February, 1997

HEADLINE: The Error of Big Government;
Conservatives applauded when Bill Clinton said that the day of big government
was done. Who were they trying to kid? Washington just keeps growing and growing
-- and growing.

BYLINE: James Bovard;
James Bovard is this year's Warren Brookes Fellow at the Competitive
Enterprise Institute.

BODY:

In his 1996 State of the Union address, President Bill Clinton announced that
"the era of Big Government is over." In the same speech, Clinton proposed over
The American Spectator, February, 1997 February, 1997

a dozen new federal programs and mandates. Yet many conservatives seem to
believe that, since Clinton proclaimed that they have won, what else is there to
fight for?

The conservative victories of recent years have, in some ways, been even more
costly than conservative defeats -- for they have created the illusion that the
government Leviathan has been leashed. But government spending has continued to
increase since 1980, and government power has increased even faster than that.
There is no index to measure it, but that power cuts into the lives of the
American citizenry more than any tax or spending increase.

As Jefferson observed, "One precedent in favor of power is stronger than an
hundred against it." Unfortunately, since Ronald Reagan took office, hundreds of
such precedents have been established that greatly increase the sway of
government bureaucrats over the lives, property, and health of the American
people. The increase in federal power is now practically on automatic pilot, and
the laws are so broad and expansive that ambitious bureaucrats simply squeeze a
little more power out of them each year. Reagan captured the presidency in 1980
having asked, "Are you better off than you were four years ago?" Today the
question to be asked is, "Are you freer than you were when Ronald Reagan took
office?"

Numbers Tell the Story

Consider some of the hard numbers: Since 1980, the federal budget has
increased from $576 billion to more than $1.6 trillion -- a rate of increase far
larger than the inflation rate. In the same period, the typical family's tax
burden has increased from $11,620 to $22,707, according to the Tax Foundation.
The average family with two earners will pay more in taxes in 1996 than their
total nominal earnings in 1977.

Along with taxes regulation is also skyrocketing. Since 1980, the federal
government has added more than a million pages of new regulations, proposals,
and rulings to the Federal Register. The burden of government regulations rose
to $667 billion in 1996, according to the Small Business Administration. This
amounted to a hidden tax of almost $7,000 a year on the typical family. The
combined burden of government spending and government regulation now accounts
for more than half of the gross domestic product each year.

Since 1980, hundreds of new criminal offenses have been added to the federal
statute books. To enforce those laws, the number of employees in the Justice
Department has more than tripled; the number of federal prosecutors has nearly
done so. The number of federal lawsuits has exploded, and according to its own
figures the Justice Department files charges against roughly 200,000 citizens
and businesses every year.

New laws mean new punishments: the number of federal administrative penalties
has also soared in recent years. The IRS imposes almost three times as many
penalties each year as it did in the late 1970's -- despite repeated reports
from the General Accounting Office that show a stratospheric rate of errors and
unjustified exactions in those penalties.

While the Clinton administration is ostensibly campaigning to get weapons out
of the hands of private citizens, the federal government has armed itself to a
far greater extent than most Americans realize. Far more federal employees are
now permitted to carry firearms than in 1980. And, with changes to the Posse
Comitatus laws in the early 1980's, U.S. military forces and National Guard
units have become involved in assisting or carrying out routine law enforcement
efforts for the first time since Reconstruction.

Endangered Specious Acts

Much of the starkest growth in government power since 1980 has occurred in
the name of environmental protection. When the Endangered Species Act (ESA) was
enacted in 1973, the idea was that the act would ameliorate "high-profile" cases
like that of the bald eagles. During most of the 1970's, the Interior
Department was restrained in its enforcement of the act, with the only major
controversy involving the snail darter around a large dam in Tennessee.

Beginning in the mid- to late-1980's, however, lawsuits by environmental
organizations and decisions by federal bureaucrats vastly broadened the sweep of
the law. More than 1,000 species are now on the endangered list, and the U.S.
Interior Department requires almost no evidence to proclaim a species endangered
or threatened. Once the government has made such a declaration, it can -- and
usually does -- seize dictatorial control over the use of property in any area
in which the threatened species resides. Or might reside: in New Jersey,
77-year-old Grace Heck was prohibited from building on land she had bought for
her retirement because the federal Fish and Wildlife Service ruled that there
was an endangered species of plant "within five miles of the proposed project
site." As a Wall Street Journal editorial noted, "Enforcement of the act is
being effectively steered by the BANANA: Build Absolutely Nothing Anywhere Near
Anything."

Richard Stroup, former chief economist of the Interior Department, declared:
"The Fish and Wildlife Service faces no budget constraint on the number of acres
it can control in the name of endangered species, so it always wants more." More
than 25 million acres have come under temporary or quasi-permanent control of
the government as a result of the ESA -- the equivalent of Massachusetts,
Vermont, New Hampshire, and Connecticut combined. After a smattering of reform
efforts, though, congressional Republicans retreated from this issue.

Wetlands have been another source of mushrooming government. In 1972,
Congress passed the Clean Water Act to restrict the pollution of navigable
waters. The Army Corps of Engineers received the power to approve or deny
permits to discharge dirt or other materials into such waters, and Congress gave
the EPA veto power over those permits. In 1975 a federal judge ruled that this
provision also applied to wetlands adjacent to navigable waters. After George
Bush signaled his affection for wetlands in the 1988 presidential campaign, the
EPA and Army Corps issued a new manual for identifying wetlands and proceeded to
seize control over the property of hundreds of thousands of American landowners.

Under the new definition, land that was dry 350 days a year could be
classified as a wetland. The Fairness to Land Owners Committee estimated that up
to 100 million acres of land were reclassified as "wetlands," with roughly 70
percent of that land privately owned -- just about equivalent to the states of
Ohio, Indiana, and Illinois. In states such as Louisiana, the feds have
effectively sought to claim jurisdiction over half of all the private land.

Federal regulators have an array of technicalities at their disposal to
ensnare more private land. The EPA's "glancing geese doctrine," for example,
permits the agency to claim jurisdiction over any moist land patch of more than
a few square feet that migrating birds might fly over. Former Justice Department
attorney William Laffer observed, "Any time the Army Corps or EPA think a parcel
of land is beneficial to wildlife, they arbitrarily apply the wetlands
definition to prohibit the owner from using the land."

Republican efforts at wetlands reform collapsed in the last Congress from
loss of nerve. One such case involved the above- mentioned Grace Heck, who was
all set to testify at a House hearing in February 1995 on wetlands abuses.
Constitution subcommittee chairman Charles Canady (R-Fla.), however, canceled
her appearance after a journalist called him with unsubstantiated charges
against the Hecks. These charges, as Washington Times editorial writer Ken Smith
later demonstrated, were part of a smear campaign orchestrated by environmental
groups against victims of federal violations.

In the meantime, the Clinton administration announced in December that it was
revising Army Corps regulations to require new permits to build on small tracts
of wetland. The result, says former Bush environmental analyst Jonathan Tolman,
will be a quintupling of the Corps' regulatory workload; in other words, "a
bureaucratic redtape nightmare."

Superfund Superfans

The history of Superfund also epitomizes modern government out of control.
Superfund was passed by a lame duck Congress called by Jimmy Carter after he had
gotten trounced by Reagan in November 1980. The law was intended to address dire
threats from abandoned hazardous-waste sites. Yet Superfund has been expanded
for almost twenty years -- and has cost the private sector and government more
than $70 billion. Though Superfund has long been known as "robbery with an
environmental badge," the political establishment has done little or nothing to
correct its outrages. EPA relies on joint and several liability to enforce its
Superfund dictates; thus, anyone who sent anything to a dump that later became a
Superfund site can be held personally liable for the entire cleanup cost of that
dump.

In other words, companies bear the burden of proving themselves innocent,
rather than the government proving them guilty. The EPA selected New York's
Rosen Brothers Scrap Yard largely based on the testimony of employees about
events that had happened two decades before. The agency notified Formal Ware
Rental Services of Tulsa, Oklahoma, that it would be held responsible for the
cleanup of a local Superfund site; the only evidence linking the clothing rental
company to the site was the fact that it had paid someone $14 in 1972 to haul
trash there. They also fingered a Boy Scout troop as a "potentially responsible
party" to finance the cleanup of a Superfund designated scrap yard in
Minneapolis.

In a case involving New York's Ludlow Sanitary Landfill, a court ruled that a
butcher shop owner was liable because the glue on the boxes he threw in his
dumpster (and which were later taken to the landfill) contained hazardous
materials. Several churches and local schools were identified as lawsuit targets
to finance the cleanup of a Superfund site in Gray, Maine. Yet, despite these
outrages, Republicans have not summoned the will or the wisdom to reform the
program.

Another example of how recent environmental policy is allowing government
bureaucrats to criminalize almost everything is the Resource Conservation and
Recovery Act. Enacted in 1976, RCRA regulates the treatment, storage, transport
and disposal of hazardous waste. The law was a minor nuisance until 1984, when
Congress revised it to make it far more prohibitive and punitive towards
corporations. EPA estimates that complying with RCRA costs businesses and
governments an estimated $30 billion a year.

Though corporate officials face fines of up to $50,000 a day and imprisonment
for up to five years for each RCRA violation, EPA does a pathetic job of
informing them of how to comply with the agency's interpretation du jour. RCRA
requires that companies clean up their factory grounds to "background levels" -
- i.e., levels at which chemicals occur naturally in the surrounding
environment.

But background levels usually have no relation to safeguarding human health.
If someone poured a glass of chlorinated tap water onto the ground at a RCRA
cleanup site, he could be fined for polluting the environment, according to
former EPA General Counsel Frank Blake. RCRA prohibits the disposal of some
chemicals in double-lined landfills, yet EPA allows the same chemicals to be
applied directly to the land as fertilizers. Under RCRA, EPA presumes that every
citizen near a site would suffer maximum exposure to every toxic -- and would
drink half a gallon of wastewater from hazardous sites every day for seventy
years.

Republicans captured the Congress in 1994 in part because of widespread anger
by property owners and business owners about rampages by environmental agents.
However, Speaker Gingrich made Rep. Sherwood Boehlert (R-N.Y.) co-chair of an
environmental task force he set up. Boehlert ranks almost dead last of all
Republican congressmen in his support of free-market policies, according to the
Competitive Enterprise Index. Boehlert attends Sierra Club fundraisers. As he
explains, "Don't ever in your passion for the environment let yourself become
partisan" -- advice that the Sierra Club, for one, doesn't heed, donating ten
times as much to Democrats as to Republicans. The Washington Times reports that
Boehlert even participated in an environmentalist demonstration in November 1995
on the steps of the Capitol, chanting, "Stop the rollback. Free the Planet."
When conservative and land-use groups criticized Boehlert, Gingrich last
September praised his efforts as key to making the 104th Congress "the most
successful in protecting the environment in recent history."

Search and Destroy

The federal government has secured even more power in cases that do not
involve environmental concerns. In 1984, the Supreme Court ruled that government
agents do not need a search warrant to go roaming on private property in search
of evidence to arrest the owner. The landmark case involved a search by Kentucky
State police who ignored a no-trespassing sign and a locked gate, climbed over a
fence, and hiked a mile onto a farmer's land to find some marijuana plants.
Reagan administration Solicitor General Rex Lee persuaded the court that
government agents have an unlimited right to trespass on private land in order
to seek evidence of law-breaking.

The fact that government agents could enter a person's property thereby
somehow proved that they had a right to enter that property, and the fact that
some private citizens disobey no-trespassing signs proved that government agents
had no obligation to obey them. A majority of the Supreme Court decreed that
"open fields do not provide the setting for those intimate activities that the
[Fourth] Amendment is intended to shelter from government interference or
surveillance." And the court made it clear that it was not referring only to
open fields, adding: "A thickly wooded area nonetheless may be an open field as
that term is used in construing the Fourth Amendment." After this Supreme Court
decision, any "field" that is not surrounded by a 20-foot-high concrete fence
can be considered to be "open" for inspection by government agents.

The Court's decision essentially nullified hundreds of years of common law
precedents limiting the power of government agents, apparently forgetting why
the Founding Fathers added the Fourth Amendment to the Bill of Rights:
government officials cannot be trusted with arbitrary power over the lives and
property of private citizens. While some prosecutors sought to portray the issue
of the sanctity of private land as an issue of concern only to drug dealers, the
American Farm Bureau was one of the fiercest opponents of the Reagan
administration on this issue. This decision has been cited in more than 320
subsequent federal and state court decisions. It would be difficult to craft a
court decision that more clearly repudiated the sanctity of private property.

What's Yours Is Mine

Few areas more visibly capture the danger of greater government power than
the proliferation of asset forfeiture laws. Beginning in 1970, Congress enacted
legislation to permit the seizure of property of Mafia organizations and major
drug smugglers. Since then, federal agents have gotten license to seize
private property under over a hundred different federal statutes, including
gambling, wildlife violations, structuring withdrawals from one's bank account,
having too much cash in one's wallet or luggage, etc. Since 1979, federal
seizures of property under forfeiture laws have increased by 2500 percent,
totaling over $5 billion snatched from the hands of accused private citizens and
businesses. State and local governments have also jumped on the bandwagon,
increasing their confiscations of private property by a hundredfold in the last
fifteen years, according to forfeiture expert Steven Kessler.

Thanks to such laws, thousands of American citizens are being stripped of
their property based solely on rumors and unsubstantiated assertions made by
government confidential informants. The vast majority of people whose property
is seized by federal agents are never formally charged with a crime. In criminal
cases, the government must prove a person guilty beyond a reasonable doubt. In
asset forfeiture, the only thing federal agents need is a hearsay accusation,
mere gossip or rumor. Often, forfeitures are based on the word of confidential
informants (often ex-convicts), who are given up to 25 percent of the value of
any property the government seizes based on their accusations. Even internal
government documents recognize this problem: a September 1992 Justice Department
newsletter noted, "Like children in a candy shop, the law enforcement community
chose all manner and method of seizing and forfeiting property, gorging
ourselves in an effort which soon came to resemble one designed to raise
revenues."

The Supreme Court last March made these laws even worse. The court was
considering a Michigan case in which police seized a car co-owned by Tina Bennis
after they caught her husband on the front seat with a prostitute. Chief Justice
Rehnquist ordained that police could seize the property of innocent owners in
spite of clear evidence that they had never approved of any misuse of their
property. Rehnquist based his decision heavily on an 1827 case involving the
seizure of a Spanish pirate ship that had attacked U.S. ships. Regrettably
Rehnquist did not explain what makes piracy in the 1820's and prostitution in
the 1990's legally equivalent.

The Clinton administration wants to stretch this power even further. EPA
chief Carol Browner declared last August, "You know, right now, if you're
running drugs in this country and you are caught, your assets can be taken --
there is something called 'asset forfeiture.' Well, we think the same should be
true for the polluter. If you're polluting the public's air and water, then the
benefits you derive, the assets you have can be taken. That is what the
president is proposing."

The administration submitted a bill in September to give the federal
government the power to freeze (before a trial) the assets of corporations
accused of violating environmental laws. A White House press release on August
28 bragged that the administration's bill "will ensure that the assets of
environment criminals can be secured even before conviction..." In other areas
of law, the power of federal prosecutors to freeze assets routinely destroys an
individual's or corporation's ability to defend himself against criminal charges
-- making it easier to get a conviction -- and thereby getting a judge's
permission to permanently seize the corporation's assets. Browner's proposal
illustrates how a nasty legal trend can develop: first the government expands
its power by pummeling a bunch of drug users or low-brow types, and then -- next
thing you know -- the government has the audacity to use the same powers against
a respected corporation!

It remains to be seen how much gumption conservatives and Republicans show in
opposing this latest power grab. Rep. Henry Hyde, chairman of the House
Judiciary Committee, did co-sponsor a bill in the last Congress to rein in some
forfeiture abuses, but hearings on the legislation were not held until last July
-- killing any chance Congress would act before the election.

Seize the Moment Seizures

Few laws in recent memory have sown as much uncertainty and legal chaos as
the Americans with Disabilities Act (see "The Lame Game," TAS, July 1995). As
a result of the ADA, a federal judge recently ruled that the Iowa State
Penitentiary violated the rights of an asthmatic mass-murderer by refusing to
provide him with personal cable TV in his cell. (The TV room was too smoky.) The
YMCA in Boston is being sued for $20 million damages by a deaf lifeguard who was
dismissed after the YMCA, seeking to comply with the ADA, established clearer
guidelines on who could be a lifeguard. The ADA has been a boon to lawyers in
more ways than one. The Recorder, a California legal newspaper, noted in
October: "Attorneys cited for transgressions ranging from neglect of their cases
to stealing from clients have asserted that their actions are mitigated by
mental impairment or substance abuse, and thus are entitled to leniency under
the ADA."

The act has led many states and localities to lower their hiring requirements
for police officers. According to the EEOC, 49 million Americans are disabled -
- and thus entitled to receive preferential legal status and a federal club to
enforce their demands. Despite such absurdities, congressional Republicans have
not held a single hearing on ADA abuses nor has anyone suggested fundamental
reform of the law.

While there is concern about the disabled, other Americans are literally
dying because of the failure to curb the rampages of the Food and Drug
Administration. Under outgoing commissioner David Kessler, the FDA has become
ar more restrictive in permitting new drugs or medical devices on the market.
Stanford University professor Dale Geringer has observed, "In terms of lives,
it's quite possible that the FDA bureaucracy could be killing on the order of
three to four times as many people as it saves." One study estimated that 150
,000 heart attack victims may have lost their lives as a result of the FDA's
delays in approving the emergency blood-clotting drug TPA. The FDA has an
extremely timid, risk-averse approach to approving new drugs; National Cancer
Institute officials have accused the FDA of being "mired in a 1960's philosophy
of drug development, viewing all new agents as...poisons."

Despite widespread outrage about the FDA in the early 1990's, however, the
agency continues to stretch its power. Kessler proposed this past August to
reclassify cigarettes as "drug-delivery devices" -- thereby giving federal
bureaucrats veto power over the personal habits of tens of millions of
Americans. Kessler's action makes a mockery of the underlying federal statute
defining medical devices -- yet his chutzpah charmed the media and made him into
an icon of benevolent interventionism. By opening up a whole new tobacco front,
Kessler distracted attention from the continuing fatal delays by his agency in
approving new lifesaving drugs and medical devices.

American citizens now have much less freedom to pass through airports, along
sidewalks, or on interstate highways unmolested by government agents than they
did in 1980. Federal, state, and local police have invented new methods in
recent years to exempt themselves from the Fourth Amendment, a citizen's
constitutional protection against unreasonable searches and seizures. So-called
"drug courier profiles" have allowed police to stop and search practically
anyone they please -- particularly anyone who displeases them. Once a profile is
created, police claim "reasonable suspicion" to stop and demand information from
people, and to pressure or force a citizen to submit to a search.

Drug courier profiles in many states include drivers who exceed the speed
limit, even though a Federal Highway Administration survey found that over half
of drivers on surveyed roads exceeded posted speed limits. New Mexico police
invented a drug courier profile to justify stopping drivers who showed
"scrupulous obedience to traffic laws." The Georgia state police instructed
troopers to be wary of "cars carrying a box of tissues, which signals cocaine
use, and cars carrying empty McDonald's cartons or pillows and blankets in the
back seat, which may signal drug runners in a hurry."

Numerous drug courier profiles have been devised for airplane passengers.
Some reveal that the first person off the plane is a likely drug suspect; others
insist that the last person off is the likely drug dealer; still others assert
that people who try to blend into the middle are the ones to suspect. In federal
court cases, drug courier profiles have justified government agents accosting
plane passengers who had non-stop flights, and those who changed planes; persons
traveling alone, and persons traveling with a companion; people who appeared
nervous, and others who appeared too calm. Among the tell-tale characteristics
in a widely-used DEA courier profile are "the almost exclusive use of public
transportation, particularly taxicabs, in departing from the airport" and
"immediately making a telephone call after deplaning."

In some cases, federal agents confiscate the traveler's cash if they are not
satisfied with the reason he gives for carrying more than a few hundred dollars
in his pockets. And if the citizen wants to sue to get the money back, legal
costs routinely amount to several thousand dollars.

Guns and Poses

The Republican Party's tacit support for increased federal power is
symbolized by the rubber stamp Congress gave to two new major gun control laws
late last September -- even though Newt Gingrich had promised no such laws would
come to the floor during his speakership. Congress re-enacted the Gun -Free
Schools Act, a law initially passed in 1990 that was struck down by the Supreme
Court, in a landmark 1995 decision, as a violation of the Tenth Amendment. The
court concluded there was no evidence that guns per se were involved in
interstate commerce, and that Congress had no right to assert federal control
over any gun that happened to be within a fifth of a mile of a local school.

Yet, while Bob Dole was waving his little card with the Tenth Amendment on
the hustings, Republicans in Congress joined a liberal stampede to reimpose,
with minor word changes, the Gun-Free Schools Act. The key provision of the law
declares: "It shall be unlawful for any individual knowingly to possess a
firearm that has moved in interstate commerce at a place that the individual
knows, or has reasonable cause to believe, is a school zone." Thus, anyone who
lives within or drives within 1,000 feet of a school could face arrest and five
years in prison merely for transporting his hunting rifle to his car parked on a
street in front of his house; similarly, anyone who drives within 1,000 feet of
any of America's 100,000 schools could get five years merely for having a pistol
in his glove compartment. Considering that police in recent years are using far
more checkpoints to stop and search cars, this law could entrap many Americans
who have no intention of shooting children during a school recess.

The other new gun law is the Lautenberg Act, which prohibits anyone from
possessing a firearm who has a misdemeanor conviction for domestic assault of a
spouse, child, or roommate. Since definitions of domestic assault vary from
state to state, the new law is more expansive than people might realize. If --
as widely rumored -- Hillary Clinton did throw a lamp at her husband in 1993,
that was an act of domestic violence that would be all the government would
need to forever prohibit her from owning a gun. Ironically, the new law will
disarm many women it claims to be protecting. Many localities now have mandatory
arrest policies for police answering domestic disturbance calls, arrest rates
for women are skyrocketing. According to Utah gun activist Sarah Thompson,
"Since both partners are often charged in domestic violence disputes, the new
law effectively prevents battered women from obtaining the safest and most
reliable form of self-defense: a gun." Because the Lautenberg Act is
retroactive, it has probably created at least a million new felons nationwide.

It is understandable that, considering the rise in crime in recent decades,
conservatives would instinctively favor granting more power to law enforcement.
However, one must recognize how much of modern crime is the result of bad laws.
If one excludes drug-related homicides, the murder rate in the United States is
actually lower than it was early in this century. As Senator Moynihan noted, "It
is essential that we understand that by choosing [drug] prohibition we are
choosing to have an intense crime problem concentrated among minorities...
Clearly federal drug policy is responsible for a degree of social regression for
which there does not appear to be any equivalent in our history."

Unfortunately, conservatives have often been unrealistic on the crime problem
-- hypnotized by the notion that if the government simply builds enough prisons
and ruins enough lives, everybody will be safe. But, as Montesquieu wrote, "As
[government] power grows, so security diminishes." The more that government
tries to protect everyone from everything, the more cause that Americans have to
fear the government. The more power that politicians seize to supposedly protect
people, the more power that government agents have to accost, arrest, plunder,
and harass innocent citizens.

Some conservatives may think they've won a great victory because Clinton
sometimes uses conservative rhetoric. But even George McGovern labeled himself a
"new conservative" for his 1974 Senate re-election campaign. Some conservatives
might say they are only concerned with the "big picture," or about moral values
and social issues. For others it is apparently enough that conservatives remain
in the ascendant politically. But what does that mean if the federal
government's power and claims continue to advance by leaps and bounds year after
year? The larger government becomes, the more likely it is that political values
will squeeze out private ones.

Republican congressional leaders must begin paying attention both to
principles and details. Rather than focusing on grandiose budget deals full of
unenforceable promises about spending and taxing in the next century,
Republicans must zero in on existing government abuses. Why have so many of them
shied from holding knockdown hearings about the abusive role of federal
agencies? If Republican congressmen lack the will to look into what the
bureaucrats are up to, public cynicism about their claims to be cutting "big
government" will only increase. The issue, ultimately, is not whether
Republicans hold on to Congress, but whether federal power can ever be rolled
back.