by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Until the 1970s, reforms were possible because only a few dozen leaders in Congress had goodies to trade, members had small staffs, and campaign finance was more party-controlled. But today, he says, the inmates run the asylum and cannot be dislodged, and the public’s alienation does not break along party lines; a majority of Americans are fed up with a “ruling class [that] hectors and pesters us about our shortcomings.”
Instead, Murray proposes a novel form of civil disobedience: targeting irrational regulations through Madisonian “defense funds” modeled on the cause-driven litigation groups on the right and left that have overturned Jim Crow, cartel-type restrictions on competition, and other clusters of injustice.
These groups would defend innocent-but-beleaguered regulatory targets, challenge perverse rules in court, and spotlight official overreaching and folly. They would “pull back the curtain and expose the Wizard’s weakness,” raise regulators’ costs just as regulators raise their targets’ costs, and advocate an old-school NBA “no harm, no foul” type standard. Small and large businesses would invest in the funds to insure against arbitrary government actions. All of this, he imagines, would precipitate a crisis, forcing regulators to cut back and courts to be less deferential.
Murray is an ingenious salesman, but he conceals some serious defects under the hood. His core precept—that Congress and the courts must limit agency discretion—begs the key question: How much discretion is too much? Generations of conscientious judges and legal scholars have failed to find a general, objective, convincing answer to it; Murray doesn’t really try. He also would rely on “common sense” to sort the regulatory wheat from the chaff, but he doesn’t tell us whose common sense will do the sorting.
If Congress is too corrupt and agencies are illegitimate choosers, then Murray must leave these matters up to the judiciary, the least-qualified institution to make policy.