The ability of Congress to choose between administrative systems weakens the separation-of-powers system.
“Hell hath no fury like a woman scorned.” Or, apparently, a politico.
Mike Lofgren, author of The Deep State: The Fall of the Constitution and the Rise of a Shadow Government is a retired Hill staffer keen to exact his wrath on virtually every DC institution conceivable—from Bill Clinton’s dalliances to the “tired” décor of the Capitol Hill Club, which “has always manage to maintain an ambiance about 30 years before whatever the present date is, perhaps in keeping with Republican social policy.”
Lofgren’s sometimes-wandering rant does have a consistent theme: a coterie lurking behind the scenes, called the “Deep State” and consisting of elite industry and governmental insiders, controls the United States Government regardless of the outcomes of elections. The Deep State is the Puppet Master, and democratically-elected representatives are their puppets. Elected officials are pawns; it is Wall Street financiers, national security experts, and K Street Lobbyists who run the show.
Lofgren elevates the Deep State as a framework for understanding a litany of realities in contemporary American society: the National Security Agency’s ubiquitous surveillance, wealth inequality, the decline of social mobility, the war in Iraq (and, by extension, the Syrian Civil War), the 2008 financial crisis, mass incarceration, the destruction of New Orleans by Hurricane Katrina, and mercilessly much more.
According to Lofgren, the Deep State is to blame for many of the aforementioned political maladies and is the explanation for the insubstantial variance between the Bush and Obama administrations: even if they had wanted to, newly elected officeholders were prevented from effecting meaningful change by the “shadow government” of technocrats.
In virtually every policy area he discusses, Lofgren states the status quo to be so foolish that it can only be explained by the maliciousness or greed of Deep State technocrats. But in failing to seriously engage in any of the policy areas he discusses, he shows himself to be out of his depth. He often neglects to show that the policies he condemns were bad in the first place, or if they were bad, he avoids discussion of the role that bad incentives and central planning had to play in the bad outcomes. He never comes close to showing that they were so self-evidently bad that they can be attributed to the the Deep State’s self-serving and malevolent ways.
To take one example, Lofgren condemns the 2008 Wall Street bailouts as the inevitable outcome of a giant con played on the American people by high-flying financiers (who play one part of the multi-faceted Deep State). But he utterly avoids engaging with the arguments made in favor of the Troubled Asset Relief Plan, which authorized $700 billion to buy distressed assets and inject capital into banks and other financial institutions (the Dodd-Frank Act later reduced this authorization to $475 billion). There is a good argument that the bailouts were necessary to stabilize an economy on the verge of collapse, but Lofgren airily dismisses this as a mere “debatable counterfactual.” Nor does Lofgren mention that the Treasury Department has received about $442 billion in repayments, dividends, and other proceeds under TARP, $7.5 billion more than the $435 billion it has disbursed with the program.
This is not to say that the bailout was wise policy. It is possible that the moral hazard it created outweighs the stability it brought to financial markets—and it is possible that it actually exacerbated rather than mitigated market instability. Unfortunately, Lofgren makes no attempt to actually demonstrate that the 2008 financial bailouts were foolishly counterproductive. He instead leads his reader through a series of self-congratulatory reflections on the outcome of the financial crisis—all rather shoehorned into the mold of his thesis of the Deep State’s pervasive power. Rather than informing his readers or engaging in this, admittedly technical, debate, Lofgren’s objective is to categorize the response to the 2008 financial crisis with recent national security crises—all of which, he argues, consolidated power in the hands of the Deep State elite.
Lofgren’s conspicuous unfamiliarity with—or, more charitably, disinterest in—substantive legal and policy disputes is fully on display in his discussion of the jurisprudence of today’s Supreme Court. He asserts that the the Supreme Court’s decisions can all be explained by the commitment of five of its members to “the prerogative of the rich to control the political process of the country.” He cites as evidence the 2012 NFIB v. Sebelius (which upheld the Affordable Care Act in the face of a constitutional challenge) and the Court’s two recent major campaign finance decisions, 2010’s Citizens United (which held that a portion of McCain-Feingold prohibiting corporations and unions from advocating for or against candidates during certain periods before elections violated the First Amendment ) and 2014’s McCutcheon (which similarly invalidated a statutory provision limiting the amount individuals could contribute in the aggregate across multiple candidates over a two-year period). Lofgren focuses on McCutcheon, and his analysis, such as it is, proceeds as follows: the case was not really about aggregate contribution limits, but was about “what constitutes a bribe.” The Court’s conclusion that political donations are not bribes was premised on its belief that “private money … causes democracy to thrive,” a belief so obviously wrong that the only explanation for this decision, as well as Citizens United, is a bias in favor of the moneyed class: these “were not cases about campaign finance laws nor were they, despite the artful smoke screen, about free speech or about whether money constitutes speech. They were really about upholding the superior political privileges and political access of rich interests in society.”
Lofgren levels quite a charge, and one would expect it to be supported by more than a superficial summary and dismissal of the Court’s reasoning. The Court’s decision was clearly premised on three propositions: that donating money to a political campaign is a form of expression protected by the First Amendment; that the ability to make these donations can therefore only be restricted if necessary to further an important objective; and that limiting the aggregate amount of money an individual can contribute across myriad candidates does vanishingly little to accomplish the government’s ostensible goal of preventing corruption. Lofgren fails to so much as gesture at a rebuttal to any of this.
The Deep State: A Feature of Democracy, or a Bug of Bureaucracy?
Lofgren vigorously maintains that his thesis is not a conspiracy theory. What, if any, truth is there to the concept of the Deep State more broadly? It is true that in government there is a large civil service across the branches of federal government that do not change with elections. This is absolutely essential. Career bureaucrats in the federal government, as political appointees in this administration have cited elsewhere, can at times be barriers to innovation and achieving policy goals. However, the career staff have both the institutional knowledge of government operations and subject matter expertise that every new administration needs if they hope to accomplish any policy objective. Political appointees have the vision of where they want to go, and career bureaucrats have the map that show them how to get there. It is also worth mentioning that Lofgren’s thesis paints the multitudinous men and women in federal service with a single stroke—a broad and unjust characterization. This overarching assumption about the intent of these hundreds of thousands of individuals is to ignore their agency and dignity as human beings—not to mention his assumption of the unity of their interests (an argument that flies in the face of Federalist 51).
Additionally, the fact that circumstances are so slow to change despite changes in political administrations shouldn’t be surprising: This is a feature of democracy, not a bug of bureaucracy. When Secretary DeVos wants to ‘Rethink School’, she can do so only within the authority that Congress delineated to the Department of Education and within the constraints of the Administrative Procedures Act. America’s founding fathers, skeptical as they were of human nature, envisioned a division of powers so that no one person or branch of government could set the course of our country. Slow and tempered progress in the executive branch is crucial to living in a pluralistic society—liberals and conservatives alike are stymied by the same constitutional constraints in government. In this way, law is a harness that protects the democratic process.
If anything, Lofgren’s thesis about the insidious Deep State—a shadow government that pursues an agenda of its own design—makes the achievements of President Trump and his Cabinet in their first year all the more remarkable. Secretary of Education Betsy DeVos’s thoughtful and tempered approach to rescinding the misguided Title IX Guidance of the Obama Administration; Secretary of State Rex Tillerson’s efforts to ensure the continuing demise of ISIS; EPA Administrator Scott Pruitt ending the Obama Administration’s Clean Power Plan. Both the President and his Cabinet deserve credit for these accomplishments in light of many challenges—not least of all, the Deep State.
If Lofgren really cared about resolving some of the complex and important policy issues he discusses, he would have written a very different book. He might have engaged seriously with the people and ideas that he so readily condemns. He could have occasionally shown that the inefficacy of current policies really is due to the influence of self-interested elites (Mancur Olson taught us, after all, to expect such outcomes).
Tocqueville and the Deep State
French political theorist Alexis de Tocqueville wrote of bureaucracy, “However enlightened and skillful a central power may be, it cannot of itself embrace all the details of the life of a great nation.” As flawed as it is, Lofgren’s work points us toward the truth of Tocqueville’s insight: the world is a big place with many complex problems, and it is tempting to think that complex problems require complex solutions that are best orchestrated by technocrats. And sometimes this is true. But often these complex human problems are best approached by those closest to the problem—those at the localized level.
While the Deep State may not be as insidious or dangerous as Lofgren suggests, it is nevertheless true that bloated government is at best unfair to taxpayers and at worse dangerous to those affected by well-intended but misguided policies. For this reason, it remains all the more important that we support principled elected officials committed to limited government and the decentralization of political authority.
That is, to support those who will work tirelessly to limit their own authority.