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A Partyist Solution to Partyism

Cass Sunstein has offered a new solution to advance good governance in a time of partisanship—what he terms an age of “partyism.”  Because a partisan world leads to gridlock in Congress, he suggests that executive agencies should continue to be empowered with substantial latitude to interpret their own statutes.  Indeed, Professor Sunstein argues that agencies should gain a “bit more” discretion to construe existing statutes since Congress will not be doing much updating.

Michael Greve offered his own excellent demurral to Professor Sunstein’s solution. Here are two additional points of critique.   First, empowering agencies is not neutral with respect to partisanship because bureaucrats lean to the left.  Second, empowering agencies is not neutral as an ideological matter.  The progressive agenda itself needs substantial discretion to continue the effectiveness and political endurance of much centralized regulation.  In contrast, conservatives and libertarians are more sympathetic to market and other forms of decentralized order that will take hold even if federal regulation cannot be updated.

There is substantial evidence to support the first point that most federal employees lean to the left of Republicans.  In fact, they are often to the left of the median Democrat.  And, although Republican Presidents appoint Republicans to manage federal agencies, the political appointees may often have to compromise to be effective managers. Members of the civil service cannot easily be fired or even reassigned. Through access to the generally liberal press, they can undermine an agency head through leaks or more general bad mouthing. While Republican agency heads could take some advantage of greater discretion, such an advantage would not be symmetrical across our two political parties.

Perhaps more importantly, federal agency discretion more clearly benefits the progressive agenda. Over time changes in technology or other events make many regulations obsolete, and businesses and their lawyers find workarounds. This fact cheers conservatives and libertarians, who believe that the market would often outperform the likely federal  updates. The right is also often more sympathetic if outdated federal regulation permits a greater role for the states,  because state regulation allows more opportunities for exit, more experiments, and better reflections of our diverse preferences in a continental republic. And partyism causes less gridlock at the state level, because many states are under unified party control and because state officials are better at striking compromises out of the national spotlight. Presidents George Bush and Barack Obama both observed on the basis of their own experience  that  partisanship is less strongly pronounced in state government than at the federal level.

As a general matter, modern progressives are not as sympathetic to the markets’ triumph over regulatory obsolescence and are more enthusiastic about uniform national solutions. Thus, executive discretion by its nature as well as in practice provides an asymmetrical advantage to the left-leaning party. Professor Sunstein’s proposed solution, offered in the spirit nonpartisanship, is in fact partyist.

Reader Discussion

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on January 14, 2015 at 13:26:16 pm

When I read the opening lines< I could not believe my eyes. Talk about a different perspective than what is ordinarily seen on this blog! And then I read the rest of the article with due appreciation. After all, even a left leaning partyer should see the recipe for a disastrous dictatorship in letting the leftist leaning employees run things unchecked, Just consider the perks of the social welfare state in Great Britain. The office heads , i.e., lead Social Workers, etc., drive the BMWs, Mercedes, and etc.

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dr. james willingham
on January 14, 2015 at 14:26:23 pm

If you go along with Sunstein, then i have a bridge to sell you. When you skim away all the elite liberal platitudes you see they are all about their false construct of a utopian world, one where they will never be hurt. And when they have no power( which the elite liberals never handle well) they go back and resort to their greatest and natural asset :cunning and being sly. Burnham likens them to foxes.
Sunstein is playing you like a fool, just as he has done to his mindless foot soldiers ever since the end of WWII.

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Otto
on January 14, 2015 at 14:47:59 pm

John:

Agreed with respect to relative advantage provided to the left.

Yet, we miss the most salient problem here. To advocate discretion, much less the greater level of discretion that Sunstein proposes, is to advocate that the Executive (read: The Crown / Monarch) have all of the ancient powers of royal prerogative restored to it.

Why is this not the thrust of your critique. Instead, you appear to reduce this issue to a mere matter of *techne*

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gabe
on January 20, 2015 at 08:47:36 am

[…] A Partyist Solution to Partyism […]

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Abolish the State of the Union Address   - Freedom's Floodgates

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.