, democratic cloakroom, republican cloakroom right off the floor of the house so he could watch them on television because he was better on television and he was in person. Because he wanted to know what the public was seen, not what we were hearing in the room, in the chamber. So, a magnetic person, whether he was john kennedy or whether he was ronald reagan, magnetic Television Personality makes a big difference in terms of how the public sees the power of institutions. I would see, hesitant by his nature is more energetic. Its important to keep in mind that while technology and other things have accentuated the president s powers, the inherent nature of the presidency, hamilton recognizes this obviously with famous lines and alfred hamiltons writings and debates medicine, he said president has the advantage, he can take action lee and changed the terrain on which the legislative act. One of the original, i dont know that i called her, was putting legislative branch in article one, not article two, even though the founders recognized the real power of the executive branch. Thats one of the reasons why i wonder if ultimately, consul form is necessary. Inherent in our system, even setting aside the technological weight we live in, the president has immense power, inherent in his office that congress cant compete with. In the early point of our history, the legislative branch is much more assertive in the executive branch is not as powerful as it has been in recent years. And float any other questions i think we had a wonderful question today. I thought we would conclude with you offering some thoughts about the mentors that you dedicated the book to. Yes, that would be lovely. Not put you on the spot. I dedicate this book to free people. One, Neil Peterson who is my boss on the staff of hubert humphrey, he grew up poor in rural minnesota and second is judge robinson my clerked. He was one of the lawyers for the end up naacp, in the brown versus board of education, argued that case at the court. The third was john doerr who was head of the civil rights under robert kennedy. He was the one who walked up to the governor, mississippi asked who he was in shepherding an africanamerican student to a previously segregated state school and john doerr answer the question, i am the law. I work for john doerr in the restoration project in brooklyn and they modeled for me professionalism and courage. Obviously, judge robinson as an africanamerican man from virginia going to the small towns in virginia, talking about school segregation, had a lot of guts. So did john. He was in danger of being shot in many places at many times. For me, writing this particular book was ambitious because it took on so many issues because it took so much longer to write the my previous books. Three times longer. It took some courage on my part to try to take on something so big. Anyway, they were of some comfort to me in this process. Thats why i dedicated it to them. Very good. Can we give the website again . Yeah. Dc confidential. Org. Youll find the description of the act and its a. Is it available on amazon . Smack yes, it is available on amazon that may be the easiest way for people to get it. If youd like to learn more about the article one initiative our address is fed sock. Org article i