Editorial Note: This article is a lightly edited transcript of Theodore Wold’s remarks at the Claremont Institute post-midterms event, “What Should The GOP Do Now?” It is published with Claremont’s permission.
I come from the western United States, and we love our folk tales out there. So, I want to start with a folk tale.
There was a presidential candidate who had something of an uncertain policy agenda. His supporters said he wanted to reform Washington. His detractors said he really just wanted revenge. And during the course of his campaign for the presidency, this candidate charged his opponents with fraud and stealing elections. Then, on the campaign trail, this candidate for the presidency, he was famous for saying he was going to initiate these sweeping reforms of Washington. He’s gonna either throw people in jail or he was going to kick all the b-st-rds out.
He was going to go after officials high and low for public corruption, and malfeasance, and for an arrogant contempt for the rule of law. Now, unfortunately, haste and probably some naïveté about the real Washington confused his purpose in the main, and, depending on who you ask, he left the civil service stronger and more powerful than it was before he even started his campaign.
Now, Gen. Jackson was right to confront the civil service. Gen. Jackson was right to say he was going to purge Washington of bureaucrats high and low. Gen. Jackson was probably right to accuse John Quincy Adams of playing around with elections.
But I think, as is often the case with conservative attempts at reforming Washington, Gen. Jackson’s ideal was right but the execution was lacking. Gen. Jackson’s idea was essentially an attempt to make the implicit link between electoral politics and the governance of the regime explicit.
Making the Bureaucracy Responsive to Voters
As the general said at various points, “You can’t keep a political organization together without patronage. The loyalty of those who fought with you in a campaign, your supporters who bled for you … they surprisingly expect to actually participate in governance if you’re successful and they want to be rewarded for that. What better way to affirm the support and loyalty of your team than make them the postmaster in Lewiston, Maine?” In execution, most historians will say that Jackson failed.
For well over a century, we’ve all been told the progressives’ folk tale about the Jacksonian revolution: that he didn’t really get rid of any of the bureaucracy, but what he did do was he brought in a rabble, and created the spoils system. In this telling, the nation is essentially held captive by the crooks, by the cronies, until the heroes arrive: when the progressives ransom democracy for the passage of this little statute called the Pendleton Act.
The Pendleton Act (and all of its progeny that follow up through Jimmy Carter’s 1978 civil service reform), had essentially one goal, which was to insulate the civil bureaucracy from political accountability — to “protect” civil servants. Now, I think in fairness we would all agree that Jackson’s idea did fail. He had a novel concept: what he called a rotation in office, essentially term limits for civil bureaucrats.
We’ve never really come back to that concept. We want to terminate the actual democratically accountable leaders of the nation and leave the permanent Mandarin class (which some folks in this room belong to here in Washington) as an occupying army. The idea was good, and Jackson would say, “I don’t want the civil bureaucracy to remain a species of property for these people.”
Protecting Bureaucrats from Accountability
But even by the numbers, Jackson only took out about 10 percent of the then-existent civil service, which by even the modest standards of 19th-century America, 10 percent was insufficiently small.
According to the progressives in their folk tale (and you [can] open up any textbook or flip through Wikipedia and they’ll tell you), the Pendleton Act solved all these problems. Gone are the days when bureaucrats govern with partisan prejudice. Gone are the days when bureaucrats ignore with contempt the requests, [the] orders of partisan political appointees from a different persuasion. Today, thankfully 90 percent of the federal civilian workforce, which is now close to about 5 million people, are protected from their politically accountable bosses.
One of the things I want to make clear today is that the Pendleton Act and its progeny, including the 70-day Civil Service Reform Act, are in large part responsible for the growth of the administrative state. They move together.
The Administrative State Didn’t Start with Wilson
Let me tell you one more historical anecdote here to frame this. Back in 1838, Congress, reacting to the news cycle, just like it does today, was confronted with a rash of steamboat boiler explosions on some of the most important navigable rivers in America. The people rightfully demanded action, asking, “What are you gonna do about all these steamboats blown up?”
Congress in their wisdom created a licensing regime at the Department of Treasury. It required safety measures, [including] two-year inspections by a select list of appointed engineers that were named by U.S District Court judges. This proved inadequate to [help solve] the problem, so Congress came back in 1852 and created the Steamboat Inspection Service. SIS was headed by nine presidentially appointed regional inspectors who were empowered to propose regulations to the secretary of the Treasury but could only implement a regulatory authority. The secretary would propose the actual governing regulations.
But this solution didn’t work either, so in 1871 they said, “You know what? We need a central office, we need more than just presidentially appointed personnel, we need regulators, and not just implementing a regulatory authority. We need you to have governing regulatory authority.”
Eventually, all of these employees were placed under Civil Service protection under President Arthur. The result, wrote a recent legal scholar, was to combine something essentially of the New Deal — an Independent Regulatory Commission over steamboats — with Great-Society health and safety regulation by delegating administrative authority to a multi-member board that combined licensing, rulemaking, and adjudicatory functions.
Now, I know this anecdote is going to strike some of you to the core because we also love to tell a story on our side which is, “Well, none of this stuff happened until Woodrow Wilson.” I mean, the 19th century was great and it was truly a conservative republic. Well, it turns out the historical record would indicate otherwise. We’ve had a problem with federal bureaucrats since the 19th century.
If a Plan Requires More Bureaucracy, Oppose It
I think one of the things I want to leave you here with is that Cass R. Sunstein is right: Democratic citizenship in a large pluralistic multi-ethnic society like ours is difficult. It’s difficult to administer. But what you have to understand is what’s on offer from the left today is, as Sunstein says, “The larger the state necessarily the larger the bureaucracy to administer it, and the bureaucracy must contain experts. That’s just the trade-off you have to have for the kind of society we want to live in.”
I would say instead that the deconstruction of the administrative state begins essentially for us as conservatives intellectually. Tangible deconstruction is really only possible if conservatives begin by deconstructing the mindset of expertise. “Rule by experts” is foreign to our constitutional separation of powers. It’s incompatible with democratic accountability and legitimacy, and it’s proven itself to be a failure.
If you weren’t convinced by that fact four years ago, I think everyone in this room can agree that public health officials (the ultimate “experts”) are also now the ultimate encapsulation of the failure of professionalized expertise.
The political branches and the states must be returned to their law-making power. Everyone can kind of agree on that. But they also have to relearn how to express confidence in that power. We must accept that things simply will not be done by a smaller administrative state.
Some things will have to be thrown aside, and that’s the point. Policies that can be achieved only through a vast expansive administrative tyranny are not worth accepting. To the extent that they deserve to be pursued, they’ve got to be housed in branches or levels of government sufficiently responsive to the people and their elected representatives such that such tyranny is then averted.
The Administrative State Is the Most Powerful Fourth Branch of Government
Let me give you just a closing couple of thoughts here. The unitary executive is a myth. It’s a myth! Presidential power largely exists in two forms: fixing a signature to documents, and rhetoric. The power to reverse prior actions taken by a chief executive also requires affirmative action.
That’s an important point, as we learned in the Trump White House. You’ll recall this little program called DACA [Deferred Action for Child Arrivals, amnesty for younger illegal migrants] was created [with] an internal sort of essentially DHS letterhead by the secretary of Homeland Security. The letter basically went, “Dear Barack, I want to create a new program. Signed, Janet.”
Well, we thought that it’s essentially equivalent to a presidential memorandum, that there’s some underlying rules here. Basically, we can undo a memo with another memo.
But Article 3 said, “Not so fast! To undo a memo from your predecessor, you’re going to have to do a full rulemaking and, oops! Full rule-making is going to take more time than you’ve got on the clock. Better luck next time.”
So, an affirmative action is required to undo essentially a negative or unconstitutional action. There are real limits to political rule, which I think Mr. Clark and I both experienced in our own ways both in the White House and at DOJ.
Designed for Dysfunction
I’ll just share one quick anecdote: When I went over the Department of Justice I was told, “Look, the only way you’re really going to be able to stay in communication with leadership and your component attorneys (my office had 76 attorneys I was responsible for supervising) is through your phone, your cell phone. That’s how we all communicate.”
I replied, “Oh okay, great! Where do I get the cell phone?”
They told me, “We don’t know. But someone’s going to come by your office and let you know.”
Okay, two days passed, and I still did not have a cell phone. Eventually, a personnel person came by and said, “You’ve missed all these meetings, do you have your cell phone?”
I said, “No, I don’t have a cell phone, and no one knows who the guy is who has the cell phones.”
Then they told me, “Oh, it’s downstairs!”
So, I went downstairs, got the cell phone — the actual hard tech. And then I was told, “Well, the only way you can log into this cell phone is through your secretary. She has that information — all the login passwords and things of that kind.”
“Where is she?” I asked.
They said, “Well, because of Covid protocols she’s not coming to the office.”
“Well, how do I get a hold of her?”
“Well, the directory is available on your cell phone.”
Political Appointees Can’t Rein in the Bureaucracy
The other thing is that we’re often enamored with this idea that we’ll create these beachheads, that we’ll do all these lists. Everyone in D.C.’s got a list, where they’ll say, “I want so-and-so for secretary of this, and I want so-and-so to be head of personnel office.”
One thing I thought was really funny was a while ago there was a memo that was published. It was leaked to the press and the memo contained this “loyalty oath.” They were asking all these appointees [if] would they sign up for the loyalty oath. The loyalty oath was written by this 23-year-old kid and the press was excoriating this kid and saying, you know, “Gosh, this is so partisan! This is some kind of Soviet thing. Who are these kids? Why are they even in charge of presidential personnel?”
I’m actually not talking about Johnny McEntee. This was done in the George W. Bush administration, the same thing. Which just shows essentially the paucity of our ideas. We’ll actually find people who are ideologically committed and loyal to the chief executive elected by the people by making them sign a loyalty oath. That’s how we’ll do it!
It was frustrated under George W. Bush and obviously, it was frustrated in the same way under Trump. There are no new ideas on our side about ensuring that the political appointees are actually accountable to the chief executive they report to.
Political Appointees Are Vastly Outgunned
Another point on political appointees that you’ve got to keep in mind is that they are essentially Army Rangers operating deep behind enemy lines. When you’re surrounded, it takes a certain type of temperament, a certain type of real courage to essentially tell the people who run your operation, “You know what? That’s great. I’m going to ignore you.”
Most people don’t have that temperament, so what they say when they’re surrounded by “the experts” is, “Right, so if I ignore you, I won’t actually be able to do the job I was hired for. And when the White House calls and X asks for X, Y, and Z, I’m going to say, ‘I don’t have that’ because the information’s been withheld, the document hasn’t been prepared, or I don’t even know what I’m talking about.”
Most people in that instance say, “You know what? You guys are the experts. You tell me what to do.” The political appointee then is captured by the 60 or 70 attorneys or administrators that supposedly report to them. and that’s to say nothing of the political appointees. Because in the Jacksonian sense, this is still around: The political appointees who come into an agency or Department and know nothing about anything. They just happen to be bundlers or friends of a campaign manager or associates of the president prior to his election.
Priority No. 1: Take Out the Bureaucracy
The last thing I’ll just say really quick is for those of you who actually advise members of Congress or senators. There was a recent celebration at the institution which is still called publicly the University of California at Berkeley (which is not really much of a university anymore). Professors Lee Raiford and Ula Taylor gave a presentation on Berkeley’s purchase of a whole tranche of documents from J. Edgar Hoover’s tenure as director of the FBI. The documents are largely focused on the counterintelligence program, which was known as “cointelpro.”
The presentation from the professors in why Berkeley was interested in this tranche of documents was that it supposedly was confirmation of the systemic racism of the FBI from its inception through the duration of Director Hoover’s tenure. For my purposes, I think what’s fascinating is how they highlighted this line from an internal memo that Hoover authored to field agents where he said, “The obligation you have is to disrupt, discredit, and destroy the Black Panther movement.”
The advice I would give any of you who are advising members of Congress when you go to stage what are otherwise meaningless Kabuki-theater hearings [is this]. When you want to exercise oversight by asking the bureaucracy to provide the information that will then allow you to exercise your oversight authorities — unpack that one: The very people you’re supposed to be controlling are the ones you’re dependent upon for information — when all that’s happening, the mantra that you should have in mind is: We are failing unless we are disrupting, discrediting, and destroying these people.
Until we adopt the Jacksonian approach, which is to throw the b-st-rds out — all of them — we will still be living in the progressive folk tale.