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through participation and through processes of local government which are more transparent, where people can actually see the relationship between their influence in the form of political participation and outputs in the form of public policy to promote the public good.

So I think that in current circumstances, there are substantial reasons to devolve as much as can reasonably be devolved, consistent with the general welfare.

Chairman THOMPSON. While I have got you, what other things do you think we should do? Expand on it a little, if you would, the nature of the problem. You have obviously given a good deal of thought to it, as I have. What are the manifestations and what are some things that we can, totally apart from anything else we have talked about, what are some things that you think that we could do to help in that regard?

Mr. GALSTON. No more difficult question could have been posed, but let me just cite a couple of obvious things, all of which you have spoken out on, Mr. Chairman.

First of all, although this is enormously complicated legislatively, it is clear that, as compared to 30 or 40 years ago, the American people see a Federal Government more dominated by "special interests” and the money behind them than they thought was the case a generation ago and they do not like it. I know of all the practical arguments against legislating in this area, but as a matter of public confidence and public trust, I believe that it is important for the Congress of the United States to address that issue in some way.

A second point I would make is that as in war, so in domestic policy, there must be a proportionality between means and ends and between promises and performance. I think it is very important for elected officials on every level, as they are crafting and then selling a program, to be realistic about what it will and what it will not accomplish. I mean, if you promise the new Jerusalem and you have just taken one step out your front door, the American people are aware of the disproportion between promises and performance. It does not breed trust.

One other point I would make is that I think a series of decisions made by the political system at every level, including the political parties, has increased the power of the media in determining public attitudes towards government at the expense of participatory political structures, such as political parties.

I think the political parties have backed out of the political arena. Forty years ago, they were actual operating structures that connected individual citizens through local and State party institutions, to the national political party, so the political conventions were real and parties were participatory arenas. They have become now shells, and other forces that do not breed public trust, have rushed in to fill the void, and I would think very seriously about

Chairman THOMPSON. There is a serious chicken and egg question there, too.

Mr. GALSTON. Yes, there is. But I think it is important to rethink what we have allowed to happen to our political system and its important participatory structures.

Chairman THOMPSON. Thank you. Professor McGinnis.

Mr. MCGINNIS. I think I have a slightly different perspective. I am less, myself, concerned about spending on elections than on the output of government. I think the change to cynicism is caused by a change in what government does.

Government can do a variety of things. One, it can focus on public goods. Public goods are those that the market cannot provide, that the family cannot provide, things that benefit everyone. If government is focused on that, and I believe federalism and a whole variety of other structures in our government tried to focus only on producing such public goods-national defense, protection against crime, infrastructure, to name a few examples—then people are brought together by their government because these things are benefiting them all.

On the other hand, if you have a much larger government, a government that consists as, alas, a lot of the spending which is supported by today's taxes does, in transferring money from one group of people to another group of people, then people will be necessarily suspicious of government because that will encourage citizens not to focus on what government can give them to benefit all, but what they can get from some other group of citizens for their own benefit.

So I think that is the basic problem for cynicism of government, and, therefore, I would think whatever one's views about campaign finance, it is a mistake to believe that such reform is the real solution to cynicism. Big spending on elections is simply a consequence of big government. Special interests pay a lot of money to the government because there are so many transfers possible from the government, and limiting these transfers is the level at which I think we really need to address it by much more restricting government.

I have some sense of that because I am about to go off to be a professor in Italy, and there, when I talk to people, they are far more cynical of government than we are in the United States, and that is because, in my view, their government is even a much lessrestrained government than ours.

So it is simply not a consequence, I think, of our political system, but fundamentally what government does. A limited government focused on what we have in common makes for people who will feel good about government. A government that is focused on transferring resources from each of us to another divides the Nation.

Chairman THOMPSON. Gentlemen, very well said, both of you. I really appreciate that.

You touched on something that has always been of interest to me with regard to the size and growth of government. I really think we need to make some changes in our campaign finance system for a variety of reasons, but a lot of the advocates of changes in that regard, I do not think face up to the fact that the basis for that is what you alluded to, is big government. The reason why the special interests flock to town, and you cannot wade through them some days, and the reason they give such large amounts of soft money is because they have got so much at stake right up here, because we are running everything right up here and the decisions we make are worth millions and millions of dollars to these people,

But my thinking is that there is something we can do about the money coming in a whole lot more readily than we can in changing that big thing around. We have got to do both, though, I think.

But thank you very much. This has been extremely helpful and we look forward to working with you in the future. I appreciate it.

Mr. MCGINNIS. Thank you.
Mr. GALSTON. Thank you.

Chairman THOMPSON. We have got a vote on right now. I wanted to come down and chat with you a moment, but we will not have time today, but thank you very much for being here.

The record will remain open for 5 days after the conclusion of the hearing The Committee is adjourned. (Whereupon, at 12:18 p.m., the Committee was adjourned.]






Washington, DC.
The Committee met, pursuant to notice, at 9:33 a.m., in room
SD-342, Dirksen Senate Office Building, Hon. Fred Thompson,
Chairman of the Committee, presiding:
Present: Senators Thompson, Voinovich, and Durbin.

OPENING STATEMENT OF CHAIRMAN THOMPSON Chairman THOMPSON. The Committee will come to order, please. I welcome everyone to this hearing of the Governmental Affairs Committee to consider federalism and crime control.

Today is our second hearing on federalism. The Committee will consider the increasing federalization of criminal law. It is a deeply rooted constitutional principle that the general police power belongs to the States, not to the Federal Government. This was clearly articulated in the Founding Fathers' careful constitutional design. As Alexander Hamilton said, “There is one transcendent advantage belonging to the province of the State Governments, the ordinary administration of criminal and civil justice.”

For most of America's history, Federal criminal law was limited to national offenses, such as treason, bribery of Federal officials, counterfeiting, and perjury in Federal courts. Yet, in this age of mass media and saturation coverage, Congress and the White House are ever eager to pass Federal criminal laws in order, as Chief Justice Rehnquist put it, “to appear responsive to every highly publicized societal ill or sensational crime.”

In recent years, there has been an explosive growth in Federal criminal law. A recent ABA Task Force report, entitled “The Federalization of Criminal Law,found that of all the criminal provisions enacted since the Civil War, over 40 percent were enacted since 1970.1

No one really knows how many Federal crimes now exist, but recent estimations of 3,000 have been surpassed by the surge in Federal criminalization. In 1995, the Supreme Court sent a clear message to the Congress in the Lopez case that it needs to carefully consider whether federalizing certain crimes is consistent with the Constitution. But only the following year, Congress-over my objection, I might add-re-enacted the Gun-Free School Zone Act. And there is no slowing in the growing number of proposed Federal

1 A copy of the ABA Task Force report, “The Federalization of Criminal Law,” has been retained in the files of the Committee.

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