supposed to do and how, they often have no choice but to draft and enforce rules in what is essentially a legislative vacuum. But the net impact of the federal bureaucracy has been to move us away from a system of government by laws to which every citizen has equal access, and towards one in which some men and women are empowered by government to exercise broad discretionary authority over other men and women.
As I contemplate the vast numbers of civil servants we have loosed upon the land, I am reminded of one of the grievances listed by Thomas Jefferson in the Declaration of Independence as justifying so serious an act as rebellion. Speaking of George III, he wrote: “He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.” It would appear we have come full circle in just two hundred years.
I am not suggesting that we take up arms and march on Washington, but I do suggest that we take seriously the dangers to individual liberties and to truly representative government that are posed by these latest swarms of non-elected officers. We were taught long ago that the power to tax is the power to destroy. So is the power to regulate, especially when so many essential activities are now made subject to official action or approval. It is a power that should never have been handed out without the most careful safeguards. As with any other power, it is subject to abuse; and I know of no change in human nature that would suggest that today’s bureaucrat is immune to Lord Acton’s famous dictum on the corruptive influence of power.
The old Department of Health, Education, and Welfare (which has now been spun off into two federal bureaucracies, the Department of Health and Human Services and the Education Department) could and did coerce schools into acceding to the most outrageous proposals through the simple expedient of withholding funds for programs that happened to have nothing to do with the matter in controversy; and there is no reason to believe that its successors will abandon this practice. The Securities and Exchange Commission is able to force compliance with demands of doubtful legality because a critical corporate financing cannot be postponed, or because an accounting firm cannot afford to be declared persona non grata by members of an agency with which it must continue to deal. The list of bureaucratic sins of commission and omission is endless, and in most cases the victims have little choice but to capitulate to orders they may believe to be outrageous, or irrational, or beyond the legal authority of the agency in question.
They do so because they are engaged in an unequal struggle. The laws governing the relationship between the regulator and the regulated simply reverse the normal legal presumptions. A citizen found by an agency to be in violation of its regulations is deemed to be guilty unless he can prove his innocence. A federal regulator is presumed to be acting within his authority unless the aggrieved party is able to demonstrate that he is acting in an arbitrary or capricious manner. This is a burden that is difficult and expensive to meet; and the issue too often is not merely whether the regulator is right, but whether he can be said to have abused his broadly defined discretion.
Regulatory bodies are clothed with the full authority of the federal government and have access to its resources. Most individuals and businesses, on the other hand, have limited funds and can ill afford the cost of a protracted fight. This is an advantage that some regulators consciously exploit, deliberately adopting dilatory tactics that are designed to spend their victims into submission. This practice is common enough, in fact, to have acquired a name. It is called “deep pocketing.” Rather than fight an issue on its merits, an agency will wage a war of procedural attrition that will force an opponent to reach deeper and deeper into his pockets, until his resources are exhausted.
Bureaucratic abuse does not stop with money-whipping citizens who attempt to protect their rights. Some agencies have fallen into the hands of zealots who pursue ideological goals that bear little relationship to the clear intent of the legislation they are supposed to be implementing. Witness the Federal Trade Commission’s recent antitrust suit against DuPont. Its purpose is to stop the company from expanding production of a paint pigment, titanium oxide, by a new process that has cut its cost so sharply that DuPont now supplies 40 percent of the domestic market. The company is being prosecuted for trying to make these savings available to more consumers, and all in the name of a statute that was specifically designed to enjoin the restraint of trade, not its expansion. As University of Chicago economist Yale Brozen has put it, in this action the FTC is standing the antitrust law on its head. It nevertheless has the power to charge off in hot pursuit of its own vision of what the antitrust law ought to be.
To cite another example of bureaucratic lawlessness, the Internal Revenue Service recently engaged in a power play that, if successful, would have threatened the existence of thousands of private schools, all in pursuit of a goal which, however exemplary on the face of it, was nevertheless none of the IRS’s cotton-picking business. A year ago, the IRS dropped into the Federal Register a set of proposed regulations for revoking the tax-exempt status of certain private schools. If the proposed rules had been allowed to go into effect, any private school that happened to be founded or substantially expanded at or about the time a public-school system in the surrounding area was desegregated would be presumed to be engaged in discrimination on a simple finding that its enrollment failed to meet the racial and ethnic quotas stipulated in the regulations. In order to preserve the tax deductibility of the gifts essential to its survival, a school failing to meet that test would be required to adopt a detailed, costly affirmative-action program entailing the establishment of scholarships, minority-recruitment programs, and a host of other arbitrary requirements that could break the financial back of a new institution.
Fortunately, an alert citizen spotted the proposed regulations and sounded alarms that forced the Internal Revenue Service to hold the public hearings it had hoped to avoid by labeling its proposals as merely procedural. Hearings were held; and although the IRS modified some of its proposed language to mollify the swarms of protesting educators, Congress recognized these as cosmetic only and, in a rare show of courage, adopted legislation killing this particular venture in bureaucratic imperialism.
I say it was an act of courage because members of Congress are usually very careful not to offend the shapers of respectable opinion. In this particular case, the New York Times had declared itself to be totally delighted by the new role the IRS had volunteered to assume without a shred of statutory authority. The Times wasn’t the least disturbed over the fact that the agency was out to arm itself with the power to force private schools out of existence on a mere allegation of discrimination.
One can reasonably ask why it should take an act of courage for Congress or a president to do something to keep the more spontaneously creative bureaucracies in line. I don’t know why this should be so—which may explain why I come before you as a former senator. All I can do is point out that once an interpretation of a statute commands the praise of the Times, the Washington Post, the American Civil Liberties Union, and all the other gentry who have co-opted the market for the good and the compassionate and the right and the just, pressures are created that are truly paralyzing, even though the public at large and the great majority of a given legislator’s constituents may have a rather different view of what is good, compassionate, right, and just.
Be that as it may, the fact remains that we have created, in our urge to regulate and in the way we have gone about the business of regulating, a new force in American life that undermines the safeguards the Founders so carefully wrote into our Constitution, one that threatens to destroy the sense of consensus that representative government must continue to cultivate if it is to survive. In my view, this aspect of our regulatory problem poses far greater dangers to the future well-being of the American Republic than all the waste and inefficiencies and economic dislocations that are now so abundantly documented.
We have created a professional civil service which we have endowed with an exceptional degree of power. Its members are elected by no one and, as a practical matter, are accountable to no one. Yet because so many private interests are now subject to governmental supervision and authority, the bureaucracy can exercise a fearsome power to intimidate that any president can turn to his own advantage.
An article that appeared a few months ago in the Wall Street Journal reminds us that this particular form of abuse did not end with Watergate. The article describes some of the pressures the Carter administration was able to bring to