The current administration scandals – or administrative troubles, or the easily explained good decisions which only seem bad because of some less than careful communications, or the things that we don’t have to explain to anyone so the Democrats should just shut up (none of your business, so just move along, nothing to see here) – are overwhelming most everyone. They all run together.
Eve Fairbanks over that the National Review says even those who are supposed to be keeping track of Bush administration scandals (her term) are exhausted –
In the last couple of weeks, even in the minds of the lawmakers tasked with oversight, the administration’s scandals and screw-ups have started to blur together into one Meta Screw-Up – a situation in which every procedural safeguard, institutional norm, and carefully designed plan seems to have “just melted into oblivion with this sloppy administration,” as Senator Dianne Feinstein put it at the Mueller hearing. The impression that we are, by now, witnessing the unfolding of one giant, undifferentiated scandal is compounded by the sense that this is some kind of watershed moment: The U.S. attorneys affair unleashed last Thursday’s complaint that Bush partisans meddled with a Justice Department tobacco prosecution, which unleashed Monday’s accusation that the General Services Administration was misused for political ends, and on and on.
Yep, one thing leads to another – dominoes fall, even if you didn’t know they were lined up to do that.
Kevin Drum at the Washington Monthly agrees –
Actually, that sounds about right to me. But does it mean there are serious scandals that aren’t getting the individual attention they deserve? Fairbanks makes a case that that’s what’s happened to the FBI scandal, which is “arguably, just as serious as the U.S. attorneys scandal and the others.”
He suggests you read the rest. Read the rest.
Okay? Done? Didn’t want to pay the fee to read the whole thing?
It is rather important that the FBI in its use of those national security letters was messing up. Under the Patriot Act those letters give the FBI authority to demand that telephone companies, internet service providers, banks, credit bureaus and other businesses produce personal records about their customers or subscribers. No warrant would be necessary. And those who received them, and had to turn over the information, were, by law, required to say nothing to anyone. No one would ever know what the government was up to – and just who the government was watching. It was a model of efficiency – until it seems hundreds of thousands of them were issued – and a good number of them on matters that had nothing to do with terrorism. It was just a cool new thing – you could use it for anything, really. The Justice Department’s inspector general released a report saying the FBI has played fast and loose with protocol here. The “authorization slips” for obtaining private information of American citizens without judicial review didn’t work out as planned.
Maybe self-executing secret warrants – no judge or any review necessary – is a big deal. Fairbanks tracks a lot of subsequent shouting and anger about this. No one wants our country to be run like East Germany in the fifties, after all. But how many of such things can you attend to?
Now with the Walter Reed business to the firing of US Attorneys – to make sure they used the full force of the law and court system to help the Republican Party – with, in between, pressuring the Civil Rights Division at Justice to cease enforcing current statutes, pressuring the Justice Department lead to reduce a judgment against a tobacco company by ninety percent, with the General Services Administration clearly violating the Hatch Act and arranging events to boost Republican before elections, and who knows what else – something much larger seems to be going on.
So what is it? It could be Political Entropy – things just winding down. But as a grand theory that’s a bit abstract – elegant without being useful.
You might want to be specific. Sidney Blumenthal, in a long article on all the emails now being released in the US Attorneys matter, in an aside hits on one useful specific –
Also on Monday Gonzales’ senior counselor and White House liaison, Monica Goodling, invoked the Fifth Amendment right against self-incrimination in her refusal to testify before the Senate. (Goodling, who graduated from law school in 1999, is one of the highest-ranking officials in the Department of Justice. Her doctor of jurisprudence degree comes from Regent University, founded by the Rev. Pat Robertson. Its Web site boasts that it has “150 graduates serving in the Bush Administration.” Perhaps not coincidentally, Kay Coles James, a former Regent University dean, was director of the U.S. Office of Personnel Management from 2001 to 2005.)
Could it be we could unify everything by looking at who is working where in the administration? Is this a clue?
Blumenthal doesn’t follow that clue – the previous the news was that Karl Rove and the White House staff have routinely been using their RNC (Republican National Committee) accounts to send email to evade congressional oversight – “We knew E-mails could be subpoenaed.” Can they do that?
It does raise some issues, as NYU law professor Daniel Shaviro explains – “The easy and obvious point is that anything Rove sent out in an e-mail from his RNC address is not privileged.”
Got that? The president may claim “executive privilege” and say no one can see these emails. But they’re not his to hide.
And it gets better (or worse) –
A further interesting question is the extent to which using RNC emails to communicate stuff about meetings with Bush et al should be viewed as a further waiver of other executive privilege claims, at the limit on everything pertaining to the meetings and topics discussed in the RNC emails. On this point I would have to defer to those more knowledgeable than I am about how the attorney-client privilege is interpreted and applied.
Kevin Drum works that out –
In other words, if staffers were primarily discussing the U.S. Attorney firings on personal and RNC accounts, that implicitly means that they themselves weren’t treating it as the kind of official business that would be protected by executive privilege. Alternatively, if they were using private accounts specifically to evade legitimate congressional oversight, then executive privilege claims might also fail for all their other communications as well.
This is trouble, and Blumenthal is clear –
When I worked in the Clinton White House, people brought in their personal computers if they were engaged in any campaign work, but all official transactions had to be done within the White House system as stipulated by the Presidential Records Act of 1978. (The PRA requires that “the President shall take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records.”) Having forsaken the use of Executive Office of the President email, executive privilege has been sacrificed. Moreover, Rove’s and the others’ practice may not be legal.
Oops. Feel free to add something about being hoisted on one’s own petard here. No one much now knows what those specific words mean, but we all get the idea. They outsmarted themselves.
But still, this is arcane stuff. What about those one hundred fifty born-again Pat Robertson protégés doing legal work for the administration? Is there something there that offers a unified theory of things falling apart so rapidly?
Steven M. Teles thinks so and offers a stab at what is really happening. It’s a matter of hiring kooks.
Over at TNR’s Open University blog, my friend Sandy Levinson has a posting taking note of the fact that Monica Goodling, DOJ’s White House Liason, had a completely conservative evangelical education, starting at Messiah College in PA and ending at Pat Robertson’s Regent University Law School. He finds this observation troubling, and believes it is likely to be characteristic of the administration more broadly.
Okay then – we have a hook here, something upon which we can hang a theory.
So, is this a bad thing? Maybe not –
Let me try to explain first why it might not be, depending on what you’re maximizing. If you think the key thing that federal bureaucrats do is making decisions, and those decisions are likely to have a substantial ideological component, and you know that there it is impossible for the White House to actually supervise the entirety of the federal bureaucracy – even its senior political appointees – then you’ve got an institutional problem. In fact, you’ve got a classical principal agent-problem – how do you ensure that a widely dispersed set of agents act in a way that is consistent with the views of their principals at the center? In particular, if you believe that those agents are in fact surrounded by other agents (permanent bureaucrats) who are not particularly sympathetic to the principals’ goals, how do you keep your political appointee agents from going native in order to get along in their local environment? In classical principal-agent models, you solve this problem by either some form of monitoring or by aligning the interests of principals and agents through some sort of incentive structure.
You could try boot camp –
Lots of agencies with dispersed personnel try to do this with training – think of the Marines, the FBI or Forest Rangers. You put someone through a rigorous training program to change their sense of themselves, so that they will have a strong internal commitment to doing what you want them to do even if they cannot be observed in the field. But this has substantial limits as a strategy where political appointees are concerned – you can’t send them off for six months in Parris Island before they become Deputy Assistant Secretary of the Department of Commerce.
Ah, but there is Messiah College and Regent University Law School. They will do –
… there is a much higher probably that at places like Messiah and Regent your agent will have developed a substantial repertoire of justifications for their beliefs, having learned to defend them against a hostile world. This will minimize the likelihood that they will shrink in the face of disagreement.
Finally, you want your agents out in the field to do what you want them to do without having to be told to do it. In fact, you want them to do what you would ask them to do without your even knowing that it needs to be done. The closest analogue I can think of here is what Ian Kershaw described in his biographies of Hitler as “thinking toward the Fuehrer.” You want your agents to carry around with them in their head a sense of what their principal wants, and to concoct schemes for achieving it without ever having to pass the decisions through the center. (NOTE: I am NOT saying that the Bush administration is like the Nazis in a normative sense – this is purely an analytical point).
Believe that if you wish. It fits nicely.
But even if you generally assume that there really is something to the underlying assumptions that drive this sort of thing – that it is how things are supposed to work – Teles suggests that doesn’t mean that what these folks do “conforms with the broader public interest.”
There’s more to it –
Public management at the senior political appointee level involves more than making decisions that accord with a set of ideological priors. There is also a whole range of other skills that are likely to correlate weakly, if at all, with ideological commitment. For example, a large number of Coalitional Provisional Authority personnel were chosen through conservative movement networks. Consequently, they had little knowledge of the language or culture of Iraq, a sense of how to run large, complex operations or to motivate subordinates to produce things like working electricity or water systems. The more you rely on ideology as your sorting system, the less (all things being equal) you are likely to have people with key public management skills. In addition, ideology may be weakly (or even negatively) correlated with procedural or constitutional norms on how agencies should operate.
No kidding. You may scatter “true believers” through the bureaucracy, in order to ensure a certain level of fidelity to the president’s objectives, but “if you get too much of this, you get an administration that is likely to have a high, systemic level of administrative incompetence.”
So THAT explains everything.
And what to do is clear –
This is, in part, an institutional problem – how do you ensure that the executive branch does not overweight its political strata with ideological hacks? This should be a primary function of the Senate, exercising its constitutionally orthodox power to confirm presidential nominees for political appointments. For most of the Bush years, Congress punted this function because it had been transformed into the functional equivalent of parliament, doing this bidding of their Prime Minister. But with the return of divided government, we have the ability to reassert something closer to constitutional orthodoxy. The first task of the Democratic Congress should be to engage in close scrutiny of all presidential appointees, making it clear that nominees whose primary qualification is ideological commitment will be given a good raking over the coals. This should make the administration more reticent to nominate such people in the first place, or a least to reduce their propensity to do so. Even though the purpose of this may be partisan (to embarrass the administration) its effect would be wholesomely constitutional. “Ambition counteracting ambition,” I think someone once called it.
And of course, now some of that is actually going on –
More than two years after losing his bid for the White House, Democratic Sen. John Kerry exacted a measure of revenge against his political foes Wednesday by helping derail the diplomatic nomination of a Republican fundraiser.
President Bush withdrew the nomination of St. Louis businessman Sam Fox to be ambassador to Belgium after Democrats denounced Fox for his 2004 donation to the Swift Boat Veterans for Truth.
The group’s TV ads, which claimed that Kerry, D-Mass., exaggerated his military record in Vietnam, were viewed as a major factor in Kerry losing the election.
Bush’s action was announced quietly minutes before the Senate Foreign Relations Committee was to have voted on the nomination.
It’s too little too late, as Matthew Yglesias explains –
From my perspective, the issue with Team Bush is likely to be less that there’s been a quantitative jump in the hack factor than that there’s been a qualitative change in the nature of the ideological hackery. It’s generally ceased to be the case that a person can qualify as both a serious member of the conservative movement and also someone who’s genuinely interested in the effective design and operation of government social policy. If you believe that the correct way to improve policy in any area is anything other than “deregulate it” or “tax cuts” you no longer count as a good conservative. As a consequence, insofar as it’s not feasible to simply dismantle the entire apparatus of government (and it isn’t) it just becomes a playground for partisanship.
To have any substantive view about how the government could or should deliver services to its citizens is, as such, a sign of liberalism nowadays. And, obviously, Bush doesn’t want to staff his administration with liberals. Which is to say he doesn’t staff it with people who care about how the government should deliver services to its citizens. Not surprisingly, they don’t do it very well.
Ah, they hate government so they govern badly, stunningly so, to prove Saint Reagan was right about government being the problem, not the answer to anything. That may be a better grand unifying theory of it all.
So they make their point, and we pay the price.