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David Schoenbrod discussed his new book, DC Confidential: Inside the Five Tricks of Washington, with our own Ben Weingarten. What follows is a full transcript of their discussion, slightly modified for clarity.
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Ben Weingarten: David, you point to many problems that we face in our political system, such as a lack of accountability of our elected officials, corruption in some sense, false promises, unsustainable fiscal policies, and the like, which have resulted in Congress and other parts of the government becoming very unpopular. You’ve ascribed that unpopularity to five tricks. Walk us through these tricks that you lay out in this book.
David Schoenbrod: Voters know that politicians are tricksters, so how do they get away with promising something for nothing or very little? Well, for the same reason that magicians can seem to pull rabbits out of hats: People don’t see the sleights of hand. So, the book reveals the sleights of hand. They came through a new system for enacting laws and spending programs, that legislators and presidents of both parties began to use in the late 1960s. The new system employs five tricks that lets politicians take credit for rosy promises but duck personal responsibility for bad consequences, and, oh boy, do we get bad consequences. That’s why we distrust government. Before the fix began, 76% of voters trusted Washington to do the right thing. Today, it’s down to 19%. We hate our government.
Ben Weingarten: You talk about the fact that Congress is now very unpopular with the voters for a variety of reasons, and you also speak to the fact that it was not always this way in the American constitutional system, and it changed starting in the ’60s. Do you believe that this change has occurred because government powers have grown and society’s view of the role of the state has evolved? In other words, was this an inevitability? Or, do you think there’s something else at play to explain how this system evolved as it has?
Voters know that politicians are tricksters, so how do they get away with promising something for nothing or very little? Well, for the same reason that magicians can seem to pull rabbits out of hats: People don't see the sleights of hand.
David Schoenbrod: I think that government’s power grew because of the tricks, and the tricks came because government, before the late 1960s, was successful. Think about what the government accomplished. It got us through the Great Depression, it won World War II, it invented the atomic bomb which led us to conclude the war, it built the Interstate Highway System, it passed important civil rights legislation. The voter saw the Federal Government as a great and wonderful thing, which is why people trusted the Federal Government in the early 1960s. Trusting it so, they wanted it to do more. But they also didn’t want to pay for it. And so, the politicians sometimes with good intentions, but mistakenly, began to promise us something for nothing or very little. And that’s where the tricks began. But with the tricks, the ability of government to deliver good things went down, and as a result, we have a low opinion of the federal government. Not just Congress, but the whole thing.
Ben Weingarten: How have these tricks contributed to what is clearly, unsustainable deficits and ultimately debts that it appears we’ll never be able to repay?
David Schoenbrod: Okay, well that’s the “Money Trick.” Now, a half century ago, in the late 1960s, politicians began to promise us medical care, and tax cuts, and a lot more, but failed to impose the taxes needed to pay for these goodies. So, some future Congress will have to increase taxes or cut Medicare or other benefits. And with this system, with this money trick, the incumbents now in Congress, take credit for the good news, and shift the blame for the bad news to their successors in office. The sleight of hand that makes the trick work comes in politicians hiding the information. We need to assess how much their promises of something for nothing will cost us in the future.
Now in contrast, in making loans, banks must inform prospective borrowers how much they’ll have to pay in the future. And if the bank fails to do so, that’s a crime under the Truth in Lending Act that Congress passed. But Congress doesn’t apply this principle to itself. If it did, it would inform us of the cost to the average family, in terms of tax increases or spending cuts needed for government to make ends meet in the long run. And they’d also tell us how much the current Congress increased that cost in the current year. And that would make the incumbents responsible now for what’s going to happen to us later. And they’d also tell us how much more it’s going to cost us if they don’t begin to put the tax increases and spending cuts in place now. And that’s going to show us that this money trick and this kicking the can down the road, is going to make life impossible for our children and grandchildren, rob us of entire retirement savings and ensure that we don’t get the Medicare and the Social Security we’re expecting.
Ben Weingarten: One of the other tricks that you reference in the book is the so called “Regulation Trick,” which I think is a particularly pertinent area to discuss in context of the Trump administration, which has talked about deconstructing the administrative state from which these regulations largely spring. Tell our listeners what the Regulation Trick is, and how you would propose to remedy it.
David Schoenbrod: Okay, so the Regulation Trick is analogous to the Money Trick. In the Money Trick, incumbents take credit for good stuff and shift the blame to somebody else, in this case, their successors in office. With the Regulation Trick, the incumbents in Congress promise us regulatory rights, and then they tell the agencies to impose the duties needed to fulfill the rights. That way, the incumbents get the credit for the rights, and shift the blame for the burdens to the agencies. And the way I’d stop it is another component of what I call the Honest Deal Act.
The way I’d stop the Money Trick is by requiring Congress to tell us how much their current promises are going to cost us later. The way that I would stop the Regulation Trick, is to require Congress to vote on major regulations whether to increase burdens or to decrease them, so that the members of Congress are responsible for both regulatory benefits and regulatory burdens.
Now, in President Trump’s two-for-one order, the agencies have to cut two regulations for every one they impose – which really is a headline grabber. But it won’t really do very much because the statutes currently on the books require the agencies to issue so many regulations. For example, the Clean Air Act has 940 commands addressed to the EPA administrator, and some of those commands individually require the EPA administrator to impose dozens upon dozens of regulations. So, for Trump to say he’s going to stop the regulatory state by telling his people not to issue regulations, is like the King’s commanding the tide not to come in. It ain’t gonna happen.
And I've known members of Congress off and on for the last 50 years. Most of them went into politics hoping to act honorably, but find to get reelected, they need to act dishonorably.
Ben Weingarten: Yeah, and to follow up on that, one of the problems is that it’s in Congress’ self-interest at this point to continue to essentially shirk responsibility, and as you show in the book, take credit for putting through regulations or policies that are deemed politically popular while not actually having to execute upon them and implement them. And that’s essentially outsourced to the agencies which are manned by people who are unelected. Given that that’s the case, how do you incentivize Congress to again take accountability, and not fully delegate every aspect of implementing the laws to unelected bureaucrats that the voters will never meet and never really know about?
David Schoenbrod: Well, I think that these tricks are rational for members of Congress, but really not in their best interest. Let me explain. As long as members of Congress in general play the tricks, for any one of them or for any one party to stop the tricks is irrational, because that means that the people that stop the tricks are going to look worse to voters than the people who continue to use the tricks. Therefore, it’s kind of like committing political suicide to unilaterally stop the tricks.
On the other hand, think of what life is like for a member of Congress in a trick-playing Congress. You wake up in the morning, you look in the mirror and you know you’re going to work in the most despised institution in America. That’s why so many members of Congress quit in disgust. Right?
And I believe that…And I’ve known members of Congress off and on for the last 50 years. Most of them went into politics hoping to act honorably, but find to get reelected, they need to act dishonorably. So I think we’ve got a chance of having this Honest Deal Act pass, because I think they would prefer to be able to respect themselves.
So what we need to do to get that to happen is for voters to begin to tell their representatives of Congress, “I want an honest deal.” And my website DC-confidential.org provides a vehicle to do that quite easily.
And I think we could succeed. I mean the forewords to the book are written by Howard Dean on the left and Senator Mike Lee on the right. This Honest Deal Act is a proposition that can have broad appeal to both voters and the politicians. So, we just as an electorate, we help to bring about the tricks. As an electorate, we could help to stop them.
Ben Weingarten: And of course the political system, our representatives are representatives for a reason. They’re a reflection of what the people want, so to the greater which they deviate from what we want, it’s our job and our ultimate responsibility to change their behaviors. I assume you would agree with that take.
David Schoenbrod: Right. Right. I mean they’re being dishonest with us which is why I call my reforms the “Honest Deal Act.” But they’re being honest with us. In other words, coming clean…the cost of what we want from government is going to require us to be honest with ourselves. We’re going to have to face up to whether we really want the burdens needed for government to deliver what we want.
Ben Weingarten: One trick that is particularly relevant today is what you deem the “War Trick,” which deals with essentially Congress not usually actually declaring war. In effect since World War II, we haven’t had a real declaration of war, and this is of course relevant in light of the recent strikes in Syria, as well as strikes that took place during the Obama administration. And this is sort of on a bipartisan basis. There’s been a lack of constitutional basis in effect for war. Explain the War Trick.
David Schoenbrod: Okay. For the first 160 years of our nation, Congress took responsibility for wars either by declaring war, or by passing a statute that specifically authorized the war — in fact, far more often by passing a statute than declaring war. But they did take responsibility, that’s the important thing. That changed with the Korean War, where Truman sent in troops without asking Congress to authorize. And Congress was only too happy to go along because if they had to vote on the Korean War, they would’ve either had to vote ‘Yes,’ which would have meant committing a war-weary nation, weary from World War II, to another war. Or, it would’ve had to vote ‘No,’ in which case the communists would’ve taken over all of Korea. So it would have been a difficult choice. So they were happy to have Truman take the responsibility. Then they could just simply criticize Truman. Great thing for them.
Now, all this happened to be very unpopular with the public — the idea that Congress was not taking responsibility for war — which led to the passage of the War Powers Act in 1973. Under it, the president is supposed to ask the Congress for approval for war, either before it begins, or simultaneously with its beginning. And if Congress doesn’t approve, then the president is supposed to withdraw.
But there’s a loophole in it, and President Obama used that loophole in regard to the bombing of Libya early in his administration. And he did so because members of Congress asked him to do so. They said, “We want you to go in and bomb Libya, but we don’t want to have to vote on it.” And he did. And then some members of Congress had the gall to criticize him for violating the War Powers Resolution.
So anyway, with the War Trick, members of Congress can take credit for a war that later proves popular, march on the victory parade, but shift all the blame to the president if it proves unpopular.
Now, Congress can fix the loophole in the War Powers Act if it wanted to, but as Joe Biden said when he was a senator back in 1995, members of Congress don’t have the courage to take a position on war. So that’s where we end up now where the official position of Congress is, the president that can’t go to war without Congress, but they collude with the president to allow war with Congress.
And that’s very bad for us. It means that we send the troops into battle, but there’s a war going on between the president and the people and Congress who think we shouldn’t be there, so enemies could hope to succeed by causing dissension on the home front, rather than winning on the battle front, and it means that we’re not credible.
Think about what happened after Obama laid down the red line in Syria in 2012, where he said, “Crossing a red line for Syria, use chemical weapons on its people.” Well, Assad called his bluff. And well he should have because the public felt that Obama shouldn’t go in without support of Congress. And so basically Obama erased the red line.
But if Obama had done his homework with Congress, and got Congress behind him, he would’ve had a lot more credibility, and it might well have been that Assad wouldn’t have used the chemical weapons then, or in 2017.
Now I’m not critical of Trump attacking Syria in 2017. But if Trump is really serious about reaching across the aisle and working with Congress, he ought to insist that Congress re-shoulder responsibility for war by fixing the loophole in the War Powers Act. Now that will allow Trump to show that he doesn’t think the United States Armed Forces are his personal thing, but rather that in a democracy that those armed forces shouldn’t be used except with the approval of the people’s elected representatives.
With the War Trick, members of Congress can take credit for a war that later proves popular, march on the victory parade, but shift all the blame to the president if it proves unpopular.
Ben Weingarten: You’ve alluded to the Honest Deal Act which is essentially your response to all of these tricks, and taking a step towards mitigating their disastrous effects already, and then trying to change behavior going forward. And I think what your book lays out is, first, let’s look at what the symptoms of the problems are and lay them out to the American people, and then let’s put this act up as at least a representative plan for how we would go about fixing the problems at play. Lay out in broad principle terms what the Honest Deal Act is.
David Schoenbrod: Okay. So for the Money Trick which we’ve already described, Congress would have to inform us every year, via letter. That letter will arrive in the same envelope that tells us how much our Social Security check will be. There should be a letter in there that says actually how much our current fiscal practices are going to cost us in terms of tax increases or benefits cuts. That’ll make incumbents responsible.
On war, we should fix the loophole in the War Powers Act so this country cannot go to war without members of Congress taking a position, “Yay or Nay.”
On the Regulation Trick, members of Congress should have to vote on major regulatory changes whether to make regulations stricter, or make regulations less protective.
Another trick is what I call the Debt Guarantee Trick. It helped to cause the fiscal crisis of 2007, and despite the Dodd-Frank Statute which purported to end all this Debt Guarantee Trick, it continues. It would say that when government guarantees private debts, it must charge a market-based fee. Donald Trump, the businessman would never guarantee another business’ debts without charging such a fee. The United States government shouldn’t do that either.
And the final trick is the Federal Mandate Trick. With it, members of Congress take credit for conferring benefits on voters, but then shift the blame for paying for the benefits to governors and mayors and other state and local officials. There, I would require members of Congress to vote on the controversial mandates so they are fully responsible for what happens to us.
Ben Weingarten: On a bipartisan basis, these solutions would sound I think very appealing to a broad swathe of the electorate. But the cynic will say that while all of these solutions sound great, think about all of the interests that exist who benefit from the status quo continuing. What would you do to convince them that this is something that is actually practical and practicable, given all of the forces pushing against a plan like this ever being approved by Congress?
David Schoenbrod: Okay. Well, if you think about the application of any one trick in any one instance…Let’s take this for an example, with the Debt Guarantee Trick, the government guaranteeing the loans taken out by solar power companies, which it does. Well, the person who runs a solar power company, they’re all for this trick. They don’t want to have to pay for their debt guarantees. But on the other hand, if you ask that same person, “Would you be better off or worse off if we ended the Debt Guarantee Trick in general, which makes the stock market and the financial system much less safe, or better yet ended all the tricks?” That person may well say, “You know, I think I lose by these tricks in general.”
So, yes, the special interests actually gain most of all from these tricks because they know how to use them, they know how to play them. And in fact, the tricks enrich the rich. And Senator Mike Lee, a Tea Party guy on the right, said, “The tricks help to make the rich richer.” That’s what he wrote in the foreword to the book.
So, if what we’re trying to do is not stop any one application of the trick retail, but rather trying to stop the tricks wholesale, I think the overwhelming majority of the American public would gain, the overwhelming majority. And for the reasons I’ve already pointed out, I think members of Congress would gain too. What they would gain is self-respect.
So, I think we can do this. And also, there are many politicians who have an interest in stopping the tricks. The governors and the mayors do for one thing. And a president should too, see the advantage, because presidents can only serve two terms. So they don’t have that much of an interest of learning accountability. They have an interest in having a place in history, showing they can get things done. And if you have a Congress that’s hiding in the bushes refusing to take responsibility, then presidents can’t get much done.