Guarding the Guardians: Oversight Appointees and the Search for Accountability in U.S. Federal Agencies

1. Plato’s Republic, Book III, 414.

2. Juvenal, , D. Junii Juvenalis Saturarum Libri V, mit Erklärenden Anmerkungen von Ludwig Friedlaender, Erster Band (Leipzig, 1895), 325.

3. Manin, Bernard, “Checks, Balances, and Boundaries: The Separation of Powers in the Constitutional Debate of 1787,” in The Invention of the Modern Republic, ed. Fontana, B. (Cambridge, 1994).

4. Rockman, Bert A., “Legislative-Executive Relations and Legislative Oversight,” Legislative Studies Quarterly 9: 387–440.

5. Minta, Michael D., “Legislative Oversight and the Substantive Representation of Black and Latino Interests in Congress,” Legislative Studies Quarterly 34 (2009): 193–218; Johnson, Loch K., Strategic Intelligence: Understanding the Hidden Side of Government (Westport, Conn., 2007), 126–27; Ogul, Morris S., Congress Oversees the Bureaucracy (Pittsburgh, 1976).

6. Rockman, Bert, “Bureaucracy, Power, Policy, and the State,” in The State of Public Bureaucracy, ed. Hill, Larry B. (Armonk, N.Y., 1992), 159. See also Pfiffner, James P., “Political Appointees and Career Executives: The Democracy-Bureaucracy Nexus in the Third Century,” Public Administration Review 47, no. 1 (January–February 1987): 57–65.

7. Bawn, Kathleen, “Political Control versus Expertise: Congressional Choices about Administrative Procedures,” American Political Science Review 89 (1995): 62–73; Dull, Matthew, Roberts, Patrick S., Keeney, Michael S., and Choi, Sang Ok. 2012. “Appointee Confirmation and Tenure: The Succession of U.S. Federal Agency Appointees, 1989–2009.” Public Administration Review 72, no. 6 (November/December): 902–13; David E. Lewis, The Politics of Presidential Appointments: Political Control and Bureaucratic Performance (Princeton, 2008).

8. Fiorina, Morris P., Congress: Keystone of the Washington Establishment (New Haven, 1989), 2nd ed., 36. The trend was noted by Charles Clapp in extensive interviews with members of Congress and their staff. See Clapp, , The Congressman: His Job as He Sees It (Washington, D.C., 1963).

9. Fiorina, Congress, 17–48.

10. Ibid., 41.

11. Hood, Christopher, Scott, Colin, James, Oliver, Jones, George, and Travers, Tony, Regulation Inside Government: Waste Watchers, Quality Police, and Sleaze-Busters (New York, 1999).

12. Brass, Clinton T., “General Management Laws: Major Themes and Management Policy Options” (Washington, D.C., 2004); Light, Paul C., Thickening Government: Federal Hierarchy and the Diffusion of Accountability (Washington, D.C., 1995).

13. Administrative law serves an oversight function, but its development and complexities are outside the scope of this article and sufficiently distinct from oversight positions to warrant separate treatment in a future article.

14. Mosher, Frederick C., The GAO: The Quest for Accountability in American Government (Boulder, 1979); Clinton T. Brass, “General Management Laws” Paul Charles Light, The Tides of Reform: Making Government Work, 1945–1995 (New Haven, 1997).

15. The authors thank an anonymous reviewer for assistance in honing this formulation.

16. Aberbach, Joel D., Keeping a Watchful Eye: The Politics of Congressional Oversight (Washington, D.C., 1990), 98.

17. McCubbins, Mathew D. and Schwartz, Thomas, “Congressional Oversight Overlooked: Police Patrols versus Fire Alarms,” American Journal of Political Science 28, no. 1 (February 1984): 165–79.

18. 5 U.S.C. Appx § 3[b].

19. Ervin, Clark Kent, Open Target: Where America Is Vulnerable to Attack (New York, 2007).

20. Dull, Matthew and Roberts, Patrick, “Continuity, Competence, and the Succession of Senate-Confirmed Agency Appointees, 1989–2009,” Presidential Studies Quarterly 39 (2009): 432–53.

21. Inspector General Act of 1978.

22. Chief Financial Officers Act of 1990.

23. CFO Act 1990.

24. Securities and Exchange Commission, “Delegation of Authority to the General Counsel: Securities and Exchange Commission, letter from Elizabeth M. Murphy, Secretary,” 28 April 2009, Washington, D.C., 2009.

25. Moore, Mark H. and Gates, Margaret Jane, Inspectors-General, Junkyard Dogs, or Man’s Best Friend (New York, 1986), 1–8.

26. Operations of Billie Sol Estes, “Operations of Billie Sol Estes,” 89th Cong., 1st sess. (Washington, D.C., 1965); Operations of Billie Sol Estes, “Hearings Before the House Committee on Government Operations,” in House Committee on Government Operations (Washington, D.C., 1964).

27. Light, Paul C., Thickening Government: Federal Hierarchy and the Diffusion of Accountability (Washington, D.C., 1995), 32–33.

28. Government Printing Office, “Establishment of an Office of Inspector General in the Department of Health, Education, and Welfare,” in Subcommittee on Intergovernmental Relations and Human Resources of the House Government Operations Committee (Washington, D.C., 1976), 1; Light, Thickening Government, 40.

29. Derthick, Martha, Agency Under Stress: The Social Security Administration in American Government (Washington, D.C., 1990), 126–27.

30. Light, Thickening Government; Muellenberg, Kurt W. and Volzer, Harvey, “Inspector General Act of 1978,” Temple Law Quarterly 53 (1980): 1049–66.

31. Pub. L. 95−452, 92 Stat. 1101, H.R. 8588, enacted 12 October 1978.

32. Inspector General Act of 1978.

33. Carter, Jimmy, “National Conference on Fraud, Abuse and Error Remarks at the Conference Sponsored by the Department of Health, Education, and Welfare,” Washington, D.C., 13 December 1978.

34. Light, Thickening Government, 11–22; Moore, and Gates, , Inspectors-General, Junkyard Dogs, or Man’s Best Friend; Frederick Mosher, “Comment by Frederick C. Mosher,” in Improving the Accountability and Performance of Government, ed. Smith, Bruce L. R. and Carroll, James D. (Washington, D.C., 1982), 72; Rourke, Francis E., “Bureaucratic Autonomy and the Public Interest,” in Making Bureaucracies Work, ed. Weiss, Carol H. and Barton, Allen H. (Beverley Hills, 1980), 103.

35. 5 U.S.C. app. At 400 supp. V 1981.

36. Kent, Jill E., “Organization of the Agency Chief Financial Officer,” Government Accountants Journal 40 (1991): 26–33.

37. Scott, Hood, Jones, James, and Travers, , Regulation Inside Government, 44–92.

38. Inspector General Act 1978; one example of the concern with performance is David Osborne and Ted Gaebler, Reinventing Government (New York, 1993).

39. Light, Thickening of Government, 35.

40. Trattner, John H., The 2000 Prune Book: How to Succeed in Washington’s Top Jobs (Washington, D.C., 2000), 81.

41. Ibid., 80.

42. Burrows, Vanessa K., “Statutory Offices of Inspectors General (IGs): Methods of Appointment and Legislative Proposals,” Congressional Research Service. November 6, 2009. R40675.

43. Public Law 101–576.

44. Hodsoll, Frank, “Office of Management and Budget’s Plans for Implementation of the Chief Financial Officers Act,” Government Accountants Journal 40 (1991): 12–18; Jones, Lawrence R. and McCaffery, Jerry L., “Federal Financial Management Reform and the Chief Financial Officers Act,” Public Budgeting & Finance 12 (1992): 75–86; Jones, Lawrence R., “Counterpoint Essay: Nice Reasons Why the CFO Act May Not Achieve Its Objective,” Public Budgeting & Finance 13 (1993): 87–94; Jones, Lawrence R. and McCaffery, Jerry L., “Implementation of the Federal Chief Financial Officers Act,” Public Budgeting & Finance 13 (1993): 68–76.

45. Chief Financial Officers Act of 1990.

46. Hodsoll, “Office of Management and Budget’s Plans for Implementation of the Chief Financial Officers Act.”

47. Carpenter, Daniel P. and Sin, Gisella, “Policy Tragedy and the Emergence of Regulation: The Food, Drug, and Cosmetic Act of 1938,” Studies in American Political Development 21 (2007): 149–80.

48. CFO: Excellence in Transition, http://www.excellenceintransition.org/prune/prunedetail.cfm?ItemNumber=10572.

49. Steinhoff, Jeffrey C., “Challenges of the CFO Act,” Government Accountants Journal 40 (1991): 18–22; Steinberg, Harold I., “The CFO Act: A Look at Federal Accountability,” Journal of Accountancy 18 (1996): 55–57.

50. Homer, Julia, “The Financial Frontier,” CFO Magazine, 1 May 2004.

51. GAO Letter, “Federal Vacancies Reform Act of 1998: Assistant Attorney General for the Office of Legal Counsel, U.S. Department of Justice” (Washington, D.C., 2008).

52. Johnson, Sarah, “CFO Act Agencies’ Reporting Lags,” CFO.com (2006); U.S. Congressional and Administrative News, “Government Management Reform Act of 1994,” Washington, D.C., 1994.

53. Homer, “The Financial Frontier.”

54. Association of Government Accountants, “Annual CFO Survey: Financial Management, Providing a Foundation for Transition,” Alexandria, 2008, 13.

55. Michael Herz notes that the relationship of the general counsel to the agency head “parallels that between the president and attorney general.” See Herz, Michael, “The Attorney Particular: The Governmental Role of the Agency General Counsel,” in Government Lawyers: The Federal Legal Bureaucracy and Presidential Politics, ed. Clayton, Cornell W. (Lawrence, Kans., 1995), 143–80(143).

56. Act to Establish the Department of Justice, 22 June 1870, secs. 1, 2, 16; available at: http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=016/llsl016.db&recNum=197; Attorney General’s Annual Report 1928, on file with authors.

57. Herz, “The Attorney Particular,” 143–80.

58. Ibid., 147.

59. Ibid.

60. Lessig, Lawrence, “Readings by Our Unitary Executive,” Cardozo Law Review 15 (1993): 175–99.

61. Bell, Griffin, “The Attorney General: The Federal Government’s Chief Lawyer and Chief Litigator, or One Among Many?” Fordham Law Review 46 (1978): 1049–59, 1050.

62. Lewis, David E., The Politics of Presidential Appointments: Political Control and Bureaucratic Performance (Princeton, 2008).

63. Heclo, Hugh, “OMB and the Presidency: The Problem of ‘Neutral Competence,’” Public Interest 38 (Winter 1975): 80–98(81).

64. Herbert Kaufman first defined “neutral competence” as the “ability to do the work of government expertly, and to do it according to explicit, objective standards rather than to personal or party or other obligations and loyalties.” Kaufman, , “Emerging Conflicts in the Doctrines of Public Administration,” American Political Science Review 50, no. 4 (December 1956): 1057–73; Aberbach, Joel D. and Rockman, Bert A., “Civil Servants and Policymakers: Neutral or Responsive Competence?” Governance 7, no. 4 (1994): 461–69.

65. The metaphor borrows from Kingdon’s famous streams metaphor. See Kingdon, John, Agendas, Alternatives, and Public Policy Politics (New York, 1984).

66. Fiorina, Morris, “Legislative Choice of Regulatory Forms: Legal Process or Administrative Process?” Public Choice 39 (1982): 33–61.

67. Sinclair, Barbara, Legislators, Leaders, and Lawmaking: The U.S. House of Representatives in the Postreform Era (Baltimore, 1998), 8–44, 213; Rhode, David W., “Committee and Policy Formulation,” in The Legislative Branch, ed. Quirk, Paul and Binder, Sarah (New York, 2005), 201–23.

68. Ripley, Randall B., Party Leadership in the House of Representatives (Washington, D.C., 1967). 6.

69. Fiorina, “Legislative Choice of Regulatory Forms,” 35.

70. Dull, Matthew, “Why PART? The Institutional Politics of Presidential Budget Reform,” Journal of Public Administration Research and Theory 16 (2006): 187–215.

71. Gronke, Paul, Hicks, James, and Cook, Timothy E., “Trust in Government and in Social Institutions,” in Understanding Public Opinion, ed. Norrander, Barbara and Wilcox, Clyde (Washington, D.C., 2009).

72. Patterson, Thomas E., Out of Order (New York, 1994); Starobin, Paul, “A Generation of Vipers,” Columbia Journalism Review 40 (2001): 118–20.

73. Aberbach, Joel D., Keeping a Watchful Eye: The Politics of Congressional Oversight (Washington, D.C., 1990); Aberbach, , “What’s Happened to the Watchful Eye?” Congress and the Presidency (2002): 3–23.

74. Mann, Thomas E. and Ornstein, Norman J., The Broken Branch: How Congress Is Failing America and How to Get It Back on Track (New York, 2006); Sinclair, Barbara, Party Wars: Polarization and the Politics of National Policy Making (Norman, Okla., 2006).

75. Lewis, David, “Political Appointees and the Competence of Federal Program Management,” American Politics Research 34 (2006): 22–50; Parker, David C. W. and Dull, Matthew, “Divided We Quarrel: The Politics of Congressional Investigations,” Legislative Studies Quarterly 34 (2009): 319–45.

76. Moe, Terry, “An Assessment of the Positive Theory of Congressional Dominance,” Legislative Studies Quarterly 12 (1987): 475–520 (489); Richard P. Nathan, The Administrative Presidency.

77. See Lewis, “Political Appointees and the Competence of Federal Program Management,” 2006.

78. Bawn, “Political Control versus Expertise,” 62–73; Bertelli, Anthony and Feldman, Sven, “Strategic Appointments,” Journal of Public Administration Research and Theory 17 (2007): 19–38; Epstein, David and O’Halloran, Sharyn, Delegating Powers: A Transaction Cost Politics Approach to Policy Making under Separate Powers (New York, 1999); Miller, Gary, “The Political Evolution of Principal-Agent Models,” Annual Review of Political Science 8 (2005): 203–225.

79. Freidson, Eliot, Professionalism: The Third Logic (London, 2001), 34.

80. Stinchcombe, Arthur L., When Formality Works: Authority and Abstraction in Law and Organizations (Chicago, 2001), 41.

81. One famous claim that organizations adopt professional rules because they seek legitimacy and status can be found in: Meyer, John and Rowan, Brian, “Institutionalized Organizations: Formal Structure as Myth and Ceremony,” American Journal of Sociology 83 (1977): 340–63; see also Douglas, Mary, How Institutions Think (Syracuse, 1986), for, among other things, a provocative analysis of the differences between American and French wine appellations.

82. Carpenter, Daniel, Reputation and Power: Organizational Image and Pharmaceutical Regulation at the FDA (Princeton, 2010).

83. Lawyers were among the earliest professions involved in government oversight. In addition, lawyers have so penetrated society that agencies require legal advice to do business. For example, lawyers interpret the Freedom of Information Act and other administrative procedures. See Mosher, Frederick, “Comment by Frederick C. Mosher,” in Improving the Accountability and Performance of Government, ed. Smith, Bruce L. R. and Carroll, James D. (Washington, D.C., 1982).

84. Personal interview, 21 May 2012, Washington, D.C.

85. We include only confirmed appointees, not service in an acting capacity. We are interested in whether a position is filled with someone who holds the full authority of the office. When a position is vacant, other appointees or careerists may be given some of the duties of the vacant position temporarily, but these substitutes do not exercise these duties with the full authority of the position. For a measure of vacancy duration, we adopted an established method: the number of days from the departure of an appointee until the Senate confirmation of the replacement. We follow previous work on appointees, with some modifications. See Nixon, David C. and Bentley, Roisin M., “Appointment Delay and the Policy Environment of the National Transportation Safety Board,” Administration and Society 37 (2006): 679–94; Nixon, David C., “Appointment Delay for Vacancies on the Federal Communications Commission,” Public Administration Review 61 (2001): 483–92.

86. Data were collected through formal requests from the Office of Personnel Management and Government Accountability Office and verified against published sources, including the Senate nominations database available through Thomas.gov, Congressional Research Service reports, contemporary news coverage accessed by Lexis-Nexis, and online resources.

87. For example, there is an office of chief counsel in the Department of Treasury and a chief counsel specific to the Internal Revenue Service. For our purposes, however, we counted only the Department of Treasury’s general counsel, who is both the top legal adviser to the secretary and an adviser on policy matters. Other PAS attorneys excluded from our dataset include the solicitor in the Department of Labor and the legal adviser in the state department.

88. Shapiro, Ari, “Glenn Fine Praised As Model Inspector General, November 11,” National Public Radio, 11 November 2008. http://www.npr.org/templates/story/story/php?storyID=96835115.

89. Chang, Kelly, Lewis, David, and McCarty, Nolan, “The Tenure of Political Appointees,” Paper presented at the Annual Meeting of the Midwest Political Science Association (Chicago, 2001); Dan Wood, B. and Marchbanks, Miner P. III, “What Determines How Long Political Appointees Serve?” Journal of Public Administration Research and Theory 18 (2007): 375–96.

90. Donahue, John D., “The Transformation of Government Work: Causes, Consequences, and Distortions,” in Government by Contract: Outsourcing and American Democracy,” in Government by Contract: Outsourcing and American Democracy, ed. Freeman, Jody and Minow, Martha (Cambridge, Mass., 2009), 41–63.

91. Nixon, David C., “Appointment Delay for Vacancies on the Federal Communications Commission,” 483–92.

92. We constructed a regression model that confirms that divided government does not predict vacancies.

93. Wolf, Richard, “Some Key Obama Administration Jobs Still Unfilled,” USA Today, 10 November 2009.

94. O’Connell, Anne Joseph, “Vacant Offices,” Southern California Law Review 89 (2009): 913–1000.

95. Kane, Paul, “The Fastest Gavel in the Senate,” Washington Post, 31 December 2007.

96. Yoon, Lisa, “A CFO for Katrina?” CFO.com (2005).

97. U.S. House, “National Defense Authorization Act for Fiscal Year 2011, Amendment 42 offered by Anna Eshoo, May 27, 2010,” 2010; U.S. Senate, “Governmentwide Intelligence Community Management Reforms,” in Senate Hearing 110-431, Committee on Homeland Security and Governmental Affairs (Washington, D.C., 2008).

98. We thank an anonymous reviewer for this suggestion.