Critics hold the administrative state responsible for inflating the size and scope of the federal government, harming businesses and interfering with our private lives as well as weakening the constitutional mechanisms of self-government by empowering unelected bureaucrats to formulate numberless rules and regulations. The resulting picture is of a sclerotic bureaucracy too massive to carry out even the most basic of governmental functions while straining our system of checks and balances by arrogating to the executive branch the powers to create, interpret, and enforce law.
Bucking this line of argument, Paul Verkuil of the Center for American Progress makes a positive case for the administrative state. A former law professor and chairman of the Administrative Conference of the United States from 2010–2015, Verkuil is hardly insensitive to the constitutional issues surrounding administrative law or the many problems and inefficiencies that plague our federal bureaucracy. He insists, however, that the administrative state is the solution, not the problem.
In Episode 3 of “The Future of the Administrative State,” Verkuil discusses his latest book, Valuing Bureaucracy: The Case for Professional Government, in which makes his case for more and better bureaucracy — a revitalization of “professional government.” He argues that whatever its faults (and despite the nearly universal derision it garners) bureaucracy is vital to the modern state, being the most effective means to organize, administer, and carry out the myriad of governmental functions. The reality, as Verkuil sees it, is that “we need bureaucrats to deliver the public services we expect.”
Verkuil concedes that the federal bureaucracy is often ineffective and too costly. But this is not because it is too big. Citing research by the political scientist John J. Dilulio, he highlights the discrepancy between the size of the federal civilian workforce, which has remained more or less constant since the Kennedy era, and the dramatic increase in federal agencies, administrative duties, government spending, and U.S. GDP since that time. Agencies are asked to carry out all sorts of “complicated work” that they “didn’t take on in the older days,” and yet they do not possess the personnel needed to do so effectively. We often hear that the “bureaucracy is out of control,” but its size is actually “minimal…compared to its assignment.” In response, Verkuil, following Dilulio, recommends adding “a million more government officials to catch up, at least partially, with the amount we had, percentage wise, during the Kennedy years,” although he recognizes this proposal is unlikely to be well received.
What has filled the gap between the growing demands placed on the administrative state and its limited personnel? “The answer has to be that that gap is filled by contractors.” Federal agencies, especially since the Clinton era, increasingly rely on private-sector contractors to carry out their functions. Thus, Verkuil thinks, the real problem — both practical and constitutional — is the growth not of the administrative state, but of what he calls the “contractor state.”
Verkuil emphasizes that he “is not anti-contractor.” On the contrary, “contractors have important roles they can play to support and supplement government.” His point is that “they cannot replace government decision makers at high, responsible levels.” There are constitutional reasons for this. Civil servants, unlike private contractors, are “sworn in and take the oath of office.” Moreover, the government possesses “inherent functions, which are those that cannot,” as a matter of principle, be outsourced, even if, “as a practical matter that idea is violated on a regular basis.”
But there are also practical implications of the contractor state. Verkuil gained first-hand experience of the inner workings of the administrative state as the head of the Administrative Conference, a federal agency created by John F. Kennedy in 1961 “to improve the performance of government agencies generally” and reestablished by Barack Obama. He learned that “you can relate the quality of performance…to the numbers of contractors running an agency”: on average, fewer contractors means better performance. Moreover, contractors often cost the government more than civil servants — an idea that may seem less counterintuitive when you consider the discrepancy between the number of the civil servants and the amount of federal spending.
Those who fear the expansion of administrative power will surely counter that the solution to the problems highlighted by Verkuil is to reduce the scope of the administrative state, not increase the number of bureaucrats. But Verkuil points out that we need bureaucracy even if we want to shrink the size of government:
If you’re going to deregulate and use public-private partnerships and do things that we hear now in the air especially with all this investment in infrastructure that the administration wants to do, you’re going to have to have good managers. Deregulation requires — maybe even more — good managers…So we have to agree, I think, conservatives and liberals alike, that we need good people, no matter what direction government is going, whether it’s going smaller or getting bigger or staying the same.
Verkuil agrees with conservatives that we need to reform the administrative state. As it currently stands, our bureaucratic system incentivizes the use of private contractors, who can be hired immediately — rather than waiting up to a year just for their security clearances — and readily dismissed if they do not perform. Hence we must make it “easier to hire” civil servants “and to fire” them “when necessary.”
But perhaps the most interesting area of potential bipartisan agreement stems from Verkuil’s observation that the essential problem with the administrative state is that of delegation. That is,
Conservative or liberal, what we’re worried about is the delegation problem. Now, the conservatives would say we shouldn’t delegate in the first place, that maybe Congress should write the rules so clearly that we don’t need agencies to use rulemaking to fulfill the statutory mandate...But then if you think about delegating a second time beyond the federal employees, career professionals, to the contractors, you’ve got a double delegation problem.
Verkuil says that he has “some sympathy with the notion that Congress should not pass off hard decisions to agencies,” and that Congress should “write statues which are more clear and therefore don’t require” excessive administrative rulemaking. But he still maintains that this “transfer of power” from Congress to administrative agencies is both necessary and constitutional. The real practical and constitutional difficulties arise, he thinks, not so much when Congress delegates to agencies as when agencies delegate to private contractors.
Ultimately, Verkuil’s argument is more pragmatic than ideological. “Just because we believe in a good civil service, which I’m really arguing for, doesn’t mean it has to be a large government.” Whatever our policy preferences and whatever government functions we do think are necessary — however many or few — we all want the government to work well. And that’s why, Verkuil insists, we cannot do without an effective bureaucracy — why we must reform, rather than reject the administrative state.
M. Anthony Mills is editor of RealClearPolicy.