Saved by the Bureaucrats

Since the presidency of Ronald Reagan, conservatives have made an art out of using government against government. Though conservatives have never come close to achieving their central campaign promise of shrinking the federal bureaucracy, they've done well enough for themselves simply by preventing it from doing its job.

But now voters have repudiated that philosophy, at least for the time being, and government is back. GOP pollster Frank Luntz reports overwhelming support, even among Republicans, for the massive infrastructure investments in President Barack Obama's economic stimulus legislation. New appointees in the Obama administration will have the opportunity to try some jujitsu of their own, using federal agencies and offices where scandals were hatched, science ignored, and the law shattered to promote sound public policy.

Sound melodramatic? Consider the Department of Justice's Office of Legal Counsel, where the now-infamous John Yoo hatched legal opinions justifying torture, warrant-less surveillance of American citizens, and other radical expansions of executive power. The new head of the OLC is Dawn Johnsen, a law professor whose recent article, What's a President to Do? Interpreting the Constitution in the Wake of the Bush Administration's Abuses, outlines specific measures to roll-back the controversial legal gambits that characterized the OLC during the Bush administration. Other attorneys appointed to the office have been similarly outspoken about rolling back executive overreach, and the office promises to play a key role in reforming counterterrorism policy.

But the best example of the Republicans' interference with the workings of government is the Office of Information and Regulatory Affairs. OIRA was created by Congress in 1980 as a clearinghouse for all federal regulations, from environmental rules to work-safety guidelines, to help centralize the complex regulatory process. The Reagan administration used OIRA as a veto point, reviewing, and rejecting, thousands of regulations proposed by federal agencies each year.

Though Bill Clinton weakened the office's role during his administration, George W. Bush restored the office to its anti-purpose. His first appointment as OIRA director was John Graham. Before taking office, Graham had led a study that found that driving while using a cell phone isn't dangerous. The study was funded, of course, by AT&T wireless. In his first year in OIRA, Graham rejected more regulations than were refused during the entire Clinton administration.

President Obama has appointed Harvard Law professor Cass Sunstein to head the office. An unconventional liberal thinker, Sunstein's credentials have been questioned by some progressives who see his more pragmatic approach to regulatory regimes -- he favors a cost-benefit analysis model that can be used to justify lax oversight -- as too similar to that of the last administration's. But Sunstein has reiterated his commitment to strong regulation, and given that many of the new president's policy goals won't be achieved without effective rule-making, there is good reason to believe he will be a force for improvement within OIRA.

But those aren't the only two agencies that could see believable change.

Coming during the rollicking presidential campaign, scandals emanating from the Interior Department remained relatively low-profile. But a report from Interior's inspector general said that the Minerals Management Service, which supervises leases of natural resources on federal lands, resembled less a staid bureaucracy and more a very, very memorable Saturday night: Cocaine, sexual misconduct, and bribes from energy interests. Well, "a culture of ethical failure" might not be everyone's weekend cup of tea, but you get the idea.

It's not clear yet who will be heading MMS, but newly confirmed Interior Secretary Ken Salazar had this to say on his first day on the job: "There has been a picture of the department that has been painted unfairly on the backs of career employees because of actions by political appointees ... and that era is now changing, and it starts today. We will hold people accountable ... and not tolerate these kind of lapses." Those lapses led to energy companies keeping millions of dollars of public money even as they profited from skyrocketing oil prices.

Another home of ethical lapses was the Federal Student Aid Office (FSAO), housed within the Department of Education. The office's job is to oversee the student-loan industry; the federal government guarantees billions of dollars in student loans. Numerous hires were former employees of the financial-aid industry. One official, Matteo Fontana, owned $100,000 worth of stock in a financial-aid corporation his office supervised.

Fontana made numerous rulings in favor of private financial-aid companies, including one that allowed the government-sponsored enterprise Sallie Mae, his former employer and the principal lender for most student-loan financing, to become a private corporation. This decision came despite an official recommendation against the privatization from the Education Department's Inspector General's Office, which protested after discovering an inappropriate relationship between Sallie Mae and another lending organization that would have allowed them to over-collect federal subsidies. In another case,  FSAO failed to uncover illegal payments from student lenders to college officials that were later discovered by New York state's attorney general, Andrew Cuomo.

Many of the problems at FSAO came from allowing lobbyists to serve in government, and government officials to become lobbyists overnight. Obama has done well to end revolving-door hiring practices with his first series of executive orders, which will prevent former officials from lobbying for two years and ban lobbyist gifts to executive branch officials. Lobbyists are also not allowed to work in government on issues they had previously advocated without a special public waiver. Obama now has the opportunity to appoint officials to this office who will act in the interests of students.

This is only a partial listing of the many offices who turned their mandates upside-down during conservative administrations -- others include officials at the Department of Health and Human Services who pushed abstinence-only sex education policies despite the mountain of studies indicating they don't work; political appointees at the Food and Drug Administration, the National Aeronautics and Space Administration, and the Environmental Protection Agency, who ignored or manipulated scientific evidence that should have been the primary decider of what makes good policy and what doesn’t.

In this first term, the Obama administration has the opportunity, and the public mandate, to make good government good politics. It will take strong leadership, and yes, more than a few mistakes, to see the job through. But should this administration fail to make the bureaucracy effective and ethical, it's unlikely Obama, or any other liberal, will have another chance in the near future.

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