DC Confidential. David Schoenbrod

School of Law recommended.²⁶ The project brought together environmental experts, including me, from across the political spectrum to show how to reform the Clean Air Act and other obsolete environment statutes. One of the experts who worked with me on the air-pollution recommendations for the project was Ross Sandler, my litigation partner at the Natural Resources Defense Council and now my New York Law School colleague. The leaders of the project—Richard Stewart, former chairman of the Environmental Defense Fund; Katrina Wyman, his colleague on the NYU faculty; and I—wrote a book, similarly titled Breaking the Logjam, outlining our recommendations. The book received favorable endorsements from high environmental officials appointed by presidents of both parties.

      When Richard Stewart and I met with people from both parties on Capitol Hill, they praised the project’s recommendations and said they wished that Congress had already enacted them. After all, the recommendations would produce healthier air at less cost. Yet, they also doubted that they could get them enacted. Why? Updating the Clean Air Act to build upon the success of the acid rain program would require legislators to take responsibility for hard choices on how clean to make the air. On the other hand, if they left the act unchanged, they could continue to pin most of the blame for both the dirty air and the burdens that the Clean Air Act does impose on the EPA and the states.

      In sum, leaving the Clean Air Act unchanged was good for legislators but bad for us, their constituents, because a something-for-nothing statute made them look good to us even as they harmed us. And so it remains that Congress last revised the Clean Air Act in 1990, more than a quarter century ago, although we have since learned much about smarter ways to control pollution.

      Congress began down the road toward something-for-nothing legislation in pursuit of laudable ends. The passage of the Civil Rights Act helped build popular support for legislation to deal with other instances of unfairness in our society.²⁷ It was unfair that the poor had to rely for medical care upon the quirks of charity and local government, especially as the costs of care escalated. It was unfair that pollution increasingly poisoned us and our environment. Moreover, the American government undeniably had the capacity to do more to address these problems, as was evident from its outstanding successes. The government had, as already noted, gotten the people through the Great Depression, won World War II, invented the atomic bomb, built the interstate highway system, come to preside over the world’s richest economy, and put humans on the Moon.

      While these earlier successes had not come from using the Five Tricks, Congress would resort to them in dealing with the new challenges of health care and pollution. One reason is that whereas outlawing racial discrimination had required imposing burdens on a distinct subset of voters—bigots—with whom most other voters did not sympathize, financing health care for the poor and controlling pollution would require imposing burdens on most voters.

      Another reason Congress resorted to the Five Tricks is that it had begun finding it tougher to make the hard choices needed to achieve compromise. Its Democratic and Republican contingents, once overlapping in ideology, were increasingly ideologically distinct, as political scientists have found. Moreover, as has also been found, while members of Congress had once communicated with their constituents primarily through broad-based organizations with ideologically diverse memberships, such as the Kiwanis or Elks, legislators were increasingly finding themselves dealing with organizations dedicated to fiercely advancing a particular agenda on a single issue, such as environmental protection, abortion rights, right to life, or lower taxes.²⁸

      Thus, members of Congress prefer to pass something-for-nothing legislation rather than make hard choices for which they would take heat. In writing the Medicaid and Medicare statutes in the late 1960s, Congress left to future Congresses and states the job of raising most of the money needed to pay for caring for the poor and aging in the future. In writing the Clean Air Act and other environmental statutes in the 1970s, Congress left it up to federal agencies and states to impose most of the duties needed to protect health.²⁹

      Congress could get away with something-for-nothing legislation because our government’s past successes made it seem credible. Because our government presided over the world’s richest economy, it could afford medical care for everyone, or so people thought. Because it had sent humans to the Moon, it could make the air absolutely healthy on Earth, or so people thought. Besides, to question such legislation was to coddle unfairness. Democrats and Republicans joined in passing these statutes.

      Although something-for-nothing legislation takes many forms, they all share one essential feature: The current Congress and president leave to some other body—a federal agency, the states, or future Congresses and presidents—the task of defining the burdens needed to actually deliver the benefits. This shifts most of the blame for the burdens that come with delivering the benefits, or the failure to deliver them, away from the members of the current Congress.

      Once federal legislators had gotten away with claiming the credit yet shifting the blame for Medicare, Medicaid, the 1970 Clean Air Act, and other early instances of something-for-nothing legislation, they resorted to such trickery throughout the entire gamut of federal activity (see chapters 4 and 7).

      In designing Congress, the Constitution sought to put a virtuous circle at the center of our government (discussed in chapter 2). Subsequent eras brought many important changes in the structure of American government. In the late 1960s came the trickery and, with it, the illusion of legislation that could produce something for nothing. Judge (now Justice) Stephen Breyer has shown how something-for-nothing environmental statutes produce a “vicious circle,” by telling the EPA to produce benefits by imposing burdens—burdens that the legislators failed to acknowledge in passing the statutes.³⁰

      When the EPA has attempted to implement the statutes and constituents voice objections to the burdens, legislators have pressured administrators not to impose those burdens. This, in turn, means that the agency has failed to deliver the promised environmental quality. As a result, environmental advocates blast the agency and complain to members of Congress, and Congress responds by ordering the agency in yet-more-absolute statutes to protect the environment, still of course without taking responsibility for the required burdens. The result of this vicious circle, as Breyer showed, is that the EPA sometimes fails to stop major environmental harms for modest costs, and sometimes stops trivial environmental harms at huge costs.³¹

      Not only in the environmental arena but in general, something-for-nothing legislation has turned the virtuous circle into a vicious circle, by promising benefits government fails to deliver and burdens legislators fail to forewarn us of. As a result, all sides feel cheated.

      Voters, of course, know that the promises of something for nothing, or very little, are too good to be true, and so we sense that trickery is going on even though we don’t quite understand how it works. The sense that cheating is going on negates the broad agreement on the fairness of a democratic system that is able to, in political economist and professor James M. Buchanan’s thinking, maintain legitimacy despite rancorous politics (see chapter 2). With cheating in the air, people grab for what they can get.

      By using the tricks, Congress fails to perform its function described in chapter 2—to set realistic expectations and thereby provide a context in which society can prosper and its members can individually pursue happiness. To the contrary, Congress tells everyone, in essence, that he or she is entitled to butt in at the head of the line, much as the corrupt officials in The Hunger Games tell each and every combatant, “May the odds be ever in your favor.” The conflicting expectations that Congress creates set up our government to disappoint. No wonder we think our government is broken.

      Moreover, by failing to face up to the inevitable trade-offs between benefits and burdens, Congress fails to educate voters about what makes sense and is fair. Legislators tell us what they are against rather