When youre in session next week. The work is essential and we are grateful for you taking the time to be here with us. The article one initiative is committed to important work. Its worthy of your attention to our purpose is to provide a nationwide nonpartisan opportunity to discuss congress as an institution. We believe now more than ever we most refocus on the founders intended design for the legislative branch. Our aim is to pursue ideas and innovations to restore congress, to its rightful responsibilities which are essential to our Constitutional Order and protection of personal liberties. They were happy to be hosting this great Panel Discussion of professor David Schoenbrod book d. C. Confidential inside the five tricks of washington. At the outset i would note the book features forward by both governor howard dean and senator mike lee. And now let me quickly introduce our panel. All three are very distinguished and accomplished. This is i can assure you the shortened version. David schoenbrod is a professor of law at new York Law School and typically contributes to the editor pages of the wall street journal, the New York Times and other publications. He held an undergraduate degree in mathematics from yale, postgraduate degree in economics from oxford and his law degree from yale law school. We are pleased up with us adam white, from the Hoover Institution and an adjunct professor at the Antonin Scalia law school. He is notable right has been published in many places and is collected at adam j white. Com. He received his undergraduate at the university of iowa and his jd cum laude from harvard law school. Rounding out the panel is former congressman martin frost two serves as the Vice President for the of former members of congress. He served on the house for 26 years and helped many leadership positions, while representing the dallasfort worth area. Hes the author of a book with former coxswain tom davis davis, the partisan divide, congress in crisis. He holds degrees in journalism and history from university of missouri and a law degree from georgetown university. Before i turn over to david i just want to note for all of you that following the panelist remarks will have ample time for question and answer so pleased to be thinking about the questions that you like to ask our panelists. With that, david, the floor is yours. Well, thank you, nate, and thanks to the Federalist Society for sponsoring this event and thank you as well to representatives of frost and professor whyte for participating. Im very much looking forward to the discussion with all of you. When i was a little boy my grandfather taught me to recite the gettysburg address. We here highly resolve that these dead shall not have died in vain, that his nation under god shall have a new birth of freedom and that government of the people, by the people, for the people shall not perish from the earth. With these words, lincoln honored those who died in the civil war. In teaching those words to me, my grandfather honored another soldier, my father, who was at that time laying wounded in france. Lincoln could claim that america already had government by the people, because whereas in england at the time of the gettysburg address, most people couldnt vote because of Property Ownership qualification, almost every american state had abolished it. At that time africanamericans and women could not vote in the United States, but he was calling for a new birth of freedom that ultimately resulted in their having the vote. When i was a young man i was proud to play a small part in this peoples government. That was early in the 1960s, and at that time in American History polls showed that 76 of the voters trust of the government to do the right thing just about always, if not always. Today that number is 19 , and upholding fall and our belief in the government. In washington, does deserve this distress for reasons that began in the 1960s. Previously trust was built on members of Congress Taking responsibility for the consequences of key decisions. In other words, they took credit for the benefits of their decision but also blame for the burdens imposed by the decisions and this would tend to align the interests of legislators and their constituents. Then in the late 1960s, legislators of both parties begin to legislate in new ways that shifted blame away from them, and thereby really undermined government out by and for the people. The blame shifting began innocently enough. By the mid1960s, we saw our government as working wonders. It had worked wonders. It got us to the Great Depression company that won world war ii, and it invented the Atomic Bomb Nuclear energy, built the interstate highway system we now had the stocks economy in the world by far. This was a great government and so necessary wil wanted it to do more. We demand it do more. Things like clean up the environment but also understandably we wanted this government to do so without imposing a lot of burdens on us. And also understandably members of Congress Wanted to satisfy us. And thats what they set out to do. And in the Clean Air Act of 1970, congress promised healthy air without heavy burden. And what they convinced himself would deliver this was something called technology forcing the idea was that if congress had a definite deadline for producing clean air, that would force industry to invent Affordable Technology that would in fact, deliver healthy air without costing too much. This was plausible in the sense that just the Previous Year in 1969, americans landed a man on the moon and congress explicitly said, members expressly said that if they could do that come if they can land a man on the moon, they could make the air healthy on earth. Thats what people believed. Both parties signed on, both parties voted overwhelmingly for the Clean Air Act. But technology forcing did not work as was hoped. For example, to meet the deadline for producing healthy air in southern california, would have required taking threequarters of the cars off the road, and that wasnt going to happen. It begin to happen, members of congress on both sides of the aisle started to privately lobby epa not to do it come not to impose those heavy burdens. Epa by large complied and then congress had publicly blame epa for not cleaning up the air on time. Sound familiar . I might have missed a slide. Thats fine. So once congress began this new way of legislating, there was no going back because the key ability to shift the blame for bad consequences had changed. They could legislate in ways that look to make rosy promises regardless of the impact. They put into the Clean Air Act 940 separate commands to the epa administrator to regulate. Many of these commands require dozens if not hundreds of different regulations. Those were judicially enforceable commands, okay . And they also wrote these commands in ways that are complicated to obscure the responsibility for consequences. So what we have is a fabulously complicated system for regulating air pollution. This is from gina mccarthy, barack obama epa administrator, each sector 1720 rolls that govern each piece of equipment and youve got to be a neuroscientist to figure it out. Thats the Clean Air Act today. And beyond that, theres no personal an incentive on part of members of congress to update it come to simplify it, to make it make more sense because all the blame is either shifted to the epa or the states. So in fact, the Clean Air Act has not been amended since 1990. Thats over a quarter of a century ago, even though there are much better and smarter ways of cleaning up the air. Its left as is, and im blaming both parties for this. Not one party, not the other, both. So as we went from a situation where the interests of constituents and legislators was aligned to one where their interests are in conflict. So well, im against and often the same one say im against regulation killing jobs. This is schizophrenia. Its not legislation. And eyewitnesses to the schizophrenia close because as a lawyer for the defense counsel i brought the cases to get rid of gasoline and as result of this mess, approximately 50,000 of my clients died. And it was going to that experience that drove me out of Environmental Advocacy and into academia because i want to pick out what the heck is going on. And what i discovered comes down to members of congress use five key tricks to shift blame. Now, voters know that politicians are tricksters, or todays politicians are tricksters, so how is it that Congress Gets away with it . Its for the same reason here we are. Its for the same reason that magicians can seem to pull rabbits out of hats. My book is about revealing the flights of hands that let the tricks be seen even though we know tricks are going on. These tricks come through new system of legislating for enacting laws and spending programs that let m legislators and president s of both parties, they begin to use them in the late 1960s and early 1970s so thats the basic thesis of the book. I want to go through these five tricks and explain in a nutshell how they work. One trick is the regulation trick. Previously congress at sometimes adopted rules or regulations on the sales. That gave members of Congress Credit for the benefits of the regulation also blame for the burdens. They also sometimes said to an agency heres a problem, solve it. Becky the credit and the blame to the agency. But what happens with the regulations which began large with Clean Air Act in 1970 is congress that a way to take credit for the benefits but shift blame for the burden. Thats what they did. And so, and the way they do this basically is they enact statutes the grant for a specific restated rights. So congress could say i gave you this, i gave you this right. But they give the job of imposing the duties to deliver on the right to the agencies so the agency gets the blame for the burdens. So they end up shifting the blame to the agencies. Thats the sleightofhand. Another trick is the money trick. It begin in so enough in the later 1960s. Previously congress generally raised the revenue needed to pay for the things they promise like tax cuts are very social programs that people like. Occasionally there were big deficits like during the Great Depression, during wars, that congress usually first course afterwards intended to pay things off. But in the later 1960s, congress began on a course of systematically and on largescale running deficits in a way that deficits, with current policy, which is keep going up into the sky. This effectively, it allows congress to shift the blame for the burdens needed to pay for these goodies to their successors in office. So basically what they are doing is kicking the can down the road, as people here on male color. What is the sleightofhand . Sleightofhand that makes this work is that Congress Makes the benefits very tangible, very concrete. So youre going to get a letter every year saying your Social Security benefits are going to be this much money down to the dollar. But what about the cost of all these things . They hide that. They hide that. So its, you know, they take credit for the good stuff, avoid blame for the bad stuff. Both parties. Federal mandate trick. Previously, before the late 1960s congress had required states to honor Constitutional Rights and to meet basic conditions when they accepted federal grants. If the state took a federal grant to boulder highway, they could use crumbly concrete as to use good concrete. Fast not a problem. So that when members of congress, they could take credit for paying for the highway but they also had to take blame for raising the money to give the grants to the states. Members of congress happened upon a way to get credit and shift the blame to the governors and mayors and other state and local officials, basically what ends up happening is that the congress invites the states at the dinner and leaves them to pay for the bill. The Clean Air Act illustrates this yet again. Congress got the credit for clean air, but it imposed upon the states the burdens, the job of imposing the duties, the burdens needed to do much of the cleanup. Credit for congress, blame on governors and state legislators. Whats the sleightofhand . Indicates that the Clean Air Act, states must regulate as the federal epa dictates or else lose their federal highway grants. For any governors to give up a highway grant, is political suicide. You might ask yourself the question, wouldnt it be political suicide for members of congress to vote for a provision that says were going to threaten to take what estates highway grant likes the sleightofhand is at this. Congress does a vote on that stuff. Dozens and dozens of roll call votes on the Clean Air Act, nary a one was on punishing the state. So congress washes its hands of blame. Congress had previously loan guaranteed the payment at some private debt like, for example, the federal Deposit Insurance Corporation guarantee of the small deposits in banks. Initially they guarantee was for deposit up to 2500. The reason for that low limit was so that bigger deposits, bigger depositors would know the money was at risk, which would mean that you wouldnt put your money in a bank that was doing risky lending or was overleveraged. Which would indicate that bank safe, but starting in the late 1960s congress implicitly began to guarantee the deaths, all the debts they can spot of the too big to fail banks. So think what that did. That let these banks borrow money on the cheap, because theyre backed by the federal guarantee, on the cheap even though they were engaging in risky lending operations, even though they were leveraging higher and higher and higher, borrowing more and more money which makes ability to repay the debt more questionable. This exploded upwards the profits of these too big to fail institutions, in good times. But in bad times it led to the financial crisis that caused such misery in 2008. Millions lost their homes, as you all know. And lost their jobs and retirement savings. Very sad. So the public necessarily get angry about it, so we got doddfrank. Let me tell you, the debt guarantee trick continues under doddfrank. Its still going on. So whats the sleightofhand . The sleightofhand is of this. Congress pretends the government is not guaranteeing these debts but if you look at the Interest Rates on bond market and you know perfectly well they are guaranteeing these debts. The lenders and borrowers know these debts are, in fact, guaranteed. Congress plays tricks when it comes to war. During that Country First 160 years we never went to war without Congress Taking responsibility either by declaring war or more commonly by approving the war explicitly by statute. In 1950 president truman put the troops in korea saying it was a human approved peace action. Some peace action, right . Some 30,000 americans died. We have have vietnam and cambodia and all that in the early 1970s. The public a very angry and that force congress to pass the war powers resolution, which in theory forces of the president to come to congress and get congress to vote on the hostilities. Except there is a loophole. And the loophole allows members of congress and president s to avoid voting on our truth being involved in combat if its controversial. For example, libya. Members of Congress Went to obama and said please go into libya, get rid of that Gadhafi Cabot dont make his foot on it. When she. Then theres a congress had the nerve to criticize obama for not obeying the war powers resolution. Terrible. So we end up in wars when we really havent looked into and abated as a country what makes sense. And sleightofhand is congress cant pretend to want to be responsible because they had the war powers resolution, and they blame the president for disobeying it. Think about the consequences. This means no matter how the war comes out, if its popular the members of congress can march in the victory parade. If its unpopular they put the entire blame on the president. Now, president s have been in on the tricks, to come with a war trick the president unilaterally gets to treat the army as his army. And on the other tricks, president s take credit and shift blame pic you could even say the president is the trickster in chief. Talking about president s of both parties. So what can we do about it . My key advice is this. Dont hate the player. Hate the game. Individual legislators are stuck. If any one legislator or in one party gets up a trick, they risk losing to the other side. So what we need to do is to change the rules of the game and that would help to return the people to power, make it a a government of four and by the people. Congress and the president could commit themselves to ground rules by statute or let me give you an example of how this could happen. The money trick. Think about the truth in lending act. It makes it a crime or lender like a bank bank to lend you money without getting a piece of paper that states exactly how much youre going to have to pay every month to pay off the loan. Lets apply the same thing to congress. Under the honest deal act. Here we would get a piece of paper, along with that envelope that has the letter that tells you how much her Social Security is going to be, there should be a letter in their saying well, for government to make ends meet in the long run, this is how much per year the average family will have to be either in terms of tax increases or spending cuts. And by the way, this is how much