Red Tape Blues: The Need For More Bureaucratic Independence

We often use ‘bureaucracy’ as a dirty word. Everyone has a horror story about waiting in line for hours at the DMV or spending ages trying to file their taxes correctly. Dealing with red tape has become part of Americans’ day-to-day life.

[su_pullquote align=”right”]The legislative branch makes policy, but bureaucracy is how policy actually happens.[/su_pullquote]Since most constituents have been tangled in red tape, “bureaucracy bashing” is a time-tested way for members of Congress to score political points. At the same time, politicians claim credit for successes and can further benefit electorally by intervening on their constituents’ behalf to solve problems. In fact, a large portion of members of Congress’ staffs are devoted to such constituent services. Despite all of the frustrations it can cause, I believe that bureaucracy is an overlooked and underappreciated component of our society. Fundamentally, bureaucracy is how government gets done. The legislative branch makes policy, but bureaucracy is how policy actually happens.

An effective bureaucracy in a representative democracy like the United States is a balancing act between responsiveness to electoral results and more objective policy outcomes, such as highly-technical policies or policy consistency. Sometimes these goals, both of which are important, collide. On one extreme, we don’t want our bureaucracy, and therefore our policies, to be unresponsive to the will of the people. One of the foundational principles of representative democracy is that the government responds to the will of the people.

On the other end of the spectrum, a bureaucracy that is hypersensitive to changes in the political winds is equally undesirable. Imagine if farm policy or affordable housing policy shifted to reflect the partisan balance of power after every election or major political event. It is hard to plan for the future when the ground rules change constantly. Long-term decision-making benefits from policy stability and predictability. A highly-politicized bureaucracy, while sensitive to the policy agenda of the current governing party, creates instability and unpredictability in public policy.

[su_pullquote]Our democracy would be better off with a bureaucracy that is better insulated from political pressure.[/su_pullquote]I believe that our democracy would be better off with a bureaucracy that is better insulated from political pressure. Currently, the president has a large degree of influence over the bureaucracy through a variety of measures, above all the ability to appoint (and remove) political allies to key policymaking posts in agencies such as the Environmental Protection Agency (EPA), the Department of Education, and the Justice Department. This leads to large and abrupt changes in policy, especially when party control of the White House changes.

A salient example of this type of abrupt disruption to the existing policy regime is the EPA under Scott Pruitt: at times, it has seemed like Pruitt’s intentions were to undo regulations for its own sake, rather than for any concrete rationale. Dogmatic, partisan-motivated policy decisions directly contrasted with a more impartial, evidence-based approach. However, policy is not made in a vacuum. Choices between policies will involve tradeoffs between different values, such as efficiency and equity. Although these tradeoffs are inherently political, we should strive to reduce the role of politics in more technical decision-making.

Insulation from political pressure is one time-tested way to ensure a proper balance between a responsiveness to the electorate and an ability to make more technically sound, long-term-oriented policy. This would create an environment where bureaucrats are freer to develop technical expertise and consequently make better policy decisions. Additionally, a more independent bureaucracy would create a more stable policy environment that would facilitate long-term planning and investment. The most straightforward, and already-proven, method of increasing insulating agencies’ decision-making from political pressure is to eliminate the president’s ability to remove policymakers for political reasons. This removes the potential for the president to remove or fire a bureaucrat or political appointee if they do not comply with the president’s wishes.

The Federal Reserve is a clear-cut example of an agency that enjoys substantial political independence and, because of this, makes better policy. Although the president and members of the board of governors of the Federal Reserve must be nominated by the president and confirmed by the Senate, they cannot be removed during their terms. Once appointed, the members of the Board of Governors are free to set what they believe to be the optimal monetary policy, without the fear of retribution if their choice doesn’t align with the president’s wishes.

If the Fed did not enjoy this political independence, the president could pressure the Fed to cut interest rates and engage in expansionary monetary policy in the lead-up to elections, boosting the economy and the incumbent party’s electoral chances in the short run, but leading to higher inflation in the long run. In this scenario, the president faces a moral hazard problem: their personal political incentives, and those of their party, come into conflict with the socially optimal policy choice. The solution is to insulate the policymakers from political pressure.

Another key difference between the Federal Reserve and many other agencies is that appointees have historically been chosen based on merit, academic qualifications, and prior policymaking experience. This stands in stark contrast with cabinet agencies such as the Departments of Education, Housing and Urban Development, and the Justice Department, where appointees are frequently selected based on their political ideology or relationship with the president, rather than on their qualifications for the job.

I believe that many other bureaucracies, possibly most, would benefit from more political independence than they currently have. The Federal Reserve has a particularly high degree of political independence; not all agencies would need such a substantial amount. An alternative scheme could be to require Senate confirmation for the President to remove agency appointees, mirroring the requirements for appointment.

Another potential arrangement would be to create a sharper divide within the agencies between the administrative and technical policymaking sides. Currently, political appointees to agencies take on both administrative and policymaking rules. President Trump’s appointment of Mick Mulvaney as the Acting Director of the Consumer Financial Protection Bureau is one example. He is an outspoken critic of the agency and has worked to dismantle the agency from the inside. He has halted the agency’s ongoing regulatory and enforcement actions, and even submitted a budget request for $0.

All of these solutions, unfortunately, have the same primary defect: they would require Congressional action to reform the structure of the bureaucracy and its relations with the legislative and executive branches. Although Congress writes the laws, they have largely ceded oversight and control of the bureaucracy to the executive branch. This has created an imbalance in our constitutional system of government, with the President taking on an ever-larger role in the policymaking sphere. This is both cause and consequence of Congress’ seeming inability to legislate on important issues, leaving the president to act on pressing issues when Congress is unable to.

The Justice Department is a particularly salient example of the need for a greater degree of insulation from political pressure, as the fair administration of justice is a key aspect of any democracy. Currently, the head of the Justice Department, the attorney general, is a member of the Cabinet and serves at the pleasure of the president. This means that the president can use the removal power as a form of leverage to exert control over the actions of the Justice Department. This scenario occurred during the Saturday Night Massacre, when President Nixon fired two successive attorneys general until he found an official willing to fire Special Counsel Archibald Cox.

The risks created by having a politicized Justice Department are different than those created by a politicized Federal Reserve, but they are no less concerning. A politicized Justice Department opens the door to politicized enforcement of the law. This is a dangerous situation; if the law is applied differently to different people based on their political beliefs or their status as a candidate, we are violating the principle of equality before the law, a central pillar of a fair and just democracy.

The abuse of the law and law enforcement bureaucracy for partisan political advantage directly undermines our ability to hold fair and competitive elections. For example, President Trump’s exhortations to “lock her up” have hinted at the dangers of a Justice Department that is sensitive to political pressures. When candidates either threaten or use the law enforcement bureaucracy against their opponents, it directly impacts the competitiveness of the election being contested as well as undermines public trust in government. This was the consequence of President Nixon’s use of the CIA and FBI to surveil and harass Democratic opponents in the lead-up to the 1972 presidential election.

This scenario has played out in other countries as well. Authoritarian-leaning leaders in (nominally) democratic countries such as Turkey, Poland and Hungary use their control over law enforcement apparatus in order to maintain their power. Their repression of the press and opposition politicians has led to an erosion of democratic institutions and a democratic backsliding towards authoritarianism in all three countries. The actions of leaders like Recep Tayyip Erdoğan in Turkey and Viktor Orbán in Hungary illustrate the need for a justice system that is free from political influence.

Again, some degree of political control and influence is necessary. I am not arguing for total insulation from political pressure, but rather for a greater degree of insulation. There is an important distinction between political influence on individual cases and political influence over general policies, such as the non-prosecution of low-level drug crimes. One of the key functions of any bureaucracy, and of the Justice Department in particular, is to allocate scarce enforcement resources, and these priorities should reflect the preferences of the electorate. Additionally, political oversight—whether on the part of the president or Congress—is necessary to ensure that agencies are properly carrying out their missions.

Michael Fogarty ’19 studies in the College of Arts & Sciences. He can be reached at michael.fogarty@wustl.edu.