Freedom at Risk: Reflections on Politics, Liberty and the State, James L. Buckley, Encounter, 294 pages
By Gerald Russello
Historians of American conservatism pass too readily over James Buckley and his 1971-77 tenure in the U.S. Senate. They tend instead to focus on two other periods. First is the efflorescence of conservative talent and intellectual engagement in the 1950s, as illustrated by the publication of Russell Kirk’s The Conservative Mind and the founding of National Review by James Buckley’s younger brother, William. The second period begins with the 1980 election of Ronald Reagan. In between, conservatives are usually cast as Christians in the catacombs, quietly enduring the cultural upheavals of the 1960s and 1970s.
But this is too simplistic a tale. James Buckley shows that conservatism was not moribund after Goldwater and before Reagan, not even on the political scene. In 1970 he won election to the U.S. Senate on the Conservative Party ticket in New York. He performed well in New York City itself, at a time when the city still had a beating conservative heart in the middle-class neighborhoods of the outer boroughs. Buckley’s achievement is unlikely ever to be repeated. But his significance in the shaping of American politics does not end there.
In 1976, he was the lead petitioner in Buckley v. Valeo, the Supreme Court decision that shaped modern campaign-finance law. The ruling struck down limits on independent expenditures, candidate self-financing, and overall campaign spending—but it upheld restrictions on direct contributions to candidates. As Buckley notes in a 1999 essay included here, limiting direct contributions has tended to favor the current holders of power. The court effectively eliminated the possibility of a third-party candidate becoming nationally viable with just a few wealthy supporters. The ruling also created the endless phonathon that is the current mode of congressional fundraising.
Having lost a bid for re-election to the Senate to Daniel Patrick Moynihan that same year, Buckley went on to a distinguished career as an undersecretary of state—during Reagan’s first term—and a federal appellate judge. In between, Buckley held a number of other positions, including as president of Radio Free Europe in the mid-1980s. These varied roles render him perhaps the only living American to have held high office in all three branches of the federal government.
Freedom at Risk collects almost 40 essays, speeches, and commentaries over this long career, covering subjects from the Cold War to environmental regulation, from foreign affairs and energy policy to campaign-finance reform and the role of judges. What comes through in Buckley’s impassioned but not overly partisan writing is that the federal system is broken and cannot be fixed unless certain features—federalism and judicial self-restraint chief among them—are reinstated. In his charming 1973 piece “On Becoming a United States Senator,” Buckley explains how legislators vote on bills they cannot possibly have read or mastered. The bills are too long and convoluted and Senators have pressing demands on their time—including, thanks to the Buckley decision, constantly beseeching donors. Actual legislative deliberation is almost impossible. Major laws such as Obamacare weigh in at thousands of pages, to say nothing of the thousands more pages of regulations to come.
There is simply no way for members of Congress to know what is in these laws. By necessity, most members “will cast their votes on a largely reflective political basis; and because nearly all members of Congress are full-time career legislators, a member’s calculus will inevitably include an assessment of the impact of a particular vote on his chances for re-election rather than being based solely on his best judgment as to where the public interest lies.” Thus legislation is drafted and passed thanks to a combination of lobbying, press reports, gut feeling, and partisan favor-swapping, a situation that has only worsened since Buckley served. It is a sign of how barren our political discourse has become that few notice, and even fewer care about, this devastating critique of Congress.
Buckley deals with the other branches just as tellingly. The executive is now more of a permanent royal court with a rotating monarch, as described by Gene Healy in The Cult of the Presidency. In most mundane matters, the proliferation of executive agencies by necessity means the president has less control over his branch’s direction and structure. The upshot is the rise of a salaried bureaucrat class that holds much of the government’s power, with little accountability absent some scandal to attract attention. Buckley identifies examples in the IRS and Occupational Health and Safety Administration that can be multiplied today. The only omission in his critical audit of the federal government is a comparison between the size of the military and its effect on liberty. Buckley, a veteran and a conservative from the era when military spending was a bulwark against the Soviet threat, does not go there. To his credit, however, in “Conservatives vs. Corporate America,” he notes that big-business interests are as statist as liberal interests.
The problems of an activist judiciary are well known, and Buckley’s arguments will be familiar, yet they add to the vivid portrait drawn by this consummate Washington player exposing the rottenness inside the Beltway. Buckley was an active participant in the debates of the 1970s and 1980s over the proper bounds of constitutional interpretation, both on an individual level—how a judge’s personal views ought to influence his decisions—and on more abstract questions. The problem with “judicial activism” is the same as that which Buckley identifies in the other branches. Judges, like bureaucrats, are basically without supervision, and like members of Congress they feel a strong desire to put their vision of democratic politics into action, with little regard for the consequences or constitutional restraints on their power.
In an essay titled “A Catholic Judge in Caesar’s Service,” Buckley puts his judicial philosophy to the test, stating that “federal judges have no license to insert their own views of what is right or just into constitutional or statutory law,” including their religious views. This makes sense as far as it goes, but conservatives seem to be the only side adhering to the principle. Since the 1970s, the state has become more anti-religious: in many cases, a religious judge now faces laws that enforce a particular view of political life, one that in many instances is actively hostile to believers.
Buckley is no libertarian, nor even a Tea Partier. His patrician background and familiarity with government mark him as a conservative of a different era, a man of the right fully comfortable appearing on National Public Radio. His essay “Three Cheers for the Snail Darter” promotes a once eccentric conservative environmentalism that would likely find more resonance on the right today. Buckley decries the overbearing regulatory structure of environmental laws, but he does not lose sight of the importance of preserving the natural world, even by federal regulations. He remains mindful, however, of the corruption and mismanagement that a regulatory regime separated from market forces and the electorate can cause.
Buckley turns to federalism and intra-branch respect for boundaries at the federal level to remedy the continued degeneration of representative government, though he recognizes the latter would require an inner check against overreach that is foreign to most government officials. And Buckley falls shy of being a full-throated defender of states’ rights; he thinks that “the division between state and federal authority that once obtained in this country” is no longer desirable. He does not explain why that is the case, but it may be a reflection of his East Coast conservatism, which has always been more comfortable with national power than state autonomy.
His federalism is a mixture of philosophical principle combined with a feel for the realities of the crushing fiscal and logistical burdens the federal government faces. He writes that desiring a return to federalism is not wishful thinking: “perhaps it is not altogether too romantic to hope that necessity, if not philosophy, will lead us to discover the robust federalism that in times past provided this nation with such extraordinary strength, flexibility, and freedom.” Yet that robust federalism is focused on the impossible economics of centralized government; he does not discuss in much detail the cultural shifts such a robust federalism would require to resist Washington’s centripetal force.
The Republican Party has not been keen to heed James Buckley’s warnings. In a note following his essay on “Overloading the Federal Horse,” however, he expresses hope that the Tea Party will provide the necessary corrective to government bloat in light of the immense shocks the financial crisis has caused. Indeed, Buckley’s four-point plan to limit the power of the federal bureaucracy might be a good start for any Tea Partier on a congressional committee—he calls for “narrow[ing] the scope of administrative discretion by sharpening the focus of congressional mandates,” providing greater procedural protections to “individuals and business that are subject to regulation” (“a taxpayer, for example, ought not to be presumed guilty until proven innocent” in dealing with the IRS), permitting “anyone suffering a loss as a result of bureaucratic negligence or abuse” to sue the federal government, and “entitling any successful contestant in a civil or administrative action to reimbursement of any reasonable costs incurred in presenting his case.” These are sensible prescriptions—but it remains to be seen whether the Tea Party will be co-opted before anything like them can be enacted.
Freedom remains at risk from a combination of government overreach, soft despotism, and cultural disintegration. These essays are a stark reminder that despite the conservative victories of recent decades, the progress of a statist liberalism has proceeded almost unchecked. These thoughtful pieces are a call to action, but not only in the political arena. Buckley implicitly provides a sobering lesson: for conservatives, politics is not the ultimate answer; our abiding interest is in creating a culture in which politics serves individuals and communities. That is the only way liberty is lastingly sustained.
Gerald J. Russello is editor of The University Bookman.
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