DC Confidential. David Schoenbrod

decisions on behalf of the American electorate. As one visitor from overseas, the French aristocrat Alexis de Tocqueville, wrote in 1835, because “the people participate in the drafting of the laws by the choice of the legislators, in their application, by the election of the agents of the executive power; one can say that they govern themselves.”²⁶

      Such government was a source of good will and pride. At Gettysburg, President Abraham Lincoln celebrated this government with his ringing conclusion that “we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”²⁷

      Perhaps because this passage is so familiar, perhaps because we hear it in an era of tricky government, some are prone to dismiss “government of the people, by the people, for the people” as a Fourth of July pie-in-the-sky aspiration. For Lincoln, however, this people’s government was a present accomplishment rather than a distant aspiration. Otherwise, he could not have resolved that it “shall not perish.” It was a people’s government because voters could hold their representatives accountable at the polls and the voters included folk of modest means. In contrast, in Britain at the time, a property-ownership requirement kept the overwhelming majority of adult male citizens from voting. On this side of the Atlantic, almost every state had abolished the property qualification for voting. Thus, it was quite ordinary folks, We the People, who supervised high officials. In Lincoln’s view, what was missing from the people’s government was the inclusion of people of all races. Lincoln in the Gettysburg Address framed the Civil War as a struggle to pair the liberty that comes from accountable government with equality.²⁸

      Lincoln’s celebration of the people’s government reached poor people as well as rich ones. Consider, for example, the teachings of Jane Addams, who established Hull House in Chicago to help poor immigrant families. Addams taught the aspirations and personal responsibility needed for people to move from the back streets to Main Street. In particular, she told poor immigrants that they had no less capacity for leadership than their supposed betters. In her view, ordinary people are entitled to the dignity of their own values and high officials should be accountable to them no less than to the elites. For this reason, she particularly revered Abraham Lincoln, whom she described as having taught that “democratic government, associated as it is with all the mistakes and shortcomings of the common people, still remains the most valuable contribution America has made to the moral life of the world.”²⁹ Jane Addams won the Nobel Peace Prize in 1931.

      One of Addams’s early pupils was my mother’s father, Louis Marschak. My grandfather was six years old when Hull House opened in 1889. He, his six brothers, and his one sister frequented it. It was Hull House, I suspect, that taught my grandfather to revere the Gettysburg Address about one score and seven years after President Lincoln delivered it. Its message of equality and democracy must have had special meaning to my young forebear whose poor Jewish family had recently faced oppression in Europe. For him, “All men are created equal” and “Government of the people, by the people, and for the people” were not just pretty figures of political speech. When I was a tot and my own father was at war in Europe, my grandfather taught me to recite the Gettysburg Address by heart. I didn’t understand the words but knew they were sacred.

      If you think “Government of the people, by the people, for the people” presumes that voters have more rationality than they actually do, consider this finding of professors Page and Shapiro: “Despite the evidence that most individual Americans have only a limited knowledge of politics (especially of proper names and numbers and acronyms), [the data] reveal that collectively responses make sense; that they draw fine distinctions among different policies; and that they form meaningful patterns consistent with a set of underlying beliefs.” They qualify this conclusion with the caveat that politicians can, by misinforming voters, sabotage their capacity to make sound judgments.³⁰ Misinforming voters is the function of the Five Tricks.

      Photograph taken from the bio. Web site, http://www.biography.com/people/jane-addams-9176298.

      FIGURE 5. Jane Addams in 1892, around the time my grandfather frequented Hull House.

      Legal philosopher Professor Jeremy Waldron neatly captured the essential point of the current chapter when he urged us to

      see the process of legislation—at its best—as something like the following: the representatives of the community come together to settle solemnly and explicitly on common schemes and measures that can stand in the name of them all, and they do so in a way that openly acknowledges and respects (rather than conceals) the inevitable differences of opinion and principle among them.³¹

      This passage describes Congress’s most fundamental duty under the Constitution: to forthrightly decide issues of legislative policy and, as a consequence, engage in open debate. The open debate widens the information available for making decisions and insures that our elected representatives take personal responsibility for those decisions. This duty is so fundamental because its performance helps citizens who have differences of “opinion and principle” accept those decisions and get along with one another.

      Open debate is the process through which Congress generally worked from 1789, when it first convened, through the early- to mid-1960s, a period of more than a century and a half. The differences of opinion and principle were not always pretty—in fact, sometimes, they were downright ugly—but the open debate helped.

       CHAPTER 3

       When the Five Tricks Began

       For too long, Washington has operated on the “something for nothing” principle. Both parties have promised their constituents the world.

      —FORMER NEW YORK CITY MAYOR MICHAEL BLOOMBERG (2011)¹

      In 1970, Senator Edmund Muskie of Maine had a problem. He had been the Democratic Party’s nominee for vice president in 1968 and was a leading contender for its nomination for president in the 1972 election. His hopes of taking the White House soared with the surprisingly large turnout for the first Earth Day on April 22, 1970. This surge in concern for the environment helped Muskie because he was known as “Mr. Environment” in Congress. This distinction came from his having authored key environmental legislation, especially on air pollution. Therein lay his problem.²

      Only three weeks after Earth Day, Ralph Nader charged that Muskie’s air pollution statute sold out the public’s health because of his “preoccupation with the 1972 election.” According to Nader’s study, Muskie’s statute shirked the “hard choices” needed to protect the public’s health by leaving them to bureaucrats under the control of the White House and members of Congress working in cahoots with industry. In Nader’s words, the government “starting with Senator Edmund Muskie” had failed to clean the air.³

      Muskie’s statute had neither defined the rights that people have to clean air nor the duties businesses have to emit less pollution. In it, Congress had left those critical choices to administrative officials. That is also what it had done in many previous statutes, saying to an agency, in essence, “Here’s a problem, solve it.” By shunting hard choices to an expert agency, such statutes often give legislators political cover,⁴ but Muskie stood exposed to Nader’s attack because it came at a time of escalating environmental concern and was directed against a leading candidate for president.

      To keep his title of Mr. Environment and his hopes for the presidency alive, Senator Muskie needed a statute that would give him credit for cleaning