Can 'Repeal' Improve the Political Debate?

The time isn't right for a caucus (nor is one necessary), but ad hoc coalitions could improve things.

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Over at Reason, Matt Welch proposes what he calls a "transpartisan repeal caucus," which would repeal horrible federal legislation that most Americans would want off the books anyway. He cites many examples, of which his first is the criminalization of marijuana:

We're not even talking about a constitutional amendment here... (Image by Judge Magazine, via Wikimedia Commons, public domain due to publication date.)

The federal government's decadeslong war on marijuana, one of the most life-mangling policies ever enacted, could be ended with a single sentence: The Controlled Substances Act shall not apply to marijuana.

Put it in a bill, vote on the bill, pass the bill, sign the bill, done. Much of the federal government's drug war law enforcement machinery would grind to a halt. No legislative horse-trading, no Christmas tree -- style gifts to favored constituencies, no giving old bureaucracies new responsibilities. Just the simple and urgent removal of the legal justification for grievous government harm. [links omitted, bold added]

There is much to be said for this idea, pro and con, and it sounds just feasible enough that I think it's worth looking at both.

Let's get con out of the way first, so we can better understand the merits: There is no current basis for anything like a permanent coalition -- as I take Welch's term caucus to imply. First, there is no widespread movement in favor of political freedom on which to base such a caucus. We see this most easily in the list of measures Welch come up with.

Can you imagine the same group of legislators voting for (or a President from either party signing) all of these? If that were possible, we'd have the basis we need for a political realignment of that group of legislators into a roughly pro-freedom party.

Second, the idea as Welch proposes it is unprincipled, as we can tell from Welch's own description of these laws as "anachronistic" -- a term I am pretty sure I have heard applied recently to the First and Second Amendments, and even to the Constitution as a whole.

Yes, the laws Welch enumerates inflict injustice, and should be repealed. But while they might have enjoyed support in the past, they were never a good idea because they violate individual rights. It is one thing to make a broad appeal to get one law or the other off the books: It is quite another to try to do this absent a unifying principle for a collection of laws as a whole.

That sort of unprincipled approach is a slippery slope to just holding a finger in the wind and voting with the majority on everything. Or to such an effort petering out in the same way (and for the same reasons) that efforts to curtail "fraud, waste, and abuse" in inherently fraudulent and abusive programs always do.

And this problem extends to the repeals themselves: Take that one-line "fix" Welch proposes for the Controlled Substances Act. Yes, it will greatly blunt the effects of that improper law, but it will leave it on the books. Worse, in the long run, this alone would leave unchallenged the idea that our government should be regulating what we put into our own bodies. There is no "fixing" a fundamentally bad law. (But read on: I'll come back to this later.)

So if the time is too early for a Repeal Caucus, or a coherent repeal agenda, or the complete abolition of some very bad law, what germs of a pro-freedom political strategy might there be in Welch's proposal?

First, Welch outlines something close to a way forward to get some blatantly horrible legislation off the books via more ad hoc coalitions of legislators, perhaps timed for a President more likely not to veto a given measure.

I would have no problem, for example, with getting marijuana de-listed as a controlled substance, so long as someone important in that effort made a strong case against the whole law, and framed that smaller "repeal" as a small step on the road to an actual repeal. (The lack of horse-trading would make it a lot easier, too.) That could pass a divided Congress and get signed by a Democrat President.

Second, I like the possibility that several of these efforts, if successful, could get the words repeal and abolish back into the political vocabulary of ordinary Americans. It is alarming how many people either (a) expect the government to control everything or (b) seem to regard bad laws as impossible to change. Perhaps, if actual pro-freedom advocates get involved, the phrase individual rights could become mainstream again. This might be a way to shift the Overton Window over time in addition to making our government less abusive.

Third, if some of these measures were passed, there would be real improvements in the lives of Americans, as there always are when there is more freedom.

That would be the best short-term effect, but I like the first two better. Long-term improvement of our political situation requires cultural change, and these political tactics cannot alone do much good. But they can buy time for that by loosening the noose of improper government a bit, and they can aid cultural change on the margins as I explained above.

-- CAV