One of the founders of the American Republic, James Madison, wrote in Federalist No. 57 that the U.S. Congress would not likely frame laws that would be injurious to the general public because the members of Congress also would be affected by the same laws. The Congress, he wrote, “can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society.”
But the U.S. Congress, the Marie Antoinette of legislatures, has long since learned how to escape laws that members of Congress inflict upon others.
Marie Antoinette, not a Queen beloved by her subjects, was saddled with the quote “Let’em eat cake” by anti-monarchical revolutionists. She was supposed to have uttered this phrase after she had been told the French people were starving; in fact the phrase was launched into the hotbed of revolutionary France by Jean Jacques Rousseau in his autobiography published in 1782 but written in 1765 when the future Queen of France was nine years old. The phase was applied posthumously to the Queen, who actually was very charitable to the poor during her short reign.
No matter. The phrase today indicates the lofty unconcern of rulers with their subjects’ abject government induced conditions.
More than two years ago, commentator Stephen Carter, a Yale professor and author of several books, noted with a shrug of disapproval that Congress had just exempted its members from a pending law that applied to everyone else: “The recent publicity surrounding the very old news that members of Congress aren’t prohibited from trading stock using nonpublic information has the House and Senate running for cover. Hastily drafted bills are picking up co-sponsors on both sides of the aisle.
“Yet it is something of a wonder that there is so much public excitement at the discovery that regulations that apply to lots of other people turn out to be largely irrelevant to those who serve in Congress. This isn’t an exception to congressional practice. It is, far too often, business as usual.”
Mr. Carter provided some examples. Many businessmen, he noted, regard the Occupational Safety and Health Administration (OSHA) as “the bane of their existence” because OSHA sometimes promulgates regulations that are just dumb. “Sometimes the rules are important. Sometimes they are silly. Either way, it’s no concern of our national legislature, which, in its wisdom, has exempted itself” from OSHA regulations.
Although the entire federal government is exempt from OSHA regulations, Congress, perhaps anticipating an adverse response from the toiling masses, the equivalent of Marie Antoinette’s starving masses, never-the-less required federal agencies to promulgate operational rules consistent with OSHA standards. These minimal requirements, however, do not apply to Congress – “which turns out not to be an agency.”
A sigh bursting from him, Mr. Carter notes: “Then there is financial regulation. Critics have lamented that no equivalent of the Sarbanes-Oxley Act applies to Congress. The chief executives of public companies must certify their accounts, and face fines of up to $5 million and as many as 20 years in prison if they do so falsely. Members of Congress (like all federal officials) can make up numbers out of whole cloth without any sanction at all. Incorrect corporate numbers can mislead markets. Incorrect federal budget numbers can mislead the nation. (Perhaps the federal budget, like corporate balance sheets, should be vetted by independent third-party auditors.)”
While federal minimum wage laws apply to private employers and federal agencies, Congress is exempt from the laws because it is not an agency. For the same reason, Congress is exempt from the Freedom of Information Act. The National Labor Relations Act exempts the federal government generally, but special rules concerning collective bargaining and unfair labor practices apply to federal employees – but not to Congress.
No one should be surprised that the Congress is at it again, this time in connection with ObamaCare. Members of Congress and their staffs are required to participate in The Affordable Care Act (ACA). The requirement was supposed to acquaint congressmen with the rigors of ObamaCare they had imposed on the rest of the country. But some congressmen have slipped the noose.
Here in Connecticut, according to published reports, two members of Connecticut’s all Democratic Congressional delegation, U.S. Representative Elizabeth Esty and U.S. Senator Dick Blumenthal, have decided not to follow in the footsteps of President Harry Truman, who enrolled as the first Medicare beneficiary in 1965 when the program came on line.
"I support the act,” Mr. Blumenthal said, “and believe that federal employees and members of Congress should have access to the new options for health insurance provided by the ACA, including what is available on their local exchanges," Blumenthal said in a statement to a newspaper.
Since Mr. Blumenthal supports ObamaCare, he also supports its mandatory requirements. Under the old dispensation, before ObamaCare arrived on the scene to the blare of heavenly trumpets, Mr. Blumenthal’s younger constituents were not forced under penalty of fines to purchase medical insurance. Mr. Blumenthal, who may freely choose whether he does or does not wish to enlist in ObamaCare, will be spared the fines that hang like a Damoclean sword over the heads of younger people who are not congressmen and do not have the luxury of writing laws that do not operate on them.
One wonders how James Madison, quoted above, would have voted on the exemptions enjoyed by congressmen who in effect have said to their constituents “Let’em eat cake.”