February 26th, 201702-26-2017
For Ted Lowi
Theodore J. Lowi died this week. I never met him. He is memorialized here in the Cornell Chronicle and here in the New York Times.* Lowi’s book The End of Liberalism thinks the fact and meaning of the transformation of the United States from a federated republican democracy to a liberal democratic administrative state. If you want to understand how our liberal government has yielded a “cynicism [that] unavoidably curdles into distrust,” Lowi is an essential guide.
Lowi’s thesis is that liberalism has led to “impotent government, no less impotent because it was getting bigger.” While Lowi does not cite Hannah Arendt, his focus on the way liberalism renders democratic government impotent reflects Arendt’s own worries that the greatest threat to freedom in American was the growing bureaucracy of government. Arendt distinguished two kinds of bureaucracy. First, the bureaucracy of a deformed civil service that leads to inefficiency and vexations that serve not the public interest, but the interest of the bureaucrats themselves.
A second, and more dangerous form of bureaucracy, is “government by decree.” It is a government that sees the law as a hindrance, an obstacle to be overcome in the bureaucratic effort to govern the people directly. Decrees are anonymous. They give the impression of constant action. It is government that eschews principles for the quick and personalized response to ever-changing circumstances. Arendt writes, “People ruled by decree never know what rules them because of the impossibility of understanding decrees in themselves and the carefully organized ignorance of specific circumstances and their practical significance in which all administrators keep their subjects.”
Reflecting Arendt, Lowi argues that liberalism has led in the United States to a government of “policy without law,” something like a government by decree. An essential part of this government by decree is the abandonment by the Congress of its governing responsibility, which it has increasingly delegated to the administrative state. The effort of liberal government, Lowi argues, is to “avoid enunciating a rule” and to replace clear rules and standards with “the principle of bargaining on each decision.” This is in fact Lowi’s overarching thesis: That liberalism replaces power with bargaining. “Liberal governments cannot plan. Planning requires the authoritative use of authority. Planning requires law, choice, priorities, moralities. Liberalism replaces planning with bargaining. Yet at bottom, power is unacceptable without planning.”
In the second edition of The End of Liberalism, Lowi added a subtitle, “The Second Republic of the United States.” The book tells a story of the transformation from the First to the Second Republic. In the First Republic, which goes from 1787 until about 1960, the states did most of the governing. The national government was both small and, more importantly, did very little governing. To the extent the federal government did govern, government was “Congress-centered.” The Congress was the main legislative arm of government. It was where the power of the Federal government was located.
The emergence of what Lowi calls the Second Republic has its roots in the Woodrow Wilson regime, but “began in earnest during the 1930s.” The first shift is in size. Federal domestic expenditures increased from .8% in 1929 to 4.9% in 1939. Today the Federal government spends about 20% of the country’s GDP. Importantly, Lowi does not oppose big government. He accepts the Roosevelt revolution as a necessary part of modern government.
Lowi is not as accepting of the second shift from the First to the Second American Republic, however, what he calls the shift in function. In the First American Republic, 99% of government expenditures took the form of subsidies. The United States made land grants to settlers and to railroads, it offered tariffs to new industries, and subsidies to the merchant marines. It left the act of governing to the states. But from the 1930s onwards, the federal government adopted two “entirely new kinds of functions, … new at least for the federal government in the United States. These functions were regulation and redistribution.
Lowi’s problem with regulation and redistribution was not their content, but that as the federal government began to exercise direct power over citizens, it moved the locus of that power from the Congress to the administrative agencies. “[I]t was during the New Deal that we began the probably irreversible change from a Congress-centered government to an executive-centered government.” This meant that Congress increasingly refused to pass clear and detailed laws that governed regulation and redistribution, but, instead, delegated broad powers to newly created and widely expanding administrative agencies to exercise the lawmaking authority of the country.
The “turning point” in the emergence of the Second Republic was John F. Kennedy’s presidency. In 1962, Kennedy requested that Congress delegate to him and his administration “vast discretionary power over all public works and over the entire income-tax structure of the federal government.” That same year in a commencement address at Yale University, Kennedy announced that “old sweeping issues have largely disappeared. The central domestic problems of our times are more subtle and less simple. They relate not to basic clashes of philosophy or ideology, but to ways and means of reaching common goals — to research for sophisticated solutions to complex and obstinate issues.” And Lowi adds:
“thus on the very eve of one of the most ideological periods in American history, President Kennedy had accepted the ‘end of ideology’ thesis. He had replaced it with a general theory that the solution to our problems rested with the presidency and a professionalized bureaucracy.”
The core of Lowi’s argument about the dangerous victory of liberalism is this shift from Congress to a professionalized bureaucracy as the source of legitimate lawmaking. In what Lowi calls the Second Republic, Congress almost never issues specific legislation. Instead, Congress governs by abstraction and invocation.
Consider, for example, Lowi’s discussion of the creation of OHSA (The Occupational Safety and Health Administration). OHSA “was the first national effort to deal with all industry” and the first attempt by the federal government to take this vital function from the states. It is a vast conveyance of power to a large agency. But in the statute authorizing OHSA, “Congress did not attempt by law to identify a single specific evil that the regulatory agency was to seek to minimize or eliminate.” Nor, Lowi continues, did the statute “attempt to identify a single cause of action against which aggrieved employees or consumers would have an easier day in court.” Instead, the law offers “an expression of sentiments for the desired result. The OHSA legislation took as its purpose “to assure so far as is possible every working man and woman in the nation safe and healthful working conditions and to preserve human resources.” The law instructs the Secretary of Labor to employ any practice to provide safe employment. This has led, in practice, to OHSA to work closely with industry groups to develop standards. But what Lowi focuses on is that the standards are now not set by Congress or by democratic groups, but within a bargaining relationship between professional bureaucrats and industry representatives.
The result of such a government by administration is what Lowi calls “socialism for the organized, capitalism for the unorganized.” It is a system that favors bigger and more organized businesses, unions, and interest groups. “It is biased not so much in favor of the rich as in favor of the established and the organized…. Above all it respects the established jurisdictions of government agencies and the established territories of private corporations and groups.” In short, the Second Republic offers a kind of politics that is “supportive of the clientele it seeks to deal with,” the organized interest groups that make claims upon it.
Lowi looks at legislation from the 20th century and argues that the law itself is increasingly so abstract as to be meaningless; it offers broad grants of delegated authority to administrative agencies to carry out abstract policies (improve health) based on abstract standards (fairness). As he writes:
“The language of laws under the Second Republic is virtually the language of the Bible, expressing broad and noble sentiments, giving almost no direction at all but imploring executive power, administrative expertise, and interest-group wisdom to set the world to rights. Whether the field is wage and price control, environmental pollution, unemployment, or inflation, congressional actions now amount to little more than an invocation, even though it is still called lawmaking and legislative drafting.”
Re-reading Lowi this week reminded me, as well, just how relevant Lowi is to understanding our current political situation. His argument that “Government that is formless in action and amoral in intention (i.e. ad hoc) is government that can neither plan nor achieve justice,” is a brilliant description of the government we have created. This is the government that satisfies neither the supporters of President Trump nor of Bernie Sanders. It is a government that frustrates everyone except those who finance and run the large organizations that are supported and protected by the administrative state.
*An earlier version of this essay mistakenly said that there were no major obituaries of Ted Lowi. After this essay was written but before it was published, The New York Times published an obituary.—Roger BerkowitzForm more information visit: https://medium.com/@arendt_center/the-theory-of-totalitarian-leadership-1af00db6873e#.v6zzzvbdd
The Not Yet Authoritarian
David French argues that when we look at what the President does, not what he says in the heat of the moment, we may be surprised.
"A president is “authoritarian” not when he’s angry or impulsive or incompetent or tweets too much. He’s authoritarian when he seeks to expand his own power beyond constitutional limits. In this regard, the Obama administration — though far more polite and restrained in most of its public comments — was truly one of our more authoritarian. Obama exercised his so-called prosecutorial discretion not just to waive compliance with laws passed by Congress (think of his numerous unilateral delays and waivers of Obamacare deadlines) but also to create entirely new immigration programs such as DACA and DAPA. He sought to roll back First Amendment protections for political speech (through his relentless attacks on Citizens United), tried to force nuns to facilitate access to birth control, and he even tried to inject federal agencies like the Equality Employment Opportunity Commission (EEOC) into the pastor-selection process, a move blocked by a unanimous Supreme Court. In foreign policy, he waged war without congressional approval and circumvented the Constitution’s treaty provisions to strike a dreadful and consequential deal with Iran. There’s no doubt that Trump has expressed on occasion authoritarian desires or instincts. In the campaign, he expressed his own hostility for the First Amendment, his own love of expansive government eminent-domain takings (even to benefit private corporations), endorsed and encouraged violent responses against protesters, and declared that he alone would fix our nation’s most pressing problems. But so far, not only has an authoritarian presidency not materialized, it’s nowhere on the horizon. Instead, he’s facing a free press that has suddenly (and somewhat cynically) rediscovered its desire to “speak truth to power,” an invigorated, activist judiciary, and a protest movement that’s jamming congressional town halls from coast to coast. This tweet, from Sonny Bunch, is perfect:Form more information visit: http://www.nationalreview.com/article/445185/trump-less-authoritarian-obama
[caption id="attachment_18728" align="alignright" width="300"] "Washington DC" by Teo Ruiz is licensed under CC BY 2.0[/caption] Glenn Reynolds has a novel theory about why the bi-partisan elite is so angry about the election of Donald Trump.
"Donald Trump has been president for a month now, and it’s been months more since he was elected. But the division over him, and his presidency, hasn’t settled down. If anything, it’s gotten worse. But why? I don’t think it’s Trump’s policies, which seem to be more popularthan he is. And though many of his pronouncements are portrayed as extreme, his statements on, say, immigration seem eerily like what former presidents Barack Obamaand Bill Clinton were saying not all that long ago. So why all the anger over Trump? As I’ve pondered this, I’ve gone back to Tyler Cowen’s statement: “Occasionally the real force behind a political ideology is the subconsciously held desire that a certain group of people should not be allowed to rise in relative status.” I think that a lot of the elite hatred for Trump, and for his supporters, stems from just such a sentiment. For decades now, the educated meritocrats who ran America — the "Best and the Brightest,” in David Halberstam’s not-actually-complimentary term — have enjoyed tremendous status, regardless of election results. An election’s turn might see some moving to the private sector — say as K street lobbyists or high-priced lawyers or consultants — while a different batch of meritocrats take their positions in government. But even so, their status remained unchallenged: They were always the insiders, the elite, the winners, regardless of which team came out ahead in the elections. But as Nicholas Ebserstadt notes, that changed in November."Form more information visit: http://www.usatoday.com/story/opinion/2017/02/20/trump-elite-brexit-rome-crisis-glenn-reynolds-column/98132442/