What Washington Gets Wrong (Jennifer Bachner and Benjamin Ginsberg)

“What Washington Gets Wrong” shows, by polling statistics, what we all know already. Namely, that those who run the government, from Capitol City—sorry, from Washington—not only think differently from Americans as whole, but also have different policy priorities and have deep contempt for most Americans. This isn’t a surprise, because this is the nature of every bureaucratic ruling class throughout history, though ours is both less monetarily corrupt than usual, and more ideologically corrupt than usual. But these basic facts are interesting and useful to see proven and quantified, and even more interesting, to me, are some of the authors’ suggestions to alleviate the problem—which I think don’t go far enough, but would at least be a start.

The authors, Jennifer Bachner and Benjamin Ginsberg, begin simply enough, by outlining how government actually works today. We are ruled not by Congress, and not even by the President, but by the federal administrative state. This tapeworm-like state-within-a-state is theoretically subordinate to the President (in most cases) and always supposedly exists to execute the will of Congress. In reality it is a monoculture of permanently ensconced leftist bureaucrats who act at their own initiative to advance their ideological goals, except when they work with a President to more aggressively advance their ideological goals. (I refuse to call bureaucrats “civil servants,” since mostly they serve nobody but themselves and their ideology, and those few who do try to serve Americans as a whole, or are part of legitimate federal functions such as the VA, are structurally part of a system that denies the servant role.)

While Bachner and Ginsberg offer a brief history lesson on the topic of administrative law, they are less interested in how we got here and more in where we are. And that is where endless serried ranks of unelected bureaucrats, using as their authority vague laws decades old, generate endless regulations they desire, with no input from Congress and no oversight by the courts, which have effectively nullified the essential doctrine of nondelegation and compound this dereliction by deferring in every way to the administrative agencies, which grow ever-larger and issue ever-more regulations binding every American with the force of law. (All this, history and today, is covered in much more detail in Philip Hamburger’s excellent “Is Administrative Law Unlawful?”)

The basic outline of this system is nearly a hundred years old. But Bachner and Ginsburg relate how, beginning with President Clinton, the President began to “order the adoption of rules that advanced the administration’s policy objectives.” This was a new development; while most administrative agencies are technically in the executive branch, their authority and supposed guidance comes from Congressional delegation. However, Clinton, and later Obama, formally ordered administrative agencies across the board to implement rules, often actively working with outside leftist pressure groups to draft the regulations, as well as to create public campaigns (with government money) to give the appearance of public support. The agencies were not legally required to do any of this; as the authors note, “In principle agencies might have objected to these presidential directives and appealed to Congress for support,” but naturally they did not, since they supported Clinton’s and Obama’s ideological goals. And, of course, to better implement rules that cannot be challenged because of their Protean nature, oftentimes agencies evade the core requirements of rulemaking, the better to achieve their ideological objectives, by using various subterfuges such as “guidance,” emergency procedures, fraudulent lawsuits in collusion with outside pressure groups resulting in “court-ordered’ rules, and so forth.

This suggests an important issue the authors do not discuss in detail—this lever of power is functionally not available to Republican presidents, because the administrative agencies are a Democratic monoculture, and its members simply will not obey Republican orders. The authors claim that under George W. Bush such presidential directives to agencies also existed. However, they give no examples, while giving numerous examples with respect to Clinton and Obama. Almost certainly there are no Bush examples; I can certainly remember none that entered the public eye. And later in the book the authors note that Nixon found it nearly impossible to get any cooperation from the bureaucracy, a problem that can only have gotten worse since his time. Modern Republican presidents have confined themselves to modest and ineffective attempts to constrain regulatory overreach, in particular by requiring cost-benefit analysis. But this tactic is easily defeated by the simple and universal agency approach of lying, which is never punished in any way. (Aggressive investigations in the upcoming Congress, followed by a large helping of ten-year federal prison sentences for a few randomly chosen bureaucrats who lied about regulatory costs and claimed fictitious benefits, would be a good start and a good way to focus the attention of bureaucrats.)

Anyway, as to the statistics that underpin this book, the authors surveyed three groups: the civil service (i.e., bureaucrats in administrative agencies); staffers from Congress and the White House; and the “policy community,” that influences and frequently reports to the first two groups. All these groups are, on average, better educated (or at least have more years of education) and higher paid than Americans as whole. Unsurprisingly, they are also more politically involved, pay more attention to the news, and have a high level of faith in government action. The authors use a variety of statistical tools to further show that the issues each of these groups care about, and how much they care, from Social Security to crime, are different and differently weighted than by Americans as a whole. The statistics focus on all three groups, but the authors’ analysis of how this affects the American political system, as well as the recommendations, focus mostly on the bureaucrats, because they are the most out-of-touch with Americans.

These basic statistics, in themselves, do not prove all that much. The ruling class always differs in key ways from the ruled. The key question the authors next raise is whether this distance makes the rulers more or less sympathetic to the ruled. The ruled, certainly, frequently lack political knowledge of the most basic sort (though as others have pointed out, this may not just be stupidity; it may be a perfectly rational response to how to allocate one’s own time and resources when one has zero impact on the political process). So the ruling bureaucrats, as agents for their principals (the American people) might be expected to have superior knowledge, as is often true for agents. However, in the usual principal-agent relationship, as with doctors or lawyers, “we expect these agents to make an efforts to understand and act in accordance with the goals, desires, and interests of their principals, even if the latter are sometimes a bit confused and inarticulate.” This fiduciary responsibility is totally basic to the principal-agent relationship. And, as the authors show, it is totally lacking among the ruling bureaucracy in Washington. Quite the opposite—again, with statistical measures, the authors show the rulers have contempt for the ruled, know little or nothing about them, do not care what they want, and when they know what they want, deliberately ignore it in favor of what they think is best. They wholly violate their own civic responsibility, which is, after all, a two-way street in a democracy. (Actually, here congressional and White House staffers, the only one of the three groups studied with any tie to elective office and with actual contact with the public, perform somewhat better.)

These characteristics have real impact, not only in the volume, topic and content of regulations, but also in the particularly problematic explosion of regulatory crimes with no mens rea requirement, enforced by SWAT teams (such as the Department of Education’s, doubtless used when the many documents marked “classified” by that Department have been sullied by accidental viewing by some peon). At best, this contempt shows through in less extreme and violent ways, such as Cass Sunstein’s call, as head of OIRA, for “nudging”—“the more benign approach of arranging citizens’ alternatives so that they make the officially desired choice seemingly of their own accord.” Either way, the ruled are to know their place and take the actions they are ordered to take by their betters.

So, if those who comprise the actual government don’t listen and have disdain for the ruled, Bachner and Ginsberg ask “What Should Be Done To Make The Government Listen?” To me, this is where the book gets most interesting. For those who dislike or loathe the administrative state, whether for modest reasons of acoustic separation such as the authors of this book; or Philip Hamburger, who thinks it comports neither with the Constitution nor the rule of law; or those, like me, who regard it as a cancer upon the body politic, allowing an unelected leftist, rabidly ideological monoculture glorious and untrammeled power over the tiniest aspect of every citizen’s life, this is the question—what should be done? Wholly destroying the administrative state seems unlikely, although aiming high sometimes results in striking true. But most of the time it results in wasted shots.

Bachner and Ginsberg offer several intriguing options, which stem from their modest objections to the functioning of the administrative state (they make no comment on its overall legitimacy, and the bile in this review is purely mine). First, they want more “democratic rotation in office,” as Andrew Jackson called the spoils system. As Jackson said, “The duties of all public officers are, or at least admit of being made, so plain and simple that men of intelligence may readily qualify themselves for their performance.” The authors here also point out that the elimination of the spoils system, centered around the Hatch Act in 1939, was driven in part by a Progressive desire for anti-democratic, non-partisan, expert-driven government function, but also driven largely by a desire to reduce the political power and influence of new groups, particularly immigrants, Catholics and Jews, in favor of the WASP establishment. Since that latter goal is hardly desired or desirable nowadays, and instead of non-partisan experts we have a viciously partisan and ideological, pseudo-expert, set of overpaid bureaucrats who effectively have lifetime tenure, perhaps we should simply allow a victorious president to replace most of the staff of administrative agencies with those to whom he owes favors. Of course, the knee-jerk reaction by those in favor of the administrative state is “what about all that experience we’ll be losing?!” But, as the authors note, “One might wonder why, if experience is so essential, the highest-ranking positions [in agencies] are assigned to the least experienced. The answer is that experience, though valuable, is not the only important factor. We also value consistency with democratic principles and accountability to democratically elected officials”—both items nearly totally lacking in today’s administrative state.

The authors do not suggest it, because their narrow goal is getting bureaucrats to understand Americans better, but I think this idea should probably be supplemented by explicit term limits for bureaucrats—perhaps no more than 10 total years allowed in any bureaucratic office, and no pensions of any kind, certainly. Also, a ban with criminal penalties should be imposed on any private-sector work, profit or non-profit, paid or unpaid, that relates to a bureaucrat’s government work in any material way, conducted for ten years after leaving the government. Plus, naturally, any type of unionization should be banned and attempts to unionize bureaucrats criminalized. These actions would make being a bureaucrat much less attractive, and therefore similarly encourage “democratic rotation in office.”

Second, Bachner and Ginsberg suggest two types of training for bureaucrats. One is turning from formal education focused on how to manage and control citizens, which is what bureaucrats get now, to formal education focused on bureaucrats’ fiduciary responsibilities as agents for American citizens (they analogize this to such education provided to the military). But a more important form of education would additionally flow from the informal education provided by rustication—“occasional rotation through field offices or other posts where they would actually deal with ordinary Americans.” This would “burst the Beltway bubble” that leads to the statistical differences the authors document, creating more alignment between principals and agents.

I think this rustication is a great idea, but does not go nearly far enough. In this case, if some is good, more is better! I suggest that no federal administrative agency should be allowed to have its headquarters located, or more than 2% of its staff and contractors combined live or work, within 200 miles of Washington, New York, San Francisco, or Los Angeles. Instead, each agency should be scattered in numerous small satellite offices evenly geographically distributed around the country, with only a small percentage in any metropolitan area with more than, say, 250,000 people, and a substantial fraction in metropolitan areas of less than 50,000 people. Office space should be mostly “C” grade, with a fraction of “B” grade. In these days of electronic communication, there is no downside to efficiency as a result—in fact, efficiency should go up, as bureaucrats focus on work, rather than chatter and Washington insider gossip. And bureaucrats should like all this economically—their already excessive salaries will be worth more outside the big metropolitan areas. Any existing high-end office space owned by the government used by agencies should be sold immediately, with the money directed wholly away from the selling agency.

All this would get bureaucrats in touch with the American people; and it would have the salutary side benefit of reducing the gravitational pull of Washington, which produces nothing, but where vast wealth concentration and a glittering scene exist on the backs of Americans who actually produce value. Simultaneously, it would reduce the corrupting influence of lobbyists, who would find it harder to lobby, and make it harder for recipients of corporate welfare and other handouts to achieve their similarly parasitical goals. There is no reason Washington should be anything other than the sleepy town it once was, rather than a sponging monstrosity where rich people who stole their wealth from the American public whoop it up with other thieves. Also, then we won’t have to bother repairing the Metro.

Third, turning to the other side of the coin, the authors suggest MORE cynicism be inculcated in the public. What is inculcated now in the public “is focused almost entirely on how to be ruled.” The authors instead heartily endorse Realpolitik. They point out, for example, that most public policy debates occurring in the public eye are conducted on the basis of illusory principles, when the actions are really meant to increase power. They give the example of Obamacare, noting that “Experienced Washington insiders understood that the issues raised in the debate had as much or more to do with efforts by the Obama administration to build institutions that would provide the Democratic Party and its affiliated constellation of interests with lasting claims upon budgetary resources and voter loyalties.” And, presumably, Republican opposition was largely driven by a desire to deny this increase in power to Democrats. (The authors also compare then-candidate Donald Trump’s “proposed wall on the Mexican border” to “an Internet scam,” a characterization that looks less-than-certain in December of 2016).

So the authors therefore demand more, rather than less, cynicism in the education of voters. “Since politicians and public officials are hypocrites, it is quite appropriate for ordinary citizens to be cynics. Ambrose Bierce defined a cynic as a ‘blackguard whose faulty vision sees things as they are, not as they out to be.’” They believe voters should get less high school civics and more knowledge about the self-interest of politicians. And this education should be centered around three truths: (a) politicians strive “to enhance their own wealth, their own power, and their own status rather than for more altruistic or public-spirited purposes”; (b) “even if political actors have less selfish aims, they must almost always, nevertheless, work to acquire wealth, power or status to achieve these other goals,” which effort “even if undertaken for the best of reasons, can become all-consuming”; and (c) “the issues and ideas publicly espoused by political actors are more often the weapons of political struggle than its actual goals” (as with Obamacare).

None of this makes me optimistic. But perhaps, in the new world of January 2017, some pushback may yet occur against the administrative state. It would take a different time and different circumstances for the excellent ideas offered by the authors, and my own slash-and-burn addenda, to be actually implemented. If there were such an opportunity, though, this book offers both ammunition for and cogent analysis of the necessary goals, and so it is a useful addition to the literature on the administrative state.


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