An “independent”, agenda-setting bureaucracy 10/24/16

There is an op-ed article today in the WSJ, unfortunately behind the firewall, that unwittingly lays bare the unconstitutionality of the regulatory state as it currently exists in the US. The article was written by former Chairman of the SEC, Arthur Levitt Jr., and is ostensibly a critique of Senator Elizabeth Warren’s call for current SEC Chairman Mary Jo White to be removed for failing to implement a “rule” regarding corporate political donations that Warren favors. Levitt correctly calls out Warren for improperly trying to influence the SEC’s “agenda”, but his reasoning reveals the mindset of these unelected bureaucrats and how shamelessly unmoored from the Constitution the regulatory state has become.

Levitt says:

No rule—no matter how merited—is worth the damage that would be caused if the SEC were compelled by political intimidation to write it. That’s not how good regulations emerge, and what’s worse, it would poison the regulatory process for all time. The moment the SEC loses its ability to set its own agenda is the moment it loses its ability to protect the investing public.

The SEC does not operate as a pass-through entity for Congress, merely following congressional direction. Rather, it’s an independent agency, and its chairman is empowered to set the agenda for the agency’s work. This agenda takes shape in many forms—rule makings, speeches and enforcement actions—and must be set by the chairman, not Congress. This is by design.

Say what? The “agenda” of unelected bureaucrats agency “must be” set by themselves and not by the elected members of Congress? Perhaps Levitt would like to point out where in the Constitution such bureaucrats have been granted this rather awesome power. Contrary to what Levitt seems to think, that the SEC is supposed to operate as a “pass-through” entity for Congress, following its direction, is the only way it can operate that would justify its existence.

Levitt goes on to say:

That’s not to say the agency should be free from congressional oversight. Throughout its history, politicians from both parties have sought to influence its work. That’s to be expected, and a good regulator welcomes outside views, especially those coming from elected leaders who write the laws the SEC implements. Ultimately, Congress holds the power to pass laws requiring agency action; and that option is available to Sen. Warren.

But Congress must respect the SEC’s independence, and thus freedom, to focus on a fixed agenda. Once confirmed to lead the SEC, its chairman has a singular goal: To meet the agency’s mandate to protect investors, facilitate capital formation, and ensure fair and orderly markets.

Well, isn’t that generous. Good regulators should “welcome” the “outside” views of elected representatives, the very people who are actually empowered by the Constitution to write legislation.

Levitt is of course correct to inform Warren that if she wants to impose a new law, Congress has the power to do exactly that through actual legislation. But it is precisely the vaguely defined regulatory “mandate” that Levitt himself embraces which allows the likes of Warren to think that she can impose new laws without the hassle of actually going through the constitutional process.

This is an excellent example of how pervasive and shameless the undemocratic, unconstitutional mindset that typifies the regulatory bureaucracy has become.

(This link may or may not work to get the article…not sure:

37 Responses

  1. Good observations. Did Levitt point out that Warren was attacking the SEC for exercising the exact independence that she demands for the CFPB?

    Liked by 1 person

    • I like this:

      Talking about the HRC emails, he mentions repeatedly “Again, these are stolen documents.”.

      Wallace noted that while the hack of Podesta’s email was almost certainly illegal, the transmission to The New York Times of excerpts of Donald Trump’s tax returns indicating he had taken a loss of almost $1 billion was also likely a breach of law.

      “They were clearly stolen,” Wallace said.

      “We don’t know that,” Mook replied.

      It’s Okay If You’re a Democrat, I guess.

      Hillary Clinton has repeatedly argued that there is nothing wrong with her family’s arrangements, because no explicit quid pro quo ― that is, exchange of cash for specific political favors ― has surfaced. This argument has troubled many Democrats, who note that the campaign’s defense relies on the weak definition of corruption outlined in the Supreme Court’s 2010 Citizens United decision.

      One more reason liberals thinking that Citizen’s United will get overturned are living in a fantasy land.


    • Vox lets everyone know what the standards for corruption are now:

      “The most obvious problem with it is that money from the Clinton Foundation never went into Hillary Clinton’s or Bill Clinton’s private bank account.”


      “but Clinton was not actually in position of authority at the time of the donation.”

      So, as long as the cash doesn’t end up in your personal checking account and you aren’t actually in office (or maybe just not in a position to make a final decision on some action), then it’s not pay to play or any other type of corruption.

      Good to know.


  2. Worth a read:

    “How Democrats Killed Their Populist Soul

    In the 1970s, a new wave of post-Watergate liberals stopped fighting monopoly power. The result is an increasingly dangerous political system.

    Matt Stoller”


    • jnc:

      My first observation: The author’s use of “monopoly” and “power” have virtually no referent in reality. They are floating abstractions used for their emotive effect, but as far as I can tell they refer to nothing specific or real whatsoever.


  3. Kevin, re Westworld check this out

    “The Man in Black (Ed Harris) is hot on that trail in this episode, trying to find, as he puts it, the last page in the book written by the park’s co-founder, Arnold. But he also tells several characters that he’s there to free them — most notably, Lawrence (Clifton Collins Jr.), whom he’s been dragging around as a sort of sidekick since the last episode.

    What the Man in Black seems to think freedom means for the Hosts in general is the ability to take responsibility for their choices.

    “If you did consider your choices, you’d be confronted with a truth you cannot comprehend: that no choice you ever made has been your own,” he says to Lawrence. “You’ve always been a prisoner. What if I told you I’m here to set you free?”

    This — coupled with his immediate interest when he spots the snake Armistice (Ingrid Bolsø Berdal) has tattooed across her back — convinces me more and more that the Man in Black is a sort of complicated Lucifer character, though that’s not necessarily, in this universe, a bad thing.

    In the biblical Genesis narrative, Lucifer appears in the form of a snake to Eve, daring her to eat from the tree of the knowledge of good and evil. The implication there is that before she ate from that tree, she didn’t know there was such a thing. After she does, she can never go back.

    So maybe what the Man in Black is after is to bring the consciousness of choice, and the responsibility that comes along with it, to the Hosts, most of whom, it seems, he knows intimately, even if he’s always new to them (at least so far). You can see this as an act of cruelty, or you can see it as an act of freedom.”


    • Man in Black is awesome. And, yeah, he clearly seems to know there’s a way in the system to give the hosts greater self-awareness. Got to be what he’s looking for.

      I love his response when another guest praises him for the work his foundation does, threatening to cut his throat if he says another word. He’s on vacation!

      So much to love about that show. Also, I think Bernard is an android. Who either ran the maze and woke up, or was made that (or put on that trail) by Ford’s partner, Arnold. Bernard might even be the android that killed Arnold.

      I think Dr. Ford knows but probably nobody else. Those are my operative theories. The first show like this since Lost that I’ve really gotten addicted to.


      • “threatening to cut his throat if he says another word.”

        I’d like to see them address how PvP combat works in Westworld.

        Sure they can disable the guns, but there are several other ways a guest could hurt another guest, either intentionally or accidentally.


  4. This is the kind of thing that really irritates me about the media.!

    State Department aide pleads the Fifth more than 90 times

    A former State Department IT aide invoked his Fifth Amendment rights and refused to answer more than 90 questions Monday during the final deposition in a lawsuit over Hillary Clinton’s private emails.

    Now, you lawyers can correct me if I am wrong, but I thought that as a witness you are not allowed to pick and choose the questions to which you plead the fifth. You either do or you don’t, on all questions. Which means that the headline should really be “Lawyers continue to pose 90 questions after State Department aide pleads the 5th”.

    Liked by 1 person

    • Everything irritates me about the media. Anything big happens that get broad coverage, you can almost be guaranteed of the news missing the point or getting big parts wrong and using language that’s completely misleading, probably with little awareness of how they are adding noise more than clarity.

      The recent DDoS attacks on Dyn being a great example. Everything I saw was either wrong, used very misleading or sloppy terminology, and left out important parts or important facts. One story I read mentioned, in passing, DDoS mitigation (saying whatever Dyn was doing, it wasn’t enough). But I didn’t find anything that discussed what the mitigation was, if it was in house or outsourced, what the problem with the mitigation was (which is the central issue: a successful DDoS attack means the mitigation failed! It’s the primary aspect of the story, almost unmentioned). No discussion of what the DDoS attack was, if there was some spin that confounded the current cutting edge of mitigation, and so on. Or if Dyn was just sloppy (the likely answer, by Occam’s razor).

      And I’m a dilettante when it comes to networking technology and network security. About stuff I know less about, I have to assume the news and general reportage and punditry is just as wrong or more wrong.

      Rush Limbaugh frequently made a point, which I think is 100% true, that anybody who has been a participant in an event that was or becomes newsworthy, should understand the media is not a source of truth, and that it’s rare that what’s reported and what you witnessed remotely resemble each other. I’ve rarely been in the news, but have been once or twice in my youth. At the time, it was certainly true, and I see no sign that it’s gotten better. I expect it’s gotten worse.


    • If they don’t go after that guy for perjury, then it’s dead letter at this point and people can just refuse to testify to Congress at will, or flat out lie as it suits them.


      • There is a perfectly good evidentiary reason why a Defendant in a criminal case must either testify or refuse to take the stand. In a criminal case, the Judge must instruct the jury that no inference of guilt may be drawn from the Defendant’s failure to testify. Else the “Right” is illusory. So the D is not allowed to pick and choose.

        There is a perfectly good evidentiary reason why a witness in a civil proceeding can pick and choose. That is because the trier of fact is explicitly permitted to believe that the witness does have guilty or self incriminating knowledge about each refusal. In a civil trial, say for money damages for stock fraud,
        the jury will pile on the D who selectively takes the 5th.

        Presumably, with careful questioning, the Congressional panel now knows from whence the smoke emanates. It can use this witness’s transcript as a door to open a wider investigation, but one that is more likely focused on the salient facts.


        • This is my issue:

          “Bentel told the House Select Committee on Benghazi in June 2015 that he had no knowledge of Clinton’s private email server.

          However, the State Department inspector general later discovered that Bentel “told employees in his office that Secretary Clinton’s email arrangement had been approved by the State Department’s legal staff and also instructed his subordinates not to discuss the Secretary’s email again,” according to the court order.”

          I don’t see how both can possibly be true.


        • Well, JNC, being clever, I can square the testimony, but I certainly think a false swearing charge would lie if there is evidence that Bentel knew, before the June, 2015 testimony to Congress, that HRC used a private email server for govbiz and that he was directly asked by the Committee if he knew that HRC used a private email server for govbiz, and denied it.

          Move away from specifics and the criminal charge gets much tougher to stick.


  5. Works for me.

    “Federal Judge Rules for Free the Nipple, Holds Topless Ban May Violate U.S. Constitution
    By Mark Joseph Stern”


    • the best part we be hearing about the awful male-gaze when dudes they don’t find attractive also look. or about body-shaming when guys don’t look at all the girls equally.


  6. Two quick replies:

    1] Levitt and those like him lack required humility. His appropriate remark would have been, as you suggest, something to the effect that SEC attempts to fulfill the mandate Congress gave it, and if an individual Senator wants to alter the mandate she should introduce a bill, get it passed, and signed by the President. Further, she can consult an attorney about other remedies available if she thinks SEC is not carrying out its ministerial function according to its Congressional mandate or is regulating outside the boundaries of its mandate. A sole US Senator playing personal grievances to the press is unseemly and can be seen as political posturing, from even the most well meaning critic holding public office.

    2] The 5th A. use it or lose it one time rule is generally limited to criminal trials. I have taken civil depositions where the deponent took the 5th A. on many key questions. The nature of the proceeding you linked may have permitted selective answering of questions.


    • Mark:

      The 5th A. use it or lose it one time rule is generally limited to criminal trials. I have taken civil depositions where the deponent took the 5th A. on many key questions. The nature of the proceeding you linked may have permitted selective answering of questions.

      Thanks. If that was the case, then my criticism was unfounded.


    • Mark:

      Levitt and those like him lack required humility.

      I suspect his attitude is pretty typical, if only because it is precisely the attitude promoted by Congress itself. The fact of the matter (and this is the root of the problem) is that Levitt isn’t wrong about the mandate that is granted to these regulatory agencies such as the SEC. It is so broad and vaguely defined that it allows the heads to implement their own, often times highly political, agendas.


    • It’s impressive how lying is almost the default position. If you get a chance, watch the Weiner documentary. I don’t think his approach to lying to the press about everything that he doesn’t want to talk about is atypical at all.


  7. Points for using “kulaks”.


  8. I thought the end of the exchange between Kelly and Gingrich (last minute or so) was really telling.


  9. Mark:

    I was having a discussion yesterday with someone about the whole notion of “substantive due process”, and it occurred to me to ask a question that he was unable to satisfactorily answer. Since I think you are an advocate of the idea of substantive due process, I thought I would ask you the same question.

    How can one distinguish between a ruling that invalidates a law based on a legitimate substantive due process claim, and a ruling that simply uses a substantive due process claim as an excuse to strike down a law to which the judge is politically opposed?


    • He’s an American hero. And, by all means, all right thinking people should support vandalization, theft, criminal trespass, and assault because that’s what has to be done to show that Trump is too angry and insulting and dangerous. You know, because logic.


Be kind, show respect, and all will be right with the world.

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