When Norman Ornstein and Thomas Mann released their annual Vital Statistics on Congress this month showing that the 112th Congress passed a record low number of laws, tongues clucked among Washington’s class of chatterers and puritans about dysfunction on Capitol Hill. “The least productive Congress ever,” announced The Washington Post. But when James Madison diagnosed the ills of the American political system on the eve of the Constitutional Convention, paralysis was not among them. The problem was a limitless capacity to pass legislation.
As the Senate filibuster braces to receive what may be a mortal wound via the invocation of the “nuclear option” on executive nominees, there are at least 413 reasons to wish the dilatory tactic ill—and one compelling constitutional reason to keep it. The former is the number of times cloture motions to end debate have been filed since 2007 alone, a measure of the collapse of comity in an institution that used to run on that quality. The latter is that the filibuster may—or at least can—now function as a constitutional prosthetic, performing the seasoning function the Senate was initially intended to fulfill but which the frenzied pace of modern life has subsumed.
Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the monied few, over the industrious and uninformed mass of the people. Every new regulation concerning commerce or revenue, or in any manner affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow citizens.
– James Madison, Federalist 62, 324
Recent posts on this blog have addressed the perennial “James Madison, nationalist or states’ righter” question. It’s probably common ground, though, that Madison’s views were driven by his constant pursuit of a republican, deliberative form of government, as opposed to the nominally democratic politics of a “mutable government.” The difference is brought to mind by an illuminating piece by my AEI colleagues Kevin A. Hassett and Alan D. Viard on the reclassification of business expenditures as foreign income taxes, see Sec. 901(i)(1), reg. section 1.901.2; legislative proposals to address percentage depletion allowances granted to most extractive industries, see Sec. 613(b)(1)-(7), but not—or in lower and varying amounts—to oil companies, Sec. 613A(a)-(d); and “Section 199” domestic production activities deductions with respect to major oil companies, see Sec. 199(d)(9). Hassett & Viard, “Big Oil, Targeted Taxes, and the Rule of Law,” Tax Notes (Apr. 9, 2012), 217.
Missed that, didn’t you? Too bad, because the piece is a splendid illustration of the walking, talking, wholesale corruption of the rule of law that is our “government.” Let us count the ways: