Solutions to the Problem of Bureaucracy

Responding to my post on the problem of bureaucracy, some commentators asked how to prevent bureaucrats from creating a bigger and more left-wing government. Here are a few solutions:

1. Delegate less. Conservatives and libertarians should be reluctant to delegate power that is likely to be exercised in a liberal direction. To put it another way, these lawmakers should demand a statute several degrees to the right of where they think it should be if there is a delegation because the bureaucracy will move it several degrees to the left.

2. Pass the REINS Act. The REINS Act would apply to open-ended delegations of power already in place by requiring a Congressional vote under fast track procedures to approve major agency rules before they become law. This act would transfer power currently held by bureaucrats back to legislators. Of course, people on the left realize the constraints imposed by the REINS Act and thus it could not be enacted until the next era of unified Republican government.

3. Mandate cost benefit analysis. Cost benefit analysis could be required by law, unless specifically exempted in a statute. This tool constrains agencies, by requiring bureaucrats to show that regulations have net benefits. The Office of Information and Regulatory Affairs (OIRA) at OMB reviews all cost benefit analyses, which provides a check on the parochial regulatory expansion of agencies.

4. Subject cost benefit analysis to judicial review. This requirement would increase the seriousness with which the exercise is taken and further weaken the power of bureaucrats. Article III judges are not perfect, but they are far less ideologically skewed than bureaucrats, and the judges have no pecuniary or status incentives to expand the agencies’ work.

5. Bring independent agencies within Presidential control. As I stated in the previous post, Presidents have modest powers to recalibrate the bureaucracy, but these powers are even weaker at independent agencies which are insulated from their control.

6. My co-blogger Mike Rappaport once suggested to me that each agency have  a unit devoted to deregulation. His is a very sensible idea, not least because it might attract a different kind of personnel–people more sympathetic to the market than top-down government control.

7. Privatize where possible. Privatization has often been sold as way of gaining efficiency in the bureaucracy. But it can also bring in personnel who skew less ideologically to the left.

These ideas that could have been implemented many years ago but could still be accomplished. In my next post, I will describe some ideas to circumscribe the bureaucracy that are now available because of modern technology.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

About the Author

Comments

  1. nobody.really says

    So the solution to bureaucracy is … more bureaucracy! I suspect government employees’ unions would love these suggestions (except for privatization).

    (During a summer at the Dept. of Justice’s Antitrust Division, I asked the economists how they liked the changes wrought by the Reagan Administration. They LOVED them; by demanding ever greater scrutiny of antitrust cases, the Administration had greatly strengthened the hand of the economist division and prompted the retention of more economists.)

  2. Polybius says

    Shouldn’t the judicial doctrine of deference to administrative agencies in various contexts be eliminated? I’ve worked extensively with regulators. The knowledge that they are going to win most of the time leads them to be cavalier about data and decision-making. They know there is little downside and the regulated community is almost always at a disadvantage. It makes for poorer quality decision making.

    I also find it unjustifiable to advantage administrative agency opinions over that of individual citizens of the United States. Effectively it means we are serving them.

  3. gabe says

    ” Subject cost benefit analysis to judicial review. This requirement would increase the seriousness with which the exercise is taken and further weaken the power of bureaucrats.”

    Really!!!! Why, once the Legislature has ostensibly regained some control over the agencies, then yield it to the Courts. I think you are a little too optimistic with respect to the lack of ideology present in Article III judges.

    No, “cost-benefit” is best determined as a “political” judgement by a “political” body elected by and accountable to the people. Let’s not put training wheels back on their bikes once they have shown the courage to ride on their own.

    BTW: Nobody – this monitor is still acting up!! I, too, keep seeing the “Full Employment Act for Bureaucrats” in the future.

    take care
    gabe

  4. R Richard Schweitzer says

    Apologies for using a tired old analogy.

    Here we go again seeking remedies or amelioration’s for “symptoms” without considering the causes underlying the disorders.

    It is absolutely true that the defaults in legislative responsibilities in the excessive delegation of legislative powers, coupled with excessive discretionary authority, have created cancerous tumors in the social fabric (many of which metastasize extensively) for which we are seeking treatments that cover the effects.

    Meanwhile, we continue to avoid concerning ourselves with the social forces that are generating the deficient legislative activities which create, expand, and failed to control bureaucratic enterprises established by particular political determinations of ends and means for particular interests.

    Chief among those social forces has been the continuing desire and efforts to transfer functions of of individual and civil association responsibilities into functions for performance by the mechanisms of governments – at the several levels.

    Every transfer of a function to the mechanisms of government require facilities for the performance of the additional functions. Those facilities are the “bureaus.” The continual addition of functions to governments creates requirements for resources, including human resources of varying capabilities and motivations.

    The underlying disorder causing bureaucratic dysfunction originates in increasing the functions of governments.

    There is little evidence of popular appetite to unwind and reduce the functions of the federal government significantly. We have the examples of the EPA and the CFPB, which by their legislative origins have been placed beyond the reach of legislative control. The result has been the arrogation of functions far beyond civil intent or concern of the electorate. We cannot treat, let alone cure those forms of cancers. They will continue to destroy large segments of the living social tissue.

  5. gabe says

    Tocqueville’s Democracy in America:

    “Over these [citizens] is elevated an immense, tutelary power, which takes sole charge of assuring their enjoyment and of watching over their fate. It is absolute, attentive to detail, regular, provident, and gentle… It works willingly for their happiness, but it wishes to be the only agent and the sole arbiter of that happiness. It provides for their security, foresees and supplies their needs, guides them in their principal affairs, directs their testaments, divides their inheritances… In this fashion, every day, it renders the employment of free will less useful and more rare; it confines the action of the will within a smaller space and bit by bit it steals from each citizen the use of that which is his own. Equality has prepared men for all of these things: it has disposed them to put up with them and often even to regard them as a benefit.”

    The old Frenchman sort of hit it on the head, didn’t he?

    From a review in todays Nomocracy in Politics:
    http://nomocracyinpolitics.com/2014/03/18/david-gordons-soft-despotism-democracys-drift-montesquieu-rousseau-tocqueville-and-the-modern-prospect-paul-a-rahe/

    “In the modern world, then, we can obtain a tolerable, though not ideal, order by following the English model. But a danger threatens this happy outcome: in certain circumstances, the executive might seize control of the reins of power and transform society into a despotic system.”

    “In Montesquieu’s judgment, the legislature within a modern republic would be in serious danger of succumbing fully to executive influence only in the unlikely event that the management of commerce and industry within that republic were somehow, to a very considerable extent, entrusted to the executive. In such a polity should the populace in general and the middle class in particular ever be beholden to government for their economic well-being, the situation of the citizens would indeed be grim. (p. 58)”

    “To prevent this transition to despotism, it is essential to preserve the intermediate powers, such as the nobility and clergy, who can interpose their authority between the central government and the people. Without these powers, the executive may take control, in the manner just described.”

    Any wonder why the State has continued on with the tactics begun in the Enlightenment era of marginalizing the clergy? Or why the executive sees fit to “control” or dictate to industry (think auto industry / banking industry restructuring) how it shall operate or, indeed, whether it shall operate at all (see the coal industry). My god, what benevolence on the part of the Executive to even permit such industries to exist.

  6. Anonymous says

    We need not just stop the bad things that the expansive federal bureaucracy has done, but we need to make sure that it never happens again. That means setting up systems which combat even the potential to have it happen again. We need to embue some new part of government with power, such that if the federal bureaucracy occurs again, it must pull that power from this new part of government. The founders thought that congress wouldn’t want to give up the power they have to the executive, clearly that didn’t work out so well. Maybe some new incentive structure to make it less desirable for congress to delegate. Something as simple as moving the agencies out of Washington dc might help.

    • R Richard Schweitzer says

      Well, actually there once was a limitation on the delegation of legislative authority. The enforcement lay with the judiciary which has “found no faults with this just system;” and requested a towel.

      Meanwhile, an electorate has come into being whose members have preference for things like Social Security, Medicare, Medicaid, Environmental Protection, Affordable Housing, Job Training, and numerous other benefits or amelioration’s of burdens and transfers of responsibilities, which in any form of government would require facilities for execution and performance. In the case of the United States the constitutionally delineated mechanisms of government did not provide for (do not provide for?) the performance of such functions through those mechanisms. As a result, the electorate has accepted (consented to?) the embodiment of authority necessary for those functions in what has become the Federal Administrative State, whose facilities are the bureaus which function (awkwardly) through the constitutionally delineated mechanisms of government.

      The executive office has become a general manager, whose principal occupant, over successive terms, has come to face impossibilities of assembling intellectual and physical abilities adequate for that task.

      It is the functions transferred to “governments” (actually, to the Administrative State), whether at federal, state, or local levels, with the objectives of obtaining benefits or ameliorating burdens that have to be removed initially from the Federal Administrative State, and assumed again through a renewed effort at civil society, using civil associations, by the electorate. We are beginning to see revulsions against “state authority,” disregard for “regulatory authority”and a general distaste for the authority of “experts.”

      We are observing a state that is becoming “too big to manage,” but not “too big to fail.” That failure, like most “government failure” will be the cumulative failures of the bureaucracies. The fiscal cracks already appear. Absent absolute confiscation, there are not enough resources, human and material, for the performance of all the functions transferred.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>