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Jewish World Review Feb. 24, 2000 / 18 Adar I, 5760

George Will

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Federal Swelling -- EXTRAORDINARY AFFLUENCE is obviously changing the nation's political agenda. Less obviously, and ominously, it is changing the nation's political sensibility, reducing to the vanishing point the once-sturdy concern for limited government.

The nation's freedom and prosperity have been secured. The problems that dominate day-to-day legislative business--e.g., reducing pollution and congestion, improving medical care, providing more police--are not resource problems: The sacrifices involved in paying for such things are not prohibitive. Christopher DeMuth, head of the American Enterprise Institute, argues that although Americans are unprecedentedly prosperous, self-sufficient and at peace with one another, government continues to grow prodigiously because of little-understood dynamics.

Government outlays (federal, state, local) and regulatory costs--largely imposed on the private sector--have grown more than 50 percent faster than the economy for 50 years and now claim more than one-third of GDP. The federal government owns one-third of all land, pays for 40 percent of medical care, manages nearly 50 percent of individuals' retirement funds and regulates many industries. Most Americans live and work in a web of government rules.

Forces working to inhibit government include globalization--the ability of capital and services to move to hospitable locales--and technological change. For a quarter-century, says DeMuth, the government has been trying and largely failing to regulate the computer industry: "Although it may lasso an individual firm such as Microsoft, it has no hope of corralling the entire industry as it did trucking and railroads in an earlier age."

However, more private wealth means more resources for the traditional lobbying of government, and more incentives for government to try something new. It is what DeMuth calls "the New Executive State" expanding through extortion.

Consider the extraordinarily complex Clean Air Act, which has been, in effect, written mostly by the Environmental Protection Agency, courts and environmental groups, negotiating rules that put flesh on what was at first a thin skeleton of congressional sentiments. The EPA's new ozone standards, now being appealed, would cost $100 billion per year if fully implemented and would yield negligible, if any, public health benefits, says DeMuth. The New Executive State's technique is not to fully implement such rules, but to force firms and localities to negotiate waivers--with many strings attached.

The executive branch has used Title IX of the Education Act as an excuse for writing rules that are compelling many colleges to abolish some men's sports to achieve equal expenditures and participation in men's and women's sports. But Congress mentioned no such requirement in Title IX. The executive branch now engages in taxing and spending: The Federal Communications Commission established by regulation a tax--now producing more than $5 billion annually--on long-distance service. The FCC sets the rate and adjusts it to suit its plans for spending on computers for schools and other projects.
DeMuth says dryly, "When the telephone companies announced plans to itemize the tax on their long-distance bills, the FCC chairman told them it would be better if they didn't."

DeMuth says the latest wrinkle in "executive taxation" is "recoupment litigation" such as the tobacco and gun suits. Government selects targets--in the tobacco and gun instances, legal industries manufacturing a legal product. Government hires private lawyers, working for a percentage of the take, to force the targets, under the threat or actuality of litigation, to pay some of government's expenses--and to change their business practices.

We are not just now losing limited government as the Founders conceived it and as Americans debated it from the founding until the second half of the 20th century. That conception and that debate are history. Several presidencies, particularly those of FDR and LBJ, and compliant Supreme Courts long ago interred the ideas that the federal government is limited by the Constitution's enumeration of its powers; that significant spheres of life are fenced off from the federal government; that some human wants and grievances are not public business.

The new worry is that the government is not only unlimited in scope, it also is not limited by the politics of legislatures--public deliberations, accommodations to rival constituencies, pressures to moderation and compromise inherent in logrolling and the competition for finite appropriations. And, increasingly, government is not limited by the rule of law, understood, perhaps quaintly, as power controlled by laws enacted by Congress.

Congress is complicit in all this because Congress could stop it. Until it does, we will have more of what DeMuth calls "strip mall socialism," sprawling government, ubiquitous and undistinguished, with "no theme or theory, just momentum."

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