Eating Up the Bread of Our Children

Amazing, that with a federal budget of nearly $2.5 trillion, several elected officials have succumbed to the temptation to accept bribes in exchange for steering some of that federal largesse to particular individuals or industries! What is truly amazing is that, with such massive amounts of money at stake, we don’t have a lot more of this sort of corruption.

Predictably, there will be a lot of hand-wringing in Congress about the corrupting influence of lobbyists on the political process. “Just say ’No’” may work for kids, but apparently it is hard for members of Congress to fathom. Expect to see new rules barring members of Congress from accepting petty perks—lunches, a free trip to give a speech, etc. We will likely even get a spate of new restrictions on the ability of ordinary citizens to petition our government for redress of grievances, an explicit constitutional right. But does anyone really believe that any of these measures will cure the insatiable appetite of members of Congress for money, or of an over-regulated private sector to seek special favor at the hands of Congress?

The obvious answer to that question is a resounding “No,” because such measures are aimed at a symptom rather than the underlying problem itself. The problem is unchecked, and even unconstitutional, spending that provides the temptation for all the corruption and influence-peddling that occurs in the lobby of Congress.

Our nation’s Founders actually dealt with this problem in the Constitution. Congress’s power to spend is not unlimited, as so many in that august body seem to believe. Rather, spending is permissible only to “provide for the common Defence and general Welfare of the United States.” James Madison, rightly regarded as the Father of the Constitution, believed that this permitted spending only to further the other enumerated powers in Article I, section 8 of the Constitution. Alexander Hamilton viewed the clause more broadly as a separate grant of power, but believed that the power was nonetheless limited to matters of “general” or national welfare, not merely local or regional welfare. This line between national and local, like the similar line between interstate and intrastate commerce recently reinvigorated by the Supreme Court, was designed to preserve the lines of political accountability. The Constitution delegates to the national government only those matters of shared, truly national concerns, leaving the residual of power to the states and local governments, where its exercise would be subject to closer supervision by the people.

A couple of examples from the early Congress’s will demonstrate the point. The First Congress rejected a bill to loan money to a glass manufacturer after several members challenged the constitutionality of the proposal. The Fourth Congress went so far as to reject, as unconstitutional, efforts to provide disaster relief to the people of Savannah, Georgia, after a fire destroyed the city. During the Second Congress, a protracted debate occurred over a bill to pay a bounty to New England cod fishermen. The bill was ultimately approved only after it was amended to make clear that the payment was merely a refund for unconstitutional taxes that had been collected and not a bounty, which was thought to be unconstitutional. Representative Hugh Williamson argued that the word “general” in the Spending Clause was a limitation on federal power, which made it unconstitutional “to gratify one part of the Union by oppressing another.” In remarks that are a fair description of contemporary politics, he continued:

Establish the doctrine of bounties; set aside that part of the Constitution which requires equal taxes, and demands similar distributions; destroy this barrier;—and it is not a few fishermen that will enter, claiming ten or twelve thousand dollars, but all manner of persons; people of every trade and occupation may enter in at the breach, until they have eaten up the bread of our children.

When Congress failed to restrain itself from unconstitutional spending, the President weighed in, vetoing bills that appropriated funds for “internal improvements” that were primarily of local rather than national benefit. The Election of 1800 was in part fought over competing views about the scope of the spending power, and almost every President from Jefferson until James Buchanan, and a few since then, adhered to the view that spending for “internal improvements” was not among the powers conferred upon the federal government. In 1822, for example, James Monroe vetoed a bill to repair the Cumberland Road, noting that the Constitution’s spending power was restricted “to purposes of common defence, and of general, national, not local, or state, benefit.”

After a brief interlude of unconstitutional spending during the administration of John Quincy Adams (a significant part of the reason he was a 1-term president), President Andrew Jackson vetoed an internal improvements bill in 1834 with language so forceful that Congress did not even try to appropriate funds for internal improvements again for more than a decade.

Then, in 1847, Congress tacked nearly a half million dollars of unconstitutional local improvement pork onto a perfectly valid $6,000 appropriation for the Wisconsin territory. President James Polk vetoed the bill, noting the purpose of the constitutional restriction: “that the expenditure being in the hands of those who are to pay the money and be immediately benefited, will be more carefully managed and more productive of good than if the funds were drawn from the national treasury and disbursed by the officers of the General Government.” He outlined the disastrous consequences that would follow from the adoption of such a bill: It would come “to be considered the highest merit in a member of Congress to be able to procure appropriations of public money to be expended within his district or State, whatever might be the object.… [C]ombinations of individual and local interests will be found strong enough to control legislation, absorb the revenues of the country, and plunge the government into a hopeless indebtedness.” Then, with uncanny prescience, he described perfectly our current scandals:

But a greater practical evil would be found in the art and industry by which appropriations would be sought and obtained. The most artful and industrious would be the most successful; the true interests of the country would be lost sight of in an annual scramble for the contents of the treasury; and the member of Congress who could procure the largest appropriations to be expended in his district would claim the reward of victory from his enriched constituents. The necessary consequence would be sectional discontents and heartburnings, increased taxation, and a national debt, never to be extinguished.

President James Buchanan raised an even more significant problem that would arise should unconstitutional spending for local rather than national purposes take hold. Members of Congress would naturally prefer to fund local projects rather than the “more distant objects intrusted to the Federal Government”—to the great detriment of the national interest and even of national security. Moreover, such spending “would remove the most wholesome of all restraints on legislative bodies—that of being obliged to raise money by taxation from their constituents—and would lead to extravagance, if not to corruption.” I’d say he understood the problem perfectly.

Perhaps it is asking too much for elected officials to restrain themselves in the face of the kind of temptations that arise with a $2.5 trillion budget, but certainly the Supreme Court could play a more active role (or at least some role!) in enforcing the Constitution’s limits on federal spending. Were the Court to reassume this duty, most of the earmarked spending that has become the focus of the latest corruption controversy would be ruled unconstitutional. Funding for Alaska’s infamous “bridge to nowhere,” for example, would be unconstitutional because it clearly falls on the “local” rather than the “national” side of the general welfare line (and would undoubtedly not be built if those expected to benefit from it actually had to pay for it!). Our national representatives could then get back to the business of addressing matters of truly national concern, and leave to the rest of us back home whether we want to tax ourselves locally for local improvements.

Dr. Eastman is an Adjunct Fellow of the Ashbrook Center, Professor of Law at Chapman University School of Law in Orange, California, and Director of The Claremont Institute Center for Constitutional Jurisprudence.

“First Principles” is a monthly column that appears in the Los Angeles Daily Journal that addresses current legal issues in light of the principles of the American founding. Copyright 2006 Daily Journal Corp. Reprinted and/or posted with permission. This file cannot be downloaded from this page. The Daily Journal’s definition of reprint and posting permission does not include the downloading or any other type of transmission of any posted articles.