Why Government Fails So Often: And How It Can Do Better (50 page)

The American system could hardly be more different, and the consequences of this difference are far-reaching. Here, there is a radical
separation—constitutionally, politically, and practically—between the powers of the president and the administrative agencies under his authority, on the one hand, and those of Congress on the other. This separation is true, albeit to a lesser extent, even when the president’s party also controls both houses of Congress.

For present purposes, this radical separation is of foundational importance. As the late Nelson Polsby observed, “the American Congress has no close counterpart anywhere in the world in the autonomous power that it exercises as a collective entity.”
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Most important, Congress has the constitutional power, numerous levers of policy influence, and political incentives to compete fiercely and incessantly with the president to shape the administration and its policies, and Congress often wins this struggle.
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A leading scholar of bureaucracy, Donald Kettl, explains,

Through the legislative process, Congress controls the structure of federal agencies. It sets the budgets under which they operate, as well as the size of their staffs … despite the president’s common title of “chief executive,” the bureaucracy is far more the creature of Congress…. Congress and, especially, congressional committees, frame much of the political reality of bureaucracy…. Not only does the fragmented nature of Congress create administrative fragmentation, but so, too, does the array of interest groups … these issue networks tend to fragment bureaucratic power. There is really no such thing as “the bureaucracy.” … For political forces seeking to influence administrative action, however, the fragmentation [among congressional subcommittees] is a blessing. It creates multiple points of access to the administrative system….
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The importance of this pervasive congressional influence can scarcely be exaggerated, as it affects each and every federal policy. Indeed, the vast growth in recent decades of congressional staff, along with its technical and professional credentials and policy-specific institutions, has increasingly shifted the balance of power in the competition with the White House for control of the bureaucracy in favor of Congress. Bureaucrats, recognizing the extent of congressional power over almost every aspect of their work and careers, often are
at least as responsive to congressional pressures as they are to their agency and White House superiors.
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This analysis has so far treated the president and “his” bureaucracy as a monolith, albeit one subject to pervasive congressional penetration. But this interbranch competition is affected by a second struggle for policy influence—one among (1) the president, represented by the White House staff; (2) the agencies that comprise the executive office of the president (especially the Office of Management and Budget (OMB), the Council of Economic Advisors, and the director of national intelligence); and (3) the rest of the executive branch, including those departments and agencies that are legally under the president’s direct control. (The president’s influence over the “independent” regulatory agencies, located within the executive branch for some but not other purposes, is more limited and indirect.) These executive branch agencies, strongly influenced by Congress and by outside groups with access both to key congressional committees and to the White House, often pursue their own interests, resisting and sometimes even subverting the president’s policy agenda.
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The free-for-all, then, is both between the two branches and within them. This scrum contributes significantly to the incoherence of policy design and implementation and thus to its ineffectiveness.

Legalism
. One consequence of the competition for influence is greater use of formal legal rules—both procedural and substantive—to govern decisions by administrative officials that would otherwise be discretionary. As the sociologist Max Weber discussed, this tendency toward legal formalism is characteristic of all bureaucracies, public or private, and is often viewed as vindicating, if not constitutive of, the rule of law. I and most other students of the modern administrative state find this view extreme. Law can and in most cases should guide, structure, and constrain discretion, but in complex legal and policy systems like ours, discretion is both inevitable—an observation emphasized by legal realists for more than a century—and generally desirable if exercised within legal parameters. This point was discussed in
chapter 8
.

The crucial questions, then, are: What is the optimal type and extent of discretion that lawmakers should delegate to the bureaucracy? And how is that discretion best controlled in the interests of rule-of-law values? There are no simple answers to these questions, of course; the answers depend on the particular circumstances, which is why the Supreme Court long ago essentially abandoned the nondelegation doctrine in favor of other techniques for regulating discretion (see
chapter 3
).

The uncertain, back-and-forth struggle between and within the Congress and the executive branch over control of agency decisions often takes the form of detailed rules and procedures, sometimes referred to as “hyperlexis” (discussed in
chapter 8
). Another competitor for control of administration, albeit more intermittently, is the federal court system; since the late 1960s, the courts have exercised ever more demanding review of agency decisions, both procedural and substantive (discussed in
chapter 3
). These inter-and intrabranch struggles seem to have much more to do with competing institutions’ efforts to infuse agency decisions with their distinct values than with any systematic efforts to improve agency effectiveness. Depending on one’s perspective, the outcomes of these struggles either render agencies more accountable to elected officials or hamstring them in ways that undermine effective policy making and implementation. The resulting forms of bureaucratic legalism engender much of the “red tape” that so often turns citizens against the government. Although citizens tend to direct their fury at the bureaucracy, it is the legislative and judicial lawmakers who ultimately are most responsible for the red tape.
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Some legalistic rules and procedures are imposed by the agencies themselves for a variety of reasons: protecting officials against criticism (“it’s not me, it’s the rule”); making their work easier by using a rule-driven checklist approach (“I have no choice; this requirement is on the mandated list”); or implementing perceived legislative policy (“Congress wanted it this way”). But as political scientists Eugene Bardach and Robert Kagan show in their study of federal health and
safety inspectors, “going by the book” has many disadvantages both for program effectiveness and for the inspectors themselves.
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Leadership
. The quality of leadership of the federal bureaucracy—the political appointees—is compromised in two important ways: selection and tenure. Light’s data indicts the very process by which presidential appointees to executive branch agencies are vetted. This process applies even to officials who are many layers below the top and do not require Senate confirmation. It is not merely sluggish,
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centralized, and bureaucratic; it is also a minefield for aspirants to public service, one that treats candidates as “innocent until nominated.” President Barack Obama’s remarkably quick start in nominating his cabinet and key subcabinet subordinates made the subsequent withdrawals of several of them in the first month after his inauguration all the more humbling. As Light noted at the time, “They were really fast in the first 100 meters … but this is a 10,000-meter process, and they’ve slowed down quite dramatically. I would have bet you the farm they’d break the recent record, but now they’re on pace to become the slowest.”
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This delay might be acceptable if the process produced higher-quality officials, but Light, after considering various indices of quality, finds that the opposite is true.
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The state of the federal service, he concludes, has been declining since the years of president Jimmy Carter, when presidents and other top officials began to attack the bureaucracies that they led. Agency effectiveness is also undermined by leadership vacuums caused by protracted vacancies at the top. In the crucial Department of Homeland Security, for example, over 40 percent of its senior leadership positions were either vacant or had an “acting” placeholder when the president finally nominated a new secretary in October 2013. The notorious underenforcement of the federal gun laws by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (see
chapter 5
) is partly due to the absence of a Senate-confirmed director for
six years
, reflecting the success of the National Rifle Association’s agency-weakening efforts;
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and when
confirmation finally did occur, it only managed to sneak by through extraordinary proceedings and a last-minute changed vote.
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The director of the Consumer Finance Protection Board was not confirmed for two years, creating enormous uncertainty about its policies.
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In the more than five years since the Federal Home Finance Agency was created to oversee Fannie Mae, Freddie Mac, and the Federal Home Loan Banks, the Senate has failed to confirm a director despite the pivotal role that these agencies had in the housing and banking crises. Much the same is true of the president’s controversial recess appointments. Indeed, their legal validity is now in question and may not be resolved for years.
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And given the massive fraud, waste, abuse, and ineffectiveness in federal programs (see
chapter 6
), the president’s failure, despite senators’ urging, to fill inspector general (IG) vacancies for as many as five years in some of the largest cabinet departments, agencies accounting for almost a quarter of the federal budget, is crippling their vital watchdog functions. (Because many
acting
IGs will return to their old positions in the agency when an IG is named, their statutory independence may be compromised.
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)

Hugh Heclo, a leading scholar of the federal bureaucracy, noted in his aptly titled book
A Government of Strangers
that political appointees cannot guide their career subordinates effectively if they are too transient. To lead effectively, they must remain on the job long enough “not only to learn about the substance of programs and how to operate in the Washington networks but also to use what has been learned. Policy priorities are not immune to change, but they are most likely to respond to leaders who are around long enough to build support, to institutionalize changes in the bureaucracy, and to string together the narrow margins available at any one time to a strand of policy development.”
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Other political scientists agree, noting that appointees’ competence and credibility as leaders necessitates enough continuity in office.
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The data on appointees’ tenure is not reassuring on this point. A study of presidential appointees from 1989 to 2009—including full-time civilian, Senate-confirmed appointees to all departments, single-headed independent agencies, and organizations within the Executive
Office of the President—found an overall median tenure of only 2.5 years; one quarter of them served more than 3.6 years while another quarter served for less than eighteen months. Cabinet-level officials had a median tenure of 3.3 years, a year longer than lower-level appointees (2.3 years).
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Another study of these appointees, but including multiheaded agencies and going back to 1977, finds slightly longer tenures.
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Layering
. Comparatively speaking, the federal bureaucracy is notable for the sheer number of political appointees who penetrate deeper into the bureaucracy. This contrasts sharply with many parliamentary governments in which only the very top officials’ positions change hands with a new government. In Denmark, for example, there is only a single political appointee—the minister—above the career service. In the United Kingdom, career civil servants operate just below the ministers.
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Heclo’s 1977 book noted the problematic “thickening” of the leadership cadre in federal agencies due to new layers of political appointees on top of the core of civil servants. Writing three decades later, Light shows that this layering has only increased. He finds “more layers of leaders and more leaders per layer” among both political appointees and the senior career service. Between 1961 and 2009, the number of layers or ranks by title in the average cabinet-level agency jumped from seven to eighteen.
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This development, Light says, largely reflects two factors that together increase pressures for promotion: the rapid aging of the federal workforce as baby boomer employees unleash what one study calls a “retirement tsunami,”
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and the desire to circumvent frequent congressional pay freezes. Even the supposedly management-oriented George W. Bush administration presided over “a significant expansion in both the height and width of the federal hierarchy well beyond best practices anywhere else, most notably in the business sector.” This growth and widening has occurred despite the new orthodoxy of hierarchical flattening and decentralized authority in the corporate and nonprofit sectors, and
the lip service given to this orthodoxy in the “reinventing government” movement that swept the public sector in the 1990s.
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