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Following posting this comment ( https://www.themotte.org/post/900/culture-war-roundup-for-the-week/193633?context=8#context ) regarding a law that I believe should only apply to those who would want to impose it on the population, I have been playing in my head with the idea of a "Higher Standards" bill for politicians. The idea would be that all laws apply maximally to elected officials; in situations where prosecutors or judges find themselves with any discretion in their ability to prosecute or punish crime committed by an elected official, even in their personal life, they should forced to start their process from the point of the harshest possible position. They would be forced to prosecute jaywalking, the slightest driving infraction, etc... and start the mental accounting for sentencing / fining with the longest sentences or highest fines before any mitigating circumstances can apply. Details as to whether it would apply to actions before the enactment of the bill, or to accession to public office could be negociated either way. A grace period could be left open to allow rewriting laws before it applied.
I see a lot of positives coming out of such a bill. The main one is to urge restraint in writing laws. Legislators pass laws knowing that it is unlikely that they would ever be used against them and care very little that these laws are held over the population like the sword of Damocles that could at any moment be applied by a prosecutor looking to make an example or please a private sponsor. If you want to vote for a law criminalizing piracy, you should yourself be able to account for every single piece of digital content you have. If you want to curtail "hate speech" you better be damn certain that whatever comments you make today on either side of the Israel/Palestine conflict will not be considered "hate speech" by the standards of tomorrow, etc... While I don't believe it would stop all of it, I think it would force legislators to reconsider some laws that achieve little but make technical criminals of very average people for widespread actions.
Other benefits I see is that it would encourage legislators to pay attention to the technical minutia of the laws they're passing, outside of the pork they're able to fit in it and how it will play with interest groups. It would also discourage criminals from running for office.
I struggle to see negatives; technically it could discourage effective would-be politicians from running for office if they believe that this is going to be weaponized against them. And I guess it would be a struggle to pass as politicians obviously would hate it, but without any arguments to bring forward I think they would find it hard to convince their constituents that voting against it is anything but voting against their interest. And it would take only a few fairly clean politicians to make some noise in favor of such a bill, willing to trade the benefits of future criminality in exchange for the large boost such a clear pro-plebeian move would give them.
I guess it could also be argued it's a very legalistic, low-trust society move, which I would concede, but that's the point I believe we are at in much of the west. That when the system is seen as benevolent it is fine to leave cops with the discretion to decide, for instance, when it's in the public's interest to disperse disruptive people for vague reasons like "loitering" or to punish antisocial speech as "hate speech", but when I do not trust the system, until that trust is restored I would rather know exactly what the rules of the game are, and so I want lawmakers to be highly interested in making sure that rules are crystal clear too.
So are there any negatives I'm not seeing? Has any similar law been enacted elsewhere and what has it led to? I see lots of references in the anglosphere to proposed bills claiming to hold elected officials to a higher standard, but for the most part it seems like it's either object-level transparency laws (which of course, we need too, but won't encourage restraint in lawmaking), too vague or obviously meant to be solely weaponized against the proposer's rival (laws against "lying", or against "contesting election results" or whatever else of that kind).
This just gives the administrative state unlimited power over politicians. Which, to be fair, is basically already the case. Already we see that people in bureaucracy are not held to the same standard. For instance, even though it is technically a crime to make a material lie to any government official, the FBI can lie to other government officials they are investigating and never be charged for it, while the FBI can set perjury traps for other government officials and go after them. The FBI routinely uses tactics that for any other person be obstruction of justice, and never gets charged for it. Etc. etc.
Yes, this is on purpose. It's part of the mechanism by which I would actually curtail the administrative state's power: I want the administrative state to be forced to be hostile to legislators so that legislators take the power creep of the administrative state seriously and write laws that restrict the discretion the administrative state has.
How long would it remain a crime if legislators were maximally subject to it? Legislators have the power to make it not a crime. Or to significantly limit or clarify when and to whom lying is a crime. They just never bothered making it not a crime because they know that unless they find themselves significantly out of favor with the administrative state, everyone with some discretion with regards to enforcing this is gonna ignore it or refuse to prosecute it. But if the opposite political party could, for instance, sue the FBI (or even better; make the individuals in the administrative state personally liable) for not prosecuting crimes of the their opponents, then the law would be fixed in a hurry.
Right now, legislators write laws with significant vagueness, so broad as to make everyone technically commit crimes, safe in the knowledge that the heads of the administrative state are in their peer group and would not weaponise these against them, barring extreme situations (like that one businessman-politician we all know about). And for the most part, they wouldn't even weaponise them against the majority of the population, they're content to keep these laws in their back pocket to use if they need to take someone out. But the average citizen is not in the peer group of the legislators and the heads of the administrative state, all they know is that there are dozens of crimes a hostile state could find them guilty of if it wanted to. They might not mind if the state feels friendly, but increasingly people on all sides except the elites are finding the state to be apathetic or outright hostile to them. Making legislators feel this hostility is the best way I can think of to incentivize them to restrict the power of the administrative state.
Note that I'm also thinking that a "Higher Standard" law, if it turns out to work with legislators, could also easily be applied to the upper echelons of the administrative state and the judiciary: judges, prosecutors, etc... Any one who's got any power to wield the state's power against the population and whose power is based on significant amounts of discretion. Break up the professional courtesy that they have between them that the population at large doesn't get to enjoy; the administrative state being friendly towards itself is not compatible with democratic principles, it's a form of corruption.
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