The Law & Liberty Podcast

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The Burkean Style of Daniel Patrick Moynihan: A Conversation with Greg Weiner Jan 12, 2020

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Frequent contributor Greg Weiner speaks with Richard Reinsch about his latest book, American Burke: The Uncommon Liberalism of Daniel Patrick Moynihan, arguing that Moynihan’s liberalism combined a “stubborn optimism” in what government could and should do with a profound sense of limitations on “how it should attempt to do it.”

Economics in One Popular Culture Lesson: A Discussion with John Tamny Jan 12, 2020

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John Tamny comes to Liberty Law Talk to discuss his excellent new book Popular Economics. Many will recall the first time they read Hazlitt’s Economics in One Lesson. That book’s clear prose and striking examples provided a foundational introduction to free markets. But, as is often true, our practices are better than our theories. We instinctively grasp economics in our daily habits and choices but misunderstand the conditions and principles that support economic growth. Americans are confused about inequality, trade deficits, antitrust policy, fiscal policy, minimum wage, job creation, etc, despite pursuing their own economic self-interest without much thought.

Dispelling such confusion is John Tamny whose work will become the Hazlitt of our day. Using examples from the Rolling Stones to illustrate the folly of taxing capital gains, why common antitrust theories were exposed by the FTC’s blocking of the merger of Blockbuster and Movie Gallery just as Netflix was making both companies obsolete, and demonstrating why the explanations of the 2008 Financial Crisis strain to avoid the obvious factor of currency devaluation, Tamny gives us free market lessons that we can’t not know. Enjoy the interview and buy the book!

Roving Bandits: A Discussion with Paul Nolette on the Power Wielded by State Attorneys General Jan 12, 2020

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Paul Nolette comes to Liberty Law Talk to discuss his book Federalism on Trial, which demonstrates how state attorneys general quietly became significant national policymakers. What was once a rather staid position in state government has become the source of entirely new regimes of conduct impressed on companies and industries. Incredible evidence of this legal revolution can be seen in the Master Settlement Agreement with the tobacco industry, which, courtesy of the attorneys general, sent $200 billion to the states and negotiated an entirely new cartel for the industry without a single vote in Congress.

While some attorneys general have challenged key pieces of the Obama administration’s regulatory agenda, mostly what has occurred the past few decades is a bipartisan pro-regulatory agenda. In short, Nolette’s work indicates that we have been governed by a band of roving bandits who “bargain in the shadow of the law.” Under threat of investigations, lawsuits, and legal fees, companies and entire industries have accepted regulatory codes that, in many cases, were rejected by legislatures or not implemented by agencies. Not to worry, we discuss how State AGs pick up the slack, as it were, and make law in the gaps of accountability. That’s power, but it’s rule over and above the law.

We have Paul to thank for helping us get perspective on this disordered regulatory situation.

Public Union Power: A Conversation with Daniel DiSalvo Jan 12, 2020

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FDR observed that “The process of collective bargaining . . . cannot be transplanted into the public service.” What does it mean for taxpayers if government workers organize into unions and engage in collective bargaining arrangements? What actually checks and balances their desires for greater pay and benefits? Politicians? Engaged citizens? Will dutiful public servants voluntarily restrain their appetites for the public good? To ask these questions is to answer them with a wry smile.

This episode of Liberty Law Talk with Professor Daniel DiSalvo on his new book, Government Against Itself, focuses on the dramatic growth of public sector unions in America. Legislatively created by states in the 1960s and 1970s, the rise of these unions has occurred without much public comment or notice. That changed with the 2008 financial crisis that exposed the fiscal weight these unions were imposing on states and localities, themselves struggling to meet their basic obligations.

Our guest doesn’t have much good news for those who believe in limited government. Public unions have contributed to unfunded pension liability for state and local government to the tune of $3.2 trillion or 21% of GDP. And this figure doesn’t include healthcare costs, estimated to be another $1 trillion. Crucially, DiSalvo stresses, government services, so greatly needed by the working class, languish because the primary need in many public budgets is to fill the growing salary, pension, and benefit needs of union members. In short, fundamental government work can’t be performed with anything like fiscal efficiency under the model of service that public sector unions create.

DiSalvo has the horrid details in this informative conversation on the past, present, and future of public sector unions in America’s states and localities.

Is America in Retreat? A Conversation with Bret Stephens Jan 12, 2020

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This edition of Liberty Law Talk discusses with the Wall Street Journal’s Bret Stephens his recent book, America in Retreat. Stephens argues that an America which declines to engage globally with its military is accepting a false promise of peace at the expense of rising disorder. The introduction chapter is entitled “The World’s Policeman” where Stephens quotes President Barack Obama’s proclamation in a 2013 speech: “We should not be the world’s policeman.” Similarly, Rand Paul states that “America’s mission should always be to keep the peace, not police the world.” “This book,” says Stephens, “is my response to that argument.”

Our conversation focuses on the foreign policy choices that America should make by considering the factors that must be weighed and analyzed to make those decisions. Here, we disagree on foreign policy and strategy. If we believe, as Stephens argues, that “No great power can treat foreign policy as a spectator sport and hope to remain a great power,” then what, exactly, will that require? What are the ends that we seek, and what are the means at our disposal for pursuing a particular course? Why is a certain regional or national disorder in a part of the world America’s problem to remedy? How is that determination made?

While there is plenty of discussion on foreign policy here, Stephens also notes the strength of America. To Stephens’ credit he argues against the declinist talk we’ve seen take hold in recent thinking on America’s future. He marshals important data and tantalizing anecdotes that indicates something very much the opposite. Stephens observes the ways that elites from supposedly rising nations like China keep connecting their fortunes and their families to America. What do they know about us and about their own country that we choose to forget or ignore in our bemoaning of America? This conversation reminds us that for America decline is very much a choice. We can and should choose the better course.

The Dismal Performance in Federal Policy-Making: A Discussion with Peter Schuck Jan 12, 2020

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Peter Schuck comes to Liberty Law Talk to discuss Why Government Fails So Often. Like James Buckley and John DiIulio, Schuck doesn’t have much good news for the large majority of Americans who are disgusted with the performance of the federal government and its ability to devise and execute policies. Schuck notes that in April 2013, only 28% of Americans had a favorable opinion of the federal government. Many have tried to explain this phenomenon with various government affirming answers, but Schuck is forthright in the book and this interview when he states that the best answer is that the “federal government does in fact perform poorly in a vast range of domestic programs.” One problem, among many, is that the bar to federal action is now so low. They can’t stop helping us.

When problems erupt: corrupt corporations, national security fears, financial crises, deficiencies in private healthcare, etc., the answer is massive statutes (Sarbanes Oxley, the Patriot Act, Dodd Frank, Obamacare), and even larger amounts of regulatory production and agencies to enforce them. Little consideration is given, Schuck notes, to questions of how markets will react to the regulations, how accurate the information is that policy-makers have relied on in shaping policy, and how credible and manageable the final product will be to those who will use it. Timeless problems of how centralization and knowledge impede effectively implementing the policies are rarely considered. Compounding this problem, Schuck says, is Congress itself, which is largely willing to push the real questions of statutory guidance onto the federal bureaucracy.

This discussion with Schuck also explores what he calls policy successes which are characterized by government not attempting to reshape markets and persons, but merely opening a legal door to goods for which there was pent up demand. Schuck remains a believer in the need for a large federal government, but notes that the way to competency and effectiveness isn’t likely to be found without substantial reforms in policy-making.

Leviathan by Proxy: A Discussion with John DiIulio Jan 12, 2020

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This episode of Liberty Law Talk welcomes a truly gregarious man of public administration, John DiIulio, on his new book, Bring Back the Bureaucrats. That title might well lead to a collective sigh filling the air; however, DiIulio argues that we’re dishonest about the federal government in two significant ways:

(1) The federal government spends lavishly, but we borrow it from the wealth of future generations rather than tax ourselves.

(2) We actually administer most federal government programs not with federal bureaucrats but with a host of intermediaries: nonprofit entities, for-profit companies, state and local government employees that DiIulio refers to as “government by proxy.”

The number of federal bureaucrats hasn’t increased since 1960 while federal spending has ballooned. State and local government employees have increased dramatically in large part, DiIulio notes, to administer federal programs at their level. As a result, DiIulio argues that this government by proxy is another lie that lets us have big government but without actually seeing and feeling it. In the process, the feds have made many state and local government employees their agents while similarly corrupting the nonprofit sector, making it dependent on government for its revenues. The effects can be seen in incompetent and mismanaged government agencies, the proxies constantly lobbying for more money, with evident manifestations of stupidity visible in the daily headlines.

And so we can disagree with DiIulio. Will hiring federal bureaucrats with the intention that they must administer their own programs result in more limited, transparent, and accountable government? We might wonder how, exactly, is anything as large and monstrous as the federal government ever going to work well and accomplish its objectives efficiently? The nature of the case seems to augur against such a possibility. But DiIulio is here pointing to another discomfiting part of our government. We might dismiss his remedy but probably not his diagnosis.

To Adam Smith be True: A Conversation with Russ Roberts Jan 12, 2020

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Did you know that Adam Smith’s The Theory of Moral Sentiments can change your life? In essays on self-knowledge, happiness, virtue, being loved and being lovely, making the world a better place, and most importantly, fame and self-deception, Russ Roberts’ new book on Smith explores why the 18^th century Scottish philosopher has the cure for the denizen of late modernity. The man mostly known for articulating in The Wealth of Nations how nations become rich and how they impoverish themselves also wrote eloquently on why we want to be loved and why we struggle with being lovely. In short, Smith soberly reminds that we easily deceive ourselves as to just how lovely we are. We want fame and wealth, Smith says, but does this conduce to our happiness? At the heart of our conduct, of knowing how to hit true north with our actions, is the impartial spectator according to Smith.

This spectator, Smith says, “is reason, principle, conscience, the inhabitant of the breast, the man within, the great judge and arbiter of our conduct. It is he who . . . calls to us, with a voice capable of astonishing the most presumptuous of our passions, that we are but one of the multitude, in no respect better than any other in it.” Roberts observes that this spectator is the community itself, reminding us of how small we are, of the humility that we easily forget. This is the problem we face in living well. How do we stand up in relation to the spectator?

But is this also Smith’s problem? We discuss what problems are introduced here with Smith’s impartial spectator. Does it have the objective capacity to chasten us if its standards are of the community? What if the community itself is bad?

There is also what is commonly referred to as the Adam Smith problem, which Roberts invites us to consider. How does the Smith of self-interest, of the commercial society that we see in The Wealth of Nations, reconcile its passions with the sobriety of life that he recommends in The Theory of Moral Sentiments?

Liberating the States and Their People from Federal Grants: A Conversation with James Buckley Jan 12, 2020

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Now comes the great James Buckley to Liberty Law Talk to discuss his new book Saving Congress from Itself that argues federal grants-in-aid exemplify the obstacles currently posed to constitutional government. The key to our constitutional health must involve, Buckley declares, the elimination of these programs. The issue is more than just the overwhelming spending, which has soared from $24.1 billion in 1970 to approximately $640.8 billion in 2015. Buckley and I also discuss the obvious constitutional problems, namely, that through the so-called spending power Congress can impose laws on states that it otherwise possesses no constitutional authority to enact and enforce.

As Michael Greve has consistently noted in this space, state governments find it virtually impossible to leave federal grant money on the table, strings attached notwithstanding. Their loss, ultimately, is the ability of their citizens to freely govern themselves. However, the loss of self government is both local and national, as members of Congress divert their attention from the more pressing objectives of national government. They find it easier and more advantageous to manage the federal government on behalf of local concerns and interests that are served by grant programs.

The conceit of federal spending in the form of grants to states and localities is that Congress and federal agencies are better positioned to shape local priorities than the actual authorities elected for that very purpose. In this manner, centralization–the central mistake of the twentieth century–and its belief in experts ruling with and through knowledge continues unabated. Buckley, as the book’s subtitle states, has a plan to emancipate the states. The prescription we discuss is to end federal grants immediately, saving billions of dollars and, most significantly, restoring the Congress to its proper remit of deliberating national problems and issues in place of funding sidewalk construction in Sharon, Connecticut (Mr. Buckley’s hometown) on behalf of a federal anti-obesity initiative for children.

The Cost of Liberal Compassion: A Conversation with William Voegeli Jan 12, 2020

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What does it mean to turn politics into an exercise of compassion? That’s the question William Voegeli invites us to consider in his latest book The Pity Party. He bids us to the same conclusion, but in policy and political terms, that our parents once gave us: pity parties are a guilt trip. Of course, the particular politics Voegeli is discussing emerges from the sense of injustice and unfairness that modern liberals everywhere perceive. Their primary motivation, however, is to relieve their own inner discomfort. Their compassion, even more problematically, is disconnected from any real notion of virtue or individual integrity. So the results of policies they champion, and the abilities of programs to uplift those in marginalized economic circumstances, isn’t the first priority or much of a priority at all. What matters is President Bill Clinton telling us that “I feel your pain.” Or his wife exhorting us to a politics of meaning and to be devoted to raising everyone’s children because we’re all part of the collective village.

Voegeli and I discuss the policies of compassion ranging from the Great Society, gun control, the welfare state, racial preferences, etc. and what their substance is really about. What matters at the pity party is to do something, anything for the marginalized and oppressed. Measuring if it works is not even secondary, Voegeli notes. In most cases, efficacious results aren’t considered or valued. The protagonist in this drama isn’t the oppressed, it’s the suffering liberal conscience. And that means that we are prohibited from looking too deeply into behavioral and cultural causes and links that might uncover the sources of failures seen in the lives of countless individuals and families. No, that’s part of the oppression, and isn’t compassionate. And on and on it goes.

Fortunately, we have Voegeli to shed light on this, unpack the pathologies at work, and, perhaps, point a way forward to the rightful use of compassion.

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