Penalties for politicians: Column

Glenn Harlan Reynolds | USATODAY

As scandals explode across Washington -- from the IRS scandals, to the Benghazi scandal, to the HHS donations scandal, to Pigford and more -- one thing that I've noticed is that the people involved don't seem to suffer much. There are consequences, but not for them. Likewise, Rep. Anthony Weiner, D-N.Y., left office in disgrace, but wound up with surprisingly lucrative consulting gigs.

This reminds me of something writer Robert Heinlein once said: "Any government will work if authority and responsibility are equal and coordinate. This does not ensure 'good' government, it simply ensures that it will work. But such governments are rare — most people want to run things, but want no part of the blame. This used to be called the 'backseat driver' syndrome."

Government officials are happy making and executing plans that affect the lives of millions, but when things go wrong, well ... they're willing to accept the responsibility, but they're not willing to take the blame. What's the difference? People who are to blame lose their jobs. People who are "responsible," do not. The blame, such as it is, winds up deflected on to The System, or something else suitably abstract.

But when you cut the linkage between outcomes and experience, you make learning much more difficult. When you were a toddler learning to walk, you fell down a lot. This was unpleasant: shocking, at least, and often painful. Thus, you learned to fall down a lot less often.

But imagine if falling down didn't hurt. You wouldn't have learned not to fall, or at least, you would have accumulated a lot more bruises along the way.

Given the low penalties for failure it faces, our political class is one for whom falling down is usually painless and even -- given the surprisingly common tendency of people who have presided over debacles to be given promotions rather than the boot -- actually pleasurable. The leaders move society's arms and legs, but we're the ones who collect the bruises.

The problem is that they don't have, in President Obama's words, "skin in the game." When it comes to actual wrongdoing, they're shielded by doctrines of "absolute immunity" (for the president) and "qualified immunity" (for lesser officials). This means that the president can't be sued for anything he does as president, while lower-ranking officials can't be sued so long as they can show that they were acting in a "good faith" belief that they were following the law.

Such defenses aren't available to the rest of us. And they're not even the product of legislation passed by Congress after considered judgment -- they're judicially created. (Judges gave themselves absolute immunity, too, for good measure.)

Then, of course, there's the unfortunate fact that the worse the economy does, the more important the government becomes. As Tim Noah pointed out back when the financial crisis was new, "On Wall Street, financial crisis destroys jobs. Here in Washington, it creates them. The rest is just details."

Some incentive system. And yet they want us to trust them to "fix the economy." My worry is that their idea of "fixed" may not be the same as mine.

I'd favor some changes that put accountability back in. First, I'd get rid of judicially created immunities. The Constitution itself creates only one kind of immunity, for members of Congress in speech and debate. (Perhaps unsurprisingly, courts have interpreted this grant of immunity, explicitly in the Constitution, more narrowly than the judicially created ones).

I'd also cut all payments to members of Congress whenever they haven't passed a budget. If they can't take care of that basic responsibility, why should they get paid? Likewise, I'd ban presidential travel when there's not a budget. He can do his job from the White House.

I'm willing to consider other changes: Term limits that kick in whenever there's a deficit for more than two years in a row. Limitations on civil-service protections to allow wronged citizens to get offending bureaucrats fired. Pay cuts for elected officials whenever inflation or unemployment are above a threshold.

But the real lesson is this: We entrust an inordinate amount of power to people who don't feel any pain when we fall down. The best solution of all is to take a lot of that power back. When the power is in your hands, it's in the hands of someone who feels it when you fall down. When it's in their hands, it's your pain, their gain. That's no way to run a country.

Glenn Harlan Reynolds is professor of law at the University of Tennessee. He blogs at InstaPundit.com.

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