ONCE again, we stray from “The Controversy” over evolution and creationism, in order to deal with our larger concern — preserving the values of the Enlightenment, upon which our civilization depends. We can’t forget that if we lose our freedom, there isn’t much else that matters. Therefore, dear reader, we beg your indulgence as we present our humble thoughts about saving the world.
Let’s face it, Congress is broken almost beyond repair. But your Curmudgeon has a solution. It’s based on one of James Madison’s key ideas which was used in drafting the Constitution — checks and balances. As he wrote in Federalist 51, with bold font supplied by us:
TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.
Ambition must be made to counteract ambition. … It may be a reflection on human nature, that such devices should be necessary to control the abuses of government.
Sounds good, and it worked for a while. The House and the Senate provide a check on each other, the President can veto what they sent him, Congress can over-ride his veto, and the courts can declare laws unconstitutional. Yes, it sounds good. But it’s failed.
Experience teaches that we can’t rely on the common sense, patriotism, and disinterested benevolence of politicians. To be realistic, we need to rely on their self-interest — there is no stronger motivation. At the moment, their self-interest lies only in furthering their careers, not in passing wise and frugal legislation. But we can fix that.
We have a plan to restrain Congress. This is outrageously immodest, but we suggest that Madison — were he around to think about our proposal — would probably approve.
Our idea is to deploy the genius of the free enterprise system to check Congress’ greed, ambition, and insanity. There is a force in the US which was unappreciated in Madison’s day, but it has grown since then. We’re talking about trial lawyers. Today — except for the IRS — there is no force more feared. If the trial lawyers could be unleashed on Congress, the liberty of the people would be assured.
But can members of Congress be sued? Not now, because of the ancient doctrines of sovereign immunity (the sovereign is immune from civil suit or criminal prosecution), and parliamentary privilege (members of the legislature have protection from civil or criminal liability for actions done or statements made related to their duties as a legislature). Those and probably other doctrines assure that — unless caught on tape taking bribes — members of Congress can't be prosecuted or sued for doing their jobs as legislators, no matter how incompetent or deranged they may be, and regardless of the disastrous consequences of their enactments.
However, the government can waive its immunity, and there is precedent for doing so. For example, the Federal Tort Claims Act is a specific waiver of immunity which allows the US to be sued in certain limited situations (presumably, that applies if you’re run over by a mail truck).
Okay, what we propose is that Congress should pass a law waiving their own immunity — exposing the government and themselves as individuals to liability in private suits where they’ve been proven to have committed certain specific acts. What acts?
We’re thinking of situations where they vote for a law, program, treaty, or expenditure while knowingly: a) under-estimating the cost; b) over-estimating the benefits; or c) overlooking the adverse consequences. Also, but in this situation knowledge is presumed: d) ignoring the limitations on their constitutional authority. Further, even without a vote, if they knowingly e) encourage or protect a bureaucratic policy — Hi, Barney! — that has harmful consequences. We’ll need exemptions, especially for national defense. Don’t worry, this isn’t final yet.
By “knowingly,” we mean that the clearly-stated reasons for avoiding such action must have been part of the deliberations at the time the action was taken, and those reasons have been confirmed by future events. We have no wish to punish legislators for the unforeseen consequences of their actions. Except for acting outside their constitutional powers, we intend for this to apply only in cases of harmful behavior which was warned against, but was recklessly undertaken anyway, presumably for ideological reasons, or for personal gain (political or financial).
In a typical case, a member of Congress would be sued when he was warned that a vote for Law X would result in Injury Y, but he voted for Law X anyway, and Injury Y happened, as predicted. (Example: a stupid, ideologically-driven luxury tax on yachts predictably put the boat building industry into a depression.)
The penalty to be paid by the individual member of Congress would be: a) immediate loss of his job; b) loss of his pension; c) permanent bar to future government employment; and d) personal liability for the fees awarded to the successful attorneys. If the politician successfully appeals, then he can avoid personal liability, keep his pension, and he can work for the government again; but he’ll still be out of office (no back pay either). If he wants to get into Congress again, he’ll have to seek election next time around.
What’s in it for the trial lawyers? A lot! If they win a case they get a flat fee of $10 million for each member of Congress against whom they get a judgment — paid by the treasury if the politician can’t afford it. If some crazy bill passes and turns out to be a disaster, there will be a few hundred defendants and the promise of a really huge award. That should be sufficient incentive, but if more is needed, we’re not averse to increasing it. Yes, that’s a lot of money for the lawyers, but look at the benefit to the nation. For a mere $10 million (or whatever it takes) we get rid of a congressional slime-ball, and we also send a message to his colleagues. Each successful case is a bigger bargain than the Louisiana Purchase!
Will Congress enact such a law? Obviously, the current Congress won’t — definitely not if it applies to their past activities. But this proposal could be part of the opposition’s platform. It ought to have considerable appeal to the voters.
What should it be called? We haven’t worked that out yet. It should be given a name with voter appeal — something simple, not academic or legalistic, and it shouldn’t have too many syllables. The name should clearly express the idea: Make ’em pay! Hang ’em high! Feet to the fire! That kind of thing. Don’t like those? That’s okay, we’re still mulling it over.
Clearly, this idea isn’t in final form. It needs a lot of additional refinement. Although it’s only in its earliest stage, we’re putting it out for exposure. So think about it. And remember, you saw it here first.
Copyright © 2009. The Sensuous Curmudgeon. All rights reserved.