Unmasking the Administrative State
Page 24
Until 1973, the regulatory commissions in some areas enjoyed less independence than some executive agencies. The president, through OMB review of budgets, legislation, and data questionnaires, and Department of Justice control of litigation, was able significantly to influence commission policies, administration, and operations. The Congress in 1973 overrode White House objections and amended the Alaska pipeline bill (1) to authorize the Federal Trade Commission to represent itself in civil court proceedings and (2) to transfer authority for review of independent regulatory commission data requests under the Federal Reporting Services Act from OMB to the General Accounting Office.16
The independent regulatory commissions may have become less dependent upon executive supervision in recent years, but they appear to be more responsive to congressional intervention.
The importance of these changes in the standard of political life, which occurred as a result of the regulatory revolution, can be seen in Wettergreen’s concise formulation of the problem. He suggests that “the constitutional distinction of regulation from government ought to be observed: simply stated, in the Constitution, ‘government’ is the adjustment of private interests to the public good and ‘regulation’ is the adjustment of private interests to each other. A shift of the government’s activities from governance to regulation implies a shift of the political standard from the public interest to private interests.”17
Administrative centralization did not strengthen the governing capacity of the national institutions; on the contrary, it weakened them. As government’s role was expanded and its functions increased, it became more intrusive and bigger, but not stronger and more decisive. Rather, as Walter Lippmann pointed out long ago, “to be big is not necessarily to be strong.” Indeed, Lippmann insisted that the growth of modern or bureaucratic government threatened “the devitalization of the executive power.” The ensuing “disorder,” he suggested, “results from a functional derangement in the relationship between the executive power on the one hand, the representative assemblies and the mass electorates on the other hand.”
Lippmann contended that “democratic states are susceptible to this derangement because congenitally the executive … is weaker than the elected representatives.… And the normal tendency of elections is to reduce elected officers to the role of agents or organized pluralities.”
Such governments, he maintained, are, “to be sure, big governments, in their personnel, in the range and variety of their projects, the ubiquitousness of their interventions.” But they are not strong governments. “They are, in fact,” he noted, “swollen rather than strong, being too weak to resist the pressure of special interests and of the departmental bureaucracies.”18 Hence, modern democratic governments, when bureaucratized, are faced with the apparent paradox of being less able to govern the more they try to administer the details of life in society. Centralized administration almost requires decentralization of government.
Administrative centralization, moreover, has exacerbated the tension between the executive and the legislature in a way that subsequently worked to undermine the separation of powers. As Wettergreen has observed, “the difference of interest between the President and Congress, which bureaucratization has produced, ought to be distinguished from the traditional rivalry of the branches, which is the consequence of separation of powers. The Presidency, as the only truly national elective office, is ultimately subversive of central administration, while Congress, especially the House, has a natural sympathy with administration because of its closer ties to narrower interests.” When administration is centralized, Wettergreen suggests, “it does not naturally fall under the authority of any one branch.… Instead, it becomes a bone of contention among them.” Moreover, Congress gets “the better of the division because of its superior attention to localized interests (and its superior part in deliberations).” Before centralization, Wettergreen contends, “congressmen surveilled the president, to protect non-national interests from the untoward effects of national executions. The ultimate protection was to refuse to make laws touching these interests on the ground that they were not national interests.”19
In the same manner, “the President surveilled Congress with an eye to the national (or, at least, trans-sectional) interest, if only because his political interest required a broader coalition.” Hence, Wettergreen noted, “before the choice to centralize was made, separation of powers was an important prop for decentralized administration, in which congressmen have an interest (even during the New Deal), and for centralized governance, in which the President has a special interest. In sum, the whole central government had a common interest in deliberating the national interest, and in distinguishing it from narrower interests.” Administrative centralization makes it far less necessary for Congress to subordinate private and parochial interests to a national interest. Rather, Congress in the period during and after the Great Society, “brought all the partial interests to the center, where they do almost nothing but try to compromise national execution and legislation.” Consequently, Wettergreen concluded: “decrees, i.e. bureaucratically promulgated regulation, have replaced public laws as the typical expression of public authority.”20
In the aftermath of administrative centralization, Wettergreen suggests, “the President still has a political interest in central governance, but the Congress has lost its interest in decentralized administration.” The constitutional separation of powers, Wettergreen maintains, “did not deadlock national governance on national issues, but encouraged it by making the cooperation of the two branches necessary. However, administration does not require that cooperation. So today, the branches stand divided against themselves, one wishing to govern and the other to administer.” Hence, he concluded, “the conflict between the two branches is no longer the result of differing opinions of the national interest.”21
Even before the election of 1972, it had become clear that a president’s ability to govern in the national interest was undermined by administrative centralization, and every recent president has sought to control the bureaucracy in order to decentralize administratively, with a view to governance in accord with general principles or a public interest. On the other hand, Congress has benefited from and has become the defender of a centralized administration. In practice, this has often required obstructing the president’s ability to govern by preventing unified presidential control of the bureaucracy. Furthermore, Congress inhibited its own capacity to govern in accord with a general or national interest by deemphasizing its legislative or lawmaking and its deliberative function, while at the same time strengthening its administrative oversight capability. Hence Congress reorganized itself in such a way as to disperse power broadly among its members in committee or subcommittee, with a view to allowing individual members the ability to intervene routinely in the execution phase of the governing process. As a result, some of the most important political battles between the president and Congress revolve around the question of which branch will control the bureaucracy, and in whose interest. In these circumstances, it has become almost as difficult to distinguish the executive and legislative function of the respective political branches as it is to discern the difference between the public and private sphere in the post-bureaucratic society.
In the public mind, Congress as an institution is expected primarily to deliberate and legislate or make general laws in the national interest. Secondly, it is to represent and serve the particular or private interests and constituencies of the localities that make up the nation. When it is judged as a body or an institution, Congress is judged on its ability to make good public law in the national interest. On the other hand, individual members of Congress are more often judged on the basis of their ability to provide the kinds of goods and services that can satisfy the private interests of organized groups, or electorally decisive minorities, within a district. The problem posed by this dilemma is that it is not possible to make good general laws in the public interest and, at the same time
, provide the particular necessities sought by the private interests. At the national level, it seems to be impossible to govern and administer at the same time. However, this problem was solved in a satisfactory way for individual members, but not for the institution of Congress, by the creation of a bureaucracy whose public mandate was so large, its purposes so broad, that the impact of its rules and regulations touched upon nearly every interest and detail of life in society. By delegating authority to the bureaucracy, Congress could avoid responsibility for the obtrusive regulations foisted upon society. The bureaucracy could be blamed for its meddlesome rules rather than congressional failure to provide proper guidelines in its delegation of authority, assuming national legislation was necessary in the first place.
In this period of administrative centralization, Congress apparently had concluded that nearly every social and economic, not to mention political, problem required a national solution. But Congress was unable to pass general laws that were sufficiently detailed to accomplish its purposes. This was particularly true when those purposes were so vague—such as a general desire to clean up the environment—that any specific measure could not get majority, let alone presidential, support. What Congress did, as Wettergreen has shown, was “deliberately leave the law ‘unfinished,’ wait and see what bureaucratic discretion would do with the law, and then, if necessary, correct the bureaucracy.”22
The precedent for this kind of delegation of authority on a broad scale, with vague standards of enforcement, was the Federal Trade Commission (FTC) Act of 1913. Wettergreen has called this act “one of the poorest pieces of legislation ever written.” As he noted, “according to that act, the FTC’s authority was to be exercised to prevent ‘unfair methods of competition in commerce.’ Moreover, the FTC Act explicitly declares that the ‘reason’ of the commission should determine which methods are unfair; Congress explicitly refused to reason about this and meant to deny the president’s reasoning.” Such broad and vague delegation of authority had the effect of substituting administrative discretion for congressional deliberation in a vast area of public policy. As a result of the difficulties posed by this act, Wettergreen noted that “Congress never deliberately created agencies with broad, vaguely defined purpose and purview. Never, that is, until the regulatory revolution of the early 1970s, when it created society-wide regulatory agencies with intentionally vague purposes after even less deliberation than the FTC.”23
Once administration is centralized, no legislative body can legislate, in a general manner, all of the details of the life of a great nation. Congress had to delegate authority to administrative bodies. Of course, it could continue to play a significant in role in the administrative process, or void an exercise of delegated authority, through the use of a legislative veto. But Congress has a number of ways of ensuring that the bureaucracy is responsive to its members. Perhaps the most important formal power is the statutory authority of Congress to create departments and agencies, as well as determine their size, not to mention the ability to control their budgets. Ripley and Franklin have pointed to several means by which Congress keeps the bureaucracy responsive to its will. As they have observed: “in the technical sense, only statutes have the force of law. However, Congress has also made its will felt in programmatic terms through language contained in committee reports. And the executive branch often treats this language as binding.” Also, “Congress may require that parts of the bureaucracy make certain information available to it through reporting requirements in statutes.” Perhaps, most important for ongoing control, is control of authorizations and appropriations, which require numerous formal and informal contacts between administrators and congressmen. Consequently, as Ripley and Franklin have suggested, “Congress inevitably is the focus of attention from bureaucrats requesting and defending their agencies’ budgets, and budget decisions are an important congressional technique for influencing programmatic performance in the executive branch.”24 It is not surprising that career civil servants are often more attentive to the wishes of relevant members of Congress than to their elected or appointed superiors in the executive branch.
The implicit premise of legislative delegation, and the necessity of administrative oversight, is the belief that administrative bodies, scientifically neutral and technically rational, can best carry out the will of the people. The political reason of the people, or the deliberation of the partisan representative legislative bodies, is ineffective in fulfilling the people’s intention. Furthermore, administrative bodies benefit from the technical rationality of the social sciences. The scientific method is superior to the political process as the means of serving the will of the people. As Harvey Mansfield has commented, “The trick, then, is to leave the people their will and take away their reason; then social science can bring its reason to serve their will, showing them how to get more of what they want. The value neutrality of social science is the best or only means by which government can bring value to the people.”25 It is no wonder that legislative bodies have become increasingly apprehensive concerning the necessity of public deliberation and the efficacy of political reason as the means by which modern problems can be solved. Thus, within the legislatures, public deliberation and lawmaking has given way to delegation of authority to those administrative bodies capable of utilizing the expertise of those trained in the scientific method, or the technical rationality of the now authoritative social sciences, in solving the problems of modern society.
The rationale for the legality of the delegation of power, and the use of a congressional negative, was stated in Justice Jackson’s opinion in Federal Trade Commission v. Ruberoid (1952). As Wettergreen commented, “according to that opinion, the laws establishing administrative agencies were ‘… unfinished law which the administrative body must complete before it is ready for application.’” But, as he points out, such a view “appears to be unreasonable: an unfinished law is not yet a law; it is not really a law at all.”
Nor can the bureaucracy complete the law. Indeed, Wettergreen opines, “the same reasons which prevented Congress from ‘finishing’ the law in the first place—the threat of a presidential veto, the lack of majority support for any possible finished law—kept the law from ever being ‘finished’ by the bureaucracy. How could anyone suppose that, if Congress could not ‘finish’ a law, a bureaucratic agency which is by nature politically weaker than Congress could ‘finish’ that same law!” In fact, Wettergreen insists, “no law defining ‘consumer product safety’ could get through Congress and past the President today for the same reasons that none could in 1972.”26
In terms of practical effect, Wettergreen concluded, the use of the legal device of “unfinished law” was just a means of centralizing administration. “The laws could not be ‘finished,’ [he contends] because they invariably dealt with administrative, not governmental problems.” If Congress could not govern concerning the details of administration, it learned to benefit from overseeing the administrators. Furthermore, in terms of constitutional government, Wettergreen has observed that “the passage of intentionally ‘incomplete laws,’ which would be ‘completed’ by the fiats of the bureaucracy, and the development of the congressional veto, which is essentially a declaration of the will of Congress, moved the nation away from the rule of law.”27 Those “details of administration,” which Hamilton thought executive in nature, had become the province of the legislature. Also, the capacity of deliberation, which is a peculiar virtue of the legislature, and the exercise of will, or energy, which is a function of the executive, is curiously reversed.
Administrative centralization allowed members of Congress to take credit for providing those subsidies or services, including regulatory relief, which benefited particular constituents. As Fiorina has observed, “Congress maintains a federal bureaucracy deliberately organized to make it permeable to congressional intervention—not only to the chamber as a whole, but to subgroups and even individuals. So long as an agency cooperates when members make s
pecific requests, it is unlikely to suffer long-term losses no matter how poor its performance.” Moreover, Congress disguises its responsibility in the delegation of authority. “Why take political chances by setting detailed regulation sure to antagonize some political actor or another?” Fiorina asks, “Why not require an agency to do the dirty work and then step in to redress the grievances that result from its activities? … Let the agency take the blame and the member of Congress the credit. In the end everybody benefits. Members successfully wage their campaigns for re-election. And while popularly vilified, bureaucrats get their rewards in the committee rooms of Congress.”28 While individual members of Congress have benefited from this arrangement with the bureaucracy, the institution of Congress has had greater difficulty in performing its primary function as a body, which is general lawmaking in the public interest. Seidman and Gilmour have suggested that “the particularistic elements in our society will always triumph over the general interest as long as they are nourished and supported by committees and subcommittees that share their limited concerns.”29
The Crisis of Constitutional Government
In the American Constitution, Congress was to be the central political branch in a government of separated powers. Its chief purposes were lawmaking, deliberation, and representation. As a legislative body, Congress was thought to be primarily concerned with making law. However, in recent years, it has done so with difficulty and reluctance. Moreover, Congress found it easy and useful to delegate authority to executive branch agencies or independent regulatory commissions. It became necessary to do so when the functions of the national government became so varied and thoroughgoing, that no single body could legislate reasonably, or in a general manner, when faced with such detail. In a time when the power and presence of the federal government has become nearly all-pervasive, it is significant to note that “the total output of Congress in a typical session is usually no more than 400 pieces of legislation.” Moreover, not all such laws are general public laws; many are private or individual pieces of legislation. “By contrast, the total number of regulations each year is now in the neighborhood of 7000.”30 Rulemaking by executive branch agencies has surpassed legislative lawmaking in importance. In this new environment, members of Congress have found it convenient to emphasize the oversight function at the expense of lawmaking or general legislation.