What Washington Gets Wrong: The Unelected Officials Who Actually Run the Government and Their Misconceptions about the American People

What Washington Gets Wrong: The Unelected Officials Who Actually Run the Government and Their Misconceptions about the American People

by Jennifer Bachner, Benjamin Ginsberg

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Product Details

ISBN-13: 9781633882492
Publisher: Prometheus Books
Publication date: 10/04/2016
Pages: 304
Sales rank: 822,085
Product dimensions: 6.40(w) x 9.10(h) x 1.20(d)

About the Author

Jennifer Bachner is the Director of the Master of Science in Government Analytics at Johns Hopkins University. Her recent report, Predictive Policing: Preventing Crime with Data and Analytics, has been published by the IBM Center for the Business of Government. She is also the coeditor (with Kathryn Wagner Hill and Benjamin Ginsberg) of Analytics, Policy and Governance (forthcoming). As an expert on government analytics and political behavior, she has been quoted and/or cited in the Washington Post, Baltimore Sun, Los Angeles Times, Roll Call, and other publications.

Benjamin Ginsberg is the David Bernstein Professor of Political Science and Chair of Governmental Studies at the Johns Hopkins University. He is the author of more than twenty books, including Presidential Government; The Worth of War; The Value of Violence; How the Jews Defeated Hitler: Exploding the Myth of Jewish Passivity in the Face of Nazism; and other works.

Read an Excerpt

What Washington Gets Wrong

The Unelected Officials who Actually Run the Government and their Misconceptions About the American People


By Jennifer Bachner, BENJAMIN GINSBERG

Prometheus Books

Copyright © 2016 Jennifer Bachner and Benjamin Ginsberg
All rights reserved.
ISBN: 978-1-63388-250-8



CHAPTER 1

UNELECTED GOVERNMENT: THE FOLKS WHO REALLY RUN THINGS


In the United States, as in other democracies, citizens expect their government to pay close attention to popular preferences. Most Americans, in fact, say they believe that the government listens to popular opinion most or at least some of the time. To the extent, though, that they actually follow politics and governance, citizens' attention is generally drawn to the electoral and representative realm — a world in which elected officials, candidates, political parties, and so forth clamor for the public's favor. These individuals and organizations are usually avid consumers of public opinion, often employing legions of pollsters and analysts to help them discern the meaning of even the most transient shifts in the public's mood.

The focus of our attention, by contrast, will be the civil servants, quasi governmental officials, private contractors, and advisers employed by the executive branch, as well as congressional and White House staffers. The reason for this particular focus is that these administrators and functionaries, who are not elected, cannot claim to formally represent anyone, and are barely visible to the public, play an enormous role in the governance of the nation — a role that has grown relative to that of America's formally representative institutions. Since these individuals collectively play such important roles in the governance of the United States, how they view and respond to the public has become a matter of some importance.

In the early decades of the Republic, representation and national governance were largely in the hands of the same institution, namely the Congress of the United States. Congress was the nation's principal representative body and, with the president and the judiciary playing secondary and tertiary roles, the nation's main agency of governance. In contemporary America, on the other hand, representation and governance have become, at least partially, institutionally decoupled. Congress continues to function as the nation's foremost representative assembly, but in the realm of governance Congress has been eclipsed by the president and the executive branch.

The president, to be sure, is an elected official, though the extent to which one person can be said to represent the people of the United States is debatable. But, even putting this question aside, a good deal of the shift in power to the executive that has taken place in recent decades has involved the institutions of the executive branch more than the presidency itself. Bureaucratic agencies write rules and regulations that have the force of law. Other administrative entities of various sorts, some public, some quasi-public, and some private, develop policies and programs that have a substantial impact upon the lives of Americans. A great deal of this activity goes on without much in the way of popular, congressional, or presidential scrutiny. Even the courts, as we shall see below, give broad discretion to administrators.

Because of this ongoing shift in power, much of what is known or believed about the relationship between citizens and their government should be reexamined. A wag once averred that the term "popular government" was as much an oxymoron as jumbo shrimp, and there is more than one reason to fear this quip might embody a growing measure of truth.


THE ELECTED, THE APPOINTED, AND THE PUBLIC

Public opinion is obviously important to elected officials. These individuals must have popular backing to secure or retain their posts and have every reason to pay close attention to the popular will. There is, indeed, a good deal of empirical support for the idea that Congress and the president generally enact legislation that is consistent with popular views. Alan D. Monroe, for example, found that in a majority of cases changes in congressional policy followed shifts in popular preferences. In a similar vein, Benjamin Page and Robert Shapiro found that much of the time significant shifts in public opinion were followed by changes in congressional enactments in a direction that seemed to follow opinion. Such findings are certainly affirmed by hosts of politicians who claim to be guided by the will of the people in all their undertakings and seem to poll assiduously to find out what that will is. Of course, some studies have suggested that Congress may be more likely to privilege the views of more affluent constituents.

Congruence between popular opinion and the conduct of elected officials might result from a variety of factors. Voters have a regular opportunity to elect representatives who share their own views and perspectives. Some voters seek to inform themselves of candidates' positions on important issues. Others are satisfied to seek out candidates who mirror their own social, ethnic, or religious backgrounds in the not-unreasonable belief that such persons are likely to share their political sentiments as well. Elected officials, moreover, generally have some incentive to curry favor with their constituents by developing or supporting policies that respond to voters' preferences. James Madison averred that representatives' desire for reelection would induce them to develop a "habitual recollection of their dependence on the people." And, in their well-known 1963 study, Warren Miller and Donald Stokes found that members of Congress seemed to vote in a manner consistent with constituency opinion, especially on the then highly salient issue of civil rights.

There is, of course, a third potential source of consistency between popular sentiment and national policy. Politicians may seek to lead rather than follow opinion by proposing new programs — national health coverage is a recent example — and attempting to persuade the public to support them. Bill Clinton's pollster, Dick Morris, asserted that the president's close attention to public opinion stemmed from Clinton's efforts to lead opinion, not his desire to follow its dictates. "You don't use a poll to reshape a program," said Morris, "but to reshape your argumentation for the program so the public supports it."

Whether politicians follow or lead the public, the realm of electoral politics and representative institutions is one in which public opinion matters. Few elected officials believe they can simply ignore the will of the people, even if some behave in a manner that suggests they doubt Lincoln's assertion that it is impossible to fool all the people all the time. But however much public opinion might matter to members of Congress and even to the president, these officials are not America's only important policymakers and the legislation they formulate is far from the totality of American public policy. In fact, before we turn to the substance of our empirical study, let us look in some detail at the institutions and personnel of the government of the United States that reside in what might be called the subterranean world of governance that operates in the offices of anonymous administrators, away from the glare of electoral hoopla and publicity. Elected officials may have little choice but to concern themselves with the needs and wishes of their constituents, but in the alternate universe of governance and policy the voice of the people may be more distant and muted.


WHO GOVERNS?

Civics texts tell us that the law consists of statutes enacted by Congress and signed by the president. This idea may have been correct in the early days of the American republic. Today, however, federal law is augmented by hundreds of thousands of rules and regulations possessing the force of law that are promulgated by a host of federal agencies staffed by officials whose names and job titles are unknown to the general public.

After a statute is passed by Congress and signed into law by the president, the various federal agencies charged with administering and enforcing the act will usually spend months and sometimes years developing rules and regulations to implement the new law and will continue to write rules for decades thereafter. We will examine this rulemaking process in some detail in chapter 4. Typically, a statute will assert a set of goals and establish some framework for achieving them but leave much to the discretion of administrators. In some instances, members of Congress are, themselves, uncertain of just what a law will do, and they depend upon administrators to tell them.

In the case of the 2010 Affordable Care Act, widely known as Obamacare, for example, several legislators admitted that they did not fully understand how the act would work and were depending upon the Department of Health and Human Services (HHS), the agency with primary administrative responsibility for the act, to explain it to them. Sometimes Congress is surprised by agency rules that seem inconsistent with congressional presumptions. Thus, in 2012, the Internal Revenue Service (IRS) proposed rules to determine eligibility under the Affordable Care Act that excluded millions of working-class Americans that Congress thought would be covered by the act. Several congressional Democrats who had helped to secure the enactment of the legislation complained that the IRS interpretation would frustrate the intent of Congress. The case of the Affordable Care Act is fairly typical. As administrative scholar Jerry L. Mashaw has observed, "Most public law is legislative in origin but administrative in content."

The roots of bureaucratic power in the United States are complex and date to the earliest decades of the Republic. Much of today's federal bureaucracy, however, can trace its origins to Franklin D. Roosevelt's New Deal. Under FDR's leadership, the federal government began to take responsibility for management of the economy, provision of social services, protection of the public's health, maintenance of employment opportunities, promotion of social equality, protection of the environment, and a host of other tasks. As the government's responsibilities and ambitions grew, Congress assigned more and more complex tasks to the agencies of the executive branch, which sometimes were only too happy to expand their own power and autonomy. Executive agencies came to be tasked with the responsibility of analyzing and acting upon economic data, assessing the environmental impact of programs and projects, responding to fluctuations in the labor market, safeguarding the food supply, regulating the stock market, supervising telecommunications and air, sea, and land transport, and, in recent years, protecting the nation from terrorist plots.

When Congress writes legislation addressing these and a host of other complex issues, legislators cannot anticipate every question or problem that might arise under the law over the coming decades. Congress cannot establish detailed air quality standards, draw up rules for drug testing, or legislate the ballistic properties of artillery rounds for a new army tank. Inevitably, as its goals become more ambitious, more complex, and broader in scope, Congress must delegate considerable discretionary authority to the agencies charged with giving effect to the law.

Just the sheer number of programs it has created in recent decades forces Congress to delegate authority. Congress can hardly administer the thousands of programs it has enacted and must delegate power to the president and to the bureaucracy to achieve its purposes. To be sure, if Congress delegates broad and discretionary authority to the executive, it risks seeing its goals subordinated to and subverted by those of the executive branch. But, on the other hand, if Congress attempts to limit executive discretion by enacting very precise rules and standards to govern the conduct of the president and the executive branch, it risks writing laws that do not conform to real-world conditions and that are too rigid to be adapted to changing circumstances. As the Supreme Court said in a 1989 case, "In our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives."

The increased scope and complexity of governmental activities promotes congressional delegation of power to the bureaucracy in another way as well. When Congress addresses broad and complex issues, it typically has less difficulty reaching agreement on broad principles than on details. For example, every member of Congress might agree that enhancing air quality is a desirable goal. However, when it comes to the particular approach to be taken to achieve this noble goal, many differences of opinion are certain to manifest themselves. Members from auto-producing states are likely to resist stiffer auto-emission standards and to insist that the real problem lies with coal-fired utilities. Members from districts that contain coal-fired utilities might argue that auto emissions are the problem. Members from districts that are economically dependent upon heavy industry would demand exemptions for their constituents. Agreement on the principle of clean air would quickly dissipate as members struggle to achieve agreement on the all-important details. Delegation of power to an executive agency, on the other hand, allows members to enact complex legislation without having to reach detailed agreement. Congress can respond to pressure from constituents and the media to "do something" about a perceived problem, while leaving the difficult details to administrators to hammer out.

As a result of these and other factors, when Congress enacts major pieces of legislation, legislators inevitably delegate considerable authority to administrators to write rules and regulations designed to articulate and implement the legislative will. Of course, in some instances, Congress attempts to set standards and guidelines designed to govern administrative conduct. For example, the 1970 Clean Air Act specified the pollutants that the Environmental Protection Agency (EPA) would be charged with eliminating from the atmosphere, as well as a number of the procedures that the EPA was obligated to undertake. The act, however, left many other matters, including enforcement procedures, who should bear the burden of cleaning the air, and even how clean the air should ultimately be, to EPA administrators.

Many other statutes give administrators virtually unfettered discretion to decide how to achieve goals that are only vaguely articulated by Congress. For example, the statute establishing the Federal Trade Commission (FTC) outlaws, without expressly defining, "unfair methods of competition." Precisely what these methods might be is largely left to the agency to determine. Similarly, the statute creating the Occupational Safety and Flealth Administration (OSTIA) calls upon the agency "to protect health to the extent feasible." What that extent might be is for the agency to determine. In its enabling act, die EPA is told to protect human health and the environment "to an adequate degree of safety." As Congress continued to enact statutes setting out general objectives without specifying how the government was supposed to achieve them, the federal bureaucracy was left to fill in the ever-growing blanks.

In some instances, to be sure, Congress does write detailed standards into the law only to see these rewritten by administrators. For example, in 2006, the Securities and Exchange Commission (SEC) announced that it was issuing new rules that would significantly change key provisions of the 2002 Sarbanes-Oxley accounting reform and investor protection act. The act had been passed in the wake of the Enron scandal to reform corporate governance and prevent fraud. As enacted by Congress, Sarbanes-Oxley contains very specific standards. However, in response to industry lobbying, the SEC announced that it would issue new standards to ease corporate obligations under section 404 of the act, which covers the financial statements issued by public corporations. The agency determined that the law, as written by Congress, had forced corporations to engage in "overly conservative" practices.

Simply comparing the total volume of congressional output with the gross bureaucratic product provides a rough indication of where lawmaking now occurs in the federal government. The 106th Congress (19992000) was among the most active in recent years. It passed 580 pieces of legislation, 200 more than the 105th Congress and nearly twice as many as the 104th. Some, like campaign finance reform, seemed quite significant, but many pieces of legislation were minor. During the same two years, executive agencies produced 157,173 pages of new rules and regulations in the official Federal Register, roughly the average number for recent years. OSHA, for example, introduced new regulations affecting millions of workers and thousands of businesses, the EPA drafted new air quality standards, and the SEC and Commodity Fuhires Trading Commission (CFTC) were announcing significant revisions of futures trading rules affecting billions of dollars in transactions.


(Continues...)

Excerpted from What Washington Gets Wrong by Jennifer Bachner, BENJAMIN GINSBERG. Copyright © 2016 Jennifer Bachner and Benjamin Ginsberg. Excerpted by permission of Prometheus Books.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents

Introduction 9

Chapter 1 Unelected Government: The Folks Who Really Run Things 19

Chapter 2 The Chasm between Us and Them 47

Chapter 3 What Those Who Govern Really Think about You and Me 87

Chapter 4 What the Government Does versus What the People Want 135

Chapter 5 What Should Be Done to Make the Government Listen? 159

Chapter 6 What If What Should Be Done Isn't Done? 193

Appendix A 205

Appendix B 207

Appendix C 209

Notes 245

Index 267

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