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Once and Future King

Frank Buckley was kind enough to send me a copy of his new book, The Once and Future King: The Rise of Crown Government in America, and now seems like an appropriate time to post my review.

Buckley argues persuasively — and surprisingly — that the Founders intended to establish a semi-parliamentary form of government in Philadelphia in 1787. But the rise of democracy, especially the popular election of the president, empowered the executive and led by the 1830s to a new form of government: separation-of-powers presidentialism. Most political scientists still perceive the U.S. system as one of extreme checks and balances, but Buckley argues that we have now progressed to yet another constitutional order, marked by executive dominance, the “elective monarchy” that the Founders feared so much. The impetus for this change has been the rise of a vast regulatory apparatus: “Modernity, in the form of the regulatory state, is the enemy of the separation of powers and diffuse power, and insists on one-man rule” (p. 6).

When the Constitutional Convention met in Philadelphia, they first dealt with a “Virginia Plan” that had the president elected by Congress, the Senate chosen by the House from states’ nominees, and no executive veto. The plan was clearly parliamentary. The changes that occurred, to an electoral college process for the President, to an executive veto, and to state legislative selection of the Senate, were largely the product of compromises between states’-rights and nationalist factions at the Convention. The Framers did not anticipate direct popular election of the President, and in fact they thought that in most presidential election years, no candidate would win a majority, throwing the choice to states’ House of Representatives delegations. Some delegates claimed that a directly elected President would be a dangerous seed of demagogic monarchy.

F.H. Buckley

F.H. Buckley

In the 19th century, the progress of democracy caused the British and Canadian constitutions to cross paths with the American one. In the U.S., the electoral college became toothless, and Presidents were effectively directly elected by the people. In Britain and Canada, the monarch and the upper house lost legitimacy as nondemocratic bodies, and electoral reform in the U.K.’s House of Commons gave it democratic legitimacy and the upper hand in any battles among the branches. By the time Canada adopted its institutions under the British North America Act of 1867, they were consciously copying a fused legislative-executive, parliamentary system that had emerged in Great Britain, what Walter Bagehot referred to as “the efficient secret” of the British constitution. While the U.S. now featured strong separation of powers, Britain and Canada concentrated power in the Prime Minister.

Today, political scientists still teach that presidents are less powerful than prime ministers, because their legislative role is weak. The U.S. system has more veto players, and as a result policy change is slower.

Buckley acknowledges the logic of the traditional political science approach, but his story doesn’t end there. (more…)

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This question, made famous during the Watergate hearings, seems to be the driving question these days, whether one is speaking of the clumsy rollout of the Affordable Care Act, the number of people in the independent insurance market who will in fact lose their coverage, or the NSA’s surveillance program. In Dana Milbank’s words (Washington Post):

It stretches credulity to think that the United States was spying on world leaders without the president’s knowledge, or that he was blissfully unaware of huge technical problems that threatened to undermine his main legislative achievement. But on issues including the IRS targeting flap and the Justice Department’s use of subpoenas against reporters, White House officials have frequently given a variation on this theme.

Question: What did Obama know and when did he know it?

Answer: Not much, and about a minute ago.

Milbank concludes:

On one level, it would be reassuring — and much more credible — if the White House admitted that Obama is more in the loop than he has let on. On another level, it would be disconcerting: Is it better that he didn’t know about his administration’s missteps — or that he knew about them and didn’t stop them?

Eugene Robinson (Washington Post) also finds the claims of ignorance difficult to accept, albeit with a somewhat more ominous alternative:

Either somebody’s lying or Obama needs to acknowledge that the NSA, in its quest for omniscience beyond anything Orwell could have imagined, is simply out of control.

Both could be true, of course. The growing scale and complexity of government creates enormous problems of oversight and political control. Even if a well-intentioned and moderately intelligent president attends national security briefings and takes copious notes, there are distinct limits to how much one can know and how effectively one can alter the course of the bureaucracy.

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The IRS has been taking flak for its treatment of right-leaning groups seeking recognition as tax-exempt “social welfare” organizations under clause 501(c)(4) of the Internal Revenue Code. As it happens, I have some personal experience with IRS scrutiny of 501(c)(4) applications. I was on the Board of the Free State Project (FSP) when the FSP applied for 501(c)(4) status in 2007-8. Our application was denied. We appealed, and the appeal was denied.

The reasoning the IRS gave us is that the FSP was simply a political action group trying to benefit the Libertarian Party. Nothing could be further from the truth. The FSP has never run or endorsed candidates or given money to any candidates. The FSP has never endorsed specific legislation or lobbied any elected or appointed official. More importantly, the FSP has never had any ties, formal or informal, with the Libertarian Party. Plenty of FSP participants reject electoral politics altogether. To my knowledge, the FSP has never received even a single donation from any foundation, government, party, or any other corporate entity whatsoever.

The FSP clearly qualifies as a social welfare organization, if not a public-benefit, charitable organization (“501(c)(3)”), according to the IRS’s own rules. The point of the FSP is to promote New Hampshire as a destination to people who are philosophically classical-liberal or libertarian. That’s it. The FSP spends money on advertising and promotion, maintaining a website, and holding two annual educational-social events in New Hampshire. The FSP believes that is an organization operated for the public benefit, especially with the educational programs held at its events. However, even if the IRS does not buy that interpretation, it is clearly an organization intended for the social and educational benefit of philosophic libertarians. It is clearly not a political action organization. Indeed, had the FSP applied for section 527 recognition, it probably would have been denied, leading to the absurd likelihood that the IRS would have considered the FSP a nonprofit fitting into no nonprofit category.

Since then, the FSP has operated just fine as a generic nonprofit corporation with no IRS tax status; since the organization’s expenditures always exceed its merchandise sales, it does not have any tax liability. However, 501(c)(4) status would have been a useful designation and signal to donors of the organization’s credibility.

Conservatives would like to find Obama’s fingerprints on the current IRS scandal, but they are unlikely to do so. Career bureaucrats at the federal agency that collects taxes from Americans are unlikely to be friendly to American antitax groups. The IRS’s hostility to antitax groups will manifest itself in a variety of ways, but that hostility is apparently nothing new or even particularly surprising. That doesn’t mean it isn’t wrong, of course.

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