Advice to the New Republican Congress: Don't Pass More Laws

GOP should put the wish lists away and let state and local governments manage themselves.


Credit: Gage Skidmore / photo on flickr

The smartest minds on the center-right are circulating lists of legislation for the new Republican Congress to pass.

Columnist George Will has six proposals: abolish the Consumer Financial Protection Bureau, repeal the Independent Payment Advisory Board (part of ObamaCare), repeal the ObamaCare tax on medical devices, authorize the Keystone XL oil pipeline, pass the REINS Act, and mandate completion of a nuclear waste storage facility at Yucca Mountain in Nevada.

University of Tennessee law Professor Glenn Harlan Reynolds, who blogs as Instapundit, has his own list of six, published by USA Today. It starts with rolling the drinking age back to 18 (what better way to reduce the Democratic advantage in the youth vote?) and includes his brilliantly provocative "revolving door tax" that would punish federal employees who cash out by leaving the government to exploit their connections and obscure knowledge in lucrative private sector jobs.

Charles Krauthammer, for his part, proposes, "a bill a week for the first 10?weeks," including "a strong border security bill" and fast-track presidential trade negotiation authority. "Pass legislation," he advises the GOP.

Call me a contrarian, or accuse me of low expectations, but my idea of a successful Republican Congress isn't one that passes 10 new laws. It isn't one that passes six new laws, or five. In fact, we'd probably be lucky to get away with a Republican Congress that abstained from law-passing altogether.

We've got more than enough laws already. So many, in fact, that it's basically impossible for an American individual or business who wants to abide by the law to keep track of all of them.

Don't get me wrong. I'd be happy enough if a new Congress repealed some of the old, bad laws. I suppose they need to pass some budget to keep the soldiers from going barefoot. In my ideal world, there'd be some legislation cutting taxes, reforming welfare, increasing legal immigration, allowing oil and liquid natural gas exports, and reducing government spending and bureaucracy.

But setting "zero" as at least the symbolic goal for new laws in the new Congress would have the virtue of being humble. It would be a signal that Congress understands the law of unintended consequences: that actions intended to improve matters may wind up making them worse in ways initially unimagined. It would also be a signal that Congress understands the Tenth Amendment to the Constitution: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." The authors of the Bill of Rights understood what today's politicians and pundits often forget, which is that Congressional inaction is an opportunity for state or local governments, for businesses, or for voluntary organizations. These smaller-scale efforts are less harmful if they fail, and if they succeed, they can be replicated.

Go through the news looking out for examples of the law of unintended consequences and for the principles of the Tenth Amendment in action, and they are everywhere.

The headlines are full of stories about fatalities and injuries resulting from malfunctioning automobile airbags. The New York Times has been crusading on the issue. It's something Times editorial writers might have considered back in the 1980s, when they were campaigning to have the government require the installation of the airbags in passenger cars as a safety measure. It's a classic case of unintended consequences.

Or, in respect of the Tenth Amendment, consider how states are navigating the issues of gay marriage and marijuana decriminalization in the absence of sweeping federal actions.

Or look at how state governments and regional authorities are moving to finance roads, bridges, and tunnels on their own or in partnership with the private sector, instead of waiting for federal spending. As As transportation innovatoin expert Kenneth Orski put it recently, "states are not standing idly by, waiting for Congress to come to the rescue with more money. Instead, governors, state legislatures, and local governments are taking aggressive steps to make themselves less dependent on federal aid." California, for example, replaced the eastern span of the San Francisco Bay Bridge in a $6.4 billion project.

Presidents and presidential candidates like to denounce do-nothing congresses. But the drafters of the legislative wish lists may want to be careful what they wish for. If the congressmen themselves aren't cautious, by the time they're done they'll have us all nostalgic for the good old days of gridlock.