Features » August 18, 2008

Feeding the Beast (cont’d)

The free-market regulator

Less than four months after signing Executive Order 13422, Bush appointed Susan Dudley as head of OIRA during a congressional recess in April. (The consumer group Public Citizen had spent the previous year fighting the appointment, decrying Dudley as an “anti-regulation zealot.”)

Dudley’s background made her a strange choice. Prior to her nomination, she directed the Regulatory Studies Program at the Mercatus Center, a free-market think tank that advocates limited government regulation. In a 2005 Mercatus policy brief, Dudley referred to regulations as “a hidden tax on Americans.”

The think tank – which receives funding from ExxonMobil – has been criticized for downplaying the risks associated with global warming. Several months after Dudley’s appointment, Mercatus issued a white paper defending Executive Order 13422.

Seven months before her recess appointment, Public Citizen, together with OMB Watch, issued a 68-page report on Dudley, highlighting positions she has taken against the Occupation Safety & Health Administration (OSHA), the EPA and the Securities & Exchange Commission (SEC).

“Not since OIRA was created … has there been a less appropriate nominee,” Gary D. Bass, OMB Watch executive director, said in the report.

Supporters of Dudley’s appointment, including Heritage Foundation’s Senior Fellow on Regulatory Policy James Gattuso, vigorously defended her, while simultaneously confirming the basic premise of her critics’ concern.

“Dudley’s work shows that she is not so much prejudiced against regulation as wary of it,” he wrote in a 2006 Heritage Foundation paper. “Dudley will bring to the job a wariness of new rules and an expertise in analyzing rules’ likely effects, both of which are appropriate, even essential.”

Untangling the knot

Whoever takes over the White House will face the monumental task of undoing some 30 years of bureaucratic layering that has seen the number of political appointees grow from 400 in 1961, to roughly 3,000 today. In a recent article for the Politico, Light warned that unless the next president begins fixing government, he will preside over “a string of meltdowns that will make the federal response to Hurricane Katrina look like a minor mistake.”

Many legal scholars, including Frederick Schwarz Jr., senior counsel of NYU Law School’s Brennan Center for Justice, say the problems extend beyond the Bush administration. They argue that the executive branch needs a complete overhaul.

Schwarz recommends establishing an investigatory commission – similar to the Church Committee of the ’70s that looked into illegal intelligence activities – to begin the process of unraveling the bureaucracy.

Vanderbilt’s Lewis agrees. He says the first thing a new president should do is commission a study of the federal personnel system to recommend how best to keep flexibility while also maintaining control and fairness.

“I would promote more career professionals into key positions. Not enough use is being made of civil servants,” says Lewis. “The civil service was created to provide expert and continuous management of government. The increase in appointees has hurt both the cultivation of expertise and the continuity of management.”

Unfortunately, what was already an unwieldy machine before Bush took office has since been completely broken. And by many accounts, in its last months, the administration is seeking to make it worse.

Some appointees are scrambling to push through last-minute regulation changes. At the end of July, the Washington Post reported on the Labor Department’s effort to push through rules making it harder to regulate workers’ on-the-job exposure to chemicals and toxins.

Others are working their way into career positions. Known as “burrowing,” this has some legislators worried. In a recent letter to Attorney General Michael Mukasey, Sens. Charles E. Schumer (D-N.Y.) and Dianne Feinstein (D-Calif.) urged officials at the Justice Department to ensure that political appointees not improperly fill jobs intended for nonpartisan professionals.

“We don’t need ideological stowaways undermining the work of the next administration,” Schumer wrote.

Their concerns are well-founded. On July 28, the Justice Department Inspector General concluded an investigation that found agency political appointees – including former aide Monica Goodling – engaged in misconduct and broke civil service laws by hiring and firing agency personnel based on political philosophy.

Whether Sens. John McCain (R-Ariz.) or Barack Obama (D-Ill.) have the political will to reform the federal bureaucracy remains to be seen. For her part, University of Maryland’s Steinzor believes things can only get better.

“The history of these issues demonstrates that, at some point, the pendulum reaches a limit in its rightward swing,” she says. “I think that point passed about two years ago, and that it has already begun to swing back. How long it will take to traverse the arc is the real question.”