- The Washington Times
Sunday, October 4, 2020


An occasional interview series with Americans who are chal-lenging the status quo.

What worries James Copland isn’t so much the paper-pushing bureaucrat as it is the ideologue zealot in bureaucratic clothing.

“There was good reason to set this up as a permanent feature of government, getting rid of the spoils system,” Mr. Copland said of the vast federal bureaucracy. “But the person there now tends to be a real true believer — in places like the Consumer Financial Protection Bureau or the Environmental Protection Agency especially — and you wind up with an absence of real public accountability over what is governing our lives.”

Indeed, that zeal to reform, to oversee, has created a regulatory trellis so big it makes everyone likely an outlaw, he says.

“There’s no way people can know everything that is legal and is not,” said Mr. Copland, the director of legal research at the conservative, free market Manhattan Institute for Policy.

Americans now contend with roughly 300,000 rules, regulations and laws, which prompted Mr. Copland to write the book “The Unelected: How an Unaccountable Elite is Governing America.”

Mr. Copland’s villains would be familiar to many Americans, including the swollen ranks of trial lawyers who clutter the courts with lawsuits about coffee temperature, baby powder and other such matters, and agency rulings on whether people will be allowed to cut hair and the volume of water permitted in your toilet.

Mr. Copland said the problem is particularly acute today, but intellectuals have echoed his lament for more than a century. Sociologist Max Weber fretted over a scenario in “which the bureaucracy would rule alone.” Columbia University Law School’s Philip Hamburger criticized the metastasizing administrative law. Even communist revolutionary Vladimir Lenin was exasperated about the weedlike growth of government bureaucracy.

Today’s unelected bureaucrats and self-anointed experts sprout in fertile government soil, Mr. Copland said.

On the one hand, U.S. tort laws have assumed monstrous proportions. On the other hand, bureaucrats gain power because Congress abdicates its lawmaking responsibilities or a chief executive takes an overly aggressive approach with some departments.

Identifying such culprits also means that the problem can be minimized with the tools at hand if there is the political will to do so, Mr. Copland said.

“Tort law predates the founding of the American republic, and we’re certainly not going back to a 1787 style of government,” he said, making it clear he is not talking about a utopia in which the bureaucracy would somehow vanish.

It is also not a partisan development. Whether it is Donald Trump or Barack Obama in the White House, the swollen volumes of federal regulation keep growing, albeit not at the same pace.

In Mr. Obama’s administration, the Federal Register grew by an average of 1,658 pages a week, finishing at a record 95,894 pages in 2016. Under Mr. Trump, the rate of growth has slowed to an average increase of 1,301 pages a week, according to Ballotpedia’s Administrative State Project.

Trimming regulations has been a priority for Mr. Trump, who upon taking office issued Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs.” The order required 1.7 “significant rules” to be rolled back for every new one implemented.

But as the diary of rules and regulations shows, the bureaucracy has become so vast and its coverage areas so complete that it seems to grow on autopilot.

“Trump has tried to slow it down, but it still grows,” Mr. Copland said. “There’s been 60,000 new regulations added. That’s the lowest amount since 1993, but it’s still an addition and we do have a bull in the china shop kind of president.”

Mr. Copland pinpoints the 1998 national tobacco settlement as a turning point in the unholy alliance between trial lawyers and government. In that case, after years of unsuccessful flailing at the tobacco industry in court, a handful of Deep South trial lawyers partnered with ambitious Mississippi politicians and pioneered a massive multistate settlement that doled out hundreds of billions of dollars to states and rewrote smoking laws.

Mr. Copland offers ideas on how to improve the situation without a radical overhaul. He suggested using a bit less of the “Chevron deference,” a Supreme Court principle that defers to the federal agency writing the rules whenever a regulation seems ambiguous, perhaps with more stringent use of sunset provisions.

At the moment, however, a dangerous “end-around” occurs in our lawmaking, Mr. Copland said.

One example is the “sue and settle” tactic in which an advocacy group files a federal lawsuit and the agency or department, often staffed with former directors of the advocacy group, quickly settles on favorable terms for the plaintiff.

Another tactic that grew during the Obama administration used regulatory agents wielding prosecutorial powers to force settlements on companies and then use the settlement money to fund pet projects or groups.

“That leaves you with an apparatus in place where you can spread money to your allies,” Mr. Copland said. Although the settlements are not tax dollars, he said, the pots nonetheless constitute public money.

Then there are the various boards of appointed directors, whose terms may overlap an election. These”quasi-legislative, quasi-judicial” boards exert real power over parts of the media or civil rights, for instance, and operate untethered from any sort of political accountability, he said.

All of this has led to a sort of “new anti-federalism” in which the U.S. system has become inverted, with the lifting of the anchoring notion that those who hold power do so with the consent of the governed, Mr. Copland said.

“And in a lot of cases, people aren’t even aware of it. They don’t even realize what is happening,” he said.

That has a paradoxical effect, Mr. Copland said. While U.S. elections have grown more contentious, and the upcoming presidential election seems more fractious than any in recent history, the consequences of elections are somewhat diminished. Nowadays, the rules are being written not by who is elected but by the unelected bureaucrats they install, he said.

That isn’t what spooks Mr. Copland the most.

“If people like this stuff, then what?” he asked, only half in jest.

There are, after all, winners and losers in all systems.

“You can write about this, you can have all the transparency, and transparency does work to a point,” he said. “But if people like this stuff, then people don’t care.”

• James Varney can be reached at jvarney@washingtontimes.com.

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