Early last week, a watchdog website hosted by People for the American Way, a liberal advocacy group, reacted with alarm to a political-legal strategy outlined in a new book by the conservative social theorist Charles Murray. Normally when liberals assail Murray it’s in connection with his infamous tome The Bell Curve, which made him synonymous with race science—specifically the presumption that I.Q. differences between whites and blacks can be partially attributed to genetics.
Twenty years later, Murray has moved on to a more direct form of conservative activism, and taken a critical look at the mixed record of various expensive right-wing efforts to roll back the New Deal consensus. As you might expect from someone as deterministic as the author of The Bell Curve, Murray has concluded that the conservative movement’s shortcomings must be explained via reference to its political DNA and the political DNA of its competitors. But rather than reason much as he did two decades ago that these shortcomings reflect the intrinsic weakness of his ideology, he has concluded instead that the system is rigged against it. Appealing as populist libertarian ideas are to him and his cohort, or as they should be in the abstract, they simply can’t compete in a democratic environment with downwardly distributive progressivism. For the right to gain advantage, it will have to change terrain.
In his latest book, as PFAW explains, Murray hopes “to have one or a few anti-government billionaires kick in to create ‘The Madison Fund,’ a legal group that would flood the government with lawsuits challenging the enforcement of regulations they deem unnecessary.”
This is an apt description of Murray’s strategy, but the strategy itself happens to be the least revealing or alarming in his book. By The People is not first and foremost a book about billionaires subverting federal regulations, or beleaguered citizens seeking redress with the help of libertarian philanthropists.
It is instead about the impossible odds conservatives face if they hope to implement a libertarian agenda, and thus about the need for conservatives to think more devilishly about how to subvert democratic and quasi-democratic processes. The book’s title—By The People—has been held up for ridicule for exemplifying the emptiness of the populist appellations conservatives typically apply to the handiwork of wealthy, self-interested ideologues. But perhaps the joke’s on us, and Murray’s simply using a different form of the word “by” than Abraham Lincoln had in mind when he wrote the Gettysburg Address.
The subtext of Murray’s argument is that principled conservatives can only set back liberalism with rearguard action, and that even then, they can hope only for modest victories. Remarkably, the 100-page buildup to the strategy that has PFAW so concerned reads less like a battle cry than like a manifesto of hopelessness—or perhaps like a letter of surrender to the left. Murray tells his fans that “a restoration of limited government is not going to happen by winning presidential elections and getting the right people appointed to the Supreme Court”—asking them to accept, as a premise, that the billions of dollars conservative activists have spent trying to advance the cause through the White House have been wasted, or at least could have been better spent.
Like an adolescent Ayn Rand devotee, Murray can’t quite come to grips with the unattractiveness of his ideology. He is perfectly aware that the policies he opposes and the regulations he wants to overwhelm with litigation could theoretically be overturned by Congress and a conservative president. But to him, the unlikelihood of that outcome isn’t attributable to the normative weaknesses of his worldview but to a playing field that’s tilted against it. His ideas falter not because the people don’t support them, but because a series of ingredients, including—in his words!—the democratization of the House of Representatives, have corrupted the political system systemically. To the extent that “the people” he claims to be speaking for don’t rise up to challenge this corruption, it’s because they run up against what Murray calls “the fundamental theorem of democratic politics”—the fact that “people who receive government benefits tend to vote for people who support those benefits.”
“As of 2012,” Murray laments, “approximately half of all Americans received such benefits.” And more than one in three receive such generous benefits (either through welfare or retirement programs) that “the continued security of those programs is likely to be near the top of the recipients’ political calculations.”
Conservatism has been checkmated, not by a superior player, but by an unscrupulous one. Under the circumstances, Murray sees no choice but to move the game from the chessboard into the wild.
In truth, there’s nothing particularly novel or disquieting about the scheme Murray’s drawn up, except insofar as the procedural extremism conservatives have deployed in the Obama era is alarming in general. From the moment conservatives lost the White House six and a half years ago, they’ve been asking judges to do on their behalf what they’ve been unable to accomplish in the democratic branches. A few weeks from now, the Supreme Court will issue a ruling in a case that was devised as part of an explicit strategy to hobble the Affordable Care Act through the judiciary, knowing that the legislature wouldn’t be able to do it for them.
This strategy has been intermittently successful, but has also run aground when its objectives—such as paralyzing the administrative state by flooding the courts with litigation—are unsupportable or too nakedly political. Notwithstanding Murray's continued influence over conservative thinking, including favorable mentions just this month by GOP presidential candidates Jeb Bush and Rand Paul, his latest big idea will run into a feasibility problem: even if it were attempted, it wouldn't work particularly well.
What’s refreshing about By The People is that it blows right past the typical pretense that conservatives are, humbly and alone, defending the constitution and the rule of law, except to the extent that he believes the country went off the constitutional rails in systemic fashion several decades ago. He happily admits that his means here are subversive, undemocratic and of questionable legality. His substantive aims are not so different from those of, for instance, National Review writers Reihan Salam and Ramesh Ponnuru, who have outlined an agenda for the GOP Congress that includes unwinding the cooperative federalist models, responsible for so much of the regulatory and redistributive status quo Murray detests, and subjecting the regulatory regime in the crosshairs of his litigation strategy to legislative approval. But what Murray sees that others don’t, or won’t admit, is that these goals can be achieved only by short-circuiting the normal policy-making process.
It’s a shame in a way, because notwithstanding his Romney-esque conception of the political economy of modern welfare states, Murray’s overall critique of the American political system has a lot of merit to it. Were Murray’s central purpose to make Congress and the executive branch more responsive to the public, irrespective of the public’s political disposition, he’d find a lot of support in unexpected places. But that’s not his central purpose, and for good reason. As infuriating and frustrating as the U.S. government’s many corruptions are, they do not explain why conservatives have failed to upend enforcement of environmental, anti-discrimination and workplace-safety regulations. That’s why his preferred instrument of reform isn’t the ballot box, but the court system, and that in turn gives away the game. The former helps ensure that policy reforms have public sanction. The latter makes it possible to sneak ones that don’t By The People.