Commentary Magazine


Topic: bureaucracy

Smash the Regulatory State from Within

The rise of the regulatory state is not something conservatives need to make peace with, nor should they accept the role that unaccountable bureaucrats are increasingly playing in American governance. But they should also understand that working within that system while working to dismantle aspects of it are not mutually exclusive activities.

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The rise of the regulatory state is not something conservatives need to make peace with, nor should they accept the role that unaccountable bureaucrats are increasingly playing in American governance. But they should also understand that working within that system while working to dismantle aspects of it are not mutually exclusive activities.

With all the talk of reform conservatism, this is a more limited variant of the ambitious reform efforts gaining momentum. There are two categories of such reform, and the abuse-of-power scandals proliferating throughout the Obama administration’s bureaucratic power agencies make it all the more necessary to realize the opportunity they present to conservatives seeking to protect the public from big government.

The first has to do with regulations, and Texas presents a good example. Because so much of the Obama-era Democratic regulations are poorly thought-out and destructive, it’s easy to get the impression that when the government regulates something, it will do so in a deeply stupid way. But it doesn’t have to.

In April 2010, the Washington Post ran an interesting article investigating the following question: Why did Texas escape the real-estate bust? As the Post explained:

Texas’s 3.1 million mortgage borrowers are a breed of their own among big states with big cities. Fewer than 6 percent of them are in or near foreclosure, according to the Mortgage Bankers Association; the national average is nearly 10 percent. …

Texan subprime borrowers do especially well compared with their counterparts elsewhere. The foreclosure rate among subprime borrowers in Texas, at less than 19 percent, is the lowest of any state except Alaska.

Part of the answer seemed to be restrictions on refinancing and home-equity lending:

A cash-out refinance is a mortgage taken out for a higher balance than the one on an existing loan, net of fees. Across the nation, cash-outs became ubiquitous during the mortgage boom, as skyrocketing house prices made it possible for homeowners, even those with bad credit, to use their home equity like an ATM. But not in Texas. There, cash-outs and home-equity loans cannot total more than 80 percent of a home’s appraised value. There’s a 12-day cooling-off period after an application, during which the borrower can pull out. And when a borrower refinances a mortgage, it’s illegal to get even a dollar back. Texas really means it: All these protections, and more, are in the state constitution. The Texas restrictions on mortgage borrowing date from the first days of statehood in 1845, when the constitution banned home loans.

It turns out such restrictions went a long way toward preventing homeowners from taking out the kind of loans and refinancing that increased the chances of default when the bubble burst, protecting many in Texas from suffering the same fate. It’s the kind of “smart” regulation that not only benefits the private sector but also can prevent future “dumb” regulations: the less prone to such crises states (and especially the federal government) are, the less demand there will be for the kind of “do-something” regulatory pile-ons and bailouts that follow those crises.

Texas is also, of course, a testament to the benefits of limited regulations in other areas of ownership and private property. Another part of the state’s insulation from the real-estate bubble was, as Wendell Cox explained, “the state’s liberal, market oriented land use policies. This served to help keep the price of land low while profligate lending increased demand.” Overregulated housing markets inflated prices and restricted supply. Texas got the balance just right.

So there’s “smart” regulations vs. “dumb” regulations. But the other category of this kind of reform has to do with the bureaucracy. Especially in the Obama era, policy is being made more and more by unelected bureaucrats. As the IRS scandal (and others) showed, the power and insulation from the public eye is a dangerous combination.

Conservatives have generally approached this by concentrating on the need to eliminate either bureaucratic agencies or the powers of those agencies. They should also, however, keep in mind that as long as those agencies exist, personnel is policy. Perhaps no one on the right has internalized this message more than Senate Minority Leader Mitch McConnell.

In a piece for National Review last year (still paywalled, alas), Daniel Foster wrote about McConnell’s attitude toward staffing decisions made by each party. When bureaucratic commission openings must be filled, it generally falls to the leadership. That means President Obama for the Democrats and McConnell for the Republicans. The Democrats still tend to view such job appointments as patronage positions. But McConnell has rejected the cronyism in favor of competence:

To translate his instincts into names, he brought in GOP veteran Dan Schneider. To look at Schneider’s government rap sheet — stints at the Department of Health and Human Services, the National Endowment for the Humanities, the Labor Department — you’d think he was a die-cast liberal. But when I spoke with him for this story, he said he likes to think of himself as a loyal conservative sent behind enemy lines “to monitor the radicals.”

Schneider came onto McConnell’s radar via the senator’s wife, Elaine Chao. When George W. Bush appointed Chao to head his Department of Labor, Schneider became her first White House liaison, and she gave him free rein to find conservatives to fill more than 200 slots inside the department. He impressed, and, after the Obama transition, migrated into McConnell’s office, where he oversees a sort of national conservative talent search with the title “Policy Advisor and Counsel for Nominations.”

Schneider operates according to a set of five criteria for screening potential nominees first developed by E. Pendleton “Pen” James, Ronald Reagan’s director of personnel management. First, were the nominees competent in the subject matter? Second, were they philosophically compatible with Senator McConnell? Third, did they possess high character and integrity? Fourth, were they tough? Fifth, were they team players?

The result, two or three hundred appointees later, is measurable.

Of course the ultimate aim for such bureaucracies should be to get rid of them or limit their power–something McConnell also engages in, as when he spearheaded the challenge to Obama’s unconstitutional recess appointments, which resulted recently in a unanimous Supreme Court rejection of Obama’s power grab.

But conservatives can fight those fights while engaging in limited reform from within the regulatory state. They don’t have to cede ground just because they wish that ground didn’t exist.

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Narendra Modi for President!

Narendra Modi, the new prime minister of India, promised in his campaign to clean up the notoriously slovenly ways of the Indian bureaucracy. According to the Washington Posthe is doing exactly that. As the Post explains:

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Narendra Modi, the new prime minister of India, promised in his campaign to clean up the notoriously slovenly ways of the Indian bureaucracy. According to the Washington Posthe is doing exactly that. As the Post explains:

Babudom [“Babu” is the nickname for a member of the upper echelons of the bureaucracy] is now in peril. Modi signaled as much in the early days of his administration, when he summoned about 70 of the government’s top civil servants, gave them his personal cellphone number and e-mail address, and said it was time for work. A circular appeared the next day with what has been called Modi’s “11 Commandments” — orders to clean work spaces, shorten forms, weed out old files and review goals.

When the Home Ministry (roughly the equivalent of the Department of the Interior) cleaned out 150,000 files, they found some that went back to the British Raj. Then they allegedly compiled a list of bureaucrats known to frequent golf courses and stay at five-star hotels and sent it to the prime minister’s office. It seems to be working. About 200 babus were members of the elite Delhi Golf Club. Many have now resigned from the club and others are teeing off at 5:30 a.m. The prime minister is given to calling ministers on their landlines just to make sure they are in their offices.

Barack Obama is totally uninterested in managing the government he heads. That’s why he only finds out about, say, the mess at the Veterans Administration when he reads about it in the papers. But that’s part of the president’s job whether he likes it or not. And Republican presidential hopefuls for 2016 would be well advised to take a leaf from Modi’s playbook. The federal bureaucracy is nowhere near as corrupt, convoluted, rule-ridden, and slothful as the Indian one, which is the gold standard of bureaucratic inertia and dysfunction. But it is corrupt, convoluted, rule-ridden, and slothful enough. The federal government was last fundamentally reorganized in the late 1940s and early 1950s by the Hoover Commissions. The world has changed profoundly in the last sixty years and the government has not. Promising thoroughgoing government reform and reorganization, while riding herd on the bureaucracy, is a winning issue.

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Report Shows Veterans Affairs in Crisis

When Paul Krugman says a government health-care scandal is being blown out of proportion by conservatives, you can be sure the opposite is true. Such was the case when Krugman told his readers to be suspicious of cancer patients suffering under ObamaCare, and it is the case with the scandal at the Department of Veterans Affairs, as a new report makes clear.

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When Paul Krugman says a government health-care scandal is being blown out of proportion by conservatives, you can be sure the opposite is true. Such was the case when Krugman told his readers to be suspicious of cancer patients suffering under ObamaCare, and it is the case with the scandal at the Department of Veterans Affairs, as a new report makes clear.

To be fair, Krugman does not dismiss the VA entirely: “It’s a real scandal; some heads have already rolled, but there’s surely more to clean up,” he writes. But he understands the philosophical stakes here. Liberals (like Krugman) have used the VA as an example of the success of what he calls “an island of socialized medicine, a miniature version of Britain’s National Health Service, in a privatized sea.” If the VA were really in much, much worse shape, the island of socialized medicine would be best avoided. And now, thanks to a yearlong congressional investigation spearheaded by Tom Coburn, we know that the VA is indeed in much, much worse shape.

The key for leftist proponents of centralized health-care bureaucracy is to somehow disentangle the scandals from the policy. There’s no denying the corruption of the VA system; the PR strategy, then, is to claim that one is not the cause of the other. For the VA, this means showing that veterans are still getting good, even superior care from the VA system so there’s a scandal but no crisis. Unfortunately for the Obama administration’s dedicated spinners, that just isn’t the case.

Politico summarizes the key findings:

Delinquent doctors and nurses and lagging medical treatment at the Department of Veterans Affairs may have caused the deaths of more than 1,000 veterans and cost the U.S. $845 million in medical malpractice suits, Sen. Tom Coburn charged in a report released on Tuesday.

The deaths, which occurred over a 10-year period, resulted from VA officials prescribing unneeded and unmonitored painkillers to veterans, delayed treatment that caused cancer to go undetected and veterans waiting at times for months for procedures, the report found.

“More than 1,000 veterans needlessly died under the VA’s watch, and the Department in turn paid these veterans’ families $200 million in wrongful death settlements — the median payment per victim was $150,000,” the report states.

The investigation into ongoing issues at the VA also found that a doctor was able to perform “unnecessary pelvic and breast exams” on female patients, that minority employees faced racial discrimination and that illegal drugs were prevalent in VA facilities.

The report “shows the problems at the VA are worse than anyone imagined. The scope of the VA’s incompetence — and Congress’ indifferent oversight — is breathtaking and disturbing,” said Coburn, an Oklahoma Republican and physician who once worked in the VA system.

Wrongful death, systemic racism, sexual abuse, corruption–according to the report, the VA isn’t a model of care with some bad apples. And the allegations about how the VA handled–or didn’t handle–the infractions are disturbing:

A male doctor in Kansas was forced to register as a sex offender after five female patients accused him of performing inappropriate breast and pelvic exams, while a social worker in Oregon was placed on administrative leave after her affair with a veteran under her care was discovered. In both instances, the VA officials continued to receive pay while on leave.

A doctor’s pattern of sexual abuse got him on the sex-offender registry but still collected a salary? Could that be right? According to the investigation, it is; here’s the relevant paragraph from Coburn’s report:

While a Kansas VA official stated sexual abuse allegations are taken seriously by the Department, the doctor continued to collect a salary for nearly two years, although he was not permitted to see patients. He was placed on paid administrative leave in 2011, arrested by Topeka police in May 2012, suspended without pay in July 2012, and finally fired in May 2013. Coincidentally, this doctor’s “employment at Colmery-O’Neil overlapped briefly with that of another physician “who was hired within two years of acquittal on Florida charges he sexually abused multiple patients by performing breast and pelvis examinations unrelated to their medical needs. Prosecutors there said 16 patients filed complaints against” him, “but the doctor was welcome at Colmery-O’Neal in 2011 and 2012 before taking a job in Texas.”

As I wrote yesterday, and as this report confirms, the issue isn’t money: the VA wastes it. The real issue is that government health care lacks accountability and has certain constraints, and that even working with a more limited scope of care, as the VA does, it cannot reconcile the care it is supposed to provide with the reality of central planning.

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The Logic of Castro’s Nomination: It’s More Than Identity Politics

The expected nomination of San Antonio Mayor Julian Castro to lead the Obama administration’s Department of Housing and Urban Development–a Cabinet-level post–has earned much attention from both sides of the aisle. Almost none of the commentary, however, has had to do with Castro’s qualifications for HUD. Most of it has had to do with the fact that the Democrats have been eyeing Castro as a possible vice-presidential candidate in 2016.

Democrats don’t seem to want to nominate a sitting mayor for vice president–too big a leap perhaps. This is especially true for Castro, because, as Allahpundit notes, the San Antonio mayor’s office is “a figurehead role,” without much responsibility or even a regular salary. In fact, San Antonio’s city manager reportedly receives a salary of $355,000, while Mayor Castro gets a $3,000 stipend plus $20 for every council meeting he attends. The San Antonio mayoralty is essentially the city government version of a department store greeter, except with fewer hours and less pay.

In addition to Allahpundit’s piece, Ben Domenech’s treatment of the issue in this morning’s Transom is worth reading. But I think there’s a point being missed here. Everyone is mentioning the fact that Castro is an ideal vice-presidential candidate because of his youth and his Hispanic heritage, as well as his connections to a red state. That is true. But he’s a perfect candidate for the Democrats for another reason. Allahpundit touches on it as a strike against him:

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The expected nomination of San Antonio Mayor Julian Castro to lead the Obama administration’s Department of Housing and Urban Development–a Cabinet-level post–has earned much attention from both sides of the aisle. Almost none of the commentary, however, has had to do with Castro’s qualifications for HUD. Most of it has had to do with the fact that the Democrats have been eyeing Castro as a possible vice-presidential candidate in 2016.

Democrats don’t seem to want to nominate a sitting mayor for vice president–too big a leap perhaps. This is especially true for Castro, because, as Allahpundit notes, the San Antonio mayor’s office is “a figurehead role,” without much responsibility or even a regular salary. In fact, San Antonio’s city manager reportedly receives a salary of $355,000, while Mayor Castro gets a $3,000 stipend plus $20 for every council meeting he attends. The San Antonio mayoralty is essentially the city government version of a department store greeter, except with fewer hours and less pay.

In addition to Allahpundit’s piece, Ben Domenech’s treatment of the issue in this morning’s Transom is worth reading. But I think there’s a point being missed here. Everyone is mentioning the fact that Castro is an ideal vice-presidential candidate because of his youth and his Hispanic heritage, as well as his connections to a red state. That is true. But he’s a perfect candidate for the Democrats for another reason. Allahpundit touches on it as a strike against him:

Essentially he’s a Latino Obama, except with much less experience. If he ends up as VP in 2016, he’d be the youngest veep since Dan Quayle (who had spent eight years in the Senate by the time he was sworn in) and indisputably the one with the thinnest resume, which means, if Hillary’s health goes south, the free world could conceivably be led circa 2018 by a guy whose main qualification was a two-year sinecure atop America’s housing bureau. But look at it this way. If they’re going to have a pure identity-politics candidate at the top of the ticket, why shouldn’t they also have one at the bottom?

Emphasis is in the original, but I think it’s worth emphasizing as well. Allahpundit says this as a kind of warning: if you thought Obama was unprepared for office, you ain’t seen nothin’ yet. Politico notes that Hillary Clinton was asked last week about the possibility of adding Castro to the ticket and that Castro has been asked before to join the Cabinet, so the Democrats have been looking for a way to elevate Castro for some time.

When you consider what Castro’s current day job entails, the question obviously arises: since no one the Republicans have ever nominated for the vice presidency comes close to being this inexperienced or unqualified–Sarah Palin was a governor, after all–does this make Democrats world-class hypocrites? Yes for the obvious reasons, but in the Democrats’ defense, they don’t see it that way, and there’s a logical process that leads them there.

To understand why this is, you have to remember how the Democratic Party, as a vehicle for American left-liberalism, approaches the task of governing. Yet again today the president’s press secretary said the White House learned about the Veterans Affairs scandal through the media–that is, those in the White House have no idea what’s going on in their own administration. This is a popular excuse for the president, because what he’s looking for is not responsibility but plausible deniability. Liberalism in a government this size is a recipe for disaster; Obama knows it will fail on his watch at a great many of its tasks. His desire is to somehow avoid blame for the array of inevitable failures of his administration.

The best description of the Obama presidency in recent memory is Kevin Williamson’s August essay for National Review, which paints Obama, accurately, as “the nominal leader for permanent bureaucracy.” The health-care law that Congress passed as ObamaCare, cruel and garbled as it is, resembles only in certain ways the ObamaCare the president is implementing. That’s because Congress passed the outlines of a law Obama then placed into the hands of his bureaucrats, such as the Independent Payment Advisory Board.

Democrats in Congress have tried, sometimes successfully and sometimes not, to limit political speech in ways that would benefit liberal organizations and candidates at the expense of conservative ones. But they have often been stymied by the political process, because their ideas are unconstitutional. Enter the IRS, which targeted conservative groups, at the encouragement of high-ranking Democrats in the Congress and the White House, during the two election cycles before they were discovered after Obama’s reelection.

Democrats didn’t like the effect of the democratic process on their attempts to extensively regulate the private sector. So they created the Consumer Financial Protection Bureau, an unaccountable bureaucracy to which the president made an unconstitutional appointment.

If your goal is to work within the confines of the system of checks and balances to influence the democratic process and produce transparent legislation and accountable lawmaking, you would want men and women of experience and proven capability. But the Democrats would intend for a Clinton/Castro team to be the public face of the bureaucracy, so they genuinely don’t expect Castro’s lack of experience and Clinton’s lack of accomplishment to get in the way. If there’s anything important that they really need to know, they’ll be sure to read the papers.

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Why Bigger Government Does Not Equal More Services

The Democratic group Third Way is releasing the results of a survey on political “moderates,” which deviates from, and is more informative than, surveys on supposed “independents.” The Atlantic’s Molly Ball has piece discussing the survey as well as a memo Third Way officials gave Ball ahead of time to frame the results. It’s an interesting survey, especially with the parties gearing up for midterm elections. But the survey is undermined by a flaw that pervades such polls with regard to voters’ attitudes toward the size and scope of government.

That particular recurring survey question is rarely if ever challenged, but those who want an honest rendering of Americans’ political and policy preferences shouldn’t let it slide. Or, rather, conservatives shouldn’t let it slide, because the question is dishonestly designed to elicit a more favorable answer for supporters of expanding government. Here’s Ball:

Moderates’ perspective on the role of government has elements in common with both liberals and conservatives. Only 23 percent of moderates favor a larger government that provides more services (compared to 54 percent of liberals and 13 percent of conservatives); 37 percent favor a smaller government with fewer services (compared to 12 percent of liberals and 62 percent of conservatives).

As anyone who knows anything about the government can tell you, this is what our president might call a false choice. The simple fact is that the growth of the modern bureaucratic state is such that the larger government/more services vs. leaner government/fewer services framing is outdated and irrelevant. This type of poll question is trumpeted often by liberals who either don’t fully understand how the government works or who do understand but prefer not to clue their readers in on the con.

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The Democratic group Third Way is releasing the results of a survey on political “moderates,” which deviates from, and is more informative than, surveys on supposed “independents.” The Atlantic’s Molly Ball has piece discussing the survey as well as a memo Third Way officials gave Ball ahead of time to frame the results. It’s an interesting survey, especially with the parties gearing up for midterm elections. But the survey is undermined by a flaw that pervades such polls with regard to voters’ attitudes toward the size and scope of government.

That particular recurring survey question is rarely if ever challenged, but those who want an honest rendering of Americans’ political and policy preferences shouldn’t let it slide. Or, rather, conservatives shouldn’t let it slide, because the question is dishonestly designed to elicit a more favorable answer for supporters of expanding government. Here’s Ball:

Moderates’ perspective on the role of government has elements in common with both liberals and conservatives. Only 23 percent of moderates favor a larger government that provides more services (compared to 54 percent of liberals and 13 percent of conservatives); 37 percent favor a smaller government with fewer services (compared to 12 percent of liberals and 62 percent of conservatives).

As anyone who knows anything about the government can tell you, this is what our president might call a false choice. The simple fact is that the growth of the modern bureaucratic state is such that the larger government/more services vs. leaner government/fewer services framing is outdated and irrelevant. This type of poll question is trumpeted often by liberals who either don’t fully understand how the government works or who do understand but prefer not to clue their readers in on the con.

For example, during the controversy over Cliven Bundy, the New York Times’s Josh Barro was one of the commentators who sought to use the issue to make the point that limited-government conservatism, and especially libertarianism, can be explained by race. Here’s Barro:

A 2011 National Journal poll found that 42 percent of white respondents agreed with the statement, “Government is not the solution to our problems; government is the problem.” Just 17 percent of blacks, 16 percent of Asians and 25 percent of Hispanics agreed. In 2011 and 2012, the Pew Research Center found that 55 percent of Asian-Americans and fully 75 percent of Hispanic-Americans say they prefer a bigger government providing more services over a smaller one providing fewer services, compared with just 41 percent of the general population.

An obvious problem is the wording of each question. The first question he uses offers two choices: government is either the problem or the solution. The lack of nuance–and, plainly, honesty–helps Barro’s argument but does a great disservice to his readers (though in fairness it’s not as though Barro himself wrote the survey question). The second question is the one that reappears in the Third Way survey.

The truth of the matter is that government has become unmanageably large in many ways, undermining the idea that a larger government necessarily results in more services.

A good resource for those who want the more accurate picture is Philip K. Howard’s The Rule of Nobody, which takes aim at the reasons government has, on important issues, ground to a halt. Howard opens with the story of the Bayonne Bridge, which spans the channel that connects New York Harbor to the port of Newark, the largest on the East Coast. The bridge, however, isn’t high enough to accommodate ships built to use the widened Panama Canal, set to be completed next year.

So what’s the solution? Howard notes that the government agency in charge decided the choices were either build a new bridge or dig a tunnel, each costing more than $4 billion. Then a new idea presented itself: raise the existing bridge roadway, at a cost of $1 billion, saving $3 billion. The resolution was “like a miracle.” And it went nowhere. The full story is worth reading and incredibly convoluted (which is Howard’s point), but here’s the gist:

Building anything important in America requires layers of approvals from multiple levels of government—in this project, forty-seven permits from nineteen different governmental entities. Environmental review has evolved into an academic exercise, like a game of who can find the most complications. Balkanization of authority among different agencies and levels of government creates a dynamic of buck-passing. “The process is aimed not at trying to solve problems,” Ms. Papageorgis observed, “but trying to find problems. You can’t get in trouble by saying no.” With any large project, something might go wrong. More studies are done.

The story of the Bayonne Bridge, and others like it–Howard’s book makes for sobering but important reading–is that the larger government got the more it cost while providing fewer services. Howard writes about school systems paralyzed by regulations, the culture of corruption fostered by the inability to navigate all the red tape, the resulting “involuntary noncompliance,” and the government’s erosion of civil society while then failing to provide the services whose responsibility was transferred from the private sphere to the public sector.

Larger government doesn’t just erode freedom. At a certain point, it begins providing fewer services than it did before it ballooned beyond manageability. Howard shows that often the only way around the most absurd bureaucratic extremism is public shaming. That should be applied to the survey questions designed to enable such bad governance as well.

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Union PSA: Show Some Appreciation, You Lachanophobic Anarchists

Imagine, for a moment, an America in which federal workers’ generous compensation and job security were closer to that of their private sector counterparts. Or, alternatively: imagine an America in which there was less redundancy in the federal workforce, saving taxpayer dollars. Or imagine an America in which there was less bureaucratic red tape to be enforced against struggling entrepreneurs or business owners, thus necessitating a less robust federal workforce. Or imagine, as John Lennon might if he were around today, there’s no TSA.

All that probably sounds delightful. Which is why unions representing federal employees don’t want you to imagine any of that. Instead, they invite you to imagine, as their new ad campaign hopes you will, “Life without federal employees.” But they mean, of course, any federal employees. That’s the basis for a renewed effort by federal unions to burnish their image in the minds of the Americans that they believe don’t fully appreciate them. As the Washington Post reports, the National Treasury Employees Union is releasing their own version of public service announcements on behalf of federal employees:

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Imagine, for a moment, an America in which federal workers’ generous compensation and job security were closer to that of their private sector counterparts. Or, alternatively: imagine an America in which there was less redundancy in the federal workforce, saving taxpayer dollars. Or imagine an America in which there was less bureaucratic red tape to be enforced against struggling entrepreneurs or business owners, thus necessitating a less robust federal workforce. Or imagine, as John Lennon might if he were around today, there’s no TSA.

All that probably sounds delightful. Which is why unions representing federal employees don’t want you to imagine any of that. Instead, they invite you to imagine, as their new ad campaign hopes you will, “Life without federal employees.” But they mean, of course, any federal employees. That’s the basis for a renewed effort by federal unions to burnish their image in the minds of the Americans that they believe don’t fully appreciate them. As the Washington Post reports, the National Treasury Employees Union is releasing their own version of public service announcements on behalf of federal employees:

For example, one 15-second PSA says:

Without us, you should be afraid of your salad.
Without us, our borders would go unprotected.
Without us, we would live in fear of a nuclear meltdown.
Federal employees. They work for U.S.
TheyWorkforUs.org

Without overpaid bureaucrats, you’d be mired in lachanophobia if you knew what was good for you. Of course, you probably wouldn’t know what was good for you without federal employees to tell you. The Post continues:

The announcements are being sent to 300 television stations and 1,000 radio stations in top markets.

This is NTEU’s third campaign “and each time it keeps getting bigger,” Kelley told reporters Wednesday. Between June 2011 and June 2012, radio, television and cable outlets ran NTEU PSAs 25,048 times, worth $7.4 million in media time, according to the labor organization, which said 292 million people saw or heard those PSAs.

The current PSAs are available on TheyWorkforUs.org. On the Web site, NTEU asks the public to imagine what life would be like without feds. NTEU also supplies the answer:

“You wouldn’t want it.”

It’s worth pointing out here just how much the union has to stack the deck to get some appreciation. Jews make a blessing on their food to thank God for it before eating; the NTEU wants you to thank a union before fearlessly diving into your leafy greens.

In reality, the choice is surely not between anarchy dominated by nightmarish salad monsters and a bureaucratic superstate that chases off your kid’s lemonade stand. What Americans don’t like about the federal workforce has more to do with the fact that government employees make more than their private-sector counterparts, generally get far better benefits, and in many cases those employees are tasked with putting up obstacles to private-sector jobs. And they tend to think private-sector employees are working harder for less money than public-sector workers.

Americans—even those who support unions—are often uneasy with certain public-sector union rights, like the right to strike. Chris Christie had success in New Jersey by asking teachers unions to pay their fair share—less than their fair share actually: anything at all—by contributing a bit to their benefits, as private-sector employees did. They realize that, as Daniel DiSalvo has written, “In today’s public sector, good pay, generous benefits, and job security make possible a stable middle-class existence for nearly everyone from janitors to jailors. In the private economy, meanwhile, cutthroat competition, increased income inequality, and layoffs squeeze the middle class.”

And Americans are sensible enough to understand the moral hazard in such a state of affairs, where powerful government employees can negotiate from their government employers more and more of the private sector’s money. But even more than the chutzpah it takes for unions to put out ads attempting to shame the public into thanking the unions for taking their money, this campaign is an indication that public-sector unions are well aware of their continued image problem. That they think equating disapproval of their work with anarchy is the way to fix it shows that it’s likely to persist.

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The Nanny State’s Bad Medicine

Two years ago the BBC ran a story about health and the government whose headline perfectly captured the promise and peril of the scientific breakthroughs in genetics: “NHS must prepare for the genetic revolution, report says.” Describing the developments in genetic testing and research as revolutionary is apt. The illumination of ancestry and the possibility of preparing for and preventing a range of diseases and conditions–cancer among them–could not come soon enough.

But the other part of that headline that was important was the focus of the story: how the government-run health bureaucracy wasn’t ready for the revolution, and the danger such unpreparedness posed. Those glancing across the pond at the BBC’s reporting might have expected what transpired in the U.S. recently, culminating yesterday in a setback for public health, scientific breakthrough, and individual rights, all brought to you by the Food and Drug Administration. The FDA has been standing athwart medical history yelling stop, and for now history has agreed to stop–or at least slow down.

The basic story is this: a biotech startup called 23andMe sells spit kits–saliva collection tubes, essentially–for $99 a piece and runs genetic tests on the samples. The near-term benefits are obvious: users have an affordable way to screen for genetic predispositions. The long-term benefits stem from the (if successful and popular enough) database of genetic health and ancestral information. When Time magazine lauded the product in 2008 (it was more expensive and still finding its place), it noted:

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Two years ago the BBC ran a story about health and the government whose headline perfectly captured the promise and peril of the scientific breakthroughs in genetics: “NHS must prepare for the genetic revolution, report says.” Describing the developments in genetic testing and research as revolutionary is apt. The illumination of ancestry and the possibility of preparing for and preventing a range of diseases and conditions–cancer among them–could not come soon enough.

But the other part of that headline that was important was the focus of the story: how the government-run health bureaucracy wasn’t ready for the revolution, and the danger such unpreparedness posed. Those glancing across the pond at the BBC’s reporting might have expected what transpired in the U.S. recently, culminating yesterday in a setback for public health, scientific breakthrough, and individual rights, all brought to you by the Food and Drug Administration. The FDA has been standing athwart medical history yelling stop, and for now history has agreed to stop–or at least slow down.

The basic story is this: a biotech startup called 23andMe sells spit kits–saliva collection tubes, essentially–for $99 a piece and runs genetic tests on the samples. The near-term benefits are obvious: users have an affordable way to screen for genetic predispositions. The long-term benefits stem from the (if successful and popular enough) database of genetic health and ancestral information. When Time magazine lauded the product in 2008 (it was more expensive and still finding its place), it noted:

We are at the beginning of a personal-genomics revolution that will transform not only how we take care of ourselves but also what we mean by personal information. In the past, only élite researchers had access to their genetic fingerprints, but now personal genotyping is available to anyone who orders the service online and mails in a spit sample. Not everything about how this information will be used is clear yet — 23andMe has stirred up debate about issues ranging from how meaningful the results are to how to prevent genetic discrimination — but the curtain has been pulled back, and it can never be closed again. And so for pioneering retail genomics, 23andMe’s DNA-testing service is Time’s 2008 Invention of the Year.

But sentences like “the curtain has been pulled back, and it can never be closed again” are read as dares by the federal bureaucrat, drunk with power and disdainful of the liberation of information. Challenge accepted, said the FDA, which set out to close that curtain. The FDA decided the spit kits were medical “devices” under the law and therefore 23andMe was required to jump through all the regulatory hoops associated with that finding. For now, the company will “discontinue consumer access to its health-related genetic tests during the ongoing regulatory review process.”

Now, in the FDA’s defense, that’s certainly a plausible categorization under the letter of the law. Additionally, 23andMe was far from cooperative–indeed, the company seemed positively dismissive of the FDA’s authority. That may be warranted, but it’s also not a great business strategy.

But even if you accept the spit tube’s categorization of a medical device, there are two major problems with that. The first is outlined by Ezra Klein, in an excellent column that harkens back to the point about the BBC’s two-year-old warning to the NHS:

“The legal question is pretty simple,” said Daniel Carpenter, author of “Reputation and Power: Organizational Image and Pharmaceutical Regulation at the FDA.” The definition of a device under the Federal Food, Drug and Cosmetics Act, Carpenter said, “is anything intended for the use or diagnosis of a disease or other conditions.”

But the FFDC was passed in 1938. The section on medical devices was updated in 1976. The personal genetic test — and the theory of personal medicine behind it — didn’t exist when the regulations were written.

The point Klein makes is that the regulatory infrastructure clearly needs rethinking to adapt to new realities. Adaptation and logic, however, are not the bureaucracy’s strong suits. The other problem with the FDA’s approach is that the agency seems to be using the medical device rule as a technicality on which to address its real concerns. Here’s the FDA’s explanation:

Some of the uses for which PGS is intended are particularly concerning, such as assessments for BRCA-related genetic risk and drug responses (e.g., warfarin sensitivity, clopidogrel response, and 5-fluorouracil toxicity) because of the potential health consequences that could result from false positive or false negative assessments for high-risk indications such as these. For instance, if the BRCA-related risk assessment for breast or ovarian cancer reports a false positive, it could lead a patient to undergo prophylactic surgery, chemoprevention, intensive screening, or other morbidity-inducing actions, while a false negative could result in a failure to recognize an actual risk that may exist. Assessments for drug responses carry the risks that patients relying on such tests may begin to self-manage their treatments through dose changes or even abandon certain therapies depending on the outcome of the assessment.

In other words, a customer will self-treat or self-medicate. But is that so realistic? Do potential breast cancer patients perform their own surgeries? Would they just snap their fingers and instantly be on chemotherapy? The reality is that they would consult with a doctor, perhaps several, on the road to such treatment, which if initiated would be recommended and supervised by medically-trained experts and professionals.

And as Reason’s Ronald Bailey points out, “Researchers around the world use the same biochip, the Illumina OmniExpress Plus, that 23andMe uses and find that it provides highly accurate results” and that the FDA approves tests with less-than-stellar accuracy rates.

Further, there is the thorny issue of the government overregulating your ability to access information about yourself. Is it the government’s place to put such information under (expensive) lock and key? And what about the research this puts on ice, to say nothing of the warning signal this sends to other would-be health startups? Nanny-staters usually defend their trespassing by casting themselves as defenders of public health. In this case, they are the obstacles.

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Healthcare.gov Isn’t First Botched Government Website

Beyond the acrimony and debates about the wisdom of ObamaCare, there is bipartisan recognition that the Healthcare.gov website has been a disaster. That the government spent $500 million developing the dysfunctional site compounds the scandal, which will be examined in coming days as representatives from the companies responsible testify in Congress later today.

That the government could invest hundreds of millions of dollars in a dysfunctional website should not surprise. After all, it has done it once before. Beginning in the late 1990s, the Defense Department began investing in the Defense Travel System (DTS), a website which was to enable Defense Department travelers to book their flights, hotels, and rental cars online using pre-negotiated rates. It was supposed to save the government money since it would enable the government to cut out the middlemen otherwise aiding official travel.

By 2006, the government had spent $500 million on the system. Here is an assessment from the time, written by a young Josh Rogin:

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Beyond the acrimony and debates about the wisdom of ObamaCare, there is bipartisan recognition that the Healthcare.gov website has been a disaster. That the government spent $500 million developing the dysfunctional site compounds the scandal, which will be examined in coming days as representatives from the companies responsible testify in Congress later today.

That the government could invest hundreds of millions of dollars in a dysfunctional website should not surprise. After all, it has done it once before. Beginning in the late 1990s, the Defense Department began investing in the Defense Travel System (DTS), a website which was to enable Defense Department travelers to book their flights, hotels, and rental cars online using pre-negotiated rates. It was supposed to save the government money since it would enable the government to cut out the middlemen otherwise aiding official travel.

By 2006, the government had spent $500 million on the system. Here is an assessment from the time, written by a young Josh Rogin:

The Defense Travel System has cost taxpayers almost $500 million in the past eight years. Lawmakers are vocal critics of the program, and many Defense Department executives, travel company officials and employees who are directed to use the system are dissatisfied with it… “It’s a fiasco,” said a senior DOD official who did not want to be identified because of the sensitivity of the topic. Each ticket booked through DTS requires the intervention of a commercial travel agent instead of being the touchless transaction system that DOD wanted, the senior official said. The intervention creates added fees and prevents travelers from making timely changes to existing reservations. Senior-level DOD officials are the people most affected by the transaction problems because they often travel on short notice. “You have a very dissatisfied, very senior-level user base, but you can’t change it because of the political realities,” the senior official said. Those realities include the way DOD manages the program and the contractors’ role in travel transactions.

Over the intervening seven years, the system hasn’t gotten much better. I use it frequently when I travel on government projects and, on a good day, it’s like using Expedia.com on a Commodore 64. Many military commands have had to hire permanent employees simply to handle DTS problems. Let’s put aside that tickets I could get on Expedia for $900 have cost $4,400 through the system: that’s a tremendous waste of taxpayer money but it’s more the fault of the bureaucrats who negotiate the airlines’ government contracts. Government tickets can be cancelled and changed without penalty, but simple quirks cost money: Several times I have changed or cancelled flights, only to notice that DTS rebooked the flights but charged for both new and old. Had I not pointed this out to DTS managers, the government simply would have paid the airlines double. Likewise, the DTS one-touch cancellation on travel authorizations still does not work.

Other problems are irritants: No one has updated realistic taxi fares limits in years, so what DTS allows for a taxi from Dulles airport to my home in suburban Maryland doesn’t conform to reality and regularly needs a supervisor’s override. Part of the reason it takes a huge time investment to book through DTS or file vouchers is that the system crashes inexplicably and saves work only periodically. True, unlike Healthcare.gov, DTS works at least 70 percent of the time, so I guess I should count my blessings. But I’m sure that DTS customers who read this blog can chime in with their own stories—I’ve seldom met a Defense Department employee who doesn’t have horror stories.

Why is government contracting so bad, and why does the government always settle for such sub-standard products? Here the problems are deeper. My colleague William Greenwalt last week had an insightful essay in the Wall Street Journal examining one problem, “The lunacy of fairness in government contracting.” He explains:

Earlier this year, in one of its first forays into government contracting, Amazon was awarded a large cloud-computing contract from the Central Intelligence Agency. However, IBM, one of the losing contractors, protested the award. The lawyers circled the wagons, and the Government Accountability Office overturned the contract award. What was Amazon’s mistake? It had the audacity to propose something better than what the government had originally requested. The CIA, to its credit, recognized the better solution and went for it. Isn’t that what the procurement process is supposed to do—get the best solution? Not in the Mad Hatter world of government contracting…

Healthcare.gov is a disaster. In the private sector, heads would roll if anyone spent a half billion dollars for such a dysfunctional product. That the government has now done the same thing twice, however, suggests the true fix must go beyond political posturing, and must begin to focus on some serious systematic reform.

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What Congress?

I’ve written in recent months about the antidemocratic trend of the government “legislating” not through the Congress but through unelected, unaccountable bureaucrats. To be sure, federal agencies often have the appropriate delegated authority to set regulations, but it has become far too common for the executive branch to empower bureaucrats specifically to get around the fact that their objectives would be or have been rejected through the democratic process.

Because liberals are far more enamored of the regulatory state than conservatives are, and because we currently have divided government, the temptation to do this has been especially great for President Obama. As I argued in July, this was key to understanding why Democratic Senate Majority Leader Harry Reid was threatening to “go nuclear” and change Senate rules on the fly to eliminate the filibuster for certain executive branch nominees–not over judicial nominees or legislation. Today, the Hill provides us with a story that confirms this:

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I’ve written in recent months about the antidemocratic trend of the government “legislating” not through the Congress but through unelected, unaccountable bureaucrats. To be sure, federal agencies often have the appropriate delegated authority to set regulations, but it has become far too common for the executive branch to empower bureaucrats specifically to get around the fact that their objectives would be or have been rejected through the democratic process.

Because liberals are far more enamored of the regulatory state than conservatives are, and because we currently have divided government, the temptation to do this has been especially great for President Obama. As I argued in July, this was key to understanding why Democratic Senate Majority Leader Harry Reid was threatening to “go nuclear” and change Senate rules on the fly to eliminate the filibuster for certain executive branch nominees–not over judicial nominees or legislation. Today, the Hill provides us with a story that confirms this:

President Obama has assembled a new cadre of lieutenants to enact policy shifts through regulation during his second term.

Many of the agency heads and top-ranking officials will be tasked with implementing scores of federal rules that will help shape Obama’s legacy. 

“In general, in a political environment in which passing new legislation is very difficult, most of the policy action is likely to come through actions taken within the executive branch,” said Philip Wallach, a fellow at the Brookings Institution. “Much of that is going to be regulation.”

The “centerpiece” of this regulatory onslaught, the Hill tells us, will be new carbon emissions rules designed to address global warming. This was so unpopular and politically untenable that Obama couldn’t get cap-and-trade legislation passed early in his first term when Democrats controlled both houses of Congress. After former Environmental Protection Agency director Lisa Jackson left her post for a job with Apple, I wrote about her history of authoritarian regulation, which no doubt put her on the administration’s radar years ago. I quoted Joseph Rago’s characterization of her as “an especially abusive and willful regulator, even for the Obama administration, and her epic rule-making bender continues to drag on economic growth.”

So it’s no surprise that the EPA figures so strongly into Obama’s plans to replace Congress with his unaccountable apparatchiks at the agency. More interesting, and more controversial, is another agency the Hill claims will be involved in this:

In the span of three days in mid-July, the Senate confirmed Labor Secretary Thomas Perez, Consumer Financial Protection Bureau (CFPB) Director Richard Cordray and Environmental Protection Agency (EPA) Administrator Gina McCarthy.
 
All three oversee agencies with significant rulemaking authority, and are seen as likely to regulate with gusto….

Observers expect the two-year-old CFPB to remain on the offensive as officials tackle new regulations for prepaid cards, debt services and payday loans.
 
“I don’t think its going to be like this forever but I think in the near term, while Cordray is in office, I can’t imagine that he’s going to take his foot off the accelerator,” said Alan Kaplinsky, a partner at the law firm of Ballard Spahr.

Now why would Cordray work so feverishly to cement his vision of the regulatory state? Because, as the Hill reminds us, Cordray was appointed “in controversial fashion.” Republicans were opposed to confirming Cordray, so Obama declared the Senate to be in “recess” when it unquestionably was not and then made a recess appointment. As Adam White explained, and as his headline blared, this was “An Unconstitutional Appointment to an Unconstitutional Office.” Yes, per the Hill, it was a “controversial” appointment, but it was also a delusional exercise of nonexistent power by a supposed constitutional law expert.

Cordray’s appointment was made on the same day as other magical “recess” appointments that the courts have rightly ruled unconstitutional, and on which the Supreme Court will eventually rule. That casts doubt on whether Cordray’s appointment will escape judicial oversight. In the meantime, he is going full speed ahead so that if his appointment is invalidated his unconstitutional power grab will be difficult to untangle.

And although President Obama’s obsession with control would suggest that these regulations are getting his careful consideration, the Hill story indicates otherwise. When the president was approached by a Republican senator recently about various regulations, he was told to talk instead to Denis McDonough, the chief of staff, who “has emerged as a major player in regulatory decisions.”

Should the American people be worried that McDonough has only been chief of staff since January, and is thus not terribly experienced in this regard? Not at all–the Hill tells us that before coming to the White House, McDonough worked at the liberal Center for American Progress as a global warming advocate. Were the senator’s concerns even addressed by McDonough? Apparently the senator followed up but “there has been no response from the White House.” That, I suppose, is to be expected; in this regulatory strategy, the existence of Congress is irrelevant. It follows that the concerns of a member of Congress would be treated as such.

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The Real Reason Reid Wants to Go Nuclear

For those trying to figure out the current state of partisanship, comity, and cooperation in the U.S. Senate, recent news would only add to the confusion. For example, the Hill published a story yesterday afternoon headlined “GOP presses for quick confirmation of Obama UN ambassador pick.” That sounded encouraging for those who think the president should have a great deal of latitude in choosing his own advisors, and the article did not disappoint.

The Hill tells us that Republicans want the nominee, Samantha Power, in her office and settled in by the time the September meeting of the UN General Assembly rolls around. Despite some initial criticism, “Her confirmation is all but assured.” It’s difficult to square that report, which is true, with Democratic Senate Majority Leader Harry Reid’s insistence that the sky is falling in on the Senate’s confirmation process due to Republicans’ intransigence, which is false. As Politico reports, Reid appeared on Meet the Press yesterday to sell his plan to deploy the “nuclear option” to change filibuster rules to speed through certain nominees:

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For those trying to figure out the current state of partisanship, comity, and cooperation in the U.S. Senate, recent news would only add to the confusion. For example, the Hill published a story yesterday afternoon headlined “GOP presses for quick confirmation of Obama UN ambassador pick.” That sounded encouraging for those who think the president should have a great deal of latitude in choosing his own advisors, and the article did not disappoint.

The Hill tells us that Republicans want the nominee, Samantha Power, in her office and settled in by the time the September meeting of the UN General Assembly rolls around. Despite some initial criticism, “Her confirmation is all but assured.” It’s difficult to square that report, which is true, with Democratic Senate Majority Leader Harry Reid’s insistence that the sky is falling in on the Senate’s confirmation process due to Republicans’ intransigence, which is false. As Politico reports, Reid appeared on Meet the Press yesterday to sell his plan to deploy the “nuclear option” to change filibuster rules to speed through certain nominees:

“The changes we’re making are very, very minimal. What we’re doing is saying: ‘Look American people, shouldn’t President Obama have somebody working for him that he wants?’” Reid said. “If you want to look at nominations, you know what the Founding Fathers said: ‘Simple majority.’ That’s what we need to do.”

Reid is set to deploy the “nuclear option” — which would allow 51 senators to change the Senate rules instead of the 67 that are normally required. Triggering it would dislodge several stalled Obama nominees, and it would allow senators to approve executive branch nominees — not judicial nominees or legislation — by a simple majority.

If Cabinet nominees are already getting through just fine, and the proposed changes won’t help judicial nominees or legislation get around the filibuster and receive an up-or-down vote, we can ask why Reid wants the changes enough to “go nuclear.” We can also ask Republican Senate leader Mitch McConnell why he opposes such changes so staunchly. One answer is that the nomination changes apply to the Consumer Financial Protection Bureau and the National Labor Relations Board, the latter of which President Obama staffed up by making appointments the courts have found to be unconstitutional, and Republicans want to wait for the Supreme Court’s ruling on the matter.

But the more important answer has to do with a fundamental difference in how the two parties wish to govern–and contrary to what you may hear from the media, it reveals McConnell’s GOP to have far more respect for Congress and the legislative process than Reid’s Democrats.

I wrote about this last month, pointing readers to law professor Jonathan Turley’s column in the Washington Post about the “rise of the fourth branch,” the administrative state that has increasingly usurped Congress’s lawmaking authority without replicating the accountability or (relative) transparency. This is the crux of Turley’s argument:

For much of our nation’s history, the federal government was quite small. In 1790, it had just 1,000 nonmilitary workers. In 1962, there were 2,515,000 federal employees. Today, we have 2,840,000 federal workers in 15 departments, 69 agencies and 383 nonmilitary sub-agencies.

This exponential growth has led to increasing power and independence for agencies. The shift of authority has been staggering. The fourth branch now has a larger practical impact on the lives of citizens than all the other branches combined.

The rise of the fourth branch has been at the expense of Congress’s lawmaking authority. In fact, the vast majority of “laws” governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats. One study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.

This rulemaking comes with little accountability. It’s often impossible to know, absent a major scandal, whom to blame for rules that are abusive or nonsensical.

The recent scandals at the IRS and EPA, in which a government bureaucracy, egged on by powerful Democrats, absorbed the establishment’s liberal bias so thoroughly as to be actively targeting conservatives, prove both the efficacy and the inherent corruption in this worldview. Democrats understand that if they control the bureaucracy they can install “legislators” who remain anonymous, unelected, and unaccountable. Reid can be voted out of office, but the IRS cannot.

Where once the energetic and youthful liberal grass roots at least had an anti-authoritarian suspicion of government power and abuse, today the liberal movement is united in its belief that government must expand–and keep expanding. When liberal intellectuals swoon over China’s authoritarian rule, it isn’t because they are enamored of Chinese Communism but because the consolidation of power into a ruling elite is, to these intellectuals, an unfortunate means to a desirable end. Sacrificing a bit of freedom and democracy isn’t optimal to the professional left, but otherwise they’d have to pass up an opportunity to impose their dubious and unpopular environmentalist activism on the country.

And the same goes for financial regulation and public-union backslapping. That’s why Reid is willing to “go nuclear” not over judicial nominees or legislation but bureaucratic agencies. Reid isn’t defending the Congress’s traditional role by speeding up votes; he’s changing rules on the fly to further weaken Congress while striking another blow against transparency and democratic accountability. What he hopes is that Americans won’t realize what’s at stake before it’s too late.

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Bureaucracy Versus Democracy

On May 20, the Supreme Court handed down a ruling that gave federal agencies increased deference as to their own scope of authority at the expense of Congress. It was only the latest win, law professor Jonathan Turley wrote in the Washington Post later that week, for the “fourth branch” of the federal government, “an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.”

We often talk about the growth of the federal government and especially the bureaucracy associated with it, and those topics are getting even more attention as the IRS scandal develops. But Turley put his argument in numbers: according to one study, “in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.” With the growth of the state came the creation of administrative courts tied to agencies to relieve the judiciary of regulatory cases. As a result, Turley writes, “a citizen is 10 times more likely to be tried by an agency than by an actual court.”

It’s easy to understand why agencies of the administrative state behave as if they are above the law: in many cases, they very nearly are. They have put themselves (often with lazy congressional collusion) beyond the oversight of the other branches of government. They are unelected, and therefore unaccountable–and in many cases their employees are impossible to fire. But beyond the abuse of power and undemocratic nature of this “fourth branch” are the costs. Taxpayers are on the hook for the generous salaries and lavish benefits of corrupt and incompetent bureaucrats. But they are also, as Niall Ferguson writes today in the Wall Street Journal in discussing a new study from the Competitive Enterprise Institute, paying the compliance costs.

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On May 20, the Supreme Court handed down a ruling that gave federal agencies increased deference as to their own scope of authority at the expense of Congress. It was only the latest win, law professor Jonathan Turley wrote in the Washington Post later that week, for the “fourth branch” of the federal government, “an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.”

We often talk about the growth of the federal government and especially the bureaucracy associated with it, and those topics are getting even more attention as the IRS scandal develops. But Turley put his argument in numbers: according to one study, “in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.” With the growth of the state came the creation of administrative courts tied to agencies to relieve the judiciary of regulatory cases. As a result, Turley writes, “a citizen is 10 times more likely to be tried by an agency than by an actual court.”

It’s easy to understand why agencies of the administrative state behave as if they are above the law: in many cases, they very nearly are. They have put themselves (often with lazy congressional collusion) beyond the oversight of the other branches of government. They are unelected, and therefore unaccountable–and in many cases their employees are impossible to fire. But beyond the abuse of power and undemocratic nature of this “fourth branch” are the costs. Taxpayers are on the hook for the generous salaries and lavish benefits of corrupt and incompetent bureaucrats. But they are also, as Niall Ferguson writes today in the Wall Street Journal in discussing a new study from the Competitive Enterprise Institute, paying the compliance costs.

Though Ferguson writes that “final rules” emanating from the regulatory state in the last decade “have outnumbered laws passed by Congress 223 to 1,” that number seems slightly misleading if only because some congressional laws (alas, too many) create via the democratic process multiple new regulations or the necessary regulatory authority. Nonetheless, Ferguson writes:

The cost of all this, Mr. Crews estimates, is $1.8 trillion annually—that’s on top of the federal government’s $3.5 trillion in outlays, so it is equivalent to an invisible 65% surcharge on your federal taxes, or nearly 12% of GDP. Especially invidious is the fact that the costs of regulation for small businesses (those with fewer than 20 employees) are 36% higher per employee than they are for bigger firms.

Next year’s big treat will be the implementation of the Affordable Care Act, something every small business in the country must be looking forward to with eager anticipation. Then, as Sen. Rob Portman (R., Ohio) warned readers on this page 10 months ago, there’s also the Labor Department’s new fiduciary rule, which will increase the cost of retirement planning for middle-class workers; the EPA’s new Ozone Rule, which will impose up to $90 billion in yearly costs on American manufacturers; and the Department of Transportation’s Rear-View Camera Rule. That’s so you never have to turn your head around when backing up.

Ferguson ties the growth of the regulatory state to the concurrent decline in “American associational life,” that essential communal space between government and the individual.

The existence of a stable federal bureaucracy has its advantages–to a point. It enables the government to retain institutional memory and train and prepare its workers to ensure that each new Congress and presidential administration is not starting the project of American governance from scratch. The frustrating inability to clean house when faced with institutional decay can also protect against partisan witch hunts or the accumulation of too much power within any one administration.

But it requires a durable system of transparency, oversight, and accountability or it will insulate itself from the trappings of democracy and do what all bureaucracies do instinctively if not consciously (though often both): act in service to its own perpetuation. That means problems will go deliberately unsolved and a defensive paranoia will seep into the system. The IRS’s targeting of groups named after the most famous antitax protest in American history is a pristine example of this kind of bureaucratic self-preservation that is so corrosive to the authority, credibility and, most important, balance of power represented by the three federal branches it has too often supplanted.

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The IRS Scandal: the Future of Big Government Is Now

Regardless of where the investigation into the IRS’s enormous abuse of power leads, the scandal is already a headache for the Obama administration–and the Democratic Party in general–for the simple reason that it highlights the irresponsibility of the left’s project of ever-expanding and unaccountable big government. The fact that the IRS has been engaged in a campaign of harassment, intimidation, and suppression of conservative non-profits during the Obama presidency has rightly been the focus of reporting on the scandal. But there is an important detail that should not be overlooked.

We now know that the IRS campaign targeted not just explicitly “Tea Party” or other patriotic-sounding organizations, but “ones worried about government spending” and those who “criticize[d] how the country is being run,” as the Wall Street Journal reported. In other words, the IRS targeted anyone who disagreed with the president. Yet as outrageous as this is, there is an element of inevitability to it. The IRS is empowered to silence groups that IRS officials believe may oppose the IRS’s powers–which the IRS is abusing at will for its own financial and political benefit. So they simply used the powers they were given, and which are expanding under ObamaCare, to protect themselves and the administration from their common foes.

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Regardless of where the investigation into the IRS’s enormous abuse of power leads, the scandal is already a headache for the Obama administration–and the Democratic Party in general–for the simple reason that it highlights the irresponsibility of the left’s project of ever-expanding and unaccountable big government. The fact that the IRS has been engaged in a campaign of harassment, intimidation, and suppression of conservative non-profits during the Obama presidency has rightly been the focus of reporting on the scandal. But there is an important detail that should not be overlooked.

We now know that the IRS campaign targeted not just explicitly “Tea Party” or other patriotic-sounding organizations, but “ones worried about government spending” and those who “criticize[d] how the country is being run,” as the Wall Street Journal reported. In other words, the IRS targeted anyone who disagreed with the president. Yet as outrageous as this is, there is an element of inevitability to it. The IRS is empowered to silence groups that IRS officials believe may oppose the IRS’s powers–which the IRS is abusing at will for its own financial and political benefit. So they simply used the powers they were given, and which are expanding under ObamaCare, to protect themselves and the administration from their common foes.

Conservatives and liberals have been engaged in a debate over the size and scope of government to a greater degree in the Obama era in part because the president takes a radically different approach to the issue than his predecessors, both Republican and Democrat. (It was the Democrat Bill Clinton, after all, who declared the era of big government to be over.) Conservatives have long argued that restraining big government is a worthy goal in itself. But in the era of Obama, Democrats have been arguing just the opposite nonstop.

That’s why liberals scoffed at the recent Medicaid study showing, once again, that a central and expensive element of ObamaCare doesn’t work. But as was clear from Paul Krugman’s response, with few exceptions Democrats don’t see ObamaCare as a means to improving health; they see it as a massive expansion of government empowered to transfer wealth and play favorites. Expanding government’s power and reach–if possible, without a related increase in transparency or accountability–is the central ideological component of the modern Democratic Party’s worldview.

When Republicans warned of “death panels,” the overheated rhetoric was describing an entirely realistic scenario: ObamaCare putting unaccountable bureaucrats between patients and their doctors. And the line of attack resonated because the Democrats’ plans were so baldly undemocratic and invasive. As the Washington Post reported in February, a new Pew poll showed that “for the first time in at least the last two decades, a majority of Americans say Washington actually poses a threat to their ‘personal rights and freedoms.’”

The rise in bureaucracy alarmed Robert Nisbet, who wrote nearly 40 years ago:

Few things so clearly separate the liberalism of the nineteenth century from twentieth-century liberalism and progressivism as the nearly complete acceptance by the latter of bureaucracy. It is one of the tragedies of our age that the pluralism to be seen in so much of the social thought of the late nineteenth century and the concomitant inclination toward the local and the voluntary have virtually disappeared in our time, commonly referred to, if referred to at all, as archaisms and atavisms….

This is, of course, precisely the situation that Weber had in mind when he wrote early in the century about the conflict between bureaucracy and democracy, with the latter tending toward ever greater excesses of demagoguery. The paradox presented is tragic indeed. Through democracy, historically, bureaucracy has constantly expanded, the result of the rising number of social and economic functions taken on by the democratic state. But when bureaucracy reaches a certain degree of mass and power, it becomes almost automatically resistant to any will, including the elected will of the people, that is not of its own making….

Poll after poll among all elements of the population will reveal widespread hostility, but for the bureaucracy such evidence bespeaks only ignorance and the need of still greater bureaucracy for the purpose of liberating the people from their prejudices.

Nisbet closes that particular train of though on a quite pessimistic note:

More and more, I suspect, revolt in the West in whatever form it takes–peaceful and political, violent and terroristic, or military–will consist of hatred of bureaucracy and passionate desire to destroy it. It is the immensity of bureaucracy at the present time, and the growing immensity of opposition to it, that promises a drive toward total reconstruction that must itself be laden with implications of despotism.

Put simply, growing and unaccountable bureaucracy pits the government against the people. That is what we are seeing on a chilling scale with the IRS scandal. That is why Americans have remained so opposed to ObamaCare and other elevations of the bureaucracy over the public will–at the public’s personal expense, it should be noted, and for which the IRS comes collecting each year to fund its further insulation from the democratic process.

And that is why Americans expect the administration to take this scandal as seriously as they do and take action that would sufficiently curtail the taxman’s ability to run interference for the president and suppress his political opponents. Significant steps to rein in the IRS have to be taken–that much we know. The only question remaining is whether Democrats will move to clean up IRS corruption or continue profiting from it.

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Atrocities Prevention Board, One Year Later

President Obama announced the creation of the Atrocities Prevention Board a year ago today. Less than four months later, my colleague Michael Rubin pointed out the futility of the board, noting that it would “never be able to enact policies against the will of the White House, the State Department, or Congress.” Over the past year, the board has been conspicuously invisible, and not just on Syria. Robert Skloot and Samuel Totten lament the on-going atrocities committed by the Islamist regime in Sudan, and note that:

The Atrocities Prevention Board seems to have accomplished little to nothing over the past year. It has issued no pronouncements in regard to any of the ongoing humanitarian crises in the world — not about the appalling situation in Sudan, in Congo, in Syria and so on. Members of the board have also refused to respond to correspondence from dozens of scholars of genocide studies and human rights activists (ourselves included) calling on the board to urge Obama to insist that the United Nations support actions that would protect vulnerable and suffering populations. Our letters have gone unanswered and unacknowledged.

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President Obama announced the creation of the Atrocities Prevention Board a year ago today. Less than four months later, my colleague Michael Rubin pointed out the futility of the board, noting that it would “never be able to enact policies against the will of the White House, the State Department, or Congress.” Over the past year, the board has been conspicuously invisible, and not just on Syria. Robert Skloot and Samuel Totten lament the on-going atrocities committed by the Islamist regime in Sudan, and note that:

The Atrocities Prevention Board seems to have accomplished little to nothing over the past year. It has issued no pronouncements in regard to any of the ongoing humanitarian crises in the world — not about the appalling situation in Sudan, in Congo, in Syria and so on. Members of the board have also refused to respond to correspondence from dozens of scholars of genocide studies and human rights activists (ourselves included) calling on the board to urge Obama to insist that the United Nations support actions that would protect vulnerable and suffering populations. Our letters have gone unanswered and unacknowledged.

As Michael noted, one of the weaknesses of the left’s approach to human rights, illustrated both by Samantha Power, the head of the board, and Professors Skloot and Totten, is their reliance on the United Nations. And there is something piquant about a board that must, if it is true to its mission, call for more U.S. interventions, being brought into existence by a president who has made it perfectly clear that he wants to intervene less. Max Boot recalls that Power has criticized U.S. officials for tending to oppose both genocide in the abstract and American involvement in particular cases. I’d add that, before Iraq and Obama came along, Power made a living on her explicit claim that the problem was lack of political will to intervene, and that ways should be found to raise the political cost to leaders who refuse to do so. When the board was announced, critics feared it would be a bully pulpit for intervention. There seems no risk of that today. Far from raising Obama’s costs, the board is in practice enabling his leadership from behind.

A look at the White House “Fact Sheet” of a year ago shows just how easy it is to put out bold-sounding statements that are undermined by events. According to this “comprehensive strategy,” the U.S. is supposed to deny visas to human rights abusers: it took Congressional leadership to pass the Magnitsky Act, and the administration’s implementation of its visa restrictions has been half-hearted at best. The strategy was supposed to “increase the ability of the United States Government to ‘surge’ specialized expertise”: as Elliott Abrams notes in his recent review of David Rohde’s Beyond War, the Afghan surge was flawed from the start by Obama’s insistence that it last only 18 months, which led to the predictable waste of U.S. foreign aid. And, of course, there was its predictable emphasis on strengthening the U.N.’s capacity, which, after the U.N.’s catastrophic, cholera-inducing intervention in Haiti, is a bad joke.

It’s about as likely that the U.S. will develop the ability to predict atrocities before they happen as it is that we’ll develop the ability to predict events like the Arab Spring before they happen. It’s all too easy to make a list of places where bad things are more likely to happen: any place where government is either really strong or really weak is a contender to head the list. Nor is there any secret about where the world’s atrocities are happening today: Syria, North Korea, Iran, the DRC, and Sudan, among others. The usual suspects.

The problem is not that we lack the administrative tools to recognize this. It’s not even that this administration has in practice been more interested in cozying up to Russia, downplaying radical Islamism, and kicking the can down the road in Syria and Iran, though all of that will feature heavily in the work of a future Samantha Power. It’s that these are, in Power’s own words, problems from hell, and you don’t address problems from hell with a nice, well-mannered, invisible inter-agency board.

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The Oil Boom Continues

Guess which country is the world’s largest oil producer. No, it’s not Saudi Arabia or Russia. It’s the United States, which passed Saudi Arabia in November of 2012, according to data from the federal Energy Information Administration and reported in Investors Business Daily.

In 2012 American domestic output rose by an astonishing 800,000 barrels a day. That’s more than total oil production in such middling oil producers as Argentina, and the greatest single-year increase in the United States since Edwin Drake drilled the first well in 1859.

That has consequences far beyond the oil patches of Texas, Alaska, and North Dakota. In 2006, the United States imported 60 percent of its oil. In 2013, that might well fall to 30 percent. That would mean roughly a $600 million turnaround in the balance of payments per day.

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Guess which country is the world’s largest oil producer. No, it’s not Saudi Arabia or Russia. It’s the United States, which passed Saudi Arabia in November of 2012, according to data from the federal Energy Information Administration and reported in Investors Business Daily.

In 2012 American domestic output rose by an astonishing 800,000 barrels a day. That’s more than total oil production in such middling oil producers as Argentina, and the greatest single-year increase in the United States since Edwin Drake drilled the first well in 1859.

That has consequences far beyond the oil patches of Texas, Alaska, and North Dakota. In 2006, the United States imported 60 percent of its oil. In 2013, that might well fall to 30 percent. That would mean roughly a $600 million turnaround in the balance of payments per day.

This revolution has been accomplished on private and state lands, thanks to new technologies such as fracking and horizontal drilling. This has not only opened new fields, such as the Bakken shield in North Dakota, but revived old fields such as the great Permian basin in West Texas and New Mexico. West Texas production had been declining for years after peaking about 1970. Now it is growing again.

The Obama administration has been doing its level best to see that this renaissance in American oil production is throttled in its crib. Vast areas of offshore are off limits, as are many areas of federal land. (The federal government owns about 28 percent of all the land in the country, roughly 635 million acres.) And the Obama administration has been slow-walking drilling permits. In North Dakota it takes about 10 days to get a permit for drilling on state land. The wait for federal permits averages 307 days. As a result, oil production on federal land has actually been declining in recent years while increasing everywhere else. Not only does that retard our increasing independence from foreign oil, it costs the federal government serious money, as the government is paid handsome royalties on minerals extracted on federal land.

There’s probably not much to be done about that as long as the deeply anti-capitalist so-called “environmental movement,” is in charge of energy policy in Washington. But the country is very lucky the federal government only directly controls 28 percent of the country’s territory.

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