A federal government led by Joe Biden would look much different from the government under President Trump. Elections clearly have consequences.
But regardless of who prevails on Election Day, or whenever we learn the election’s ultimate outcome, much of the government will plough ahead with little change. That’s a key message from a new book. It’s titled The Unelected: How an Unaccountable Elite Is Governing America.
“People don’t understand just how much government activity that oversees our lives — how much of that apparatus goes forward no matter how we vote,” said author Jim Copland during a recent online forum for the John Locke Foundation. “It’s not that the elections don’t matter. But they only capture an incomplete picture.”
Copland, a New Bern resident and UNC-Chapel Hill alumnus, directs legal policy for the Manhattan Institute. He has encountered the “unaccountable elites” depicted in his book during more than two decades of work in the public policy arena.
“Working on things like tort reform in the civil litigation system, looking at the administrative state and regulation, looking at overcriminalization … they all sort of come back to this central point,” he told his online audience. “We see a lot of government being done and a lot of liberty being lost from individuals who are acting without public accountability.”
Critical decisions circumvent government actors who should face accountability. “In many cases, we see significant, radical shifts in the legal and regulatory structures that govern our lives without Congress ever taking a vote, without the people actually elected deciding to do so.”
For Copland, the current system has veered away from the design spelled out more than 230 years ago in the U.S. Constitution. “The Constitution had two animating principles,” Copland explained. “There was a notion of limiting the government to prevent abuse. … and then the notion of having a publicly accountable government that was in some ways active and could get things done but was ultimately accountable to the people.”
Now? “Those two principles have been substantially eroded,” Copland said.
Part of the problem stems from substantial federal government growth. “In the first Congress, the total appropriation of the federal budget was only $639,000,” Copland said. “Even adjusted for inflation, that’s $10 million. Right now, Congress can’t agree on the next level of COVID relief. But the gap is between $1 trillion on the [Republican] side and $3 trillion on the [Democratic] side.”
A substantially larger government enables many nonelected political actors to play prominent roles. Copland identifies four major groups.
“Each of these forces matter,” he told his N.C. audience. “We might reform one of them, and it wouldn’t necessarily change as much as we might think if we’re not cognizant of the fact that all these other players are similarly working to govern us without any public accountability.”
Copland labels his first group of unelected elites “rulemakers.” Federal rules and restrictions arise from more than just the standard lawmaking process. The old “Schoolhouse Rock” tune, “I’m Just a Bill,” tells only part of the story.
“In the criminal law sphere, for instance, we don’t know for sure how many federal crimes there are,” Copland explained. “It’s just too voluminous for us to even know. The estimate is around 300,000 federal crimes exist. Of those, 98% came into being without an express enactment by Congress.”
Those crimes resulted instead from unelected rulemaking agencies set up by Congress. “This is quite a departure from the principle espoused by [John] Locke, among others, that animated the Constitution — that the lawmakers had to make the laws. They couldn’t delegate the lawmaking and make new lawmakers.”
Along with rulemakers, Copland counts “enforcers” among his unaccountable elites. “We can get something that’s in some ways even more lawless than regulatory rulemaking itself, and that is this ad hoc government by the threat of force,” he said. “I compare it to ‘The Godfather.’ This is an offer you can’t refuse.”
Military contractors, pharmaceutical companies, and financial institutions cannot operate if government cuts them off. They must remain in government agencies’ good graces to keep their businesses running.
The issue affects more than just large corporations. “If you’re a small business owner without a team of lawyers at your disposal, how are you supposed to comply with 300,000 federal regulatory crimes? There’s just no way.”
Speaking of lawyers, Copland dubs his third group “litigators.” These unaccountable elites change public policy through the courts. “A lot of folks, I think, who are skeptical of government power … say, ‘Well, this is much better than the administrative state,’” he said. “Sometimes it is. Sometimes it isn’t. But make no mistake: This is still state action. Nobody is a defendant in court by choice.”
The final group on Copland’s list carries a name resurrected from American history: the “new Antifederalists.” The name refers to local and state officials “basically dictating policy for everyone else.”
“So the mayor of New York coming out and trying to change climate change policy, which is clearly an international question with a federal nexus … trying to do it from City Hall in New York or San Francisco, we see these sorts of cases,” Copland said.
State attorneys general also attract Copland’s attention as new Antifederalists. State government-driven lawsuits often generate national policy implications. “The litigation gets farmed out to plaintiffs’ attorneys on behalf of the state attorneys general, who often get a lot of campaign contributions back from the plaintiffs’ lawyers who they turn around and hire.”
We’re unlikely to hear much about rulemakers, enforcers, litigators, or new Antifederalists as Biden and Trump wage their battle for the White House. But The Unelected reminds us of their importance. These groups will continue to play an unaccountable role in governing our lives on Inauguration Day in 2021 and beyond.
Mitch Kokai is senior political analyst for the John Locke Foundation.