Review Congressional Measures to Control the Bureaucracy and Evaluate Their Effectiveness

Learning Objectives

By the end of this section, you will exist able to:

• Explicate the way Congress, the president, bureaucrats, and citizens provide meaningful oversight over the bureaucracies
• Identify the means in which privatization has made bureaucracies both more and less efficient

Every bit our earlier description of the Land Department demonstrates, bureaucracies are incredibly complicated. Understandably, so, the processes of rulemaking and bureaucratic oversight are equally complex. Historically, at to the lowest degree since the end of the spoils system, elected leaders accept struggled to maintain control over their bureaucracies. This challenge arises partly due to the fact that elected leaders tend to have partisan motivations, while bureaucracies are designed to avoid partisanship. While that is not the but caption, elected leaders and citizens accept developed laws and institutions to help rein in bureaucracies that become either too independent, decadent, or both.

Bureaucratic Rulemaking

Once the particulars of implementation accept been spelled out in the legislation authorizing a new program, bureaucracies motion to enact it. When they encounter gray areas, many follow the federal negotiated rulemaking process to propose a solution, that is, detailing how particular new federal polices, regulations, and/or programs volition exist implemented in the agencies. Congress cannot mayhap legislate on that level of detail, so the experts in the bureaucracy practise so.

Negotiated rulemaking is a relatively recently developed bureaucratic device that emerged from the criticisms of bureaucratic inefficiencies in the 1970s, 1980s, and 1990s.^[ane] Before it was adopted, bureaucracies used a process called notice-and-comment rulemaking. This practise required that agencies attempting to adopt rules publish their proposal in the Federal Register, the official publication for all federal rules and proposed rules. Past publishing the proposal, the bureaucracy was fulfilling its obligation to let the public time to annotate. But rather than encouraging the productive interchange of ideas, the comment period had the effect of creating an adversarial environment in which unlike groups tended to make extreme arguments for rules that would support their interests. As a consequence, authoritative rulemaking became as well lengthy, too contentious, and too likely to provoke litigation in the courts.

The Federal Annals was one time bachelor simply in print. Now, however, it is available online and is far easier to navigate and use. Have a expect at all the of import information the government's periodical posts online.

Reformers argued that these inefficiencies needed to exist corrected. They proposed the negotiated rulemaking process, often referred to as regulatory negotiation, or "reg-neg" for brusque. This process was codified in the Negotiated Rulemaking Human actions of 1990 and 1996, which encouraged agencies to utilize negotiated rulemaking procedures. While negotiated rulemaking is required in only a scattering of agencies and enough withal use the traditional process, others take recognized the potential of the new procedure and have adopted it.

In negotiated rulemaking, neutral advisors known as convenors put together a committee of those who accept vested interests in the proposed rules. The convenors then prepare about devising procedures for reaching a consensus on the proposed rules. The committee uses these procedures to govern the process through which the commission members talk over the various claim and demerits of the proposals. With the help of neutral mediators, the committee eventually reaches a full general consensus on the rules.

Government Bureaucratic Oversight

In this photograph, Lois Lerner, the one-time director of the Internal Revenue Service'due south Exempt Organizations Unit, sits earlier an oversight committee in Congress post-obit a 2013 investigation. On the advice of her attorney, Lerner invoked her Fifth Amendment correct not to incriminate herself and refused to answer questions.

The ability for bureaucracies to develop their ain rules and in many means control their own budgets has often been a matter of great business concern for elected leaders. As a result, elected leaders have employed a number of strategies and devices to command public administrators in the bureaucracy.

Congress is particularly empowered to apply oversight of the federal hierarchy because of its power to command funding and approve presidential appointments. The various bureaucratic agencies submit annual summaries of their activities and budgets for the following twelvemonth, and committees and subcommittees in both chambers regularly concord hearings to question the leaders of the various bureaucracies. These hearings are often tame, applied, fact-finding missions. Occasionally, still, when a particular bureaucracy has committed or contributed to a blunder of some magnitude, the hearings can become quite animated and testy.

This occurred in 2013 following the realization by Congress that the IRS had selected for actress scrutiny certain groups that had applied for tax-exempt status. While the error could accept been a mere mistake or have resulted from any number of reasons, many in Congress became enraged at the thought that the IRS might purposely use its ability to inconvenience citizens and their groups.^[ii] The Firm directed its Committee on Oversight and Government Reform to launch an investigation into the IRS, during which time it interviewed and publicly scrutinized a number of high-ranking ceremonious servants.

The mission of the U.S. House Oversight Committee is to "ensure the efficiency, effectiveness, and accountability of the federal government and all its agencies." The committee is an of import congressional bank check on the power of the bureaucracy. Visit the website for more than information nearly the U.S. Firm Oversight Committee.

Perhaps Congress's most powerful oversight tool is the Regime Accountability Office (GAO).^[iii] The GAO is an bureau that provides Congress, its committees, and the heads of the executive agencies with auditing, evaluation, and investigative services. It is designed to operate in a fact-based and nonpartisan fashion to deliver important oversight data where and when it is needed. The GAO's role is to produce reports, mostly at the insistence of Congress. In the approximately nine hundred reports it completes per year, the GAO sends Congress information nigh budgetary issues for everything from pedagogy, health care, and housing to defence force, homeland security, and natural resource management.^[4] Since it is an office inside the federal bureaucracy, the GAO also supplies Congress with its own annual performance and accountability report. This report details the achievements and remaining weaknesses in the actions of the GAO for any given yr.

Apart from Congress, the president as well executes oversight over the extensive federal bureaucracy through a number of dissimilar avenues. Most directly, the president controls the bureaucracies past appointing the heads of the fifteen cabinet departments and of many independent executive agencies, such equally the CIA, the EPA, and the Federal Agency of Investigation. These cabinet and agency appointments go through the Senate for confirmation.

The other of import channel through which the office of the president conducts oversight over the federal bureaucracy is the Office of Management and Budget (OMB).^[five] The primary responsibility of the OMB is to produce the president's annual budget for the country. With this huge responsibility, however, comes a number of other responsibilities. These include reporting to the president on the deportment of the various executive departments and agencies in the federal regime, overseeing the performance levels of the bureaucracies, analogous and reviewing federal regulations for the president, and delivering executive orders and presidential directives to the various agency heads.

Controversy and the CFPB: Overseeing a Agency Whose Job Is Oversight

During the 1990s, the 2 political parties in the United States had largely come up together over the issue of the federal bureaucracy. While differences remained, a great number of bipartisan attempts to roll back the size of government took place during the Clinton administration. This shared effort began to autumn apart during the presidency of Republican George W. Bush-league, who made repeated attempts to apply contracting and privatization to reduce the size of the federal bureaucracy more than Democrats were willing to accept.

This growing division was further compounded past Great Recession that began in 2007. For many on the left side of the political spectrum, the onset of the recession reflected a failure of weakened federal bureaucracies to properly regulate the fiscal markets. To those on the right, it merely reinforced the conventionalities that authorities bureaucracies are inherently inefficient. Over the next few years, as the government attempted to grapple with the consequences of the recession, these divisions just grew.

The debate over one particular bureaucratic response to the recession provides important insight into these divisions. The bureau in question is the Consumer Financial Protection Agency (CFPB), an agency created in 2011 specifically to oversee sure financial industries that had proven themselves to be peculiarly prone to abusive practices, such every bit sub-prime mortgage lenders and payday lenders. To many in the Republican Party, this new bureau was merely some other instance of growing the federal bureaucracy to accept intendance of issues caused by an inefficient government. To many in the Democratic Party, the new agency was an important cop on a notably chaotic street.

Divisions over this bureau were so bitter that Republicans refused for a time to allow the Senate to consider confirming anyone to head the new bureau. Many wanted the agency either scrapped or headed by a committee that would have to generate consensus in social club to human action. They attempted to cut the agency's budget and erected mountains of red tape designed to slow the CFPB'due south achievement of its goals. During the elevation of the recession, many Democrats saw these tactics every bit a particularly destructive grade of obstruction while the country reeled from the financial collapse.

In this photo, Elizabeth Warren, then a law school professor who proposed the CFPB, stands with President Obama and Richard Cordray, the president'southward pick to serve as director of the new agency. Warren is currently a U.South. senator from Massachusetts.

As the recession recedes into the past, however, the political heat the CFPB once generated has steadily declined. Republicans still push to reduce the ability of the agency and Democrats in general however support it, but lack of urgency has pushed these differences into the groundwork. Indeed, there may be a growing consensus between the two parties that the agency should be more tightly controlled. In the spring of 2016, equally the agency was announcing new rules to assistance further restrict the predatory practices of payday lenders, a handful of Autonomous members of Congress, including the party chair, joined Republicans to draft legislation to forbid the CFPB from further regulating lenders. This joint effort may be an anomaly. But it may as well indicate the start of a return to more than bipartisan interpretation of bureaucratic institutions.

What exercise these divisions suggest well-nigh the manner Congress exercises oversight over the federal bureaucracy? Do you think this oversight is an effective style to command a bureaucracy as large and circuitous as the U.S. federal bureaucracy? Why or why not?

Citizen Bureaucratic Oversight

A number of laws passed in the decades between the stop of the 2d Earth War and the late 1970s take created a framework through which citizens tin can exercise their own bureaucratic oversight. The two most important laws are the Liberty of Information Act of 1966 and the Government in Sunshine Act of 1976.^[six] Similar many of the mod bureaucratic reforms in the U.s., both emerged during a period of heightened skepticism about government activities.

The kickoff, the Freedom of Information Act of 1966 (FOIA), emerged in the early years of the Johnson presidency as the United States was conducting clandestine Cold War missions around the world, the U.S. war machine was becoming increasingly mired in the disharmonize in Vietnam, and questions were still swirling around the Kennedy assassination. FOIA provides journalists and the general public the right to asking records from various federal agencies. These agencies are required past law to release that data unless it qualifies for 1 of nine exemptions. These exceptions cite sensitive issues related to national security or foreign policy, internal personnel rules, trade secrets, violations of personnel privacy rights, law enforcement information, and oil well data. FOIA besides compels agencies to postal service some types of data for the public regularly without being requested.

As this CIA certificate shows, even information released under FOIA tin can be greatly restricted by the agencies releasing it. The black marks cover information the CIA deemed particularly sensitive.

In fiscal year 2015, the authorities received 713,168 FOIA requests, with just iii departments—Defense, Homeland Security, and Justice—accounting for more half those queries.^[7] The Centre for Effective Government analyzed the fifteen federal agencies that receive the nearly FOIA requests and ended that they generally struggle to implement public disclosure rules. In its latest report, published in 2015 and using 2012 and 2013 data (the most recent available), ten of the fifteen did non earn satisfactory overall grades, scoring less than seventy of a possible i hundred points.^[8]

The Regime in Sunshine Act of 1976 is different from FOIA in that it requires all multi-headed federal agencies to concur their meetings in a public forum on a regular basis. The name "Sunshine Act" is derived from the onetime adage that "sunlight is the best disinfectant"—the implication being that governmental and bureaucratic abuse thrive in secrecy but compress when exposed to the light of public scrutiny. The act defines a coming together every bit whatsoever gathering of agency members in person or past telephone, whether in a formal or informal way.

Similar FOIA, the Sunshine Act allows for exceptions. These include meetings where classified information is discussed, proprietary data has been submitted for review, employee privacy matters are discussed, criminal matters are brought up, and information would prove financially harmful to companies were it released. Citizens and citizen groups can too follow rulemaking and bear witness at hearings held around the state on proposed rules. The rulemaking procedure and the efforts by federal agencies to keep open records and solicit public input on important changes are examples of responsive bureaucracy.

Authorities Privatization

A more than farthermost, and in many instances, more than controversial solution to the perceived and real inefficiencies in the bureaucracy is privatization. In the United States, largely because it was born during the Enlightenment and has a long history of championing gratuitous-market principles, the urge to privatize government services has never been as potent as it is in many other countries. At that place are simply far fewer regime-run services. Nevertheless, the federal government has used forms of privatization and contracting throughout its history. But following the growth of bureaucracy and regime services during President Johnson'south Great Order in the mid-1960s, a peculiarly song movement began calling for a rollback of authorities services.

This movement grew stronger in the 1970s and 1980s as politicians, particularly on the right, declared that air needed to be permit out of the bloated federal authorities. In the 1990s, as President Beak Clinton and specially his vice president, Al Gore, worked to aggressively shrink the federal bureaucracy, privatization came to be embraced across the political spectrum.^[9] The rhetoric of privatization—that market competition would stimulate innovation and efficiency—sounded similar the proper remedy to many people and nevertheless does. But to many others, talk of privatization is worrying. They contend that sure government functions are simply not possible to replicate in a private context.

When those in government speak of privatization, they are often referring to ane of a host of different models that contain the market place forces of the private sector into the office of government to varying degrees.^[10] These include using contractors to supply goods and/or services, distributing government vouchers with which citizens can purchase formerly government-controlled services on the individual market, supplying regime grants to private organizations to administer government programs, collaborating with a individual entity to finance a government program, and fifty-fifty fully divesting the authorities of a function and directly giving it to the individual sector. Nosotros will await at three of these types of privatization shortly.

Following his reelection in 2004, President George W. Bush attempted to push a proposal to partially privatize Social Security. The proposal did not go far to either the House or Senate flooring for a vote.

Divestiture, or full privatization, occurs when government services are transferred, usually through sale, from government bureaucratic control into an entirely market place-based, private environment. At the federal level this form of privatization is very rare, although information technology does occur. Consider the Student Loan Marketing Clan, often referred to by its nickname, Sallie Mae. When it was created in 1973, it was designed to be a government entity for processing federal student education loans. Over time, however, it gradually moved further from its original purpose and became increasingly individual. Sallie Mae reached full privatization in 2004.^[11] Another example is the U.S. Investigations Services, Inc., which was once the investigative branch of the Office of Personnel Management (OPM) until it was privatized in the 1990s. At the state level, however, the privatization of roads, public utilities, bridges, schools, and even prisons has go increasingly common as state and municipal government look for ways to reduce the cost of government.

Possibly the best-known form of privatization is the process of issuing government contracts to private companies in order for them to provide necessary services. This process grew to prominence during President Bill Clinton'due south National Partnership for Reinventing Authorities initiative, intended to streamline the authorities bureaucracy. Under President George Westward. Bush, the use of contracting out federal services reached new heights. During the Iraq War, for example, large corporations like Kellogg Brown & Root, owned past Haliburton at the time, signed regime contracts to perform a number of services once washed by the military, such as military base of operations construction, food grooming, and even laundry services. Past 2006, reliance on contracting to run the state of war was and so great that contractors outnumbered soldiers. Such contracting has faced quite a bit of criticism for both its high cost and its potential for corruption and inefficiencies.^[12] Even so, it has become so routine that it is unlikely to slow any time soon.

Third-party financing is a far more than circuitous form of privatization than divestiture or contracting. Here the federal government signs an agreement with a private entity so the ii can form a special-purpose vehicle to accept ownership of the object being financed. The special-purpose vehicle is empowered to reach out to individual financial markets to infringe coin. This type of privatization is typically used to finance government office space, armed forces base housing, and other large infrastructure projects. Departments like the Congressional Budget Function have oft criticized this form of privatization equally specially inefficient and costly for the government.

Ane the well-nigh the most important forms of bureaucratic oversight comes from inside the bureaucracy itself. Those inside are in the best position to recognize and report on misconduct. But bureaucracies tend to jealously baby-sit their reputations and are generally resistant to criticism from without and from within. This tin create quite a problem for insiders who recognize and desire to report mismanagement and even criminal behavior. The personal cost of doing the correct thing tin exist prohibitive.^[thirteen] For a typical bureaucrat faced with the pick of reporting corruption and risking possible termination or turning the other way and standing to earn a living, the choice is sometimes piece of cake.

Under heightened skepticism due to government inefficiency and outright abuse in the 1970s, government officials began looking for solutions. When Congress drafted the Civil Service Reform Act of 1978, information technology specifically included rights for federal whistleblower south, those who publicize misdeeds committed inside a bureaucracy or other organization, and set up protection from reprisals. The human activity's Merit Systems Protection Lath is a quasi-juridical institutional board headed by three members appointed past the president and confirmed by the Senate that hears complaints, conducts investigations into possible abuses, and institutes protections for bureaucrats who speak out.^[14] Over time, Congress and the president have strengthened these protections with additional acts. These include the Whistleblower Protection Act of 1989 and the Whistleblower Protection Enhancement Human action of 2012, which further compelled federal agencies to protect whistleblowers who reasonably perceive that an institution or the people in the institution are acting inappropriately.

In 2013, Edward Snowden, an unknown reckoner professional working under contract inside the National Security Agency, copied and released to the printing classified information that revealed an expansive and largely illegal secret surveillance network the authorities was operating within the The states. Fearing reprisals, Snowden fled to Hong Kong and and so Moscow. Some fence that his actions were irresponsible and he should be prosecuted. Others champion his actions and hold that without them, the illegal spying would accept continued. Regardless, the Snowden case reveals of import weaknesses in whistleblower protections in the Usa. (credit: modification of work by Bruno Sanchez-Andrade Nuño)

Summary

To reduce the intra-institutional disagreements the traditional rulemaking process seemed to bring, the negotiated rulemaking procedure was designed to encourage consensus. Both Congress and the president exercise directly oversight over the hierarchy by holding hearings, making appointments, and setting budget allowances. Citizens exercise their oversight powers through their utilise of the Liberty of Information Act (FOIA) and by voting. Finally, bureaucrats too do oversight over their own institutions by using the channels carved out for whistleblowers to call attention to bureaucratic abuses.

Practice Questions

1. Briefly explain the advantages of negotiated rulemaking.
2. What concerns might arise when Congress delegates controlling authority to unelected leaders, sometimes called the 4th branch of government?
3. In what means might the patronage system be made more efficient?
4. Does the apply of bureaucratic oversight staff by Congress and by the OMB establish unnecessary duplication? Why or why not?
5. Which model of hierarchy best explains the way the government currently operates? Why?
6. Practise you think Congress and the president have done enough to protect bureaucratic whistleblowers? Why or why not?

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Source: https://courses.lumenlearning.com/atd-monroecc-americangovernment/chapter/controlling-the-bureaucracy/

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