Bureaucratic Autonomy

“Just because you do not take an interest in politics does not mean politics will not take an interest in you,” – this quotation is often attributed to Pericles, the prominent Athenian statesman of the 5th century BC. The point Pericles is making here is that citizens ignore politics at their own peril, as the decisions of politicians will bear on people in very real ways whether they know it or not. Social scientists and other academics have long been interested in the politics of administrative agencies for a similar reason: bureaucracy is not typically interesting to learn about (that’s not exactly true, some people surely find bureaucracy interesting), but the activities of bureaucrats touch virtually every aspect of modern life, and thus are certainly deserving of serious attention. Here at DPP, agencies like FEMA, the Army Corps of Engineers, and the EPA (among many others) are of particular interest because of the work they do in disaster policy and management.

One topic of much debate in scholarly circles concerns the tension between bureaucratic efficiency and democratic responsiveness. That is, one of the virtues of administrative governance is (in theory) political independence – making decisions and implementing policies on the bases of sound economic and scientific determinations made by experts in their respective fields instead of being decided on the basis of congressional log-rolling or parochialism. The presumptive downside is the same as the virtue – independence from politicians means that bureaucratic practices may run far from the mainstream of political will (which might be good or bad), and policies may be unresponsive to the needs of affected groups [see my previous posts on the different goals of politicians and bureaucrats for more on these issues].

For these reasons I think it is worthwhile to give some thought to the relative independence of those bureaucratic agencies that are tied up in the politics of property and disasters – and note that “independence” is not a fixed quantity, rather it varies over time. A solid understanding of the relative autonomy of an agency is necessary to understanding bureaucratic activity and policy – that is, a fairly autonomous agency will be motivated to act by very different considerations than an agency that is tightly dependent on Congress or some Congressional committee.

In a short history of the Army Corps of Engineers, Todd Shallat argues that the Corps has actively sought large projects to extend federal responsibility for natural resources, and that in doing so, it has “blurred the line between policymaking and program implementation” (1989, 7). Shallat argues that the Corps has generally built its authority in three main ways: through it’s “military approach” to action and problems, using “discretionary powers,” and by taking advantage of “the flexibility of its original mission” (1989, 9). Over time, the Corps has frequently sought high cost, highly complex, and innovative (often experimental) projects to bring “scientific glory” to nation (and to the Corps itself, no doubt). That is to say, there has always been a political side to the Corps’ considerations. Shallat also notes that the Corps has been known to influence policy by “broad”, perhaps even dubious, interpretations of the law (1989, 17).

A more recent study of the Army Corps of Topographical Engineers has yielded some similar – and some new – insights on the topic. William Adler argues that “the Topogs” enjoyed “conditional bureaucratic autonomy” because of the long tenure of agency officials, their expertise on their subject, and lax oversight due to relative ignorance and disinterest by their principals (i.e. Congress) (2012, 111). Further, Adler argues that semi-autonomous, uniformed bureau chiefs at the War Department were crucial to many of these socioeconomic projects. As such, bureaus “such as the Corps of Topographical Engineers developed the ability to help shepherd their preferred policies into law or to create new policies on their own initiative when Congress declined to accede to their wishes” (2012, 110).

In an excellent case-study of FEMA, Patrick S. Roberts argues that a reputation for competence and efficiency can be a source of bureaucratic autonomy and independence (it is an unstable source, however). More specifically, he argues that under James Witt, the director of FEMA during the Clinton presidency, FEMA clarified its mission (by adopting the “all hazards” approach), made a concerted effort to improve customer service, and very importantly, consciously aligned its goals with reelection goals of Congressmen and the president. In doing so, FEMA went from laughing stock to a genuine model bureaucracy. FEMA’s reputation as the effective “all hazards” disaster agency allowed it to act independently – but also left the agency exposed to destructive forms of politicization when it failed to live up to that reputation (e.g. after Katrina).

These scholars have pointed to several general conditions that foster bureaucratic independence: 1) discretionary powers, and relatedly, 2) the ability to broadly interpret Congressional grants of authority, 3) reputation for expertise, 4) reputation for efficiency, 5) lax oversight, and 6) aligning agency goals with Congressional and presidential reelection goals. [Additionally, Shallat argues that the Corps’ militaristic approach is itself an independent source of autonomy, though he does not really tell us how that militarism imbues autonomy – I think this in and of itself deserves some serious study.] It is not necessary that an agency meet all of these conditions to be autonomous – autonomy is clearly a matter of degree, not an all-or-nothing proposition.

Further, all of these factors are conditional – it must be remembered that Congress can exercise significant influence over agencies, and no amount of reputation or discretionary interpretation can save an agency from concerted Congressional discipline. Still, Congress rarely goes after agencies with much force (typically Congress is satisfied to scapegoat agencies for benefit of media soundbites). Reputation, as Professor Roberts points out, is a very unstable source of independence. Thus these factors vary over time, as the exigencies of the moment changes, as political and social interests move from topic to topic, and as personnel and leadership in agencies turn over. Still, these factors do functionally increase the ability of an agency to act as an autonomous governor.

These ideas are of particular interest to us here at DPP because they suggests that the Corps of Engineers and FEMA –federal bureaucracies responsible planning and implementing many disaster and emergency management programs – as well as other agencies may be more independent than most bureaucracies are generally thought to be, both today and in the past. Moreover, they give us a good way to think about how any agency might be able to act independent of – or perhaps even contra to – the will of Congress and/or the president.

By the same token, these features suggest ways in which agencies are able circumvent or ignore public pressure. For example, many of the factors necessary for conditional autonomy have (arguably) been met within the Corps of Engineers at numerous points in its history. Further study is undoubtedly necessary, but by reminding us that the Corps has some unique characteristics and, perhaps, that it should not be analyzed in the same manner as other agencies, These scholars’ arguments could pave the way for a significantly better understanding of how flood mitigation policy in the Mississippi River Valley has developed over the last two centuries. It might tell us, for example, that “normal” Congressional politics cannot explain much of the development of flood mitigation policy – or it might tell us that policy developed as it did because the Corps was held close under the Congressional lash.

Again, bureaucratic autonomy is neither an unmitigated evil nor an unalloyed good. Bureaucratic autonomy was considered a great virtue, and thus was a primary goal of Progressive reformers reacting to the vestiges of the spoils system which frequently saw policy created and implemented in ways detrimental to the public interest (see for example, Carpenter, The Forging of Bureaucratic Autonomy). Autonomy is independence, however – including independence from “We, the People”, the ostensible American sovereigns (and our agents in Congress). This is to say, we should be cognizant of the give-and-take between independence and responsiveness. A wholly responsive agency is one that is prone to capture by special interests, and, history suggests, quite unlikely to produce any good policy. A wholly independent agency, on the other hand, is prone abuses and fundamentally antidemocratic. Striking a balance is never easy – and the “right” balance in any particular case is likely to depend more on one’s policy preferences than on some principled theory of bureaucratic politics. Still, effort to strike some principled, empirically grounded, generally applicable balance between autonomy and independence would surely not be effort wasted.

 

Adler, William D. 2012. “State Capacity and Bureaucratic Autonomy in the Early United States: The Case of the Army Corps of Topographical Engineers.” Studies in American Political Development 26 (October), 107-124.

Roberts, Patrick S. 2006. “FEMA and the Prospects for Reputation-Based Autonomy.” Studies in American Political Development 20(Spring): 57-87.

Roberts, Patrick S. 2006. “FEMA After Katrina.” Policy Review 137(June/July): 15-33.

Shallat, Todd. 1989. “Engineering Policy: The U.S. Army Corps of Engineers and the Historical Foundations of Power.” The Public Historian 11(3): 6-27.

(Editor’s Note: While some of the articles above may be gated — meaning you’ll need institutional access or have to pay for the article — we’ve provided links to them for those who do have access or those who are willing to pay. We would love for all articles to be available to everyone, but publishers just aren’t willing to do that at this time.)

Reading Property Cases

“It’s time,” I said to myself over the weekend… Time to start writing about specific property cases here at the blog. No, not cases the Supreme Court is hearing, but rather historically important ones, or those that are important to contemporary policy. Logan is working away on a pile of case law, and I’ve been gathering my notes together to give you another approach to them… We have been planning this for a while, talking about it for longer. Yet dragging our feet just a bit.

Part of my trepidation comes from knowing what it’s like to tackle this case law and thinking about my readers and how to present them to you. See, when I was a graduate student, I told my soon to be dissertation advisor (Professor John Brigham of UMass-Amherst — a great and wonderful dissertation advisor) that I wanted to do work in environmental law and policy. Because of the structure of my discipline (Political Science), he suggested that I should “look for the environment” in constitutional law and see where I could find it in the realm of constitutional politics. It was 1997, and I had just moved to Massachusetts from Utah, where I had spent some time as a temporary worker in the financial reporting section of a major mining company. Between that experience and the poking around I did to see what hot topics were “out there” involving constitutional politics, it did not take me long to decide to study property rights and takings litigation. At the time, the property rights movement was well into it’s second decade (depending upon how you want to count, maybe it’s third), and litigation mobilizations to advance private property rights were springing up all over the place. However, before I could really look into those politics, I had to read property law, specifically that dealing with land use and environmental regulation.

I tackled it for the first time during the quiet and snowy January break between semesters my first year of graduate school. I was living in western Massachusetts, so when I tell you it was snowy, it was very very snowy. I grew up in Minnesota, so I look on snowy days as excellent study and reading time. Thus, bright and early one morning I trudged over to my office and I got out the cases I had collected over the few weeks before in preparation for this immersion into case law. I remember looking forward to spending a day reading and taking notes. I imagined finishing up in the late afternoon with a sense of accomplishment and a pile of finished cases on the corner of my desk where I kept the “done” work.

Within two hours I was in tears.

Four hours later, I was weeping.

I could not understand anything I was reading.

I thought I was a complete idiot.

I had spent the entire day struggling with regulatory takings doctrine and though I had attempted to read more than one case, really and truly, none were read well enough that I could have told you what I’d read. I went home, leaving everything on my desk at the office in heaps and piles — a habit I developed in grad school and still maintain when I’m in the midst of a writing or research project — because when quitting time comes, I make a note about what to do the next day and then I quit. That evening I had a nice dinner, took a hot bath and watched television. I climbed into bed feeling exhausted. All I could think was how ridiculous I was to think I could do this thing — get a Ph.D.! Focus on the politics of property rights! It would never happen! And surely I shouldn’t be reading about regulatory takings cases because my brain simply did not function on a level required for this work.

Still, the next morning, I put on my snow boots and heavy coat, but instead of going to my office I trudged into town, which was a little over a mile walk through the neighborhood Robert Frost lived in while in Amherst. It’s filled with beautiful old, huge trees and pretty old houses, and a foot and a half of snow. It was quiet, and I made a list of what I was going to hunt down. My first stop was at the drugstore — I purchased a large bottle of aspirin (my students will attest that I still keep a bottle in my office). Next I headed to the bookstores. I bought a Black’s Law Dictionary, an old property case law book, an environmental case law book, and anything at the used bookstore involving the words “property”, “takings”, and “land”. It was a sizable purchase of heavy books. Oh, and property books are not thin little volumes. They are usually thick, massive tomes. I lugged them through the snow back to my office, enjoying the fresh air and knowing I was getting a decent workout.

Once I’d settled back in at my desk with a strong cup of tea, I grabbed the first of the property cases in the pile on my desk I’d left the day before, and got started.

I would figure this out.

I would.

Watch me.

I learned quickly that I needed to begin by doing a very quick skim of the case, locating what I thought were key words. I used a pencil and circled them — sometimes, later, I would realize I’d missed important concepts, or had circled things that weren’t all that important. I’d erase or mark anew. Then, one by one I looked the words up in Black’s. By looking at the words and letting myself explore the other (incomprehensible) words in the definitions, I gained a sense of the network of words that went together in the case. Next, I looked to see if there was any commentary on the case in any of my “new” used books…

Why not just Google it, you ask? Well, it was January of 1998. Google wasn’t then what it is now… This was old school learning: skim, terms, commentary, then back to the case, more careful reading, take it a paragraph at a time, figure out what had happened and why the case was important, outline the facts, figure out how they fit together. Repeat for each case. If I had to spend a whole day or even two on one case, that’s what I would do.

Very soon I had to make another trip into town. This time, I bought an atlas. I still keep an atlas or maps nearby when reading land use and environmental cases because I invariably need to see *where* the case occurred. In grad school, more detailed maps were available at the library — and I realized sometimes my best bet for understanding a property case was in the map room. I learned to read all kinds of maps. Finally, after a lot of work, those cases started to fit together.

By the time school started the first week of February, I reported to my dissertation advisor that I had, in fact, found my topic.

I decided to write this story to give you a bit of a head’s up…  Logan and I are going to be doing a series of posts this year on property cases. I will post the first one in the next couple of days. The case is Annicelli v. South Kingstown (463 A.2d 133, 1983). The law scholars in the crowd may remember it buried in the citations of Lucas v. South Carolina Coastal Commission (505 U.S. 1003, 1992). It’s an interesting case in part because it involves zoning ordinances designed to protect against high flood danger and changes to flood plain maps. It’s also a nice reminder that a lot of the federal regulatory takings cases begin in the states and often involve this sort of issue. Indeed, if we take seriously the idea that we can learn from the past, then cases like Annicelli may be instructive in many ways in our discussions about flood plain maps and NFIP reform. And also, it’s just an interesting case.

Watch for it in a couple of days — for anyone who wants to review Lucas, a link to a version of the case is here.  And Annicelli can be found here.