The Bush administration was able to achieve a great deal of control over the regulatory process ..... Health Safety Administration (MSHA) and EPA. Reagan's first ...
The George W. Bush Presidency and Political Control of the Bureaucracy David M Hedge Department of Political Science 218 Anderson Hall University of Florida Gainesville, FL 32611 Abstract During its eight years in office, the presidency of George W. Bush worked mightily to expand and exercise its control over the federal bureaucracy, including federal agencies on the domestic side of government. Those efforts at control reflected a number of considerations including a desire to restore the unitary executive, a business approach to management, a pro-business approach to regulation, a belief in smart regulation, and a disdain for federal bureaucrats. Those considerations led the president to employ a number of tools including appointments, regulatory review, presidential signing statements, executive orders, reorganization, and budgets. The administration’s record of accomplishment is mixed. The Bush administration was able to achieve a great deal of control over the regulatory process and the character of federal regulation. At the same time, the president encountered many of the same obstacles that his predecessors faced including opposition from those within the administration, Congress, the states, policy activists and the courts.
Prepared for delivery at the 2009 Annual Meeting of the American Political Science Association, September 3-6, 2009. Copyright by the American Political Science Association."
2 Considerable effort has been (and even more will be) spent by scholars, journalists, and politicians to assess the presidency of George W. Bush. Not surprisingly, much of that effort has and will continue to focus on the war on terror, most notably the decision to invade Irag and Afghanistan, the conduct of each of those wars, and homeland security. One additional and important legacy that has received much less attention is the Bush administration’s effort to control the federal bureaucracy, particularly America’s regulatory agencies. As one author (Shaprio, 2007: 270) notes “The Bush administration has implemented more reforms to the regulatory process than any of his predecessors.” Like those who preceded him, the President and his administration have used a variety of tools – appointments, budgets, executive orders, signing statements, and centralized clearance -- to achieve political control of federal agencies. This paper is an attempt to document and assess the administration’s efforts to control the federal bureaucracy. While many of the administration’s actions were targeted toward national security, the evidence suggests that efforts at controlling the executive branch were extended to agencies that address non-security issues agencies, most notably regulatory agencies like EPA, the NRC, EEOC, FDA, the Department of the Interior and OSHA. I will leave it to others to document the president’s efforts to control the Departments of Defense, State, and Homeland Security and the 16 or so agencies that make up the intelligence community. Nor does this paper address the administration’s regulation of the financial sector. Instead the emphasis here will be on the domestic side of things and that part of the Bush Administration’s “story” that received much fewer headlines but nonetheless addressed critical policy issues.
3 Based on a review of academic, journalistic, and government accounts, this paper seeks tentative answers to a number of questions. What considerations drove the administration’s efforts to control the federal bureaucracy? What techniques did they use? To what extent did the control mechanisms and strategies of the Bush administration borrow from previous administrations? How successful was the administration at achieving control of federal regulation? What factors limited the administration’s goal of maximizing its influence over the actions of federal bureaucrats? The Rationale for Control By most accounts, the Bush administration expended considerable effort at controlling the federal bureaucracy, including regulatory agencies, during its eight years in office. As Washington Post reporter Dana Milbank noted in November 2004 (p. AO4) “President Bush has ousted Saddam Hussein, toppled the Taliban and defeated the Democrats, but last week he took aim at a more enduring foe: the federal bureaucracy.” In assessing the administration’s efforts Provost (2009:221) makes a similar point when he notes “As we have seen, President Bush continually pushed the boundaries of executive control outward, employing a multitude of means to consolidate further executive power, often at the expense of congressional, judicial, or state power.” Those efforts appear to have been driven by a number of considerations, including the administration’s view of the powers of the presidency, it’s approach to management, a pro-business bias, a preference for “smart regulation” and a disdain of the federal bureaucracy. Kelley (2005) has argued that the Bush administration’s efforts at bureaucratic control was first and foremost a desire to restore the power of the presidency to what it
4 was prior to efforts by Congress, the courts and others to limit that power in the wake of Watergate and Vietnam. According to that author, the Bush administration, like its predecessors in the Reagan, Bush I, and Clinton presidencies pursued control of the bureaucracy guided by a “unitary executive” theory1 that embraces unilateral action, central clearance, enhanced appointment and removal authority, and a resistance of any effort to encroach on the president’s role as executor. That approach also rejects the notion that presidential power is the power to persuade. In comparing the unitary executive theory to Neustadt’s notion of the “Modern Presidency,” Kelley (2005: 11-12) maintains that The unitary executive theory is fundamentally different. It assumes hostility in the external political environment and seeks to push the constitutional boundaries to protect the prerogatives of the office and to advance the president’s policy preferences – something Ryan Barrileaux terms “venture constitutionalism.” Over the last three decades, a unitarian approach to presidential power found expression in administration challenges to the War Powers Resolution, the legislative veto, and other efforts to usurp executive branch authority. Given this view of presidential power and the president’s personal background, it is not surprising that Pfiffner (2007: 6) has dubbed George W. Bush as “…the nation’s first MBA president…”Pfiffner’s labeling of the president is not just an acknowledgement of the fact George W. Bush is the first president to hold a MBA, but a recognition of a style of leadership that is akin to that of a CEO running a large cooperation. In describing the president’s approach to leadership he notes:
1
Interestingly enough, Kelly notes that the administration had used that term 95 times in signing legislation or executive orders between 2002 and 2004.
5 He prefers to set a bold direction and delegate administrative matters to his executive team, lead by his chief operating officer Richard Cheney. The Bush management style is marked by secrecy, speed, and top-down control. Pfiffner also maintains that Bush’s was a style of leadership that avoided extended deliberations, failed to recognize the complexity of policy problems or considered a broad range of alternatives. The administration’s efforts at control reflected a pro-business bias as well. Again this is hardly surprising given the business backgrounds and ideology of so many in the Bush White House, including the president, Vice President Cheney, Secretary of Defense Rumsfeld and Secretary of the Treasury O’Neill. That bias toward business is found in the administration’s appointments at the cabinet and sub cabinet level, in a regulatory approach that tended to favor the business community, and the administration’s willingness to outsource the business of government to the private sector. At the same time, some on the right have argued that the Bush administration has eschewed a more market-based approach to regulation in favor of an approach that favors “smart regulation” by federal agencies. In assessing the Bush administration’s regulatory record during its first term, Susan Dudley (2005), then director of George Mason’s Regulatory Study Program, applauds the White House for many of its actions to improve regulatory review at OMB but maintains that the administration placed too much faith in the wisdom of federal regulators. She notes (p. 9) …OIRA’s paradigm appears to be that rather than rely on market processes, property rights, and individual choice, smarter regulators can devise government solutions to perceived problems…this faith in the ability of smarter regulators to analyze problems and achieve socially optimum results overlooks the insights of public choice economics, federalism principles, and free-market environmentalism.
6 Finally, the Bush administration shared the hostility of his Republican predecessors, most notably Nixon and Reagan, toward the career civil service and the employee unions that represented them. While the administration may have embraced a vision of smart regulators, it made clear that too many civil servants were not up to the task. That animosity toward the bureaucracy is found in the president’s efforts to increase the number and role of political appointees, to outsource administration to the private sector, remove agency employees from the civil service system, and to adopt new rules for hiring, firing, and rewarding those in the senior executive service and elsewhere in the federal bureaucracy. A distrust of subject matter experts in the bureaucracy was also evident in the frequent rejection by White House officials of the scientific conclusions of career bureaucrats at EPA, the Centers for Disease Control, the Interior Department and the Food and Drug Administration. Tools Those considerations led the president to pursue a strategy of control that borrowed from the playbooks of many of his predecessors including Bill Clinton, the president’s father, Ronald Reagan and Richard Nixon. The tendency to pursue unilateral action and a disdain for the bureaucracy most closely resembles the Nixon administration’s relationship with the federal bureaucracy, while the attention to central clearance of the regulatory process and special attention to sub-cabinet appointments reflects the Reagan legacy of control. In dealing with domestic agencies the administration relied most heavily on its appointment powers and expanding White House control of the regulatory process. But that is not to say that President Bush did not avail himself of other tools of control, including presidential signing statements, executive orders, budgets, and
7 reorganization. As we see below, there were times when the White House relied on many of those tools to exert his authority.
Presidential Appointments and Personnel Strategies -- The most fundamental way that presidents can control the bureaucracy is to choose those who serve in the bureaucracy and the conditions under which they serve. The evidence suggests that the Bush administration attended to each of those things. On the appointment side, President Bush, was able to appoint roughly 3,000 individuals to serve in his administration including the 500-600 political appointees requiring senate approval, another 700 or so non-career members of the Senior Executive Service (SES) and roughly 1600 Schedule C appointees (Lewis 2009). In making those appointments, the president pursued a number of strategies. First, like the Kennedy and Reagan administrations, the Bush White House prioritized appointees in terms of the president’s policy agenda. Initally the emphasis was on filling cabinet heads and 165 subcabinet posts (Johnson, 2003, reported in Lewis, 2009). Second, taking a cue from the Reagan administration, senior administration officials “…. exercised tight control over the selection of all subcabinet appointment” (Lewis, 2009, p. 26, emphasis added). Third, as you would expect, the administration sought individuals who were both loyal to the president and shared his core ideology. In many instance, particularly in appointments to regulatory agencies, the White House sought individuals who shared the president’s pro-business bias, including senior officials at the Department of the Interior, EPA, and OSHA. In other instances, individuals with a more socially conservative ideology were recruited including appointees at the Department of Justice (Provost and Teske, 2009). Finally, Lewis (2009) suggests that the Bush administration followed the practice of earlier administrations of bringing in
8 younger political appointees to the White House or federal agencies that would subsequently serve in a position of leadership. The two most notable examples of that, of course, are Condoleeza Rice and Alberto Gonzales. In addition to determining who would serve as political appointees, the president also had the opportunity to determine where some of those appointees would serve. According to Lewis (2009), by 2004 the Bush administration had increased the number of appointed positions by 350 lines. While many of those positions were patronage appointments, still others were targeted to agencies that historically did not share the president’s policy agenda, including the Departments of Education and Labor and the Environmental Protection Agency. A final way the Bush administration sought to exert control over the federal bureaucracy is by moving a significant number of non-appointees outside of the traditional civil service. Over the past three decades, personnel serving in a number of federal agencies, including the U.S. Postal Service, the FDIC, the Comptroller General’s Office, the FAA and the IRS have been allowed to create their own personnel system. In an apparent attempt to provide the administration with greater control, ostensibly to pursue national security matters, the Bush administration sought to exempt the Departments of Defense and Homeland Security from several rules protecting civil servants in their jobs. The president was granted considerable leeway in hiring, firing and promoting individuals serving in those agencies. In the case of the newly created Department of Homeland Security, the president was also able to secure additional tools of control including additional appointments and budget flexibility (Lewis, 2009). According to Lewis, assuming the Congress or the courts (or for that matter, the new
9 administration) do not rescind the president’s actions, the number of federal employees covered by the civil service system will fall to under 50 percent. Yet another way the president sought to “end-run” the civil service was to outsource (or at least threaten to do so) implementation of government programs, including defense, to the private sector. While privatization makes direct control more difficult for the White House, it does remove employees from civil service pay scales, hiring and firing protections, and agency standards of behavior. Moreover, outsourcing makes it even harder for others, particularly Congress and the courts, to monitor and sanction federal bureaucrats. The most well known example of the administration’s decision to go to the private sector for implementation is in the area of defense. According to one source (Shorrock, 2007) perhaps as much as 50 percent of the nation’s intelligence budget went to private companies during the Bush years in office. A GAO report issued in 2006 noted a dramatic increase in the Department of Defense’s use of private contractors in Iraq and Southeast Asia as well. According to GAO analysts, some 60,000-contract employees were serving in the region (primarily Iraq) in 2006. Nondefense agencies saw an increase in outsourcing as well. In 2005, for instance, Lockheed Martin successfully competed for 2,300 jobs at the Federal Aviation Administration (Singer, 2005). Some of those positions were part of a larger effort by the Bush administration under the Federal Activities Inventory Reform Act (FAIR), P.L. 105-270 and revised OMB (May, 2003) Circular A-76 to require federal agencies to identify federal jobs that could be performed by the private sector, the so-called competitive sourcing initiative. Initially the administration estimated that nearly a half million federal jobs could be offered for competition, but subsequently lowered the number of targeted
10 jobs to just 127,000. Legal challenges, congressional opposition and a growing reluctance within the private sector to bid for federal jobs, further reduced the number of positions subsequently subject to competitive bidding to less than 50,000 (Lee, 2008). Moreover in the 1,200 competitions held by federal agencies between 2004 and 2008 less than 20 percent of all positions put out to bid were won by private sector (Brodsky, 2008). While the administration’s initiative fell well short of its goals, the message was probably not loss on federal employees who no doubt understood that their jobs were less secure than before the administration took office. OMB and Regulatory Review Over the past three decades, presidents have issued a series of executive orders to expand considerably White House review of agency rulemaking. As part of his effort at reducing the rate of regulation, President Reagan issued Executive Order 12291 in 1981. The order required regulatory agencies to submit of a copy of proposed rules to the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB). Agencies were also required to conduct a cost-benefit analysis of all “major” rules (those with an estimated cost of $100 million or more). In 1985, the president issued E.O. 12498 that required agencies to submit annual regulatory plans outlining current and intended regulatory actions. The results on the federal regulatory process were immediate. OIRA became the “central clearinghouse” for agency rulemaking, as 2-3000 regulations annually were subject to often lengthy reviews. In 1993 President Clinton issued E.O. 12866 which 1) reduced the number of actions subject to OIRA review, 2) required reviews to be completed within 90 days and 3)
11 mandated greater transparency about the review process and any substantive changes that were made during the review. (Copeland, 2007) Those executives orders and the processes and requirements that they put into place became the basis for the Bush administration’s efforts to enhance the White House’s control of federal regulation. During the president’s first term, the OIRA pursued a number of initiatives under the direction of OIRA director John D. Graham that proved controversial and increased the administration’s influence over the content of federal regulation. Among the president’s initiatives, two seem particularly to the point of the president’s desire to control regulation – rules for assessing the quality of agency information and an expansion of OIRA’s regulatory role (Shapiro, 2007). Regarding the quality of agency information, a series of guidelines were crafted by OIRA to implement and expand legislation enacted in 2000, the Information Quality Act (IQA, P.L. 106554). Under the guidelines, agencies are required to develop a series of definitions as to what constitutes quality information and procedures for public comment on information disseminated by the agency. The guidelines also required peer review of “significant technical information” and set rules concerning who could serve (and not) as a peer reviewer. Under Graham’s leadership, he new administration also sought to increase OIRA’s regulatory role by issuing so-called “prompt letters.” Unlike other communications to regulatory agencies, prompt letters urge agency leaders to pursue regulatory actions that OIRA believe are worthy of agency attention. What sets prompt letters apart from other communications with regulatory agencies is that they recast OIRA’s role from a reactive to a proactive organization by attempting to set or reset the
12 agenda of regulatory agencies subject to its review. In one instance Graham wrote officials at OSHA to urge them to promote the use of defibrillators in the workforce after reading a study commending their use in the New England Journal of Medicine (Kelley, 2005). In a similar fashion, Graham sent a prompt letter to the EPA in 2002 urging them to conduct more research on the “….health effects of fine particles” (Dudley, 2005, p. 5). By mid-2007, the administration had sent 14 prompt letters to agency heads and had received 9 responses from agencies in which agency officials made “vague” promises to attend to the matter (Shapiro, 2007). Those letters were in addition to other efforts by the “a revitalized OIRA” to check the regulatory actions of federal agencies. According to Gattuso (2002) OIRA returned twenty proposed regulations to and identified an additional two dozen or so rules that warranted reconsideration by agency officials. The second wave of the Bush Administration’s efforts to increase political control of regulation occurred in the president’s second term. In January 2007, the President issued E.O. 13422. Among other things, the executive order amends Clinton’s E.O. 12866 by requiring federal regulatory agencies to assign a presidential appointee to serve as the agency’s regulatory policy officer and gives that individual additional influence over the agency’s regulatory agenda. As Curtis Copeland of the Congressional Research Service notes (2007a, p. CRS-6) Unless specifically authorized by the agency head, the presidential policy officer must approve the listing of all significant forthcoming regulatory actions in the regulatory plan and approve the initiation of all significant rulemaking actions. The president’s executive order also amended the Clinton order to require agencies to provide OIRA with additional cost-benefit analysis of proposed regulations and identify the market failure that prompted the proposed rules. E.O. 134222 also subjected the
13 thousands of guidance documents typically used to clarify laws and regulations to OIRA review. Finally, the president’s order encourages agencies, in consultation with OIRA, to consider whether to employ formal rulemaking procedures when issuing new regulations. Formal rulemaking, of course, is more time consuming and costly for both the agency and interested parties. (Copeland, 2007b). Many contend the Bush administration’s attempts to increase the OIRA’s and by extension the White House’s role in the regulatory process have been substantial and have had a sizble impact on the character of regulation. In analyzing the likely impacts of E.O. 13422, Copeland (p. CRS-13) contends that “The amendments made by E.O. 13422 on E.O. 12866 are the most significant since the latter order was issued in 1993…” Shapiro (2007: 270) draws a similar conclusion based on his review of the administration’s first term in office – “The Bush Administration has implemented more reforms in the regulatory process then any of its predecessors.” Those scholars and others contend that the president’s reforms have not only strengthened the White House’s hand in regulation, but have empowered powerful business groups and led to additional delays in the rate at which regulations were reviewed. Shapiro (2007), for instance, contends that requiring agencies to collect additional information to justify new regulations and increasing the power of both political appointees and OIRA has strengthened considerably the ability of the White House to shape the substance of regulation. He also maintains that peer review and information requirements work to the benefit of powerful business and interest groups. And subjecting agency actions to additional OIRA scrutiny is likely to create addional delays in the rulemaking process.
14 Evidence generated by Yackee and Yackee (2009) suggests a more cautious take on the White House’s success at increasing its control of federal regulation. On the one hand, during its first five years in office the administration proposed and finalized far fewer rules annually than did its predecessors in the Reagan, Bush I, and Clinton administrations. The Bush administration also subjected a much smaller number of rules to OMB review than either the Reagan or Bush I White Houses. Under Reagan, OMB annually reviewed on average 478 proposed and 451 final rules. In contrast, the second Bush Administration only reviewed, on average, 171 proposed and 124 final rules annually. In fact the Bush numbers come closest to the rate of review during the Clinton years, 214 and 167 respectively. On the other hand, Yackee and Yackee’s evidence suggests that the rate at which proposed rules became final law was much higher in the Bush Administration, reaching a conversion rate (annual rules proposed/annual rules promulgated) of 93%. And, while OMB reviewed a much smaller number of rules than did the Reagan or Bush I administrations, OMB during the second Bush presidency was much more likely to impose changes on proposed and promulgated rules than either of its Republican predecessors. During the Bush II years, three quarters of all regulations proposed and issued on an annual basis required OMB mandated change versus less than a third of proposed and final rules during the Reagan and Bush I years. Presidential Signing Statements Presidential signing statements are a third major means by which the Bush Administration sought to exert presidential control over the executive branch. Although presidential signing statements are nearly as old as the Republic, it was the Reagan administration that begin to use those statements as a means to “protect the prerogatives
15 of his office from a Democrat-controlled Congress…. and as a way to instruct the executive branch agencies on how they should interpret vague or ill-defined sections of a law absent congressional intent” (Kelley, 2005, p. 27). Since that time, presidents have used signing statements to express their objections to elements of congressional mandates and to signal their unwillingness to implement provisions of law on constitutional grounds. Kelley and Marshall (2008) note that signing statements are aimed at one of two audiences – federal judges and executive branch bureaucrats. In issuing signing statements, presidents are adding their interpretation to the bill’s legislative history and to signal constitutional objections. Cooper (2005) contends that presidential signing statements represent an effective alternative to the use of the veto in challenging the Congress and legislation. According to that author signing statements afford presidents more flexibility in dealing with legislation, are often difficult to challenge in a court of law, and often operate under the radar of the public and others outside of the administration. Kelly and Marshall (2008) suggest that signing statements also provide presidents with a “last-move advantage.” Cooper’s (2005) analysis of the use of the presidential signing device during the presidency of George W. Bush is particularly instructive about how the president has used signing statements to challenge legislation on constitutional grounds. During its first term in office, Cooper counted 108 signing statements that raised 505 constitutional challenges to congressional legislation. Constitutional objections ranged from statements that legislation was inconsistent with the president’s power to supervise the “unitary executive” to preempting the president’s powers as commander in chief to violating the due process clause of the Fifth Amendment (see Table 1, Cooper, 2005). In evoking
16 constitutional challenges to provisions of congressional legislation, the Bush administration provided a rationale as it why it would be unable to carry out key provisions or to implement legislative requirements in ways that reflected the administration’s legal interpretation of the law. A typical example of the administration’s interpretation of executive authority is found in a statement that accompanied the 2001 appropriations bill (H.R. 2500) for the Departments of Commerce, Justice, and State. I note that Section 612 of the bill sets forth certain requirements regarding the organization of the Department of Justice's efforts to combat terrorism. This provision raises separation of powers concerns by improperly and unnecessarily impinging upon my authority as President to direct the actions of the Executive Branch and its employees. I therefore will construe the provision to avoid constitutional difficulties and preserve the separation of powers required by the Constitution. (WCPD, p. 1723, December 3, 2001). In a number of statements the Bush administration cites the U.S. Supreme Court’s 1983 ruling in INS v. Chadha to resist legislative mandates requiring the administration to take certain actions. In the signing statement attached to the 2003 Defense Authorization bill (H.R. 4546) the president maintained The executive branch shall construe section 133(2)(B) of the Act as requiring only notification to the Congress and not any form of congressional approval following notification, as any other construction would be inconsistent with the constitutional principles enunciated by the Supreme Court in 1983 in INS v. Chadha. (38 WCPD, p. 2114 , Dec. 9, 2002) Kelley and Marshall’s (2008) analysis of signing statements between 1989-2006 provides considerable insight into the use and sources of presidential statements by the Bush and previous administrations. Coding statements as either rhetorical or constitutional in character, those authors find that the Bush administration was somewhat more likely to use signing statements to take a constitutional position on legislation than either the Bush I or Clinton administrations (79% vs. 54% and 25%, respectively). The authors also discover that presidential signing statements are more likely to accompany major legislation and where there is divided government.
17 Executive Orders Like presidential signing statements, presidents use executive orders to preempt the Congress and to assert presidential authority. Unlike presidential signing statement, executive orders are meant as a substitute for legislation and are treated as having the something like the force of law. Over the course of his presidency, George Bush issued 284 orders, far fewer than the numbers issued by the Clinton (363) and Reagan (380) administrations. Not surprisingly, a substantial number of those orders addressed national security concerns including the wars in Iraq and Afghanistan, and the broader war on terrorism. However, the president also signed a number of orders that impacted on domestic policy including executive orders that created the office of Faith Based Initiatives in the White House (E.O. 13199), restricted access to presidential records (E.O. 13233), limited federal funding for stem cell research (E.O. 13435), required regulatory agencies to analyze the impact of proposed rules on small businesses (E.O. 13272) and increased the White House’s control over the rule making process (E.O. 134222) Reorganization Historically presidents have relied on the power to reorganize the executive branch as a means to influence behavior. During the Reagan years, for example, administration officials used reorganization to reduce the rate of regulation at the Mine Health Safety Administration (MSHA) and EPA. Reagan’s first administrator at EPA, Ann Burford, abolished the Policy Office and the Office of Enforcement. While the enforcement office was subsequently reestablished elsewhere in the agency, the antiregulatory message was not lost on industry officials, interest groups, or agency officials
18 (Waterman, 1989). The Bush administration has availed itself of its organizational powers not only to fight the war on terrorism but to effect change within a handful of regulatory agencies. The most dramatic instance of reorganization was the creation of the Department of Homeland Security. In 2001, President issued E.O. 13228 that created an Office of Homeland Security within the White House. In late 2002 Congress followed the president’s action by creating the Department of Homeland Security (P.L. 107-296). Designed to coordinate federal efforts at insuring domestic security and responding to natural disasters, creation of the new agency represented the largest reorganization of government in U.S. history and involved nearly a quarter of a million federal employees (Department of Homeland Security Webpage, http://www.dhs.gov/xabout/). Altogether over 20 agencies and departments were brought into the new agency, including the Secret Service, INS, FEMA, TSA, the U.S. Customs Service, the Federal Protective Service, and the U.S. Coast Guard. The second most important effort at reorganization during the Bush administration was the creation in 2004 of the Office of the Director of National Intelligence, an attempt to coordinate the activities of the nation’s 16 intelligence agencies (P.L. 108–458). Additional reorganizations occurred elsewhere in the executive branch, including the Natural Resources Conservation Service (NRCS, Department of Agriculture), the Centers for Disease Control (CDC), the General Services Administration (GSA), the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA). The NCRS was created to work with the nation’s farmers on conservation, wetlands, and animal waste runoff. Under Bush appointee Bruce Knight the division eliminated its six regional offices and replaced the regional managers
19 with Washington-based political appointees (Singer, 2005). At the CDC, career staffers expressed concerns with the corporate model that center director Julie Gerberding announced in 2004. Although the proposed reorganization retained each of the 11 divisions at the CDC, her plan grouped some divisions together under shared leadership (Kaiser, 2004). Career employees feared that under the director’s plan they would lose their abilities to make professional judgments on issues that might come before the agency (Singer, 2005). Reorganization at EEOC also raised concerns that plans to reorganize the agencies were simply part of a larger effort to weaken the agency and cut its resources. Under a plan announced in 2005 EEOC officials downsized eight district offices to field office status, took other actions to “thin EEOC’s top-heavy management,” and added two new district offices in Mobile, Alabama and Las Vegas, Nevada (Gruber, 2005). Critics of the plan, including Bush I appointed Commissioner Stuart Ishimaru argued that the EEOC plan would, among other things, hurt the quality of services at the downsized district offices, ignore critical staffing shortages, and reduce enforcement capabilities particularly in the South (Palmer, 2005 and Gruber, 2005). At OSHA John Henshaw, the assistant secretary of labor responsible for heading OSHA, merged a number of divisions responsible for dealing with health and safety issues, a move that many in the agency feared would reduce agency expertise in those areas (Goldstein and Cohen, 2004). Budget The Bush administration also used budget recommendations to change agency behavior. At the EEOC, the administration sought in its first year in office to reduce agency regulation of the business community through budget cuts and staffing reductions.
20 Indeed, in FY2001 the agency barely avoided a 30-day furlough because of a lack of funding. Between 2001 and 2006 the agency’s budget, once adjusted for inflation, fell by 10 percent. Moreover, the budget for enforcement in the private sector fell much more sharply, declining by 24% (Nicholson-Crotty and Nicholson-Crotty, 2009). Budget cuts were also used at EPA to reduce environmental enforcement in a number of areas and to redirect the agency’s programming priorities. While the administration sought increases in some areas of EPA programming, most notably homeland security but also the Superfund program and clean-up of the Great Lakes, overall the practice was to cut EPA’s budget in the area of enforcement. The president’s request for fiscal years 2005 and 2006, for example, cut the agencies budget request by 5.6 and 7 percent respectively from the previous years’ funding levels (Small, 2007). The Washington Post reported in 2007 (Solomon and Eilperin, September 30: p. A01) that the number of investigators in the agency’s criminal enforcement program stood at 172 agents, well below the 200 person minimum mandated by legislation passed during the administration Bush I administration. Earlier, Eric Schaeffer, EPA’s Director of the Office of Regulatory Enforcement pointed to a proposed cut in the civil enforcement program of 200 employees as part of his reason for leaving the agency in 2002.2 The administration proposed similar cuts at FDA. In its FY2006 budget request the FDA proposed cutting the enforcement budget for food safety, foreign drug plant and blood bank inspections by 4-6 percent over the previous year (Appleby, USA Today, February 14, 2005).
2
Resignation letter to EPA Director Whitman, February 27, 2002,
http://www.mapcruzin.com/news/rtk022802a.htm
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An Assessment: The Case of Regulation A review of recent assessments suggests two dramatically different views of the Bush administration’s legacy of control. A number of journalists, activists, and scholars maintain the administration’s efforts have been extensive and have had a sizable impact on American politics and policy. As we saw in the first paragraph, scholars like Stuart Shapiro (2005) maintain that the Bush administration produced more changes in the regulatory process than any of its predecessors. NYU’s Paul Light is quoted in the online version of the National Journal (March 25, 2005) as concluding that the administration’s control of the federal bureaucracy was “.... more coordinated and centralized that it has ever been.” And, of course, many policy activists have argued that the administration pursued a course of regulation characterized by neglect, rulemaking that favored business interests, and a failure to enforce important environmental, workplace, and consumer safeguards. In assessing the Bush administration’s record on the environment during its first term in office, the National Resources Defense Council (2005) maintained that “….the administration led the most thorough and destructive campaign against America’ environmental safeguards in the past 40 years.” Others maintain that the Bush administration’s record is much less extensive and damaging than scholars and critics maintain. Proponents of the administration’s moves to a more powerful executive branch and unilateral action maintain that given the range and complexity of issues facing America, something akin to a business model of leadership is appropriate in the 21st century. Critics of federal regulation give the administration high marks for “developing more cost-effective regulations” (Mannix,
22 2003) and increasing the transparency and quality of regulatory review (Dudlely, 200405). For their part, a number of scholars maintain that the administration’s efforts have been far less successful than critics contend. As Provost and Teske note (2009, p. 2-3) “…despite the Bush administration’s fierce attempts to control bureaucratic policymaking, it is not clear whether the administration has been able to produce the intended results.” As it turns out, both sides are correct. During it’s eight years in office, the Bush administration achieved many of its regulatory goals and clearly left a legacy of greater White House control of the executive branch. But at the same time the administration faced a number of obstacles, including opposition from within the administration and challenges from the courts and Congress, which limited and in some cases reversed the administration’s efforts at regulatory control. Each of those points is elaborated below. The evidence on the administration’s regulatory efforts suggests that the Bush administration was reasonably successful in altering regulatory rules and reducing the level of enforcement. In terms of enforcement, for example, a number of studies indicate that EPA officials were able to slow the rate at which the agency went after violators of the clean air and water acts. A report prepared by the Knight-Ridder news organization indicates that the average number of notices of violations (NOVs) issued by EPA declined by 58% in the first two years of the Bush administration (Borenstein, 2003). That same study reported that administrative fines fell by 28% during that period. In 2007, the Washington Post (Solomon and Eilperin, 2007) reported similar changes in the rate at which the administration went after polluters. According to the Post, the number of individuals convicted of environmental crimes and the number of cases
23 opened by EPA officials each fell by 37 % between 2001 and 2007. Similarly, the NRDC (2005) reported that the number of lawsuits filed against private firms fell by 75% in the administration’s first three years in office. Time-series analysis reported by Provost, Gerber, and Pickup (2009) indicates similar pattern – according to their data, declines in enforcement actions at the agency followed the appointments of Christine Whitman and, later, Michael Leavitt as EPA administrators. Similar enforcement patterns held elsewhere in the administration. A report issued by the minority staff of the House Committee on Government Reform (2006) pointed to several instances of failure at the FDA to properly enforce existing regulations including a 50% decline in the number of warning letters between 2000 and 2005 and a tendency to reject (p. i) “… the enforcement recommendations of FDA field offices despite findings by agency inspectors that violations led to multiple deaths or serious injuries.” At OSHA, enforcement patterns are less clear as critics contend that the agency relied too much on voluntary compliance and overstated the amount of enforcement activity that actually took place. A Washington Post story (April 15, 2004, Goldstein and Cohen) reported that “The overall number of inspections has increased under Bush, but the typical inspection takes less time, and fewer are in response to accidents or complaints.” A second way in which the administration was able to influence the character of regulation was through rulemaking. In many instances, the administration simply chose not to issue rules on matters considered important to environmental groups, workers, or consumers. Information reported in the Washington Post (Smith, December 29, 3001: A01) indicated that the rate at which OSHA issued new workplace safety rules fell by
24 86% compared to a comparable six-year period in the Clinton administration. In a similar fashion, the New York Times reported in its on-line edition (Labaton, April 25, 2007) that “The agency has killed dozens of existing and proposed regulations and delayed adopting others.” The most well known instance of administration inaction on the environmental front was the administration’s decision in 2001 not to regulate carbon dioxide emissions, despite promises to the contrary during the campaign and the announcement by EPA administrator Whitman just one month earlier that the administration was considering those regulations. Equally important are the rules that regulatory agencies did issue. At EPA, three rules were especially significant (Provost, Gerber, and Pickup, 2009). The first had to do with how the agency interpreted the New Source Review (NSR) provisions of the Clean Air Act. Under the Clinton administration, the EPA sought to enforce an interpretation of the rules that maintained that power companies must improve pollution abatement levels whenever the value of facility upgrades reached a certain monetary level. The Bush EPA sought to reverse the Clinton-era actions by raising the monetary threshold and effectively removing many of the nation’s coal-fired plants from prosecution under that regulation. In 2005, the administration issued two additional rules. The Clean Air Interstate Rule (CAIR) and the Clean Air Mercury Rule (CAMR) proposed a waterdowned version of the administration’s failed Clean Sky’s bill by offering to use a capand-trade program to control sulfur and nitrogen dioxide and mercury emissions. Although the courts would eventually strike down those regulations, EPA officials followed the administration’s rules in the interim.
25 All that evidence aside, there are also good reasons to believe that the administration was less successful in achieving, particularly over the long haul, all of its regulatory goals. As Provost (2009: 231) notes in his assessment of the administration’s legacy of control, “Overall, President Bush will be remembered for his aggressive use of presidential power and the obstacles that prevented him from seeing the use of such power to the successful achievement of policy goals.” The available data suggests a number of instances where enforcement either continued along a path that had begun in the Clinton era or failed to reduce to the rate of regulaton despite administration efforts to the contrary. Waterman’s (2009) analysis of enforcement at the NRA, for example, finds that while there was a continual decline in the number of notices of violations during the first several years of the Bush administration, those reductions simply continued a trend that had begun in the last two years of Clinton’s term of office. At the EEOC, despite the administration’s record of reorganization and budget and staff cuts, the administration was unable to reduce enforcement levels. Why? Crotty and Crotty (2009) contend that the failure to alter regulatory effort at the commission was a failure to undo administrative reforms put into place during the Clinton years, most notably the Priority Charge Handling System. They contend that the efficiencies provided by those reforms effectively (p. 188) “…nullified the impact of Bush administration personnel and budget cuts.” At EPA, evidence provided by Provost, Gerber, and Pickup (2009) indicates that while the administration’s adoption of the Clean Air Interstate rule and Clear Air Mercury Rule led to more inspections by agency officials, enforcement levels (i.e. NOVs and cessation orders) were largely unaffected.
26 The administration also faced opposition from a number of quarters, including individuals within the administration, the Congress, the American states, advocacy groups, and the courts. Christine Whitman, Bush’s first administrator at the EPA and a moderate on environmental issues quickly found herself at odds with others in the administration, most notably Vice President Cheney, over a pair of issues, the regulation of CO2 emissions and how and whether to implement new source reviews under the Clean Air Act. While Whitman would ultimately lose the battle on both issues and resign her position at EPA, her opposition is credited with delaying the administration’s NSR initiative until August 2003 (Krause and Dupay, 2009). The Bush administration faced some opposition in the Congress as well. In a number of instances Congress failed to accept administration proposals to cut regulatory budgets, including proposals from EPA and OSHA that would have reduced regulatory staff. And in 2005 the president’s Clear Skies initiative would die in the Senate. Over the years, Congress also passed a series of laws that effectively limited the President’s much touted Competitive Sourcing initiative by excluding a number of agencies from competition and providing federal workers greater opportunities to challenge the results of competition (Brodsky, 2009). The courts also issued a number of rulings that limited some of the administration’s regulatory actions, most notably in the area of environmental regulation. In April 2007, the U.S. Supreme Court issued two rulings that upheld the challenges brought by several state and local governments and environmental interest groups to the administration’s policies on global warming and New Source Review. In a 5-4 decision in Massachusetts v. EPA the court held that CO2 and other pollutants were subject to
27 provisions of the Clean Air Act. In reaching that decision, the Court enabled states to regulate global pollutants; something the EPA had prohibited them from doing. In Environmental Defense v. Duke Energy Corp. the Court essentially struck down the administration’s NSR standards by effectively requiring many of the nation’s coal-fired plants to install new pollution controls when they make major renovations to their plants that result in increased annual levels of pollution (Shogren, 2007). In 2008, a lower court would strike the administration’s ruling on mercury emissions (Provost, Gerber, and Pickup, 2009). Conclusion In the final analysis, the Bush administration’s efforts at control, at least on the domestic side of government, played out suspiciously like that of many of his predecessors. Like presidents before him, George W. Bush and his administration drew upon a wide range of administrative techniques to unilaterally exert and expand presidential control. As we have seen his accomplishments were several. At the same time, President Bush, like those who preceded him, was reminded that it is difficult to alter the direction of the “ship of state” given its enormous size and the need to gain the cooperation of other actors in a system of government that is based on both a separation of powers and federalism. While Congress and the courts often move slowly in response to presidential initiatives and pleas for redress from citizens they often do so in ways that limit presidential effectiveness.
28 References Appleby, Julie. “Budget Cuts FDA Safety Checks.” USA Today. February 14, 2005 Borenstein, Seth. “Far Fewer Polluters Punished Under Bush Administration.” Common Dreams.org. December 9, 2003. Brodsky Robert. “Competing to the Death.” Government Executive.com. March 1, 2008. Cooper, Phillip. 2005. “George W. Bush, Edgar Allan Poe, and the Use and Abuse of Presidential Signing Statements.” Presidential Studies Quarterly. 35: 515-532. Copeland Curtis. 2007a. “Changes in the OMB Regulatory Review Process by Executive Order 13422. Congressional Research Service, February 5, 2007. 2007b. “The Law: Executive Order 13422: An Expansion of Presidential Influence in the Rulemaking Process.” Presidential Studies Quarterly. 37: 531544. Dudley, Susan. 2005. “The Bush Administration Regulatory Record.” Regulation. Winter 2004-2005. Goldstein, Amy and Sarah Cohen “Bush Forces a Shift in Regulatory Thrust. “ The Washington Post. August 15, 2004. A01. Gruber, Amelia. “EEOC Officials Answer Critics of Reorganization.” Government Executive.com. June 24, 2005. Kelley, Chrisopher. 2005. “Rethinking Presidential Power – The Unitary Executive and the George W. Bush Presidency.” Presented at 2005 meeting of the Midwest Political Science Association. Krause, George and Brent Dupay. 2009. “Coordinated Action and the Limits of Presidential Control Over the Bureaucracy.” in Provost and Teske, ed. President George W. Bush’s Influence Over Bureaucracy and Policy. Lee, Christopher. “Bush Plan to Contract Federal Jobs Falls Short.” The Washington Post. April 25, 2008, p. AO1 Lewis, David E. 2009. “Personnel is Policy: George W. Bush’s Managerial Presidency.” in Provost and Teske, ed. President George W. Bush’s Influence Over Bureaucracy and Policy. Mannix, Brian. “A Midterm Grade for the Bush Administration.” AllBusiness.com. September 22, 2003.
29 Nathan, Richard P. 1983. The Administrative Presidency. New York: John Wiley and Sons. Nicholson Crotty, Sean and Jill Nicholson-Crotty. 2009. “Efficiency, Enforcement, and Poltical Control: The Case of the Equal Employment Opportunity Commission. in Provost and Teske, ed. President George W. Bush’s Influence Over Bureaucracy and Policy. Milibank, Dana. “Bush Seeks to Rule the Bureaucracy.” The Washington Post. November 22, 2004. Natural Resources Defense Council. “The Bush Administration’s First-Term Environmental Record.” January, 2005. Newton-Small, Jay. “Bush Cuts EPA Budget by 6 Percent, Seeks to Cut Water Programs,” Bloombert.com. February 7, 2005. Pfiffner, James. 2007. “The First MBA President: George W. Bush as Public Administrator.” Presidential Studies Quarterly. January/February: 6-20. Provost, Colin. 2009. “Evaluating Policy in the Bush II Presidency,” in Provost and Teske, ed. President George W. Bush’s Influence Over Bureaucracy and Policy. Provost, Colin, Brian Gerber, and Mark Pickup. 2009. “Flying Under the Radar? Political Control in the Bush Environmental Protection Agency,” in Provost and Teske, ed. President George W. Bush’s Influence Over Bureaucracy and Policy. Provost, Colin and Paul Teske, ed. 2009. President George W. Bush’s Influence Over Bureaucracy and Policy. New York: Palgrave Macmillan. Shapiro, Stuart. 2007. “An Evaluation of the Bush Administration Reforms to the Regulatory Process.” Presidential Studies Quarterly. 37: 270-290. Shogrin, Elizabeth. “Justices Thwart Bush Team on Environmental Policy.” NPR Morning Edition, April 3, 2007. Solomon, John and Juliet Eilperin. “Bush’s EPA is Pursuing Fewer Polluters.” The Washington Post. September 30, 2007, p. A01 Singer, Paul. “Bush and the Bureaucracy: A Crusade for Control. Government Executive.com. March 25, 2005. Smith, Jeffrey. “Under Bush, OSHA Mired in Inaction. The Washington Post. December 29, 2008. p. A01. U.S. House of Representatives, Committee on Government Reform – Minority Staff. “Prescription for Reform: The Decline in FDA Enforcement Activity.” June, 2006.
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Waterman, Richard W. 1989. Presidential Influence and the Administrative State. Knoxville: University of Tennessee Press. Waterman 2009. “Maintaining Political Control: George W. Bush and the Nuclear Reuglatory Commission.” in Provost and Teske, ed. President George W. Bush’s Influence Over Bureaucracy and Policy. Yackee, Jason Webb and Susan WebbYackee. 2009. “Is the Bush Administration Any Different? A Macro-Empirical Examination of Notice and Comment Rulemaking Under ’43’.” in Provost and Teske, ed. President George W. Bush’s Influence Over Bureaucracy and Policy.
