Reason Magazine - Staff

The Quest for the Holy Rail

info@reason.com (Steven Hayward) — Thu, 01 Jan 1998 00:00:00 EST

Asphalt Nation: How the Automobile Took Over America and How We Can Take It Back, by Jane Holtz Kay, New York: Crown, 403 pages, $27.50

The City After the Automobile, by Moshe Safdie with Wendy Kohn, New York: New Republic/Basic Books, 187 pages, $24.00

The car is rapidly becoming the ultimate Rorschach test of political and social attitudes. Try it: Do you see the car as a means of freedom, a great democratic tool offering mobility and independence to the masses, a symbol of comfort and self-expression, an instrument capable of providing pleasure and enjoyment, a venue for romance? Or do you think of the car as essentially a rolling cigarette, complete with addictive properties and second-hand emissions that are harmful to our children? Do you think the car is a symbol of dependence instead of freedom? Do you speak disdainfully of Americans' "love affair with the car" as though it were a despicable perversion, or at least some kind of serious irrationality? Do you think American Graffiti should be classified as a pornographic movie? Do you think cars lead to aggression and crime (think of "road rage" and those drive-by shootings), and are responsible for despoiling the earth ("They paved paradise/ Put up a parking lot")?

The second set of attitudes now constitutes the politically correct view of cars and car culture, and if the car haters have their way, it won't be long until the "car lobby" evokes the same odious connotation as the "tobacco lobby." If you think this is a paranoid exaggeration from a Jeep-driving life member of the Auto Club, just browse practically any page of Jane Holtz Kay's Asphalt Nation, which is the most complete compendium of anti-car claptrap ever assembled. Perhaps we should not be surprised at the result, since Kay is the architecture critic for The Nation. The book would make for hilarious saloon reading--in fact, I thought perhaps the book could be a tongue-in-cheek put-on, which is what I think Click and Clack of NPR's Car Talk had in mind when they provided a dust jacket blurb--were it not for the fact that anti-car sentiments are becoming increasingly accepted. Not long ago I watched a grown congressman on C-SPAN calling for a tax break for commuters "who would like to do the right thing" and ride mass transit instead of driving to work. The premise--that driving to work is immoral--went unchallenged.

You know you're on the wrong side of the elite divide when the very first sentence of the book begins with "It took a village"--I'm not making this up--"to raise this book." "Our transportation is a tangle," Kay writes, "our lives and landscape strangled by the umbilical cord of the car." Cars are bad because they are a means of "instant gratification," which we all know is the modern American vice par excellence. "The licentious motor vehicle" allows for "unleashed consumption." The car is a "voracious icon" of "hypermobility," an agent of "spatial greed," an "accomplice" in the rise of Kentucky Fried Chicken and Taco Bell. We need to supplant the car culture, she concludes, because it would be good for our "state of being." We even get a dose of postmodern feminism in the mix. Independent mobility is a boon to women, you say? Not only is this thinking like a man, according to Kay, but "it is a false form of consciousness that fails to assess women's enslavement to the motor vehicle."

The only anti-auto cliché missing from this book is the old chestnut about the alleged 1940s conspiracy by General Motors and other auto-related companies to put L.A.'s beloved Red Cars out of business (though the demise of the Red Cars is duly lamented). But while this standard myth is absent, Kay makes up for it with several new whoppers of her own. Car vibration causes muscular and skeletal damage, for example. And those big urban riots in the 1960s that have baffled social scientists for so long? "Freeway construction" was "a major cause." Buybacks of old cars to reduce air pollution are bad--because people will buy new cars. Japan, she thinks, is more competitive than the United States because they pay "truthful" gas prices ($5.00 a gallon) and ride their bikes a lot more. (Apparently Kay hasn't checked on the vigor of the Japanese economy lately.) Meanwhile, Kay thinks "the car culture paved the road to `Black Tuesday'" (i.e., the 1929 stock market crash). We even have the reductio ad Hitlerum: "Adolf Hitler's emerging autobahn had sparked America's vision for a transcontinental road." Gee, the Nazis built big highways, ergo...

At times it seems as though Kay is striving to find new extremes through which idealism can marginalize itself. Even the Progressives and FDR come in for criticism because they liked cars and roads too much. But far from being marginalized, Kay's anti-car philosophy is the intellectual underpinning of the dominant currents in transportation and urban planning policy today. From the Intermodal Surface Transportation Efficiency Act ("Ice Tea" to the cognoscenti) to the much in vogue "new urbanism" on the local level, the moral disapprobation of the car is the central premise of policy. For both Kay and Moshe Safdie in his The City After the Automobile, at the heart of the argument about cars is a much bigger argument about land use and urban planning. You know what's coming: a huge expansion of government power.

Cars, as Kay points out, make possible "the scum of sprawl." Safdie is less lunatic in his aversion to cars than Kay; his book is not the anti-car screed the title would suggest. An avant-garde architect (he was the principal designer for Expo '67 in Montreal), Safdie is concerned chiefly with urban form, and his thesis could be reduced to four words: Don't make things square. Safdie is right that much of the monotony of urban form arises because of rigid planning codes and, more important, lack of imagination. But both Safdie and Kay, along with many of the "new urbanists" who share their view, display an amazing inability to learn from the planning mistakes they rightly decry. If planning has made a botch of things in the past, constraining imagination and the marketplace alike, why should we embrace an even more intensive scheme of government planning?

The answer, of course, is that reformist idealism, along with faith in the ability of well-meaning people to "do better next time," is irrepressible. Combining old-fashioned reformist idealism with the anti-auto animus, we will be, to paraphrase the old millennialist slogan, "forced to be (car) free." Kay finds light rail "exhilarating" (she clearly needs to get out more, and perhaps write a stage play entitled A Desire Named Streetcar) and joins the chorus singing the praises of Portland, Oregon, as the model for the nation. This model calls for compelling much denser development, urban limit lines to contain urban size, and intensive use of mass transit. For mass transit, Kay rightly points out, "you need mass." Portland has established a powerful regional government to enforce the plan and has spent billions for a lightly used light rail system, while eschewing new road construction completely. Evidence from Portland suggests this model is already starting to break down (even The Washington Post recently ran a front-page story entitled "Cracks in Portland's Great Wall"), but the propagandists continue to portray it as the promised land.

Kay cites Jane Jacobs, who, to be sure, dislikes cars, but who dislikes ambitious planners even more. Both Kay's and Safdie's vague prescriptions call to mind Jacobs's warning that "people who get marked with the planners' hex signs are pushed about, expropriated, and uprooted much as if they were the subjects of a conquering power." Safdie, for example, ends a confused passage about central planning and the free market with this inscrutable imperative: "We must create new conditions in which a vision of the city is integrated with feedback from the city's inhabitants, and in which a central authority is vested with power to enact this vision in a manner unthreatening to individuals or communities." Whatever that means exactly, it can't be good.

Safdie is an innovative architect, but he should stick with designing geometrically challenged buildings. His suggestion for solving our mobility problems is truly bizarre. He thinks we should make cars a public utility. Inspired by the use of communal bicycles in Amsterdam, Safdie thinks we should give up owning our own cars and instead be able to pick up and drop off small "utility cars" (or U-cars) as we need them at depots scattered throughout cities. Think of it as Hertz and Avis in every neighborhood. Because such cars could be stored more efficiently than in typical parking lots or private homes (he has hand drawings of the spatial arrangements in the book), we would save huge amounts of space in our cities. Kay, meanwhile, is not only largely oblivious to market solutions to genuine mobility problems (such as congestion pricing and privatization), but is positively hostile to them, especially for transit systems. "[T]he quest for `efficiency' through privatization is a menace," Kay writes.

Even though commonsensical Americans are not going to stand for being coerced out of their cars any time soon, the anti-car and urban planning nostrums of the idealists are achieving axiomatic status. People are being made to feel just a bit guilty about driving, at least by themselves or for "unnecessary" trips. Forget the Sunday drive. It is a crime against nature. As James Q. Wilson recently pointed out, if the automobile were first invented today, it would face insurmountable political obstacles to its introduction into the marketplace. So even though all urban areas and roads take up only about 3 percent of the land area of the continental United States, we go on acting out the mad tea party scene from Lewis Carroll's Alice's Adventures in Wonderland: "The table was a large one, but the three were all crowded together at one corner of it. 'No room! No room!' they cried out when they saw Alice coming. 'There's plenty of room!' said Alice indignantly, and she sat down in a large arm-chair at one end of the table." We go on lavishing billions of dollars on new rail transit, the urban mobility equivalent of the Maginot Line, even though transit ridership continues to decline.

It's enough to send any happy motorist into road rage. The time has come to run these plodding idealists off the road. Go ahead; gun your engine, go for a Sunday drive. It gives the phrase "drive them nuts" a whole new meaning.

Same as the Old Boss?

info@reason.com (Steven Hayward) — Mon, 01 Dec 1997 00:00:00 EST

I have never been able to make up my mind about term limits. They are great fun to vote for, and I always have. Anything that causes such paroxysms of outrage within the political class must be worth doing. This may be sufficient reason to support them. An early cartoon on the issue neatly captures my feeling: Two drinkers at a bar. One says to the other, "Do you think politicians should have term limits?" The other says, "Nope. They should get life without parole."

In a more reflective mood, however, I usually have a more complex attitude toward government. True believers will call me a soft-headed sellout, but the theory of the spontaneous order was never meant as a complete substitute for government. The authors of the Declaration of Independence had it right when they wrote that protecting our inalienable rights requires that government be "instituted" among men, based on the "consent of the governed." Government today traduces the principle of consent through an administrative edifice that is practically beyond the reach of electoral majorities and runs roughshod over our rights through various subterfuges. Term limits are a potent populist expression of the perception that we are not being governed by our consent. But is tenure in office the root of the problem? Although term limits promise to wreak havoc on the political class, will the restoration of frequent rotation in office (which Alexander Hamilton assailed as a "feeble principle") lead to a fundamental change in the character of our government? Will the growth of government slow or reverse? Or will term limits end up as a fun but distracting sideshow?

The question is especially vital at the moment. On October 7, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit declared California's term limits initiative unconstitutional. Writing for the majority, Judge Stephen Reinhardt didn't invoke the typical concern raised by the opponents of term limits--that voters have a First Amendment right to select whatever candidates for public office they desire. Rather, Reinhardt made the unprecedented declaration that the 3.7 million Californians who cast their ballots for Proposition 140 in 1990 didn't know they were voting to place a lifetime ban on officeholders who complete their maximum terms. (The Supreme Court reversed Reinhardt's opinions a record 11 times last session, so the justices are expected to review this decision as well.)

I used to say that I awoke in the morning opposed to term limits in the abstract but immediately changed my mind upon seeing the first politician in action. For a long time, this didn't require tuning in C-SPAN; it involved simply walking down the street. From 1988 to 1994, when I worked for the Claremont Institute and the Pacific Research Institute, I lived just a few blocks from the state capitol and got a close look at the legislature as it chopped up and spat out nearly 5,000 pieces of legislation a year. It was seldom an edifying spectacle.

As the largest state, California has the legislature that most resembles Congress, so it's a good place to consider the likely impact of term limits at the federal level. The California legislature is a full-time, highly paid body with a large staff and adjunct agencies similar to the Congressional Budget Office and Congressional Research Service. In addition, California enacted the three-term (six-year) limit for the Assembly that term limit advocates demand for the U.S. House, rather than a 12-year maximum. The limit for the state Senate is two terms (eight years).

California has always offered a menagerie of walking arguments for term limits. My favorite is state Sen. Ralph Dills (D-Gardena), California's answer to Strom Thurmond. The 87-year-old Dills was first elected to the legislature in 1938. He still shares tales from time to time about dealing with Harry Hopkins and other New Dealers. Up against his Senate term limit next year (his slogan for his last election campaign was "Too Old to Retire"), he is planning to run for the state Assembly, where he still has six full years of eligibility, even though he had to be rolled onto the Senate floor in a wheelchair for some key votes this year.

Republicans offer their own examples of deadwood, such as the appropriately named Sen. William Craven. First elected in 1972, he is not as old as Dills (his legislative biography does not divulge his age), but he missed much of the recent legislative session because of illness. It is not clear his colleagues missed him; he hasn't attended Senate Republican caucus meetings for years, and his principal Senate task seems to be the apportioning of parking spaces for staff people. Craven's chief of staff, paid a six-figure salary, oversees this function.

Then, of course, there was the legendary Assembly Speaker Willie Brown. The legislature under Brown was a barely concealed swap meet. He used to essentially extort fabulous sums of money from business interests in the form of campaign contributions, under the implied threat that bills they wanted enacted (or blocked, in the case of the tobacco industry) wouldn't see the light of day if they didn't pay up. It was an efficient, smooth-running machine. Brown's genius was his ability to protect and expand liberal interests while buying off business interests with narrow favors. This not only stymied any broad-based reform such as tax reduction or deregulation, but also kept business interests from coalescing into a serious force against Democrats in elections. It drove Republicans crazy.

Under Brown, the lobbying community became known as the "third house," since lobbyists were a de facto branch of the legislature. The biggest statist interests--the trial lawyers, the teachers union, and other labor groups--enjoyed a stranglehold on the legislature. Membership on "juice" committees--banking, insurance, natural resources--was highly coveted because these committees allowed you to generate more campaign cash. One veteran lobbyist was legendary (before he went to prison) for the way he would stand in the back of committee rooms, wig-wagging hand signals like a third base coach to indicate to the committee chairman which bills should be killed or voted out, which amendments accepted, and so forth. Brown's whole apparatus worked so smoothly, in fact, that widespread rumor has it that when the FBI investigated political corruption in Sacramento in the mid-1980s, Willie was their main target. The Feds never laid a glove on him. Two Republican legislators went to federal prison instead.

When I moved to Sacramento, Brown was in his eighth year as speaker of the Assembly and nearing the record for the longest-tenured speaker in California history. Brown referred to himself as "the Ayatollah" of the legislature, and the description was not hyperbole. But Republicans were sure they were closing in and would get the drop on him in the next election, or the election after that. California Republicans were the Chicago Cubs of modern politics: Just wait till next year. Brown was still speaker when I left town in 1994. And even though Republicans did finally break through in the election of 1994, taking a slim majority of the Assembly for the first time in 25 years, Brown's legerdemain was such that he still kept the Assembly under Democratic control for another year.

Throughout the 1980s, Republicans salivated over polls showing that Willie Brown was highly unpopular around the state--sort of like House Speaker Newt Gingrich today. Just as Democrats last year tried to tie Republican House members to Newt, California Republicans always tried to tie Democratic legislators to Willie. It seldom worked. The advantages of local incumbency always won out over Willie's general unpopularity. The Republicans scarcely dented Brown's majority. Only three incumbents were defeated in the last three elections of the 1980s; the overall turnover rate for the Assembly fell by half during the decade.

But what if the entire state could vote against Willie through the proxy of term limits? Term limits offer a powerful means to cut through the modern electoral paradox wherein voters hate the political class in general but love their local representative. Term limits allowed you to vote against the other guy--all the other guys, in fact. Never mind that it was the political equivalent of Mutual Assured Destruction, wiping out your own local guy as well as the other town's bum. Term limit proponents in California offered all the usual reasons in favor of the idea, but its biggest attraction was left unstated: It would be the long-sought silver bullet for Willie Brown. Although term limits didn't start in California, it's hard to deny that California helped propel a national movement simply to get rid of one person.

Seven years after the enactment of term limits with the passage of Proposition 140, following a rough transition period that saw old-timers clinging to the last threads of power along with newcomers ready to change things, what judgments can be made about the effect of term limits in California? I returned to Sacramento several times during the spring and summer, visiting my old haunts in the Assembly gallery and committee rooms. The scene looked much the same, even if most of the faces were new. Committees still abused witnesses. The state budget was still woefully late. Gridlock still prevailed. Who were all these no-names? Where were my favorite old dinosaurs? Yet beneath these superficial features, there were some signs of significant change.

Although the conventional wisdom is that "the jury is still out" on how term limits are working, it is possible to give a midterm report card. The best way to begin an evaluation is to assess the conditions in Sacramento based on a balance sheet of the arguments in favor of and against term limits. The main arguments in favor of term limits are:

* Term limits will produce more competitive elections.

* Term limits will produce a "citizen legislature" of more ordinary people rather than professional politicians. Term-limited representatives would be more in harmony with public opinion and with their districts' constituents.

* Term limits will reduce the influence of special interests by disrupting the buddy-buddy relationships and favors that lobbyists use to capture entrenched incumbents.

* Term limits might even reduce the growth rate of government, at least on the congressional level, where studies have shown that the longer legislators are in office, the more spending and bureaucracy they tend to support.

The main arguments against term limits reduce to these two:

* Term limits will produce an inexperienced, amateur legislature. Term-limited officeholders will have little motivation for the long term and will be looking to advance themselves quickly into higher office.

* Inexperienced legislators will be easy prey for special interests; bureaucrats and permanent staff will dominate them.

Not all of these claims can be objectively assessed, of course, but the weight of the available evidence, and the common-sense perception of the matter, appears to fall on the side of term limit advocates.

First of all, it was not necessary to wait until 1997 to discern the impact of term limits. Some of the intended effects were felt immediately after passage of Prop. 140 in 1990. One of the highest-ranking Assembly Democrats, Mike Roos, scarcely concealing the personal insult he felt, resigned for a job in the private sector (albeit at a nonprofit educrat boondoggle), while two senior senators (one Republican, one Democrat) resigned to become highly paid association heads (a.k.a. lobbyists). Most notably, Willie Brown left halfway through his last term to become mayor of San Francisco and in doing so surrendered full control of the Assembly to the Republicans.

I have long thought this direct insult to politicians' egregious egos was the best aspect of term limits. As Henry Adams observed, "The effect of power and publicity on all men is the aggravation of self...one can scarcely use expressions too strong to describe the violence of egotism it stimulates." Term limits send the tacit message that none of these officeholders is indispensable to the future security and progress of our republic. The lifetime ban of California's term limits underscores this insult, which has prompted countless silly comments from aggrieved legislators. Sen. Bill Craven said, apparently without any trace of irony, "This places legislators in the same category as felons." (Whether the anti-term limit lawsuit is decided by the full 9th Circuit or the Supreme Court, the lifetime ban will likely be the main issue.)

As the first elections after Prop. 140 approached, numerous other legislators either retired early or ran for higher office, thus clearing out a larger number of seats than usual. The trend was encouraged not just by term limits but also by a fair reapportionment in 1991, which produced more swing districts. During the 1980s, the overall turnover rate in the Assembly was 16 percent (the second lowest of all 50 states--only New York was worse), and 85 percent of incumbents sought re-election in each cycle. Incumbents were a virtual lock for re-election. In the two elections leading up to 1996, the Assembly turnover rate increased to 36 percent, and the share of incumbents seeking re-election dropped to 67 percent. More women and minorities were elected. There was a similar shakeout in the state Senate. Elections have become more competitive. The number of candidates filing to run has increased significantly, and the margins of victory in both primary and general elections have narrowed.

This post-term limit ferment contributed to the Republican takeover of the Assembly in 1994, the first time in a quarter century the Democrats lost control of that house. The election of 1994 featured 22 open Assembly seats (out of a total of 80), far higher than in any election during the 1980s. Though the 1991 reapportionment and the national Republican tidal wave in 1994 likely were more important than term limits, the narrow takeover probably wouldn't have happened without the additional open seats that term limits produced.

Even though California's legislature is the highest paid in the nation (members get over $100,000 a year in salary, per diem, and other perks), thus making it a virtual incubator for career politicians, the term limit environment does seem to be producing more people who fit the description of "citizen-legislator," with many more members having business experience, especially small-business experience, than was typical in the 1980s. Nearly a quarter of the legislators (23.7 percent) now claim to have had experience as business owners, up from 8 percent in 1976 and 10 percent in 1986. The number of former city council members, school board members, and other local elected officials has quadrupled. Most notable has been the marked decrease in the number of former staff people moving up to Assembly and Senate seats. The ranks used to be peppered with former staff people, the apotheosis of cronyism. There are none among the newest crop of legislators. (There are still plenty of lawyers, alas.) The influx has certainly given the capitol a new look and feel. It is commonplace for freshman Assembly members to be committee chairs.

While Republicans in the legislature continue to be a mix of rock-ribbed conservatives and chamber-of-commerce moderates, term limits seem to have produced a higher number of moderate Democrats, less beholden to the party's liberal leadership and interest groups. Most of these new moderates come from California's Central Valley, where agricultural interests reign supreme. Valley farm interests are considered "pro-business" but of course depend on water socialism and subsidies, and they tend to support Democrats as often as Republicans. As one veteran Republican legislator told me, "the new Democrats are more tolerant of private enterprise than their '60s radical predecessors, who dominated the legislature under Brown."

It was the reservations of moderate Democrats about the party's position on welfare reform that divided Democrats in this year's budget battle. The Democratic leadership wanted to hold out for a very liberal "reform" plan (i.e., no reform at all), but several moderate Democrats balked. This division strengthened Gov. Pete Wilson's hand, which enabled him to drive a compromise welfare reform plan that many conservatives think was a sellout but which is probably more than he would have gotten had Willie Brown still been in charge.

The current legislature is certainly "inexperienced" compared to its predecessors. The Sacramento press corps, which doesn't like term limits any better than veteran lobbyists do, has produced one story after another about "rookie mistakes" by new legislators. The new members are "inept at the basics of politics," a San Francisco Chronicle reporter wrote. Ross Sargent, the longtime chief of staff to Sen. Pat Johnston (D-Stockton), complains of rookie legislators that "you talk to them and say, `That [idea] was here five or 10 years ago,' and they express surprise." Bill Lockyer (D-Hayward), president pro tem of the Senate, circulated a memo to the Assembly offering tips on how to "work" legislation, a move political junkies pounced upon as an unheard-of step made necessary by term limits. The new Assembly speaker, Cruz Bustamante (D-Fresno), is in his final term and is widely perceived to be extremely weak because of term limits.

The argument about inexperience has always struck many term limits supporters as a bad joke. As Lew Uhler, one of the sponsors of Prop. 140, puts it, "If you're having your safe cracked, would you rather have it done by a first-time amateur, or by a seasoned pro who has done it hundreds of times?" Mark Petracca, a political scientist at the University of California, Irvine, who has studied term limits closely, observes that the new legislators can hardly be considered totally inexperienced, because many of them have backgrounds on school boards, city councils, county boards of supervisors, and other local government bodies. But there are still a number of new members without much government experience at all. Is this in fact a bad thing, or perhaps a virtue of term limits?

Consider, for example, the case of Democrat Carl Washington, an African-American Baptist minister from Los Angeles. He replaced Assemblyman Willard Murray, who was a typical urban liberal and a product of the Democratic machine. Washington wears his innocence on his sleeve. A Republican staff person fell into conversation with Washington one day about the idea of school choice. Washington, intrigued, said, "Sounds like a good idea to me." When told that the California Teachers Association bitterly opposes school choice, Washington replied that it might be a problem for him as well, since the CTA had given him large campaign contributions. But he didn't rule it out.

Washington also made headlines when he voted in committee for a Republican tax cut bill against the wishes of the Democratic leadership. He allegedly said in the committee hearing that he didn't actually agree with the bill but that he voted for it because the bill's sponsor had voted for one of his (Washington's) bills. Open vote trading of this kind is a felony under California law--which is why "experienced" lawmakers have made logrolling an art form--so the attorney general opened an investigation of Washington. It turns out the official tape recording of the committee hearing is mysteriously blank at the moment of the comment in question. The attorney general recently concluded that there was insufficient evidence to warrant prosecution.

There are two ways of thinking about Washington's example. Opponents of term limits have made him their poster child for the pitfalls of inexperience, of which there are many other examples from this term. Others cite the refreshing openness to new (or old) ideas that Washington and other members like him display, along with an inclination to flout the old conventions that made the legislative process an insiders' domain. As one longtime lobbyist told me, "We're getting a refreshing honesty in the new people. They don't know what they're supposed to lie about yet."

The difference between the reliably liberal Murray and his "inexperienced" successor Washington would seem to tip the balance of the argument in favor of term limits for two reasons. In addition to the openness to new ideas, the established big government interests such as the teachers union and trial lawyers have to worry about re-establishing their influence with each new crop of legislators. The teachers union may well be able to keep Washington in line on school choice, but it is not automatic, as it was in the past. And in just a few years they will have to worry about Washington's successor.

"The influence of lobbyists was based on decades of ongoing personal relationships with legislators," says Assemblyman Tom McClintock (R-Thousand Oaks), the most libertarian-minded member of the legislature. (McClintock supported term limits in 1990 but is now having some second thoughts.) "Now the previously well-entrenched interests have to justify themselves to new people, who are strangers. And the new legislators are wary and will often say, 'Oh, you're a special interest lobbyist. I'm not sure I should talk to you.' "

So all lobbyists are finding they have to work a lot harder to establish trust and get their point of view across. A distinction seems to be emerging within Sacramento's "third house." Lobbyists for interests who depend on government favor rather than the market for economic gain, such as trial lawyers and the teachers union, generally hate term limits for the uncertainty turnover has introduced to their previously stable world. Meanwhile, lobbyists for various long-suffering conservative groups whose main mission is opposing government intervention, such as "pro-family" religious organizations and some business interests, are reveling at the new opportunity term limits have given them. "We love term limits," says Michael Bowman of the Capitol Resource Institute, a pro-family lobby. "Term limits have been very beneficial in opening up the process for citizens and for groups who had been shut out before." Many business lobbyists who had little access and even less success with the old Democrats in the legislature say that with term limits they not only have better access but are even listened to. "We have a shot with them now," one business lobbyist says.

With the apple cart upset for both legislators and lobbyists, the scene would seem to be set for staff and the bureaucracy to dominate. My own casual observations led me to think that staff was gaining power, simply because of all the familiar faces I first got to know 10 years ago who are still in senior positions in the Assembly, even though all the officeholders have turned over. Some had even come back to staff jobs after leaving for the private sector (as lobbyists) during the first staff shakeout that followed the passage of term limits in 1990. "Like moths to a flame," I would call out when I saw them back at their old desks.

But the statistics show that enormous staff turnover has accompanied the electoral turnover. As of June, according to the Assembly Rules Committee, 73 percent of current Assembly staff had been on the job for three years or less, and 45 percent had been employed for one year or less. In 1990, before term limits, only 23 percent had worked there less than a year. In 1990, there were more than 200 Assembly employees who had over 10 years' experience. Now there are only about 100 with 10 years' experience.

By all accounts, the new staff members seem as ill-equipped to deal with the legislative process as new legislators. Jim Knox, executive director of Common Cause's California chapter, complains, "I've encountered staff members who are not familiar with the basic timetables of moving legislation, what committees bills go to, what the deadlines are, and how to amend bills." Criticism of poor staff is not limited to good-government types with an allegiance to an activist state. Assemblyman McClintock, who served for 10 years in the Assembly before taking a hiatus and returning this year (he still has four years of eligibility left under his term limit), agrees with Knox: "I think the overall quality of staff work has deteriorated dramatically since I left here in 1992. The staff is turning over as fast as the legislators."

Bureaucratic staff, of course, has been unaffected in any way by term limits, and the attitude of the bureaucracy toward legislators, which resembled the attitude of a rebellious adolescent toward his parents even in the old days, has hardened. Bureaucrats know that legislators, and especially committee chairs, won't be around very long. "The attitude of the bureaucracy toward the legislature is condescending and uncooperative," says McClintock. "They are unresponsive to requests from the legislature and are almost disdainful of legislators."

If all of these impressions can be taken at face value, the score would seem to be 3-1 in favor of term limits: Term limit advocates win on competitive elections, more citizen-legislators, and a reduction in the power of special interests and staff. Term limit opponents may be right that the bureaucracy comes out stronger vis-à-vis short-term legislators.

But the bottom-line test for term limits will be whether term-limited legislators slow the growth of government and ultimately contribute to a reversal in its size. The early signs are not encouraging. Even this supposedly amateur legislature has managed to produce a law encouraging the state to sue the tobacco industry and intrusive legislation requiring business owners to allow breast-feeding on their property. A measure promoting the public paddling of juvenile offenders was high on the legislative agenda last year. A bill now heading for Wilson's desk will declare San Joaquin Valley dirt the official state soil.

This is arguably a slight improvement over the bill offered a few years ago that sought to make the banana slug the official state mollusk. And the legislature has shown a few signs of being slower to impose new regulation. But on the biggest issue of all--taxing and spending--the new legislature flunked. The surging California economy is swelling state coffers with a huge unanticipated surplus, the first in 10 years. Suddenly the revenue available to be spent jumped by $1.4 billion. Assembly Republicans issued a pro forma call for a tax rate cut, but soon dropped the idea and joined Democrats in voting to spend virtually every dime of the new revenue. Instead of a genuine reduction in taxes, at the 11th hour the legislature passed a so-called middle-class tax cut consisting of the same gimmicks, such as child tax credits, as the federal tax cut bill. (By contrast, in 1987, the last time the state had a large surge of revenue, Californians enjoyed a $400 million income tax rebate.) The tax credits don't take effect until next year, and they will do little to restrain the growth of state spending. California's budget has grown by nearly $10 billion over the past four years. This is the most sober portent for extending the example of California to Congress. We simply don't have any good evidence yet that frequent rotation will lead to a reduction of government.

My persistent doubts about term limits arise for precisely this reason, namely, that term limits don't get to the heart of what ails our political life. The heart of the problem is an administrative state that has corrupted the legislative function, forcing legislators to be glorified civil servants rather than deliberative lawmakers and rewarding them for increased spending and additional bureaucracy. To the extent that tenure in office aggravates this problem, term limits are worth keeping and perhaps extending to Congress, but they are no substitute for the changes in public opinion that would be necessary to shrink the size and scope of government.

And we have not yet seen enough to know what unintended consequences might come with term limits in the long run. The forces of big government are irrepressible and may eventually prove adaptable to a term-limited environment. Californians have seen this before with reforms such as Proposition 13, a great blow for low taxes which nonetheless did not provide a lasting bulwark against expanding centralized government in California (and which in some ways made things worse; see "Pushing the Limit," November 1993).

Hence the most interesting question about term limits, and their final test, will be how term-limited legislatures adapt to the loss of "experience" and institutional memory. Term limit opponents are way too hasty in declaring victory on the issue of experience, because the place of experience in our political life is far from settled. You needn't believe that gridlock is good to divine a silver lining to the supposedly sorry circumstance of rookie legislators and staff who don't know how to work the process and meet the calendar.

"One good thing that term limits might do is force a debate about the level of complexity in our legislative institutions," says U.C.-Irvine's Mark Petracca. "Does the claim that issues are complex necessitate the kind of experience that can only be gained through long tenure in office? Or is it our complex institutional design that currently requires experience? I am suspicious about whether the complexity of the current legislative process was designed by the people who have been there for the last 30 years so that it is impenetrable to outsiders." Institutional complexity, Petracca notes, serves the interests of long-tenured officeholders, who can then market themselves to voters and special interests not only as indispensable to the legislative process but also as necessary ombudsmen for dealing with the administrative state they have conspired to extend. But it is not obvious that the process of legislating is inherently complex; the current complexity, Petracca suggests, is probably more a deliberate product.

Petracca thinks term-limited legislators eventually will change the legislative process to make it simpler and more accessible. "How much experience is necessary to redesign the legislative process in a way that is comportable to the characteristics of term-limited legislators?" he asks. The ability of less-experienced citizen-legislators to adapt to the legislative process will be an excellent case study of whether government has grown beyond the capacity of ordinary citizens to understand and reform. It will show whether democracy has diminished to the point where elections are merely ancillary to government, or whether elections are still at the heart of our democracy. For this reason alone--and no matter what the courts say about the constitutionality of Prop. 140--the experiment should be allowed to continue. (If the courts strike down Prop. 140, term limits advocates have prepared new initiatives they believe will withstand any further constitutional challenges.)

Meanwhile, Willie Brown, the career politician who helped spawn term limits, is having the time of his life as mayor of San Francisco. Democrats are back in control of the legislature, and spending is unrestrained. Was it all worth it, just to get rid of Willie Brown and exact revenge on the political class? The liberal machine in Sacramento sorely misses him, which suggests that the answer is yes.

Feckless FEC

info@reason.com (Allison R. Hayward) info@reason.com (Steven Hayward) — Tue, 01 Jul 1997 00:00:00 EDT

The U.S. 4th Circuit Court of Appeals has dealt another body blow to the Federal Election Commission's crusade to regulate political speech. (See "Gagging on Political Reform," October 1996.) On April 7, the court said the FEC must pay a group's legal costs because the agency did not prosecute it in good faith.

Following the 1992 election, the FEC brought suit against the Christian Action Network, which had run TV ads identifying then-candidate Bill Clinton as "pro-homosexual" and inviting viewers to phone for more information. An incorporated nonprofit organization, CAN could not legally campaign for a federal candidate. The FEC charged that the group's commercials amounted to either an "independent expenditure" or an "in-kind" contribution to Bush's campaign--either of which would be an illegal corporate expenditure.

Though the ads stopped short of using prohibited "express advocacy" terms such as "vote for" or "support," the FEC charged that the sounds and images in the ads constituted express advocacy and should be subject to regulation. In other words, no words of advocacy would necessarily be required to constitute "express advocacy."

The 4th Circuit Court laughed this novel interpretation out of court last year, castigating the FEC severely for ignoring 20 years of case law on this issue. "It would be inappropriate for us," the court noted wryly, "to even inquire whether the identification of a candidate as pro homosexual constitutes advocacy for, or against, that candidate."

Desperately Seeking David

info@reason.com (Steven Hayward) — Sat, 01 Mar 1997 00:00:00 EST

Radical Son: A Generational Odyssey, by David Horowitz, New York: The Free Press, 496 pages, $27.50

With the swift collapse of the Soviet Union and the demise of ideological communism, it might seem that the time has passed for the genre of ex-revolutionary, "God that failed" literature that includes Arthur Koestler's Darkness at Noon, George Orwell's Animal Farm, and Whittaker Chambers's Witness. Radical Son may prove to be the last of the genre, and it is a sign of how rapidly the Cold War era is passing from memory that this book may not be well-received--and not simply because David Horowitz's blunt, aggressive personality prompts the unsheathing of the critical long knives. The intellectual and personal atmosphere of the Cold War era and the New Left is in danger of ending up as remote and inaccessible to our imagination as the Children's Crusades of the Middle Ages, and is perhaps already becoming so. Because of this circumstance, Horowitz's book may undeservedly face an uphill climb with many readers.

Even ideologically sympathetic readers may find Radical Son an odd book, because it is intensely personal. To a greater extent than any other ex-revolutionary narrative, Horowitz's book includes confession, introspection, and embarrassing detail. I'm not sure I really needed to know that he wasn't breast-fed as an infant, or about his extramarital affairs, or about his painful life-long estrangement from his father. Yet taken as a whole, Radical Son is a compelling story, because it goes farther than many of the previous narratives in conveying how deeply radicalism cuts into one's character and psychology. The supposedly redemptive power of radical ideology, Horowitz makes clear, reaches into every corner of the soul, thus making a break from radicalism a desperate and personally devastating matter.

Horowitz was a classic "red diaper baby," raised by communist parents in the hothouse atmosphere of New York City in the 1940s. His parents, he tells us, thought of themselves as secret agents and were in fact close to the chain of communications that delivered Stalin's orders to assassinate Trotsky. Horowitz even attended Wo-Chi-Ca (short for "Workers Children's Camp"), a communist summer camp for kids. He undertook his first political project at age 10.

Ever since 1917, leftist intellectuals of each generation have had to face a moment of truth, their "Kronstadt" (after the ruthless crushing of the Soviet navy rebellion in 1921), forcing them to acknowledge the "shock of recognition" about the true nature of revolutionary socialism, or deny the truth and surrender their souls to justifying tyranny, or chase after some elusive "third way" that would supposedly square the contradictions of socialism. After Kronstadt, there were the Purge Trials in the 1930s, the Khrushchev report and the Hungarian revolt in the 1950s, Czechoslovakia in 1968, Solzhenitsyn's revelations about the Gulag in the 1970s, and martial law in Poland in 1982. For each generation, revolutionary socialism was revealed to be, in Bernard Henri-Levy's phrase, barbarism with a human face.

For Horowitz, his family, and their contemporaries in the radical neighborhoods of New York in the post World War II years, it was the Khrushchev report on the barbarism of Stalin that presented a challenge to their Marxist faith. Instead of inspiring doubts, the Khrushchev report ironically gave birth to the "New Left," which held "the conviction that the original passion could be born again, and that we could create a new socialist vision free of the taint that Stalin had placed on the movement our parents had served." This became Horowitz's mission, and he pursued it with genuine intellectual seriousness.

After he finished a degree in English literature at Columbia University ("a series of missed opportunities," he now says), his travels brought him into the orbit of Bertrand Russell and Isaac Deutscher in London, where his writing career germinated. He went on to Berkeley, where he entered the graduate program in English literature and began writing and editing for Ramparts magazine. He describes the atmosphere and attitude of the New Left at that time: "As members of a new radical generation, our political identity was virginal: We had the benefit of everybody's doubt. We could position ourselves as radical critics of American society without having to defend the crimes committed by the Soviet bloc."

But already Horowitz was troubled by the anti-intellectualism of the New Left. "To me, intellectual rigor did matter," he writes. "I had read through shelves of books in an effort to find out why previous revolutions had gone wrong. Now, the anti-intellectualism already present in the Movement had become a revolutionary badge of honor." The Weathermen and other militant New Leftists had never heard of the Khrushchev report. "Above all," he writes, "they had no sense of the abyss over which every revolutionary act was suspended."

But what finally pushed Horowitz beyond the brink of doubt was his close involvement with the Black Panthers in Oakland, which culminated in the Panther murder of their bookkeeper, Betty Van Patter, whom Horowitz had recruited for the Panthers. "Our injustice," he writes, "was as brutal and final as Stalin's. As progressives we had no law to govern us, other than that of the gang....I began to ask myself whether there was something in Marxism, or in the socialist idea itself, that was the root of the problem....My second thoughts had led me through a dark night of the soul that involved the condemnation of my own life."

To give up the socialist idea was still unthinkable for Horowitz at this point, so he dropped out of political activity altogether. But for such a political being, this resulted in personal free-fall, including an affair, drinking, and divorce from his first wife, Elissa. In his desperation, he even gave psychic healing a tryout. He began to piece his life back together by teaming up with his former Ramparts partner Peter Collier for a series of best- selling biographies of famous American family dynasties, such as the Kennedys, the Rockefellers, and the Fords. By degrees Horowitz became more convinced of the value of democracy, individual liberty, and free markets, and perhaps can be said to have fully crossed over when he cast his presidential ballot for Ronald Reagan in 1984. After that, most readers will know, he and Peter Collier went on to launch the "Second Thoughts" movement, and more recently the Center for the Study of Popular Culture and the tabloid monthly Heterodoxy.

If the depth of the personal desperation conveyed in this narrative seems alien to many readers, it is because, as suggested at the outset, the depth of the radical experience already seems anachronistic, even comical. Radical Son should be compared to, and differentiated from, the long series of similar books. One thing the ex-revolutionary literary genre has always had in common, the British critic John Strachey noted, is that "[t]he men who wrote these books regarded themselves as agonized, half-strangled outcries against an advancing, and almost certainly invincible tyranny." Richard Crossman, the editor of The God That Failed, noted that "[t]he true ex-Communist can never again be a whole personality." Arthur Koestler wrote, "Over-sensitivity to injustice and obsessional craving for Utopia are signs of neurotic maladjustment....Nothing is more sad than the death of an illusion." The novelist Ignazio Silone, another of the contributors to The God That Failed, wrote that "[s]omething of [the communist experience] remains and leaves a mark on the character that lasts all one's life."

If Horowitz's abyss seems darker and deeper than those of others who came before him, it is perhaps because he made a complete break with revolutionary socialism and embraced its opposite. It is little recognized how few of the previous generation of notable ex-communists actually made a complete break with the socialist vision. Silone wrote in The God That Failed that "my faith in Socialism, to which I think I can say my entire life bears testimony, has remained more alive than ever in me....I do not conceive Socialist policy as tied to any particular theory, but to a faith....Socialist values are permanent." And Orwell boasted that "[e]very line of serious work I have written since 1936 has been written, directly or indirectly, against totalitarianism and for democratic socialism." But Horowitz, having been a serious reader of Marx, became a serious reader of Hayek and Von Mises, coming fully to embrace the truth of the free market. Socialism, Horowitz concludes, is an adult fairy tale.

Radical Son also provides the key to understanding the fierce countenance of Horowitz's current ventures, which even many of his ideological allies do not fully comprehend or approve: In the book's prologue, Horowitz allows that "[e]ven allies who applaud the present acts of my public self often reserve suspicions of the private man whose experience they do not share and whose intentions are of a nature they do not fully trust." In the course of his narrative Horowitz explains that one of the keys to the strength of the left is its sense of moral superiority. Neither the collapse of the Soviet empire nor the eclipse of socialist ideology has really diminished the fervency of the left. While the vaunted "revolution" is nowhere in prospect, radical ideology continues to be slowly assimilated into American culture and institutions--a slow-motion revolution. The best way to puncture the moral pretensions of the left (and thereby challenge its legitimacy), Horowitz decided, was "to speak in the voice of the New Left--outraged, aggressive, morally certain. I would frame indictments as we had framed them, but from the other side....I wanted my former comrades to be put on the receiving end of accusations like those they had made against everyone else. I wanted them to see how it felt. Evidently, it did not feel good." This explains the deliberately chosen tone of Heterodoxy.

Just like Whittaker Chambers, Horowitz is less a conservative than he is a "man of the right" (as Chambers described himself)--i.e., against the left. In one sense, Horowitz has not changed that much since the 1960s; he is still at war with the dominant culture. So in the end he is in harmony with his essential political being. "Becoming a conservative," Horowitz concludes, "turned out, ultimately, to be a way of coming home."

Happy Warrior

info@reason.com (Rick Henderson) info@reason.com (Steven Hayward) — Sat, 01 Feb 1997 00:00:00 EST

Grover Glenn Norquist's favorite adjective might be cheerful. He uses it to describe his own frame of mind, the people around him, the events he attends, even the food he eats. The bearded, 39-year-old Norquist, founder and president of Americans for Tax Reform, is a happy warrior against big government. Although he's usually called a "Republican strategist," Norquist doesn't manage campaigns, create political ads, or conduct polls. He's more of an impresario, the Ed Sullivan of the anti-Washington movement, bringing seemingly unrelated people together to work for a common goal. He's taking his mission seriously. He uses military metaphors and hyperaggressive language, but he does so with a wink and a grin. He wants to assure his allies that achieving the goal may be critical, but the journey there should be fun.

He argues that there is an emerging "Leave-Us-Alone Coalition" of property owners, anti-tax activists, gun owners, home- and private-schoolers, small business owners, religious conservatives, and libertarians who want the government to stop interfering in their lives. By contrast, the constituencies of the New Deal alliance (what he calls the "Takings Coalition," because they want to transfer money and power from some people to others) of labor unions, government employees, trial lawyers, government contractors, and government grant and welfare recipients are shrinking. As government shrinks, Norquist says, the Takings Coalition implodes.

Over the past three years, Norquist has taken coalition building personally. Every Wednesday morning he hosts an invitation-only meeting of grassroots activists, policy analysts, congressional staffers, political candidates, and sympathetic journalists in his conference room, including 50 to 100 representatives from groups as diverse as the National Rifle Association, the Cato Institute, the Christian Coalition, U.S. Term Limits, Republicans for Choice, the Heritage Foundation, and occasionally UNITA--the political organization of Angolan anti-communists. In a typical meeting, elected officials and activist groups alert the other attendees of upcoming bills and initiatives and solicit financial or grassroots support. Soon after starting, ATR's Wednesday gathering was deemed "the hottest meeting in Washington."

Newt Gingrich (whom Norquist met in the late '70s) told The Washington Post, "He comes up with more interesting ideas than anyone I work with in terms of grassroots activism." Graduating from Harvard in 1978, Norquist soon began organizing anti-tax campaigns in California and elsewhere, combining his political activities with MBA studies at Harvard Business School. One of his MBA papers outlined a plan for the national College Republicans to switch from a resume-padding social club to an ideological, grassroots organization. In the early 1980s, he helped implement his plan with the help of the group's executive director, recent University of Georgia graduate Ralph Reed. After a stint as speechwriter and chief economist for the U.S. Chamber of Commerce and some time as a Reagan administration staffer, Norquist founded Americans for Tax Reform in 1985 to push what would become the 1986 tax simplification plan.

Norquist invented an easily comprehensible method of tracking politicians' commitment to low taxes--the Taxpayer Protection Pledge. The pledge is a one-page statement promising never to vote to increase marginal tax rates and never to eliminate tax loopholes without simultaneously supporting equivalent reductions in marginal tax rates. Norquist or an ATR staffer witnesses every signature, and once a politician takes the pledge, that person is bound for life. ATR does everything possible to make life hell for candidates who refuse to sign or who, having signed, break their word. The 105th Congress will feature 200 pledge takers in the House (including four Democrats) and 40 in the Senate (all Republicans). Every Republican presidential candidate in the 1996 race took the pledge (Richard Lugar's signature was thrown out because he demanded an exception during wars or depressions), including Bob Dole, who had refused to sign in 1988.

But always, too, there is cheerfulness. Norquist frequently hosts parties in his Capitol Hill townhouse in which grassroots activists and think tankers mingle with members of Congress to drink beer, eat Chinese food, and smoke cigars. ATR's offices near Dupont Circle resemble a college frat house: The canned music on the office voicemail system is Booker T. and the MGs. Directly behind Norquist's desk, a group of photographs of him with various political figures encircles a framed print of Janis Joplin. On the day of the interview, a Washington Post Style section story had chronicled several ATR staffers' feeding of a mouse named David Bonior (after the House minority whip) to Lysander Spooner, a boa constrictor that serves as the organization's unofficial mascot.

Washington Editor Rick Henderson and Contributing Editor Steven Hayward, vice president of research at the Pacific Research Institute, interviewed Norquist in his office the day after the election.

Reason: This is the first time since 1928 that Republicans have held Congress in consecutive terms. If there is a realignment underway, however, there seems to be this little barrier about winning the White House. What does it take to change that?

Grover Norquist: I think it is very healthy that the conservative movement and the Republican Party didn't panic on losing the White House in 1992. The Republican Party, and specifically the Leave-Us-Alone Coalition, which I think conforms with the modern Republican Party, is the natural governing majority party. We have 32 governors and a majority of state houses and almost half of all the state legislators. We control half of the Congress and half of the Senate, and we're moving into local offices, and judges, and so on. That natural governing majority can exist apart from a president of the other party.

The Republican Party and the conservative free market movement have been presidentially focused for too long. Part of that was reasonable in the Cold War. I mean, four more years of Carter, and Central America would have been communist, and South Africa would have been communist, and they would have rolled up Africa, they would have rolled up Latin America. We could have lost the whole shooting match to what we now know as a rather pathetic Soviet empire. But they still could have beaten us if Carter had continued supervising our team.

With the Cold War won--not over, won--there just isn't the same necessity of keeping the presidency. There will be people killed around the globe because we have an idiot for a president, but I mean, nobody took losing the presidency really hard. [Holds up a newspaper column.] Here's Arianna Huffington whining about Dole's loss being a disaster. What disaster?

I am not unhappy that Clinton was able to win. I'm unhappy he did win, but I'm not unhappy that he was able to win campaigning on our issues. He did not run saying, "I'm going to give you lots of government." Hypocrisy is the tribute that vice pays to virtue. And Nixonism is the tribute that a minority party politician pays to the majority party's positions--you cede territory as you have to. The Democrats got a lot out of Nixon. And what we have in Clinton is Nixon in '72. Not only the parallel with the scandals, which I think the press is not going to push. They'll be pulled through, subpoena by subpoena.

But Clinton's good for us. I want Clinton standing at the end of four years. I want everybody around him gone and discredited, but I want Clinton standing there--Gorbachev. The whole house of cards under Gorbachev collapsed, the entire empire collapsed--but he's OK. He's happy. Like one of these buildings that implodes, Gorbachev stood at the top and floated down and walked away unscathed. I want Clinton to do the same thing for the American left. I want him to walk away with everybody around him bloodied and him going, "I'm fine."

Reason: In American history political transformations are slow-motion affairs. Wasn't it a mistake of House Republicans and others to talk so fondly in terms of revolution the last two years?

Norquist: No, for two reasons: You have to talk to your own troops to keep them going, and we don't have control of the discussion.

When we say Washington is corrupt and needs changing, the media will say we're revolutionary and we're looney tunes. The taxpayer group in every state is always--always referred to as nuts. Every state! I thought maybe we just had a lot of nuts [laughter].

I deal with both in Washington, with the establishment and with the revolutionaries at ATR, corporate guys and the taxpayers' movement. The corporate guys in every state--the Chamber of Commerce--think the taxpayer groups are nutty. Why? Because that's what the left always says about taxpayers' groups: that's how they marginalize them. Sometimes guys like Howard Jarvis [the father of California's Proposition 13] play into the stereotype and become more nutty than they probably were before everyone told them they were nutty. But just as you listen to Radio Moscow and when they tell you somebody's ill, you realize he's dead, our team hears, "He's a little bit nutty," and they go, "Oh, he must be OK."

Reason: What are your coalition's core issues?

Norquist: The next person who runs for president should run on the six non-negotiables: 1) Racial preferences: Liberals can say they're against quotas, but they have to vote against something like the California Civil Rights Initiative. 2) Tort reform: Liberals think they should be able to violate contracts any time they want to because they don't like them. Plus, the trial lawyers line the Democrats' coffers. 3) A single-rate tax system, because that goes after class warfare, along with double and triple taxation. 4) School choice, because the teachers' unions won't allow it. 5) Opposition to gun control. 6) A balanced-budget amendment to the Constitution with a supermajority requirement for raising taxes, because it explains who we are vs. who they are.

Reason: What about abortion?

Norquist: The distinction between the Leave-Us-Alone Coalition and the Takings Coalition is that we think the proper role of the state is to protect people. The abortion issue will never be solved because the disagreement is over whether there are one or two people involved. The question isn't who should be left alone--the question is, "How many people are there?" With abortion, if there's one person, then the role of the state is to protect that person and let her have an abortion. If there are two people, then both of them deserve protection.

I don't know any pro-choicers who say, "There are two distinct human beings here--kill one." And I don't know any pro-lifers who say, "No, there's only one person here and we want to compel her to have a baby." But that doesn't mean they should disagree about whether the government should steal people's property or grab their guns or about school choice.

I know lots of people who are pro-choice and are radical libertarians. I know of almost no one in elected office who is. For too many politicians the promise that they are solid conservatives except on social issues is followed by the declaration that support for racial quotas is a social issue, property confiscation in the name of environmentalism is a social issue, gun control then becomes a social issue.

People who are willing to stick to a strong pro-life position aren't going to be pushed off a strong anti-tax position. For people who like to think in ideologically cohesive ways it makes no sense, but that's the way it is.

Reason: You have suggested that your coalition may unite behind a single presidential candidate in 2000. Who might the coalition support?

Norquist: It is important that we don't commit to any one person in the next two years. We want all potential suitors to compete, not just on an ideological basis but on a party-building basis. These guys should go out there and hustle.

My biggest disappointment was when [Indianapolis Mayor Steve] Goldsmith lost in the Indiana governor's race. I thought he was presidential. I thought had Jeb Bush won the governorship two years ago in Florida, he could have been a presidential candidate. [House Majority Leader] Dick Armey is someone who could be a wonderful leader for the Leave-Us-Alone Coalition.

Lamar Alexander hurt himself by his opposition to the flat tax. Jack Kemp has to come to grips about whether he's for or against apartheid. Is state-sponsored racial discrimination a good or a bad thing? Until recently, he said it was a good thing. That is not acceptable. And he has to decide whether government spending per se is wrong, and he hasn't yet done that.

Reason: What about Steve Forbes?

Norquist: Forbes is a very strong possibility. He's been a real party builder. Had he done what Colin Powell did after he stepped out--had he withdrawn from public view, people would have said, "He wanted to be president, he wanted to be important, but now he doesn't want to play." But Forbes was aggressively campaigning for other Republicans when it was clear he wasn't going to win. That's a guy who cares about building a movement. That's a guy who's not just in this for himself, which is the route that Powell took. Had Powell just taken half a month of his time, he could have helped us win 10 more House seats. He could have gone out and done fundraisers for people or visited every vulnerable district, and he didn't.

Forbes is helping people. Sometimes by helping other people you help yourself. When you run for president you're asking everybody to help you.

Reason: You have taken some strong positions in support of immigration, despite some major divisions among people in your coalition. Why did you do this?

Norquist: We have to have a police state powerful enough to find everyone in the country and figure out who they are? Whoa, Nelly! There are some things that even if they were a good idea, to do them the government would have to be too big.

I've taken the strategically brilliant position [laughter] that I think is self-evident--eliminate welfare for immigrants, legal and illegal. What bothers most Americans is that they think immigrants come here to go on welfare and don't work. It doesn't bother them that there's x number of new swarthy looking people in the country. This does not keep them up at night.

I'm in favor of banning welfare for immigrants, legal or illegal, because I'm against welfare, period. If we like immigrants, we have to take this mark of Cain off them, that people think that they're on welfare. If we make the no-welfare-for-immigrants provisions stick, through the court challenges, then the next time someone in Congress gets up a head of steam and wants to clear out the immigrants, he's got fewer guys in his army.

Reason: But the Republicans' anti-immigration rhetoric may have cost the party Latino voters for a generation. How can the party get them back?

Norquist: We have to highlight that we're only going after welfare. Then we have to talk about other things. Pro-choice suburbanites don't mind pro-lifers, but they don't want to hear them talk about it all day. Hispanics don't mind Republicans discussing cutting off welfare benefits unless they hear them talk about it all day. In that case they think, "These guys really do have a hangup about me." We need to make it clear: immigration good, welfare bad. Welcome to the country. And if you don't want the government stealing your money, vote for me.

Pat Buchanan does come across--I hate to use the left's language--as mean-spirited.

Reason: He was also telling "Jose" to go home.

Norquist: Buchanan's used to bar fights. I could come back at him with some Irish slur and he would think it was a fair fight. Jose doesn't look at it that way. He doesn't look at this as a cute intellectual discussion.

Reason: In his recent book, your old friend Ralph Reed said he thought that passing the Communications Decency Act [banning "indecent" speech on the Internet] was a great victory for the family movement. ATR was one of the parties that sued to have the CDA declared unconstitutional. What happened there?

Norquist: The way I talked to him about this is that there is a private sector solution, which is screening software that parents install for the protection of their kids. The idea that the government should help parents protect their kids is inviting somebody into the house that ain't ever going away and certainly ain't limiting itself to regulation of the Internet.

As we get more used to the Internet it will also be easier to convince the family groups. Fear of the Internet is a false fear. You can't tell a parent that there's software that will keep your kid from looking at dirty pictures on the Internet, because he believes in his heart of hearts that his kid can break into anything, or should be able to, or knows someone who can. A couple years from now parents will understand it more, how much their kids can and can't do on the Internet. It will be less frightening.

Reason: Let's pick up this point on kids, because Arianna Huffington has written pro- censorship columns, in which she has said, the problem is not kids, it's adults. We don't want adults seeing this stuff. And Judge Robert Bork--another conservative icon--openly argues for censorship to protect adults.

Norquist: How many divisions does Bork have? How many divisions does Arianna Huffington have? The First Amendment can withstand any number of books or columns from Bork or Huffington.

I don't mean to be Pollyanna-ish and argue there are no conflicts. But we need to depoliticize more stuff, move more things out of the political realm. When you see arguments--should creationism be taught in the public schools? Once you move to school choice you have eliminated that argument and it's not a problem any more.

There will be conflicts, and this is where Gingrich's observation is so critical. The majority governing party does not eliminate conflict, doesn't resolve conflict. We agree to manage conflict.

I probably did a poor job hauling off and joining the lawsuit against the Communications Decency Act without sitting down and talking to the family groups. On the other hand, my position was--they didn't exactly talk to us about it either. That was a mistake.

Reason: What about those people who would prosecute the sponsors of a privately funded Mapplethorpe exhibit in Cincinnati? Are they leaving people alone?

Norquist: At the national level, conservative groups don't care much about that. At the local level, I talk about focus and resources. How much of your resources do you use to fight for school choice, which gives you complete control over your child's education, and how much do you focus on making it so that somebody in another city can't look at dirty pictures?

I am not concerned that the religious right will run out of things to do. My greater fear is that if you get school choice that the [Christian right] will do what they did 20 years ago--they'll retreat into their own private lives and that they won't come out and vote for tax cuts. My fear is that if they get their main issues settled, they'll go home.

We want to remind everybody who's a single-issue voter for freedom that there are seven other reasons to support it. What the Christian Coalition has done is so important. The Christian Coalition represents a lot of white Southerners who used to be quasi-socialists. They used to buy into the whole Democratic Party's class warfare arguments. With a lot of those constituencies, we've brought them along so that they're as good on the tax issue as anyone else.

Reason: When Republicans talk crime, they mean drugs. How do you convince conservatives that the drug war is a threat to everyone's liberty?

Norquist: We have to get the property rights people and the economic conservatives to point out that the drug war should not include confiscation of property. You can win that fight. You can move away from the idea that tough on crime means being tough on property owners.

The pro-gun movement understands that inanimate objects don't harm people. People do. The Second Amendment movement understands that the anti-drug movement can easily become an anti- gun movement. It's all the same rhetoric.

Reason: You've hosted your Wednesday breakfast meetings for three years now. What inspired you to get all these people representing disparate interests in one room once a week?

Norquist: Sheer terror of Clinton's health care plan. The goal was to stop the government seizure of the health care industry. Had the Democrats taken over health care, I think we would have become a social democracy and we could have never undone it. We wouldn't have won in '94, and even if we did, it wouldn't matter because 50 percent of the population would be on the take. The government has your kids' education, your health care, your parents' health care, and your pension. You want to argue with that government?

There isn't an anti-government party in Germany, Sweden, or France. You have conservatives, but basically it's a European kind of conservatism--one religion hates the other, or we should all own the land on the other side of the river, you know. There's not an anti- government conservatism as a functioning, competing political party that might win an election, because everybody agrees that the government is going to run your health care. Even Margaret Thatcher was really pissy at anybody who wanted to talk about doing something with the National Health Service.

Reason: All the momentum among the chattering classes is for campaign finance reform. What may happen there and what ought to happen?

Norquist: I would hope that we would move toward complete reporting of contributions and eliminating limits. Campaign finance reform is like gun control. I mean, if they're not obeying the other laws, why would a new law help?

The problem is that the federal government hands out billions of dollars, and people will lie, cheat, steal, or bribe to get it. If you have a big cake, and you put it under the sink and then you wonder why the cockroaches are in your kitchen, I don't think any sprays or blocking the holes in the walls are going to get rid of the cockroaches. You've got to throw the cake in the trash so that the cockroaches don't have something to come for.

Take last year's phase-out of farm subsidies. Here you had a corporate welfare system that helped Republicans, and what did we do? We phased it out. Why? Because a farmer who might get a subsidy is part small businessman and part welfare recipient. That's like the guy with the devil on one shoulder and the angel on the other one. One says, "You're a Republican, you're a businessman," and the other one says, "No, you're a Democrat, you get money from the government."

Well, we just killed that devil, and now farmers are just heavily armed small businessmen [laughter]. They have nothing--nothing in common with the Democratic Party. You think Tom Daschle [the Senate minority leader] could win another election in South Dakota? He doesn't agree with the people in South Dakota on social issues, on foreign policy, on guns, on taxes, on spending. The one thing he could do is go to every wheat farmer and say, "I will get you more than the Republicans will." And it's true. No Republican could outbid Daschle. I think the Democrats have lost five Senate seats permanently: North and South Dakota and Iowa. Track the next 20 years versus the last 20 years, and there will be five fewer Democrats.

It's in our interest to kill all of those cross-subsidies. Our job is to hunt down all economic rents and kill them, extinguish them. Because all economic rents breed Democrats like cockroaches.

Reason: You think the 1988 Beck decision, in which the Supreme Court ruled that union dues can't be used for partisan political purposes, is very important. Neither the Bush nor Clinton administrations has enforced Beck. Since unions targeted Republicans so openly and viciously this election cycle, do you think the new Congress might try to pass legislation implementing Beck?

Norquist: Clinton will veto it. It will take a Republican president to enforce it.

But that decision will help us break the unions. The decision was seven to two, not some close vote. The Court said that, under the Wagner Act, the only resources that can be taken as compulsory unions dues are those that are spent on the negotiation and maintenance of your contract. Labor unions cannot take compulsory dues from you and organize the factory down the street or buy a house for [AFL-CIO President] John Sweeney. So it doesn't just ban political money.

Courts have ruled that only about 20 percent of union dues go to [legal purposes] right now. So if Beck was enforced and everybody took advantage of it, you would reduce the cash flow to unions by maybe $8 billion. Like that! [Snaps fingers.]

If 10 percent of union members did it, that's $800 million a year, and that's a lot. Average dues are around 500 bucks a year, so as soon as somebody figured out that they could get $400 back, everybody would want their $400 back. It would crush labor unions as a political entity.

Reason: You have worked with the Libertarian Party in the past. When and why?

Norquist: In the 1978, '79, and '80 races I ran a group called the Tax Action Coalition. Ed Clark [the 1980 L.P. presidential nominee] was the chairman. I've found that Libertarian Party activists make the best tax activists because they never get involved in the silly questions about which tax is preferable. They understand that the total tax burden is the total amount of freedom taken away from you, and it needs to be reduced as quickly and as completely as is humanly possible.

Much like the pro-life movement and the Christian right, the Libertarian Party has gotten much more sophisticated and presentable over the last 20 years. That's a tremendous asset. As a presidential candidate, Harry Browne was reasonable, non-threatening, and educated a lot of people on a lot of issues.

The Leave-Us-Alone Coalition and the American ideology are libertarian. That's what it means to be an American. Almost everyone has a little deviation from that, but almost everybody almost all the time wants freedom, which is a big step forward, say, from living in France or Germany.

Reason: Talk about your "in half" initiative.

Norquist: It's an initiative of ATR. I am writing a book, called In Half: How and Why We Cut the Government in Half in One Generation, 25 Years. I picked 25 years because I assume setbacks, I assume bad times as well as good. Obviously if you speed up growth, you can get to government taking only half as large a percentage of the economy quicker.

But if you privatize Social Security, if you voucherize education, if you sell the $270 billion worth of airports and wastewater treatment plants, eliminate welfare, and so on, you can get the federal government, state government, and local government to basically half of its present level of costs. Instead of 33 percent of the economy, make it 16.5 percent of the economy.

I think we could do it a lot faster if we elected the right guys, but I think it's politically doable to say, here's our goal: Cut the government in half. I think it's important to have a clearly articulated goal. And I think the movement would buy into the idea that yes, we want to move toward the government's being half its present size. That's a radical enough and big enough step that it's worth the journey. Then in 25 years I intend to write a sequel: How to Cut the Government in Half Again.

Gagging on Political Reform

info@reason.com (Allison R. Hayward) info@reason.com (Steven Hayward) — Tue, 01 Oct 1996 00:00:00 EDT

Well before either major political party had held its 1996 convention, they were already accusing each other of violating the election laws in various arcane ways. Bob Dole even warned NBC's Katie Couric during an interview that her line of questions might be against these laws. We can expect more such charges as the major, well-funded contenders attempt to harass one another.

But we can also expect the Federal Election Commission to turn its ever-more- ambitious regulatory attention to grassroots groups and citizens who want to take part in the debate, too--groups far less well-funded and less capable of extricating themselves from the tangle of FEC regulations. Such groups will encounter an FEC that functions more and more as a censor of political expression, especially by issue-oriented, grassroots activists. Regulating political speech was once unthinkable. In a provocative 1973 essay, Nobel laureate economist Ronald Coase disparaged even the possibility. Noting the "large number of false and misleading statements" in newspaper articles and political speeches, Coase wrote: "Government action to control false and misleading advertising is considered highly desirable. Yet a proposal to set up a Federal Press Commission or a Federal Political Commission modeled on the Federal Trade Commission would be dismissed out of hand."

But less than a year later, Congress reacted to the trauma of Watergate by creating the FEC, which has ever since been attempting to assert itself as just such a political power. It wasn't that Coase was shortsighted: Congress did not mean to censor political speech, and the courts have for years attempted to restrain the commission's regulatory reflexes. Rather, the FEC is a case study in the growth and transformation of oversight power. It begins with the reform of political financing, develops into ever more complex regulation of political activities, and finally matures into attempts to control political speech itself. The result is that political expression, which the framers of the First Amendment clearly intended to be the most protected kind of speech, is in fact today the least protected. If the FEC and its good-government--or "goo-goo"--cheerleaders have their way, the attack on the First Amendment will get a lot worse.

Limiting Funds and Limiting Speech

The FEC is supposed to be roughly analogous to the Securities and Exchange Commission, which promotes full disclosure of essential information to investors and seeks to enforce certain fundamental rules to prevent fraud and market manipulation. Indeed, most people probably suppose that the FEC is chiefly in the business of collecting campaign contribution reports from candidates and imposing fines when contribution limits have been exceeded or when presidential campaigns (which operate by their own set of rules) go over spending limits.

But in fact the FEC is increasingly behaving like a combination of the Federal Trade Commission and the Internal Revenue Service. Like FTC enforcement, the FEC's activities frequently seem arbitrary, and its regulatory burden falls disproportionately on the "little guy." And as with the IRS, any political organization that falls into its ever-expanding purview is subject to burdensome and complicated reporting requirements and restrictions. Like the IRS, the FEC has the authority to audit finances and can haul a political committee's hapless treasurer into court for filing reports late or incorrectly.

FEC regulations can hamstring grassroots groups in two principal areas. First, they govern whether political messages that discuss current events constitute "express advocacy" of a candidate's election or defeat. If so, the cost of the spot is credited either as an "independent expenditure" or a "contribution" to the relevant campaign. Second, they determine whether such activity by a corporation, even an incorporated nonprofit, can be construed as a violation of the ban on corporate campaign contributions.

To understand the full story, it is necessary to know the rudiments of these campaign finance regulations and a little of the history behind how they operate today. In the aftermath of the Watergate scandal, Congress in 1974 passed amendments to the Federal Election Campaign Act that set strict contribution limits of $1,000 per donor per candidate per election. The act also set an aggregate contribution cap of $25,000, meaning a wealthy donor could not make $1,000 contributions to more than 25 candidates in an election. Political action committees enjoy higher limits; you can give $5,000 to a PAC, and a PAC can give $5,000 per candidate per election to as many candidates as it wishes. These caps, it is important to note, are not adjusted for inflation. Today the maximum amounts have roughly one-third the value they had when they were enacted.

These relatively low contribution ceilings naturally created intense interest in alternative ways to influence elections (see sidebar page 27). The authors of the 1974 FECA amendments anticipated this effect. So the amendments attempted to ban independent expenditures of more than $1,000 and to limit candidates' spending. But both spending and independent expenditure limits were quickly struck down by the Supreme Court in the landmark 1976 case Buckley v. Valeo. In that case the Court ruled that FECA's spending caps violated the First Amendment's free speech guarantee, but it upheld the contribution limits.

Subsequently, the Court has, in a number of cases, affirmed that corporations as well as real people have First Amendment free speech rights. However, corporate free speech rights can be regulated (or, in the case of federal campaign contributions, prohibited) in the interest of preventing corruption.

A Bright Line in the Sand

The Court also wrestled with the problem of identifying what kind of political speech could be considered an independent expenditure, and it crafted a definition of "express advocacy" that has been at the heart of the FEC controversy ever since. Many organizations--for example, this magazine's parent, the Reason Foundation, or the National Organization for Women--comment on controversial issues and the opinions elected officials may have on those issues. To safeguard such issue-oriented speech from burdensome FEC regulations and the blanket ban on corporate election spending, the Court crafted a bright-line standard.

It stated that a political message must clearly identify a specific candidate and "expressly advocate" the candidate's election or defeat with words such as "vote for," "elect," "defeat," "reject," or "cast your ballot for." In an era when Supreme Court opinions are notorious for their ambiguity and narrow application, the Buckley decision stands out for its clarity and broad application.

But the FEC and the goo-goos have never been satisfied to live within the strictures of Buckley. To the reform mentality, any kind of political speech that escapes FEC regulation represents a "loophole" that ought to be closed, and the Buckley express advocacy standard allows many kinds of political speech to fall outside of campaign regulation. The FEC has proposed a broader standard, encompassing messages which, when "taken as a whole," include "expressions of support for or opposition to a clearly identified candidate." "Taken as a whole" is the key phrase. This guideline is a clear attempt to turn express advocacy into implied advocacy. This is intended to get at such devices as the voter's guides that activist groups distribute around election time, containing information about how various candidates stand on issues of particular concern. They seldom include explicit endorsements, leaving readers to connect the dots for themselves.

The judiciary has repeatedly thumped the FEC on the snout for its attempt to implement a broader express advocacy standard. In a series of cases over the past decade, the Supreme Court and lower courts have said to the FEC, in effect: We really meant what we said in Buckley; stop trying to get around it.

The 'Evil' of Expression

In 1979, the FEC brought an action against the American Federation of State, County, and Municipal Employees, taking issue with a poster AFSCME had produced before the 1976 election depicting President Gerald Ford hugging Richard Nixon, with the headline "Pardon Me." A federal district court rejected the FEC's contention that the poster amounted to express advocacy, saying that the poster represented political speech protected by the First Amendment.

The FEC was not to be deterred by this early setback, and it brought a suit against the Central Long Island Tax Reform Immediately Committee (CLITRIM), a grassroots anti-tax group. CLITRIM had circulated a voter's guide that discussed the organization's views on taxes and government spending, along with the stands local candidates had on these issues. The publication did not contain any of the express advocacy terms spelled out in Buckley. The nearest it came was the suggestion, "if your Representative consistently votes for measures that increase taxes, let him know how you feel."

This time the Second Circuit Court of Appeals delivered the FEC's rebuff, writing pointedly that "contrary to the position of the FEC, the words 'expressly advocating' meant exactly what they say....The [FEC's] position is totally meritless." As if to underscore its impatience, the court added, "The danger [to the First Amendment] is especially acute when an official agency of government has been created to scrutinize the content of political expression, for such bureaucracies feed upon speech and almost ineluctably come to view unrestrained expression as a potential 'evil' to be tamed, muzzled or sterilized." The Supreme Court revisited the issue in 1986, in a case the FEC had brought against Massachusetts Citizens for Life (MCFL), an anti-abortion group that had circulated a newsletter before the 1978 election titled "Everything You Need to Know to Vote Pro- Life." MCFL surveyed nearly 500 candidates, featured several hundred, and spent under $10,000 to produce the newsletter. It listed pro-life candidates on a coupon that voters could take to the polls. The FEC contended that this was express advocacy and sought a $5,000 civil penalty against MCFL. The heart of the FEC's complaint against MCFL was that because MCFL was a corporation (albeit a not-for-profit corporation), it had violated the prohibition against corporate campaign contributions.

Allowing Advocates to Advocate

The Supreme Court agreed with the FEC that the take-to-the-polls coupon did constitute express advocacy, but, significantly, the Court recognized that nonprofit, issue- oriented organizations exist precisely for the purpose of engaging in this kind of political speech. So the Court carved out an exception to the ban on corporate campaign contributions, allowing certain nonprofits to spend general corporate funds for political messages.

The Court concluded that if a nonprofit was formed to express ideas, rather than for a business purpose; has no shareholders; and was not established by a business corporation or labor union, the corporate spending ban could not constitutionally apply to its activities. Groups that advocate positions on social issues probably fall within the test, but groups formed by businesses to advocate positions on economic issues, such as the U.S. Chamber of Commerce, cannot take advantage of this exception.

Buoyed by this partial victory (MCFL did have to report its expenses for voter's guides to the FEC as an independent expenditure), the FEC crafted a regulation saying that voter's guides must not "suggest or favor any position on the issues covered" or offer any "editorial opinion." It immediately set out after Maine Right to Life for a voter's guide that discussed candidates according to a 0-to-100 rating system.

Once again the FEC was slapped down in court. The U.S. Court of Appeals for the First Circuit used direct and clear language: "Trying to discern when issue advocacy crosses the threshold and becomes express advocacy invites just the sort of constitutional questions the Court sought to avoid in adopting the bright-line advocacy test in Buckley....It is not the role of the FEC to second-guess the wisdom of the Supreme Court."

The FEC also went after fundraising letters from the National Organization for Women and the Survival Education Fund that contained disparaging comments about officeholders, including President Reagan. The FEC lost these cases in district court.

Pictures, Parties, and Pandora's Box

More recently, the FEC hauled the Christian Action Network into court for TV ads it had produced before the 1992 election that were critical of then-candidate Bill Clinton's position on homosexuality. Although the ads contained none of the express advocacy terms spelled out in Buckley, the FEC sought to create a new standard for video, arguing that visual messages should be evaluated differently than purely verbal messages because visual messages "raise strong emotions amongst viewers."

Once again, a district court sent the FEC packing, writing: "To expand the express advocacy standard...in this manner would be to render the standard meaningless. Such an expansion of the judicial inquiry would open the very Pandora's Box which the Supreme Court consciously sought to keep closed."

In June of this year, the FEC's crusade to cast a wide net over independent political advocacy received its sharpest setback yet, in Colorado Republican Federal Campaign Committee v. FEC. This case arose out of radio ads by the Colorado Republican Party attacking then-Sen. Tim Wirth's positions on various issues. These ads were broadcast months before the 1986 election, when there were no declared Republican candidates running for the seat. But the FEC sought to have these radio ads deemed express advocacy on behalf of the eventual Republican nominee, and therefore to count against the party's spending limit. In effect, the FEC's interpretation made it technically impossible for parties to make independent expenditures.

The Court sided with the Republican Party, striking down the limitations on independent party expenditures, reasoning that even a political party was entitled to express its views independent of coordination with a candidate. In an unexpected sign of timidity, however, the Court did not address the question of whether the Wirth advertisement contained express advocacy at all. Whether this lapse indicates a First Amendment loss of faith on the Court remains to be seen.

The Commission from Another Planet The FEC has suffered the worst losing streak since the 1973 Philadelphia 76ers went 9-73. But the agency is stubborn, and has promulgated rules that flagrantly ignore the standards of Buckley. These regulations include the Buckley "magic words" test but also find express advocacy in communications that, "[w]hen taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s)."

To apply this "reasonable person" standard, the regulations require the FEC to consider whether the advocacy is "unmistakable, unambiguous, and suggestive of only one meaning;" and "[r]easonable minds could not differ as to whether it encourages actions to elect or defeat one or more clearly identified candidate(s) or encourages some other kind of action." Hardly the model of clarity anticipated by the Supreme Court.

Significant portions of these regulations were declared unconstitutional in a second case brought by the Maine Right to Life Committee. But since this is a federal district court decision, it does not provide precedent to protect corporations outside the District of Maine. Elsewhere, both parts of the express advocacy definition will be enforced by the FEC. Once again, grassroots groups cannot freely exercise their First Amendment rights as determined by the Supreme Court.

Former FEC Chairman Trevor Potter acknowledged this stubbornness: The FEC is "close to being on a different planet from the Supreme Court." Conversely, Commissioner Danny Lee McDonald complains that "the Court just doesn't get it."

An Insiders' Game

If the problem with government regulation of politics were simply a matter of the FEC's definition of express advocacy, then--given the judiciary's solicitude for the First Amendment and its jaundiced eye toward the FEC's animadversions --there might not be that much to get upset about. But there is much more to this story than a dispute about the law of free speech. As a practical matter, because of the ambiguity and complexity of the campaign finance laws, participating in the political process, even indirectly through issue advocacy, is becoming as difficult, confusing, and cumbersome as complying with the income tax laws.

Like the tax laws, the campaign finance laws seem largely arbitrary and evolve from case to case as the FEC tries to keep its thumb on every species of ordinary political behavior. The result is a contradictory patchwork of complex rules that is transforming the world of political campaigning into a domain for insiders and experts.

Just as executives and entrepreneurs can't make a move without consulting their accountants about the tax consequences, most public affairs executives and PAC directors can't take many actions today without consulting their election law attorneys. When it's easier to calculate the tax consequences of a like-kind transfer than it is to determine whether you can solicit a contribution from someone on behalf of an organization you both belong to, something is clearly wrong.

If your organization is deemed to have "expressly advocated" in favor of (or against) a particular candidate, the FEC will deem it an independent expenditure in that campaign, or an "in-kind" contribution to the candidate's campaign if you are careless enough to mention your plans to a campaign staffer. In either situation, your organization becomes subject to the complex FEC reporting requirements, as well as the possibility of civil fines if you don't do the reports correctly. This puts the FEC in the business of regulating speech depending on its political content; if you want to avoid having to submit to FEC reporting requirements and contributions limits, you better watch what you say.

To appreciate how perverse this is, consider the following paradox: If you set up a pornographic site on the World Wide Web, the government cannot regulate you in any way. But if you set up your own "Vote for Bill Clinton" site on the Web (or simply print your own bumper stickers), and spend more than $250 on the project, you become subject to FEC reporting requirements. If you spend more than $1,000, you have to register with the FEC as a "political committee." While the actual expense of registering and reporting is negligible (provided you do so correctly), failure to file could result in a substantial fine-- even if you never have a single contact with the Clinton campaign.

To be sure, the FEC is not saying that you can't exercise your right to political speech; it is only saying that you must submit to the "disclosure" process if you do. But this scheme would seem to fall within the compass of Judge Joseph Story's famous maxim that what the government may not do directly it may not do indirectly. And the indirect effect of this regime is clear: It is more difficult and costly to engage in political speech. The practical result, of course, is to reduce participation from genuine grassroots organizations, which lack the resources and the expertise to comply with this increasingly complicated system.

A Culture of Complaints

In other contexts the goo-goos of the world could be expected to complain about the "chilling effect" this regime is having on political speech. But in fact the goo-goos are a large part of the problem. While the IRS and other federal agencies with investigatory and audit powers typically initiate their own investigations, the FEC routinely opens investigations of political activities at the behest of private parties.

In fact, more FEC investigations result from outside complaints than from the FEC's own initiative. Goo-goo groups such as the Center for Responsive Politics and Common Cause specialize in filing complaints with the FEC alleging violations by PACs, candidates, and donors, which the FEC frequently acts upon. The Center for Responsive Politics pores over contribution reports and prides itself on blowing the whistle on individuals who exceed their aggregate $25,000 annual contribution limit.

Filing an FEC complaint has become a favorite harassment tactic for opposing campaigns and interest groups. The National Abortion Rights Action League brought the initial complaint against Massachusetts Right to Life back in 1978. Anti-abortion groups have brought complaints that resulted in FEC investigations of NOW and Planned Parenthood. The Republican and Democratic parties bring complaints against each other regularly. And the Democratic Party launched an attack on the Christian Coalition, alleging that it made a variety of forbidden contributions and expenditures on behalf of candidates running in 1992 and 1994. Just recently, the FEC filed suit based upon those allegations. Once a complaint is filed, the FEC opens a "Matter Under Review" (MUR) investigation. The MUR files are made public at the conclusion of the investigation, which can take years to complete. Our analysis of the 524 MURs completed and made public during the past three years shows that 366 were initiated as a result of outside complaints. And, in an unusual twist, federal law allows complainants who are dissatisfied at the FEC's dismissal of their complaint to file suit in federal court. Hence, your opponents can use federal election laws to make your life miserable even when the FEC won't play along. A case involving the American-Israel Public Affairs Committee, originally filed with the FEC in January 1989, is still in court.

The Cost of Doing Politics

Those unfortunate groups that do become the object of an FEC investigation face high costs and years of legal battle. While these expenses are a "cost of doing politics" for the well-larded major parties, candidates, and committees, they can crush smaller organizations. A good example of how this process works, and how FEC investigations stifle speech, is the case involving the AIDS activist group ACT-UP (AIDS Coalition To Unleash Power).

During the 1990 election season, ACT-UP chapters in Washington, D.C., and San Francisco announced a boycott of Philip Morris because of the company's support for Sen. Jesse Helms (R-N.C.), then in a tough fight for re-election against Harvey Gantt. The boycott had originated with the Dallas Gay Tavern Guild, which encouraged gay-owned bars and taverns to stop buying Miller beer, made by a Philip Morris subsidiary. Although none of the ACT-UP materials used any of the Buckley-proscribed terms, an ACT-UP member told the Washington Blade, a gay newspaper: "It all stems from our opposition to Helms. We've got until November to take whatever measures are at hand to defeat Jesse Helms....We have got to get rid of Helms."

This was enough for the Helms campaign to file a complaint with the FEC in August 1990 charging that neither ACT-UP nor the Dallas Gay Tavern Guild were "registered political committees," and they were therefore "ineligible to expend funds in connection to a federal election." Further, the complaint wondered if ACT-UP and the Tavern Guild had violated the ban on corporate contributions. The FEC's counsel ruled that there was sufficient basis to launch an investigation.

An FEC MUR investigation resembles an ordinary piece of litigation, with all the attendant expense and delay. Each of the organizations and several of the individuals within them had to retain separate legal counsel. Following discovery, the FEC determined that ACT-UP had spent more than $5,000 to organize and publicize the boycott, and that this expense constituted an independent expenditure and possibly an illegal corporate contribution. ACT-UP and the other subjects of the investigation had surely racked up many times this amount in legal fees fighting the FEC. (These ACT-UP chapters no longer exist, and calls to their attorney of record asking for comment were not returned.) By now it was 1993, the election long over, and Helms safely re-elected. Nonetheless, the FEC was pressuring ACT-UP to enter a "conciliation process," in which the FEC "negotiates" with you about the size of the civil fine you will have to pay. ACT-UP decided to continue fighting the FEC. In 1994 the FEC's general counsel, Larry Noble, advised the commissioners to drop the investigation, chiefly because so much time had passed and the ACT-UP chapters involved had gone out of business!

This kind of tortuous process is typical of FEC investigations. One MUR concluded earlier this year dealt with George Bush's campaign appearances in 1988, when he was vice president. Just as Democrats are complaining that Bob Dole violated the spending limits last spring by having the Republican National Committee pay for his travel when his own campaign could no longer legally spend money, Bush in the spring of 1988 traveled at the expense of the Ohio Republican Party to "party building" rallies and meetings. In the course of his remarks, Bush would sometimes lash out at Michael Dukakis, the Democrats' then-apparent nominee. Democrats complained to the FEC, whose investigation stretched over seven years.

The controversy turned on whether Bush's attacks on Dukakis amounted to "express advocacy" on the part of the Ohio Republican Party, or whether, as that party argued, Bush's remarks "taken as a whole" were "incidental" and therefore fell short of the FEC's expansive express advocacy standard. Like this episode from 1988, the current Democratic charges that Dole overspent, and Republican charges that Clinton violated the law in directing Democratic National Committee TV advertising in the spring, can be expected to reverberate around the FEC for years to come.

Critics charge that the FEC, whose $25 million annual budget makes it minuscule by federal standards, is notoriously ineffective: Its investigations of campaign finance law violations seldom begin until after an election has taken place, and they usually drag on for years. Often the investigations are dropped because too much time passes, or because the investigated organization goes out of existence. In 1993 the FEC dismissed 137 cases, and in July 1994 it dropped 29 more cases, including those dating from the 1992 presidential campaigns.

The fact that virtually every presidential campaign since the FEC came into being has been fined for some infraction suggests that FEC oversight could be regarded as a kind of campaign excise tax, since the fines are not levied until well after the election is over. But as the implications of government regulation of politics become more clear, we may well be thankful that the FEC enforcement capacity lags so far behind its workload.

Giving Away Air

Recognizing how complex the regulation of campaign finance has become, the FEC issues "advisory opinions" to any person or organization seeking clarification of what they can and can't do. FEC advisory opinions require assent of four of the six FEC commissioners; if the commission members deadlock, you're on your own. This process sets up the FEC as the "Mother May I" agency for political activity and lays bare the power of the FEC to clog up the nation's political arteries.

For example, goo-goos are ecstatic right now at the TV networks' offer to give presidential candidates free air time this fall. The irony is that, narrowly construed, giving free TV time is a violation of the ban on corporate campaign contributions that goo-goos otherwise support. The FEC has a long record of issuing advisory opinions saying that businesses may not give away anything of value that they otherwise sell or for which they require a deposit (e.g., phone services, T-shirts, computers). TV networks sell programming or advertising to support programming, and air time would seem to fall clearly into the category of goods or services that can't be given away. None of the TV networks has asked for an advisory opinion, and, predicts former FEC Chairman Potter, "There's no way the FEC is going to rule that this offer is illegal, because it is so popular with everyone. If asked, they will find a way to say that it fits under the general 'news event' exception that exists in the law for newspapers, TV, and radio."

But not all media can expect to find such favor. In January, CompuServe asked for an advisory opinion on whether it could offer free on-line sites to any federal candidate who wished to have one. The FEC said no: Even though CompuServe does give away some free on-line sites from time to time, "the Commission still concludes that your proposed gift to Federal candidates of valuable services which enable them to communicate with voters and advocate their candidacies would constitute in-kind contributions to those candidates and would be prohibited."

A Manifest Failure

The issue of federal regulation of politics seldom reaches the threshold of public consciousness, chiefly because people are disgusted by the open, brazen influence of interest-group money in Washington. That none-too-well-concealed influence peddling distracts us from the deeper issue of whether it is advisable, let alone possible, for the government to regulate the very political process by which it is reconstituted at each election.

The existing regulations have done very little to reduce the actual influence of big money in politics. Instead, the political reforms of the Watergate era have made campaign financing into an even finer art, largely dominated by insider practitioners in Washington. If anything, the post-reform climate has enhanced the ability of special interests to influence Congress, demonstrating again that the law of unintended consequences is the most frequently enacted of all laws (though whether this effect was in fact unintended may be open to a healthy skepticism). Meanwhile, genuine grassroots citizen groups face substantial hurdles to effective participation. The result is a distinct chilling of political speech, if not a direct attack on the First Amendment.

A few keen observers of this situation, such as the University of Virginia's Larry Sabato, recognize that campaign reform is a manifest failure and that we should ease or remove existing campaign finance regulations. In their recent book Dirty Little Secrets , Sabato and Glenn Simpson advocate what they call "deregulation plus," which would involve significantly increasing--if not abolishing--contribution limits, along with strengthened disclosure rules. We should, they argue, "[l]et a well-informed marketplace, rather than a committee of federal bureaucrats, be the judge of whether someone has accepted too much money from a particular interest group or spent too much money to win an election."

Conventional wisdom runs the other way: Reformers want a vast expansion of the government's power to regulate politics. Although campaign finance reform recently died (again) in Congress, it is sure to return for an encore engagement, cheered on by Common Cause, the Center for Responsive Politics, Ralph Nader's Public Citizen, and other goo- goos who are often the darlings of a goo-goo media.

Reformers would like to ban "soft money" and "bundling," and sharply curtail independent expenditures. Since independent expenditures are protected under the First Amendment and can't be banned outright, the reformers propose a scheme of public financing under which a candidate would receive extra public funds to match any independent expenditure on behalf of his or her opponent.

Reformers also seek a blanket ban on PACs, which would almost surely be unconstitutional. Even more ominous, the goo-goos have proposed giving the FEC injunctive powers, so that it could step in during an election campaign and stop unregulated political activity, such as ACT-UP's boycott or a Christian Coalition voter's guide. This would amount to setting up a political police. In the words of Jan Baran, a Washington attorney who represents a variety of clients in election law matters (he argued the Colorado case before the Supreme Court): "The political police have never been benign anywhere. Why do we think we can be any better at it than any other society? Are we somehow special?"