A Yakov Smirnoff America

It appears that as of today, April 1, 2014, the deadline for open registration, the Affordable Care Actⁱ will have achieved the stated goal of seven million registrants (of the approximately 318 million Americans). Several extensions of the deadline were necessary because of “glitches” in the system. There were many protests and court cases involved in the acceptance of the new legislation and its associated regulations, but it's now the law of the land. And those who do not wish to participate may elect not to do so. But they'll be fined for that kind of protest. And the fine will increase as time goes by. Such is the “Life, Liberty, and the pursuit of Happiness” with which, according to the Declaration of Independence, we were “endowed by [our] Creator,” and the prized “freedom of choice” which American culture values so highly.

Whether or not the legislation is wise – and I must admit to some reservations – there are a few points about it worth noting. The first relates to its legitimacy. The Supreme Court, a non-legislative body appointed for life, came close to invalidating it yet didn't, though portions of the act were found not in keeping with our laws. But the greatest argument surrounded the mandatory registration of everyone, with a penalty for those who didn't accept the concept. The government maintained that it had the right to do so under the Constitution's Commerce Clause and it maintained, with great vigor, the idea that this was not a tax. Chief Justice John Roberts ruled that it wasn't justified under the Commerce Clause, and, along with the four Justices who considered the entire law to be unconstitutional, that would have made a majority to strike it down. However Justice Roberts ruled that Congress had the right to tax (even though they vehemently denied that they were doing so in this instance) and that this would be acceptable as a tax, so they could have done it that way. Therefore he sided with the four Justices who favored the act and it was upheld.

Another problem is the view of many that the law contravenes their religious freedom. It does so, they claim, by mandating their provision of contraceptives and abortions to those in their employ, irrespective of their own personal beliefs. Several lawsuits are currently being argued on this point.

Additionally, the legislation is long and complex. Much of it was written, subsequent to the law's passage, by unelected bureaucrats who crafted the regulations which will be used in its implementation. These regulations come from anonymous civil servants who do not answer to the voters, and what they write is never reviewed or passed by Congress. The Constitution may not authorize them to write our laws, but they do so anyway. Congress makes no pretense at understanding the implications of what they've done, so they leave it to others to make it sound right. And the “others” may have their own axes to grind.

There are many other objections to the act, however one interesting feature is that it emerged from failure. When the public was first asked to sign up for it, the mechanisms to do so failed miserably. Years had been spent perfecting the system, but it couldn't do the job. The regulators tried various fixes but were unsuccessful. So they called in private industry to pick up the pieces. After about a month of reprograming, the “outside consultants” corrected the errors of our bureaucrats.

The implications of this situation are significant. The government decided that it would do what it claimed private industry couldn't. It would provide health insurance superior to that on the open market. When it realized that it lacked the expertise to do so, however, our leaders did not abandon their plans but called upon private industry to fix what they had broken. They asked one group of entrepreneurs to help them in their move on another. And the public was in the middle – often having to accept what they didn't want in the first place or be “taxed.” It doesn't bode well that the same less than skillful bureaucrats will be running the health insurance program that they couldn't implement. And the same “experts” are contriving so many of the other rules that govern our lives. “What a country.”ⁱⁱ

But it's April Fools' Day, so we can only laugh about it. The joke, though, is on us.

I       “Obamacare”

ii        Yakov Smirnoff, Russian comedian.

“ ... and for other purposes ”

(another in the series of essays purporting to illustrate governmental changes

that would help us in our battle against our National Debt.)

                                                                           

The quotation above cites the frequently used code words marking the end of the title of a congressional bill, indicating that it contains a lot more than anyone wants to advertise. I first saw it as a part of the title of the “Paperwork Control Act of 1995” which, as I noted last week, doesn't lessenⁱ governmental paperwork but sounds good to the public. Legislative titles, and the bills they represent, remind me of carriers for viruses that trick our bodies into believing that they want something that turns out to be harmful to them. (They're Trojan Horses.) But very few people know that, since the titles are so appealing and the laws, themselves, are so hard to read. And our representatives vote for them even if they've spotted the pork, “set-asides,” exceptions, redundancy, and the creation of featherbedding and unnecessary regulations the proposals contain. After all, their own bills will have the same “other purposes” and the favorable vote they cast today will be reciprocated. Somewhere along the line their constituents will be benefitedⁱⁱ with the ultimate cost dumped on the taxpayers. Greater rewards, however, will come to those who have made campaign fund contributions or have otherwise warmed the hearts of the legislators.

But the rest of us really lose out: even assuming the putative purpose of the legislation is worthy, the cost of its regulations and its implementation simply increase our debt. And all too often the new law doesn't accomplish what the advertisements say (see text above, end-note number 1, and last week's essay), or it results in unanticipated consequences which are similarly costly and require additional legislation, regulations, and “other purposes.” But that's the way the game is played and that's the way the bills are paid. But don't worry. The taxpayerⁱⁱⁱ can afford it.

Still, I'd like to offer some suggestions about lowering costs and increasing the ability of citizens to understand what's happening. While the Constitution informs us of the powers that each branch of government has, it doesn't bar us from formulating processes that simplify, and possibly improve their performance. And Congress, with its legislative outpourings, seems a good place to start. If there are limits placed on the laws they can promote, it's likely that our representatives will become more representative. As the saying goes, “When you grab them by the bills, their hearts and minds will follow.”

To begin, it would be useful to limit all proposals to 10,000 words. Any legislator^iv who cannot, or doesn't want to, spell out the purpose of a law in a document that length either doesn't understand what he wants, or he's hiding something. The proposal should be preceded by an”executive summary” containing, in short bulleted statements, the specific intent of the bill. Any provision that does not conform to the bill's stated objectives should be removed and dealt with in separate legislation. And the document submitted for consideration should list, on a separate page, the names of all organizations, businesses, and individuals who will benefit from it.^v Any omitted beneficiaries, when identified by an outside review committee (see below) should be publicized in the district(s) of the bill's sponsor(s). All bills should be voted on by named voters – not by acclamation or other anonymous vote. A copy of every bill, with the executive summary and a listing of how each Senator and Representative voted on it, should be available on the internet at all times. Similarly upcoming bills should be listed as well as tools to assist the voter in stating his views to his representatives.

It is recognized that many pieces of legislation, in order to achieve a majority, may require compromises. Fine. But it's not always possible, and the most direct solution is to link proposals of the two parties that wouldn't get bipartisan support otherwise. They should be stated in two separate short bills, both following the principles described. The two resulting bills, could be linked for the congressional vote and the voter would cast a ballot separately on each of the two parts (for the sake of showing his “true” views to his constituents) along with a vote on the package, which will be the one that counts.

There should be a media team possibly selected and/or paid by Congress which will read the bills to determine and report on whether they meet criteria. That determination, along with a fact check, and an indication of the fiscal repercussions of the act, should be reported to the public.

These guidelines should make the writing of our laws less time-consuming, require less paper, and be less expensive; they should make the reading and understanding of each bill's purposes easier; and they should discourage the incorporation of pork. Legislative review should take less time and, in addition, it would be easier afterward to evaluate the success or failure of understood goals.^vi That may not be what the politicians want, but it will save the rest of us a lot of money.

As I've mentioned before, however, bills are often followed by regulations. These should also be limited in length and complexity. They should be written in clear language and the author of each individual rule should be identified.^vii Congress should vote on the regulations and their votes recorded on this issue as well. And these regulations should be reviewed by the same kind of checkers as the original bills. Individual news teams, newspapers, other media, will probably have teams reviewing as well, but the ones set up by Congress should report to all the media, and available on the internet, so everyone has the reports simultaneously and we'll all be kept aware of the bills, the regulations, and the pork.

Of course Congress will find a way around the new guidelines, but it will take a little time and in the meantime we'll save some money, especially by decreasing the benefits that accrue to the few, and we'll use a lot less paper. And although the taxpayer is of little concern to our representatives, there'll be a better chance to understand and react intelligently to Congress's shenanigans. It may not be their goal, but it's a good start in dealing with the mess our representatives have created.

Next episode: “Three Little Words” – The times, they are a-changin'.

i      Actually it increases it. See last week's essay.

ii     And that benefit will be loudly trumpeted and milked for every vote possible.

iii    Or his grandchildren.

iv    Preferably it will be written by an aide – one who is not a lawyer – and it will be written in understandable language.

v     It is likely that the author will argue that the main beneficiary is the public. That's a given, even if it may not be true. But every other organization or individual who gains from the legislation should be spelled out so we can decide if that's where we want our tax money to go.

vi     And that's something that should be done and publicized.

vii    Perhaps this will discourage self-important “cowboys” from including provisions not intended by Congress but important to the bureaucrat.

Paper And People

                                                                           

Many people, and that includes me, believe that the government is too big, but they fear that the solution to the problem that many in Congress will suggest will be another department, charged with the responsibility of making it smaller. And of course that will make it bigger. For example, the full title of the Paperwork Reduction Act of 1995 (the PRA of 1980 apparently didn't do the trick) was “A bill to further the goals of the Paperwork Reduction Act to have Federal agencies become more responsible and publicly accountable for reducing the burden of Federal paperwork on the public, and for other purposes.” Even the title is too long. But the real test is whether the act did its job, to which the answer is an unequivocal “Yes and No.”

Q. Doesn't the PRA cause more paperwork, not less?

A. For government employees, yes. The objective of the law is to reduce the paperwork burden on the public. The process of trying to do that adds to government paperwork.ⁱ

So, the real goal, notwithstanding the professed aim of all the politicians, is not to decrease the amount of paperwork, but only what the public sees. (That used to be called “secrecy” and was decried. Now it's an important goal of government to “help” everyone. Congress has gone out of its way to find a method by which it is unnecessary for the public to read so much of what will affect them. Perhaps the title “Paperwork Reduction Act” is misleading, but it all sounds very noble.) How can the public not respond positively in the next election to anyone who voted for an act with that name.ⁱ It's the usual disconnect between what Congress wants us all to believe, and what is reality.ⁱⁱ

An example of the results of the Paperwork Reduction Act is the universal health care initiative passed during the previous Congress, which, nominally, is aimed at lessening our health care costs and providing care for all. The act was passed long after legislation to reduce paperwork – at a time when the government should have honed its skills at succinctness – but it is quite long and consumes a large amount of paper. After extensive time, money, personnel, and paper were utilized to draft legislation, Congress passed the “Patient Protection and Affordable Care Act” and the “Health Care and Education Reconciliation Act of 2010.” In bill form they amounted to between 2,000 and 3,000 pages (I don't know the actual number) but by reformatting, the bulk was reduced to 961 pages in the printed statutes. That's 425,116 words.ⁱ

But that's only the basic framework. Implementation of the statutes requires that the specifics be spelled out with regulations since the bills only indicate the goals, and the regulations bring wonder to all who see them. They amount to over 2,800,000 words.^v To bring that into perspective, “War and Peace” is about 560,000 words long – far fewer than “Remembrance of Things Past” (1.2 million words. But the statutes and associated regulations and more than five and three quarter times the length of “War and Peace.” ^vi) It's hard to believe that all those who voted for them even read the original bills, let alone the regulations that followed. It is likely that the costs involved in writing and administering this legislation will increase paperwork, the number of bureaucrats needed to manage it, and the National Debt, while there are many questions about the ultimate effect on health care and its costs.

That long but necessary introduction aside, however, legislation like this – and while these statutes are not typical in size, they are far from unique in form – illustrates the extent of Congress's adherence to the spirit of the Paperwork Reduction Act. It demonstrates that the problem is far larger than we might have imagined.

With all of that as background then, it seems obvious that Congress is incapable of simplifying or unwilling to undertake it voluntarily, but legislators can only make things more complex and more costly. Even assuming that all of our legislation were necessary and honest – which it isn't – it can only lead to enlarging government costs. Inevitably the debt will continue to rise, as will the burden on those who follow us.

That's the way our government works. We increase costs while we need the to reduce them; we enlarge it while claiming to make the bureaucracy smaller. Increased revenues are certainly worth seeking, but until we lower the bills we're paying,^vii we won't be able to start on the long path to balance the budget no matter how much we raise.

I'll start talking about that next week.

Next episode: “And For Other Purposes” – Too big to read and too important to fail.

i      U. S. Department of Health and Human Services. Human Services. An interesting choice for the responsibility to lessen paperwork and, presumably, the size of the beaurocracy charged with producing it.

See: http://www.hhs.gov/ocio/policy/collection/infocollectfaq.html

ii      Not surprisingly, it passed unanimously in both houses of Congress.

iii    More on that subject when I discuss some aspects of legislation. For the moment, note the “ ... and for other purposes” in the full title of the act.

iv     It's about ninety-two times the length of the Constitution.

v     Blaise Pascal wrote: “I apologize that this letter is so long. I did not have the time to make it short.” (The quotation has been, from time to time, attributed to others but it is generally accepted that Pascal authored it in its current form.) In the case of Congress, however, the absence of time was not the main motive, I fear, but there was an intentional desire to make the legislation unreadable, especially since some of its contents might be viewed negatively by other legislators. I suspect, as well, that Congress has neither the will nor the ability to do so.

vi    Indeed, the United States Constitution, on which our entire system of government is based, is under 4600 words in length. Of course that doesn't include the signatures of the Founders or the text of subsequent amendments. And the Declaration of Independence, by which we became a nation, is under 1400 words.

vii    In part by shortening the bills we're passing.

The Council Of Wise Folks

The Council Of Wise Folks

(and the counsel of wise folksⁱ)

The President's Cabinet, consisting of the heads of the various agencies, is designed as a group of authorities for him, to advise him on areas about which he might not be as knowledgeable as he would like. Its members, however, are often chosen for political reasons, or because of the contributions they have already made to his election, or for future help they may offer. Expertise in the area for which they are chosen, necessary as it might be, is a less important consideration. They will follow his lead politically, or they will lose their positions.ⁱⁱ He may also have a separate group of unofficial advisors, however they, too, are aligned with him politically and their advice parallels his instincts, though it may be better informed.ⁱⁱⁱ

Some countries follow this model but others don't. In some cases – and this is often the situation when there is a plethora of political parties catering to a variety of interests – the advising council will consist of representatives of all the parties that participate in the government, since it would be impossible for any single party to gain a majority. The smörgåsbord of proposals that such a body provides is all but useless to the head of government. Each of its members is likely to pander to his own constituency, and unity is impossible. Policies may be cobbled in order to keep the government standing until the next election, but logic and consistency are often lacking.

To deal with this situation, therefore, as an addition to the presidential cabinet,^iv there could be a non-elected Council that would offer analyses and recommendations on a small number of subjects for dissemination to the public and politicians for guidance. The Council would have only moral authority, but it could set the tone for other organizations such as government panels and bureaucratic boards. ^v

Let me begin the discussion with the following highly arbitrary suggestions:

1. The Council should report to the President and to the American People.
2. It should consist of 101 members – the Chief Justice of the Supreme Court, the Speaker of the House of Representatives, a representative of the opposing major party (ie opposing that of the Speaker), and 98 other members (7 X 14),
3. The members should represent seven Working Groups^vi (listed below) and each Group should discuss issues that fall in its purview:^vii perhaps the court system, and the death penalty would be subjects for discussion by the Law working Group, defense by Security, minority rights by Citizen needs, etc.

                                                                          a. Law

                                                                          b. Science

                                                                          c. Economics

                                                                          d. Citizen needs

                                                                          e. Security

                                                                          f. Foreign affairs

                                                                          g. Domestic affairs

4. Some issues might be raised by several different Groups (eg jobs might be discussed by the Economics Group, by Citizen needs, and by the Group on Domestic affairs – either simultaneously or at different times), and each might consider a different aspect of the problem. Unless there is a good reason to do so, however, there should be a waiting period before an issue can be re-discussed since the initial airing might result in legislation and that legislation should have a chance to take effect before it is challenged or changed.
5. The working Groups and the Council could call whatever additional experts they needed to clarify issues about which individual members were unclear.
6. The individual working Groups having met separately to discuss issues of importance to them, should then report, with majority and minority reports, to the entire Council which could then discuss the issue and prepare reports and suggestions.
7. Council suggestions should be timely and straightforward, and not require myriad regulations to effectuate them. The suggestions should be understandable to the public and, if any regulations are needed, their nature should be explained to the voters. Ideally the Council would, at a later date, report to the public the nature of subsequent legislation and regulation so that citizens would have the chance to decide if their wishes were being honored.

One of the more difficult aspects of the system would relate to the formation of the Groups and Council. How would members be chosen? It would probably be best if experts in particular areas were chosen by their peers. Examples might be the choice of members of the Law Working Group by the boards of the three largest legal associations,^viii or the decision on membership on the Science Working Group by members of the boards of the various science associations.^ix

The membership of Working Groups that dealt primarily with political issues (like Foreign affairs or Domestic affairs) would be chosen, in equal numbers, by political conservatives and liberals, each choosing from a panel offered by the opposing side. Because the membership would be limited, it would be difficult to select a Group that was representative of the entire population in terms of race, religion, sex, socio-economic groupings, etc. So be it. However, those individuals or groups who wanted their voices heard could submit documents and “Friend of the Council” briefs (with a maximum length and possibly with a copy of its mission statement so voters would understand any biases of the group) which would be published along with the decisions. Since the Working Groups would have no authority, and since all reports would be public, an even number of members (in this instance fourteen) is reasonable, and since each would choose the other's representatives a relatively middle-of-the-road Group would result, making decisions easier. The membership periods would be overlapping^x and for a single fixed term (eg fourteen years), to allow for changing views while members would not be forced to decide based on political pressures. Ideally, the members would not be in politics and would have no constituencies. The chair would rotate.

Agenda would perforce be limited, like that of the Supreme Court, and would have to be decided on by the individual Groups, although the Council could develop a procedure for referring specific issues to Groups for discussion. Perhaps there would be subgroups to review easier issues, as Jethro suggested to Moses.^xi A report (a listing including the sponsor) on private bills and pork-barrel projects should be issued regularly. It would not require discussion or debate, only disclosure. Publicizing the issue should be all that is necessary.^xii Voters would probably consider that useful. Other reports, those requiring discussion, would, ideally, be by consensus, since the Group would be relatively knowledgeable, middle-of-the-road, and free of political and constituent pressures. Nonetheless, minority reports could be issued as well. Transparency would be important and the public should have access to discussions as well as decisions. (Perhaps the public should even be made aware of its ability to amend the constitution outside of Article 5 which only presents one permissible way but doesn't exclude others. This, however, would probably frighten public officials, and cause them to nix the whole idea.)

What might be achieved? Congressional committees hold interminable hearings. Council discussions would be briefer and less political. There might be money savings resulting from the outside pressure and the opportunity of shorten or eliminate Congressional hearings. Legislation would probably be quicker. Lobbying may decrease – at least that which results in pork barrel projects which are expensive but not valuable to the public at large. Moreover, the Council, by publicizing those parts of legislative actions which seem to be intended to benefit small numbers at the expense of many – or at least bringing them to light – might have a positive effect on corruption.

It is virtually certain that such a Group (or subgroups if there are lower-level panels) will be viewed as increasing governmental cost and bureaucracy. It is similarly certain that their reports will be “spun” by those with an interest in doing so. That's the way democracy works. It is to be hoped that the general public will see through such criticisms and attempts to distort the reports. The low esteem of politicians would probably mean that the Council reports would have greater credibility than any political distortions of them. They certainly can't be worse than what we have now – either in Congress or in the President's Cabinet.

[NB: This is the first of a series of undetermined length and of irregular publication, that will deal with American Democracy and with the way our government runs. However wise and virtuous the Founding Fathers may have been, times change, and not all situations were considered by them. Nor was there a recognition that our size and status in the world might affect our choices. They left room for amending the Constitution, however, and it may be useful to discuss some of the changes that have taken place since the eighteenth century with an “eye” on modernizing our system of government.]

Next episode: “Taxing And Voting” – What could be more taxing?

i     Not wise guys nor biblical wise men.

ii    The President will praise the individual and laud the great job he's done, bemoaning the resignation, which was necessary, of course, “for personal reasons.” Those reasons, however, are related to the fact that the President would otherwise have fired the person now “resigning.”

iii    Although these individuals lack formal official standing, they usually have more influence on government decisions than the Cabinet members.

iv     Cabinet secretaries will still be necessary as administrative heads of the various departments, and for interaction with foreign officials having similar mandates.

v     The Council would not replace, but would supplement the Cabinet. It would have no legal standing, but would report quickly, and its reports would be known to be apolitical. Thus they would influence voters and, secondarily, those who wanted to be (re)elected.

vi    There is nothing sacred about the number seven or the total of about 101. Nor about the nature of the particular working Groups. The only purpose of presenting the list and numbers is to start the discussion.

vii    Issues might be brought to a working Group's attention by a small number, perhaps three of the fourteen, with discussion initiated by a larger number, say five, and then, after discussion, taken to the Council for further discussion by those interested in the topic but not in the working Group. The Council would then issue prompt reports on the subject. Issues would not be linked to legislation, although legislation might follow. They would simply require a large enough number of individuals who would want to discuss them.

viii   Which might change from time to time.

ix    This is left in an ambiguous state because it serves no purpose to prescribe the organizations that would pick Group and Council members at this time. The decision regarding the method of choice would be left to a committee of board members of scientific societies (or economic societies or whatever) designated by the Chief Justice, House Speaker, and minority party representative. Any committee would understand that if it could not choose members by a date certain – a week, for example – the three of them would choose the members.

x     For example there might be two appointed every two years. See the United States Constitution for an example of the method (see the second paragraph of Article 1, Section 3, ignoring references to resignations and replacements.)

xi    Exodus, Chapter 18, verses 19-22. Obviously there would be changes relating to size, and to the fact that the Council would be dealing with secular, not religious, issues.

xii    One way of achieving this goal would be to list all the organizations – including Congress – that are exceptions to whatever law is passed, and to list all local projects and their costs for the voters to see.