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The Government is Too Damn Big, Slow, Inefficient, and Intrusive

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This is a common complaint and one with which I agree. However, it is very simplistic and says no more than what is pretty obvious. There is probably little or nothing we can do about it, but here are a few thoughts on how and why it got to be that way and why it is unlikely to get better. Generally, these things go unmentioned in civics classes. These comments expand on some I made recently in response to an article at Blogcritics.

Despite the claimed desire for less government, and the complaints about how poorly it does just about everything, there are constant demands for the government to fix problems. These demands all too often focus on the Federal government, and candidates for office rely heavily on their promises to make the U.S. Heaven on Earth in order to get elected. During the training process, a horse needs to be taught, “Don't just do something; stand there.” Politicians might profit from similar instruction; I have never heard a candidate promise to leave anything alone. Promises to “do something” are viewed as necessary to get elected, and quite often the candidate who makes the most effusive promises wins.

During FDR's New Deal, numerous “alphabet agencies” were created to pull the country out of a depression. Many of those agencies still exist, although their efforts to end the depression were largely ineffective. World War II was mainly responsible for ending the depression. The agencies not only continue to exist, they have “growed like Topsy” during the more than half century since their creation; they continue to do so, and it is at least questionable whether they do more to help the country than to harm it.

Most of the actual work done by the government is done by its Administrative Agencies. Let's look at how a typical agency works. I practiced communications law in Washington, D.C. for twenty years, and all of my clients had dealings with the Federal Communication Commission. That is the agency with which I am most familiar, and even though it was not created to end the Great Depression, it is typical in many respects of the other alphabet agencies. I should add that I retired twelve years ago, and so some of my observations may be dated; still, I think that not much has changed or ever will.

The FCC has five commissioners, appointed by the President and confirmed by the Congress. They have fixed terms in office, but can be reappointed. They are political appointees, most often drawn from the communications industry. They lead a staff of thousands, organized into various divisions, bureaus, and sections. Each division, bureau, and section has a chief and under the chief there are many employees. All are civil service employees, and accordingly enjoy substantial job security. Some might argue that they enjoy too much job security, but that is another issue.

Most actions are initiated at the section level and, if they involve a contested issue, the decision can be taken to the Bureau level. If one or more parties is unhappy, the decision can often be taken to an administrative law judge (“ALJ”) before whom a hearing is held. In compliance with the Administrative Procedure Act, The ALJ eventually issues an initial decision, reconsideration of which can be sought; that is uncommon. The next appeal is to the full Commission; it eventually issues a decision, reconsideration of which can be sought. Next, an appeal can be taken to the Court of Appeals for the D.C. Circuit. Reconsideration of the Court's decision can be sought, and in some cases a further appeal can be taken to the Supreme Court, which happens infrequently.

Appeals to the courts are not easy, because they normally give an agency the benefit of the doubt. A frequently used phrase in judicial decisions is “a busy administrative agency can not be expected to dot every i or to cross every t.” Nevertheless, the Court sometimes finds error in a Commission decision, and remands it to the Commission for further work. If only a question of interpretation is involved, that can be handled by the Commission itself, subject to subsequent appeal to the Court. If the Court finds that there was an error by the ALJ, for example in rejecting material evidence, then the matter is generally further remanded by the Commission to the ALJ to fix the problem; followed, quite possibly, by a further appeal to the Commission and thence to the Court, ad infinitum or so it seems

Although necessary under the Administrative Procedure Act, and often a good thing, these proceedings can take time. I vividly recall a proceeding involving a request for permission to make a major modification to the technical facilities of a television station. I participated in it, opposing the modification. The proceeding involved an application for a construction permit, a “petition to deny,” a designation for hearing, a hearing, an initial decision, an appeal to the Review Board (the Review Board, an intermediate appellate authority, was later abolished), an appeal to the Commission, a remand to the ALJ for a new hearing, another decision by a different ALJ (the original ALJ had by then retired), another appeal to the Review Board, and another appeal to the Commission. The proceeding lasted nearly twenty years and was eventually terminated when the proponent of the request decided that the modification would not help the station to make more money and dropped it. During the long process, ownership of the television station involved had changed twice.

Actions can also be initiated at the Commission level. These actions generally involve rule making proceedings. Sometimes they are initiated in response to a rule making petition, sometimes by the Commission sua sponte. The adoption of a new rule, or the modification of an existing rule, is a quasi legislative process, also governed by the Administrative Procedure Act. A rule making proceeding can easily take years to complete. Then the fun part starts.

Violation, or more accurately alleged violation, of a rule can result in lengthy litigation at the various levels of the Commission, with petitions for reconsideration and appeals ultimately to the full Commission. Challenges to the process under which the rule was adopted or to its substance generally are not considered by the Commission itself; these come when the final Commission decision is appealed to the Court of Appeals for the D.C. Circuit. Occasionally, the Court will decide that an error was made in the process through which the rule was adopted, that the rule is inconsistent with the Communications Act, that the rule cannot possibly be construed as the Commission construed it, or that the rule is incomprehensible. Then, the matter is generally remanded to the Commission to sort out with a new rule making proceeding and to undo the consequences of its ill advised action. Such decisions and remands are unusual, but they happen.

The point of all the above is that actions by Government agencies can be agonizingly slow and tedious.

Most actions of the Federal government are taken by the various agencies, be they administrative agencies, departments of the Executive Branch, or by the Judicial branch at all of its levels. If this is a problem, and it certainly makes expeditious action difficult in contested matters, there is no known cure. No President, even with a substantial staff, has either the time or the expertise to decide which of several companies should be allowed, for example, to build a new television station. Neither does the Congress.

The President can issue executive orders in some cases, and can ask the Congress to pass legislation which he favors. The Congress can itself initiate the legislative process which, if the President wishes, he can veto. Then the Congress can try to override the veto.

If a bill becomes law, it either appropriates funds for a project, most often to be administered and spent by one or more Government agencies, or it creates a new agency to do the job. This brings us back to the administrative process, referred to above.

Please do not assume that I deem these things completely wicked; they enable attorneys (such as myself) to put food on the table for our otherwise starving dependents, and offer similar opportunities to the agency staffs as well. There is something to be said for that, I reckon.

I suppose that the President could issue an Executive Order, “Let there be Light and Let it be Generated Only in a Carbon Neutral Way, with no Harm to the Economy.” Or, perhaps, “Let there be Universal Health Care, Superior to but Costing Less than is Now The Case.” He could also issue an Executive Orders proclaiming that “World Peace Shall Henceforth Exist” or that "No Snow Shall fall on Business Days." He would have to be an idiot, but I guess a president with a sufficiently egregious messianic complex could try.

Government is very big and very powerful; it is also clunky and slow and, despite campaign promises, there are structural and substantive reasons why it can't do everything promised by candidates efficiently and right now. That's the way it is, and it is not going to change, no matter how much we may wish that it would.

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About Dan Miller

  • Doug Hunter

    Bureacracies are just one of the symptoms of modern wealth redistribution. Workers and machinery have become so efficient at actually doing things that to keep the workforce occupied the economy now has a massive army of paper shufflers both inside and outside of government.

    I honestly don’t know if this type wealth redistribution for busywork is good or bad for the economy. I’m not smart enough to know what this means, but I have a very sneaky suspicion that if the underlying cash cow, the real producers, start to fail or move outside the country, the paper shuffler jobs will necessarily collapse under their own weight. The housing market has done it in for loan processors, real estate agents, and multiple levels of investment bank paper pushers whose only job was to skim some funds from the underlying housing transaction and pass it along to the next crook. Look at a closing statement sometime from one of the mortgage company loans, the fees and number of entities involved is both staggering and sickening.

  • bliffle

    Yes, the government is too big.

    So is Halliburton.

    So is GM.

    So is Bear Stearns.

    So is California.

    All these bodies are too big to be properly operated by individuals or close boards. They should all be broken up.

    Before any corporation can hold the US public hostage by claiming it’s “Too big to fail” it should be broken up into smaller pieces.

    We need to move back toward a form of Federalism instead of the Centralism that the modern US Corporate State.

  • http://ruvysroost.blogspot.com Ruvy in Jerusalem

    Dan,

    I enjoyed this article, but I have to say that saying that the government is slow clunky and often inefficient is not exactly news.

    My wife worked for a government agency for many years and I kept slavering to get in, taking test after test. The Feds pay a lot better than fast food joints!

    But my wife warned me that these guys did everything exactly by the procedure book, me, being the kind of guy I am, always looking for a shortcut, would be bored stiff, not to mention being as frustrated as all hell.

    And it’s no different here. The volunteer office at the police has a computer that is slower than molasses. Two memory chips for NIS 200 (about $55) would kick the damned thing into the 21st Century. But bureaucracy is in the way. I won’t mention all the problems lawyers cause here in terms of slowing things up – it keeps me thinking of Shakespeare’s “first kill all the lawyers.”

    I ain’t that mean….

  • Dan Miller

    Ruvy,

    Of course it’s not new; it has been frustrating for a long time, and I think it is getting worse. The “kill all the lawyers” thing is not new either, and probably wasn’t even Shakespeare’s original idea; What do you call one thousand lawyers at the bottom of a lake?* Much of it is the fault of the lawyers, but not all of it; the laws have a lot to do with it. The laws, as every right thinking person knows, are promulgated by our elected representatives and reflect the will of the people. Not only that, but I know a pig in our community who can dance the tango while whistling Dixie. I can’t think of very many effective ways to improve the situation.

    I can remember back when I was a young associate in the law firm and we had no paralegals. That meant that as the junior guy around, I had to go over the FCC all too often to look up things in the Broadcast Bureau public reference room. There was a very pleasant gentleman there, the head of the reference room, and I swear he had a photographic memory. If I wanted to know whether station KRUD had changed its output power within the past ten years, he not only knew where in all of the papers to look, he actually knew the answer without even looking.

    Sadly, he retired, and nobody knew anything about KRUD, where to look for the necessary files or much of anything else.

    Fortunately, we hired some pretty good paralegals, and they eventually figured out the system.

    Even though Big Government is bad, I am afraid that it is necessary if it is even going to try to do all of the stupid stuff we keep demanding that it do.

    *”A good start.”

    Dan

  • Dan Miller

    Ruvy,

    I just saw one of the definitions offered by Jet in Columbus:

    This is all just old news!

    …translates to “The public knows this is a problem we haven’t even come close to solving yet, even though we’ve had plenty of time to look into it, so we’ll just declare it unimportant!” Example, “New Orleans is old news”

    Somehow, it seems apposite to our recent posts.

    Dan

  • Dan Miller

    Biffle,

    I agree, except that your list is too short. We have laws for that sort of thing. They are called the antitrust laws. Of course, California is not subject to them, but it doesn’t matter much because they are rarely enforced anyway.

    The Sherman act was passed back toward the end of the 19th century, and the Clayton Act was passed early in the 20th century. The Antitrust Division of the Justice Department is charged with enforcing the Sherman Act, and both the Antitrust Division and the Federal Trade Commission have responsibilities for enforcement of the Clayton Act. Neither seems to do much of that sort of thing, nor have I heard much public clamor for either to do so. Nor is there much in the way of significant private litigation to enforce the antitrust laws.

    When I got out of the Army following law school, I wanted to practice antitrust law; I didn’t and was glad that I had not, because those whom I knew who had found themselves very much under-employed.

    It is a shame, but that’s the way it is.

    Dan

  • bliffle

    DOJ antitrust was much more vigorous a few years ago, but successive Administrations have cut funding and de-powered Antitrust.

    The longest any exec has spent in jail was 30 days (for the famous TVA GE swindle), no wonder they are contemptuous of US federal antitrust.

  • Dan Miller

    Biffle,

    There is an old limerick, which I can’t remember very well, but it is to the effect that society punishes the man who steals a cow from off the common, but heaps honors upon the man who steals the common from under the cows.

    And thus has it ever been and thus shall it ever be.

    Dan

  • bliffle

    And that satisfies you? A stupid limerick?

  • http://jetfireone.blogspot.com/ Jet in Columbus

    …there once was a man from Nantucket…

  • http://drdreadful.blogspot.com Dr Dreadful

    …whose dick was so long he could – well, I think we get the picture…

  • http://jetfireone.blogspot.com/ Jet in Columbus

    I just coughed up half the iced tea I WAS drinking

  • Dan Miller

    Biffle,

    And that satisfies you? A stupid limerick?

    No, not really. That’s why I wrote the article, throwing in my two cents worth on the root causes of the problem, which I fear have been ignored for far too long.

    Can anything useful be done? I doubt it, but am certain that by ignoring the root causes we make change for the better not only unlikely but impossible.

    More unnecessary Government intervention in our lives is not the answer, and neither is the proliferation of new laws when we already have laws on the books to deal with the perceived problem. Many of these new laws are introduced and passed to take political advantage of some tragic event which receives massive attention in the press, or some economic problem with which the existing laws could deal quite effectively, if only they were enforced.

    My simplistic view is that vigorous and competent enforcement of the existing antitrust laws would obviate many if not most of the efforts of our various regulatory agencies; many if not most of those efforts are a poor excuse for not bothering with the antitrust laws, and don’t work very well.

    Dan Miller

  • Clavos

    “My simplistic view is that vigorous and competent enforcement of the existing antitrust laws would obviate many if not most of the efforts of our various regulatory agencies; many if not most of those efforts are a poor excuse for not bothering with the antitrust laws, and don’t work very well.”

    Quoted for Truth…

  • bliffle

    The consequence of the excessive power of corps is that governments seek more power in order to deal with them. It results in an arms race. the ultimate result is large-scale war.

    Yet some people think it a good idea to limit anti-trust enforcement, and that corporate greed for power should be allowed to proceed as it pleases.

  • pleasexcusetheinterruption

    While I won’t delve into the merits/costs of big govt, I did take issue with one of your points.

    “During FDR’s New Deal, numerous “alphabet agencies” were created to pull the country out of a depression. Many of those agencies still exist, although their efforts to end the depression were largely ineffective. World War II was mainly responsible for ending the depression. The agencies not only continue to exist, they have “growed like Topsy” during the more than half century since their creation; they continue to do so, and it is at least questionable whether they do more to help the country than to harm it.”

    I take serious issue with the claim that World War II was mainly responsible for ending the depression. While WWII may have aided the economic boom at the end of the war and after the war (which had a lot to do with WW2 vets returning and having the government pay for a college education), the depression was long over before the war.

    By 1937 the GDP had returned to its 1929 levels and (after a short recession ’37 to ’38) exceeded 1929 levels by 20% by 1940. Employment from 1929 to 1941 grew from 31 million to 36 million. FDR’s response to the economic slowdown of 1937 was a 5 billion dollar spending spree intended to increase mass purchasing power and the next year the economy resumed high levels of growth.

    Throughout this period Roosevelt maintained the national debt at 40% of the GDP, unlike the current administration which has fueled (slow and stuttering) economic growth with massive deficits and a large increase in debt as a % of GDP. Government debt has increased from 35.1 to 36.8% of the GDP from 2000 to 2007.. its highest level since the 60s.

  • pleasexcusetheinterruption

    Also interesting to note, not relevant to the article, the 4th largest expense in the U.S. govt is the treasury department whose costs are almost exclusively paying interest on the national debt. The treasury dpt costs about 500 billion a year (over twice as much as our current deficit), coming in just behind the Dpt of Defense at 580 billion, Health and Human services at 670 billion, and Social security at 600 billion.

  • pleasexcusetheinterruption

    Just think, if we weren’t paying interest on the national debt.. we would have a 200+ billion dollar surplus!

    As for the rest of your article, while govt is no doubt inefficient.. the private sector also operates with large inefficiencies as well. Having a govt that operates inefficiently shouldn’t really have a big negative effect on the economy as long as the money isn’t being shipped off overseas. The money isn’t going anywhere.

    So basically all it does is fund bureaucratic jobs through tax dollars. Now that probably puts weight on those in the private sector actually providing goods and services.. but I have to wonder if there really is that much unnecessary bureaucracy that could be cut without reducing the goods and services the govt produces/provides?

    I still think the vast majority of government spending goes back to providing goods and services to citizens. Take the department of defense for example.. the vast majority of expenses is paying soldiers, buying equipment and weapons, veterans benefits, etc. .. not paying unnecessary bureaucracy.

    Take Social security for example.. the vast majority of the money that goes into social security is given back to citizens as a service (money) and only a small percent goes into the bureaucracy.

    Take the DOT.. the vast majority goes into physically building roads/bridges by paying the laborers, and buying the materials.. not unnecessary bureaucracy. Now I don’t know much about the DOT operations.. but I have heard govt construction workers don’t work that hard. That would be a problem.. because the govt could accomplish more for the same cost. I have no problem giving them cushy pay, as long as they work hard.

    The real question for me, is how many more goods and services could the government provide for the same cost (in tax dollars)?

    IMO.. a significant amount more.. but the same can be said for any small business or corporation if it operated at full efficiency. It’s the nature of humanity.

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