Kevin R. Kosar
March 15, 2007
A review of Madison's Managers: Public Administration and the Constitution, by Anthony M. Bertelli and Laurence E. Lynn Jr.
In our democratic republic, civil servants wield an awesome amount of power.
The source of their potency is the indeterminacy of the law. Usually, statutes are not prolix treatises that define every word used and detail the precise means for carrying out the prescribed ends. Rather, laws are the product of compromise and hard bargaining. Squishy language often is employed to win votes; hard decisions go unmade. Time exacerbates the ambiguity, as law after law is layered one upon the other, creating multiple and often contradictory policy goals.
Bureaucrats, often lampooned and maligned, have the unenviable duties of making sense of the law and executing it. Through their efforts, legal words become government actions—regulations are devised, rules adopted, programs initiated and operated, and situations unforeseen by the Solons addressed. In carrying out these tasks of governance, what values should guide them? What ought a bureaucrat do?
This venerable question has proven vexing to bureaucrats, politicians, courts, and the public. Public administration theorists and, more recently, management gurus, have wrestled with this question since Woodrow Wilson was a young scholar. Frequently, as Madison's Managers shows, the answers they have come up with have not been satisfactory. Bureaucrats have been told that they should be efficient, apolitical, impartial, impersonal, objective, creative, and entrepreneurial. They been told to follow best practices, maximize results, carry out the public will, promote democratic values, and, above all, be "responsive and responsible."
Bertelli and Lynn take a wrecking ball to this Tower of Babel. First, they note, the values touted by many of these theorists and management experts are extra-constitutional. That is, they are external to the position of the bureaucrat as an employee of the federal government under the U.S. Constitution. Hence, the exercise of administrative power under the guidance of such values is illegitimate, a betrayal of their duty as public servants.
Second, by relying on these extra-constitutional bases for their actions, bureaucrats invite something they dislike—reprisal by the three political branches. The President, Congress, and the courts all have shown themselves more than happy, the authors explain, to rein in administrator's discretionary powers. The results of these efforts come with costs. For example, when the judicial branch dictates that an agency must follow additional procedures before exercising its power, administrative costs climb and efficiency declines. Though not much explored in this volume, interventions by one branch often elicit interventions by others, further embattling an agency.
Bertelli and Lynn argue that the solution to this conundrum lies within the Constitution itself. "Our political philosophy...is Madisonian, that is, concerned with perfecting institutions that control faction and power." Government personnel offices should recruit and train persons who are likely to follow the "precept of managerial responsibility." The authors explain,
The commonsense logic of the precept is easy to summarize. Judgment is the sine qua non of responsible administration, necessitated by the delegation of legislative authority. Public managers are agents...[who] make expert judgments in fulfillment of objectives. In our republican scheme, these objectives are electorally connected to citizens. The content of managerial judgment consists of balance: acceptance of responsibility for identifying and reconciling the inevitable conflicts among interests, mandates and desires: habitual resort to the relationship between action and consequences to ensure transparent justifications for managerial action. Balanced and rational judgments sum to accountability: individual commitment to the exercise of judgment that is balanced and rational and that, aggregated over all public managers, becomes the institutionalized acceptance of the separation of powers.
In the course of deriving this "solution," the authors make a lengthy tour through the history of public administration theorizing. Readers unfamiliar with the writings of early 20th-century public administration theorists such as Ernst Freund, might find this survey a bit mind boggling. Bertelli and Lynn's coverage is laconic and the quotes and references pile up awfully quickly. Readers who can work their way through this, though, will find that the authors intend to show us that the old fogies of public administration had something to teach us about good government. They were not, as caricatured later by some scholars, eggheads who bloviated obtuse abstractions. Rather, they were pragmatists who, like Bertelli and Lynn, endeavored to craft a legitimate role for the exercise of bureaucratic power within the confines of the Constitution. This exposition by Bertelli and Lynn is a considerable contribution to scholarship on the history of public administration theory.
In making their case for managerial responsibility, the authors utilize game and social choice theories. Readers may find this chapter even more challenging than those on the history of public administration theory. Put crudely, these approaches to theorizing about behavior presume individuals to be rational seekers of selfish goals. Prima facie, microeconomic modeling would not appear to offer much hope for devising a proposal to create a government staffed by good public servants. The authors, though, deduce a clever answer. Put roughly, government should staff itself with persons who want to be bureaucrats and receive the various long-term rewards thereof. More specifically, government personnel offices should hire individuals those who will pursue their self interest through the managerial precept. This solution avoids reliance on high-minded or selfless behavior by bureaucrats, which, presumably, is not to be counted upon.
Madison's Managers has much to offer the student of public administration. Its ambitious objective, compelling arguments, and impressive scope make it commendable.
That said, it is not without imperfections. The "Madisonian solution" proposed would only affect positions staffed by civil servants. This is problematic since it excludes appointees, individuals who often have significant powers to direct the behavior of an agency. (Think Michael Brown of the Federal Emergency Management Agency.) The solution also does not cover private sector contractors, who, increasingly, perform governmental work.
Also, the authors seem to use the word "responsible" loosely, sometimes synonymously with "responsive." In political theory, these words mean quite different things. In erecting the Constitution, the Founders were not much interested in creating a "responsive" government. The Constitution, of course, contains numerous curbs on democratic participation and bulwarks against popular tumults. Moreover, it seems unobjectionable that bureaucrats should be responsible; but, one must ask, to whom or what? The public, a great abstraction and, as Walter Lippmann made clear, a "phantom"? To Congress, a many-headed beast rarely of single mind? To presidents, who come and go every four or eight years? To the law and the Constitution? The authors' ultimate position was unclear to this reader.
Speaking of the Constitution, I was surprised that Bertelli and Lynn did not discuss the oaths that public servants must take. Title 5, section 3331 of the U.S. Code requires:
An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: "I [insert your name] do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."
Similarly, the Constitution's Article IV, Clause 3 requires an oath of Members of Congress and government officers: "The Senators and Representatives...and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." Oaths and the values they embody would seem relevant to a discussion of the means for binding and directing administrators' actions.
An additional shortcoming is this—the authors do not attempt to persuade the reader that bureaucrats can be expected to behave according as the book prescribes. If we accept Madison's rather gloomy view of human nature, the odds that bureaucrats, no matter how well selected, consistently will behave according to judgment, balance, rationality, and accountability are not good. No doubt some public servants will keep their eye on the long-run; but can we expect this of most?
However, if we grant the authors this point and assume government can staff itself with right-minded public managers, another question arises—what is the probability that the political branches will leave bureaucrats alone to do their work? Yes, an agency whose employees are reputed to be irresponsible would seem likely to invite more frequent outside interventions than one with well-behaved bureaucrats. Hence, smart bureaucrats should heed the authors' words. But, presidents and members of Congress, inevitably, have their own ideas about what agencies should do and what their guiding values should be. The administration of George W. Bush, for example, has vigorously encouraged agencies to achieve performance goals. Under "performance budgeting," agencies that hit their production targets may be rewarded; those that do not may have their budgets cut. Results count; being rational, balanced and so forth in the pursuit of the results matters less. No doubt that future Presidents and Congressmen will have different notions about what bureaucrats ought to do.
It also is the case that Presidents and legislators have political interests to pursue. The former often believe that bureaucracies should be, first and foremost, a tool of the executive. The latter, as we might expect, often hold that agencies should answer to Congress first. In part, this is a matter of self-interest; in part, it is a reflection of divergent views of the extent of power provided to the executive branch by the Constitution. If getting what they want means coercing an agency then many Presidents and Members of Congress will do so.
The Constitution, as Edward Corwin said, is "an invitation to struggle." Madison himself, as Bertelli and Lynn are well aware, argued that the separation of powers was to be maintained by structuring the Constitution in a way that "ambition must be made to counteract ambition." Hence, government bureaucracies, fair or not, almost inevitably find themselves caught between the branches, subject to raids by one disgruntled executive, congressional, or judicial overseer or another.
The dream of a bureaucracy freed from interference from elected officials, which has been fancied by public administration theorists for over one hundred years, seems likely to remain just that. It is far too easy for those with political motives to bash bureaucracies and demand reforms. Hence the advice old bureaucrats often give to freshly minted ones—"obey the law and stay out of the newspapers."