DC Confidential. David Schoenbrod

primary job is to execute the statutes legislated, and the judicial branch’s primary job is to apply those statutes in litigation. Statutes once gave the executive more leeway, but to take full advantage of the blame-shifting tricks, the statutes enacted since the 1960s have imposed so many precisely specified duties on the executive branch that it has much-less leeway to rescue us from the bad decisions that statutes make. So, for example, in December 2008 the newly elected president, Barack Obama, asked Congress to pass a bill to stimulate an economy in the depths of recession by putting people to work on “shovel-ready” projects repairing roads and other deteriorated infrastructure. Later, however, he lamented that “there’s no such thing as shovel-ready projects.” The White House reported in February 2014 that the government could devote only 3.6 percent of the $832 billion program to fixing bridges, roads, and the rest of our transportation system. As Philip Howard explained: “The President had no authority to build anything, and most of the money got diverted to a temporary bailout of the states. The money was basically wasted.” Howard showed that the president’s hands were tied again and again by old statutes.²⁶

      Presidents are often tempted to circumvent Congress by usurping the legislative powers that the Constitution assigns to the legislature. In this, commentators on the left and the right see grave danger. For example, on the left, Bruce Ackerman, a prominent progressive professor of law and political science who had vigorously defended the growth of executive power during the New Deal, expressed alarm at more recent changes in our government. In The Decline and Fall of the American Republic, Ackerman noted presidents disregarding the decisions of Congress and daring the courts and Congress to do anything about it. He also predicted that someday extremists would have a chance to get the Democratic or Republican party’s nomination for president. This prediction, published in 2010, gained in credibility during the presidential primaries of 2016. To follow his prediction, Ackerman wrote, “We face new constitutional realities—on the one side, a potentially extremist presidency with the institutional capacity to embark on unilateralist action on a broad front; on the other side, a politicized [military] high command, which has assumed a powerful role in defining the terms of national debate.”²⁷

      Ackerman also warned that although presidents try to dress their unilateralism in high purpose,

      in America, it is not enough to be right. Before you can impose your views on the polity, you have to convince your fellow citizens that you’re right. That’s what democracy is all about. So it makes good sense to require the president to gain the support of Congress even when his vision is morally compelling. He should not be allowed to lead the nation on a great leap forward through executive decree.²⁸

      Nor do the American people want their president to usurp the powers of Congress. Although opinion polls for decades have reflected disapproval of Congress, the public continues to believe that Congress rather than the president should make the major policy choices. I share that belief, because systematic studies show that nations with strong executives and weak legislatures tend to suppress political liberty, go to war more frequently, and suffer from more corruption.²⁹

      So we must fix Congress. At first blush, however, the barriers to doing so seem overwhelming. Although many members of Congress went into politics in the hope of exercising power responsibly, these legislators find that they must engage in trickery in order to have power to exercise. The reason is that many voters want something for nothing and will reject politicians who fail to promise it. So legislators are “running scared,” as the political scientist and professor Anthony King put it.³⁰ Moreover, when they were first elected to Congress as junior legislators, these politicians found themselves in an institution that did business through tricks. They had to go along or become irrelevant. They found that using tricks to get credit and avoid blame was a recipe for getting reelected, and showing other legislators how to do the same was a recipe for getting the power to shape legislation within Congress. In sum, powerful evolutionary pressures have turned Congress into the trick-playing institution that it is today.

      As a result, we can’t simply get rid of the tricks by ousting the members of Congress who join in using them. Their replacements would also feel pressures to deceive voters.

      The 2014 transportation statute neatly illustrates these pressures. The statute might seem to have been a good candidate for stopping the trickery as newspaper articles on the left and the right noted the funding “gimmick” involved. Yet, even voters who read such articles would have seen only a small portion of the sleights of hand at work. And even those who understood all the sleights of hand at play in the 2014 statute would have had scant reason to feel injured by it. The costs that it left to the future added only a tiny bit to the total bill that the Money Trick had already kicked down the road. Besides, no one knew who would end up having to pay that tiny portion of the bill, or who might lose their pension because of the statute or when. In contrast, the contractors and unions that stood to gain from the transportation statute knew they would gain a lot and soon. So, most legislators would have gotten far-more votes by supporting the bill than opposing it.

      Few if any voters would have taken the time to learn about all the sleights of hand in the bill and then criticize a legislator for supporting it. Even if they had, the legislator would have had a pretty-persuasive defense, which might have gone something like this:

      “If I had opposed the bill, I would have been less effective in securing projects to help our district. And, even if I could have gathered enough legislators to slow down the bill, the bills’ supporters would rightly complain that an alternative bill that did not shift blame so much would have had even more trouble passing. We would have ended up wasting time, but probably passed a bill that was just as bad. That’s how Congress works.”

      So we can’t stop the Five Tricks by voting against the reelection of incumbents who have voted for bills that use them. We can, however, succeed in stopping the tricks by calling upon candidates for office to pledge to change how Congress works. DC Confidential proposes new ground rules for the game of politics to block the Five Tricks. As the saying goes, “Don’t hate the players, hate the game.” Or, if you are determined to hate the players, recognize that the best chance of changing their behavior is by changing the game.

      Switching the focus from whether legislators previously supported a tricky statute to whether legislators should stop the tricks will make it far more apparent to voters how the tricks hurt us. The stakes are ten thousand times greater with the Money Trick as a whole than they were with the individual instance of its application in the 2014 transportation statute. With this trick and the four others in regular use, almost all of us can be sure that on balance, the trickery harms us gravely.

      The question then becomes how, despite the powerful pressures that gave rise to the tricks, we can get Congress to adopt new trick-stopping, game-changing ground rules. Archimedes, the most celebrated scientist of antiquity, having shown how a properly designed lever can move any weight, said, “Give me a place to stand on, and I will move the Earth.” The place to stand to stop the Five Tricks of Washington is the vantage point that lets us see clearly the sleights of hand with which members of Congress and the presidents get away with the tricks and how they hurt us. This book provides that vantage point. From here, we can stop the Five Tricks.

      Voters on the left and the right agree that Congress has become ineffective, self-serving, and more beholden to special interests than to the American people. Yet, voters on the left see conservatives as the problem, and voters on the right see liberals as the problem. What neither side sees is that a Congress that lets its members fool the people (and lets the people fool themselves) is the even-more-fundamental problem. Policy analysts on the left and the right agree on substantive policy to a surprising extent, and the electorate is less polarized than those who are active in politics.³¹ Nonetheless, Congress fails to enact such policy because the tricky legislature is stacked against doing what makes sense for us.

      So, while the Left and the Right fight over legislative priorities, the real battle remains unfought. That battle is the struggle between honesty