Legislatures and Administration
The U.S. Constitution creates NO government agencies
Only Congress, the Presidency, and the Supreme Court
All government agencies are created by acts of Congress
Every agency program is created by Congress
Every year Congress sets the budget of an agency and its programs.
(Caveat, the states)
Long ballot or plural executive states
Some state agencies created by the state constitution
Justice / Attorney General, Treasury, Comptroller
Newer functions are created by legislatures and usually have the biggest budgets
Health, Environment
Important Terms / Concepts / Topics
Define Congressional oversight, police patrol vs. fire alarm oversight
Executive branch-legislative branch differences
Congressional committee structure and administrative agencies
Iron triangle, what is it and why
Sunset legislation and its effectiveness
APA, agency rulemaking, notice and comment
Federal Register and what it contains
FOIA, amendments and interpretations
Hard wiring or stacking the deck – meaning and examples
CBO and what it does
GAO and what it does
US Comptroller General vs. state comptrollers, any differences?
Where, how, and why do legislatures exercise administrative power
Authorization
Agency and program creation, budget caps, procedures, authority delegations
Annual appropriations
Actual allocations, including earmarks
Oversight
Budget reviews, investigations, termination
Personnel
Senate confirmations
We Will Examine:
Traditional Oversight
Legislation for procedures / information
APA, FOIA
Hard-wiring legislation
Legislative Agencies
Congressional Oversight
After an agency or program is created Congress reviews its operation
Congress gathers information on agency activities to ensure that they comply with the law and congressional preferences.
Some Purposes of Congressional Oversight are to:
assure that the intent of Congress is followed.
uncover fraud, waste, and abuse.
gather information on agency activities.
assess agency performance.
defend congressional prerogatives from presidential encroachment.
provide a forum for members of Congress.
repeal unpopular agency decisions.
Oversight involves:
Legislative vs. executive priorities
Systematic vs. sporadic
Police patrol vs. fire alarm
The role of committees in oversight and agency organization / reorganization
Legislature Vs. Executive
Congress and President (and state legislature versus governor) have different:
Constituencies
Interests
Skills
Paths to re-election
Executive and Legislative Branches will always have disagreements
Even if controlled by the same party
Oversight is not politically rewarding
Legislators gain few votes from oversight
Many issues are technical and not interesting to the public
Legislators win re-election by
Legislating – credit for enacting (or blocking) new policies
Earmarked funds (pork)
Casework
Partisanship
Congressional Oversight is Sporadic
Not systematic on consistent
Takes place when
New laws, programs or amendments are requested
Budgets are renewed each year
Problems are reported in the news
Police Patrol vs. Fire Alarm Oversight
Police Patrol
Regular and systematic review to catch problems before they start
Model: police officers patrolling a beat
Fire Alarm
No regular supervision
React only when someone pulls the fire alarm
i.e., citizens or media get very interested in a situation
Committees and oversight
Congress at work is Congress in committee
True of legislating, budgeting, and oversight
Annual budget reviews by relevant committee
What Do Committees Do?
All legislation – amendments, new programs, budget changes -- must first be referred to a committee.
Any bill introduced may spur committee action
Committees screen bills for important issues
90% of bills are tabled and never acted on
If legislative action needed
Hold hearings
Usually involves the leaders of the agencies or programs involved
May involve agency clients / interest groups
Markup for new legislation
Fire Alarm Oversight
Hearings to highlight problems
Embarrass agency leaders into changing practices
Committee may overturn an agency rule or action
All agency power stems from Congressional delegation of authority which Congress can take back
Congressional committee structure tends to mirror agency structure
Community of Interests makes reorganization difficult
Not just an executive branch issue
Moving around the boxes on an organizational chart
Reorganization requires a restructuring of Congress
Disruption of old patterns of member – interest group – agency relationships
May lead to agency or programs being handled by a different committee
CONGRESSIONAL INFLUENCE THROUGH LEGISLATION
Sunset Legislation
Administrative Procedures Act -- APA (1946)
Freedom of Information Act -- FOIA (1966)
Privacy Act (1974)
Sunset Legislation
Almost exclusively at state level
Similar elements in budget processes at all levels
Requires agencies to be periodically reviewed from the ground up
Recreated by legislature or eliminated
Largest agencies with influential clients are not going to be eliminated
Too big to fail
Has greatest impact on very small agencies
Has yielded some positive results, but nothing massive
Administrative Procedures Act (APA)
(1) Requires agencies to keep the public informed of their organization, procedures and rules;
(2) Provides for public participation in the rulemaking process;
(3) Establishes uniform standards for the conduct of formal rulemaking and adjudication;
(4) Defines the scope of judicial review of agency rules
Quasi-Judicial
Agency rulemaking is often termed quasi-judicial
Rules based on legislative delegation of authority
Have the force of law
Enforced by agency through monitoring
Often hold hearings if a party challenges a penalty
Hearings may be run by arbitration or using administrative law judge
Legislators are generalists
Not familiar with the details of many issues
No interest in running a program
Substantial decision authority delegated to administrative agencies
Make rules to implement goals of legislation
Rules have the force of law
Principal-Agent problem
– do rules represent Congressional intent
Each DAILY issue of the Federal Register contains:
Presidential Documents (executive orders and proclamations)
Rules and Regulations (policy statements and interpretations of rules by federal agencies)
Proposed Rules (petitions by agencies for assistance in rulemaking and other proposals)
Notices (scheduled hearings and meetings open to the public, grant applications, and administrative orders)
Most Important is “Notice and Comment” provision
Before an agency can enact a rule is must announce its intent (Notice)
All interested parties are allowed to comment
Orally or in writing
A public hearing is scheduled
Eventually final rule is announced
“Notice and Comment” slows down the enactment of rules
Delay gives all interested parties a chance to comment and participate
And also to notify elected representatives that a proposed rule may be controversial
Congress could prevent or void a rule before it is implemented.
Non-rule making
FOIA
Privacy Act Amendments
Goal is still to force information out of bureaucracy
Freedom of Information Act (FOIA)
Important and Highly Controversial
Forces disclosure of information upon request by a citizen
Exempts security, proprietary, and various personnel information
Applies only to the Executive Branch
Also makes information available to members of Congress
Privacy Act Amendments (1974)Gives citizens
(1) the right to see records about oneself, subject to the Privacy Act's exemptions,
(2) the right to amend that record if it is inaccurate, irrelevant, untimely, or incomplete, and
(3) the right to sue the government for violations of the statute including permitting others to see one’s records
President Ford inclined to sign the act, but dissuaded by:
Chief of Staff Donald Rumsfeld
Rumsfeld’s deputy chief of staff Dick Cheney
And government attorney Antonin Scalia
Ford vetoed, but congress passed over his veto
President Reagan
Allowed federal agencies to withhold enormous amounts of information under Exemption 1 of Act
Argued was to better protect the country and strengthen national security.
In effect from 1982 to 1995
President Clinton
Issued executive directives (and amendments to the directives)
Allowed the release of previously classified national security documents more than 25 years old and of historical interest
(Side note: orders, versus directives versus . . . . )
Variations of Presidential official statements
Administrative Orders
•Presidential Determination
•Presidential Memorandum
•Presidential Notice
Presidential Directives
•National Security Directives
•Homeland Security Presidential Directives
Presidents G.W. Bush and Obama
President George W. Bush
Executive Order 13233, (drafted by Alberto R. Gonzales) and issued on November 1, 2001
Restricted access to the records of former Presidents.
President Barack Obama
Executive Order 13489 revoked Bush’s Executive Order above
Issued January 21, 2009, Obama’s first day in office
All of these legislative actions
And the push and pull of various presidential administrations
Affect legislative versus executive influence over administrative agencies
Legislative “hard-wiring”
APA, FOIA, etc. affected rule making and other post-legislation actions of agencies
Legislative influence can also take place in the legislation itself
Hard-wiring, ex ante control, stacking the deck
Congress biases the process to make its desired outcome more likely
Rather than constantly reviewing administrative actions
Desired outcome is often to favor a particular constituency
Influence on rules of favored groups or values can be enhanced by:
specifying administrative decision rules
defining decision criteria
adjusting the evidentiary burden for administrative decisions in a way that favors a group,
enfranchising new groups
subsidizing poor but important interests
Congressional Agencies
Government Accountability Office (GAO)
Congressional Budget Office (CBO)
Lesser agencies (for our purposes):
Library of Congress
Architect of the Capital
Government Printing Office
Government Accountability Office (GAO)
Formerly titled Government Accounting Office
Name change reflects expanded responsibilities
The audit, evaluation, and investigative arm of the United States Congress
Referred to as "The Congressional Watchdog“
GAO examines agencies and programs, often at the request of a congressional leader or committee
Reports on effectiveness, waste, etc.
An independent check on the executive and administrative agencies
GAO headed by the Comptroller General of the United States
A non-partisan position appointed by the President for a 15-year, non-renewable term.
Nominee must come from a list of at least three individuals recommended by an eight member bipartisan, bicameral commission of congressional leaders.
The Comptroller General may not be removed by the President, but only by Congress
State Comptrollers
Many are part of the plural executive
Are political leaders elected by state-wide campaigns
Some are legislative officials similar to the national model
Go under the title of Comptroller or Controller
Congressional Budget Office (CBO)
Created as an independent non-partisan agency by the Congressional Budget and Impoundment Control Act of 1974.
Act was in response to impoundment by Nixon administration
But also growing complexity of federal government and its budget
Congress needed independent information
The Speaker of the House of Representatives and the President pro tempore of the Senate jointly appoint the CBO Director
Serves a 4-year renewable term
The agency each year issues An Analysis of the President's Budgetary Proposals for the upcoming fiscal year
provides testimony in response to requests of the various Congressional Committees on cost of new programs
State Legislative Budget Agencies
Depends on the level of professionalism of the state legislature
Highly professional states usually have them, less professional states do not
Level of professionalism reflected in legislative sessions and salaries