The Genteel Populists

...The NRA contained a whole vision of democratic politics in which the administration of things would replace the government of men, and in which socioeconomic units, whose members would be tightly bound together by common interest, would be far more important politically than geographically-defined heterogeneous communities...

...In sum, we see in Simon Lazarus a populist reformer who, while acknowledging that previous accretions of government power over the lives of people has benefited only bureaucracies, is unwilling to contemplate reduction of that power...

...Of course, such regulations ultimately determine price...

...Thanks to the efforts of reformers, the regulatory agencies and executive departments have been able to form very powerful socioeconomic bonds with the sectors of society they are nominally intended to supervise...

...El...

...There was nothing haphazard about this...

...A single conferral of special privilege very seldom affects the whole public dramatically enough to focus a politically significant amount of resentment upon either the politicians offering it or the group receiving it...

...His proposal, the greatest virtue of which is its modesty, is based on the belief that the further an institution is from popular control, the better...

...Why, then, is Nader willing to give agencies and corporations even more power to control their publics—something one must assume he does not like...

...But the republic was built on quite another view of politics...

...Nevertheless, Lazarus shares the contemporary view of "pluralism" as a sociopolitical system in which life itself consists of a never-ending contest between organized interest groups, each of which attempts to enlist the government in its effort to extract its living from the hides of all the others...

...Quite in tune with most of modern political science, he believes in Lasswell's dictum that politics is the process which determines who gets what...

...But the regulatory statutes by which railroads, airlines, farms, broadcasters, etc...

...Such closed circles, Lazarus argues, can only be attacked by a "self-appointed elite" of persons committed to the public interest, persons who are more concerned about the people's interest than the "people" are...

...and they are discovering that, worst of all, corporations and government appear to be combining their powers to make "the little man's" life more expensive and less pleasant...

...Only government power, they have thought, can keep the average man from being dwarfed by, and subjected to, the power of giant corporations...

...Apparently Lazarus has learned more from Naderism than Nader has, for he realizes that some of the latter's pet causes resemble the grand reform pageants of the past and are likely to have similar results...

...a license to impose monopoly conditions and prices upon the public via government coercion...

...No doubt fairer decisions and healthier attitudes really are more likely to come out of public adversary proceedings than out of closets shared by "government experts" and "interested parties...

...The National Recovery Act (NRA) meant primarily to expand federal power over the economy and then to delegate the exercise of that power to producers' groups, in which the widest possible kind of participation would be encouraged...

...In fact, he likes the courts as a means because they come closest to being independent of the corrupting influences of what he calls American pluralism...

...Since this is so, the fewer decisions made according to political criteria, the more made according to "principled" ones, the better, and the more just, society will be...

...One gets the impression that Lazarus is asking the genteel populists to place their bets on the courts not so much because he believes they will work wondrous changes in a bad situation, but rather because the legislative and executive branches have proved their unreliability and there is nowhere else to turn...

...For example, giving the Federal Communications Commission the authority to control the content of TV programs in the public interest would only bring a long line outside the President's door, each person hoping to impose his own views through TV...

...To them he presents the argument that much of what they deplore in America is due to the error of their ways...

...Yet after a half century of New Freedoms, New Deals, New Frontiers, et al., reformers are beginning to notice that the object of their cares, "the little man," is more than ever before dependent upon and defenseless against decisions of corporate and governmental bureaucracies...

...The former uses up the "credit" required for the latter...

...Perhaps more important, New Deal reformers aimed at an entirely different sort of representative democracy from that bequeathed us by the Founding Fathers...

...Thus, now that the federal government has nearly all the powers the political Left has long wanted it to have, a political dialogue between the Right and the Left on the properfunction and extent of governmental power may once again be possible...

...They are "populist" because of their concern with the welfare of "the little man," and "genteel" because they belong to social, educational, and professional elite groups...

...Of course Madison knew that economic interests would try to capture government, but his design—an extended republic with geographic representation, federalism, separation of powers, and staggered elections—was intended to keep any one interest from succeeding at the expense of the others, and not to surrender to all corners and then judicially allocate the spoils to build a just society...

...The book is addressed to his friends, the "genteel populists"—heirs with him to the muckraking, government-regulating traditions of the Wilson and Roosevelt Administrations...

...and the easiest way to create interlocutors, economic organizations through which government could act, was to offer leaders of affected groups a voice in regulatory policy...

...The political society they founded had a rather restricted set of aims: the preamble of our Constitution limits itself only to those concerns the Christian and classical tradition considers to be political...

...Such circles are well-nigh unbreakable because just about no one capable of doing the breaking has any interest in doing so...

...One of the main achievements of liberal reformers has been far-reachingregulation of the American economy...

...Likewise the Civil Aeronautics Board has kept the price of airline tickets above market value: the air fare between Los Angeles and San Francisco for airlines uncertified by the CAB is half that of those certified, but an airline can't fly between states if it isn't certified...

...Nor would the people, through their political agent, provide themselves with priests, though men do, not—or at least did not then in large numbers—live without the Spirit any more than they live without bread or order...

...Well, there's something called the "Florida Tomato Committee," a group of twelve tomato growers appointed by the Secretary of Agriculture upon "nomination" by the tomato industry itself—or rather by its most influential members...

...The political system was meant to keep the people away from temptation...

...But can judges, even with the best of intentions, get into the business of robbing Peter to pay Paul without losing their protective mystique and becoming no more respected, though far less powerful, than Presidents...

...The leftist reformers who preceded him were willing to accept the power of the.regulatory-industrial complex they were establishing as the price that had to be paid to achieve certain worthy goals...

...This situation troubles the reformers...

...And although Nader's distaste for the fruits of regulated oligopoly is even greater than that of earlier reformers, a view of politics similar to theirs keeps him in the lobbies of Congress working to create yet another layer of bureaucracy...

...Lazarus, on the other hand, proposes no new agencies...

...By "genteel populists" Lazarus means the complex of foundation executives, public interest lawyers (of whom Ralph Nader has been the most prominent in recent years), and likeminded men in government...

...Lazarus' choice of tools gives his enterprise an appearance quite different from that of his fellow reformer Ralph Nader, who spends most of his time trying to get Congress to create more agencies and encouraging existing agencies to issue more rules...

...How, for example, does a single tomato get to be priced one dollar at a supermarket...

...Some attribute the unfortunate situation to the corruption of public servants by private money, and so continue to contribute to the increasing power of government by devising ways in which it can guard its flock more closely...

...Lazarus bids us rely on nothing but "the mystique of the courts" and his expectations of judges...

...But though the NRA was declared unconstitutional by the Supreme Court, an argument could be made that the alphabet agencies combined have a milder effect along similar lines...

...Thus, fundamentally, no less than other reformers, Lazarus wants American government to be organized on a basis other than the popular one upon which the Founding Fathers set it...

...People could take part in the government because, among other reasons, politics did not offer them the opportunity to live off one another, or to use others to fulfill their social or religious fancies...

...A host of decisions are made in secret sessions with only a few attending...

...They believed that increases in population and in the size of the federal government—equally ineluctable things—had deprived millions of Americans of the experience of participation in public affairs...

...And when imports from Mexico threaten to lower the price of tomatoes, regulations are tailored to exclude the imports on technical grounds...

...Lazarus is ideologically hooked on power, the power to shape society...

...This is the way, for example, that broadcast licenses are awarded, that foods and drugs are allowed or banned—the Food and Drug Administration ban on hexachlorophene (in Dial soap) was a coup for Procter and Gamble...

...But others have begun to doubt whether regulation can ever do right by the "little man," given that government by nature appears ready to lend its power to the strong in society—not to the weak...

...Within these closed circles, the careers, fortunes, and reputations of men move irrespective of boundaries between the public and private sectors...

...Experience teaches that wherever there is power to grant favors worth fortunes, people will line up to influence it, and fight and pay for a place up front...

...No, the framers of our Constitution did not establish the modern state as France then knew it, and as we have come to know it...

...Surely a law school diploma immunizes against neither partiality nor corruption...

...Simon Lazarus is a young lawyer whose education (Yale Law) and professional life (Nader's Raiders) have firmly attached him to the tradition of upper-class liberal reformers...

...Moreover, what reason is there to believe judges cannot be "captured," just as quasi-judges have been...

...The government would not attempt to fulfill the function of the head of the household, giving more sustenance to one than to another of its members...

...It "recommends" to the Secretary how he might regulate the size, quality, and quantity of tomatoes grown or imported in the United States...

...Why should judges be immune to influence...

...Lazarus understands that the American republic is somehow based on self-seeking and recognizes that the Founding Fathers, unlike "postwar liberals," wisely limited government's power to help one selfish interest impair the liberty of another...

...on the contrary, individual politicians who refuse a group's request stand to lose definite quantities of support and gain definite quantities of opposition...

...In Europe this addiction has long permeated whole political cultures—every group fearful of government power, yet unwilling to agree to its diminution in the hope of someday wielding it as the group sees fit...

...Among these was the federal government's own ability to direct an economy which offered its controllers precious few handles...

...Incidentally, nationalization of corporations would have the same legal effect...

...Third, the proposal for federal chartering of corporations can mean—indeed Emmanuel Celler's original bill so specified—special protection from private suns for corporations so chartered...

...The Supreme Court's majority in Colegrove v. Green and Alexander Bickel's argument in The Supreme Court and the Idea of Progress point to the incompatibility of social management on the retail level and leadership in the realm of principles...

...Believing, like Nader and like New Deal reformers, that "pluralist democracy" if left to itself will produce insufferable inequities, he seeks, as they did, "some additional agency of review, some mechanism for intervention by guardians of the public weal...

...But Lazarus' suggested reforms also fail to address the real problems...

...Alas, Mr...

...Besides, how does a population participate in this sort ofrefereeing—and retain a sense of justice—when injustice itself may be defined as judging in one's own cause...

...Second, the proposed consumer protection agency, which would be a sort of regulatory agency set over other regulatory agencies, could be controlled by precisely the same means by which the other agencies are controlled, and would surely be just another obstacle for consumers' suits unsanctioned by the agency to overcome...

...He calls this elite of wellborn or well-schooled lawyers a "populist vanguard," and chooses the federal court system as its principal tool...

...The Genteel Populists shows the pitfalls of this "schizophrenic" attitude toward government, which Lazarus apologizes for sharing, and which is the lot of modern democrats...

...The practical rlifficulties involved in subjecting thousands of administrative, quasi-legislative, and quasi-judicial (the American euphemism for administrative law) decisions to review by the ordinary federal courts are enormous...

...Rather, he proposes that the federal courts take on the detailed superintendence of the vast federal regulatory apparatus...

...were to be placed in the service of the public interest have in effect given some railroads, airlines, farms, broadcasters, etc...

...For if the government attempts to referee the competitive satisfaction of people's desire to live off one another, it must either be trampled by all parties or be obliged to join one...