“Increased centralization and bureaucratic rulemaking can easily lead to a democratic deficit” - conversation with Ilya Shapiro

Lénárd Sándor: Ilya Shaprio is leading the Robert A. Levy Center for Constitutional Studies at the Cato Institute, which is a prestigious American think tank that believes in a limited governmental role in both domestic and foreign policies. According to University of Pennsylvania surveys, Cato ranks among the top 10 think tanks in the U.S. and is one of the most widely cited research organizations across America. So my first question is what was the major driving force that led to the establishment of the Cato Institute in the mid ’70s?

Ilya Shapiro: In the late ’60s and early ’70s there was a fervent libertarian thought and political activism across America that coalesced in the Libertarian Party. Edward Crane, the founder of Cato who holds an MBA and was a businessman, was also involved in the Libertarian Party but decided that his efforts would better be spent in creating a think tank. He got together with Murray Rothbard, a political philosopher representing the intellectual side of this endeavor, and David Koch, who along with his brother Charles provided the seed money to start the organization. They hired very early on David Boaz, who is to this day Cato’s executive vice president. For the first few years after its 1977 founding, Cato was based in San Francisco, but then quickly moved to Washington. This was a controversial decision because there was a concern that Cato would get “swallowed by the swamp” as it became involved in politics rather than public policy and political philosophy. For example, Milton Friedman argued that Cato should not move or at least wanted to make sure that everyone was dedicated to maintaining the Institute as a think tank rather than an activist group. But here we are and Cato celebrated its 40^th anniversary last year in a weekend-long celebration.

L. S.: Congratulation on Cato’s 40^th birthday. Now, if you look back to the past decades has the Institute managed to achieve the goals that were originally set in the ‘70s?

I. S.: Well, we have a very good reputation and we have a reputation for being principled rather than playing red team [Republican] or blue team [Democrat] politics. What you are asking is the eternal question with non-profit organization, and especially with think tanks. How do you measure success? There are different metrics such as how many op-eds are published, how many times scholars are asked to address important organizations or appear on TV, or how many times the Supreme Court cites you. We measure those metrics, of course, but I don’t think that they really tell you very much. I think what counts more is whether our work is respected. Our donors certainly think that it is and based on the impact we have on the media and based on what the experts of various policy fields think, Cato is doing solid work even if they disagree with it. The impact on public policy is also hard to measure. Cato has been promoting a wide variety of policies that might take 30 years to change. We are freer and have more liberty now than we did when Cato was started, so some of that must be due to our efforts. In addition to that, Cato is also a model for smaller think tanks in every state of the country that wants to advance these kinds of ideas. But it’s hard to draw direct causation other than if a politician says that he proposed a policy because of a Cato report or book, or if a court says that it ruled this or that way because a Cato brief was persuasive. That’s direct proof but it happens very rarely.

L. S. Well, I happen to read Supreme Court majority opinions that explicitly cited amicus curiae briefs filed by the Cato Institute. I think these examples clearly show the influence Cato has on public policy questions. Since you mentioned the legal area, can you also explain to us the establishment and role of the Center for Constitutional Studies of the Cato Institute?

I. S.: Roger Pilon, a political philosopher who holds a PhD from the University of Chicago and was an official at the State and Justice Departments under the Reagan administration, sketched out an idea to Ed Crane in the late ‘80s to start a center with the aim of focusing on constitutional principles. When the Reagan administration ended in 1989, Pilon came to Cato; so this year this center is celebrating its 30^th anniversary. Last year, it was named after Robert A. Levy, who is the current chairman of Cato’s Board and has been involved in various ways with Cato. He was a successful businessman who went to law school in his fifties, clerked for two important judges, and then came to work at Cato. He also became a Cato donor and is also on the Board of the Institute for Justice and the Antonin Scalia Law School at George Mason University. I have been with Cato for nearly 12 years this past January became director of the Levy Center.

L. S.: Can you tell us a little bit more about Cato’s and the Levy Center’s most important fields of research and about the major avenues of promoting its policy views and about how those policy views shape the governmental public policy decisions?

I. S.: In sum, the general theory is to affect the climate of ideas. We do that through media, white papers, academic and newspaper articles, , videos, blogs, and more -- so we are using all of the modern tools of communication. Unlike Cato’s other policy departments, the Center for Constitutional Studies has the additional legal arena. Therefore, besides media, academics, and the political process, we can have an impact on the courts as well as on the legal community. Accordingly, we file amicus curiae (“friend of the court”) briefs in the Supreme Court and in lower courts. We’ve managed to build a strong brand and are renowned for the effectiveness of our advocacy. We also publish papers and legal policy bulletins of various kinds. We comment on the news and when there is a Supreme Court vacancy we will be on TV and writing articles evaluating who should fill it and what are the nominees’ strengths and weaknesses. In general, we attempt to enforce a vision of the Constitution that applies all of its parts, meaning that we set up a structure of limited powers and unlimited rights. This is a “third way,” whereas conservatives might want to limit government but do not want to recognize as many unenumerated rights, while progressives do not want to see any limiting principles on the federal government. We think that we are more faithful to the text of the Constitution based on an idea to create and empower a government in order to secure and protect our liberties while at the same time, through “checks and balances,” “federalism,” and the separation of powers, forcing it to control itself.

L. S.: When you pointed that you are using the court system to achieve the mission of the Center for Constitutional Studies, do you only think of the Washington-based federal judiciary or do you think of various courts around the country so are you present throughout America?

I. S.: We used to be exclusively in the Supreme Court, but have moved to other courts. We filed around 80 amicus curiae briefs last year and 15 of them were on the merits before the Supreme Court, while another 30 were at the “certiorari stage,” urging the Court to take the case. Then another 25 or so were filed in the federal courts of appeals, and the rest in states supreme courts. In general, the briefs before the state courts are joining local organizations that have the same goals that we have, because they know better the local processes. We are usually involved in local cases when there are compelling issues of federal constitutional laws, but our priority remains the U.S. Supreme Court.

L. S.: Speaking about the Supreme Court, in one your of recent articles, “The Supreme Court: Too Important” you make the argument against the “Wilsonian” idea of an increased centralization by pointing out that the federal government is making too many decisions at a national level which lead to heated political battles and polarization. What you are suggesting is to bring public policy decisions closer to the people and let states and localities make most of the decisions that affect American’s daily life. As you said in his article “let Texas be Texas, California be California, and Ohio be Ohio”. This principle is called “federalism” and it is part of the system of “checks and balances.” In your view, did the Supreme Court live up to the expectation of defending this constitutional principle and states’ rights throughout the past decades? What can we expect from the conservative shift in the Court in terms of the balance between the central government and the states?

I. S.: Well, “federalism” is not a panacea, not the entire solution to what ails the body of politics. However, it is a very important part of the solution because this is a very large country in terms of geography, population, and the complicated issues that arise. There are lots of different points of views, values, and perspectives on public policy. So it’s very difficult to be in agreement; every decision taken in Washington will frustrate or disappoint or enrage many people. In order to minimize that unfortunate dynamic, federalism is important, as you rightly pointed out. Let different states have different kinds of policies. This used to be the case in America. But we’ve begun to have more of a centralized government than even, for example, Canada. I was born in Russia and we immigrated to Canada when I was little; Canada for a long time had a reputation as having a strong national government while the provinces were weak. In the last 30 years, however, Canada and the United States have basically switched places. Canadian provinces have much more room for experimentation and flexibility in many ways than American states do. This is an odd situation because America prides itself on “Federalism”. According to Justice Louis Brandeis’s famous formulation, states are the laboratories of democracy. But now we have Washington setting the rules in a “one-size-fits-all” spirit from health care to the regulation of cars to manufacturing rules. I think the Supreme Court began to make mistakes in this area since the late 1930s and early ’40s, especially with a case called Wickard v. Filburn in 1942, which allowed the federal government to regulate the wheat that a farmer was growing in his own backyard for his own purpose, under the guise of regulating interstate commerce. Over the decades, the Supreme Court has allowed the federal government to grow beyond its constitutional limits. That’s why we have national regulation and legislation that do not necessarily work well and are not popular in all parts of the country. It took decades to get where we are now and it will take decades to get back. Since the Supreme Court has an originalist or conservative majority, I am optimistic that there will be more checks on the growth of federal power. But it will take a long time to get where we need to be.

L. S.: I am wondering whether this “one-size-fits-all” approach led you to oppose the Patient Protection and Affordable Care Act of the previous administration.

I. S.: We did oppose Obamacare as a matter of policy: it’s the worst of “crony” capitalism combined with the worst of socialism. For my purposes, from a legal perspective, the federal government should not be regulating insurance nationally first of all because insurance contracts do not constitute interstate commerce. Furthermore, Obamacare is forcing people to buy a particular product. Chief Justice John Roberts ultimately rewrote the individual mandate into a tax to uphold the law, but Obamacare remains a particularly egregious violation of the U.S. constitutional structure.

L. S.: In your article you are also referring to the dangers of the regulators embedded in the “Washington Bureaucracy”; in other words to the phenomenon of the growing “administrative state”. Can you shed light on this dilemma?

I. S.: While federalism involves the “vertical” separation of power, the problems with the administrative state go to the “horizontal” separation of power. The legislative branch is abandoning its responsibility by legislating very broad laws that give a lot of power and discretion to the administrative state -- which is part of the executive branch -- to fill in. Most of the laws and regulations under which we live our daily life are not passed by Congress. Instead they are passed by regulators. This leads to a lack of accountability and a democracy deficit.

L. S.: Since you mentioned democratic deficit, currently there is a growing debate in Europe around both the democratic deficit of the European Union and the repeated attempts of centralization. The Precedens recently published a detailed analysis here about these dilemmas. How do you see the challenges of democratic deficit and concentration of power in the European Union in the relation between the European political elite and the Member States?

I. S.: There is indeed a similar dynamic in the European Union. Moreover, in the EU, this problem is squared because some national sovereignty is given up to or shared with a multinational agency which in turn has an administrative, bureaucratic branch. The lack of responsiveness and accountability certainly has led to frustration with the EU and then this contributed to Brexit, for example. So these are similar types of concerns. And the root of the problem is that people cannot elect or defeat bureaucrats at the polls. So in terms of remedy, they have to sue them. This is the only thing that they can do in the United States, but in Europe there are even less remedies available. As a result, here the Supreme Court ends up deciding all of the battles over policy differences and clashes of values rather than those things being hashed out by the people’s representatives in the legislature. This is the reason why you see more protests in front of the Supreme Court than in front of Congress—which is absurd. You think people protest because of political reasons in front of the political branch and not in front of the branch that is just supposed to be applying the law. This shows a shifting responsibility. This horizontal imbalance in the separation of power has also thus contributed to the politicization of the judiciary.

L. S.: Speaking of the judicial branch, you were editor in chief of 11 volumes of the Cato Supreme Court Review. What are the modern constitutional challenges ahead of the U.S. Supreme Court and constitutional courts around the world?

I. S: Different countries face different challenges. However, checking executive power both in terms of administrative agencies and in terms of the presidency or other executive leaders is among the most important challenges. There are various dangers in the ever-growing executive branch, especially in this age of populism both from the left and the right. Freedom of speech is also a modern challenge in America, since people are trying to outlaw so-called hate speech. America was founded on a very broad conception of freedom of speech, more than any country in the world. So while there is certain speech in Britain that would subject you to serious criminal and civil penalties for libel, in America there is nothing like that. Now there are movements in America to restrict speech. It is very dangerous to give government the power to decide which speech is permissible and which is not, whether it relates to politics or culture or anything else. This problem is increasingly being felt here on college campuses. The Supreme Court has been very protective of the First Amendment and I think it’s going to get more of these types of cases in the near future.

L. S.: And how do see free speech on social media and on other private digital media platforms?

I. S.: Well, the democratization of media has its pluses and minuses. On the plus side you do not have to compete for very valuable and limited space on physical newspaper columns to get your words out. If you have an Internet connection and a smart phone you can be your own publisher on twitter, on blogs, on Facebook, and on many other platforms. On the other hand, this makes it easy for socially harmful things to come out. One of the questions is what are these platforms supposed to do about these concerns. They are not the government and they certainly do not want to be regulated by the government. But at the same time they allow misinformation to be spread and a discourse that is less healthy than it was in the past. Although again, you need to add that it is more democratized since no longer only the elite is able to speak. It is also much easier to create virtual communities since you can be connected to people all over the country and all over the world for a particular hobby, for policy agenda or for environmentalist causes, among other things. So it is a lot easier to find community and exchanges ideas and amplify them. The government’s role in these circumstances isn’t clear, other than not to create certain kinds of regulations that benefit established players at the expense of smaller entrepreneurial future innovators. Unfortunately, this often happens when regulators come in, trying to preserve the status quo. This is the reason why it’s not suprising that Mark Zuckerberg has asked for some sort of regulation: he runs a very big and wealthy company than can afford lots of lawyers and compliance officers. But someone who is coming up to disrupt that platform or compete in various ways will not be able to do so. So government needs to be very cautious—even if acting out of benevolent motives—about putting in regulations that slow innovation and prevent the marketplace of ideas from solving these kinds of problems.

The interview is also available in Hungarian.

Photo credit: Cato Institute