On bikes and obesity

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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If Senator William Proxmire were alive and still representing Wisconsin in the United States Senate, there is little doubt the General Services Administration’s $823,000 Las Vegas spending spree would make the GSA a leading candidate for a 2012 Golden Fleece Award. Alas, the awards were discontinued in 1987 shortly before Proxmire left the Senate. Though the awards were revived in 2000 by Taxpayers for Common Sense, they have not had the same cachet that came with sponsorship by a member of the United States Senate.

Proxmire began making monthly Golden Fleece awards in 1975. Winners that year included the National Science Foundation ($84,000 for a study of why people fall in love), the Federal Aviation Administration ($57,800 for a study of body measurements of airline stewardess trainees), the Department of the Navy (for using 64 aircraft to fly 1,334 officers to Las Vegas for the reunion of a private organization) and the National Institute on Drug Abuse (more than $1 million to study marijuana effects on sexual arousal, hypnosis and facial expressions). The point, of course, was exposing government waste.

To be sure, combating wasteful government spending is a worthy cause, but when you add it all up it never amounts to much in the grand scheme of things — particularly in the era of trillion-dollar deficits. Contrary to the claims of many a candidate for federal office, ferreting out waste will not come close to balancing the federal budget.

So here’s an idea. While we all await the Supreme Court’s decision on whether or not Congress has the power to mandate private purchase of health insurance, let’s think about the multitude of other things the federal government does — and ask ourselves which among them fall clearly within the government’s constitutionally enumerated powers.

Remember, the question is not whether particular federal programs, activities or regulations are good ideas in the abstract. The question is not whether there is a demonstrated need or popular demand for federal action, or whether a perceived problem is national in scope. Our purpose is not to prioritize what the federal government does. The question is whether the federal government has constitutional authority to do what it is doing.

While one might get a multi-million-dollar federal grant to study this question, here are a couple of ideas just off the top of my head.

My congressman, Earl Blumenauer, used to be on the Portland City Council. In that capacity he was a big advocate for making Portland a bike-friendly city. As a long-time bike commuter, I was fully on board with Blumenauer’s efforts to improve Portland’s biking infrastructure.

When he was elected to Congress in 1996, Blumenauer took his bike agenda with him. On Wikipedia, he is described as “a strong supporter of legislation that promotes bicycle commuting,” and it is noted that he “cycles from his Washington residence to the Capitol and even to the White House for meetings.” On his website, being a “bike partisan” is included among his top five legislative priorities.

As a bike partisan myself, I think it’s great that my congressman likes to ride his bike and wants to make riding bikes safer and more convenient. But even after teaching constitutional law for 38 years I can’t pinpoint Congress’ constitutional authority to promote bicycle transportation.

And then there’s first lady Michelle Obama’s Let’s Move! campaign. Here I’m going to sound like the Grinch who stole Christmas, but remember, the question is not whether it’s a noble cause. The question is whether the federal government, which for these purposes includes the unelected first lady, has the constitutional authority to do what it is doing.

Let’s Move! is about combating childhood obesity and encouraging healthy eating and exercise habits among our youth. Here is what the first lady says on the website:

In the end, as First Lady, this isn’t just a policy issue for me. This is a passion. This is my mission. I am determined to work with folks across this country to change the way a generation of kids thinks about food and nutrition.

More power to Mrs. Obama, if this is her passion. She should go for it. But she has not created a private foundation or association as the means (note the url is .gov). Rather she, like Blumenauer, has the federal government fully in tow. President Obama appointed a White House Task Force on Childhood Obesity consisting of representatives from a dozen federal departments and agencies including Agriculture, Defense, Education, Health and Human Services, Housing and Urban Development, Interior, Justice, Transportation, EPA, FCC and FTC. They issued a 120-page report that includes 41 specific recommendations for federal actions.

Of course there is a tradition of first ladies pursuing their passions. Lady Bird Johnson arranged for the planting of uncounted daffodils (no doubt at federal expense), some of which still bloom along District of Columbia roadsides. And what’s wrong with a congressman getting a little help from the federal treasury in pursuit of his cycling passion?

These are both well-meaning efforts and, taken by themselves, they aren’t costing that much. But the problem is that they do not stand alone. They are part of an endless array of good ideas for doing good things that add up to much of what the federal government has become in the early 21st century.

Doing well by doing good — “rent seeking” in the language of political economy — has created a massive, dare I say obese, federal bureaucracy that now requires a significant share of a $3.6 trillion annual budget. At the same time it has turned state and local governments into administrative arms of the federal government.

One way to start cutting federal expenditures, and thereby reduce the federal deficit, is to recognize that there is a multitude of federal programs that, by any reasonable understanding, do not come within the constitutionally enumerated powers of Congress. They exist because they are somebody’s passion — and through political logrolling, we end up pursuing lots of people’s passions. This, in turn, opens the door to rent seekers (special interests represented by tens of thousands of K Street lobbyists), and there is no turning back.

But if we are to avoid the fate of Greece and, soon, Spain, we must turn back. We must corral the rent seekers and close the barn door. We will never accomplish that through the political horse-trading that got us into this mess in the first place. So with respect to every federal program and activity, let’s apply the straight-face test on the question of constitutional authority.

Eliminating those programs that elicit smiles, if not outright laughter, does not mean that the worthy ones won’t survive. It means that state and local governments can decide for themselves what is in their constituents’ best interests. Once the federal government stops sucking the taxpayers dry, state and local governments will have more resources to fund biking and obesity programs, if that is what they want.

Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.