TOPIC #27 — THE EXECUTIVE BRANCH: THE BUREAUCRACY

           This enhanced study guide will take the place of a class on this topic. Read Chapter 8 in Kernell and Jacobson carefully; it is clear and complete. This handout is intended only to be a supplement to this chapter.

           The federal government consists of approximately 2.5 million civilian employees (a number that — contrary to common impressions — has hardly changed over the past 50 years). This number includes about 1200 federal (district, circuit, and Supreme Court) judges, 535 members of Congress, the President and Vice-President and about 3000 Presidential appointees (all but several hundred holding very minor positions, e.g., members of the National Battle Monuments Commission). All others are “federal bureaucrats.” About 10,000 of these work for Congress (staff assistants, Congressional Budget Office, Congressional Research Service, etc.) and a smaller number work for federal courts (clerks, U.S. Marshals, etc.); all others are part of the executive branch or work for “independent regulatory agencies” (see below).

           A bureau refers generally a unit of the executive branch that is charged with carrying out particular laws passed by Congress. Some such units are actually called “bureaus” (e.g., Census Bureau, Federal Bureau of Investigation [FBI]); others are called “agencies” (Central Intelligence Agency [CIA], Agency for International Development [AID], Environmental Protection Agency [EPA]); others are called “administrations” (Social Security Administration [SSA], National Aeronautics and Space Administration [NASA], Food and Drug Administration [FDA]); still others are called “offices” (Office of Civil Rights) or “services” (National Park Service, Public Health Service [PHS], Immigration and Naturalization Service [INS], Foreign Service [“services” distinctively encompass a commissioned, and sometimes uniformed, officer corps]; and yet other names are sometimes used. New agencies are created in response to political demands to solve “problems”; a recent example is the Transportation Security Administration (airport screeners) created by Congressional action shortly after 9/11. It is rare for an agency, once created, to be abolished, but this does happen occasionally.

           Most federal bureaus are part of the major executive departments headed by cabinet secretaries. (See K&J, pp. 296-292 for an overview of the creation of these departments.) For example, the FBI, INS, and Office of Civil Rights are parts of the Department of Justice (headed by the Attorney-General) and the FDA and PHS are parts of the Department of Health and Human Services [HHS]. However, some important agencies [e.g., NASA, EPA] are independent and not part of any department. (SSA, which used to be part of HHS was recently made independent.) Sometimes an independent agency is converted into an executive department. (The formerly independent Veterans Administration was recently converted into the Department of Veterans Affairs; there are proposals to convert EPA into a department headed by a cabinet secretary.) On the other hand, about 35 years ago the former Post Office Department was converted into the independent Postal Service.

           Another category of bureau is the independent regulatory commission, such as the Securities and Exchange Commission [SEC], the Federal Communications Commission [FCC], etc. (see K&J, pp. 293-294). Because these units carry out quasi-legislative and quasi-judicial functions, they are set up to be relatively independent of Presidential control. These agencies are headed by multi-member commissions, the members of which are appointed for relatively long fixed terms (so they cannot be fired by the President), which furthermore are staggered so that not all expire during a single Presidential term.

           Government bureaus generally produce public goods that are not (and cannot be) sold in the market. Thus, in contrast to private business firms, bureaus don’t (for the most part) earn revenue and make profits (if they are functioning well) or incur losses (if they are functioning badly), and therefore it is difficult to assess their performance. At the same time, even low-level bureaucrats (clerks, etc.) have important “powers” over individuals, e.g., they can register you to vote or not, give you a driver license or not, issue you a Social Security check or not, etc. (the first two “powers” are held by state, not federal bureaucrats, but the same considerations apply), and we don’t want these “powers” to be exercised in an arbitrary and capricious manner. For both of these reasons, bureaucrats are required to follow detailed rules and regulations (commonly denigrated as “red tape”) in carrying out their functions. And often bureaucrats like “red tape” — if things go wrong, they cannot be blamed if they were just following rules imposed on them.

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           As American society and the economy have become larger and more complex, political demand for government (especially the federal government) to “solve problems” has increased. But it is difficult for Congress to design and enact detailed laws to deal with all contingencies that may arise in dealing with a problem. Also Congress may be reluctant to enact very specific laws, as doing so is likely to anger many constituents, some organized groups, and important segments of public opinion. Thus Congress often passes general laws that delegate the power to make more specific rules to bureaus (letting them be the flak-catchers). For example, about 35 years ago public opinion and activist groups demanded that the government “do something” about the problem of environmental degradation. As a result Congress passed the Environmental Protection Act, which essentially did the following (this is an over-simplification, of course): (a) it declared environmental protection to be a national goal, (b) it created the Environmental Protection Agency as an independent agency, and (c) it delegated to the EPA the power to make and enforce environmental rules and regulations under very broad guidelines set by Congress. At the same time, Congress (or more particularly, its committees) has many devices by which it can oversee and influence the way bureaucrats use their delegated powers.

           Given such Congressional delegation of rule-making (and essentially legislative) powers to bureaucrats, it is important to ask who these bureaucrats are, how they get and keep their jobs, and who they are accountable to. Of course, the real concern is with the several thousand very high-level bureaucrats who actually exercise these delegated policy-making powers, not with the several million clerks, analysts, personnel officers, technicians, inspectors, forest rangers, computer operators, etc., who carry out these policies.

           During the first 75 years or so of the federal government, federal bureaucrats were basically all appointed by the President (there were only a few thousand of them, of course). According to K&J (pp. 281-282), President Washington and his early successors sought out respectable and reputable locals scattered around the nation to appoint as federal tax collectors and postal workers (just about the only “federal bureaucrats” at the time). New Presidents would generally keep on such government workers inherited from their predecessors.

           However, with the development of mass political party organization and intense party competition beginning in the 1820s, the spoils or patronage system developed. Presidents (and, more importantly, their counterparts in state and local governments) discovered that they could reward their party workers and supporters with government jobs in the event their party won an election — as the saying went, “to the victors [in the election] go the spoils [government jobs].” One rationale for this practice was the claim (more valid then than now) that government functions were basically simple and that anyone could do them. This patronage system produced (in addition to strong party organizations called political machines) a government work force that was very responsive to the President’s wishes (since he could fire them at will and since they knew they would likely lose their jobs if the President’s party lost the next election).

           With the Civil War, the federal government expanded vastly in size, and the rapid development of a commercial/industrial economy thereafter meant that the federal government had more and more “problems” to address, producing further expansions of the federal workforce over the following decades. In these circumstance, dissatisfaction with the patronage system became widespread. First, it did not allow the government to recruit the kind of educated and technically skilled workforce it increasingly needed. Second, expanding government expenditures and contracts produced a vast amount of corruption. In 1883 Congress passed the Civil Service (Pendleton) Act, which began the process (completed in the early twentieth century) of replacing the patronage system with a civil service system in which government workers (a) are recruited, paid, and promoted in accordance with elaborate formal rules on the basis of “merit” (as measured by civil service exams and other devices) and (b) once appointed, have tenure in office and cannot readily be fired by the President or his political appointees. The result has been a federal workforce that for the most part is (a) technically competent and (b) free of corruption, but that is also (c) not necessarily very responsive to the wishes of the President and his administration. In recent decades there have been some attempts to modify the civil service system to make it more flexible and more responsive to Presidential control.