Why Government Fails So Often: And How It Can Do Better (12 page)

PROCESSES

Government policies emerge from decision processes, and the performance of those policies depends on the kinds of processes that produced them and how well those processes worked. Procedure and substance are inextricably linked, but in subtle ways that are often difficult to discern.

The discussion that follows seeks to reveal the nature of this linkage by identifying just a few of the many features of different policy processes that shape programs’ ultimate effectiveness. Although there is an immense literature on policy processes and although politically sophisticated readers will find some of what I have to say familiar, my discussion will be highly selective, focusing on a relatively small subset of the linkages between policy process and program effectiveness that are less obvious, even to many sophisticates. The discussion here will also seek to minimize any overlap between this overview and the more pointed analyses in the chapters that follow in
part 2
.

Legislative process
. Congress has the immense advantage (and vulnerability) of being the most directly accountable and geographically oriented branch—especially the House, with its two-year terms and smaller, less diffuse constituencies. Hence, its members possess relatively good information about the political support that a policy will have at the point of enactment. Its committee system, which depends heavily on a highly professional, permanent staff of subject-matter specialists, is capable of bringing considerable policy expertise to bear on legislation. Both the members and their staffs, moreover, are ever mindful of the more remunerative employment opportunities that await them in the private sector should they leave government. This keen careerist sensibility, although a potential source of corruption (discussed in
chapter 6
), has the advantage of making them especially sensitive to the real-world effects of their policy choices on their constituents and attentive interest groups. Congress also gathers a great deal of technical information in the course of its committee hearings, meetings with constituents and interest groups, and bill
negotiation and drafting processes. Postenactment, members and their staffs receive a great deal of feedback from the field concerning how their policies are working in practice. Unfortunately, Congress has often exempted itself, in law or in effect, from having to comply with the policies it has imposed on others—despite enacting laws that on their face seem to demand full congressional compliance.
¹⁰
Such exemptions are objectionable, among other reasons, because they deprive Congress of one source of information on the costs that their fellow citizens bear.

On the other hand, members tend to have selective hearing, attending far more to the arguments, desires, and complaints of well-organized interests than to more diffuse ones. Business-oriented interests are far better represented in Washington than individual citizens—by a factor of eight to one, according to one recent calculation—and private-sector unions (representing only 7 percent of private-sector workers) are in sharp decline, in contrast to public-sector ones.
¹¹
The attention span of members, moreover, is severely limited due to the hyperactive nature of most politicians, the fast-moving, fast-changing legislative calendar, and the inertia that must be overcome to return to a program after it has overcome the many obstacles to passage and is now in place. Absent a sunset provision requiring that a law be re-reenacted periodically, members are very loath to revisit it—and even sunset provisions are often extended or treated as pro forma. The legislative agenda is formed through a chaotic, adventitious, opportunistic process that is the very opposite of rational prioritization and problem solving.

Administrative process
. Agency policy making also has comparative strengths and notable weaknesses, and although each agency has a distinctive, specialized policy domain and bureaucratic culture, they exhibit many important similarities such that one can speak coherently about the “administrative process.” Nevertheless, the administrative agency occupies a peculiar position in our government, being not directly accountable to the citizenry, claiming the authority of expertise that the public does not readily grant, and often exercising vast, difficult-to-control discretionary powers to shape policies in
ways that can affect the vital interests of all citizens. For these reasons, their democratic legitimation poses a perennial problem in American government.
¹²

Agencies are conventionally divided into two categories: those that are in the executive branch and subject to presidential control, and those that are “independent” of such control. This binary classification is, however, both crude and misleading. First, many important agencies exist that lawyer–political scientist Anne Joseph O’Connell calls “boundary” organizations. Lying at the borders between the federal government and either the private sector (e.g., the Postal Service) or other levels of government (e.g., the National Guard, the Social Security disability program), this category also includes the many agencies that do not fit neatly within the executive branch/independent agency dichotomy.
¹³

Second, actual distribution among federal agencies of these independence-affecting features is quite varied: removal protection, specified tenure, multimember structure, partisan balance requirements, litigation authority, adjudication authority, and centralized Office of Management and Budget (OMB) review of budget proposals, congressional testimony, and legislative proposals. A recent study of these patterns concluded that “there is no binary distinction between agency types. Indeed, there is no single feature that every agency commonly thought of as independent shares, not even a for-cause removal provision. Agencies fall along a spectrum from more insulated to least insulated from the President.”
¹⁴
Except at an agency’s very top level, any formal accountability to the White House is attenuated by the fact that agency officials are hard to remove or discipline. (If they are career civil servants, it is almost impossible, as discussed in
chapter 10
.) Indeed, presidents almost never remove an agency head for cause, even when the law empowers them to do so.

Nevertheless, even relatively independent agencies are not at liberty to do as they please. The president has a variety of informal ways—some more effective and politically costly than others—to influence all agencies, including the most conventionally (though not formally) independent of them all, the Board of Governors of the
Federal Reserve Bank (the “Fed”).
¹⁵
Congress determines its legal authority and resources, and they are highly attentive to the informal interventions of individual members, especially those on the agency’s authorizing and appropriations committees. Compared with the free-wheeling, entrepreneurial Congress, the agency’s agenda and processes, which are governed by the Administrative Procedure Act of 1946 (APA), tend to be more centralized, regularized, rule-driven, and orderly, with fewer internal power centers to be accommodated.

Agencies employ a variety of formal and informal processes to make policy and provide guidance to those subject to their jurisdiction, but I shall focus on the two processes that are prescribed most closely by the APA: rule making and adjudication. These two processes are designed to operate very differently, and they do. Most rule making entails providing widespread notice of the agency’s proposed rule, a period for public comment on that proposal, occasionally a public hearing, and issuance of the final rule together with an explanation of the reasons why the agency did what it did. Rule making resembles some attractive aspects of the legislative process in its use of technocratic expertise, openness to widespread public participation, explicit consideration of policy alternatives, dialogic back and forth, culmination in a rule of substantial generality, and highly deferential judicial review either before or after the rule goes into effect (pre-or postenforcement review). In contrast, agency adjudication resembles a judicial trial and exhibits some of a trial’s features: application of a legal rule to specific parties and circumstances; due process guarantees, including rules of evidence and prohibition of ex parte contacts; trial before an independent “administrative law judge” with a decision based on a record; and issuance of an individualized “order” (not a general rule). For policymaking purposes, however, these procedural differences are smaller than they seem: almost every agency is authorized to use either procedure, exercise its discretion to choose which to use when (subject to very limited judicial review), and can usually accomplish its policy goals using either. (This is because the agency can draft a rule to apply very
narrowly, while its adjudicative orders can be formulated in fairly general terms.)

Although agencies have succeeded in exploiting many of the strengths of the legislative and judicial processes (I discuss the latter below), they have not managed to avoid some of the weaknesses. Agency proceedings of both kinds can be very costly and protracted, especially if they are appealed to the courts and then remanded back to the agencies for further deliberation. Centralization of agency authority can introduce rigidity and politicization of policy making (although that is even truer of Congress). Agency bureaucratization, while assuring some degree of continuity and technical expertise, often produces predictable pathologies: tunnel vision, middling competence, limited imagination, fear of controversy, and obsession with process.

These institutional features and trade-offs are familiar to those who study the administrative process. But another exceedingly important one—the appropriate allocation of policy discretion between Congress and the agencies—has largely been conceived as an issue of constitutional law rather than as the fundamental, often pivotal issue of public policy design that it is. Accordingly, I shall give it some attention here.

The Supreme Court’s “nondelegation doctrine,” announced in its
Schechter Poultry
decision in 1935,
¹⁶
holds that under Article I of the Constitution, Congress possesses the exclusive power and responsibility to exercise “all legislative powers” and thus may not delegate to agencies the power to make the fundamental value and policy choices that legislation instantiates. Although the Court has sought through various statutory interpretation techniques (e.g., “clear statement” and “intelligible principle” requirements) to narrow the extent of broad delegations, it has essentially given up the effort and has not actually struck down a statute for excessive delegation since
Schechter Poultry
itself.
¹⁷
This judicial back of the hand to the doctrine has not stopped scholars from advocating its revitalization as a way of assuring that Congress remains accountable for what it has wrought
and that only very limited policy discretion can be exercised by agencies.
¹⁸
And in 2011, the House passed the tendentiously titled Regulations from the Executive in Need of Scrutiny Act, endorsed by Republican presidential nominee Mitt Romney in 2012, that would require Congress to approve any proposed “major rule” before it could go into effect.
¹⁹

For many reasons, which I have elaborated elsewhere,
²⁰
the Court has been wise to leave to Congress the choice about how specific statutes must be. The particular aspects of a statutory delegation—its breadth, type, and level—are themselves among the most consequential policy choices. Indeed, these issues are almost always at the heart of the members’ political debates over the content of particular pieces of legislation. Legislation is only part of the process of responsible policy making, and it is becoming a less important part relative to agency decisions.

The costs of participating at the agency level, where many of the most important policy choices are in fact made, are likely to be lower than the costs of lobbying or otherwise seeking to influence Congress. Moreover, an agency’s institutional culture is likely more familiar to the average citizen, who deals with bureaucracies constantly and may well work in one (public or private), than Congress’s exotic, intricate, unruly (and “unruley”), insider culture. An agency is often a more meaningful site for public participation than Congress is because the policy stakes for individuals and interest groups are most immediate, transparent, and well defined at the agency level.

One can scarcely exaggerate the importance of this consideration to the legitimacy of democratic politics and to the substantive content of public policy. After all, it is only at the agency level that the generalities of legislation are broken down and concretized into discrete, specific issues with which affected parties can hope to deal. It is there that the agency commits itself to a particular course of action; because only there does it propose the specific rate it will set, the particular emission levels it will prescribe, the precise restrictions on private activity it will impose, the exact regulatory definitions it will
employ, the kinds of enforcement techniques it will use, the types of information it will collect, and the details relating to the state’s myriad other impacts on citizens and groups. In short, it is only at the agency level that citizens can know precisely what the statute means to them; how, when, and to what extent it will affect their interests; whether they support, oppose, or want changes in what the agency is proposing; whether it is worth their while to participate actively in seeking to influence this particular exercise of governmental power, and if so, how best to go about it; and where other citizens or groups stand on these questions. God and the devil are in the details of policy making, as they are in most other important things—and the details are to be found at the agency level.