The Accountability State

US Federal Inspectors General and the Pursuit of Democratic Integrity

Nadia Hilliard

• Publisher: University Press of Kansas
• Year: 2017
• Print ISBN: 9780700623983
• eBook ISBN: 9780700623990
• Topic: Politics & International Relations
• Subtopic: North American History
• Index: Politics & International Relations

Public accountability is critical to a democracy. But as government becomes ever more complex, with bureaucracy growing ever deeper and wider, how can these multiplying numbers of unelected bureaucrats be held accountable? The answer, more often than not, comes in the form of inspectors general, monitors largely independent of the management of the agencies to which they are attached. How, and whether, this system works in America is what Nadia Hilliard investigates in The Accountability State. Exploring the significance of our current collective obsession with accountability, her book helpfully shifts the issue from the technical domain of public administration to the context of American political development.

Inspectors general, though longtime fixtures of government and the military, first came into prominence in the United States in the 1970s in the wake of evidence of wrongdoing in the Nixon administration. Their number and importance has only increased in tandem with concerns about abuses of power and simple inefficiency in expanding government agencies. Some of the IGs Hilliard examines serve agencies chiefly vulnerable to fraud and waste, while others, such as national security IGs, monitor the management of potentially rights-threatening activities. By some conventional measures, IGs are largely successful, whether in savings, prosecutions, suspensions, disbarments, or exposure of legally or ethically questionable activities. However, her work reveals that these measures fail to do justice to the range of effects that IGs can have on American democracy, and offers a new framework with which to evaluate and understand them. Within her larger study, Hilliard looks specifically at inspectors general in the US Departments of Justice, State, and Homeland Security and asks why their effectiveness varies as much as it does, with the IGs at Justice and Homeland Security proving far more successful than the IG at State.

part i

inspecting the terrain

chapter one

introduction

Quis Custodiet Ipsos Custodies?

The Administrative-Democratic Paradox

In the early 1950s, Dwight Waldo sparked a debate with public administration theorist Herbert Simon over the mutual antagonism between the values of democracy and those of administration.¹ Whereas Simon championed the possibility of a science of administration based on facts and geared toward efficiency, Waldo questioned whether such a value-free science was possible; he argued that efficiency itself was a contentious political claim, a vision of the good life that is antithetical to democratic values such as deliberation and citizen participation. In Waldo’s book, The Administrative State, he attacked the respective disciplines of public administration and democratic theory for failing to engage with each other, and he argued that because administration is or claimed to be at the center of modern democratic government, the two disciplines must address each other.² He reserved his strongest criticism for administrative theory: it needed to recognize its own underlying political philosophy and admit that its central principle of efficiency was neither value neutral nor easily reconciled with the principles of democracy.

The debate echoed earlier formulations of the tension by Woodrow Wilson, who promoted the politics–administration dichotomy as a solution to the (partisan) politicization of administration, and Max Weber, three decades later, who reiterated the need for a sharp distinction between politics and administration to prevent Beamtenherrschaft (rule by bureaucrats).³ Although Waldo and Simon contended over the distinctions between facts and values, and between policy and administration, at stake lay a variant of the classic trade-off between democratic representation and efficiency. Democracies—especially a pluralist democracy in the American tradition (i.e., a polyarchy)—need to provide citizens and groups the opportunity for direct engagement in the processes of the polity, including elections, deliberation, policy creation, and the maintenance of accountability. But because such processes are time-consuming and inefficient, bureaucracies are delegated policy-making authority without being held to account through regular elections or transparent practices, and this leaves citizens unable to influence the way they are governed.

If these anxieties concerned social scientists at the turn of the twentieth century, the growth of the administrative state—and in particular the advent of the welfare state—merely intensified policy-making delegation to nonmajoritarian institutions in the latter half of the century.⁴ But do the exigencies of efficient decision making and policy implementation necessarily curtail citizens’ opportunities to participate in the democratic process? Does the need for a growing, unelected bureaucracy to implement a nation’s will undermine the fundamental democratic principles of equality, liberty, representation, and participation? Does the “science” required to fashion an efficient bureaucratic machine preclude deliberation over the common good? Or is it possible for the competing and conflicting principles of administrative efficiency and democracy to be reconciled?

Despite its prima facie value conflict with democracy, public administration can also play a constitutive role in democracies by channeling public interests, protecting common values, formulating and executing policies, and bringing accountability and predictability to government activity.⁵ The notion that bureaucratic structures might even foster democratic practices is not new. In his Considerations on Representative Government, J. S. Mill argued, “Freedom cannot produce its best effects, and often breaks down altogether, unless means can be found of combining it with trained and skilled administration.”⁶ This refining function, potentially carried out by expert administrators, provided a resource for would-be reformers faced with patronage-ridden politics. After Wilson, Progressive-era reformers championed a “politics–administration dichotomy” as a tool for reforming politics at the national level.⁷ According to American political development scholars Desmond King and Robert Lieberman, one key irony of the American state is that bureaucracy has proven to be a precondition for democratization: “American experience differs from continental European trajectories in that a comprehensive democratic framework as a set of procedures was established before the expansion of national federal bureaucratic departments of the sort compelled upon politicians from the Civil War.”⁸ This alternative historical trajectory affected the character and resources of bureaucracies as well. In contrast to their European counterparts, bureaucracies in the United States built their own networks outside the government apparatus for program implementation and encouraged individual enterprise in building power.⁹ In part it has been precisely the freedom to develop autonomous bureaucratic structures and to take recourse to extrastate actors that has allowed democratic ideas and interests to penetrate the American state apparatus. This phenomenon had a European correlate, too, for as Mark Warren notes, “The more functional democracies were built within relatively high-capacity states, in part because these states provided a locus for accountability demands as part of democratization struggles.”¹⁰ These experiences demonstrate that a tension between two seemingly irreconcilable principles can generate change and inspire new forms of democratic participation.

Yet how and to what degree can this occur? Over time, a number of democratic and legal theories have proposed ways of resolving, explicitly or implicitly, the value tensions between administration and democracy. Though they do not always use the term directly, these approaches favor coherent accountability structures to preserve certain principles of democracy and representative government.

Even before the modern state provoked questions of administrative accountability, classic Madisonian constitutionalism provided an overall political framework designed to counter the potential abuses of power in a democracy and representative government. Although the writers of the Federalist Papers gave little direct attention to the problem of administration as such, they devised a constitutional system intended to forestall the pathologies of democracy, namely the concentration of power in the hands of a single office or group. The framers of the Constitution pitted “ambition against ambition” and constructed a system guided by, among other principles, the separation of powers and of checks and balances. The separation of powers is not given explicit legal legitimacy in the American constitutional system (in the sense of being codified as such), but the Constitution nonetheless embodies this principle through its clear separation of government functions.¹¹ It reflects Madison’s view that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many . . . may justly be pronounced the very definition of tyranny.”¹² The Constitution, moreover, implants various checks and balances in the relations between the branches: Congress checks executive action with its control over the purse strings of government and exercises its oversight authority through committees. This echoes the belief that “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”¹³ Here Madison acknowledges the jurisdictional battles that might compromise the execution of government from within the executive branch and applies his principle of accountability through separation and competition to the various administrators (and by extension to what would eventually become the administrative apparatus). These constitutional arrangements prescribe a mode of governing with certain pragmatic consequences insofar as they encourage, at least in theory, the efficient running of government and have the normative function of promoting a particular vision of political liberty.¹⁴

Madison failed to anticipate the emergence of the administrative state and of “emergency governance,” as well as the challenges to democratic integrity they would pose. Later American democratic theorists countered that the classic Madisonian view provides an insufficient account of the sources of accountability and political equilibrium because it fails to include the full scope of political activity in the public realm. For classic pluralists such as Robert Dahl, the balance of competing centers of power—interest groups, branches of government, parties—serves to temper the tensions between efficiency, deliberation, and participation. In this view, ensuring a healthy balance of power and preserving democratic rule necessitates a particular institutional design (i.e., pluralism) not only to equalize citizen participation and representation but also to correct the inherent tendency of democracies to bend toward a tyranny of the majority. Here bureaucracy is a positive feature within a pluralist system, one locus of power among many, and an important actor in the separation of powers system. Similarly, for David Truman, the bureaucracy provided yet another access point into the policy-making process; it exists as simply one political actor among many in a system of group pluralism.¹⁵ Dahl also viewed the growth of the bureaucracy as a natural and unexceptional component of the welfare state.¹⁶ However, the implicit trust these theorists had in the democratic integrity of existing arrangements was so great that they give little attention to the problems generated by bureaucracy, and like many normative strands of democratic theory, they offered few prescriptions for ameliorative administrative design.¹⁷

Most recently, legal scholars have proposed legal and institutional solutions to the antidemocratic tendencies of the administrative state. The legal literature on executive constraint and emergency powers provides a slightly different perspective on the problem of administrative discretion from the perspective of pluralists such as Dahl and Truman: its theorists are concerned with the consequences of building provisions into the legal order for emergency powers and the suspension of democratic politics. Critics argue that doing so would legitimate undemocratic decisions and thus undermine the very foundations of the liberal order; in times of emergency, the sovereign must simply exercise power to preserve the integrity of the legal order (“Schmittian exceptionalism”).¹⁸ Others contend that the liberal order must accept the necessity of “exceptional” (i.e., extralegal) politics and provide legal and institutional guidelines for how and when this power can be used, so as to keep it in check (“liberal legalism”).¹⁹

Although its focus is o...

Table of contents

• Front Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• List of Abbreviations Used in Text
• PART I: Inspecting the Terrain
• PART II: The IGs at Work
• PART III: The Democratic Perspective
• Appendix: Interviews
• Notes
• Index
• Back Cover