It is more than an honor to be with you here today. For a conservative politician, speaking at Rancho del Cielo is like a musician playing a set at Sun Records or a ballplayer taking the field at Fenway Park. 

I am humbled by the opportunity.

My first real exposure to the Reagan Administration occurred when I was about ten years old.  My father, the late Rex E. Lee, served as the Solicitor General of the United States during President Reagan’s first term in office.  It is the job of the Solicitor General to serve as the federal government’s advocate before the U.S. Supreme Court.  Like every lawyer, the Solicitor General has a client—it’s the federal government, and specifically the presidential administration in power.  As a practical matter, that meant that my dad was President Ronald Reagan’s voice in the Supreme Court.

When my dad was nominated by President Reagan and was confirmed by the Senate, my family made a move from our familiar surroundings in Provo, Utah to McLean, Virginia, a suburb of Washington, D.C.  When school started in the fall of 1981, I was full of apprehension, and with good reason.  The D.C. area somehow didn’t seem nearly as friendly as Provo.  I felt like an outsider at my new school.  And I was.  

I tried to take some comfort in knowing that my dad was doing exciting things for the country as a key official in the Reagan Administration, which (even as a ten-year-old) I understood would be historic. 

I still remember when my dad was getting ready to make his first appearance before the Supreme Court as President Reagan’s Solicitor General.  He readied his “morning suit,” the ceremonial uniform traditionally worn by the Solicitor General in the Supreme Court; it consists of a long-tailed coat and striped pants.  While embarrassed at the mere thought of my dad appearing in public dressed like that, I was intrigued by his new job and wildly curious about what went on in the highest Court in the land.

Although I didn’t understand everything that went on in the Court, I loved to watch my dad argue there, advancing the official positions of the Reagan Administration on important issues involving the Constitution and the role of the federal government.  What I learned most of all, perhaps, is that there is a cadence and a rhythm to being a good advocate for good government. 

The next time you place a call to the Reagan Ranch, you should hope to be put on hold.  If you are lucky enough to have that happen to you, you will hear that confident cadence of courage in the voice of Ronald Reagan.  It is my hope that today and moving forward, those of us who honor his legacy will not just talk about him, but listen to him, and do our best to learn from and ultimately act like him.

For all Americans – but for conservatives and Republicans in particular - the legacy of Ronald Reagan will always serve as an inspiration. But it should also serve as a challenge.

It’s that part – Reagan’s enduring challenge to the movement and the party and the nation he revived – that I’d like to discuss today.

As you know, this is the 33^rd anniversary of President Reagan’s signing of the Economic Recovery Tax Act of 1981.

Today, conservatives tend to think of that moment as the beginning of Reagan’s – and the country’s - triumphant era, which would eventually usher in the longest peacetime recovery in American history, victory in the Cold War abroad, and the restoration of the American Dream at home. 

Twenty million new jobs. A forty-nine-state landslide. “Tear down this wall.” “Shining city on a hill.”  Cadence and courage.

That’s the Reagan conservatives all remember and revere. But I submit that is not the only Reagan conservatives need to study and emulate most today.

The obvious achievements following August 1981 provide a showcase of what we can learn from our 40^th president.  But some of the most important lessons we can take are from Reagan’s hard and heroic work leading up to his electoral victory in 1980.

The four-year stretch between 1976 and 1980 was a time similar to our own. The unemployment rate was coming down, but still too high. The economy was recovering, but not enough to restore broad prosperity. Energy dysfunction, rising prices and an unfair tax system were eating up what gains working families did see in their take-home pay.

But it wasn’t just about statistics. Humiliating failures of leadership at home and abroad throughout the previous decade had taken their toll as well. A psychological pall was descending on the country, leaving Americans uncharacteristically anxious and pessimistic. When grinding stagflation steered us toward yet another recession, many Americans began to wonder if our best days had come and gone.

It was in that time, in my view, that Reagan did perhaps the most important work of his career.

Ronald Reagan in the late 1970s was a prominent figure, but not a powerful one. He was no longer governor. His primary challenge against a sitting president of his own party had failed, and made him a pariah among a resentful Republican Establishment in Washington.

And the conservative movement he led was once again in the political wilderness.

The situation was bleak. But, as always, where others saw obstacles, Reagan saw opportunities.

He saw what too many in Washington did not: that a disconnect had opened between the American people and their leaders. President Carter’s approval rating fell into the 30s, and Congress’s into the 20s.

The Republican establishment – timid and unimaginative by nature - hoped the Democrats’ unpopularity might allow Republicans to win a few elections by default.

But this status-quo strategy did not interest Reagan.

Reagan wanted to build a new Republican Party, a new majority coalition, a new conservative movement that would not just cut across party lines... but permanently redraw them.

Reagan noticed that, aside from America’s political and economic elite, the rest of the country suffered under increasingly liberal policies. The political, corporate, and media opinion leaders were doing just fine. The people shouldering the brunt of big government’s failure were the working men and women of and aspiring to America’s middle class.

They were the ones whose neighborhoods saw rising crime rates. They were the ones whose communities were threatened by family breakdown. They were the ones whose jobs were hanging by a thread. They were the ones whose children couldn’t to go to college, whose sons and brothers came back from Vietnam only to be insulted by those they had fought to protect.

They were the ones who couldn’t afford gas and groceries because of the energy crisis and inflation.

Unlike the poor, who attracted Washington’s sympathy, and the rich, who could influence public policy, the mass of Americans in the middle were being ignored, slighted, and left behind by the political class in Washington.

The 19^th century economist William Graham Sumner had a term for the American caught in the middle: “the forgotten man.”

As Sumner put it in his famous essay of the same name:

“[The forgotten man] works, he votes, generally he prays-- but he always pays--yes, above all, he pays... his name never gets into the newspaper except when he gets married or dies... He is strongly patriotic. He is wanted, whenever, in his little circle, there is work to be done or counsel to be given... All the burdens fall on him, or on her, for ... the Forgotten Man is not seldom a woman.” 

It was these familiar friends and neighbors from all races and creeds and regions - people all Americans know and most Americans are - that Ronald Reagan believed made our nation good and great and beautiful. They were the ones, Reagan understood, conservatism could help the most. 

Indeed, in a National Review essay a month after the 1964 election - before his name was ever on a ballot - Reagan reminded a defeated conservative movement:

[QUOTE] “We represent the forgotten American-that simple soul who goes to work, bucks for a raise, takes out insurance, pays for his kids’ schooling, contributes to his church and charity and knows there just ‘ain’t no such thing as a free lunch.’” [UNQUOTE]

To Ronald Reagan, these Americans were never forgotten.

From the beginning, he built his politics around a profound respect for the honest, hardworking men and women who made America work.

Many of these Americans, like Reagan himself,  believed government should stand on the side of the little guy against unfair concentrations of political and economic power.

They still believed that. And so did Reagan. 

It’s just that by the late 1970s, the Democratic Party’s leadership in Washington had gone Washington. The New Left did not oppose, but had come to enjoy, the unfair privileges of concentrated power. The ruling class in Washington not only ignored working families’ interests, but openly disparaged their values.

Now, Reagan knew that while middle class Americans were disillusioned with Washington Democrats, they were equally suspicious of Washington Republicans—with good reason. Liberalism may have been failing, but to many Americans in the late 1970s, conservatism was at best a cobwebbed theory.

Reagan needed a way to transform this anti-liberal majority into a pro-conservative majority.

He didn’t want to spin them, or play on their fears. He respected them: he wanted actually to persuade them.

He knew that abstract theories and negative attacks weren’t going to cut it. Reagan needed to make conservatism new, real, and relevant.

He rebuilt conservatism with a concrete agenda of innovative reforms to directly help and empower all of the forgotten Americans whom liberalism always leaves behind.

He advocated marginal tax-rate reduction.  This, Reagan correctly promised, would allow workers to keep more of their own income, raise wages, and create new jobs.

He advocated a strong dollar.  This, Reagan correctly promised, would help us gain control over the inflation that was gnawing away at middle-class wages, savings, and aspirations.

And he advocated an aggressive defense build-up.  This, Reagain correctly promised, would help us expose and defeat an aggressive, atheistic, and violent empire that threatened the life of every American, and the future of every child.

So often, Reagan’s success is chalked up to his personal attributes - his charm, his humor, his political and communication skills. He had all those things when he ran for president the first time.  But alas, those personal attributes alone were not enough. 

We must always remember that in 1976, conservatives found a leader for the ages... but they still lost. By 1980, they had forged an agenda for their time, and only then—with an agenda and a messenger for that agenda—did they win. 

Armed with this agenda, Reagan not only confronted liberalism head-on, he also connected with those long-forgotten Americans by aligning his movement, his party, and his message around them.

It’s time for us to do it again.

The similarities between the late 1970s and today seem to grow by the hour. 

Now, as then, our economy is struggling. The great American middle class is beset with anxiety. Stagnant wages don’t keep up with the rising cost of living. For too many Americans, opportunities seem to be narrowing, and the American Dream seems to be slipping out of reach.

Meanwhile, a chasm of distrust is opening between the American people and their government. Both parties are seen as incapable of producing innovative solutions to growing problems, or uninterested in even trying. Reagan’s “forgotten Americans” are once again being left behind.

Once again, the Left has betrayed the trust of the American people. But the Right has not won it back.

So it seems to me that conservatives today need to do what Reagan did in the late 1970s: identify the great challenges holding back America’s working families, and propose concrete, innovative solutions to help overcome them.

Just like Reagan did, as conservatives today we need to re-apply our principles to the challenges of the moment. We need to offer the country a new, positive reform agenda that remembers America’s forgotten families and puts the federal government back on their side.

A real conservative reform agenda has to do more than just cut big government. It has to fix broken government. Reagan did just that a generation ago. Since then, new challenges have emerged, demanding repair – and conservative principles can once again point us toward exciting, innovative solutions.

I find it interesting that most Americans feel forgotten, left out of the debate, left behind in their efforts to get ahead, while shouldering the burdens of failed policies, without a voice in what matters most. The ironic part of having a podium and a microphone is that most Americans want someone in Washington not to speak to them, but to listen to them.  “Fix it,” they say.  “Turn it around,” they demand.  “Will government ever work for me, or will I always be working for it?” 

Reagan listened to the forgotten and the disillusioned American.  Can we be our best?  I know that we can at least be better.  Congress can do better.  We can expect more out of our leaders, more out of ourselves.  We can fix, cut, and tear down walls that confine our liberty—in any era.  We can expect more.  We can expect reform.   

A conservative reform agenda needs to reduce taxes for families.  Today, marginal tax rates are much lower than they were in August 1981. They are so low that almost half of all households pay no income tax. But most working families are still overtaxed, some by thousands of dollars a year. How? Because of the hidden double tax the current system imposes on parents through the payroll tax to fund our senior entitlement programs.

Many tax-reform plans today ignore this problem, and would actually raise taxes on working parents.

For single parents, this might as well be a “Keep Out” sign on the front door of the middle class. It’s an unfair attack on individuals, families, and neighborhoods – forcing them to make decisions based on what government wants instead of what they want.

Conservative tax reform today needs to fix this unfair parent tax penalty, to level the playing field for the hardworking families raising the next generation of Americans.

A conservative reform agenda also needs to spur economic growth.

New jobs come from new businesses. But all the taxes and regulations government foists on the economy actually hurt newer, smaller businesses and help large, politically connected corporations, which can afford all the lawyers and lobbyists to comply with all the rules. People who fear that the economy is rigged today are right. It is, and government rigs it.

Today in Washington, economic policy is driven by a corrupt alliance of big government and big business conspiring to keep out the new, disruptive competitors that innovate, transform, and create new jobs and growth.

True conservative reform should level the playing field for all businesses – small and large, new and old. That’s where new jobs, innovation, and growth come from – from Main Street, not Wall Street, K Street, and Pennsylvania Avenue.

Look at our nation’s infrastructure. America needs more highways, more bridges, more local transit. But the old federal transportation trust fund is now permanently insolvent because 20% of the money it takes in is skimmed right off the top by special interests, bureaucracy, and inefficiency.

Real conservative transportation reform could cut out those Beltway middle-men. We need to create a 21^st-century, open-source transportation network of sustainable, local innovation that empowers America’s diversity and ingenuity.

Another example is our broken higher-education system.

Today, the exploding costs of and restricted access to college are leaving millions of workers without the skills to succeed in the global economy. Millions more are being saddled with more debt than they’ll ever be able to repay.

Washington sees this structural dysfunction, and immediately launches into an argument about... the interest rate on student loans. We shouldn’t be arguing about tenths-of-a-percent on $40,000 tuition – we should be fixing the system so college doesn’t cost so much in the first place. And we need to increase access to new schools that can accommodate the needs of non-traditional students, like single parents, who can’t afford to study full time.

A conservative reform agenda must confront a welfare system that isolates the less fortunate.  A reformed system would start to bring the poor back into our economy and civil society.

Real welfare is not about dependency, but mobility – designed to make poverty temporary instead of just tolerable.

A conservative reform agenda must include plans for an energy revolution. Just look at what’s going on in North Dakota and Texas and elsewhere. Let it create all the jobs and opportunities and energy independence it can. Let all energy producers compete on a level playing field – new technologies and old, large businesses and small – with equal opportunity for all and cronyist subsidies and special treatment for none.

And finally, this approach shows us that we can’t just cut Obamacare, or even repeal it and go back to the old system we had before. Instead, we need to move forward with real healthcare reforms that empower patients and doctors, not big government and big insurance companies. 

Under the radar of the mainstream media and Beltway politics, the conservative reform agenda we need is starting to take shape.

As you can see, the content is different from Reagan’s agenda. But the goal is the same – reforming outdated policies to put government back to work for those forgotten Americans ... growing our economy and strengthening our society... and finally bringing the American Dream back into the reach of every American willing to work for it.

Like Reagan’s, the agenda I am describing is based on something too often missing in our politics today: respect for the American people.

As president, Ronald Reagan understood that the forgotten Americans were the people really in charge.  And they still are.

The people – not billionaires on Wall Street - are the customers who decided which products and services and businesses would rise and fall.

The people – not the activists and academics and celebrities – decide the values that guide our neighborhoods and define our culture.

And Ronald Reagan was okay with that. He celebrated it.

His agenda was designed to give ordinary Americans even more power to make those decisions. He respected them and trusted them, and thought the government should simply get out of the way.  He knew the answer was not to get America to trust Washington; it was to get Washington to trust America.

Today, some see it as ironic that as Reagan decentralized power to a diverse, divided nation... we came back together. But it’s not ironic at all. It’s the tried-and-true genius of the American way of life that has sustained our exceptional republic for more than two centuries.

Reagan’s agenda was an attempt to empower Americans to come together to make our economy more wealthy and our society more rich.

Reagan knew – and proved to a cynical elite – that freedom doesn’t mean you’re on your own; it means we’re all in this together.

And really, that is Ronald Reagan’s enduring challenge to conservatives, and Republicans, and all Americans: to believe in each other. To trust and respect the courage and industry and wisdom and ingenuity and compassion and hope of our people.

A renewed commitment to reform can not only put America on the path to recovery, but reunite our nation after too many years of bitter division... and empower our people after too many years of falling behind.

A new generation of problems demands a new agenda of solutions: to answer Reagan’s challenge, and to once again remember America’s forgotten families.   

Ronald Reagan signaled the cadence of courage from this spot 33 years ago.  It still echoes from these hills.  Today our duty is to answer the call. 

Enlist as 21^st-Century Reagan revolutionaries.  See beyond the next eight years into the next 80.  Join me in taking the road less traveled.  We are the forgotten Americans who have new ideas, start businesses, start families, volunteer as room mothers and little-league coaches, we are the flag raisers, the builders, the workers and the inventors.  We are the dreamers and the stewards, we are the shopkeepers by day and the homemakers at days’ end. 

We are the people who James Madison, George Washington, Thomas Jefferson, and Abraham Lincoln, had in mind and Ronald Reagan did not forget.  We are the light emanating from the city on a hill; we are the keepers of the flame, the guardians of liberty. 

We are the people—the unassuming heroes marching forward in Reagan’s cadence of confidence in that quiet adventure we still call the American Dream.

We are here today because our federal highway policy status quo is not working. And it hasn’t been for a long time.

This is the sixth time American taxpayers have been asked to bail out the Highway Trust Fund since 2008. None of those patches – $52 billion worth of bailouts in seven years – fixed the problem. And neither will the $10.8 billion authorized by the bill before us today. It will buy us only a few months before we are right back where we are now.

Indeed, this debate is the dysfunction of Washington in miniature.

Here - as in health care, higher education, assistance for the poor, energy, and so many other areas – the federal government has created a permanent, structural problem and responds with duct-tape.

Worse, this bill only solves Washington’s problems – not the American people’s. Under the broken status quo this bill protects and extends, in six months – and in six years - our roads will still be congested.

Too many single moms will still live on a knife’s edge trying to make it to their second jobs across town.  Too many dads will still have to leave for work before breakfast and get home after dinner. Children will still look in vain into the empty seats at their piano recitals and Little League games. Commuters will still squeeze into over-crowded subway cars, hold their breath and hope it doesn’t break down... again.

Young families will still be unfairly priced out of neighborhoods near the best jobs and schools. And diverse communities will still be subject to the monotonous inefficiency of an outmoded bureaucracy.

But it doesn’t have to be this way. There is a better way.

The Interstate Highway System is one of the great achievements not only in the history of the federal government, but in all of American history. It unified a sprawling, continental nation by investing in our common destiny. It simultaneously met the economic, social, cultural, and security needs of an emerging superpower. It was and remains a wonder of American innovation and self-government.

More than that, the Interstate Highway System was the daring, audacious work of a young nation, literally on the move, bristling with confidence in its future and its people. With the “Federal-Aid Highway Act of 1956,” Congress threw off the yoke of the status quo and met the needs of a new generation.

Yet today, 58 years later, in a new century with new needs and new technologies and a new economy, Congress anxiously clings to that exact same policy like a tattered security blanket.

Six decades ago, federal highway policy represented a triumph of imagination. Today, our refusal to modernize that policy represents a failure of imagination.

So we’re here with the duct-tape and WD-40 trying to keep this 20^th century bureaucracy in place rather than embracing the worthy challenge of building a new mobility policy for the 21^st century.

That’s exactly what my amendment – the “Transportation Empowerment Act” – would do.

In 1956, it made sense for the federal government to collect the majority of gas taxes from around the country and then coordinate the construction of a national system. We needed it.

But with the interstate system now largely complete, and most transportation issues today existing at a local level, there is no longer the same need for Washington as a central coordinator.  We’ve become an intrusive middle-man.

We need to refocus the federal government solely on interstate priorities and to empower a diverse, flexible, open-source transportation network controlled by the states.

My amendment will empower states and communities to customize their own infrastructure according to their own needs, values, and imagination. It would, over five years, gradually transfer both funding and spending authority over local surface transportation to the states.

Today, the federal gas tax stands at 18.4 cents per gallon. My amendment would lower it, by 2019, to 3.7 cents.  In the interim, we would gradually send states more of their allotment without strings, to prepare them for the eventual transfer.

After this gradual transition, Congress would retain enough revenue to continue to maintain the interstate system, which rightly remains a federal priority and core competence. But states and communities would be newly empowered to launch a new era of local investment and innovation.

The idea behind this plan is that not only is there a better way to improve America’s infrastructure, there are fifty better ways - even thousands of better ways.  In our increasingly decentralized world, there are as many ideal transportation policies as there are communities across the country.

Washington is standing in the way – imposing obsolete conformity on a vibrant, diverse society.   For if we truly love local transportation infrastructure – and who doesn’t?­ - we should set it free.

Under the Transportation Empowerment Act, Americans could finally enjoy the local infrastructure they want. More environmentally conscious states and towns could finally have the flexibility to invest in more green transit projects and bike lanes. Regions reaping the benefits of America’s energy renaissance could accelerate their infrastructure build-outs to keep up with their explosive growth. Dense cities could invest in more sustainable public transit networks.

Meanwhile, surrounding counties could re-open the frontiers of the suburbs to a new generation of more livable communities. State and local governments will also be freed to experiment with innovative funding mechanisms not tied to the unreliable gas tax.  And by cutting out the Washington middle-men, all those states and communities and taxpayers will be able to get more for less.

My amendment would not reduce America’s investment in infrastructure, any more than Uber reduces America’s investment in car service. In the real world, value is not a cost.

Rather, my plan would empower a nation hungry for greater mobility to spend their infrastructure dollars on steel and concrete instead of on bureaucracy and special interests.

Now, some of my colleagues oppose this plan.

Some will offer Washington’s eternal promise: the status quo will work… it just needs more money. The federal gas tax has not changed since 1994, they will say. We are starving the trust fund.

But it’s not true. For in the 12 years prior to 1994, the gas tax skyrocketed 460%, from 4 cents to 18.4 cents-per-gallon.  Put another way, since 1982, the federal gas tax has grown by an equivalent of 6.1% per year. Chasing ever-more money will not solve this problem. That’s what we have been doing, and the bill before us today is incontrovertible proof it hasn’t worked. 

Others argue that reducing Washington’s role in local transportation would invite economic and infrastructural catastrophe. This makes two peculiar assumptions.

First, it assumes that Washington is uniquely competent in the area of local transportation - even as a long train of abusive boondoggles and Bridges to Nowhere tell us otherwise.

Even more bizarrely, this argument assumes that the fifty states of our exceptional republic, many of which would rank among the wealthiest nations in the world on their own, are unstable banana republics, nursing the development of primitive, hunter-gatherer societies whose only transportation services involve the clearing of woodland paths for their pig-drawn carts.

State and local governments already pay for 75% of all surface transportation infrastructure projects in this country.

In my home state of Utah, one of the best-run in the country, only 20% of our transportation money comes from Washington—the other 80% we raise ourselves. Of course, we raise most of that 20%, too. It’s just that under the broken status quo, Washington middle men take their cut before sending it back to us.

Why not just leave that extra 25% in the states and communities who need and use it in the first place? The states already own and maintain the highways. And local transit projects are... inherently local.

So why not let the federal government focus on interstates? And let Oregonians plan, finance, and build their bike paths and San Franciscans their green-energy transit experiments and Texans their eight-lane express-ways in their own way, tailored to their own needs and values.

All we add to the process here in Washington is unnecessary overhead and self-congratulating press releases trying to take credit for it all.

Finally, many who admit that the status quo is unsustainable nonetheless support it because they believe their particular state benefits by receiving more money back from the highway trust fund than it puts in.

Washington perpetuates the myth that transportation money is “free,” especially for these so-called net “donee” states. But as in every other middle-man arrangement, the status quo policy ensures states actually get less value back than they should.

Federal regulatory strings not only make infrastructure projects unnecessarily expensive.  They specifically divert resources away from actual infrastructure, and waste it on special interests and bureaucratic red tape. 

The federal Davis-Bacon Act, for instance, costs states an additional 10 cents for every dollar they spend on infrastructure construction projects. Numerous regulations under the National Environmental Policy Act (NEPA) collectively cost state governments an additional nine cents on the dollar.  No wonder the Trust Fund needs to be bailed our every year. Washington is charging taxpayers a 20% processing fee right off the top.

I encourage all my colleagues to work out the math for their own states.  But for Utah, that means that of the $335 million we receive annually from the Highway Trust Fund, nearly $64 million goes to political overhead instead of steel and concrete.

Everything in our economy and our society today is moving away from rigid, centralized bureaucratic control and toward flexible, open-sourced, community- and individual-empowerment.

The Interstate Highway System met a crucial need in its time, and represented a wonder of innovation. But so did Borders bookstores at one time. So did Blockbuster. So did record stores. So did rotary phones.

Americans still need books and movies and music and communication – and they still get them. Today, those goods are just delivered more efficiently, more affordably, through flexible models customized to the unique needs of individual consumers.

In the same way, Americans still need highways and bridges and subways and bike paths. Indeed, we need them now more than ever. But federal policy hasn’t kept up with the times. 

That’s why, even without my amendment, more than 30 states have begun or are considering their own transportation modernization programs. This is just more evidence that the transportation renaissance America needs is one that our centralized bureaucratic status quo cannot deliver – not with another $10.8 billion,  or ten times as much.

After six decades - and historic successes - the time has come for a new federal transportation policy that taps the creativity of our diverse nation. 

Today Americans are unnecessarily stuck in traffic, stuffed in overcrowded subway cars, missing their kids’ games and recitals, priced out of neighborhoods close to their jobs and spend almost a full 40-hour work week per year stuck in gridlock. 

They deserve better than what Washington is offering, which is just the status quo plus a little more money.  A new era demands a new approach.

The Interstate Highway System is a success, and the people who created it deserve our admiration. But the way to honor their legacy is to stop imitating them and start emulating them, by investing in an innovative transportation network for our own era just as they did for theirs. Just as it was in 1956, the status quo is once again no longer good enough. We need to transcend it.

The future of American mobility is not a rigid, monolithic, centralized bureaucracy – frozen in amber. It’s a flexible, organic, open-source network of empowered individuals and communities – as diverse as the nation itself.

My amendment would empower Americans to start to build that future together, and I ask all my colleagues to support it.

In an influential law review article, the late Professor Bill Stuntz noted the academic consensus lamenting criminal law’s constantly expanding breadth.  Professor Stuntz wrote that virtually all scholarship in the field “consistently argues that existing criminal liability rules are too broad and ought to be narrowed.”  But, Professor Stuntz continued ominously,

[This] [n]ormative legal argument makes sense on the assumption that lawmakers care about the merits, that the side with the better policy position has a better chance of getting its preferred rule adopted, at least over time. But the legislators who vote on criminal statutes are, or at least appear to be, uninterested in normative arguments.  To take an obvious example: For the past generation, virtually everyone who has written about federal criminal law has bemoaned its expansion. But the expansion has continued apace, under very different sorts of Congresses and Presidents. Normative argument does not seem to have mattered.

One can put the point more generally: American criminal law’s historical development has borne no relation to any plausible normative theory — unless ‘more’ counts as a normative theory.[1]

I’m here today because I do care about the normative arguments regarding our ever expanding criminal state.  I believe federal overcriminalization in particular is detrimental in terms of the financial, social, and human costs it imposes on our country.  And I am far from alone.  In fact, I believe we are seeing increasing, bi-partisan sensitivity to overcriminalization issues and an increasing openness on the part of members of congress to reevaluate federal criminal laws and regulations with an eye towards making common-sense, incremental changes.  In conversations with colleagues, more often than not, I hear agreement that federal overcriminalization is a serious issue.  The Smarter Sentencing Act, which I introduced with Senator Durbin to address issues regarding federal overcriminalization related to sentencing for drug violations already has 23 cosponsors, including six Republicans.  And the House Judiciary Committee recently reauthorized its bipartisan overcriminalization task force, chaired by Representative Sensenbrenner, which has done and I’m sure will continue to do exceptional work on this topic. 

I am optimistic that as conferences like this one shed light on the severity of federal overcriminalization and the potential harms caused by the breadth and scope of federal criminal laws and regulations, the momentum for reform will continue to grow. 

With the time I have today, I want to lay out three principles that guide my approach to federal criminal law—the Constitution’s protection of liberty, the importance of intent or mens rea standards in criminal law, and the role the constitutional principle of separation of government powers should play with respect to criminal law.  I will discuss the evidence and arguments that lead me to believe federal overcriminalization is a serious problem about which something must be done, and I will note measures I believe Congress must take responsibly to address what could otherwise become a crisis of individual liberty. 

Liberty and the Constitution 

Every action government takes—each law or regulation it imposes—results in one degree or another in a restriction or limitation on the liberty of the individuals under its jurisdiction.  This is true to an even greater extent with criminal laws and regulations.  Whether by means of incarceration—which nearly extinguishes an individual’s liberty for a period of time, or by means of the stigma of a criminal conviction—which may also include restrictions on the ability to participate in democracy, criminal sanctions fundamentally alter the relationship between the state and the individual subject to punishment.  In sum, at no time does the government pose a greater threat to individual liberty than when it enacts or enforces criminal sanctions.[2] 

The Constitution recognizes the threat that criminal sanctions pose to individual liberty.  As a general matter, the Constitution’s structural safeguards are designed to prevent Congress from creating too much mischief.  First and foremost, the Constitution enumerates those specific powers the national government shall exercise and reserves to the states and the people all other powers.  In other words, from the outset, the federal government is fundamentally different than state and local governments.  Local government by its nature exercises a general police power to regulate the health, safety, morals and general welfare of its people.  The federal government, on the other hand, is not authorized to exercise a general police power and is instead constitutionally constrained to exercise only those powers expressly enumerated in the Constitution. 

Next, Article I of the Constitution commits “all legislative power” to the Congress.  Regardless of how lenient the Supreme Court may be when reviewing questions of congressional delegation commonly referred to as the non-delegation doctrine, Congress has an independent duty to take the constitutional text seriously.  And the text plainly places the legislative power in Congress and thus limits the manner in which Congress may delegate lawmaking power to administrative agencies to enact laws and regulations, including criminal laws and regulations. 

Specific constitutional provisions confirm the care the Framers intended the government take when crafting criminal penalties.  To avoid a kind of “trial by legislature” whereby Congress might single out an individual in legislation, the Constitution prohibits bills of attainder.  Further to prevent unfair targeting of individuals, as well as to respect the basic concept of notice, the Constitution prohibits ex post facto laws.  And, of course, the Constitution confirms the right of habeas corpus, and specifies the narrow circumstances and the manner in which that right might be suspended.

Despite these structural elements of our nation’s founding document—all of which suggest that the federal government should have only a minimal and careful role to play in the sphere of criminal law—Congress has enacted somewhere around 4,500 federal criminal laws—although no one knows for sure how high the count is, and federal administrative agencies have promulgated another 300,000 some odd regulations that include criminal penalties—but again, no one can be certain of the number.[3]

The solution to this problem—and perhaps to the problem of federal overcriminalization more generally—is fairly straightforward: members of Congress must take seriously their independent duty to give effect to the Constitution’s structural limitations on power.  Congress must stop granting administrative agencies broad delegations of power and must limit any such delegations of power, as well as any other criminal legislation, to the enumerated areas specified in the Constitution.  Where crimes interfere with core functions of the federal government or are truly interstate in nature, Congress has the prerogative and duty to act.  But most federal criminal laws are enacted pursuant to an interpretation of the Constitution’s Commerce Clause that, although blessed by a Supreme Court that has essentially chosen to defer to Congress on the issue, bears no responsible relationship to the text.  State governments have the ability and incentive vigorously to pursue criminal activity.  By staying our hand at the federal level, we will empower them and restore in practice the federalist structure that was so sacred to the Framers and central to the document they drafted. 

Mens Rea

The next principle I will discuss touches on the importance of including a sufficient intent requirement (referred to as a mens rea standard) in criminal laws and regulations.  Mens rea is a well-known concept to lawyers the importance of which, at least in the abstract, garners virtual consensus.  Before and since Edward Coke (“Cook”) famously stated that actus non facit reum nisi mens sit rea—or “an act does not make a person guilty unless their mind is also guilty”—numerous commentators have articulated the significance of the principle of mens rea, its pedigree, and self-evident nature.  For example, in Morisette, Justice Jackson famously explained:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory “But I didn’t mean to,” and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.[4]

But despite what again would seem to be rather overwhelming reasons why the federal government should approach criminal law a certain way, it has consistently chosen to act in another—less sensible—manner. 

The federal code is sprinkled with criminal laws that either do not specify an intent requirement or do not include a sufficient intent requirement, and the federal register contains many similarly deficient regulations.  The Supreme Court has, at least in some circumstances, offered a bit of help by reading a mens rea standard into criminal laws that lack one.[5]  But relying on the Supreme Court alone is plainly insufficient, not only because the Court doesn’t always get it right, but more importantly because as a member of Congress I have an independent duty to get the law right.  This duty includes the responsibility to vote for only those criminal laws that penalize truly criminal conduct.  And I cannot do that unless I am sure the criminal law at issue includes a sufficient intent requirement. 

The states, which as I have noted have the proper authority to prosecute substantive crime, have largely put into statute the crimes previously punished at common law and by most accounts have done a decent job of including mens rea requirements.  The federal government, on the other hand, has become involved in substantive criminal law by a more circuitous route, and not surprisingly, has done a much poorer job of paying proper attention to mens rea.  Beginning in the late-nineteenth century and with alarming frequency in recent decades, the federal government has extended its jurisdiction beyond the bounds of the Constitution and into the realm of substantive criminal law.  In so doing, the federal government generally has not merely been codifying common law crimes that may have a federal nexus.  Rather, it has been attempting to accomplish a broad regulatory agenda by means of imposing criminal sanctions for regulatory violations.  For example, so-called “public welfare” or “regulatory” crimes, which often lack a significant intent requirement, are justified on the basis that the criminal penalty attached to the offense serves the purpose of communicating the serious nature of the regulatory violation at issue and the widespread harm that may result from such a violation.    

But just because a regulatory violation may cause harm, does not mean that the conduct at issue is morally wrong or criminal.  Indeed, many unintentional actions may result in harm.  But whereas truly accidental arson is not punished as arson under the law (and indeed it would hardly make sense to call a stove fire arson), the accidental violator of a regulatory statute is not given that same benefit of the doubt.  Instead, under current federal law, she is a criminal.  Thus, to cite instances of which many in the audience may be aware, the man who packages lobsters incorrectly, the company that unknowingly imports the wrong kind of wood, and the girl who helps a hurt woodpecker are—due to the federal government’s unnatural expansion into the realm of criminal law—criminals.  

The transition to a criminal regulatory approach has, by its very nature, made criminal many actions that are not malum in se (or self-evidently morally wrong), but rather are malum prohibitum (or criminal only because the law says they are).  It was of course necessary that judges at common law pay attention to mens rea requirements, but even had they not done so, many and perhaps most cases of murder, theft, arson, and other common law crimes naturally included intent (arson is only arson if you meant to do it).  The new types of crimes Congress and executive agencies have created, on the other hand, do not generally by their nature include an element of intent. 

The Congressional and administrative failure to include sufficient mens rea requirements in these new types of malum prohibitum laws and regulatory violations has thus resulted in a kind of double-whammy on our constitutional liberty.  The federal government has criminalized much otherwise innocent conduct.  In some cases it has done so after deliberation because it believed—whether wisely or not, and in many cases I think not—that the potential harm resulting from the conduct merited imposing a draconian sanction.  But in still other cases, the federal government has simply failed to pay much attention to mens rea—perhaps out of the habit of creating new, statutory or regulatory malam prohibitum crimes practically out of thin air with scant if any precedent at common law.  

The Congressional and administrative lack of attention to mens rea is, I think, somewhat ironic in light of the Supreme Court decisions in the early 20^th century such as U.S. v. Balint and U.S. v. Dotterweich, which upheld criminal regulations that lacked a mens rea requirement.  In those cases, the Court relied heavily in its analysis on the presumed deliberation Congress gave the regulations.[7]  If only that were the case!  Sadly, in my role on the Judiciary Committee, I routinely encounter draft legislative proposals that include criminal penalties and insufficient mens rea standards.  And I struggle to believe that Congress or administrative agencies have given much thought to the proper mens rea requirement—let alone careful thought—for many of the regulations that carry criminal penalties.  

We must take account of the lack of sufficient intent requirements in federal laws and regulations and ensure that innocent persons are not held criminally liable for otherwise innocent conduct, except where Congress explicitly desires (and has a good reason) that that be the case.  To do this, I believe Congress should pass a new law that provides for a default mens rea standard both for those statutes and regulations that do not already specify such a standard and for those statutes and regulations that may be enacted in the future without specifying a mens rea standard.

Separation of Powers

The third principle I will discuss today relates to the Constitution’s separation of government powers.  In this respect, I would like to address arguments some have made that overcriminalization is not a serious problem because statistics show that broad criminal laws and strict liability regulations are very seldom prosecuted and offenders of such laws and regulations make up an extremely small portion of the federal prison population. 

Not many of us I don’t think, and not many of the Framers I would expect, would be comfortable with a regime that vests complete discretion in the executive branch to prosecute as a crime any conduct it believes is harmful.  And yet, with thousands of criminal statutes and hundreds of thousands of criminal regulations, it seems at times as if Congress is entirely okay with such an approach. 

I believe the rule of law means that individuals have a right to know beforehand the laws to which they are subject and that they will not be made subject to the whims of individual men and women who enforce legal norms in an unpredictable manner.  Yet even under this basic definition, it seems that—to an uncomfortable degree—our federal, criminal administrative state is not a system subject to the rule of law.  Rather, at least at the federal level, we appear to be living in a system of executive discretion whereby that branch of government may pick and choose from an endless array of laws and regulations the rule of the day that they will enforce (or as seems more recently the case, not to enforce).  This state of affairs is the result of Congress criminalizing all or nearly all conceivably harmful conduct, much of which had already been criminalized at the state level. 

As I mentioned, some have noted that less than ten percent of federal criminal convictions per year involve one of the miscellaneous thousands of statutes that are not well known to the public, and less than one percent of those currently in federal prison were prosecuted for federal regulatory crimes.  *But any argument on that basis proves either very little or entirely too much.  If these laws and regulations are not being used, then why do we need them?  And if they are being used to deter (or, as I would contest, to chill) individual conduct, then of what relevance are data about the infrequency of prosecution? 

It seems instead that, to an unfortunate degree:

• Members of Congress urge enactment of additional, unnecessary criminal laws to garner political credit;

• administrative agencies use criminal sanctions because they can and because they come to believe that every regulatory violation in their jurisdiction is a big deal that merits serious punishment;

• and interest groups seek criminal regulations to create obstacles and barriers to entry for competitors. 

None of these approaches in my view offers any real benefit against which we can reasonably compare the costs of overcriminalization—which at a bare minimum involve an immense amount of red tape and heightened chilling of legitimate behavior.   

Concerns related to the Constitution’s separation of powers—and concerns about the executive branch wielding too much power with respect to criminal law—also arise with respect to mandatory sentences.  Here too states have taken a more enlightened approach, with a number of states recently reducing or doing away with mandatory minimums and seeing a continued trend of reduced crime in their jurisdictions.  Nonetheless, at the federal level, we continue to take a different approach—an approach that I believe places too much power in the hands of prosecutors and shortchanges the role of the judiciary and the importance of individualized justice. 

In this respect, it is worth noting that the Bureau of Prisons is operating at nearly forty percent over capacity and half of all federal prisoners are incarcerated based on drug charges.  Taking account of the federal government’s reliance on mandatory minimums in the context of crimes for drug possession and distribution, and making modest, incremental changes to these mandatory minimums, would have a real effect on federal prison overcrowding.  It would also return to communities and households those men and women that—because of a one-size-fits-all approach to sentencing that doesn’t take account of individual circumstances—have already served enough time for the crimes they committed.    

The federal government has a legitimate role in policing some limited forms of crime.  But since 1980, the federal prison population has grown almost 800 percent.  This ballooning prison population mirrors other problems of federal overcriminalization too neatly to be ignored in the larger discussion.  It is difficult for me to believe that crime has increased by 800 hundred percent over the last few decades.  Rather, I believe this increase is due to the federal government’s undue involvement in substantive federal law, combined with the use of rigid sentencing laws that are in need of modest updates.

I am committed to addressing the issues of federal overcriminalization that chill legitimate conduct and threaten individual liberty.  To do so, I believe Congress must enforce the Constitution’s structural limitations on federal power, give proper attention to mens rea standards, and respect the Constitution’s separation of government powers.  I would like to thank the Administrative Conference for inviting me to speak today and wish you the best for the remainder of the workshop.