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Ben Sasse on How the Administrative State Injures American Democracy

Nebraska Senator Ben Sasse’s opening remarks last week at Brett Kavanaugh’s confirmation hearing focused attention on Congress delegating its own legislative power to the executive branch. The argument he developed regarding how promiscuous congressional delegation of its own power weakens the Constitution’s separation-of-powers system was important in itself – and is magnified by the visibility of the venue (even if it didn’t quite explain why judicial confirmation hearings became so politicized).

Sasse did not rest his separation-of-power concerns on mere formalism. He explained how congressional delegation creates hinders democratic accountability, and discussed the electoral motivation spurring Congress to delegate.

The most rousing part of Sasse’s remarks circled around his vigorous defense of Congress as the central political branch of the national government. Unlike the image of Congress that many commentators draw today in which they lament the loss of the ostensible collegiality of bygone eras (meaning the days when Democrats habitually steamrolled Republicans in Congress), Sasse painted a picture of Congress as the branch of government that should be partisan, loud, and rambunctious.

Amen to that.

More substantively, though, Sasse explained how moving the locus of policymaking from Congress to executive branch agencies sets policymaking at one more remove from voters. Given traditional liberal/Progressive complaints about the ostensibly undemocratic nature of the American separation-of-power system, one would think the century-long process by which national policy makers become increasingly immunized from democratic accountability would be a concern on the left as well as the right. Yet concerns with the rise of the administrative state, and the corresponding decrease in democratic accountability, meets only with silence on the left.

To be sure, in principle, moving of policy-making from the legislative branch to the executive branch in the U.S. need not represent a lessening in democratic accountability. Voters elect the President as well as Congress. Herein lies the significance of Sasse referring to the bureaucracy as the “fourth branch” of government. The rise of the merit system for the executive branch bureaucracy, as well as the development of independent commissions and agencies in the executive branch, has reified the antidemocratic character of the administrative state.

It’s useful to pause at this point, however, before moving on. After all, the move to the merit system and independent commissions historically sought to reduce cronyism and corruption in a patronage-based executive branch. Nonetheless, with more than a century’s worth of experience with a bureaucracy increasingly immunized from electoral accountability, it is doubtless time to revisit the Progressive promise of “neutral competence” in administration. At least since the public choice revolution, policymakers and scholars can no longer with justification treat administrators as black boxes that neutrally implement legislation.

After over a century of experience with independent executive boards and commissions, and almost a century of experience with the merit system in the national executive branch, it is appropriate to raise the large question, as Sasse did in his remarks, whether the country has moved too far in immunizing policy making from the vagaries of the democratic process. To be sure, we can concede there are costs to holding the entire executive branch electorally accountable. But so too are there real costs in immunizing the vast part of the executive branch from that accountability. As Sasse asked, but did not answer, are there ways for Congress to answer its need for administrative expertise without losing electoral accountability?

An irony in Sasse’s remarks, however, was his explanation that electoral concerns of legislators are what actually motivate Congress to cede power to the bureaucracy. The theory is well known and is called “blame shifting.” The idea holds that legislators seek to minimize exposure to voter disapproval by delegating policy decisions to the executive branch, whom legislators may then blame for adverse outcomes of the various policies. (The theory also implies legislators cede policy-making authority to the judiciary as well.)

While possible, explanations more parsimonious than blame shifting more plausibly account for Congress delegating its own power away from itself. There is no need to look beyond opportunity costs for legislators in time and staff to see incentives for legislators to delegate policy-making authority to other institutions: Each minute spent on writing specific legislation is a minute that could otherwise be spent on vote-getting constituency services, leadership-promoting institutional service, or writing and promoting other bills. Plus, bill writing is a public good among legislators in plural legislatures. This means individual legislators do not capture the full value of writing specific legislation, so the separate actions of individual legislators cannot be expected, without greater incentives, to provide the amount of legislative attention optimal for the institution.

Further, blame shifting places informational expectations on voters that almost none would meet. To wit, when in the voting booth, most voters will not discriminate between government action resulting from a legislative enactment and government action resulting from an administrative regulation that, in turn, resulted from a legislative enactment. And if a voter does have that knowledge, then the voter would also have knowledge that Congress delegated that power to the agency, and, contrary to the requirements of blame shifting, could therefore hold Congress accountable for its actions.

Still, a more parsimonious theory explaining why legislators give their power away provides only a minor repair to Sasse’s argument regarding why Congress delegates. It does not imperil his central argument that congressional delegation of its power to executive branch agencies, most of which are also effectively unaccountable to the elected president, has worked a significant shift in the Constitution’s separation-of-power system, and so has materially damaged the U.S. democratic system.

Reader Discussion

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on September 14, 2018 at 11:16:52 am

"While possible, explanations more parsimonious than blame shifting more plausibly account for Congress delegating its own power away from itself. There is no need to look beyond opportunity costs for legislators in time and staff to see incentives for legislators to delegate policy-making authority to other institutions: Each minute spent on writing specific legislation is a minute that could otherwise be spent on vote-getting constituency services, leadership-promoting institutional service, or writing and promoting other bills. Plus, bill writing is a public good among legislators in plural legislatures. This means individual legislators do not capture the full value of writing specific legislation, so the separate actions of individual legislators cannot be expected, without greater incentives, to provide the amount of legislative attention optimal for the institution."

WOW! What a paragraph purporting as it does to provide *rational* reasons for the Legislative to abjure its specific and *paramount* obligation to "legislate." Rogers attempts to advert our attention away from this basic fact; that the Legislative Branch does not legislate because it needs to save time in order to among other things "writing and promoting other bills".
Question why would the secondary instance of writing bills NOT prevent the Legislator from wasting time writing bills? Hmmm?

Secondly, the drafting of bills is often accomplished by both or either industry / NGO / or lobbyists on the one hand AND the very Administrative Agencies that presumptively are to be regulated or empowered. How much of a "time-saver" is that?

Thirdly, Rogers fails to acknowledge the ever growing tendency of the Legislative to *draft* (subject to above qualifications) rather broad, ambiguous and open ended grants of authority to the FAS agencies IN ORDER to permit the Legislator to serve as ombudsman for those very "vote-getting constituency services" which he previously applauds. The ability to *work* the Agency regulators such that the Agency may render a ruling / interpretation favorable to the Legislator's constituent(s) is worth far more to the Legislator than is the rewards from a diligent adherence to his / her institutional responsibility to legislate. In short, the open-ended nature of so many Congressional delegations permits, nay, ENCOURAGES, the this type of wheeler - dealer ombudsmanship that we currently observe.

If Rogers wishes to advance a "rational choice" argument for legislative dysfunction (although it is not quite clear that Rogers would admit of that dysfunction) he may want to consider this peculiarly "rational choice" of ombudsmanship embraced by our current crop of pseudo-Legislators.

When it comes to "scrambling" I will take Green Bay's RoDgers any day!!!!

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gabe
on September 15, 2018 at 15:15:15 pm

All our slimy elected representatives have to do is to stop routinely making the decisions of their administrative agencies reviewable by the courts.

Then the voters will know to blame their elected representatives. Now, with both the courts and the agencies issuing often conflicting decisions we don't know who to blame and both seem to be in competition to make a bad situation worse.

The judiciary will not and can not solve this problem.

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EK
on September 18, 2018 at 17:19:11 pm

After over a century of experience with independent executive boards and commissions, and almost a century of experience with the merit system in the national executive branch, it is appropriate to raise the large question, as Sasse did in his remarks, whether the country has moved too far in immunizing policy making from the vagaries of the democratic process. To be sure, we can concede there are costs to holding the entire executive branch electorally accountable. But so too are there real costs in immunizing the vast part of the executive branch from that accountability.

Ok, with the benefit of over a century of experience, which governments do a better job of balancing administrative stability with democratic accountability? The British shows Yes, Minister and Yes, Prime Minister suggest that the UK is hardly an example to emulate. So what else ya got?

The US tax code demonstrates that Congress can legislate in great detail when it chooses to. Most of the time, it chooses not to. From this, I conclude that Congress is sufficiently pleased with the work of the bureaucrats that it’s willing to defer to them as a default option. And what’s the alternative? To cause all public policy to be resolved on the floor of Congress, and to grind to a halt each time a congressman wants to filibuster a nominee for deputy assistant undersecretary for astrology?

Over a century of experience observing vastly less functional governments suggests to me that we’ve got a good thing going.

blame shifting places informational expectations on voters that almost none would meet. To wit, when in the voting booth, most voters will not discriminate between government action resulting from a legislative enactment and government action resulting from an administrative regulation that, in turn, resulted from a legislative enactment.

Can we think of any attack ads sneering, “Congresswoman Jones voted to delegate authority to an Executive Branch agency that proceeded to exercise its independent authority to impede job-creation in our state!” Because, until I see that, I’m going to conclude that the blame-shifting strategy works—if only because it makes attack ads too wordy to be effective.

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nobody.really

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