CHAPTER 5

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STRANGE BEDFELLOWS

Democracy and Special Interests

Are the three constitutional branches necessary to our democratic public? Absolutely. Are they sufficient to it? Absolutely not. Remember, for most people most of the time and in most situations, it is the members of the Fourth Branch—the unelected government workers—who are the government. They implement the policies created and adjudicated by the three constitutional branches. What is more, although they do not decide and decree policy, they influence it. The Constitution assigns the Senate the roles of advising on and consenting to most presidential appointments, but members of the unelected federal government do far more advising on a daily, ongoing basis when it comes to providing the subject-matter expertise and feedback necessary to formulate and modify policy.

As we discussed in chapter 4, our nation is in the throes of a legitimation crisis, which is being fed by a political culture that too often willfully substitutes assertion for fact, that denigrates experts and expertise, that speaks of fake news and alternative facts, and even denies that truth is truth. Much of the unelected government works in agencies created under the Executive Branch, but three of the most important fact-finding agencies, the Congressional Budget Office (CBO), the Government Accountability Office (GAO), and the Congressional Research Service (CRS), are staffed by unelected government workers—subject-matter experts—under the Legislative Branch.

The last mentioned of these, the CRS, is probably the least familiar of the three congressional fact-finding agencies, but it was the first to be established. It was born in 1914 of the same Progressive Era momentum that introduced many of the civil service reforms. Originally called the Legislative Drafting Bureau and Reference Division, it was established as a unit of the Library of Congress. These days, it is important to remind ourselves that America’s premier national library is the Library of Congress, created in 1800 as a factual reference resource for the Legislative Branch. The need for lawmakers to have access to facts, fact-based knowledge, objective data, and the authoritative wisdom of the world was recognized very early in the nation’s history. Although the library was founded in 1800 by legislation signed by the second president of the United States, John Adams, it had been proposed by James Madison in 1783, the year the American Revolution ended. The unit created in 1914 was renamed the Legislative Reference Service in 1946 and became the CRS in 1970.

The mission of the CRS is to supply Congress with research and analysis on current and emerging issues of national policy. At the request of individual members and committees, it offers confidential research assistance, but always within the framework of balance, accuracy, and nonpartisanship. The CRS deliberately declines to make legislative or policy recommendations to Congress. Instead, it does no more or less than provide legislators the best possible information and analysis on which to base policy decisions.

The second fact-finding agency created under Congress was the General Accountability Office (GAO), established by the Budget and Accounting Act of 1921 (Pub.L. 67-13, 42 Stat. 20). At its creation, the mission of the GAO was to “investigate, at the seat of government or elsewhere, all matters relating to the receipt, disbursement, and application of public funds,” and it furnished to the president as well as Congress both reports and recommendations, with the objective of achieving “greater economy or efficiency in public expenditures.”¹ Today, the GAO reports directly to Congress, supplying it with financial audits, program reviews, investigations, legal support, and policy analyses to aid legislators in overseeing federal programs and operations. The GAO is staffed by professional analysts, auditors, lawyers, economists, information technology specialists, and investigators who are pledged to do their work in an objective, professional, fact-based, nonpartisan, and nonideological manner.

The third agency, the Congressional Budget Office (CBO), was created by the Congressional Budget and Impoundment Control Act of 1974 as a nonpartisan agency to provide budget and economic information to Congress. The agency’s mission is to produce “independent analyses of budgetary and economic issues to support the Congressional budget process.”² The CBO creates reports, cost estimates, and forecasts relating to proposed legislation, but, like the CRS and in contrast to the GAO, scrupulously refrains from making recommendations.

Although most of the unelected government implements and administers laws and policies created by the elected branches, it is the research agencies, such as the three directly yet independently serving Congress, that, to me, most fully embody the spirit of the Fourth Branch. Its members serve fact and truth, not any special interest, political party, or elected official. As I see it, such agencies go to the core of the reform movement that created so much of the unelected government in the first place.

One of the paradoxes of democracy is that building a government of, by, and for the people, an elected government, carries the risk of creating officials less interested in making the right decisions than in making decisions that please those who elected them or positioned them for election by exercising financial and political influence. The French diplomat, historian, and political scientist Alexis de Tocqueville is best remembered for his book Democracy in America (published in two volumes in 1835 and 1840 and a best seller ever since). In it, he provided a remarkably insightful analysis of special-interest politics and policymaking in the United States. The discussion is still highly relevant today. Tocqueville defined what he called the “principle of association” as the very engine of American government and society. Although Andrew Jackson rode into the White House as what some historians have called the “people’s tribune,” he took the nation into what Tocqueville described as an “Age of Association,”³ an epoch of government less by the people and for the people than by the special interests and for the special interests. It was an era from under whose long shadow we have yet to emerge.

Although, in the Jacksonian era, it was plantation-based agriculture in the South that spawned the first political lobbies (which were devoted to promoting legislation favorable to the slave economy), the industry that employed the first business lobbyists was arms manufacturing. It is an industry whose mastery of the lobbyist’s art remains in our own time unmatched. Samuel Colt, who invented the first really practical and commercially successful revolver in the 1840s and then applied innovations in assembly-line manufacturing to produce it cheaply and in huge quantities, hired lobbyists during the 1850s to pass out pistols as gifts to lawmakers—including one to a congressman’s son, age twelve.⁴ It was about this time that the verb to lobby came into general use as a word meaning to influence legislators “in the exercise of their functions by frequenting the lobby” of their legislative building. The Oxford English Dictionary records the earliest printed use of lobby in this political sense in 1850.⁵ The earliest use of lobbyist, according to the same authority, came in 1863, when a popular American magazine made reference to a “Representative listening to a lobbyist.”⁶

Reformers and advocates of “good government” and “better government” have been crying out Enough already! practically every year since the end of the Andrew Jackson administration in 1837, but as the second decade of the twenty-first century approaches its close, lobbying is a bigger, more powerful, and more influential business than ever. I am in no position to provide a full treatment of the subject of lobbying, but all you really need in order to get an idea of the extent of this special-interest activity in our government is to know that 11,272 registered US lobbyists took in a total of $2.59 billion in 2018.⁷ The three top spenders on lobbying that year were the US Chamber of Commerce ($69,125,000), the National Association of Realtors ($53,778,430), and the Pharmaceutical Research & Manufacturers of America ($21,778,430).⁸ The three politicians who received the highest contributions from lobbyists in 2018 were Sherrod Brown (D-OH; $687,542), Bob Casey (D-PA; $615,513), and Jon Tester (D-MT; $591,549).⁹ The top three recipients among political committees for that year were the Democratic Senatorial Campaign Committee ($2,293,207), the National Republican Senatorial Committee ($1,971,803), and the National Republican Congressional Committee ($1,590,208).¹⁰

On its face, lobbying looks and feels unfair and antidemocratic. Yet it is rooted in the First Amendment and was formally introduced by James Madison, author of the Bill of Rights and one of the prime advocates of divided government and the separation of powers, both original cornerstones of our democracy. Madison recognized that competing “interests”—that is what he called them, without the adjective special—existed within the new nation. He knew that these interests could not simply be suppressed. Indeed, he believed they were both “vibrant” in and “central” to democracy, even if they posed a threat to the very principles of that form of government. The text of Madison’s First Amendment guaranteed that Congress would not interfere with freedom of religion or with “freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” All of these areas of noninterference, especially the right “to assemble”—to organize—ensured that political lobbying would be an absolute individual right in the United States.

Now, lobbying was not an original invention of James Madison. No one knows when the lobbying concept entered history, but it was certainly long before American independence, and it was a feature of American colonial government many years before our revolution. “Associations,” as special-interest groups were called in the eighteenth and early nineteenth centuries, were not created by any law—either British or American—but were among American government’s very first structures. In the United States, they even predated the formation of political parties.

Today, lobbying is the highly sophisticated profession of influencing the actions, policies, and decisions of elected officials. It is done not with persuasive debate but with campaign cash—the kind of money mentioned in the preceding paragraph. Who has that kind of money? A small number of individuals, special-interest lobbying groups, and large corporations. Freedom of speech, guaranteed us by the First Amendment, includes the right to support candidates for office. Federal law currently limits to $2,700 the amount an individual may contribute to each candidate in any given federal election. In addition, an individual may contribute up to $5,000 per year to a PAC (political action committee); up to $10,000 per year to state, district, and local party committees (combined); and up to $33,900 per year to the national party committee. There is an individual yearly limit of $101,700 to additional national party committees formed for special purposes.

Campaign law prohibits most direct corporate contributions to candidates, but there are ways around this prohibition through the use of special PACs variously organized under sections 527, 501(c)4s, 501(c)5s, and 501(c)6s of the Internal Revenue Code. In addition, as 2012 Republican presidential candidate Mitt Romney famously responded to a protestor who shouted out “Corporations!” when he mentioned raising “taxes on people,” “Corporations are people, my friend.”¹¹ Poor Mitt was mercilessly mocked for the comment, but there is legal truth in it. US courts have consistently extended to corporations many of the constitutional protections afforded to human beings. This has enhanced the legal theory of “corporate personhood,” which holds that a corporation (sometimes referred to in legal contexts as a “corporate person”) has certain of the legal rights and certain of the legal responsibilities accorded to “natural persons” (that is, human beings).

The theory of corporate personhood was put to an extraordinary test in 2009–2010 when the case of Citizens United v. Federal Election Commission (08–205, 588 U.S. 310) was argued before the US Supreme Court. In a decision handed down on January 21, 2010, the court held (5–4) that the rights guaranteed to natural persons by the First Amendment—in this case, most pertinently, freedom of speech and the press—apply as well to corporations (as “corporate persons”). Independent political expenditures made by corporate persons were judged to constitute the equivalent of the expression of free speech in natural persons.¹² (“Independent political expenditures” are campaign communications that advocate for or against a candidate, but are not made in cooperation with, consultation with, or at the request of a candidate or a political party.) The Supreme Court decision originally applied to a nonprofit corporation, Citizens United, incorporated as a conservative nonprofit organization, but the principles articulated in the decision were immediately extended as well to for-profit corporations and to labor unions and other legally constituted associations. By equating independent political expenditures with freedom of speech, the Supreme Court decision has allowed unlimited election spending by individuals as well as corporations.

As Chris Cillizza observed in a 2014 article for the Washington Post, the Citizens United decision “drastically re-shaped the political landscape.”¹³ For example, before the decision, in the 2008 general election year, independent political expenditures from corporations and individuals were a bit over $110 million. In the midterm election year of 2010, the year of the Citizens United decision, they nearly doubled to just under $220 million. Two years later, in the next general election year, 2012, independent expenditures were nearly $1 billion and, in fact, constituted the vast majority of political expenditures. In our country, the top 1 percent of people are very wealthy, and those at the top of that top 1 percent are incredibly wealthy. Money is power because it buys a great deal of influence. The only people who have more money than the people at the top of the 1 percent are “corporate persons.” Between very wealthy individuals and large corporate persons, “free” speech turns out to be very costly indeed, at least as measured by its effect on our national political life.

And it gets worse. Federal campaign laws require PACs to disclose their donor lists, but tax-exempt groups created under 501(c)4 of the Internal Revenue Code may withhold their donor lists from disclosure. Such anonymous donations are popularly called “dark money.”¹⁴ With limits on contributions removed, unions, corporations, and individuals can now use 501(c)4s to make massive donations to candidates without having to identify the sources of their funding. Dark money reduces the accountability of politicians to the general electorate.

The Citizens United decision greatly enhanced the practical power of wealthy donors—individual or corporate—to promote the election of their chosen candidates. Although the Supreme Court decision is based on the First Amendment right to free speech, it seems to me distinctly antidemocratic because it empowers special interests to finance candidates even as it allows them to hide their identity and, with it, their motives. For instance, the campaign of Candidate X is largely financed by the coal industry. If you, the voter, are concerned about environmental pollution, you are not likely to support Candidate X. But the unlimited legal capacity to fund Candidate X through nonprofit organizations that are immune from disclosure requirements means that you, the voter, will probably never discover that this candidate is financially backed by the coal industry.

In short, recent laws and legal decisions not only enable special interests to “buy” candidates of their choosing but also enable these donors to remain anonymous. Elections should not be poker games, with each player hiding his or her hand. A voter’s choice of candidate should express an informed assessment of the candidate and what effect his or her election might have on the future course of the nation, the state, or the community. That is the essence of democratically elected government. Bad enough that special interests give their candidates an edge. Far worse that voters cannot know which candidates are beholden to what special interests.

So, just about any of us can be outspent when it comes to exercising free speech with a checkbook. But we the people have numbers on our side—and that includes numbers within the government. The unelected federal government totals about 4,185,000 persons. Subtract from this number uniformed personnel in the armed forces, and that leaves about 2,779,400 civilian federal employees.¹⁵ This is the size of the federal portion of the Fourth Branch. Practically speaking, as I have already suggested, we should include in the Fourth Branch all nonelected employees at all levels of government, federal, state, and local, which brings its population to about twenty-two million. When most of us talk about “democratic government,” we mean elected government. The fact is, however, that our government is democratic (in the sense of elected) in no greater ratio than 537 to 2,779,400, and because the far greater number of government workers is not elected but hired on vocational or professional merit, these workers cannot be bought or swayed even with the darkest of dark money. Cash can influence the selection and interpretation of fact, but it cannot alter fact. Cash can influence what elected officials do with the truth, but it cannot alter the truth. Democracy both liberates and challenges conscience. The unelected government anchors conscience in fact.

And facts, John Adams said when he defended at trial the British soldiers who had fired on Bostonians in the Boston Massacre of 1770, “are stubborn things.” Two hundred and fifty years later, give or take, no wonder some in the elected government set what they misleadingly call the Constitutional State (by which they mean elected government) in unalterable opposition to the unelected Administrative State.¹⁶ Moreover, they often equate this Administrative State with the idea of an unaccountable, unresponsive, and irresponsible “big government” or, even more sinister, a subversive Deep State. Discrediting the motives of those tasked with maintaining nonpartisan objectivity in assessing fact and truth is a very potent way of attacking fact and truth.

We know what partisan elected officials seek to gain by attacking the credibility of members of the unelected government. They seek to elevate their assertions above objectively provable fact. But what would the nonpartisan members of the unelected government have to gain by fabricating fictions? If one has the heart of a true public servant, a guardian mentality, nothing is more rewarding than government service. But there is not a lot of money in it, and the opportunity for corruption is all but nonexistent. The members of the Fourth Branch have no lobbyists or PACs. All they have are those stubborn things called facts.

I have spent most of my own public service career in law enforcement. I am here to tell you that whatever else law enforcement is, it is not a career for those seeking to get rich. The US Bureau of Labor Statistics (BLS) publishes an annual Occupational Outlook Handbook. In 2017, the BLS reported that median pay for police and detectives was $62,860 per year ($30.27 per hour).¹⁷ In the federal government, a 2017 Congressional Budget Office (CBO) study found that federal workers received an average of 17 percent more total compensation (salary plus benefits) than comparable private sector workers. Those with the least education—high school diploma or less—received the greatest benefit from federal employment. Their wages (according to the CBO) were 34 percent higher and their benefits 93 percent higher than people at this educational level employed in the private sector. Federal employees with a master’s degree, however, earned 7 percent less direct salary than private sector workers with this degree, but the federal employees received 30 percent more in benefits, which meant that, in terms of total compensation, federal employees with master’s degrees earned about 5 percent more than their private sector counterparts. Holders of a doctorate or other professional degree working in the federal government earned 24 percent less in direct salary than their counterparts in the private sector, and they also received 3 percent less in benefits. Overall, therefore, federal employees at this high level of education earned 18 percent less in total compensation than those in the private sector.¹⁸ A recent study by the Federal Salary Council, which calculated compensation by factoring in pay and cost-of-living differences across a wide range of geographical areas, reached very different conclusions in 2018. The council found that “federal employee salaries on average lag behind those of similar private-sector workers” by 31.86 percent.¹⁹

Although the CBO and Federal Salary Council results differ significantly, they agree in finding that, at the highest levels of education and profession, compensation is considerably higher in the private sector than in the public sector. The managerial leadership of the unelected government, therefore, accepts lower compensation than its counterparts in the private sector. To me, this fact counters the argument some make against government workers, that they are driven by careerism. If they were, the most qualified among them, the most career focused, would leave government employment in droves to secure higher-paying jobs in the private sector.

Even less plausible is the assertion that careerism among members of the unelected government somehow infects the elected government, thereby making self-interested careerism a critical structural problem throughout government generally. I strongly agree that, in recent history, many elected legislators have increasingly treated public service as a lucrative career and are therefore powerfully motivated to put their personal career priorities ahead of national priorities. I see no evidence, however, that this self-interest is an infectious disease that elected government officials have caught from unelected government employees. Rather, self-interested careerism seems to me a creature of partisan politics, in which election to office is election to a career. Both forms of election require political campaigns financed by ungodly amounts of money, much of it generated by special interests that are keen to have key legislators on their side if not in their pockets.

Serving special interests at the expense of the greater good creates what economists call suboptimization. Here’s what that means: In an enterprise that is managed for optimal efficiency and profitability, program and policy decisions are made—and funding allocated—based on taking all costs and benefits into account. When this fails to happen—for example, when decisions are based on self-interest (such as the desire to be reelected)—the enterprise suffers from suboptimal decisions and thus operates suboptimally. The Fourth Branch, which is both unelected and nonpartisan, serves no special interests, so its performance is less likely to be compromised by suboptimal decisions. Members of the elected government, however, look to the support of their political party and to special interests to finance their reelection. If careerism plays a role in creating an unsustainable national debt, it is surely the careerism of those elected officials whose motives are self-interested. Workers in the unelected government may or may not be self-interested, but, in either case, they have little opportunity to allow self-interest to influence their decision-making.

Ensuring that decisions concerning government policies and programs are made optimally rather than suboptimally requires coming to a consensus on the proper role and limits of government and prioritizing national needs and wants accordingly. Such strategic planning is a core responsibility of the elected government, including the chief executive and the legislature. To correctly make the necessary decisions about government scope and priorities, both the Executive and Legislative branches need to draw on the special, practical expertise of nonpartisan unelected fact finders. Unfortunately, the imperative to achieve election or reelection often makes such objective input the very last thing some members of the elected government want. This in itself too often puts the elected government at odds with the unelected experts, as demonstrated most conspicuously by the sport some legislators make of routinely denigrating the CBO. The Concord Coalition—a bipartisan political advocacy group formed in 1992 by US senator Warren Rudman, former secretary of commerce Peter George Peterson, and US senator Paul Tsongas to educate “the public about the causes and consequences of federal budget deficits, the long-term challenges facing America’s unsustainable entitlement programs, and how to build a sound foundation for economic growth”²⁰—warned in a press release on July 26, 2017, that

the latest attacks on the Congressional Budget Office (CBO) threaten to destroy its ability to provide policymakers and the public with nonpartisan, impartial analysis.

After months of denigrating CBO, some members of Congress are now seeking to slash the agency’s funding and eliminate its Budget Analysis Division through amendments to appropriations bills that are soon to be considered by the House of Representatives.

“These attempts to cripple CBO are an assault on objective policymaking,” said Concord Coalition Executive Director Robert L. Bixby. “They suggest a desire to make policy without having to worry about how things add up, a result that would undermine fiscal responsibility.”

The CBO’s projections have served as the closest thing to a common set of facts for policy debates in Congress and among the American public. Without CBO’s work as the agreed-upon nonpartisan source of budgetary projections, policymakers would be encouraged to “shop around” for the most favorable score on their proposals. That would only increase the highly partisan atmosphere on Capitol Hill and undermine serious analysis.

There should only be one official scorekeeper—and CBO is it. The independence and credibility of CBO should be considered beyond reproach so it can continue to serve its vital role as the impartial arbiter of public policy debates.²¹

Let us assume that the members of both the elected government and the unelected government take the Constitution seriously. It is possible to argue in good faith over just what the Constitution intended as the proper, legitimate, and lawful role of government. In two places, this document mentions the topic of “the general Welfare.” The Preamble defines the purposes of the Constitution itself as an instrument “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” Article I, Section 8 gives Congress the power to “provide for the common Defence and general Welfare of the United States.” (I have added the italics for emphasis.) The definition of “general Welfare” depends largely on the party to which one belongs and the partisan ideology one embraces. It would seem to have little to do with objective data. Yet, I believe, a fact-based, nonpartisan analysis can be performed on any piece of legislation in terms of how well or how poorly the proposed policy promotes the “general Welfare.” Without some objective scales of measurement, it is impossible to objectively prioritize needs, wants, and the appropriate spending on them. The absence of prioritization creates a vacuum all too readily filled by the suboptimal influence of special interests. The result is that policy, program, and spending decisions are dictated far more by pork barrel politics (“to the victor belong the spoils”) than by rational analysis based on facts.

The ability to evaluate legislation and policy in objective terms is of obvious value. Yet the same legislators who criticize the members of the unelected government as money-grubbing careerists accuse the leaders of each agency of building bureaucratic empires at the expense of the entire nation. They complain that the Administrative State costs too much. Yes, it certainly does come with a cost. Critics say that the Administrative State spends the money that funds it to enlarge and feed itself. But, in fact, it spends that money to implement the policies and programs created by the elected government. It costs the president (Executive Branch) nothing to ask Congress (Legislative Branch) for money to fund a program. It costs Congress very little to vote up the necessary appropriations. The major costs come in actually implementing—standing up, developing, running, improving, maintaining, and evaluating—the mandated programs and policies. The costly phase of the executive and legislative processes falls to the unelected government.

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The most partisan and ideologically motivated critics of the unelected government seek targets other than the cost of merely funding the bureaucracy. They instead attack one of the core drivers of the rise of the Administrative State during the Progressive Era: government regulation. I have to admit that my feelings about government regulation were shaped by grade-school history class. I remember being assigned to read a novel Upton Sinclair wrote in 1906. It was called The Jungle, and it told the story of Jurgis Rudkus, a Lithuanian immigrant who worked in a Chicago meatpacking plant. A best seller in its time, the novel captured the plight of millions of immigrants, who—unable to speak English—made soft targets for exploitation by employers, policemen, and others with power. The Jungle described in nauseating detail the horrors of the meat-packing business, which sanctioned, among other things, the use of tubercular beef and the grinding up of rats. Just six months after the novel’s publication, Congress passed the Pure Food and Drug Act and a Meat Inspection Act, thrusting the US government squarely into the business of regulating private enterprise for the public good. Other writers of the era contributed to this regulatory movement. In 1902, McClure’s Magazine serialized History of Standard Oil, Ida Tarbell’s landmark exposé of one of the nation’s most celebrated monopolies. The book triggered the creation and enforcement of government antitrust legislation. By very early in the twentieth century, regulation took off in a big way, and the public, by and large, thought it was about time.

Through the administrations of Theodore Roosevelt (19011909), William Howard Taft (1909–1913), and Woodrow Wilson (1913–1921)—two Republicans and a Democrat—progressive reform made giant strides, and what some call “the Regulatory State” expanded. The three especially conservative Republican presidential administrations that followed Wilson—those of Warren G. Harding (1921–1923), Calvin Coolidge (1923–1929), and Herbert Hoover (1929–1933)—brought the era of political reform to an end, although Hoover was mildly responsive to public pleas for government protection from some of the excesses of the private sector. The unprecedented crisis that was the Great Depression spurred the election of Franklin D. Roosevelt in 1932. He reintroduced reform and, most of all, regulation on a truly massive scale.

In 1933, the year FDR took office, an engineer and consumer advocate named Arthur Kallet and fellow engineer Frederick Schlink wrote and published 100,000,000 Guinea Pigs: Dangers in Everyday Foods, Drugs, and Cosmetics, which made the argument that American producers of foods and patent medicines treated the US population (at the time about one hundred million people) like so many experimental lab animals—guinea pigs. These industries had little knowledge of how their products might affect consumers. Worse, they had even less concern.²² The book led to a consumer movement that successfully agitated for reform of the US Food and Drug Administration, the agency that had been created by public demand following publication of The Jungle back in 1906, but that had since then fallen into what economists call “regulatory capture.” That phrase describes what happens when a government regulatory agency, created to act in the public interest, instead begins to serve the special interests it is supposed to regulate—because legislators override the law and order the nonpartisan agency to bend to their self-interested will.

Arguably even more important than the government regulatory reforms that 100,000,000 Guinea Pigs motivated was the role the book played in bringing to birth a national consumer movement. As workers were turning more and more to unions to help them in ways that the government could not or would not, the lead author of 100,000,000 Guinea Pigs teamed up with Amherst College economist Colston Estey Warne to found Consumers Union in 1936. To this day, the independent nonprofit organization conducts objective product testing, investigative journalism, and consumer advocacy while publishing the enormously popular Consumer Reports magazine and website.

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The Jungle, 100,000,000 Guinea Pigs, and the founding of the Consumers Union demonstrate that, historically, the community—the public—working together with the elected government and the unelected government, can achieve meaningful change. The determined, coordinated efforts of public activism, the Fourth Branch, and the constitutionally enumerated three branches of government can prevail even against the most powerful special interests in the nation.

We have seen this most dramatically in the case of Big Tobacco. The “weed” was North America’s first moneymaking export, with the tobacco industry getting its start in the sixteenth century at least two hundred years before there even was a United States. Over centuries, tobacco grew into one of the nation’s most profitable, influential, and powerful business interests. By 1954, when cigarette smoking was at its historical height, 45 percent of the adult American population smoked at least one pack a day. Broken down by gender, that was 60 percent of the male population and 30 percent of the female.²³

For centuries, tobacco was considered not only harmless but pleasurable. Some even touted the health benefits of tobacco use. Then, on January 11, 1964, the US surgeon general issued a report which concluded that cigarette smoking contributed “substantially to mortality from certain specific diseases and the overall death rate.” Americans began to quit smoking—or tried their best to quit smoking. In 1970, as evidence of links between cigarettes and cancer and cigarettes and cardiovascular disease continued to mount, the Federal Communications Commission (FCC)—a regulatory agency of the unelected government—banned cigarette ads from television. At the end of that decade, in 1979, the US surgeon general (appointed by the president to head the US Public Health Service, which is staffed by professionals in the civil service system) issued a stronger negative report on cigarettes and health; and in 1984, the American Cancer Society and other nonprofit organizations sponsored the first annual Great American Smokeout, during which some five million smokers publicly swore off the smoking habit.²⁴

This was all very impressive, and cigarette smoking steadily declined from its 1954 height. The revolt against cigarettes reached a high point on June 13, 1988, when a federal jury in New Jersey awarded $400,000 in damages to Antonio Cipollone, who had sued the Liggett Group, a major cigarette manufacturer, for the wrongful death of his wife, who had succumbed to cancer after smoking heavily for forty years. Of the more than three hundred similar suits filed since 1954, this was the first in which a tobacco company lost.²⁵ More important, discovery in the Cipollone trial revealed a 1972 confidential report prepared by the Philip Morris Research Center of Richmond, Virginia, titled Motives and Incentives in Cigarette Smoking. The report said, “The cigarette should be conceived not as a product but as a package. The product is nicotine . . . Think of the cigarette as a dispenser for a dose unit of nicotine . . . Think of a puff of smoke as the vehicle of nicotine . . . Smoke is beyond question the most optimized vehicle of nicotine and the cigarette the most optimized dispenser of smoke.”²⁶ Judge Lee H. Sarokin, presiding over the Cipollone trial, concluded that the evidence had revealed a conspiracy by three tobacco companies that is “vast in its scope, devious in its purpose, and devastating in its results.”²⁷

In the end, an appeals court overturned the damages award on a technicality, but the Cipollone trial unleashed a series of suits from individuals and a great deal of legislation from federal, state, and local government. At last, in 1994, the CEOs of the nation’s seven major tobacco companies testified under oath before Congress—and in full view of television cameras—that they did not believe nicotine to be an addictive drug. Their hope, presumably, was to put an end to the notion that what they were doing was deliberately vast, devious, and devastating. Instead, a scientist who had been fired by the Brown & Williamson tobacco company, Dr. Jeffrey Wigand, turned whistleblower and on February 4, 1996, appeared on the CBS news program 60 Minutes to present evidence that his former employer not only carried out animal studies proving nicotine to be addictive (only to suppress the results) but also intentionally manipulated its tobacco blend using chemicals such as ammonia to increase the physiological effect of nicotine in cigarette smoke. Wigand claimed on the television program that Brown & Williamson had wrongfully fired him and subsequently harassed him and even threatened his life.²⁸

Nobody said that standing up against powerful special interests was easy.

In the meantime, in 1994, Mississippi became the first state to sue tobacco companies to recoup the costs of health care to treat diseases caused by smoking. In July 1997, the state settled its suit with four tobacco companies, which agreed to pay Mississippi $3.4 billion over twenty-five years.²⁹ It was the first such suit, and, amid suits from other states, the major tobacco companies appealed to Congress for aid in reaching a definitive settlement that would bring an end to the industry’s further liability in exchange for a massive payment that would nevertheless leave the companies intact. The proposed federal settlement, known as the National Settlement Proposal, soon yielded to the Tobacco Master Settlement Agreement of November 1998, between the four largest tobacco companies and the attorneys general of forty-six states.³⁰

The regulatory victory over Big Tobacco required the combined forces of unelected regulatory agencies, the news media, nonprofit sector institutions (such as the American Cancer Society), state and federal courts, Congress, and the public. Absent any one of these players, change would almost certainly have been impossible. I believe, however, that the truly pivotal role was played by the Fourth Branch, especially the US Public Health Service (as represented by the surgeon general of the United States), the FCC, the unelected attorneys and legal staff of the solicitor general of the United States (an agency of the Department of Justice), the unelected attorneys and legal staff of the Mississippi attorney general (who is elected to office in that state), and such fact-finding agencies as the Congressional Research Service.³¹ This is what it takes to “promote the general welfare.”

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The arms industry gun lobby has been around far longer than the Big Tobacco lobby, starting with Samuel Colt’s congressional revolver giveaways in the 1850s. As of the end of 2016, the US Centers for Disease Control and Prevention—the CDC, an agency of unelected public servants—counted 19,632 homicides in the United States, of which 14,415 were firearm homicides. That is 4.5 deaths per 100,000 population.³²

The CDC statistics are the kind of information the unelected government is very good at supplying—dispassionate, objective, fact based, science based—but, as appalling as the statistics are, they have not resulted in an explosion of popular outrage.³³ As with tobacco regulation, overcoming the power of industry-funded lobby groups requires more than the efforts of the unelected government. Media coverage of shootings raises public awareness and translates statistics into individual loss. I remember what happened on the morning of August 26, 2015, when millions of us witnessed, close up, on TV, the violent deaths of two young, attractive television journalists, Alison Parker (age twenty-four) and Adam Ward (twenty-seven), who were gunned down while conducting a live interview in the little town of Moneta, Virginia. (The subject of the interview, Vicki Gardner, was grievously wounded but recovered.)³⁴ This shocking, senseless, and utterly tragic incident did what shocking, senseless, and utterly tragic incidents always do. It brought renewed “urgent” calls for gun control. Think of the mass shootings at Sandy Hook (2012); Aurora, Colorado (2012); the Washington Navy Yard (2013); Emanuel AME Church (2015); Las Vegas (2017); Parkland (2018); the synagogue in Pittsburgh (2018); and many more, too many more.

In the case of the shootings of Parker, Ward, and Gardner, the gunman, forty-one-year-old Vester Lee Flanagan, had a documented history of mental illness, which prompted even more specific calls for measures to prevent “mentally ill” persons from obtaining guns. As Alison Parker’s grief-stricken father, Andy Parker, put it, “We’ve got to find a way to keep crazy people from getting guns.”³⁵

Sounds like a no-brainer, but, in reality, the issue is dauntingly complex. The attempted assassination of President Reagan by John Hinckley Jr. on March 30, 1981, wounded the president, a DC police officer, a Secret Service agent, and presidential press secretary James Brady. Shot in the head, Brady was left permanently disabled and devoted much of the rest of his life to campaigning for gun control legislation. The result, the Brady Handgun Violence Prevention Act, or Brady law, was signed on November 30, 1993. It mandated a National Instant Criminal Background Check System (NICS), which compares the identity of prospective gun purchasers against three criminal record databases. Those convicted of certain crimes are barred from legal gun ownership, as are those adjudicated as a “mental defective” or committed to a mental institution. The complication is that most mentally ill persons never enter the legal system, so they easily pass the required background check. The NICS Improvement Amendments Act of 2008 authorized $1.3 billion to help states and territories keep better mental health records and add more of them to the NICS, but some 90 percent of the authorized funds remained unappropriated by 2015, apparently because NRA “backroom maneuvering” persuaded legislators to withhold appropriation.³⁶

On February 2, 2017, the Republican-majority US Congress repealed the provision of NICS that required federal agencies to identify individuals who received Social Security disability insurance benefits linked to “marked subnormal intelligence, or mental illness, incompetency, condition, or disease” and are “a danger” to themselves or others or “lack the mental capacity to contract or manage [their] own affairs.”³⁷ This further reduced the effectiveness of NICS, which means that there is often no legally competent authority available to determine who is too mentally challenged to own a gun. The Second Amendment of the Constitution (“the right of the People to keep and bear arms shall not be infringed”), the Fourteenth Amendment (“No State shall . . . deny to any person . . . the equal protection of the laws”), and patient privacy rights guaranteed by the 2003 Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA) prevent most intervention in the absence of proper legal records. In any event, some recent data suggests that even adding more mental health records to the NICS will reduce gun violence by no more than one-half of 1 percent.³⁸

Even as the NRA continued to exert its influence on the Legislative Branch to suppress the full exercise of NICS, the Supreme Court—our Judicial Branch—struck down outright handgun bans in Washington, DC (District of Columbia v. Heller, 2008) and Chicago (McDonald v. Chicago, 2010) on the basis of a very broad interpretation of the Second Amendment.

Although we might not be able to argue with the Constitution, we can continue to argue about it. Bringing change will require the kind of partnership between the public, the media, and both the elected and unelected government that radically altered America’s tobacco habit. I believe we can get much more out of the Second Amendment than a one-dimensional prohibition against infringing on the right to keep and bear arms. The text of the amendment is a single sentence, but it is made up of two clauses separated by one comma: “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” Gun control advocates argue that the first clause limits the second: that we have the right to bear arms not as individuals but only as members of a “militia.” The Supreme Court decision in District of Columbia v. Heller rejected this interpretation, but did not deny that when the Second Amendment was written in the late eighteenth century, Americans recognized the need for an armed citizen militia to protect its communities. The twenty-first-century Supreme Court opinion tacitly assumes that the need for a “well regulated militia” is historical and no longer applies in any practical way. I would argue, however, that the equivalent of a militia is still both viable and necessary.

In the public servants of the Fourth Branch we all have a model of what it means to act as guardians of our communities. Recall yet one more time what Sir Robert Peel said of the London police in 1829: “the police are the public and the public are the police, the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.” We the public are not paid to serve the “interests of community welfare and existence,” yet we are nevertheless morally obligated to do just this. Think of Chicago neighborhood activist Tamar Manasseh and her army of mothers taking a stand for their community and against violence. They are unpaid, acting only out of moral obligation and a desire to protect their families. As such, they function as a militia, performing some of the public service duties for which the police and other members of the unelected government are hired and paid.

The Second Amendment defines both a right and a responsibility of membership in the American community. It is a call on the public to petition the government to bring meaningful order to the issue of guns in America by balancing rights against responsibilities. If the members of the elected government heed both the data supplied by the unelected agencies and the expressed will of the American people,³⁹ I believe it is possible, even likely, that lawmakers will someday break the chains that bind them to gun industry lobby groups such as the NRA. I believe they will decide that the first clause of the Second Amendment can serve as a constitutional basis for sensible gun control legislation, including thorough background checks, more secure registration and tracking, and safety training requirements for gun owners. I believe this first clause can accomplish all this without infringing on the right to keep and bear arms as guaranteed by the second clause.

Moving Congress to legislate for these measures will require the public working together as a militia, as guardians of the community. Congress, in turn, will empower the appropriate unelected regulators to manage the necessary controls. This will almost certainly put the Fourth Branch in a position it has become all too accustomed to: punching bag for legislators and aspiring candidates alike. The next and final chapter begins by exploring at greater length the regulatory role of the unelected government. It is a well-established role, but also highly controversial for its uneasy relation to both the Legislative and Judicial branches by way of administrative law, an aspect of government that is less well known than it should be, but that legislatively elevates unelected government to a critical position in our democracy’s system of checks and balances.