Five Free State Reforms
NOTE: The opinions and commentary expressed in this essay are those of the author and are an exercise of free speech. They do not necessarily represent the views of Free State Project Inc., its Directors, its Officers, or its Participants.
Five Free State Reformsby Tim Condon April 4, 2003
PART I: POLITICAL REFORM IN THE FREESTATE
At the dawn of 2003 it became clear that the historic Free State Project (FSP) vote to choose a state would be taken before the end of the year. After less than two years toiling to organize and build membership, it has dawned on many of us that the ideas behind the FSP have ignited an excitement and energy that have not been seen since the inception of the modern libertarian movement in the early 1970's.
Given that we're bearing down on "the vote," it may be a good idea to ask now what effect choosing the Freestate will have on the Free State Project movement and its members. And what changes will occur to the Free State Project organization itself?
There are several answers. First of all, we can expect a radical change in the "feel" of the FSP movement. From it's inception in 2001, most of the talk both inside and outside the FSP has centered on "which state?" For Porcupines---people who have signed up as members of the Free State Project and thus promised to "make the move" once the Freestate is chosen---it has been an all-consuming issue (all the moreso since FSP members have from the beginning been given the option of "opting out" of moving to any one state or group of states).
The end of the "which state" issue will cause massive change within the FSP movement. Think about what it's going to be like without the "which state" issue to discuss and debate. The mission of the FSP will undergo a metamorphosis. The original task was to get 5,000 "pioneers" signed up, and then hold a vote. The job that comes after the Free State is chosen shifts rather dramatically from picking a state to assembling an additional 15,000 members who will commit to moving to the Freestate and becoming activists there in the cause of individual rights and pervasive social and economic freedom.
For those Porcupines who have been members prior to "the vote," the shift in emphasis will be tectonic. We go from urging people to join, research, debate, discuss, and ultimately vote on the Freestate to urging people to join up in order to commit to move to a state that's already been chosen. Big difference!
All the above being the case, now may be a good time to start considering what will happen politically in the Freestate when thousands of committed political acitivists begin moving there. After all, the Porcupine Promise is not only to move to the Freestate, but also to work there to institute reforms that will result in liberty in our lifetimes. But what exactly does that mean? What kind of political reforms will be instituted? What will our political direction be in this historic migration and reform movement?
In the run-up to the Free State Project vote it has been clear that our movement includes freedom-lovers of all stripes: Libertarians of both the "large L" and "small L" varieties, classical liberals, Randians, constitutionalists, individualist anarchists, Objectivists, Christian libertarians, liberty-leaning conservatives, and even liberals who value individual freedom. In short, anyone who can support the stated FSP goal of reducing state and local government size and power by at least 75% (a radical goal given today's political realities).
What is notable about the groups converging in the Freestate movement is not so much how alike they are, but rather what a wide range of opinions and goals are being accommodated, even while all support the drastic reduction of the size, power, and intrusiveness of state government. With such a politically and philosophically diverse group, it may be important now to start the discussion: Just exactly what will a program of political reform in the Freestate involve? Opinions are as diverse as the people involved in the movement, and disagreements are virtually assured from the outset. Yet are there fundamental reforms in the state political process that all FSP members should be able to support, no matter what their ideological orientation?
That's what this article is about.
Most FSP members and other freedom-lovers tend to talk in terms of specific policy prescriptions. Here are some that are regularly suggested and debated:
Dramatically reduce or abolish violations of property rights such as excess government zoning, eminent domain abuses, and police property seizures.
Abolish victimless crimes in the social sphere such as laws that criminalize private consenting sexual behavior.
End the state "war on drugs" that criminalizes the voluntary use of drugs other than alcohol and tobacco, such as marijuana.
Get rid of criminal sanctions against certain social and economic relationships that should remain in the sphere of private choice, such as prostitution and gambling.
Reduce state and local taxes to a level where only the truly legitimate functions of government will be funded, namely the protection of life, rights, and property.
Abolish harmful public welfare programs, to be replaced by private initiatives that truly help the needy instead of trapping them in downward cycles of despair and government dependency.
Institute the Fully Informed Jury Amendment, where juries will be empowered to judge the laws upon which criminal charges are based as well as the guilt or innocence of the defendants.
End the state monopoly on education, allowing every citizen the right to choose the type, size, and educational philosophy of schools their children attend, without being required to continue financial support of government schools.
Abolish all laws that criminalize the right to self-protection by limiting the human and Constitutional right to keep and bear arms.
I could go on and on. The list above is just a partial rundown of some of the areas of law that will need to be changed if the goals of the Free State Project are to be attained. In addition there are always (good) proposals on the fiscal side (what I call "fiscal fixes"). They include state constitutional provisions requiring balanced budgets; constitutional spending limitations (including possible "per citizen" spending restrictions), super-majority requirements for increasing taxes, and even an interesting proposal for "retroactive budgeting" where only monies collected the previous year could be utilized for state government expenditures (thus finessing the entire state government guessing-game called "budgeting" which often looks like a scam designed to increase spending no matter what tax collections are doing). All of these proposals are well-taken also.
However (there's always a "however").
The changes advocated above do not address more fundamental changes that will be necessary in order to institute and preserve a political structure of liberty. To the extent that both civil and fiscal laws can be changed, they can be changed right back, even if it's comparatively difficult to do so, such as with state constitutional changes. Reforms can be reversed; counter-revolutions can and do occur. One way is for the government sector to cause disruption and damage to civil society, blaming it, as always, on "not enough money" or "not enough regulation." Thus, to the extent that wasteful and unnecessary government can be cut, it can just as well be reinstated by a pliant, abused, or uninformed citizenry.
Consider what Free State Project president Jason Sorens has to say about the movement he founded: "The motivation behind the Free State Project, is the lack of progress that advocates of individual rights, free markets, and decentralization have made at the national level over the last few decades. Despite the revolutions in political and economic thought and practice that have occurred in the last two or three decades in particular, we remain on our heels, fighting a rearguard action against bloated governments that continue to grow." (From his 2003 speech to Vermont Citizens for Property Rights, http://www.libertyforall.net/2003/archive/feb16/property.html.)
With those words Jason puts his finger on the modern problem for those who advocate individual rights and personal liberty. With the fall of communism has come widespread recognition---even in some philosophical and academic circles---that socialism in its many forms is an abject failure, if not an intellectual cancer. Indeed, there is now worldwide recognition that freedom---in minds, markets, and economic relationships---is the best, fairest, and most efficient way for society to order itself.
And yet what do we see today throughout the world? Government at all levels continues to grow essentially unabated in taxing, spending, and overall power. In the United States as well as the rest of the world, the trend seems even to be accelerating. That is one reason the Free State Project has burst upon the scene: At one level it is a mass-movement response to the continuing juggernaut of government growth in the midst of widespread recognition that "more government is not the answer."
But don't the suggested changes in laws listed above address the problem? I suggest the answer is no. Not because all of the above reforms aren't laudable goals---they are. The problem is that they do not address the underlying, fundamental, structural problems that allow continued runaway government growth in taxing, spending, and power. Porcupines in the Freestate must demonstrate not only the wisdom and benefits of a truly free society operating within a free political system, but they must also address the underlying problem that requires libertarians and other freedom-lovers to continue fighting "rear-guard actions against bloated governments that continue to grow."
In short, Free State Project activists must develop and demonstrate a reform program that will somehow halt the underlying machinery that powers the continual trend toward ever more powerful government, ever more taxing, and ever more spending.
PART II: IS THERE A PROBLEM HERE?
In the late 1700's the Founding Fathers of the United States were struggling to form a constitutional republic under a new Constitution. They were well aware of the historical difficulties in forming a government that would exist to protect individual rights. They were even more aware of the difficulty of creating a government that would stay subordinate to the people, existing only to protect their lives, rights, and properties.
In a letter from Paris to his friend Col. Edward Carrington in 1788 Thomas Jefferson discussed the ongoing debate over the new proposed Constitution, and noted in passing that, "The natural progress of things is for liberty to yield and government to gain ground." In fact, some learned men of the time asserted that democracy was inherently unstable, and must end in collapse and despotism. Said Alexander Fraser Tyler (1748-1813) in The Decline and Fall of the Athenian Republic, "A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves money from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury, with a result that a democracy always collapses over loose fiscal policy, always followed by dictatorship."
Certainly history seems to bear witness to what appears to be an unfortunate truism. Indeed, even with the genius of the American Constitution crafted by the Founders---which attempts to guard against that which is warned of by Fraser, above---the wheels of American fiscal democracy seem to be falling off. No matter who is elected to what public offices, the result always appears to be more of the same. Elect a liberal Republican, and government grows and spends more. Elect a conservative Democrat, and government grows and spends more. And today? Elect a conservative Republican, and the growth and spending of the federal government actually accelerates over the previous administration of a liberal Democrat which itself constantly fostered federal government growth and increased spending.
So what is to be done? The Free State Project offers an extraordinary historical opportunity. The Founders of the American Republic specifically provided for multiple "sovereign states" that would allow for ongoing experimentation in government, to discover, in effect, what works and what does not. If one or more states became oppressive and unseemly in their grasping for money and power, the Founders reasoned, then the citizens of those states could simply pick up and move, presumably to other states more amendable to fiscal probity and individual liberty. The states are only required to have "a republican form of government" by the Constitution. The rest is up to the people of the respective states.
All of which furnishes the foundation for the Free State Project. Every member of the FSP understands that government at all levels is spinning out of control in terms of its scope, power, spending, and taxing---we wouldn't be members if we didn't understand those facts. The question---which we must start considering and discussing now---is how best to proceed in reforming the political process in the Freestate. How do we ensure that the values of the Founders are once again brought to the forefront on our political stage? Changing victimless crime laws won't do it (although that step certainly needs to be taken). Abolishing gun control laws won't do it (although abolished they should be). Reducing taxes won't do it (although that should be a first step of any reform plan). And privatizing government schools and allowing home schooling won't do it (although these steps should also be in the forefront of any reform plan).
No. What we need is to examine the fundamental structure of democratic government. We must come up with some method by which citizens will be protected from Jefferson's "natural progress of things, for liberty to yield and government to gain ground." For despite the Herculean efforts of the Founders, the "republican form of government" mandated by the Constitution for the states is proving ill-suited to restraining state governments to performing only those limited functions that the Founding Fathers originally foresaw.
A glimmer of an idea for the types of reform solutions we must propose can be seen in the old adage, "You can't fight city hall." That is, you can't effectively fight the power of government. Why? Because government essentially has unlimited resources! If your rights are being trampled by local planning, zoning, and land control bureaucrats, what can you do? In order to assert your rights, you must pay for your own lawyers, your own experts, your own champions to argue on your behalf (sometimes including corrupt officeholders). In additional to your monetary resources, you must also expend your time, attention, and energy which would otherwise be deployed in any manner you saw fit, such as the pursuit of your own happiness.
Now look at it from the other side: While you are expending your time, your attention, your money, and your energy to fight against some depredation of government, you must also at the same time continue supporting (funding) those same depredations! Time? For the government functionary, there is no limit to their time; they are paid (by you) to do what they are doing, whether it is just and right or not. Energy? They have unlimited energy, because they are paid to expend it against you, just as they have unlimited time. Money? Let's not even ask about that! Of course government functionaries have virtually unlimited resources: They have all the money they need. And if government should run short of money, well, then it need only increase taxes (an alternative seen virtually every month in some jurisdiction or another, if not every day).
In addition, people living under forms of democratic government have always been afflicted by the peculiar working of the democratic process itself: The concentrated, organized interests of the few always win out over the diffuse, unorganized interests of the majority, especially a majority which has no interest in controlling, running, and benefiting from government.
In recognition of the above problems, many political reform movements have tried to "starve the beast" by cutting back on its taxing and spending powers with spending limitations, balanced budget amendments, tax caps (both constitutional and statutory), or all of them. And yet, as we know, none of these hoped-for "silver bullets" seems to work. Inevitably the laws are changed, limits are overridden, constitutional provisions are circumvented, and the growth of government simply continues apace.
The causation? It essentially has to do with the nature of power, the handmaiden of politics, and the operation of political groupings. Consider one area in which government power is experiencing explosive growth, that of "land use planning."
Sounds great, doesn't it? Who could be against "smart planning," or "planning for future growth," or "putting the interest of the public first"? This is the way every expansion of government power is justified, every scheme for new incursions on individual rights are sold to the public. But the fact is that all government sectors serve certain constituencies, and rarely or never is one of them "the public."
Local government bureaucracies such as the now-ubiquitous "land use planning" offices exist at all levels of government, from the federal "Environmental Protection Agency," to statewide planning efforts, to the smallest zoning and permit offices in every county and most municipalities. These relatively new arrivals on the government bureaucratic stage serve at least five distinct constituencies.
First, there are the "concerned environmentalists" who think that "government planning" will "protect and preserve" the object of their affections, whether it be large trees, small fish, grasslands, birds, swamp, or what-have-you. Secondly, there are the out-and-out statists, those who believe that any expansion of government power, at any level, is an unalloyed Good Thing, and will "help everyone." Thirdly, there are those who most directly benefit from the creeping bureaucratic expansionism, mainly low-level bureaucrats searching for jobs (and power) who have graduated from colleges with degrees in "municipal planning," "environmental studies," and the such. They seek to "do good" and "help the public" with their superior education, skills, and foresight.
Fourth, there are those who benefit less directly, but still powerfully, the local political power structures. Those who strive to be elected and thus attain power through government---call them "petite politicians"---find that they can expand their power by handing out jobs to "planners" (for instance), who then support the goal of the petite politician for expanded power and re-election. In turn, petite politicians can use their expanding powers (and supporters) to further reward political supporters, and punish or harass those who are not supporters.
Fifth, there is a strange but ever-present constituency of those who can't bear the thought of other people running their lives and property the way they see fit. Call this the "Busybody Constituency." This is yet another bloc of voters, sometimes formidable, who support the local political power-seekers, the petite politicians, helping them to get re-elected and expand their political powers. This is a vicious political circle that the petite politicians and their supporters call virtuous.
That's five distinct blocs of power-seeking people and voters that unite, election after election, to support the expansion of local and state government powers. Their interests are usually far more concentrated, organized, and direct than the diffuse, unorganized general population with an interest (often unrecognized) in opposing the expansion of government taxing, size, reach, and power. Given these facts, is it any wonder that "land planning," "zoning offices," "smart growth planners," building permit offices, and similar petty bureaucracies continue their expansion throughout the country? As of now there's very little to oppose them. Concentrating a bloc of libertarians and other freedom-loving voters in a single state would appear to be the only possibility of stopped the government-growth cancer at this point.
"Government growth cancer"?
Let's take a detour into biology for a moment (I promise I won't wander too far afield). Government is sometimes referred to as an "organic" entity, one that grows, changes, and evolves to meet differing circumstances. If government can be likened to a biological entity, a "body politic" if you will, then the unchecked growth of government must be called a kind of cancer. And as with all cancers, if it is not treated and checked in its growth, the entire body (politic) will eventually die. That is what Fraser alluded to when he warned that a democracy that "collapses over loose fiscal policy [is] always followed by dictatorship," which is death to democratic government.
If the unchecked growth of government is like a cancer, then what might be promising treatments for a "cancer of the body politic"? In the biological realm, doctors and researchers are discovering that it may be possible to genetically modify viruses so as to enable them to carry "corrective instructions" to the madly reproducing cells that constitute the cancer. It is beginning to appear that many or even most cancers seem to have genetic components, and thus are at least partly "genetic diseases." If a virus could be modified to introduce genetic codes that may be able to defeat certain cancers, might not some kind of political reform to the very structure (the "genetic instructions") of democratic government be able to effect the same healing capabilities?
I think yes. And the following proposed reforms in state law, which can be effected at both the statutory and state constitutional levels, may go far to correct the endemic "genetic disease" of modern government, which is the unchecked growth of power, taxing, spending, and bureaucracy.
PART III: FIVE FREE STATE REFORMS
What follow are explanations of five crucial proposed Freestate political reforms. They are not held out as being the only political reforms that can effect the changes needed for the Freestate to become, well, free, but I assert they are the type of "structural reforms" which must be implemented if the Free State Project and its migrating members are to achieve success in their aim of creating a truly free political entity within which to live and work in the United States.
So here they come, the "Free State Five." Radical, yet All-American, proposals to make the Freestate politically a reality:
REFORM #1: Total legislative transparency. First we must begin to deal with the hegemony of the political class. What do we mean by the phrase "political class"? Libertarian Presidential nominee Rick Tomkins explains it nicely in a monograph on the Internet (that can be found at http://www.daft.com/~rab/liberty/misc/lib-class.html). Here is how he explains it:
A little over 150 years ago, a French writer named Charles Compte had a profound insight. He said the real "class struggle" was not between rich and poor, or capitalists and workers, or nobility and commoners. Compte argued that the real conflict was between the "economic class" and the "political class."
In his view, the economic class was made up of people who gain wealth through "economic means" -- production, work, and trade. By contrast, the political class obtains wealth parasitically, through "political means" -- confiscation, taxation, and other forms of coercion.
Charles Compte argued that these two classes are inevitably in conflict. The political class needs the economic class the same way a parasite needs a host. The economic class, however, does not NEED the political class, and would be better off without it. Whatever the details, the underlying theory is clear: the political class exploits the economic class through its control of the state. (From "Libertarian Class Theory," by Rick Tomkins)
In a republican form of democracy, part of the reason the political class can maintain its hegemony within elective government is because the "people back home" have difficulty keeping track of exactly what their representatives are saying, doing, and supporting in the states' or nation's capitols. One U.S. Representative from a "heartland state" (think Kansas or Iowa) in the 1970's was (in)famous among conservatives for voting nearly a straight statist, socialist line in Congress, yet holding himself out as a "conservative" to the folks back home. When a conservative friend and political activist asked him how he could get away with it and continue getting re-elected by his conservative-leaning district, he replied, "It's easy. I vote liberal and 'press-release' conservative." The liar doubtless benefited also from the cover afforded by left-leaning journalists both in Washington and in his home state, who knew what he was doing and helped obscure it in their coverage.
The first Free State Reform is designed to remedy this problem: In the Freestate, every public speech, every vote, every proposed law, every state constitutional amendment, every proposed regulation, every proposed rule, every debate must be totally disclosed, and easily accessed on the Internet. Secrecy and difficulty in finding out what government is doing benefits only the political class. And since the political class benefits from such "business as usual" arrangements, it has gotten to where some political sophisticates assert that government secrecy, complexity, obscurity and opacity are not only reasonable but "necessary."
In the past, people living in under a republican form of democracy were forced to rely upon the character and honesty of the leaders they elected to political office, to ensure that their will was carried out in a wise and reflective way. But history has shown such reliance to be a vain hope. But up until recently it has been virtually impossible to create and enforce true "government transparency." Just last year, when trying to obtain reliable figures on the current state budget of Florida (over $50 billion and growing), I found it almost impossible to obtain the numbers. A politically-connected friend finally had to intervene personally with a state representative, and even he remarked that getting the information had been "like pulling teeth." And that was for the state budget! What could be more important to disclose and publicize in a democratic political system than the amount of money being taken in and spent?
Fortunately, the travails of the past in this area can now be overcome. Now we have the Internet. And a better, quicker, easier, more transparent way of disclosing what government is doing could not be invented. To be sure, the political class will still seek to obscure and hide crucial information, even with mandates that it be publicly disclosed. But in a free state (such as the Freestate), think-tanks, foundations, and citizen organizations (possibly such as the Free State Project itself) will be on the scene to help, and will hopefully ensure that the requirement of government and legislative transparency is honored. Think Citizens for a Sound Economy, the Cato Institute, the Reason Foundation, and others.
REFORM #2: Office of Government Downsizing. At present every part of government at every level---local, state, and national---is essentially an engine striving to expand its scope, size, and funding. Any other state of affairs would be inconsistent with the state of things as they are (remembering Jefferson's dictum about "the natural state of things"). After all, consider the incentives involved. Why would anyone in the political class seek out a government job---at any level---and then try to reduce its size and scope? Of course people who work in government---and thus control the levers of policy and action---will want it to expand! How else would they be able to do all the good things that they want government to do for the rest of us? Gaining political or bureaucratic power is a long, hard, slog that some would compare to a multi-year military campaign. And yet we expect those who engage in such struggles, when they finally attained the status and power they seek, to then guard against an increase in their status, power, and wealth? Hardly.
What we all face in this dynamic is a fundamental, structural problem in the way a democratic government "works" to constantly accrete power. The only way to change that dynamic is to insert "contrary instructions" into the system itself. And for that we must consider the establishment of an official bureaucracy---part of the government itself--- dedicated to reducing the size and scope of government at whatever level it is empowered. In the Freestate, such an office would mostly likely be headquartered in the state capitol, and its sole job would be to use its resources to scale back state government.
A contradiction? You bet! And the notion of an Office of Government Downsizing (OGD) is subject to attack on several fronts. First, it would create an additional bureaucracy at the state level, thus at the very outset expanding that which it would supposedly be chartered to prevent. Second, many would see creating such a department it as a vain hope; history shows that virtually all "regulatory bodies" (think CAB, ICC, FCC, and others) are courted, seduced, and then taken over by the very industries they are created to oversee. The OGD, some would argue, would be no different.
My response to such arguments might be called an "argument from desperation." We are in extremis. Nothing has worked to slow the onrush of bloated government up to the present time, so obviously no other idea has worked. But maybe this one will. It could always be abolished if the OGD came to be neutered by the political class. And in the end, no "fix" can possibly work unless the people are willing to support it. As Supreme Court Justice Learned Hand famously wrote, "Liberty lies in the hearts of men and women; when it dies there, no Constitution, no court, can even do much to help it."
What would the Office of Government Downsizing do? Work constantly with its staff to rally public and political support for the reduction of taxes, bureaucracy, and the size and scope of government power. Perhaps it could be given "counter-incentives" to fight the well-known existing incentives inhering in government work; perhaps it could be funded with a portion of the monies saved when other parts of state government were shut down or devolved to the private sphere. But most importantly, it would have the resources---the time, the energy, the money---to fight the "natural order of things" that so far has proved intractable and impervious to all previous attempts at long-term control.
REFORM #3: Citizen Veto. The third crucial Freestate reform would be a direct check on government and political overreaching by the citizenry. The Citizen Veto would provide for a "snap election" to be held on any new law passed that expanded state government control, power, scope, regulation, taxing, or any other type of expansion. Here's how it would work: If, upon passage by the state house, the state senate, and the signing by the governor of the Freestate of any law which increases state government power, size, regulation, spending or taxing, a petition of 1,000 citizens may be presented to the Office of Government Downsizing in the state capitol challenging that law and calling for a Citizen Veto election. Thereafter a statewide vote would be required to be held within (say) 90 days after the submission of the petition. If the vote results in a majority in favor of retaining the law, then it stands. However, if a majority votes to block the law, it is considered "vetoed" and is rendered null and void.
This proposal is also subject to objections. First of all, some would argue that it opens the door to "mobocracy," which would include cynical manipulation of a credulous and uninformed citizenry (in Florida, for instance, the state constitutional amendment procedure has resulted in passage of constitutionally required expenditures of billions of dollars that state does not have, for things like "bullet trains," reduced public school class sizes, and other dubious proposals). The response to this objection is twofold: First, the Citizen Veto can only be brought on behalf of preventing an expansion of government, not its reduction (which would have to be interpreted by the judiciary, another possible weak point for statists to gain an edge). And second, please refer again to the Judge Learned Hand quote above.
There is another benefit to taking a "snap vote" upon presentation of a petition and 1,000 signatures. Because statewide votes can be quite expensive---with neighborhood precinct voting places having to be set up and staffed, ballots printed up and transported, etc.---these votes would be taken by requiring voters to cast their votes in their county seat election supervisors' offices. A secondary benefit of structuring the votes in that way would be that only those truly interested, aware, and knowledgeable would take the trouble to visit their election offices and cast their votes.
REFORM #4: Office of the Public Protector. Everyone is familiar with the system of "Public Defenders" implemented throughout America as a result of a U.S. Supreme Court decision in 1963, right? In the famous case of Gideon v. Wainwright the justices decreed that no person could be tried for a crime that might send him or her to jail without being afforded free legal counsel if they could not otherwise afford it. Basically, what the public defender system seeks to do is "even the playing field" between the criminally accused and the unlimited resources of the government (how well the public defender system functions in its stated purpose is another issue, and one subject to continuing debate that is not germane here). It means that if a criminally accused person is faced with a charge that can result in even one day in jail---and, not incidentally, is faced with the unlimited resources of government trying to put him or her in jail---then the government must also provide free criminal counsel if the defendant is indigent. This is an example of inserting a counterweight into the machinery of government on behalf of some (the wisdom of doing so and thus forcing taxpayers essentially to subsidize the defense of indigent criminals is another issue not germane here).
Remember my remarks above about the where and why of the saying, "you can't fight city hall"? Why not create a "public defender system" not only for the criminally accused, but for anyone who is attacked and harassed by government or any of its subdivisions for any reason? Certainly spending time in jail is a serious potential consequence for criminal defendants. But so is having one's property regulated, restricted, confiscated, removed from the marketplace, restricted in its use, etc. The Office of the Public Protector in the Freestate would serve to protect not criminal defendants from the power of the government, but rather all citizens who face local or state government power. ln this way the imbalance between normal, private citizens and the essentially unlimited power and money of the state would be redressed.
What kind of things would the Office of the Public Protector (OPP) concern itself with? Simply put, everything. Any time any citizen of the Freestate sought to do or not do something that any level of government was trying to force him or her to not do or do, the OPP would be required to step in and assist and defend the citizen against the government bureaucracy.
Uh oh, here come the objections. First, this would create a new bureaucracy. True enough. But we're faced with the present situation where no one but the rich and/or well-connected can even hope to face down the unjust use of local or state government power. The only way to redress such a situation is to also make available to the normal citizen the same unlimited resources that the government enjoys. Second, how would we keep the OPP from being taken over by the government interests it is chartered to oppose? That argument may be met by pointing to the public defender system itself, which hasn't noticeably been charged with being a tool for helping the government put people in jail. However, as with all such innovations, a close watch would have to be kept on the OPP, to make sure it "performs as advertised." If it became just another mechanism for the expansion of government, it could be abolished.
Yet a third objection to the Office of Public Protection might be that "it would make it impossible to get anything done! Government would be hamstrung!" In other words, it would make the normal course of government expansion in size and power much more difficult. Somehow or other, I doubt that this argument would resonate very well with FSP Porcupines and other freedom-lovers. Nevertheless, the short answer to this objection is, "Precisely. Only those projects and actions that should actually, really, justly, legally, and constitutionally be undertaken by state or local government entities will be allowed to proceed. Otherwise they would be blocked by citizen action and the Office of Public Protection." Think about it. A "political public defender for everyone"!
REFORM #5: Return to the spoils system. Finally there is my last proposed reform, and in many ways what might be viewed as the most perverse of all (if you were a big supporter of the unlimited expansion of government). We all know that government at all levels is actually a form of "big business." It is a substantial employer at all levels. This is why the percentage of a state's population that is employed by government is one of the variables included in the Free State Project research materials. Although freedom-lovers can and do work in various levels of government---and can be expected to do so in the Freestate, where their presence in government will be crucial---the existence of large blocks of people who obtain their livelihood from government normally can be expected to support the expansion of government. Especially its "tax take."
And government, we must never forget, is also the one "legal monopoly" that we must all deal with. This is why public employee unions are so dangerous; their employer is a monopoly. And not only that, but one with the power to seize money and property through taxation. Since the aim of workers unions is to benefit their workers, and since government workers benefit from the expansion of government, and since the expansion of government also benefits the public employee unions by expanding their membership, a vicious circle is created which operates to constantly ratchet up taxes, spending and bureaucracy.
The question is, how do we go about stopping that ratcheting process? One way would be to create "term limits" for government employees, allowing only a certain number of years working for government, after which an individual would be required to leave and seek private employment. But such a plan would involve throwing out the baby porcupine with the bath water; the good employees who serve the public well and perform their duties conscientiously would be precluded from continuing to do a good job. So government employment term limits are a bad idea.
My suggested alternative is to simply remove the special employment protections on the state and local level that exist on the federal level (and in most states) by virtue of the "Hatch Act." Let us review some relatively recent political history. The Hatch Act was passed in 1939, named after Sen. Carl Hatch of New Mexico. It's formal name was "Act to Prevent Pernicious Political Activities," and was intended to prevent the growing numbers of federal employees from having an inordinate influence over national political elections (this was in 1939, remember, after 7 years of the Great Depression with Franklin Roosevelt in office; socialism seemed to be the wave of the future). It basically prohibits federal employees from taking part in partisan political elections (and with the government employees unions being a mainstay of the modern Democratic Party, we see how well that idea worked out).
The idea doubtless seemed reasonable at the time, but there was a quid pro quo too. And that was the establishment of protections for federal employees that today have resulted in it being almost impossible to fire an incompetent, lazy, insubordinate, stupid, lying, or thieving federal employee. In fact, the phenomenon of employees "going postal" (usually with a blazing gun) is thought to have come from the idea that has become widespread, that a government job is "for life." Most of the crazies who "went postal" did so after finally being fired after overwhelming evidence was presented that they should not be retained in their government employment.
Why make efficiency in employment so hard? If there were a return to the badly-named "spoils system," elected government functionaries would have huge incentives to make sure that "their people" served the public cleanly, honestly, and well. If those employees came to be seen as overbearing, dishonest, or abusive, the citizens could simply "fire their boss" in the next election, whereupon a wholesale change of personnel could be expected to take place.
In addition, such a system would also create powerful incentives for government employees themselves to perform their jobs well and cleanly. Knowing that they could be out of a job if they incur the ire of their constituency (the entire citizenry), there would be a premium placed on doing a job well. And in fact, even if one politician were voted out and replaced with another, there would be an incentive for the incoming pol to fire only those public employees who performed poorly or inadequately, keeping those who did their jobs well.
Objections? Oh sure! Lots of them, starting with "the Hatch Act wouldn't have been passed if it wasn't needed." Well, that may be, but 1939 was a different era and a different world. Another objection is that "the best people won't be attracted to government service!" But it's difficult to see how that would be true since the aim is to put government employment on the same par as private employment, and there's no lifetime job security with private companies, is there?
Yet another, more serious, objection would be that the clique "in power" would proceed to utilize public resources---money as well as employees---to campaign for themselves and keep themselves in office. That possibility, however, could be dealt with by simply keeping the laws on the books that states already have which prohibit such activities. Simple.
Even if some of the objections above were to be seen as legitimate, the question needs to be asked: "How bad is the problem that we're trying to deal with?" Given that the whole aim of the Free State Project is to demonstrate to the rest of the country and the world what a free, limited-government state could become, most hardships relating to state government would be well worth the effort.
And there they are. The Five Reforms that I urge upon the citizens of the Freestate once it is chosen and the migration has taken place. Like them? Abhor them? Like some and not the others? Very well, then! Let the debate and discussion begin!
My proposals are not offered up as the be-all and end-all of political reforms. They are merely a template for where I think we should begin, and how to proceed, in establishing a free state, a free regional economy, and a free civic society in the first half of the 21st Century with the Free State Project.
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