Category Archives: Government

Intra-Agency Coordination

Source: Jennifer Nou, University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 735, September 30, 2015

From the abstract:
Conventional accounts portray agency design as the outcome of congressional and presidential quests for political control. This perspective aligns with administrative law’s preoccupation with agencies’ external constraints. The main unit of analysis from this point of view is the agency, and the central question is how political principals outside of the agency restrain it. In reality, however, agency actors must also abide by controls internal to the agency: how do these mechanisms arise and what explains their design? For their part, legislative and executive specifications invariably leave organizational slack. Agency heads thus possess substantial discretion to impose internal structures and processes to further their own interests. By and large, however, agency heads have been neglected as important determinants of institutional design. Indeed, like the need for interagency coordination, the bureaucracy requires intra-agency coordination.

This Article seeks to provide a general account of how agency heads, distinct from Congress or the President, manage and operate their organizational divisions. It presents a theory of how administrative leaders use internal hierarchies and procedures to process information in light of their individual preferences and exogenous uncertainties. In doing so, this Article offers a conceptual framework to analyze agency design problems as well as to explain variations in bureaucratic form. Armed with these insights, the analysis then considers some of the resulting normative implications for political and legal oversight. It concludes by suggesting various reforms such as the judicially enforceable disclosure of agencies’ internal rule-drafting processes, as well as doctrines further designed to foster transparency and accountability.

Big and Open Linked Data (BOLD) in government: A challenge to transparency and privacy?

Source: Marijn Janssen, Jeroen van den Hoven, Government Information Quarterly, Volume 32, Issue 4, October 2015
(subscription required)

From the abstract:
• Transparency and privacy should be conceptualized as complex constructs.
• Transparency and information silos are essential for protecting privacy.
• Need for privacy-by-design and transparency-by-design
• Acceptable levels of privacy and transparency need to be balanced taking many factors into account.

Big and Open Linked Data (BOLD) results in new opportunities and have the potential to transform government and its interactions with the public. BOLD provides the opportunity to analyze the behavior of individuals, increase control, and reduce privacy. At the same time BOLD can be used to create an open and transparent government. Transparency and privacy are considered as important societal and democratic values that are needed to inform citizens and let them participate in democratic processes. Practices in these areas are changing with the rise of BOLD. Although intuitively appealing, the concepts of transparency and privacy have many interpretations and are difficult to conceptualize, which makes it often hard to implement them. Transparency and privacy should be conceptualized as complex, non-dichotomous constructs interrelated with other factors. Only by conceptualizing these values in this way, the nature and impact of BOLD on privacy and transparency can be understood, and their levels can be balanced with security, safety, openness and other socially-desirable values.

How to Locate an Unpublished Congressional Hearing: A Beginner’s Guide

Source: Barbara Bavis, Robert Brammer, Law Library of Congress, In Custodia Legis: Law Librarians of Congress blog, September 17, 2015

Our previous post discussed how to locate a Published Congressional Hearing. In this guide, we will show you how to locate unpublished congressional hearings, which can often pose more of a challenge to researchers new to the area. Congressional hearings have not always been consistently published. In fact, the transcription of congressional committee hearings was not required until the passage of the Legislative Reorganization Act in 1946. Further, despite the requirement for transcription, the retention and publication of these transcripts is not guaranteed. As such, it is not out of the ordinary for a congressional committee or subcommittee to have not officially published a hearing. Many of these “unpublished” hearings have since been made publicly available from sources including the National Archives, the Congressional Information Service (CIS), Congressional Quarterly, and ProQuest, among many others. Please read on to determine how to start your unpublished congressional hearing research.

The Job of Government: Interweaving Public Functions and Private Hands

Source: Donald F. Kettl, Public Administration Review, Vol. 75 Issue 2, March/April 2015
(subscription required)

From the abstract:
Lively and sometimes raucous debate about the job of government has increasingly engulfed American politics. Much of that debate has swirled around government’s size, with conservatives arguing the case for shrinking government and liberals fighting to grow it. In reality, however, neither of these debates engages the critical underlying trend: the increasing interweaving of governmental functions deeply into every fiber of the nongovernmental sectors. Many reforms have sought to rein in government’s power, but none has engaged the fundamental interweaving of policy implementation, and, not surprisingly, most have failed. Indeed, many have eroded the public’s trust in the governmental institutions on which they depend. This process raises fundamental challenges for defining government’s core role, for building the capacity to govern effectively, and for enhancing the accountability of governmental programs. Many of government’s administrative tools are a poor match for the governance problems they seek to solve.

Ten Secret Truths About Government Incompetence

Source: Donald F. Kettl, Washington Monthly, Vol. 47 nos. 1 & 2, January/February 2015

What you can learn from the management mistakes of Obama and Bush.

I. Government works better than people think. Most of the time. …..
II. Good management doesn’t win elections—but bad management can ruin presidencies. Fast. …..
III. We don’t distinguish between failures that are truly consequential and those that have lesser impact. …..
IV. We say we want to run government more like the private sector— but we expect government to meet standards that the private sector could never manage. …..
V. Much of government’s work isn’t done by government. …..
VI. The problem isn’t too many bureaucrats—it’s too few. …..
VII. Half the time, when it looks like it’s the president’s fault, the problems really come from Congress. …..
VIII. Critics of your government will create self-fulfilling prophecies by underfunding and otherwise sabotaging programs they don’t like. …..
IX. Government can be made much better relatively quickly—and can be made worse even more quickly. …..
X. Presidents can win the game if they pay attention. …..

How Does Government Borrowing Affect Corporate Financing and Investment?

Source: John R. Graham, Mark T. Leary, Michael R. Roberts, National Bureau of Economic Research (NBER), NBER Working Paper No. w20581, October 2014
(subscription required)

From the abstract:
Using a novel dataset of accounting and market information that spans most publicly traded nonfinancial firms over the last century, we show that U.S. federal government debt issuance significantly affects corporate financial policies and balance sheets through its impact on investors’ portfolio allocations and the relative pricing of different assets. Government debt is strongly negatively correlated with corporate debt and investment, but strongly positively correlated with corporate liquidity. These relations are more pronounced in larger, less risky firms whose debt is a closer substitute for Treasuries. Indeed, we find a strong negative relation between the BAA-AAA yield spread and government debt, highlighting the greater sensitivity of more highly rated credit to variation in the supply of Treasuries. The channel through which this effect operates is investors’ portfolio decisions: domestic intermediaries actively substitute between lending to the federal government and the nonfinancial corporate sector. The relations between government debt and corporate policies, as well as the substitution between government and corporate debt by intermediaries, are stronger after 1970 when foreign demand increased competition for Treasury securities. In concert, our results suggest that large, financially healthy corporations act as liquidity providers by supplying relatively safe securities to investors when alternatives are in short supply, and that this financial strategy influences firms’ capital structures and investment policies.

Civil Rights Enforcement in the Most Dangerous Branch

Source: Catherine Y. Kim, University of North Carolina (UNC) at Chapel Hill – School of Law, UNC Legal Studies Research Paper No. 2480134, August 13, 2014

From the abstract:
For decades, civil rights scholars have debated the relative institutional competencies of federal courts and administrative agencies in vindicating civil rights violations. Doctrinal developments diminishing the role of federal courts, however, render this comparison increasingly irrelevant. The scholarly focus must shift from the question of institutional choice, i.e., whether the judiciary is better suited than agencies to combat civil rights violations, to one of institutional design, i.e., how to design federal agencies to facilitate meaningful enforcement.

Skepticism toward administrative enforcement of civil rights reflects a fear that the President, as head of the executive branch, will manipulate – or subvert – agencies’ enforcement efforts for partisan ends, thereby raising broader separation-of-powers concerns. This article develops a framework for assessing how a given agency’s institutional design shapes the legal, political, and structural constraints to presidential policymaking discretion, and how these constraints vary depending on whether the policy is implemented through notice-and-comment rulemaking, the issuance of interpretive guidance, or the strategic exercise of prosecutorial discretion in enforcement proceedings. Given agencies’ freedom to choose between policymaking tools, this structure creates incentives for an administration to channel policy decisions – particularly controversial ones – through certain tools precisely to circumvent constraints on its discretion. This analysis carries important implications beyond the civil rights context, offering insights into enforcement debates across regulatory contexts, including the current debate over administrative relief for undocumented aliens.

The Relationship Between Short-Term Political Appointments and Bureaucratic Performance: The Case of Recess Appointments in the United States

Source: Susan M. Miller, Journal of Public Administration Research and Theory, First published online: August 11, 2014
(subscription required)

From the abstract:
Within the bureaucratic performance literature, a growing body of work focuses on the relationship between the character of an administrator’s selection—career administrators versus different types of appointees—and bureaucratic performance, finding that programs managed by political appointees are associated with lower performance scores than programs managed by career professionals. One aspect of administrators’ selection that has not been considered in connection with bureaucratic performance is whether the appointee was installed via recess appointment. Because their limited and uncertain tenures may cause administrative problems and because the unilateral nature of their selection may lead executives to prioritize other characteristics over competency, I theorize that recess appointees will be associated with lower program performance than non-recess appointees and careerists. Using Program Assessment Rating Tool scores from the George W. Bush administration, I find support for this expectation. This article contributes to our understanding of the ways in which staffing through recess appointments may shape government administration.