Rulemaking

Congresses and presidents often enact laws setting forth broad goals with little idea of how to get there. They get publicity in the media and take credit for addressing a problem—and pass tough questions on how to solve the problem to the bureaucracy.

Take the Occupational Safety and Health Act of 1971. It seeks “to assure so far as possible every working man and woman in the Nation safe and healthy work conditions.” Congress created the Occupational Safety and Health Administration (OSHA) and directed it to “establish regulations suitable and necessary for carrying this law into effect, which regulations shall be binding.” OSHA began a process of rulemakingThe process by which agencies issue statements that implement, interpret, and prescribe policy in an area authorized by legislation passed by Congress.: issuing statements to clarify current and future policy in an area authorized by the law. It had to decide on answers for questions: What work conditions produce or endanger safety? What work conditions threaten workers’ health? How far is “so far as possible”?Cornelius M. Kerwin, Rulemaking: How Government Agencies Write Law and Make Policy, 3rd ed. (Washington, DC: CQ Press, 2003), 7–8 and chap. 2.

When not all specified goals are equally simple to pursue, agencies gravitate toward those easier to put into effect. OSHA was championed by labor organizations that deemed health hazards on the job to be a bigger problem than safety. But OSHA’s rulemaking focused more on safety than on health. It is simpler to calculate short-term costs and benefits of safety hazards than long-term costs and benefits of health hazards: for example, it’s easier to install protective railings than it is to lessen exposure to potentially carcinogenic chemicals.James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It (New York: Basic Books, 1989), 42–43.

Congress requires agencies to follow prescribed detailed procedures in issuing a rule. The explosion of New Deal agencies in the 1930s created inconsistency from one agency to the next. In 1934, the Federal RegisterThe government publication that prints all rules and decisions made by agencies., which prints all rules and decisions made by agencies, was launched to provide a common source. The ever-rising number of pages annually in the Register shows ever lengthier, ever more intricate rules.

In the first round, the agency interprets the statute to be applied and lists grounds for a preliminary decision. Next, it invites feedback: holding hearings or eliciting written comments from the public, Congress, and elsewhere in the executive branch. Then it issues a final rule, after which litigation can ensue; the rule may be annulled if courts conclude that the agency did not adequately justify it. Thus in March 2009 a federal judge ordered the Food and Drug Administration to lower the minimum age at which women could obtain the Plan B birth control pill without prescription from eighteen to seventeen. He ruled the agency had improperly bowed to pressure from the Bush administration in setting the limit at eighteen.

Any rule listed in the Federal Register has the status and force of law. The agency can modify the rule only by the same arduous process. The Bush administration worked diligently over its first three years to repeal the Clinton administration’s policy forcing utility plants to spend billions of dollars on pollution upgrades during any renovations that, in the language of the Clean Air Act, exceeded “routine maintenance.”Katharine Q. Seelye, “White House Seeks Changes in Rules on Air Pollution,” New York Times, June 14, 2002, A1. Environmental Protection Agency (EPA) administrator Christine Todd Whitman sought to make a “clarification” of “routine maintenance” that was more lenient to the power plants than her predecessor’s strict interpretation. The new rule, first unveiled in 2002, went through lengthy review before being finally issued in late 2003. Several states in the Northeast subject to acid rain caused by Midwestern power plants promptly sued but did not win in court. Such rulemaking deep in the federal bureaucracy rarely achieves the media attention that an open debate and decision in Congress would attract—making it an unobtrusive way for officials to accomplish something politically unpopular, such as relaxing clean-air standards.Bruce Barcott, “Changing All the Rules,” New York Times Magazine, April 4, 2004, 38–44ff.

Implementing Policy

The bureaucracy makes policy through implementationThe process of applying general policies to specific cases in order to put legislation or rules into effect., or applying general policies to given cases. Agencies transform abstract legal language into specific plans and organizational structures. There are rarely simple tests to assess how faithfully they do this. So even the lowliest bureaucrat wields power through implementation. Immigration agents decide which foreigners to grant asylum in the United States. Internal Revenue Service agents decide which tax returns to audit.

Some implementation can be easily measured. Examples are the Postal Service’s balance sheet of income and expenditures or the average number of days it takes to deliver a first-class letter over a certain distance in the United States. But an agency’s goals often conflict. Congress and presidents want the Postal Service to balance its budget but also to deliver mail expeditiously and at low cost to the sender and to provide many politically popular but costly services—such as Saturday delivery, keeping post offices open at rural hamlets, and adopting low postal rates for sending newspapers and magazines.John T. Tierney, The U.S. Postal Service: Status and Prospects of a Public Enterprise (Dover, MA: Auburn House, 1988), 2.

Ambiguous goals also pose problems for agencies. When the Social Security Administration (SSA) was formed in the 1930s, it set up an efficient way to devise standards of eligibility (such as age and length of employment) for retirement benefits. In the 1970s, Congress gave the SSA the task of determining eligibility for supplementary security income and disability insurance. Figuring out who was disabled enough to qualify was far more complex than determining criteria of eligibility for retirement. Enmeshed in controversy, the SSA lost public support.The distinction of “goal” and “task” is well described in James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It (New York: Basic Books, 1989), chap. 3. On the SSA, see Martha Derthick, Agency under Stress: The Social Security Administration in American Government (Washington, DC: Brookings, 1990).

Adjudicating Disputes

Agencies act like courts through administrative adjudicationApplying rules and precedents to individual cases in an adversarial setting with a defense and prosecution.: applying rules and precedents to individual cases in an adversarial setting with a defense and prosecution. Some, like the National Labor Relations Board (NLRB), act as both prosecutor and judge.See William B. Gould IV, A Primer on American Labor Law, 2nd ed. (Cambridge, MA: MIT Press, 1986), especially chap.4. Federal law directs workers complaining about unfair labor practices to go to regional directors of NLRB, who decide if there is probable cause that the law has been violated. If so, NLRB’s general counsel brings a case on behalf of the complainant before NLRB’s special administrative law judges, who hear both sides of the dispute and issue a decision. That ruling may be appealed to the full NLRB. Only then may the case go to federal court.

Standard Operating Procedures

How can civil servants prove they are doing their jobs? On a day-to-day basis, it is hard to show that vague policy goals are being met. Instead, they demonstrate that the agency is following agreed-on routines for processing cases—standard operating procedures (SOPs)Recurring routines to manage particular cases..Charles E. Lindblom, “The Science of ‘Muddling Through,’” Public Administration Review 19 (1959): 79–88. So it is hard for agencies to “think outside the box”: to step back and examine what they are doing, and why. The news media’s lack of day-to-day interest in the vast majority of agencies only further dampens attention to the big picture. Sometimes, only severe crises jar agencies out of their inertia. For example, following the terrorist attacks of 9/11 the Central Intelligence Agency (CIA) moved to revive old-fashioned forms of human intelligence, such as planting spies in terrorist camps and increasing its number of Arabic-language speakers, when it became clear that its standard operating procedure of using high-tech forms of intelligence, such as satellite images and electronic eavesdropping, had been inadequate to forecast, let alone prevent, the attacks.

Agencies’ Power

Agencies are alert to and heed the power of the president and Congress over their activities. But agencies can effectively influence Congress and presidents as much as the other way around. And if Congress and presidents disagree, agencies are in the happy situation of responding to the branch that is closer to what they want to do.Dan B. Wood and Richard W. Waterman, Bureaucratic Dynamics: The Role of Bureaucracy in a Democracy (Boulder, CO: Westview Press, 1994), 96.

The signs of an agency’s power include (1) the legal authority Congress and presidents accord it, (2) the size and continuity of its budget, and (3) the deference it gains from expertise. But each of these hallmarks amounts to little without political support—especially from those individuals and groups most interested in or affected by an agency’s decisions. Without such support, agencies find their programs confined by others, their budgets slashed, and their claims to expertise doubted.

Agencies “are not helpless, passive pawns in the game of politics as it affects their lives; they are active, energetic, persistent participants.”Herbert Kaufman, Are Government Organizations Immortal? (Washington, DC: Brookings, 1976), 9. They work to create and maintain political support from the president, Congress, and the public. Favorable media coverage is instrumental in building this political support.

Agencies also obtain political support by shifting policies when new political participants challenge their standard approach.Daniel A. Mazmanian and Jeanne Nienaber, Can Organizations Change?: Environmental Protection, Citizen Participation, and the Corps of Engineers (Washington, DC: Brookings, 1979); and John Brehm and Scott Gates, Working, Shirking, and Sabotage: Bureaucratic Response to a Democratic Public (Ann Arbor: University of Michigan Press, 1997). For example, in the 1970s the Army Corps of Engineers moved away from a rigid prodevelopment stance when environmental groups arose and lobbied for a law requiring the Corps to draft environmental impact statements.

How Presidents Influence the Federal Bureaucracy

Agencies are part of the executive branch. Presidents select heads of agencies and make numerous other political appointees to direct and control them. But political appointees have short careers in their offices; they average just over two years.Joel D. Aberbach and Bert A. Rockman, In the Web of Politics: Three Decades of the U.S. Federal Executive (Washington, DC: Brookings, 2000), chap.4. Civil servants’ long careers in government in a single agency can easily outlast any political appointee who spars with them.Joel D. Aberbach and Bert A. Rockman, In the Web of Politics: Three Decades of the U.S. Federal Executive (Washington, DC: Brookings, 2000), 74.

Presidents are tempted to pursue implementation by agencies to accomplish policy goals that Congress has frustrated. Tools of this administrative presidencyPolitical scientist Richard Nathan’s term for the tactics presidents use with the bureaucracy to implement policy goals blocked by Congress. include establishing agencies, strategic appointments, internal reorganization, and budget cuts.The term was coined by Richard Nathan, The Plot that Failed: Nixon and the Administrative Presidency (New York: Wiley, 1975). Richard Nathan developed it beyond the Nixon case in The Administrative Presidency (New York: Wiley, 1983).

How Agencies Influence Presidents

Presidential appointments, especially of cabinet secretaries, are one way to control the bureaucracy. But cabinet secretaries have multiple loyalties. The Senate’s power to confirm nominees means that appointees answer to Congress as well as the president. In office, each secretary is not based at the White House but at a particular agency “amid a framework of established relations, of goals already fixed, of forces long set in motion [in] an impersonal bureaucratic structure resistant to change.”Richard F. Fenno, Jr., The President’s Cabinet (Cambridge, MA: Harvard University Press, 1959), 226.

How Congress Influences the Federal Bureaucracy

Congress makes laws fixing the functions, jurisdictions, and goals of agencies. It sets agency budgets and conditions for how funds must be used. It can demote, merge, or abolish any agency it finds wanting; longevity does not guarantee survival.David E. Lewis, “The Politics of Agency Termination: Confronting the Myth of Agency Immortality,” Journal of Politics 64 (2002): 89–107. Every agency’s challenge is to find ways to avoid such sanctions.

If an agency’s actions become politically unpopular, Congress can cut its budget, restrict the scope of regulation or the tools used, or specify different procedures. For example, the National Endowment for the Arts (NEA) in the early 1990s made a series of controversial decisions to fund gay and lesbian performance artists. The NEA’s budget was cut by Congress and its existence threatened. If such sanctions are seldom applied, their presence coaxes bureaucrats to anticipate and conform to what Congress wants.

Figure 14.2 Karen Finley

The National Endowment for the Arts kept itself going by shifting away from controversial arts projects awarded to lesbian and gay performance artists such as Karen Finley (pictured here) to safer, more widespread community-based arts organizations.

Source: Used with permission from AP Photo/William Philpott.

Congress monitors agency activities by congressional oversightThe process by which Congress monitors the activities of government agencies.: members gather information on agency performance and communicate to agencies about how well or, more often, how poorly they are doing.See Christopher H. Foreman, Jr., Signals from the Hill: Congressional Oversight and the Challenge of Social Regulation (New Haven, CT: Yale University Press, 1988), 13. Oversight ranges from a lone legislator’s intervention over a constituent’s late social security check to high-profile investigations and committee hearings. It is neither centralized nor systematic. Rather than rely on a “police-patrol” style of oversight—dutifully seeking information about what agencies are doing—Congress uses a “fire alarm” approach: interest groups and citizens alert members to problems in an agency, often through reports in the news.Mathew D. McCubbins and Thomas Schwartz, “Congressional Oversight Overlooked: Police Patrols and Fire Alarms,” American Journal of Political Science 28 (February 1984): 165–79.

How Agencies Influence Congress

Agencies can work for continued congressional funding by building public support for the agency and its programs. The huge budget of the Defense Department is facilitated when public opinion polls accord high confidence to the military. To keep this confidence high is one reason the Defense Department aggressively interacts with the media to obtain favorable coverage.

Agencies can make it hard for Congress to close them down or reduce their budget even when public opinion is mixed. Agencies choose how much money to spend in implementing a program; they spread resources across many districts and states in the hope that affected legislators will be less inclined to oppose their programs.This section is based on R. Douglas Arnold, Congress and the Bureaucracy: A Theory of Influence (New Haven, CT: Yale University Press, 1979). For example, numerous presidents have proposed that the perennially money-losing government corporation Amtrak be “zeroed out.” But Amtrak has survived time and again. Why? Although train riders are few outside the Northeast, Amtrak trains regularly serve almost all the continental forty-eight states, providing local pressure to keep a national train system going.

Figure 14.3 Amtrak Map

Source: Photo courtesy of Samuell Theshibboleth, http://commons.wikimedia.org/wiki/File:Amtrakfreqmap.svg.

Likewise, when faced with extinction, an agency can alter its policies to affect more congressional constituencies. For example, after the NEA was threatened with extinction, it shifted funding away from supporting artists in trendy urban centers and toward building audiences for community-sponsored arts found in a multitude of districts and states—whose residents could push Congress to increase the NEA’s budget. Sure enough, President Bush’s tight budgets saw rises for the NEA.