A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory must be in practice, a bad government.
The title of this book urges that bureaucracy be valued, and makes a case for professionalism in government. But since millions of people are employed by federal, state, and local governments, many of whom are hard-working professionals, this proposition may not seem obvious or even logical. How is it possible that government at all levels, the leviathan that is the modern state, could be weakened by a lack of professionalism? Aren't there professionals among these numbers of government employees who do the job of managing the bureaucratic state? Of course, many are at work doing their jobs effectively. But their numbers are shrinking relative to the size of government, and contractors and other workers are growing in proportion. Clearly bureaucratic size need not equate with bureaucratic energy, and the energy that professionals provide ensures directed, purposeful, and accountable government. When government is “deprofessionalized,” this energy can be lost, and the structure is hollowed out.
Bureaucracy exists in both the government and private sectors for a reason: for all its faults, it is the most efficient way to organize large functions.Footnote 1 So we cannot “banish” bureaucracy,Footnote 2 even if we wanted to. Bureaucracy alone is not the problem; the problem lies with the quality of management that determines its energy and its efficacy. Alexander Hamilton's quote above equates ill execution with bad government. Hamilton saw an energetic executive branch as “essential to the steady administration of the laws.” Paul Light has deepened Hamilton's insights by identifying the characteristics that his words encompass.Footnote 3 Light's view is that through the growth of contractors the federal service has been so depleted it cannot live up to Hamilton's vision for it.Footnote 4 This book builds on these insights.
And energetic execution is not just an Executive branch problem. Since it is the dictates of Congress that agency officials administer under our constitutional system, a deprofessionalized Executive branch leads to problems for the First branch as well. Ill execution of laws hurts both branches. Government administration has always been the Executive's role,Footnote 5 and its effectiveness has been critiqued since the beginning of the Republic.
In today's terms, administration is meant to be performed by professional managers, largely career officials who devote their lives to executing government, supervised by political appointees and overseen by congressional committees. Professionalism reflects competencies and skills along with a degree of independence. But current criticisms make the idea of professionalism controversial or even illegitimate. Rhetoric about the size of bureaucracy overwhelms concerns about its quality. As Don Kettl has shown, America seems to have lost its commitment to competence in government.Footnote 6 Those at the management levels, where Hamilton's “energetic” government operates, are finding their positions more precarious as duties and missions expand without additional support and contractors assume more responsibility. This is where bureaucracy is being devalued. The powers of government are meant to be exercised by political appointees and career officials acting on instructions from Congress and the President, but when others perform their tasks, the question of who is in charge arises. I earlier identified this issue metaphorically as one of “outsourcing sovereignty,” the process of devolving government responsibilities from professional managers to surrogates and subordinates whose connections to the sovereign can be attenuated or even conflicted.
A. The Impact of the Election
The manuscript for this book was submitted in October 2016, before the election. Thus, I completed the bulk of the work behind a veil of political ignorance. My thought is that what is said here is good for both parties; for the goose and the gander. Now the veil has been lifted and the gander won. Many more surprises are undoubtedly in the offing.
A Clinton presidency would have provided a predictable relationship to the bureaucracy from someone with long service in the executive and legislative branches. A Trump presidency is unpredictable and many federal bureaucrats are nervous.Footnote 7 But he also seems willing to reconsider rash statements, which may be necessary if professional government is to be strengthened. However, policy expertise, what professionals embody, may be something that Trump's appointees do not value.Footnote 8
Early indications on this score are mixed at best. On the one hand, he has nominated several former military officials to key positions.Footnote 9 Whatever their policy views, these career officers are the product of one of our most successful bureaucratic enterprises. They are inclined to respect service, civilian or military, and appreciate the value of professionalism. They may help the President better appreciate what Peter Wehner calls the “craft of governing,”Footnote 10 which has increasingly become undervalued. If Trump listens to these voices and adapts to the spirit of the “professional amateur” that George Plimpton imbuedFootnote 11 then maybe he will respect and benefit from the career professionals in government.
On the other hand, Trump's nominee to the Environmental Protection Agency (EPA), Scott Pruitt, appears not to believe in the missions of the agency he is proposed to head. Additionally, his pick to lead the Office of Management and Budget (OMB), Rep. Mick Mulvaney, has been a prominent leader in House Freedom Caucus efforts to shut down the government over Planned Parenthood and the Affordable Care Act, and an advocate of cutting the federal workforce and privatization.Footnote 12 This puts the career employees in difficult territory. A president is entitled to latitude in selecting his team, but they act for the President and must demonstrate a clear commitment to the fundamental mission of the agency they seek to lead.Footnote 13 That is the lesson of the “Take Care” clause of Article II of the Constitution.
Another troubling development involves inquiries from Trump's transition team at the Department of Energy (DOE) about the names of career employees and contractors who participated in climate change initiatives and activities.Footnote 14 This action led Senator Edward Markey to write Mr. Trump that “civil servants should never be punished for having executed policies with which the new administration disagrees.”Footnote 15 This lesson may be a good one for Trump to receive even though it may have been the result of his overzealous DOE transition officials.
An interesting side note to the transition involves the suggestion that a Commission be established (similar to the Hoover Commission during the Truman Administration) to “modernize and shrink the federal government.”Footnote 16 If Mr. Trump finds it appealing, this could be a timely undertaking. Civil service reform, which this book advocates, has a better chance of success in a bipartisan and Commission-like setting, where workable reforms can be debated and proposed. If this Commission, or Mr. Trump and his advisors directly, were to look closely at the management problems brought about by the unchecked use of contractors, government might be modernized and shrunken under the Trump Administration. Not a bad legacy.
It is surely too early to chart the direction of the next administration. But there are some troubling signs, and even fears of a “kakistocracy” have been expressed.Footnote 17 It may be that Trump's early appointments, like those of Ronald Reagan before him (e.g. Anne Gorsuch at EPA and James Watt at Interior), will not fairly express his governing course. At all events, the need for a robust career service has never been greater.
B. Why the Topic of Contracting Continues to Expand
Outsourcing SovereigntyFootnote 18 was written ten years ago, but since then its subject has grown and spread – metastasized really – throughout government. Chapter 2 brings the reader up to date on the many academic and legal developments that have occurred over the last decade. It shows the connection between professional government and constitutional government that is essential to the arguments presented here. Chapter 2 also describes the field of contractor studies in law and economics that has burgeoned during the last decade. The focus of Outsourcing Sovereignty was largely upon the use of private military contractors during the Iraq War. But the fate of Blackwater and similar entities (which will be updated) now becomes the starting point for a broader inquiry. To understand the rise of the private military, the relationship of contractors to government had to be addressed in legal and constitutional, as well as operational, terms. As use of contractors has grown, problems are created for government at all levels. Professionals charged with running the government are finding their numbers static or even shrinking as the number of contractors and other surrogates grows apace. Government has long been run by career officials, but the centrality of their role increasingly hangs in the balance and professionalism is an oddly endangered concept in the current environment.
C. The Human Infrastructure Analogy
The case for professionalism is really about rebuilding infrastructure, something President Trump understands. Infrastructure has, however, human as well as physical dimensions. The physical side is well known. The deterioration of bridges, roads, water systems, and other facilities has reached crisis levels due to a lack of capital investment.Footnote 19 There seems to be an increasing consensus politically that infrastructure must be invested in and upgraded.Footnote 20 But infrastructure also consists of human capital: the investment in those whose careers are devoted to running government. In fact we cannot fix one without the assistance of the other; indeed, in some cases, the physical and human needs are identical.Footnote 21
These thoughts crystallized during my many commutes between New York and Washington, DC. One involves the need to replace two Hudson rail tunnels that are almost a century old, a project that has been planned for over 40 years.Footnote 22 What has held the project up is not a comedy, but a tragedy, of errors. The problem was almost solved in 2010, when it was presented to Governor Chris Christie by a bipartisan group of New Jersey political leaders who had secured federal funding. But Christie balked, pulling New Jersey's contribution and shifting the state's share to gas tax reductions. The federal match transferred many billions to projects in other states instead. For New Jersey, the physical infrastructure needs remain unaddressed because political officials, very likely over the objections of professionals in state government, permitted expediency to trump long-term planning. The tunnel planning process has now been restarted as some 20 different agencies struggle to move through the endless permit process (and without the federal funds yet appropriated). It is difficult to overstate the devastation to the local, regional, and national economy if one of the old tunnels goes out, as it did temporarily in the aftermath of Hurricane Sandy.Footnote 23
The other infrastructure crisis involves the DC Metro system, which connects to Amtrak at Union Station. Proudly inaugurated 50 years ago by President Johnson, deferred maintenance on the Metro has brought it to the edge of disaster.Footnote 24 Current plans to restore it to full service will require billions of dollars and entail single-tracking and shutting down whole lines for months at a time. The Metro system carries millions of passengers every day, many of whom are federal workers. To adjust, the government must maximize the use of workplace flexibilities (e.g. teleworking) and Congress has even suggested that federal employees be able to use their transit benefits for ride-sharing programs like Uber and Lyft.Footnote 25 It is difficult to understand how government could have reached the point where the Metro system has become a dangerous operation. Certainly, the private sector or most state-regulated public utilities understand the need to plan ahead. Deferred maintenance is a cost that must be accounted for in the budget or rate base. The Metro situation connects the need to rebuild physical infrastructure with the need to overcome deficiencies in human infrastructure. Since most federal employees ride the Metro, their efficiency is reduced whether by delays or alternative work arrangements, making government less effective for a considerable time. This is an outcome that only a public sector cynic could applaud.
The Hoover Dam, author photograph.
How did we get in this predicament? I thought about this while flying by helicopter over the Hoover Dam on the way to the Grand Canyon last summer (and shot the picture below). America built the Hoover Dam, one of the great wonders of the world. There was no political divide on making this investment. It was conceived and completed under a Republican president, Herbert Hoover, in 1931, before the New Deal began. And it was constructed by a consortium of government contractors, led by the Bechtel Group.Footnote 26 Where are the comparable figures to Hoover and FDR who could rebuild this country again? And when we find them, as we must, energetic government professionals will be needed to manage the process. Infrastructure can't be fixed just by passing laws and appropriating moneys, necessary as those acts of Congress are. To manage the process effectively, we have to invest in human resources as well. Bureaucratic human capital is needed for several reasons. First, infrastructure investment requires contracting with firms in the private sector to do the work. This process calls for professional officials at all levels of government. Without them, billions will be lost on fraud, waste, and abuse in government contracting, and projects will be unnecessarily delayed. The value of competence in government, therefore, is measurable and demonstrable. But the second reason we need to invest in bureaucratic human capital is that, more broadly, everything government does should be done well. QED.
D. This is Personal
In Outsourcing Sovereignty, the research design was largely created through case and statutory analysis of legal norms and dictates, internet and library searches – usual tools of administrative law and regulation scholarship. But this time around, that academic perspective has been supplemented with an observer dimension. For five and a half years I served as a federal agency head – the Chairman of the Administrative Conference of the United States (ACUS) – a perch from which to view government from the inside. ACUS was restarted (having been defunded for 15 years) when I was confirmed by the Senate in April 2010.Footnote 27 “Standing up” an agency is an experience that makes one realize how complicated and often frustrating government work can be.Footnote 28 ACUS is an agency notably concerned with legal questions, especially those emanating from the Administrative Procedure Act (APA). But the revived Conference also looked at public management issues like ethical rules about government contracting, efficiency standards set by the Government Results and Performance Modernization Act, and how to do retrospective rulemaking. ACUS recommendations on these subjects are discussed in later chapters.
President Obama called ACUS a “public–private partnership designed to make government work better,” because our 101 members include officials representing many agencies and private citizens (public members) who brought enormous experience, having served in every administration since Lyndon Johnson was President.Footnote 29 So we were able to leverage the private sector experience as well as the public sector. An ideal mix. This remarkable collection of astute government officials and alumni taught me a lot about government professionalism. In addition, I was granted access to numerous agency officials, White House staff, and congressional leaders who taught me some of the techniques and realities of administration that often do not get discussed publicly. It was these professionals, exhibiting the energy Alexander Hamilton required for good government to happen, who made me understand the need to write this book once I left government.
E. The Administrative Law and Policy Divide
Administrative law is a venerable field of study,Footnote 30 but it is too limited a frame from which to view the practice of government. Of more salience are fields like public policy and public administration, management disciplines with different starting points.Footnote 31 Public policy relies heavily on economics and related disciplines (with law as one) to critique administration. Public administration, while less theoretical, better focuses on how administrators act. Obviously, these disciplines are connected. As Richard Keevey notes, “administration breathes life into policy.”Footnote 32 This experience has made me appreciate both public policy (grounded in cost–benefit analysis) and public administration (grounded in management).Footnote 33 One of public administration's founders was Louis Brownlow,Footnote 34 one of the great figures of the New Deal. The famous Brownlow Report submitted to President RooseveltFootnote 35 is often referred to by administrative lawyers today. At that time, the big players in government management at all levels grew out of the public administration field and they even questioned the role of lawyers in public management.Footnote 36 But the lawyers are hard to contain; they came and multiplied. During the New Deal, top university law school graduates were eager to work in Washington. Brought to Washington by mentors like Felix Frankfurter and Jerome Frank, they populated agencies like the Agricultural Adjustment Administration and the National Labor Relations Board and litigated major cases.Footnote 37
The New Deal regulatory enthusiasm that motivated the field of public administration waned during the Eisenhower years of the 1950sFootnote 38 but was reignited with John Kennedy's famous inaugural address to his fellow Americans: “ask not what your country can do for you – ask what you can do for your country.” These words renewed public service commitments to government and led to initiatives like the Peace Corps. They also triggered a gift to Princeton University that provides a relevant metaphor for the present divide between the goals of public administration and public policy. In 1961, Charles Robertson (a Princeton graduate) and his wife Marie, inspired by Kennedy's words, made a $35 million gift to Princeton's Woodrow Wilson School for Public Policy and International Affairs for the purpose of sending young graduates into the Foreign Service and other government agencies.Footnote 39 Over the decades, the endowment grew to over $850 million, but the cause it was to support – sending top graduates into government – waned. Much of the money was used to fund an outstanding economics department with theoretical brilliance but little interest in government service.Footnote 40
The inability of Princeton's Woodrow Wilson School to produce graduates who go into the public sector is mirrored in other top public policy programs like Harvard's Kennedy School where the majority of students go into the private sector.Footnote 41 Ironically, as Bill Moyers has noted,Footnote 42 the training received at public policy schools often lands graduates with jobs at consulting firms, who contract their services to government agencies, rather than having government hire them directly. To reverse this relationship has been the goal of the Volcker Alliance (led by Tom Ross) and Paul Volcker himself, who serves as the ultimate model of a government professional.
All of this suggests that there are many obstacles to getting the same degree of talent to serve in government that was possible in the past. The private sector scoops up bright young lawyers and pays them well. Investment banking houses pay even better than law firms. But, while the New Deal talent flow is not likely to return, there are still attractions to government service. Paul Volcker, who has long fought for better talent in government, continues to press public policy schools, including his own Woodrow Wilson School, to do a better job. And my experience suggests that graduates from law, public policy and public administration schools are still eager to get into government. They can even be dislodged from law firms and are willing to take lower salaries (once their loans are paid off). The demand for public service can be tapped effectively, as it was at my agency, but more effort is required. Working for consulting firms is not the answer.
F. The New Fourth Branch?
As noted in Outsourcing Sovereignty, contractors have been labeled the “Fourth Branch of Government.”Footnote 43 For administrative lawyers, that phrase is confusing. It originally derived from Louis Brownlow's report to FDR, which applied the term to independent agencies the President was trying to rein in.Footnote 44 That it now refers not to government agencies insulated from Presidential control, but to those outside government hired to serve agencies, is quite ironic. It takes the mythical Fourth Branch idea to a whole new dimension. How is it now possible to declare those employed to serve a branch of government as a branch of government themselves? A rhetorical question, perhaps, but one that needs careful consideration.
Contractors have become forceful players at all levels of government. And this is true not just at the federal level. State and local governments, where the bulk of government officials work, are increasingly turning to contractors to perform, and even oversee, critical public services.Footnote 45 Chapter 5 shows the problem of quality government in the states is driven by both contractor and professionalism issues. Many states have seen a drop in experienced agency personnel due to two factors. The first is that the loss of experienced workers is accelerating due to baby boomer retirements.Footnote 46 The second is the rise of the “at will” public employment movement that makes experienced state workers vulnerable to replacement when administrations change. Chapter 4 discusses competence and professionalism issues that must be corrected for states to operate programs effectively. The temptation to use contractors is highest when there is a lack of confidence in the professionals running government. Sometimes this is seen in the use of outside overseers to replace appointed or elected officials (this is in effect a variation on the contractor theme) in cities like Flint or Detroit. Much like the federal government, states have moved away from career officials in management positions and undermined professionalism in government.
Ultimately, the power of contractors to assist in achieving government ends, either well or poorly, derives from broad skepticism about government capacity and the notion that government is “broken.” This has profound consequences for energetic and professional government. Francis Fukuyama warns that “the belief that government is unfixable will draw us into an equilibrium where poor quality government becomes a self-fulfilling prophesy.”Footnote 47 When professionalism is not seen as an essential condition for well executed government, the ability to control contractors is lost. The problem is not using contractors to assist government officials; the contractor “problem” comes into play when they displace, or act without adequate oversight from, government professionals – in effect, when they become a branch of their own.
The Connection between Contractors and Civil Service Reform
At the federal level, the role of contractors has grown with minimal recognition or resistance. One task this book assumes is to understand why that should be. There are several likely reasons, political influence among them, but one is particularly uncomfortable: perhaps government officials believe contractors are the lesser of two evils, the first evil being the civil service itself. In my experience, the level of frustration among agency heads over the inability to hire or fire civil servants is almost palpable. On the hiring side, the civil service system puts obstacles in the way of efficient employment. On the firing side, the obstacles discourage effective management. Just consider the congressional testimony of Jonathan Jarvis, Director of the National Park Service (NPS), responding to his agency's Inspector General's report on sexual harassment by employees in the Grand Canyon region. He begged Congress for more firing authority,Footnote 48 in the course of testimony that led some members to call for his resignation.Footnote 49 Civil service reform is discussed in Chapter 8. If it is correct that there is a connection between the use of contractors and the weakness of the civil service system then the latter must be fixed before the former can be effectively controlled. Until then we will see the federal government using contractors in circumstances that are head-scratchers.Footnote 50
Put yourself in the shoes of a newly confirmed agency head. You come into government with a limited time horizon after a lengthy confirmation process.Footnote 51 You have a high-achieving background and want to make a difference. Each day in office counts and you soon realize that the rest of government does not move at the pace you set. You want to hire and appoint assistants who share your desire to achieve, but bringing them on is no easy matter. The time necessary to hire staff is complicated by Office of Personnel Management (OPM) regulations and protocols; the security clearance process alone can take about a year. So you face something of a Hobson's choice: pursue new government employees, whom you have difficulty hiring, or engage contractors who are readily available (and come with security clearances). Not only is hiring easier, but firing is also, since contractors are replaceable if they don't work out. When this choice is available, the cost implications are minimized and you move forward. There are even contractor “body shops” that let you name the qualifications or even the individuals you seek (which is not quite kosher).Footnote 52 When I tried this scenario out on savvy government officials (and contractors), I got many knowing nods.
This was not, however, my experience at ACUS. One of the privileges of restarting an agency is that you are able to hire all the employees. By using workarounds and taking advantage of the “excepted” service (more on that later), I was able to bring into government a highly motivated group. Many of them are still at ACUS or working effectively in other agencies. If they could be multiplied throughout government, professionalism would surely be heightened. So the techniques for improving the hiring process short of statutory reform are worth noting. This is what Chapter 8 discusses.
G. When Did Contractors Become So Attractive?
The use of contractors grew significantly during the Reagan Administration, for policy and political reasons. In many ways, President Reagan came into office looking for a fight with government employees. In his first inaugural address he memorably declared: “government is not the solution to our problem; government is the problem.”Footnote 53 Suspecting the civil service was full of entrenched Democrats, or at least determined obstructionists, President Reagan sought to limit its influence.Footnote 54 “Every once in a while,” he said, “somebody has to get the bureaucracy by the neck and shake it loose and say, stop doing what you're doing.”Footnote 55 He was given a political gift when the air traffic controllers went on strike illegally. By refusing to back down and removing 11,000 controllers,Footnote 56 Reagan built public support for his fight against the bureaucracy. He appointed confrontational agency heads (like Anne Gorsuch at EPA) who “acted like an invading army who did not trust their new subjects.”Footnote 57 While the negative views of bureaucracy he engendered continue to this day, in fact many civil servants during the Reagan years were working effectively and responsibly.Footnote 58 And even his appointees mellowed. William Ruckelshaus replaced Anne Gorsuch at EPA and rallied the career civil servants. The Reagan Administration contained iconoclasts who had experience as government contractors and were equipped to challenge complacency and incompetence in the career ranks. For example, George Schultz, who became a four-time Cabinet Secretary, had been President of Bechtel Group.Footnote 59 Bechtel is one of the most famous government contractors.Footnote 60 As earlier noted, it led the coalition that built the Hoover Dam. Bechtel also sent Cap Weinberger to the Reagan Administration, another business-oriented leader of strong will, who often clashed with Schultz.Footnote 61 But they both believed in getting things done, and had academic as well as business credentials to back them up.Footnote 62 Schultz claims he didn't care whether his appointees were Republicans or Democrats, so long as they achieved.Footnote 63 In this environment, contractors were viewed as problem-solvers who could deliver superior results and shake up a recalcitrant bureaucracy. I tested my thinking on the influence of contractors during the Reagan years in an interview with George Schultz.Footnote 64 To my surprise (satisfaction, really), Schultz was in favor of career staff over contractors “so long as they were A players.”Footnote 65 He worked closely with career officials while preparing the federal budget at the Office of Management and Budget (OMB). As Secretary of State, he favored the use of marines over military contractors at embassies. So while contractors grew during the Reagan presidency, and Bechtel remained a big player,Footnote 66 Schultz, for one, agreed that developing a quality civil service was “right on the mark.” Still, Bechtel and other contractorsFootnote 67 were expert practitioners of the revolving door process discussed in Chapter 4. And many of them surely viewed themselves as problem-solvers and bureaucracy as the problem to be solved.
Another critical event during the Reagan period was the creation of Americans for Tax Reform (ATR) by Grover Norquist. In fact, Norquist says he established this group at the behest of President Reagan.Footnote 68 Today 95 percent of Republicans in Congress have subscribed to Norquist's no new taxes pledge along with numerous governors and state legislators. His famous statement “I just want to shrink [government] down to the size where we can drown it in the bathtub” inspired the anti-bureaucracy movement. The “starve the beast” strategy animates the sequester solution in Congress that freezes discretionary spending and cripples agencies’ abilities to manage programs effectively.Footnote 69 In this setting, the use of contractors to provide short-term fixes becomes the only way to get government to function, even if they cost more than their civil service counterparts.
But Reagan was not the only recent president to question the bureaucracy. The notion of a bloated government unable to function effectively crossed party lines when the Clinton years began. By declaring “the era of big government is over,”Footnote 70 President Clinton struck a further blow against bureaucracy. Equating the size of government with inefficiency, Clinton effectively encouraged the use of private contractors, since government employee full-time employee head counts (or FTEs) became the focus of attention.Footnote 71 As a result, the number of government employees, which has been steady since the 1960s at 2 million, went down by 351,000 during the Clinton years, something that had not even happened under Reagan.Footnote 72 Reducing government head count only added to the demand for contractors, who were called upon to fill the gap, and their numbers grew to untold proportions.Footnote 73 John DiIulio calls this “proxy administered government” which Chapter 3 takes up in more detail.
Another point about the Clinton years bears noting. To his credit, President Clinton appointed Vice President Gore to “reinvent government.”Footnote 74 Seizing on a popular idea that “government should steer, not row,”Footnote 75 the reinventing movement sought to reduce the size of government by rethinking how it operates. Much of continuing value was learned from this undertaking,Footnote 76 but it again implied the need for contractors, since the “steerers” needed “rowers.” In many situations, the rowers were either private contractors or state or local government employees, or both.Footnote 77
H. What Are Inherently Governmental Functions?
The dichotomy between rowers and steerers is a useful way to view the contractor situation. Rowers can be either contractors or government employees, and in many cases contractors can compete more effectively for these jobs, especially if their responsibilities are carefully defined and subject to competitive bidding. Since rowers do not exercise leadership roles, they are not exercising “inherent government authority” under applicable law.Footnote 78 It is the steerers this book worries about.Footnote 79 These are the officials that perform inherent government functions, which are defined as activities “so intimately related to the public interest as to mandate performance by government personnel.”Footnote 80 This is hardly a self-explanatory category. The OMB Policy Letter describes the contours of inherently governmental in more detail:
(a) The term includes functions that require either the exercise of discretion in applying Federal Government authority or the making of value judgments in making decisions for the Federal Government, including judgments relating to monetary transactions and entitlements. An inherently governmental function involves, among other things, the interpretation and execution of the laws of the United States so as –
(1) to bind the United States to take or not to take some action by contract, policy, regulation, authorization, order, or otherwise;
(2) to determine, protect, and advance United States economic, political, territorial, property, or other interests by military or diplomatic action, civil or criminal judicial proceedings, contract management, or otherwise;
(3) to significantly affect the life, liberty, or property of private persons;
(4) to commission, appoint, direct, or control officers or employees of the United States; or
(5) to exert ultimate control over the acquisition, use, or disposition of the property, real or personal, tangible or intangible, of the United States, including the collection, control, or disbursement of appropriations and other Federal funds.
(b) The term does not normally include –
(1) gathering information for or providing advice, opinions, recommendations, or ideas to Federal Government officials; or
(2) any function that is primarily ministerial and internal in nature (such as building security, mail operations, operation of cafeterias, housekeeping, facilities operations and maintenance, warehouse operations, motor vehicle fleet management operations, or other routine electrical or mechanical services).Footnote 81
The difference between “providing advice, opinions, and recommendations” and exercising judgment and discretion is a conceptual line that is hard to manage or control. In addition, contractors who provide long-term support may be encroaching on “critical functions” that should be reserved to the agency.
Based on assessments required by the FAIR Act,Footnote 82 about one-third of government employees, some 700,000 civil servants, are reported by agencies to be performing inherent or critical government functions. While that category is larger than the number of professional leaders of most concern here, it does set some parameters, one of which is the number of government officials whose work cannot be outsourced. This means there is a wide field where government employees conceivably could have contractor proxies.Footnote 83 But many contractors go after jobs that fall into the inherently governmental category. Major government consulting firms like McKinsey and Booz Allen do not provide lower-echelon workers to government. They specialize in high-level managers, especially in the national security field. As a result, government by contractors has created a “multisector” workforce, which is analyzed in Chapter 8.
I. Radical Reform in the States: A Neo-Spoils System?
While Outsourcing Sovereignty was directed at the federal level, this book also explores comparable problems at the state and local levels here and in Chapter 5. Deprofessionalization of government is a phenomenon at both the federal and state levels, but for different reasons. The challenge at the federal level is to preserve the role of career officials against the growth of contractors, when the civil service itself remains unreformed. The challenge for the states is to preserve a professional workforce in the face of political movements that are radically changing civil service rules and practices. Twenty-eight states have gone to “at will” public employment,Footnote 84 a decision which ends tenured employment and frees states to hire and fire more liberally. Led initially by Georgia and Florida, the movement has spread to states like Wisconsin where public sector unions have been reined in.Footnote 85 The consequences of the at will movement have yet to be fully understood. On the one hand, freedom to remove underperforming public employees is desirable (and would be welcome at the federal level as well). On the other hand, the remedy may cut too deep, putting effective as well as ineffective state employees at risk. In several states the loss of knowledgeable professionals has had very negative consequences. This is especially true in the states discussed in Chapter 5. In Wisconsin, the “at will” idea led to a revision of the civil service system that has produced what amounts to a statutory scheme for nonprofessional government.
The Wisconsin “Reforms”
Wisconsin has a strong history of progressivism under Governor Robert La Follette and became the third state to enact civil service reform in 1905.Footnote 86 As Chapter 7 discusses, the spoils system was entrenched in state and federal governments. It was Teddy Roosevelt and allies like La Follette who brought the “spoilsmen” down. Now, under Governor Scott Walker, civil service protections that apply to 30,000 public workers have been severely restricted.Footnote 87 The statute Walker signed into law replaces merit-based competitive examinations with “competitive procedures,” a resume-based system managed by the Division of Personnel Management, an executive agency.Footnote 88 The Act also reduces reinstatement and restoration rights for existing employees and lengthens probation periods for those in supervision and management positions from one to two years. It expedites grievance procedures for those subject to removal and gives the governor's administrative office a bonus pool to distribute to effective workers. Not surprisingly, the law has had a negative effect on Wisconsin's public sector unions,Footnote 89 long Governor Walker's bête noire. But whether the statute brings a newly invigorated civil service or retrogressively permits politics to reenter the appointment system remains to be seen. While a true spoils system may not return, the potential to shift substantial numbers of state employees based on politics makes it possible for a “neo-spoils” system to emerge.Footnote 90
Beyond the politics of the Act, what does it do for professional government? By making it easier to replace established employees and managers, it favors newcomers who can be appointed on largely subjective factors (resume, interviews). This can help agency managers who want to select superior candidates expeditiously, but it also opens the way for politics to reenter the appointment process. If it is assumed that experience can be a good thing and that expertise and institutional memory are necessary things, then jettisoning experienced personnel may not be in the state's long-term interests. The other side of “reinvigorating” the civil service by new appointees is the potential “brain drain” of knowledgeable professionals from state government.
Some aspects of the Act are positive: longer probationary periods and shorter removal hearing times are something the federal system could benefit from. But giving Wisconsin's Governor's Office clout in hiring, replacing, and rewarding public workers, creates a power that in the wrong hands could undermine the fair and objective hearing principles of the civil service system. Absent evidence that the spoils system has returned, state radical reform efforts will continue to expand.Footnote 91 These efforts undermine the cause of professional government and Walker is vying to bring them to the Trump Administration. The traditional trade-off between lower salaries (at least at the management level) for job security and tenure protections has been broken. Unless salaries rise, which is unlikely to happen except for contractors, the radical-reform states stand to lose valuable experience and institutional knowledge, while gaining some rejuvenation from newcomers. But who is to teach them how to run government?
J. Professional Government Can Be Innovative and Collaborative
Alexander Hamilton's phrase about a “government ill executed” is a powerful reminder that from the beginning of our Republic there were those who understood the consequences of bureaucratic ineptitude. We have come a long way since that time to depoliticize and professionalize government. And more change based on innovative ideas is needed. Certainly on the civil service front, rules and regulations that were once protective have become rigid and even paralyzing. So we have a baby-in-the-bathwater problem. How can we innovate without sacrificing a civil service system that, for all its faults, is the envy of the world?Footnote 92 Meritocratic government was our first innovation. Collaborative government may be our next.
1 Public–Private Collaborations
Given the demands on government and the budgetary restrictions at the federal and state levels, we must be open to new ways of delivering public services that involve the private sector as well. This collaboration does not eliminate the need for professional government, in some ways it requires more of it. Two examples show the opportunities and pitfalls of collaboration. Since the 2008 financial crisis, private equity has taken over much of the ambulance services in America. At a time when local governments are strapped for cash, this has been a welcome infusion of capital. But it is still a public service that must be managed. Private equity is interested in returns on investment and aggressively pursues individuals for payment of ambulance services without full awareness of the consequences.Footnote 93 Public ambulance services are more attuned to these vulnerable situations and write off charges where appropriate. Public managers must make these decisions for private services to work properly.
At the federal level, corporate donors have invested in the National Parks which have a $12 billion backlog in maintenance.Footnote 94 With 307 million visitors annually, the National Parks Service, which celebrated its 100th anniversary in 2016, is stretched too thin to manage effectively. But do we want Yosemite brought to you by Apple? While “a little commercialism can help,”Footnote 95 a lot of it might offend public sensibilities. These are matters of judgment and degree that professionals need to manage for this exercise in collaborative governance to work effectively.
John Donahue and Richard Zeckhauser, in their recent book Collaborative Governance,Footnote 96 provide other federal, state, and local examples where smart government involves the private sector to achieve public ends. The authors see collaborative governance as a “force multiplier” to achieve greater public goods. They identify the key ingredient as one of “shared discretion” between the two sectors. Since the exercise of discretion is the hallmark of inherent government functions, government professionals need to do the sharing. The use of social impact bonds is another way to fund government services without adding to the public budget.Footnote 97 But, again, to make this form of financing work, the government must define the expectations and returns properly.Footnote 98
2 The Need for Capacity
Whether it is done collaboratively or not, the capacity of government to provide and deliver public services must be bolstered. Jacob Hacker and Paul Pierson argue in American Amnesia that we have forgotten the universal benefits of a robust public infrastructure and that “we need to increase the capacity of government to act.”Footnote 99 And June Sekena reminds us that the public economy – the producer of public goods – is in crisis.Footnote 100 Since government acts through agents, the public goods deficiency needs both human and physical infrastructure investment.
Increasing government capacity by involving the private sector in a collaborative way also has political advantages. Motivating the private sector to participate in (and profit from) government investment may be one way to counter the nihilistic view of those like Grover Norquist who want to shrink government to the vanishing point. That view is far from our conservative traditions. Remember it was Herbert Hoover who mustered the government capacity to build the Hoover Dam through the work of contractors. Our need to produce infrastructure accomplishments today is less grand by comparison. Fixing bridges, roads, tunnels, and updating technology are manageable investments with a high potential return to the economy. Investment in infrastructure like transportation networks only government can do effectively because of coordination problems that stymie the private sector acting alone.Footnote 101 When it comes to human infrastructure – professional government – the investment is much smaller by comparison, but the returns can be equally positive.
What is needed is not more money for government but more government for the money. Shrinking a federal civil service that has been flat for 50 years and replacing it with contractors will neither save money nor create competent government. Investing in the professional workforce creates value on several levels. One is to get better government for the money. Another is to help restore public trust in government, which creates its own value chain.
K. The Connection between Trust in Government and Professionalism
Most surveys show that trust in government is at an all-time low. At the end of 2015, Gallup reported that only 19 percent of Americans expressed trust in government.Footnote 102 And Jim Clifton, the CEO of Gallup, stated that “a staggering 75 percent of the American public believe corruption is ‘widespread’ in the U.S. government, not incompetence, but corruption. This alarming figure has held steady since 2010.”Footnote 103 So something is surely wrong with how government is perceived, whether what is measured is trust, corruption, or competence.
But to understand the relationship between professionalism and trust, we must know what aspects of government are of the most concern to the public. Polls look separately at the courts, Congress, and the President; but the bureaucracy, within the Executive branch, doesn't often receive separate scrutiny.Footnote 104 It is necessary, therefore, to drill down in the polls to find out how bureaucracy is doing in the public's view.
Clearly corruption and Congress go together. Gallup surveyed for confidence in institutions from 2006 to 2016, and among the 14 institutions Americans lost the most confidence in were banks, organized religion, news media, and Congress, with Congress dead last at a 9 percent confidence level.Footnote 105 It is not hard to see why Congress has fallen so far. Consider that 85 percent of Americans call it corruption when financial supporters have more access and influence with members of Congress than average Americans and 90 percent of Americans believe it is corruption when a member does a business or individual a favor because they received financial support.Footnote 106 You might call this the Citizens United “dividend.”
The Pew Research Center has polled trust in government by analyzing specific government activities and agencies.Footnote 107 The following chart shows that the public is remarkably discerning in evaluating agency performance. Thirteen agencies on this list are viewed more favorably than the US Supreme Court (i.e. above 50 percent), including controversial ones like the CIA and EPA. And even the Internal Revenue Service (IRS) and Veterans Affairs (at 42 and 39 percent)Footnote 108 rank higher than Congress (at 27 percent). These agencies are among those with whom the public has the most contact. In the case of the Postal Service (USPS), contact is daily, and National Parks receive 307 million visitors annually. In these cases familiarity breeds respect, not contempt.
“Ratings of Federal Agencies, Congress and the Supreme Court” Pew Research Center, Washington, DC (November, 2015) www.people-press.org/2015/11/23/4-ratings-of-federa;-agencies-conmgress-and-the-supreme-court/agencies-1/.
So while agency officials are swept up in the public's general lack of trust in government, they are not measured as severely as Congress on Gallup's corruption scale and they do quite well on Pew's favorability scale. As one who has lived among them, it is not hard to see why agency officials are rarely corrupt. The Rules of Ethics require detailed and burdensome financial disclosures, for example.Footnote 109 The annual reporting requirements for Presidential Appointed Senate Confirmed (PAS) officials on stock holdings require professional assistance to complete and receive extensive review within and outside the agency. On a much broader scale, contact with lobbyists is less overt in the agency setting (although it exists) and there is no equivalent in rulemaking to drafting proposed legislation for members of Congress, often with contributions expected. Rulemaking is not the Wild West in this regard, although outside contact happens before the Notice of Proposed Rulemaking (NPRM) process begins and the Office of Information and Regulatory Affairs (OIRA) review process invites lobbyists to discuss proposed rules.
At the state level there are much fewer ethical controls of agency officials or politicians. The impact of Governor McDonnell's case,Footnote 110 where the Supreme Court defined an “official act” narrowly to exclude meetings and receptions where favors are given (e.g. Rolexes) exposes state politicians to lobbying pressure that may call for stricter laws in the future.Footnote 111
Thus, agency officials are not at high risk of corruption. When it comes to competence, however, it is another story. Lack of adequate staffing at crucial agencies like Social Security and IRS means phone calls go unanswered, regional offices are closed, and response times expand to an unconscionable degree.Footnote 112 With retirements accelerating and replacements rationed, we may be facing a government performance shortfall and trust in career officials could plummet. Higher professional performance standards would surely help ensure higher trust in the bureaucracy. But for all its faults, the bureaucracy is unlike Congress, which remains the broken branch.Footnote 113
Because Congress has become gridlocked over partisan bickering which Thomas Mann and Norm Ornstein document (and lament), the executive branch has stepped into the vacuum. President Obama left the White House as “one of the most prolific authors of major regulations in presidential history.”Footnote 114 The truth, of course, is that under our system the President is not the “author” of regulations. In fact, it is the bureaucracy that writes and approves regulations under congressional delegations (subject to presidential oversight through the OIRA review process). The executive branch consists of both political and career officials, who engage in professional government. Congress has a big stake in effective bureaucratic performance since its laws are being implemented.
President Trump has issued 20 executive orders in his first ten days, “more than any incoming President in the modern era.”Footnote 115 And Congress has stood by mutely waiting for more to come.Footnote 116 While ahead on ukases, the Trump Administration is behind in appointing sub-Cabinet policy officials to most agencies, who are the professionals expected to run the agencies and carry out his orders. Trump is preparing an executive order to require agencies to plan ways to reorganize government.Footnote 117 Reorganization not only requires professionals to implement, it needs legislation to be implemented. As of now, President Trump is out front of Congress and his bureaucratic capacity.
When one factors in his unprecedented ethics problems,Footnote 118 it is hard to see how the Trump era can do anything but create new lows in the public's view of government and its beleaguered bureaucracy. This does not have to be the case. Even though the President's chief strategist, Steve Bannon, contemplates the “deconstruction of the administrative state,”Footnote 119 the new regime will have to learn to live with it. The bureaucracy does necessary things, and even the Trump Administration will want to do those things well. After all, they own it now.
