Forget Elections, We Suffer An Anonymous Governing Class

EXPERT COMMENTARY

Forget Elections, We Suffer An Anonymous Governing Class

By Hester Peirce |
Nov 07, 2012

The country has spent the last year talking incessantly about who should be president and what that will mean for the country's future. And yes, it does matter who the president is. The president sets the rhetorical tone for the country, defines the nation's approach to foreign policy, lays out a domestic agenda, and selects the government officials to head the country's regulatory agencies. The truth is, however, that many of the government's decisions are made by people whose names will never appear on a ballot-agency staffers.

Most agency staff remain in place even as those at the highest levels change with the president. It would be impractical to have entire bureaucracies replaced when a new administration comes in. More importantly, government jobs should not be doled out based on political party affiliation. Civil service protections exist to make sure this does not happen.

Stable staffs ensure that agencies are able to continue performing their responsibilities even as the political landscape shifts. FDIC examiners monitoring banks' safety and soundness, Food and Drug Administration staffers processing new drug applications, and attorneys at the Securities and Exchange Commission pursuing fraudsters don't miss a beat when a presidential election rolls around; they keep doing their jobs. Routine functions of government continue without regard for who wins the election. These duties generally are not controversial, and experienced staffs carry them out. Bureaucratic staff continuity ensures that government keeps functioning smoothly.

Unfortunately, some staffers have figured out how to parlay their everyday responsibilities into under-the-radar substantive policy-making. An agency staffer once remarked within earshot, "I am not worried about what the political appointees at this agency tell me to do. I'll outlast every last one of them." These staff have been at agencies for years and plan to be there for many more. They know they will outlast the political appointees at their agencies. Great power comes from that longevity.

Regulated companies cultivate good relationships with the front-line staffers that regulate them. Staying on the good side of agency staff is critical. Routine regulatory actions by these staffers can be vital to a company's future profitability or even existence. Regulatory staff decide whether to approve new products for market and which competing company's proposal gets approved first. Agency staff sign off on standards that may align with one company's technology and put another out of business. These decisions-although often seemingly unimportant-can amount to de facto policymaking by the agency.

Appealing a regulatory decision to political higher-ups at an agency might work in the short-run, but, the long-run price-perpetual staff disfavor-is too high. Sometimes acquiescence to the agency staff is the best strategy.

The concentration of day-to-day regulatory power at the staff level is an inevitable consequence of choices we have made in our society. Our reliance on rules to govern every facet of our lives means that we need large agency staffs to process applications for approval under those rules, requests for exemption from those rules, and enforcement cases against violators of those rules.

Policy decisions, however, are not within the proper realm of agency staff. Those decisions should be made by politically accountable agency officials. We must seek to alleviate the problem of concentration of government power in corners of the government that are not accountable. One possible solution is limiting the number of years that agency staffers can stay in a particular job at the agency. A rotation approach would help to invigorate agency processes and ensure that even the most routine tasks would be the periodic beneficiaries of a fresh set of eyes. And, of course, it wouldn't hurt to rethink the extent of our society's reliance on rules to control people's activities, aspirations, and choices.

Until an effective solution is implemented, I fear that the words I heard from that agency staffer-who could barely contain his delight in his essentially unchecked power-will continue to ring true.

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