Policy Monitoring vs. Policy Evaluation Comparison Brief
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6 Policy Implementation
When the adoption phase of the policy process has been completed and, for instance, a bill
has been enacted into law by a legislature, we can begin to refer to something called public
policy. Policymaking is not concluded, however, once a policy decision has been expressed
in statutory or other official form. The policies that are embodied in statutes, for example,
often are rudimentary and require much additional development. Thus, the Americans with
Disabilities Act, which prohibited discrimination against the 43 million Americans with
disabilities, has required extensive rule-making to spell out its requirements by the Equal
Employment Opportunity Commission (EEOC), the Department of Transportation, the
Department of Education, the Federal Communications Commission, and other agencies.
Subsequently, they produced hundreds of pages of detailed rules in the Federal Register.
With this qualification in mind, we turn to the policy implementation stage of the policy
process. Implementation (or administration) has been referred to as “what happens after a
bill becomes law.” More precisely, implementation encompasses whatever is done to carry a
law into effect, to apply it to the target population (e.g., small businesses or motorcycle
operators), and to achieve its goals. The study of policy implementation is concerned with
the agencies and officials involved, the procedures they follow, the techniques (or tools) they
employ, and the political support and opposition that they encounter. In so doing, it focuses
attention on the day-to-day operation of government.
There is often considerable uncertainty about what a policy will accomplish, how effective
in terms of its goals it will be, or the consequences that it will have for society. It is this
uncertainty that makes the study of policy implementation interesting and worthwhile.
Policy implementation often is neither a routine nor a very predictable process. Why some
policies succeed and others fail remains a challenging puzzle.
In actuality, it is frequently difficult, sometimes impossible, to neatly separate a policy's
adoption from its implementation. Here again, we may find that the line between functional
activities is smudgy. Statutes sometimes do not do much
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beyond setting some policy goals and creating a framework of guidelines and restrictions
for their realization. Congress usually does not attempt to define fully the intended impact
of a law nor try to anticipate all of the problems and situations that may be encountered in
its implementation. Even the goals of a statute may not be clearly or consistently specified.
Administrative agencies are often delegated discretion or latitude to issue rules and
directives that will fill in the details of policy and make it more specific. The Occupational
Safety and Health Act of 1970 exemplifies this pattern. Although the right of workers to a
safe and healthful workplace is generally guaranteed, the statute itself does not contain
substantive health and safety standards. Rather, the Occupational Safety and Health
Administration (OSHA), a bureau in the Department of Labor, is authorized to promulgate
rules creating specific health and safety standards. Only as this occurs do we have
meaningful and enforceable standards that can be applied to protect workers' health and
safety. In effect, within the framework provided by Congress, OSHA both makes and
implements policy on industrial health and safety. Different units within OSHA handle the
tasks of rule-making and enforcement.
Much of what agencies do during the implementation of policies may appear to be routine,
mundane, or tedious—processing requests or applications, inspecting records, collecting
information, writing reports, and so forth. Most people may have little or no awareness of
what agencies are doing unless they are directly affected. Nonetheless, the consequences of
implementation for the content or substance of policy, and for its impact and degree of
success, are every bit as important as what transpires during the formulation and adoption
stages. Indeed, if implementation fails, then all that preceded was of no avail.
Vigorous and sometimes bitter political struggles attend the implementation of policies,
such as those pertaining to environmental-pollution control, affirmative action, and the
practice of abortion. Groups that suffer losses in the legislative arena may seek to recoup
some of their losses by influencing or disrupting the administration of a policy. Thus, the
automobile companies for decades were able to delay the National Highway Traffic Safety
Administration's airbag requirement. The coal-mine industry has persistently worked to
lessen the effectiveness of both surface mining and mine-safety regulation.
A few policy decisions are essentially self-executing, such as the national government's
refusal to extend formal recognition to the government of a foreign country, presidential
decisions to veto legislation passed by Congress (especially when it involves a pocket veto),
and the National Park Service's decision in the early 1970s not to fight fires caused by
lightning in the national parks. Such decisions, entailing clear-cut, one-time actions, are
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relatively few, however. Those who study public policy, consequently, can ill afford to
neglect the implementation stage of the policy process.
Until the great expansion of social-welfare programs during the Johnson years focused
their attention on implementation (the term began to gain currency in the 1960s), it had not
been of much interest to most political and social scientists. The study of implementation
was made salient for political scientists by Professors
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Jeffrey L. Pressman and Aaron Wildavsky's Implementation, a case study of the failure in
the early 1970s of a federal jobs-creation project undertaken by the Economic Development
Administration in Oakland, California. Since that seminal event, political scientists have
been actively researching the implementation of public policies, debating whether policies
can be successfully implemented (or administered), and, finally, striving to build systematic
theories that will rigorously explain why some policies are likely to be more successfully
implemented than others. They have yet to strike theoretical pay dirt, such as identifying
the specific variables critical to successful implementation. Their labors, however, have
produced a mound of implementation literature and increased our understanding of the
implementation process.
Most of the implementation studies take either a “top-down” or “bottom-up” approach.
Top-downers focus on the actions of top-level officials, the factors affecting their behavior,
whether policy goals are attained, and whether policy was reformulated on the basis of
experience. Bottom-uppers contend that this approach gives too much attention to top-level
officials and either ignores or underestimates the efforts of lower-level (or “street-level”)
officials to either avoid policy or divert it to their own purposes. Implementation studies,
they argue, should focus on lower-level officials and how they interact with their clients.
State and local economic conditions, the attitudes of local officials, and the actions of clients
are among the factors affecting implementation. As one would expect, there have also been
efforts to combine these two approaches. Agreement has not been reached, however, on
what is the best way to study implementation.
Although drawing on this implementation literature, this chapter takes a more traditional
approach to policy implementation and opens with a survey of some of the players in policy
implementation. It then narrows its focus to administrative agencies. Administrative
organization, the political context, policymaking patterns, and implementation techniques
are taken up in order. Along with financial resources (dealt with in Chapter 5, “Budgeting
and Public Policy”), these can be viewed as independent variables that affect policy
outcomes and implementation success. The concluding section on compliance with policy
looks at the responses of those benefited or regulated. The goal of this chapter is to provide
readers with a working knowledge of the politics and processes of policy implementation
and to furnish some tools for their analysis. Figure 6.1 provides a simplified look at the
implementation process.
Federalism and Implementation
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Federalism frequently complicates the implementation of national policies. Although
various policies—Social Security, commercial airline safety, bank-deposit insurance—are
handled solely by national officials, many national policies depend significantly upon state
and local governments for grass-roots or street-level support and implementation. This
holds true for many national policies on education (both lower and higher), environmental
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protection, highways, social welfare, and law enforcement. In such areas, Congress has
been either reluctant or unable (as in the instance of public education) to bypass the states
when it makes policy. Moreover, Congress has found that it can shift many of the costs of
national programs to states and localities.
Figure 6.1 The Implementation Process
Cost shifting often occurred as the national government, by direction or indirection,
imposed program costs on state and local governments. As one might guess, this brought
complaints from their officials. In 1995, not long after the Republicans gained control of
Congress, the Unfunded Mandates Reform Act passed with large bipartisan majorities. The
act was intended to ensure that the costs of mandates enacted by Congress were apparent
and to cause Congress to provide financing when intergovernmental mandates were made
law. A procedural point of order required Congress to acknowledge it was imposing a
mandate. It did not prohibit them.
This has not done much to alter Congressional behavior. Following the adoption of UMRA,
Congress has imposed scores of mandates. Many were beyond the scope of the act, which
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contained several loopholes, such as legislation included in appropriations bills. As
Congress responds to pressure
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to decrease budget deficits, unfunded mandates will help the national government lower its
spending while meeting demands for action.
National legislation and agencies may provide policy goals, performance standards,
technical assistance, financial support, and more, but much of the day-to-day administrative
action necessary to apply policies to the target populations must come from the states. In
most states, for example, the Environmental Protection Agency (EPA) has delegated
enforcement of its air- and water-quality standards to state environmental agencies. This
creates a bilevel implementation situation: macro-implementation and micro-
implementation. At the macro level, national officials must act to secure effective action by
state officials. Then, at the micro level, state officials must gain compliance from the target
populations. Macro–micro implementation increases the likelihood of slippage.
The Clinton administration devised the National Environmental Performance Partnership
System (NEPPS) to give the states more flexibility in managing federal environmental
programs if they show innovation and better performance in improving environmental
quality. Unfortunately, the implementation of NEPPS fell short of expectations. EPA officials
often were reluctant to modify existing practices. The states, in turn, proved to be less open
to innovation than had been hoped. “They tended to balk at any possibility that the federal
government would establish—and publicize—serious performance measures that would
evaluate their effectiveness and determine their ability to deviate from federal controls.”
Administrations since 2000 have displayed minimal interest in promoting NEPPS.
CASE STUDY The Elementary and Secondary Education Act
The Elementary and Secondary Education Act (ESEA) of 1965 was part of the Johnson
administration's War on Poverty. Its Title I provided federal financial aid to the states to
support better education for disadvantaged children in poor urban and rural areas. It
provides a good example of federalism and policy administration.
The social-reform advocates among its supporters thought that this policy was intended to
reduce poverty by improving the educational facilities and opportunities that state and
local governments made available to the educationally disadvantaged children of low-
income families. As initially administered by the Office of Education (now the Department
of Education), however, it was unclear to what extent the funds were actually expended on
poor children, and whether they bought services beyond the level of those provided for
other children in the districts aided. Many cases of the misdirection of funds were
reported.
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A number of things contributed to this situation. Although the ESEA clearly specified that
disadvantaged children were its target population, its legislative history provided “the
semblance if not the reality of general aid.” This ambiguity, together with the reality that
reformers supporting the
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legislation did not themselves get much involved in implementation, meant that officials in
the then-Office of Education were given leeway to interpret the legislation in accord with
accepted modes of operation.
The traditional task of the Office of Education had long been to provide assistance and
advice to state and local school agencies. It was not inclined to regulate or police their
activities and consequently acted with little vigor to ensure that Title I funds were
expended as intended. Further, as noted earlier in the chapter, state and local agencies had
historically dominated public education, and they enjoyed strong political support for their
hegemony. This meant that it would have been difficult for national officials, even if they
were so inclined, to impose directives that did not mesh with local priorities.
By the end of the 1970s, however, the administration of the ESEA's Title I had changed
markedly. New staff members in the Office of Education had succeeded in securing much
tighter supervision of spending under the program. Interest groups, such as the National
Welfare Rights Organization and the National Advisory Council for Education of
Disadvantaged Children, helped keep the program centered on the disadvantaged. Offices
dealing with compensatory education were established in most state departments of
education, and they developed a stake in ensuring that funds were used for the
disadvantaged. These developments made the effort to target Title I funds on the
disadvantaged much more successful. Studies indicated that Title I funds had strengthened
the educational performance of the students affected.
This change in the way the Title I program was administered aligned it more closely with
the intention of its original supporters. It was retained as a separate program in 1981 when
many other education programs were combined into an education block grant by the
Education Consolidation and Improvement Act, a Reagan administration initiative.
During the Clinton administration, funding for the Title I program continued to expand.
However, efforts to direct more money to districts with large numbers of low-income
pupils, and to increase accountability for the use of federal funds, did not succeed.
The No Child Left Behind Act (NCLBA) of 2001, a complicated, lengthy, and bipartisan
statute that reauthorized for six years the ESEA is a major expansion of federal
involvement and control in public education. Promoted by the George W. Bush
administration, it was adopted by strong bipartisan congressional majorities. It was the
administration's signature domestic policy achievement other than tax cuts.
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The No Child Left Behind Act requires the states, as a condition for receiving federal
education funding, to test students annually in grades three through eight, and in one year
of high school, on reading and mathematics. Science tests are required for one grade each
in elementary, middle, and high schools. This testing is intended to ensure that by 2014 all
students reach a level of “academic proficiency” set by their state, including those students
with learning disabilities and those for whom English is a second language. The states are
responsible for designing and administering their tests under the supervision of the U.S.
Department of Education.
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Schools that do not make “adequate yearly progress” toward meeting the proficiency goal
for two consecutive years are deemed “in need of improvement.” They must take such
prescribed actions as permitting students to transfer to other public schools or providing
supplemental services such as tutoring. Ultimately, a school failing to make adequate
progress could be “reconstituted”— that is, turned over to state control or converted into a
charter school.
The basic intent of NCLBA is to pressure the states and their more than 95,000 public
schools to improve the quality of public education by increasing their “accountability” for
the use of federal funds by requiring an extensive testing program. It builds on an effort
initiated by the 1994 reauthorization of the ESEA which was only partially successful,
during the Clinton administration.
Implementation of NCLBA has been a contentious matter. State and local officials
complain that they were largely ignored by the Department of Education when it drafted
implementing regulations, that they have been accorded insufficient flexibility in meeting
federal mandates, and that insufficient federal funds have been provided to cover the costs
of expanded testing. The Department of Education has responded to some complaints, such
as by making it easier for rural schools to meet the requirement that all teachers be “highly
certified.”
Of course, the states and their school districts continue to have responsibility for the day-
to-day operation of the public schools and to provide most of their funding. Currently, the
federal government provides about 8 percent of the total funding for public schools. To
some, the impact of federal intervention and NCLBA is out of proportion to this amount.
State officials could reject federal funding and free themselves from controls, as some state
legislatures have threatened to do. In actuality, however, federal money is rarely turned
down. State and local governments are often strapped for resources and want to claim their
share of federal dollars. In the education area, moreover, some states and school districts
are more heavily dependent on federal funds than are others.
Although NCLBA has led to much testing, and preparation for testing, in public school
students, and pressures for improvement, it is unclear what impact if any this has had on
the quality of education. Though the act was slated to be reauthorized in 2006, this has yet
to occur. Sharp disagreement continues over what should be done to change the act; and
some would prefer it be abandoned. In the early months of 2009, NCLBA was crowded off
of the agenda by the recession and the financial and energy crisis. Moreover, it was viewed
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as a “political hot potato” to be avoided. It has not since been high on the agenda, partly
because of disagreement on the form change should take.
For many national policies, such as NCLBA, successful implementation requires
coordination and cooperation among a web of national, state, and local governments and
agencies. To achieve this end, national policies may have to be tempered to better accord
with state and local interests and perspectives. Command must often yield to persuasion
and bargaining.
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Who Implements Policy?
In the United States, as in other modern political systems, policy implementation is formally
the province of a complex array of administrative agencies, now often referred to as
bureaucracies, a term that carries both descriptive and pejorative connotations.
Administrative agencies collect taxes; operate the postal system, prisons, and schools;
regulate banks, utility companies, and agricultural production; construct and maintain
streets and highways; inspect food, meat, water, and drugs to ensure their safety; provide
medical benefits and services; and perform many other tasks of modern governments.
Although there are myriad complaints about agencies and bureaucrats, their bungling and
lethargy, the fact is that administration is the central process in governance—it provides
action, continuity, and stability. Someone who wants to more fully understand the nature,
use, and impact of political power cannot afford to ignore administrative processes, notably
policy implementation. It has much consequence for who actually gets “what, when, and
how.”
Because they perform most of the day-to-day work of government, their actions affect
citizens more regularly and directly than those of other governmental bodies. Nevertheless,
policy students would not need to spend much time fretting about implementation except
that agencies usually have much discretion (i.e., leeway or the opportunity to choose among
alternatives) in carrying out policies under their jurisdiction. Although at one time it was
widely believed that agencies automatically applied policies adopted by legislatures and
executives, this is not generally the case except in such matters as the sale of postage stamps
and the printing of currency.
A classic feature of the traditional literature of public administration was the notion that
politics and administration were separate and distinct spheres of activity. Politics, wrote
Professor Frank Goodnow in 1900, dealt with formulating the will of the state, with making
value judgments, and with determining what government should or should not do, in short,
with making policy. It was to be handled by the “political” branches of government—that is,
the legislature and the executive. Administration, on the other hand, was concerned with
implementing the “will of the state,” with carrying into effect the decisions of the political
branches. Administration dealt with questions of fact, with what is rather than what should
be, and consequently could focus on identifying the most efficient means (or “one best
way”) of implementing policy. Were this viewpoint indeed accurate, policy analysts could
end their inquiry with the adoption of policy.
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Administrative agencies often are provided with broad and ambiguous statutory
mandates that leave them with much room for choice in deciding what should or should not
be done on some matter. Thus, the National Labor Relations Board (NLRB) is directed to
ensure that labor and management bargain in “good faith”; the Federal Communications
Commission to license television broadcasters for the “public interest, convenience and
necessity”; the Forest
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Service to follow a “multiple-use” policy in managing the national forests that balances the
interests of lumber companies, sportsmen and sportswomen, livestock grazers, and other
users; the Consumer Product Safety Commission to ban products that present an
“unreasonable hazard”; and the EPA to ensure that the “best available technology
economically achievable” is used to control water pollution. Such statutory mandates are
essentially directives to agencies to go out and make some policy. Moreover, because they
possess discretion, they become the political targets of pressure groups and others seeking
to influence the content of their decisions. Consequently, agencies become embroiled in
policy politics.
Frequently those who participate in the legislative process are unable or unwilling to
arrive at precise settlements among the conflicting interests on many issues. Only by
leaving some matters nebulous and unsettled can agreement on legislation be reached. Lack
of time, interest, information, and expertise as well as the need for flexibility in
implementation may also help explain the delegation of broad authority to agencies. The
product of these factors is a statute couched in general language, such as that mentioned
above, which shifts to agencies the tasks of filling in the details, making policy more precise
and concrete, and trying to make more definitive adjustments among conflicting interests.
Under these conditions, the administrative process becomes an extension of the legislative
process.
Although legislatures have delegated much policymaking authority to administrative
agencies, it should not be assumed that legislatures cannot act with specificity. An
illustration is Social Security legislation, which sets forth in explicit terms the standards for
eligibility, the levels of benefits, the amount of additional earnings permitted, and other
considerations for old-age and survivors' benefits. Most administrative decisions on
application for these benefits simply involve applying the legislatively set standards to the
facts of the case at hand and deciding whether an applicant is entitled to retirement benefits
and, if so, what the level of benefits should be. Under such circumstances, administrative
decisionmaking becomes mostly routine and is therefore unlikely to produce controversy.
In comparison, the disability standard under the Social Security program has produced
considerable controversy. Disability is loosely defined as the inability to engage in any
substantial gainful activity by reason of a medically determinable physical or mental
impairment expected to result in death or to last at least twelve months. This definition
leaves much room for interpretation, conjecture, and disagreement. Thousands of cases
involving the denial of disability benefits are litigated in the federal courts.
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Although administrative agencies are the primary implementers of public policy, many
other players may also be involved and contribute in various ways to the execution of
policies. Those examined here include the legislature, the courts, pressure groups, and
community organizations. These may be directly involved in policy implementation or act
to influence administrative agencies, or both. By no means are agencies fully in control of
the implementation process. Here again, we find competition for power in the American
political system.
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The President
Article II of the Constitution states that “the executive Power shall be vested in a President …
.” No explanation is provided of what this entails. Further on, Article II says that “he shall
take Care that the Laws be faithfully executed.” This would appear to empower and obligate
the president to be involved in policy implementation.
The president, however, has a wide range of duties and obligations. These include foreign
affairs, economic policy and the wellbeing of the economy, policy development, and
ceremonial activities as chief of state, as well as policy implementation. As Professors
George Edwards and Stephen Wayne state, “Policy implementation has had a low priority in
most [recent] administrations.” They explain, “Presidents know they will receive little credit
if policies are managed well because it is very difficult to attribute effective implementation
to them personally.”
Lyndon B. Johnson was the last president to become fairly extensively involved in policy
implementation. He received regular reports on agency officials, questioned officials
about their programs, made recommendations for action, and more. He had a remarkable
capacity to participate without getting bogged down in details. As an example, wage-price
guideposts were used to combat inflation. Johnson “met with business groups and labor
leaders …, made appeals in person and by telephone and telegram, suggested ‘levers’ that
could be used to help induce compliance, and encouraged and pressured his subordinates to
act. No major wage-price actions were taken without his approval.” Johnson was the
quintessential activist president.
Occasionally a president and some of his advisers may decide that a law on the statute
book is unconstitutional. What then should the president do? Should he direct that the law
not be enforced? Or should it be enforced until the courts have rendered a definitive
verdict? Recently President Obama faced this dilemma with respect to the Defense of
Marriage Act (DOMA). He decided the law was unconstitutional and that his
administration would no longer defend it in court. Together with his attorney general and
some (but not all) of his advisers, he concluded it should be carried out. Other presidents
have acted similarly. In June 2013, the U.S. Supreme Court, in a 5 to 4 decision, declared
DOMA to be unconstitutional.
Presidents now rarely participate in the details of policy implementation. The best means
that a president has for exercising control and direction over the executive branch, for
getting officials and agencies generally to act as he wishes, is the power of appointment and
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removal. The president makes many hundreds of appointments to top-level positions in the
departments and agencies. The president will be careful to select persons who share his
political philosophy or policy orientations. George W. Bush's conservative appointments to
regulatory agencies and commissions (e.g., the EPA, Antitrust Division, and Securities and
Exchange) were not vigorous regulators. They did not ignore the laws under their
jurisdictions, but they did ease up on enforcement. In contrast, Obama's appointments to
these and many other agencies were much
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more activist. Thus, for instance, the EPA bore down much harder on air and water
pollution regulations.
Presidents do not often remove officials from office. It is messy and unpleasant, and
seldom done. Presidential appointees generally regard following presidential leadership as
one of the rules of the game. If you can't do what the president wants, then you ought to get
out, as a former Johnson administration official told me.
The Legislature
Some members of legislative bodies display much interest in the implementation of policies.
Indeed, Professor Theodore Lowi holds that “the major problem and major focus of
Congress is no longer simply that of prescribing the behavior of citizens but more often that
of affecting the behavior of administrators.” Some of the techniques used by Congress and
its members to influence administrative action and hold agencies accountable for what they
do are examined here.
Committee hearings and investigations are used to gather information, review the
implementation of policies, publicize agency actions, put pressure on agency officials, and
enhance the political reputations of members of Congress. (Technically, hearings focus on
proposed legislation, whereas investigations deal with problems. They are lumped together
here.) In 1997, the Senate Finance Committee held hearings on the Internal Revenue Service
(IRS) at which taxpayers told “horror” stories about the IRS. Their sensational quality
attracted much media attention and helped build bipartisan political support for the IRS
Restructuring and Reform Act of 1998. This law created an independent board to
supervise the IRS, called for the agency's reorganization, provided for disciplining agency
employees who abused their authority, and expanded protection for taxpayer rights.
Generally, it was intended to make the IRS a less adversarial and more taxpayer-friendly
agency. Interestingly, it was later found that many of the horror stories related at the Senate
hearings were unfounded or exaggerated.
Another control device is the specificity of legislation. The more detail in the legislation
that Congress passes, the less discretion agencies usually will have. Specific limitations on
the use of funds may be written into statutes, or deadlines may be specified for some
actions, as has been done in some environmental-protection laws; “hammers,” or stringent
rules or requirements, may be incorporated in a law, to go into effect if an agency does not
act with alacrity or effectiveness; or specific standards may be set, as in minimum-wage
legislation. The committee reports that accompany many bills often include suggestions or
statements explaining how legislation should be implemented or specifying projects that
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money should go for. These reports do not have the force of law but are ignored by
administrators only at their own peril.
Senatorial approval, which is required for many top-level executive appointments,
provides senators with a lever that can be used to influence policy. Commitments on policy
matters may be extracted by senators from nominees during hearings on their
appointment. Or a nominee for a position may be rejected
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because some senators find objectionable his or her policy views or actions. This happened
to two persons nominated by President Bill Clinton to head the Civil Rights Division of the
Department of Justice. Conservative senators considered them to be “too liberal,” that is,
they were supporters of civil rights.
The legislative veto is an arrangement whereby either congressional approval has to be
secured before an administrative action can be taken or a specific action can be
subsequently rejected by Congress or its committees; the veto originated in 1932. President
Herbert Hoover wanted authority to reorganize the national administrative system, but
Congress was reluctant to grant it. A deal was made. The president was authorized to
reorganize the system, but Congress gave itself the right to disapprove his actions if it
deemed them objectionable. The legislative veto gives administrative agencies flexibility in
the implementation of legislation while permitting Congress, if it so chooses, to exercise
control over what is done. It also enables Congress to become involved in the details of
administration.
As reported in Chapter 5, “Budgeting and Public Policy,” the Supreme Court in 1983
declared the legislative veto unconstitutional. Nonetheless, since then some 400 legislative
veto provisions have been included in laws passed by Congress. Others have been put in
place by informal agreements between Congress and the executive. During the George Bush
administration, for example, the secretary of state agreed to give four congressional
committees a veto over the expenditure of funds appropriate to support the Contras (rebels)
in Nicaragua. Had this not been done, Congress might not have enacted legislation creating
the aid program, which was strongly desired by the Bush administration. The legislative
veto persists because the legislative and executive branches view it as a practical way to
handle some of their differing interests.
Finally, much of the time of many members of Congress and their staffs, and some of the
time of all members, is devoted to “casework.” Typically, casework involves handling
problems that constituents have with administrative agencies such as delayed Social
Security or veterans' benefits, difficulty in getting action on a license application, or
uncertainty about how to apply for a grant. The constituents, of course, want their
representatives to secure favorable action for them. Members of Congress engage in
casework because it is thought helpful to their chances of reelection and because it
contributes to their oversight of agencies. Beyond that, the practice helps “humanize”
administration by making it more responsive to individual needs and problems. As for
agency officials, responsiveness to congressional inquiries is seen both as appropriate and
as a means of building or maintaining political support.
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The Courts
Some legislation is enforced primarily through judicial action. Laws dealing with crimes are
the most obvious example. Some economic regulatory statutes, such as the Sherman Act, are
enforced by lawsuits brought in the federal district courts, some of which are eventually
appealed to the Supreme Court. Because of this tactic and the act's general language, the
meaning of antitrust policy depends greatly upon
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judicial interpretation and application of the statute. In the nineteenth century, it was quite
common for legislatures to enact laws requiring or prohibiting some action and then to
leave it to the citizens to protect their rights under the law through proceedings brought in
the courts. Generally, administrative regulation, in which primary responsibility is assigned
to an agency for the enforcement of a statute, is now much more common than judicial
regulation in the American political system. It is also more effective.
In some instances, the courts may be directly involved in the administration of policy.
Naturalization proceedings for aliens are really administrative in form, but they are
handled by the federal district courts. Bankruptcy proceedings are another illustration. A
complex system of trustees, receivers, appraisers, accountants, auctioneers, and others is
supervised by federal bankruptcy courts. In all, it is “a large scale example of routine
administrative machinery.” A national bankruptcy agency could handle much of this
activity. Many divorce and domesticrelations cases handled by state courts also appear
essentially administrative, involving matters of guidance and management rather than
disputed law or facts. There is no reason to assume that persons appointed or elected to
judgeships are distinctly qualified to act in these matters.
The courts' most important influence on administration, however, flows from their
interpretation of statutes and administrative rules and regulations, and their review of
administrative decisions in cases brought before them. Courts can facilitate, hinder, or
largely nullify implementation of a policy through their decisions. The story of how the
Supreme Court destroyed the effectiveness of early national railroad regulation under the
Interstate Commerce Act of 1887 by unfavorable rulings on the Interstate Commerce
Commission's (ICC) authority to regulate rates is well-recorded history.
In recent years, the Supreme Court's rulings have complicated and restricted the
enforcement of equal-opportunity and affirmative-action programs. For instance, the Court
has ruled that to be constitutional, an affirmativeaction program has to be “narrowly
tailored” to meet “a compelling government interest.” A Colorado program providing for the
award of a portion of highway construction projects to minority contractors was struck
down because it failed to square with this standard.
Pressure Groups
Because of the discretion often vested in agencies by legislation, once an act is adopted, the
group struggle shifts from the legislative to the administrative arena. A group that can
successfully influence agency action may have a substantial effect on the course and impact
of public policies. Sometimes relationships between a group and an agency may become so
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close as to lead to the allegation that the group has “captured” the agency. In the past it was
frequently stated that the ICC was the captive of the railroads, and it is not uncommon
now to hear comments to the effect that the Federal Maritime Commission is unduly
influenced by the shipping companies and that the Forest Service is too responsive to the
interests of commercial timber companies. Also, groups may complain to Congress or the
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executive if they believe a statute is not being implemented in accordance with the intent of
Congress (as they interpret it).
Groups also directly participate in administration, as when the representation of
particular interests is specified for the boards of plural-headed agencies. A common
illustration is state occupational licensing boards, whose governing statutes frequently
provide that some or all of the board members must come from the licensed profession.
Occupational licensing (and regulatory) programs are usually controlled by the dominant
elements within the licensed groups. Consequently, such programs may do more to protect
the interests of the licensed group than those of the general public.
Advisory bodies, such as the Advisory Committee on Vocational Education, the Advisory
Committee on Hog Cholera Eradication, and the Advisory Committee on Reactor Safeguards,
are another means by which groups may become participants in policy administration.
Currently, around a thousand advisory groups serve national administrative agencies.
Some simply provide needed advice to agencies and their officials, as their name implies;
others become more directly involved in program administration. Membership in advisory
bodies may give group representatives privileged or special access to governmental
agencies. Thus, many large defense contractors are represented on advisory committees for
the Department of Defense. When advisory groups have a role in agency decision-making,
they can add legitimacy to the policies that they have helped to develop.
Some advisory committees may have direct control over program administration. Each of
the nineteen institutes within the National Institutes of Health (NIH) has an advisory council
whose members must be leaders in science, medicine, and public affairs, including some
who are specialists in the field covered by a particular institute (e.g., cancer, aging, or
allergy and infectious diseases). Research grants to medical schools, universities, and others,
which total more than $30 billion annually, can be made only after review and approval by
each institute's advisory council. This is intended to ensure that grants meet both scientific
norms and public-policy criteria.
Community Organizations
At the local level, community and other organizations occasionally have been used in the
administration of national policies. Examples include farmer committees under the income-
support and soil-conservation programs of the Department of Agriculture, resource
advisory councils for the Bureau of Land Management, and representatives of the poor for
Community Action agencies. Participatory democracy of this sort may give those involved
considerable influence over the application of programs at the grass-roots level and also
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build program support. Local draft boards (“little groups of neighbors,” as they were
sometimes called) had a vital role during the Vietnam War years in determining, when only
a portion of eligible males were required to meet military needs, who got drafted and who
did not. Many of those drafted were sent to Vietnam. The compulsory draft and draft
boards were later eliminated, although eligible males are still required to register with the
Selective Service System.
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Very early on in his administration, President George W. Bush created a White House
Office of Faith-Based and Community Initiatives. Subsequently, several of the executive
departments established similar offices. All of this was in accord with the President's claims
about “compassionate conservatism” during the 2000 campaign. The notion was that federal
funds for social services should be funneled through local organizations, of which there
were a vast number and variety in American society, because they would be more effective
than governmental organizations. During the course of the Bush administration, many
billions of dollars were channeled through these organizations. It was a controversial
initiative because many observers thought that it violated (or could) the constitutional
separation of church and state. President Barack Obama has continued a version of this
program.
Concluding Comments
In summary, a variety of entities may play a role in implementing a policy of any
complexity. In addition to those discussed here, the communications media (by reporting
and criticizing an agency's operations), other agencies with competing or overlapping
jurisdictions, presidential staff agencies, and the judiciary, when used to challenge agency
actions, may also get involved. These amalgams of participants are now often called
“networks.”
As an example, there is the Office of Management and Budget (OMB), whose interests
reach beyond the funding of agencies. OMB is concerned with whether agency actions are
in accord with the “policies and programs” of the president. Moreover, since 1981, the Office
of Information and Regulatory Affairs (OIRA), an OMB unit, has been authorized by
executive orders to oversee the issuance of rules and regulations by executive branch
agencies. (More is said on this topic in Chapter 7, “Policy Impact, Evaluation, and Change.”)
The number and variety of participants in the implementation process will differ among
policy arenas, depending upon policy salience, target populations, and the costs and impact
of policies. The operations of the Railroad Retirement Board, which is located in Chicago
rather than Washington, DC, draws little attention. In comparison, the Securities and
Exchange Commission is a political magnet, attracting much attention and many interested
parties.
Administrative Organization
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One could say that one administrative agency looks pretty much like another, or if you have
seen one agency, you have seen them all. Such a notion, however, is erroneous. Agencies in
fact do vary greatly in structure, operating style, political support, expertness, and policy
orientation. Those who want to influence the nature of public policy often are very
interested in which agency or type of agency will administer a policy. Conflict over
questions of administrative organization can be every bit as sharp as conflict over
substantive
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policies. Forming administrative organizations is a political as well as a technical task. As a
longtime observer of administration has remarked:
Organizational arrangements are not neutral. We do not organize in a vacuum.
Organization is one way of expressing national commitments, influencing program
direction, and ordering priorities. Organizational arrangements tend to give some
interests and perspectives more effective access to those with decision-making
authority, whether they be in the Congress or in the executive branch.
The national executive branch comprises approximately seventy-five separate
administrative entities and 2.8 million civilian employees (this includes the U.S. Postal
Service), most of whom are covered by merit systems. Basically, there are four kinds of
agencies: executive departments, independent regulatory commissions, government
corporations, and independent agencies. They are listed in the historical order in which
they appeared in the national administrative system.
The fifteen executive departments—State, Defense, Commerce, Health and Human
Services, to name a few—constitute the core of the executive branch. At the helm of an
executive department is a presidentially appointed secretary who has cabinet rank and who
is assisted in running it by various under-, deputy, and assistant secretaries. These are all
political appointees, whose number has greatly expanded in recent decades.
Most of the work of the departments in implementing programs and policies is handled by
major administrative units that can generically be designated as “bureaus.” Thus, in the
Department of Justice, one finds bureaus such as the Federal Bureau of Investigation, the
Bureau of Prisons, the Drug Enforcement Administration, the Civil Rights Division, the
Antitrust Division, and the U.S. Marshals Service. Because of their typically short tenure in
office and lack of technical knowledge, the political appointees at the top levels of a
department are often hard-pressed to exercise effective control and direction of its bureaus.
Independent regulatory commissions are plural-headed agencies that engage in the
regulation of private economic activities, such as stock markets, banks, or labor-
management relations (see Figure 6.2). Appointed by the president for fixed, staggered
terms of office, only a majority of a commission's members can come from the same
political party. Unlike department secretaries, who serve for “the time being” and can be
fired by the president whenever he or she chooses, regulatory commissioners can be
removed only for such specified causes as malfeasance, inefficiency, and neglect of duties.
None has been. Some have been pressured or urged to resign.
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Thus, as a practical matter, the independent regulatory commissions, which handle a
significant share of the government's regulatory programs, are somewhat free from
presidential control and direction. This is one reason why Congress has created them. On
the other hand, the president can try to bring the commissions under his sway by
appointing commissioners who share his
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policy preferences. The George W. Bush administration did this with the SEC. The results
were not good for the performance of the economy.
Figure 6.2 Independent Regulatory Commissions
Government corporations, which first became a part of the executive branch during the
World War I era, are sometimes set up to handle businesslike or commercial activities for
the government. Prominent examples are the U.S. Postal Service, the Tennessee Valley
Authority, and the Federal Deposit Insurance Corporation. Wholly owned by the
government, they look pretty much like other government agencies, but they have greater
operating flexibility in financial and personnel matters. Typically, they impose fees or
charges for the goods or services that they provide and can reinvest earnings.
Independent agencies number close to forty and, like independent and regulatory
commissions and government corporations, are located outside of the executive
departments. Some are large, well-known, and important, such as the National Aeronautics
and Space Administration (NASA), the EPA, and the Central Intelligence Agency; others are
smaller and somewhat obscure, such as the National Mediation and Conciliation Service, the
Railroad Retirement Board, and the National Credit Union Administration. A variety of
factors has contributed to their establishment. Some would not fit well into the executive
departments (such as NASA and the EPA), others have watchdog or review duties (such as
the Occupational Safety and Health Review Commission), still others provide services to a
variety of agencies (such as the Office of Personnel Management), and some provide special
notice for programs (such as the Peace Corps and the Commission on Civil Rights). Although
all are subject to presidential control, much of what many of them do is not of presidential
interest.
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The Dodd-Frank Act (2010) provided for stronger protection of consumers by regulating
financial products and services (e.g., payday loans and home mortgages) to ensure fairness
and understanding of their terms. Implementation was assigned to a new Consumer
Financial Protection Bureau, located in but independent of the Federal Reserve System
(although it is funded by the
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FRS). Its director is presidentially appointed with Senate approval for a fiveyear term.
Harvard law professor Elizabeth Warren (now a U.S. Senator) was instrumental in the
bureau's creation by her strong and persuasive advocacy.
Responsibility for implementing a new public policy usually is assigned to an existing
agency. Occasionally, however, a new agency is created for this purpose, usually by
legislative action. Thus, in 2001, Congress established the Transportation Security
Administration in the Department of Transportation to handle airport security. (It has been
moved to the Department of Homeland Security.) In other instances, new agencies were set
up by the executive using administrative reorganization authority (now lapsed), which
permitted the president to propose reorganization plans that went into effect automatically
unless disapproved by either house of Congress. The EPA, established by a Nixon
administration 1970 reorganization plan, administers environmental-protection programs
formerly scattered among several agencies. A few other agencies—such as the Department
of Agriculture's Farm Service Agency, which administers income- and price-support
programs, and the Centers for Medicare and Medicaid Services in the Department of Health
and Human Services—have been created under broad statutory authority delegated by
Congress to executive officials.
When a new policy or program is developed, the contending parties often seek to have its
implementation awarded to an agency that they think will act favorably toward their
interests. The case of occupational health and safety legislation is one in point. When it
became evident in 1970 that legislation would be enacted, attention focused on how it
would be implemented. Business groups, along with the Nixon administration, did not
want the Department of Labor, which they viewed as pro-labor, to set health and safety
standards. Nor did they want standard-setting and enforcement to be lodged in the same
agency. Their preference was to have an independent board to set standards, Labor to
inspect workplaces, and either the courts or another agency to impose penalties and hear
appeals. Organized labor, spearheaded by the United Steel Workers, and liberal Democrats
wanted all standard-setting and enforcement authority located in Labor.
The result was a compromise. The Department of Labor was awarded authority to set
health and safety standards, enforce them, and impose penalties for their violation. Within
the department these tasks were assigned to OSHA. An independent, quasi-judicial agency,
the Occupational Safety and Health Review Commission, was created to hear appeals of
OSHA enforcement action. The National Institute for Occupational Safety and Health within
the Department of Health and Human Services (formerly the Department of Health,
Education, and Welfare) was authorized to conduct research and to develop and
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recommend health and safety standards. Moreover, enforcement authority could be
delegated to state governments with acceptable programs. This fragmented organizational
structure has complicated and softened implementation of the occupational safety and
health program. For example, enforcement and penalty decisions made by OSHA have
frequently been modified or overturned by the review commission.
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Viewed as a course of action, the content and impact of policy is affected by how it is
implemented. How it is implemented, in turn, will be shaped in part by which agency
implements it. Organization matters. Consequently, deciding which agency should
implement the program, or where it should be located, is more than a technical task; it is
also a political issue. All administrative agencies have some sort of political life, a topic to
which we now turn.
Administrative Politics
A statute only gives an agency the legal authority to take action to implement policy on
some topic. How effectively the agency carries out its legal mandate and what it actually
does or does not accomplish will be substantially affected by the amount of cooperation and
political support it gets and, conversely, the political opposition it runs into. To put it
differently, an agency dwells and acts in a political milieu that affects how it exercises
power and carries out its programs.
The environments of some agencies are more political, more volatile, and more
tumultuous than those of others. The Bureau of Engraving and Printing and the U.S.
Geological Survey lead much more serene political lives than do the EPA and the Federal
Communications Commission. But whatever the conditions, the environment in which an
agency exists may contain many forces that may, at one time or another, impinge on it and
help give direction to its actions in multitudinous ways. These forces may arise out of the
following sources.
THE “BASIC RULES OF THE GAME” Included here are the relevant laws, rules, and
regulations, accepted modes of procedure, and concepts of fair play that help form and
guide official behavior and to which officials are expected to conform. Public opinion and
group pressures may focus adversely on officials who violate the rules of the game, as by
appearing or proposing not to enforce a statutory provision or by enticing persons to violate
a law so that they can be prosecuted. Officials who are overly zealous in enforcing laws,
who cite companies for too many minor violations of health or safety standards, may be
seen as unreasonable zealots. Adverse executive or legislative action may stem from such
criticism.
THE CHIEF EXECUTIVE Most administrative agencies are located within the presidential
chain of command or are otherwise subject to presidential control and direction in such
matters as top-level personnel appointments, budget recommendations, expenditure
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controls, and policy directives. The presidential chain of command includes agencies and
officials in the Executive Office of the President and top-level political appointees (e.g.,
secretaries and assistant secretaries) in the departments and agencies. Control and direction
are much more likely to emanate from those who work for the president than from the
president himself. Those who act for the president may or may not always
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act according to his or her preferences. There is sometimes suspicion, for example, that
White House aides “go into business for themselves.” Presidents in recent decades seem not
to have spent much time mulling over the operations of administrative agencies. Perhaps
they should have.
THE CONGRESSIONAL SYSTEM OF OVERSIGHT This supervisory system includes the
standing committees and subcommittees, their chairs, committee staffs, and influential
members of Congress. Congressional concern and influence is fragmented and sporadic
rather than monolithic and continuous. It flows from parts of Congress, rarely from
Congress as a whole, and focuses mostly on specific issues or controversies. Professional
staff members handle much of the day-to-day congressional communication with agencies
and may develop close working relationships with agency officials.
THE COURTS Agencies may be strongly affected by the judiciary's use of its powers of
judicial review and statutory interpretation. Agencies may have their statutory authority
expanded or shorn by judicial interpretation, or their decisions may be overruled because
improper procedures were employed in making them. OSHA and the Federal Trade
Commission (FTC) have often had their actions challenged in the courts. Other agencies,
such as the Federal Reserve Board (FRB) and the Bureau of the Mint, have little contact with
the courts because their operations do not give rise to issues of the sort normally handled by
the judiciary. The greater the likelihood of challenges in the courts of agency actions, the
more influence lawyers have in shaping agency actions.
OTHER ADMINISTRATIVE AGENCIES Agencies with competing or overlapping jurisdictions
may affect one another's operations. In drug-law enforcement, the Drug Enforcement
Administration, the U.S. Coast Guard, the Customs Service, and other agencies have engaged
in turf battles and competed for recognition and credit in making drug busts, sometimes
appearing to lose sight of their main task. Water agencies such as the Army Corps of
Engineers and the Bureau of Reclamation (BOR) have also been rivals for the right to control
and construct water projects. Occasionally, an agency may aspire to take over a program of
another agency, and may succeed. Thus, the Department of Labor acquired the Job Corps
program, which was initially run by the Office of Economic Opportunity. Agency
imperialism, however, is not as rampant as some commentators imply. Agencies
sometimes do not want to take on new programs, especially if they are likely to be difficult
to administer.
Moreover, agencies need to be cautious about intruding on the “organizational heartland”
of other agencies—the programs or responsibilities they view as essential to their missions
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and well-being. The U.S. Fish and Wildlife Service risks doing this when enforcing the
Endangered Species Act to prevent habitat destruction threatening the survival of species by
actions of the Corps of Engineers or the Forest Service.
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Some agencies may form cooperative relationships, as have the FTC and the Antitrust
Division of the Department of Justice in antitrust enforcement. An agency may even refuse
to take a program from another agency. Stuart Udall, secretary of the interior during the
Johnson administration, relates that he offered to give the Bureau of Indian Affairs Indian-
education program to the Department of Health, Education, and Welfare so that its
secretary, John Gardner, would have his own school system to run. Gardner refused the
offer.
OTHER GOVERNMENTS State, municipal, and county governments, school districts, and
associations of state and local officials (such as the National League of Cities) may attempt to
influence a national agency's decisions. Associations of state highway officials are much
interested in the activities of the Federal Highway Administration. The EPA encounters quite
a lot of pressure, criticism, and resistance from state and local governments and their
environmental agencies in developing and implementing standards for pollution control.
The effectiveness of many national programs depends upon how they are implemented by
state and local agencies, which provide such governments with some leverage over their
conduct. The No Child Left Behind Act is a case in point.
INTEREST GROUPS The group context differs considerably from one agency to another.
Some agencies—the Forest Service and the Food and Drug Administration (FDA) are
examples—attract the attention of many groups, some supportive and others hostile.
Buffeted by opposition, such agencies may move more cautiously than others that deal
primarily with one group, such as the Department of Veterans Affairs. No matter what the
FDA's decision is on an important issue, some groups probably will be sufficiently offended
as to launch a judicial or legislative challenge. Other agencies—for instance, the Inter-
American Foundation and the Railroad Retirement Board—experience few group pressures.
Agencies often actively seek group support (or consent) to increase the size, ease, or
effectiveness of their operations. Advisory groups may be created, presentations made at
group meetings by agency officials, and program modifications initiated in the quest for
support.
POLITICAL PARTIES The role of the party organizations has declined in recent decades with
the extension of merit systems of hiring to most agency personnel. Appointments to top-
level agency positions, however, still may be influenced by considerations of party welfare
and policy orientation. Because only a majority of the members of an independent
regulatory commission can belong to the same political party, party affiliation is an explicit
consideration in these appointments. Some agency actions may be influenced by an urge to
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enhance party success at the polls, as when the Reagan administration expanded the
availability of agricultural loans in the months prior to the 1986 congressional elections.
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COMMUNICATIONS MEDIA Beyond their use as forums for pressure groups, political
parties, and others trying to influence an agency's action, the mass-communications media
have an independent role. The media may play an important part in shaping public opinion
toward an agency by revealing and publicizing its actions, favorably or unfavorably. For
decades, the Federal Bureau of Investigation was quite well treated by the press, although
its problems in recent years have caused a decline in its support. In contrast, the political
lives of the IRS and the Bureau of Alcohol, Tobacco, Firearms, and Explosives have been
made more difficult by the battering they have received in the media. Also, it should be
noted that agencies scrutinize the media in order to acquire information about the public
and its preferences.
Specialized media, too, mostly journals, newspapers, newsletters, and websites, inform
their clients and other interested persons about the operations of agencies or programs.
These are increasingly more important for many agencies than are the more general media.
This would be true of the Agricultural Marketing Service and the U.S. Fish and Wildlife
Service. Field and Stream and Outdoor Life provide their readers with a particular slant on
the U.S. Fish and Wildlife Service. So do local outdoors editors.
Each of the forces sketched here is multiple rather than monolithic. Conflicting viewpoints
may be held by members in the same category as well as by those in different ones. Thus, a
number of political forces may impinge on an agency, pushing and pulling against each
other with varying intensity, and growing and ebbing. Agencies, of course, are not simply
sitting ducks but rather will try to shape, influence, and mollify the forces in their
environment. Pressure relationships between an agency and those who seek to influence it
are therefore usually reciprocal.
The field of forces surrounding an agency (as shown in Figure 6.3) will be drawn from the
preceding categories and will form the constituency of the agency, that is, “any group, body,
or interest to which [an administrator] looks for aid or guidance, or which seeks to establish
itself as so important [in his or her judgment] that he [or she] ‘had better’ take account of its
preferences even if he [or she] is averse to those preferences.” The concept of constituency
is broader than that of clientele, which comprises the reasonably distinct set of individuals
and groups directly served or regulated by an agency. Thus, savings and loan associations
were the clientele of the Office of Thrift Supervision; its constituency comprised a broader
set of forces or stakeholders concerned with its operations. The OTC was abolished in 2010
for being too “chummy” with savings and loan associations.
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The constituency of an agency is dynamic rather than static. Some constituents will be
concerned with the agency only as certain issues arise or are settled; others will be more or
less continually involved and will compose the stable core of the agency's constituency. The
stable core of the Food Safety and Inspection Service (FSIS) in the Department of Agriculture
includes commercial meat- and poultry-processing companies, the congressional
Agriculture Committees, and the relevant appropriations subcommittees. The chief
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executive, the FDA, the communications media, and consumer groups are intermittently
involved with the FSIS. All other things being equal, the constituents who continually
interact with an agency are likely to have the most success in influencing the agency's
action.
Figure 6.3 The Political Environment of an Agency
The character of an agency's constituency will affect its power relations and capacity to
make policy decisions and carry those decisions into effect. The relationship of an agency to
one part of its constituency will partially depend on the kinds of relationships it has with
other parts. For example, an agency with strong presidential support can afford to be less
responsive to pressure groups than an agency without such support. On the other hand,
strong congressional and group support may lessen presidential influence, as with the Army
Corps of Engineers. An agency encountering criticism from state and local government
officials may find that its congressional support also wanes as a consequence. As a general
rule, an agency's policymaking and implementation activities will reflect the interests
supported by the dominant elements within its constituency, whether they are hostile or
supportive.
An agency's clientele is an important component of its constituency. Some agencies benefit
from large, active clienteles. This is true for the Social Security Administration, the Small
Business Administration, and some units within the Department of Agriculture. But size
alone is not enough. Consumers are a vast group, but because they tend to be poorly
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organized and lack self-consciousness as a group, they provide little support to consumer
agencies such as the FDA and the Consumer Product Safety Commission. If the FDA has been
unduly responsive to food and drug manufacturers, as some allege, it is partly because it
lacks consumer support and partly because the agency both needs the manufacturers'
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cooperation in the administration of its programs and encounters organized pressure from
them.
Some agencies have underprivileged or disadvantaged clientele; the Legal Services
Corporation, the Federal Bureau of Prisons, and most welfare agencies fit in here. These
clienteles will not be able to provide much help politically. Thus the Office of Economic
Opportunity was hampered in administering poverty programs because its clientele, the
poor and especially the black poor, were not a strong source of political support. An agency
with a two-party clientele, such as the NLRB, whose clientele includes labor union and
management groups, may be able to maintain some independence by playing one off
against the other.
Agencies implementing distributive programs that provide services usually elicit more
support from their clientele than do regulatory agencies. Most people obviously prefer
receiving benefits to being restricted or controlled. An agency with a foreign clientele (the
Agency for International Development is an example) can draw little usable political
support from its clientele. The lack of a domestic clientele has clearly been disadvantageous
for the foreign-aid program. It has been a prime target for budget reductions.
Examining an agency's constituency and clientele can provide insight into, and
explanation of, why an agency acts as it does. It should not, however, be assumed that an
agency is an inert force at the mercy of its constituency or the dominant elements therein.
Because of their expertise, organizational spirit, or administrative statecraft, agencies can
exert some independent control over events and help determine the scope of their power.
Any bureaucratic agency has some expertise in the performance of its assigned tasks,
whether these entail garbage collection, killing predators, regulating banks, or the conduct
of diplomatic relations. All bureaucratic skills, however, do not receive equal deference
from society. Agencies whose expertise derives from the natural and physical (“hard”)
sciences will receive more deference than those drawing from the social sciences, which are
less highly regarded in society. Compare, for example, the situations of NASA and the
National Cancer Institute with the Census Bureau and the Economic Research Service (U.S.
Department of Agriculture). Considerable deference is shown to the military as “specialists
in violence,” and Congress often defers to the judgment of the Department of Defense and
the Joint Chiefs of Staff in military and defense policy. Professional diplomats (“cookie
pushers in striped pants”), on the other hand, no longer receive the deference in foreign
policy that they once did. Power based on expertise may fluctuate as conditions and
attitudes change.
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Some agencies are more capable than others of generating interest in, and enthusiasm and
commitment for, their programs from both their own members and the public. This
condition is designated organizational esprit. It depends upon an agency's capacity to
develop “an appropriate ideology or sense of mission, both as a method of binding outsiders
to the agency and as a technique for intensifying its employees' loyalty to its purposes.”
The Marine Corps, Peace Corps, Forest Service, and EPA are served with
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considerable fervor and commitment by their members. Other agencies have displayed
much zeal in their early years, only to ease into bureaucratic routines and stodginess as the
years slip by. This decline has weakened some of the national independent regulatory
commissions.
Leadership, or the ability Professor Francis E. Rourke calls “administrative statecraft,”
can also enhance an agency's power and effectiveness. A government agency's leadership,
like that in all organizations, is situational, being shaped significantly by factors in the
environment other than the leaders themselves. Nevertheless, leadership can still
significantly influence the agency's operation and success. Some agency leaders are more
effective than others in dealing with outside interest groups, cultivating congressional
committees, opening the organization to new ideas, and communicating a sense of purpose
to its personnel. The mid-1980s revitalization of the EPA following its decline in the early
years of the Reagan administration was aided by the able leadership of William
Ruckelshaus and Lee Thomas as successive administrators.
Under the leadership of Paul Volcker, Alan Greenspan, and Ben Bernanke, the FRB carried
the major burden in stabilizing the economy for more than two decades. In the early 2000s,
however, Greenspan kept interest rates low and believed financial institutions would
regulate themselves (which they did not). This contributed to the nation's financial crisis.
Greenspan later acknowledged that he had been wrong about self-regulation.
Administrative Policymaking
As we saw in Chapter 3, “Policy Formation: Problems, Agendas, and Formulation,”
administrative agencies frequently participate in policymaking at the legislative stage. Here
our analytical lens shifts to the administrative arena, where administrative officials have
the capacity to make decisions that shape policy and are subject to influences radiating
from their clientele and constituencies. Something of a role reversal occurs for legislators,
who now act not as decision-makers but as potential influencers of decisions. Agency
policymakers— political appointees and upper-level civil servants—occupy positions that
convey discretion to them in the direction of the agency and its programs.
Tension often exists between the civil servants—possessed of long service and experience
in agency affairs—and political appointees who represent the victorious political party and
sometimes manifest a desire to make substantial alterations in agency activities, but who
lack knowledge about the agency and its policies. Both differ greatly from the lower-level
agency personnel a citizen is most likely to encounter—those selling stamps, guiding tours
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at national parks, handling customs matters at international airports, or processing Social
Security documents. For these lower-level personnel, the line between politics and
administration remains fairly distinct.
In this section, two aspects of agency policymaking are examined: the characteristics of
agency decision-making and the processes by which an agency
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can develop policy. It is well to keep in mind here the distinction between a decision and a
policy.
DECISION-MAKING Hierarchy is of central importance in agency decisionmaking. Although
in legislatures each member has an equal vote, if not equal influence, within agencies those
at upper levels have more authority over final decisions than the occupants of lower levels.
To be sure, factors such as decentralization of authority, responsiveness of subunits to
outside forces (such as pressure groups), and participation by professionals in
administrative activity may work against hierarchical authority, but hierarchy should
nonetheless not be underestimated. Complexity, size, and the desire for economical
operation and more control over the bureaucratic apparatus all contribute to the
development of hierarchical authority. Also, compliance with hierarchical authority is one
of the rules of the game that organization members generally accept.
As for its consequences for decision-making, hierarchy provides a means by which
discrete decisions can be coordinated and conflicts among officials at lower levels in the
agency can be resolved. Hierarchy also means that those at upper levels have a larger voice
in agency decisions because of their higher status and authority, even though lower-level
officials may have more substantive qualifications and information. A separation of power
and knowledge may thus threaten the rationality of administrative decisions. Hierarchy
can also adversely affect the free flow of ideas and information in an organization;
subordinates may hesitate to advance proposals they think might run counter to “official”
policy or antagonize their superiors. Few want to carry the message that causes the
messenger to be shot.
Low visibility is another important feature of administrative decisionmaking. Compared
with that of legislatures, administrative decision-making is a relatively invisible part of
government. Agencies may hold public hearings, issue press releases, and the like, but they
exercise much control over the information that becomes available about their internal
deliberations and decisions. Much of what they do is little noticed by the public or reported
by the media. This invisibility can contribute to the effectiveness of decisions by providing a
congenial environment for presenting and discussing policy proposals that might otherwise
be avoided as publicly unpopular.
Deliberations by Kennedy administration officials during the Cuban missile crisis were
more effective because they were private, or closed. Additionally, low visibility may
facilitate the bargaining and compromise often necessary to reach decisions and take action
because officials find it easier to move away from privately stated than from publicly stated
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positions. On the other hand, privacy in administrative deliberation could mean that some
pertinent facts are not considered and that significant interests are not consulted. Though
secrecy contributed to the effectiveness of the Cuban missile crisis decisions, it had the
opposite effect with regard to the Bay of Pigs invasion debacle in the previous year.
Low visibility is, on the whole, more a part of administrative deliberations in foreign and
defense policy than in domestic matters. In the latter52
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area, confidentiality has been reduced by legislation designed to open the administrative
process to greater public participation and scrutiny. The Freedom of Information Act
provides a procedure for extracting documents and records from agencies, and the
Government in the Sunshine Act requires most plural-headed agencies to open their
decision-making sessions to the public.
Administrative agencies constitute “a governmental habitat in which expertise finds a
wealth of opportunity to exert itself and to influence policy.” Agencies clearly are affected
by political considerations, including the wish to protect their own power, in making
decisions. Thus, the Department of Commerce is unlikely to make policy decisions that
sharply conflict with important business interests. Nor is the Tennessee Valley Authority
inclined to ignore major economic interests in its region. Agencies nonetheless do provide a
context within which experts and professionals, official and private, can work on policy
problems.
Scientific and technical considerations and professional advice are important factors in
most administrative decision-making. Whether it is the Federal Aviation Agency considering
the adoption of a rule on aircraft safety, the FDA acting on the safety of implanted medical
devices, or the secretary of labor confronting a major choice on job-training programs, each
needs good information on the technical feasibility of proposed alternatives. Decisions that
are made without adequate consideration of their technical aspects or that conflict with
strong professional advice may turn out to be faulty on both technical and political grounds.
Professional and scientific advice is not always sound, however. In 1976, following the
identification of a few cases of influenza at Fort Dix, New Jersey, public-health officials
decided that the nation was confronted with the possibility of a swine-flu epidemic similar
to one that had killed 500,000 people in the United States in 1918. Acting on their advice, the
Ford administration decided to initiate a costly nationwide immunization campaign. The flu
epidemic never came, however, and the entire venture became a policy fiasco.
Finally, administrative decision-making is very frequently characterized by bargaining.
Experts and facts are important in administrative decisionmaking, but so also are
accommodation and compromise. Some agencies may be less apt to engage in bargaining
than others. Decisions from the National Institute of Standards and Technology and the
Patent and Trademark Office are primarily expert findings based on factual records.
Economic regulatory agencies, such as the Securities and Exchange Commission and the
EPA, often find it necessary to bargain with those whom they regulate. In setting emission
standards, the EPA has had to bargain with both polluters and state and local officials to
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reach tolerable decisions and help secure compliance. Another notable example of
bargaining involves the consent decrees used by the Antitrust Division of the Department of
Justice to close most civil antitrust cases. Negotiated beyond public view by representatives
of the division and the alleged offender, the consent decree states that the division will drop
its formal proceedings in turn for the alleged offender's agreement to stop practices such as
pricefixing or acquisition of a competitor. Negotiations with other countries for tariff
reductions also illustrate bargaining, in this instance with foreign officials.55
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Patterns of Policymaking
Administrative agencies engage in a wide range of activities and make multitudes of
decisions as they administer the laws within their jurisdiction. (Some of these activities or
techniques are discussed in the next section.) Out of this welter of activity, four patterns can
be identified and designated as policymaking because of the ways in which they help define
the content and thrust of public policies. These patterns are rule-making, adjudication, law-
enforcement practices, and program operations.
RULE-MAKING The Administrative Procedure Act defines a rule as “an agency statement of
general or particular applicability and future effect designed to implement, interpret, or
prescribe law or policy or describing the organization, procedure, or practice requirements
of an agency.” Substantive rules fill in the details of general statutory provisions and have
the force and effect of law. Interpretive rules indicate how an agency views or interprets the
laws that it enforces and the meaning it gives to statutory terms such as discriminate, small
business, or an appropriate education. Procedural rules describe an agency's organization
and how it will conduct its various activities. In practice, it is not always easy to distinguish
these types of rules, or to separate them from informal statements of agency policy or
practice.
Congress has delegated rule-making authority to a large number of administrative
agencies. Thus, the Securities and Exchange Commission is authorized to make rules
governing the stock exchanges “as it deems necessary in the public interest or for the
protection of investors.” OSHA is empowered to make rules setting health and safety
standards for workplaces. In the case of toxic substances, OSHA is directed to set the
standard “which most adequately assures, to the extent feasible, on the basis of the best
available evidence, that no worker suffers material impairment of health,” even when
exposed to a toxic substance over the course of a working career. The conditions embedded
in this delegation reflect compromises made during the legislative process. They leave the
meaning of the law vague and the agency uncertain as to what is required to meet the
standard.
Rule-making, which is one of the primary instruments of government in the United States,
is the part of the administrative process that most resembles the legislative process. Most
frequently it takes the form of informal, or notice and comment, rule-making. The
procedural requirements governing informal rule-making are set forth by the
Administrative Procedure Act (Section 553):
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1. A notice of proposed rule-making (NPRM) must be published in the Federal Register that
specifies the legal authority for the rule, the terms or substance of the proposed rule,
and the time, place, and nature of the public rule-making proceeding.
2. An opportunity must be provided for interested persons to participate in the rule-
making, through either oral or written comments. For controversial rules, agencies will
often choose to hold hearings. Although
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a hearing rarely changes anyone's mind on a proposed rule, it serves to educate the
public and permits a more extensive record of public participation to be compiled. This
can help the agency if the rule is challenged in the courts.
3. A concise statement of the rule's “basis and purpose” must be included with the final
rule. In the preamble to a rule, the agency indicates the information, data, and analyses
that it relied on in developing the rule. Also, the number and nature of public
comments, the issues that they raised, and actions taken (or not taken) by the agency in
response may be detailed. The preambles to rules often exceed the actual rules in
length.
4. The final rule must be published at least thirty days before it becomes effective.
These requirements are intended to provide for fairness in rule-making, which includes
furnishing those interested in or affected by a rule with an opportunity to participate in its
development and perhaps influence its content. (In actuality, most final rules differ little
from their proposed form.)
In some instances, agencies are required by statutes to follow more detailed and stringent
procedures in rule-making actions (see Figure 6.4). Thus, if a statute specifies that rules
must be based on a formal record, then an agency, in making a rule, must hold a trial-type
hearing, follow rigorous procedures, allow legal representation and cross examination of
witnesses, and base its rule on “substantial evidence in the record.” The comparable
standard for rules emanating from informal proceedings is that they must not constitute an
“arbitrary or capricious abuse of discretion.” This is yet another of the mushy standards
that one encounters in the policy world.
In addition to the Administrative Procedure Act, some other statutes impose procedural
requirements on rule-making agencies. If a rule has a significant impact on the
environment, the National Environmental Policy Act requires the agency to prepare an
environmental impact statement. Should small businesses be disproportionately affected,
the Regulatory Flexibility Act requires the agency to take steps to reduce a rule's impact on
them. If a rule necessitates the collection of information from the public, then the
Paperwork Reduction Act applies. OMB approval is needed to ensure that the information
collection does not impose an unnecessary burden on the public. These various
requirements complicate and slow the rule-making process. And, as lawschool dean
Cornelius Kerwin notes:
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Our legislators enact programs of regulation or social welfare but then encumber them
with procedural requirements that will almost certainly stall their implementation. This
simply confirms that political decision making is multidimensional. The combination of
an aggressive and ambitious substantive mission combined with a cautious and
painstaking process of implementation can satisfy different sets of constituents.60
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Figure 6.4 The Federal Rule-Making Process
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In addition to legislative requirements, beginning in the early 1980s, presidential
executive orders have required agencies (other than independent regulatory commissions)
to submit proposed rules rated as significant or major to the Office of Information and
Regulatory Affairs (OIRA) for cost–benefit analysis. OIRA gets a few “whacks” at such rules
and can delay their issuance if it decides they do not pass cost–benefit muster. (See the
discussion of CBA in Chapter 7, “Policy Impact, Evaluation, and Change.”)
A variety of factors may initiate the agency rule-making process. A few are noted here.
The Dodd-Frank Act directed the Bureau of Consumer Financial Protection, the Commodity
Future Trading Commission, and other agencies to make hundreds of rules spelling out the
law's provisions. Pressure groups may lobby for agency action and, moreover, use litigation
to back up their demands. Legal action by the Center for Biological Diversity has caused the
U.S. Fish and Wildlife Service to list scores of species as endangered. Agency research and
enforcement experience may identify problems to be dealt with by rules. During the George
W. Bush administration, the OIRA occasionally issued “prompt letters” to encourage rule-
making on some topic or to give it higher priority. Some sort of crisis or accident also may
generate rulemaking. Presidential directives and recommendations from Congressional
committees or federal advisory committees are other possibilities.
Notwithstanding the procedural and other obstacles that they encounter, national
administrative agencies issue thousands of rules annually. These range from those that are
of small moment and short duration—such as some Agricultural Marketing Service rules on
the quality of fruits and vegetables— to those that impose major costs and affect large
numbers of people—such as EPA rules on air quality and hazardous-waste disposal.
Collectively, these rules, which daily are reported in the Federal Register, are much larger in
volume than the legislation enacted by Congress. Agency rules are codified in the Code of
Federal Regulations.
ADJUDICATION Agencies can make policy when they apply existing laws or rules to
particular situations by case-to-case decision-making. In so doing, they act in much the same
manner as courts, just as they act in legislative fashion when engaged in rule-making. In the
past, the FTC made policy by applying the legislative prohibition of unfair methods of
competition to specific cases. These cases gradually marked out public policy and by
induction indicated the kinds of practices banned by the general prohibition.
An agency also may make policy when it gives an interpretation to a statutory provision in
applying it in a case. The NLRB, which administers labor-management relations legislation,
makes and announces statutory interpretations in deciding unfair-practice cases, which
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then inform its action in future cases. NLRB opinions on such matters as what constitutes
“good faith” in collective bargaining become policy statements of importance to union and
company officials.
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Agencies frequently choose to make policy by adjudication, even though they have rule-
making authority. This is true for the NLRB, for instance. (They may be authorized, but not
required, to engage in rule-making.) An agency may find it no easier than a legislature to
reach a decision on the content of general policy, especially in a novel or highly
controversial situation. Consequently, it can choose to proceed in a more piecemeal or
incremental manner. Those affected by agency action, however, may be left in the dark as
to what policy is supposed to be when it is made case by case. And indeed, agencies have
been criticized for relying too much on adjudication and too little on rule-making as they
develop policy.
Much of the adjudication that administrative agencies engage in is informal or routine,
such as the hundreds of thousands of decisions made annually by the Department of
Veterans Affairs and the Social Security Administration on applications for benefits. Still,
within the framework of statutory language, seemingly routine decisions may shift the
direction or skew the effect of policy.
LAW ENFORCEMENT Agencies may also mold policy through their various lawenforcement
actions. A statute may be enforced vigorously or even rigidly, in a lax manner, or not at all;
it may be applied in some situations and not in others, or to some persons or companies and
not to others. Everyone is familiar with the discretion exercised by the police officer on the
beat or, what is more likely, in the patrol car. A ticket may be given to a speeder, or only a
warning may be issued. If no drivers are ticketed unless they exceed posted speed limits by
a specific rate, this choice amounts to an amendment of public policy. Even when statutory
provisions are quite precise, thus seeming to eliminate discretion in their interpretation,
enforcement officers still have some discretion with respect to the manner in which they
will be enforced.
Policy may be shaped by administrative inaction or apathy as well as by an agency's
positive action and zeal. Inaction often adversely affects only the inarticulate or inattentive
general public and consequently may pass unnoticed. In 1936, Congress enacted the
Robinson-Patman Act to protect small retailers against price discrimination by large
competitors such as chain stores and discount houses. Economists have long criticized the
law as a barrier to price competition. During the past decade or two, both the FTC and the
Antitrust Division of the Department of Justice, under whose jurisdiction the Robinson-
Patman Act falls, have ceased to enforce it. Some question exists as to whether agencies
should be able to ignore a law in this manner.
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A second example involves the Reclamation Act of 1902, which authorized a massive
irrigation program to encourage agricultural development in the western states. The land
that a farmer could irrigate with low-cost water from federally constructed reservoirs was
limited to 160 acres, or 320 acres for a farmer and spouse. Further, they were required to
live on or near their land. For many decades these restrictions, which were clearly spelled
out in the law, were not enforced by the BOR. As a consequence, much of the belowmarket-
cost water from federal reclamation projects was provided to large
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farms, often owned by corporations, encompassing thousands of acres. Many were (and are)
located in California's Central Valley. These large landholders were strong supporters of
BOR's reinterpretation of the law.
Pressure by environmentalists and organizations representing small farmers finally
induced Congress in 1982 to pass the Reclamation Reform Act. The irrigation limit was
increased to 960 acres and the residency requirement was repealed. Large landholders then
created “farming trusts” to manage supposedly separate units not subject to the 960 acre
cap. Collectively they far exceed it. Still intransigent, the BOR has continued to acquiesce in
this subterfuge. In this instance, as well as that of the Robinson-Patman Act, one
encounters agency nullification of legislative policy. What becomes of the rule of law?
In addition to the attitudes and motives of its officials, external pressures, and financial
resources, an agency's capacity to carry out policies will be significantly affected by the
enforcement authority and techniques available to it. Opponents unable to block legislative
enactment of a law may seek to blunt its impact by handicapping its enforcement. Take the
equal employment opportunity provisions in Title 7 of the Civil Rights Act of 1964, which
prohibit firms or unions representing fifteen or more employees from discriminating
against individuals because of their race, color, religion, national origin, or sex. Along with
the other titles in the act, these provisions were adopted over strong conservative
opposition.
The EEOC was authorized to enforce the law through investigations, conferences, and
conciliation, which means essentially voluntary action. If these methods failed, the EEOC
could recommend civil action in the federal courts, which required cooperation by the
Department of Justice to prosecute cases. Moreover, the law provided that the EEOC could
not act on complaints from states that had an antidiscrimination law and an agency to
enforce it, unless the state agency was unable to complete action within sixty days.
Complaints had to be filed “in writing under oath,” which is an unusual requirement for a
law-violation complaint. This stipulation undoubtedly had a chilling effect on many
southern blacks and others. Whatever the intent behind these provisions, they clearly
limited the law's effectiveness by making the successful completion of cases a slow, tedious
process.
After 1964, the EEOC and many supporters of stronger enforcement advocated giving the
agency authority to issue cease-and-desist orders in discrimination cases and then to seek,
on its own initiative, their enforcement in the federal courts. Opposition to this proposed
change was particularly strong from conservatives and southerners. The EEOC was
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eventually empowered to bring court action on its own initiative but not to issue cease-and-
desist orders when the conciliation of complaints was not successful. Though perhaps not as
much as hoped, this new authority did help strengthen the enforcement and effectiveness of
the anti-job-discrimination policy.
PROGRAM OPERATIONS Many agencies administer loan, grant, benefit, insurance, and
service policies and programs, or engage in the management of public properties such as
forests, parks, and hydroelectric plants. Although
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these activities are not usually thought of as law enforcement because they are not designed
directly to regulate or shape people's behavior, they are often of much importance to many
people. How such programs are implemented helps determine policy both directly and
indirectly. Some examples will provide clarification.
CASE STUDY The Nuclear Waste Disposal Act
A problem resulting from the development of the commercial nuclear power industry was
how to handle the disposal of highlevel radioactive nuclear waste, which remains highly
dangerous for many thousands of years. Public officials and Congress fretted about this
matter for several years. Then, in 1982, Congress enacted the Nuclear Waste Policy Act in
an effort to provide a “permanent” solution.
The Nuclear Waste Policy Act assigned the Department of Energy the task of picking two
storage sites—one east and one west of the Mississippi River. Following the procedures
specified in the act, in 1985 DOE designated three western sites—Deaf Smith County, Texas;
Yucca Mountain, Nevada; and Hanford Nuclear Reservation, Washington. All fought against
being selected as the final disposal site. Then in 1987, rather than follow the specified
procedures, Congress summarily passed legislation making Yucca Mountain the waste
disposal site. Nevadans were outraged by this action.
Many years and much money ($10 billion as of 2008) have been spent doing research on
the safety and viability of the Yucca Mountain site. Nevadans, Democrats and Republicans,
officials and citizens remained steadfast in their opposition, using political and public
relations tactics, initiating lawsuits, and disputing scientific findings. They have drawn
support from the ranks of environmental and consumer groups and nuclear power
opponents. The nuclear power industry and various business groups, such as the U.S.
Chamber of Commerce, have favored completion of the project.
Finally, in February 2002 President George W. Bush, who favored expansion of the
nuclear power industry, gave his approval to the Yucca Mountain site. Under the 1987
statute which designated it, Nevada was entitled to exercise a veto, which it quickly did.
Congress, however, adopted a resolution which overrode the veto. Then in July 2002,
President Bush signed legislation making Yucca Mountain the nation's high-level radio-
active waste depository. This cleared the way for the Department of Energy to seek a license
for the project from the Nuclear Regulatory Commission. This was expected to take
several years. If all went well, officials expected to begin moving nuclear waste in the
repository by 2010. This proved to be wrong.
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President Barack Obama, who had been critical of nuclear power during the 2008
presidential campaign, moved the following March to eliminate most of the funding for the
Yucca Mountain site. After decades of struggle and the expenditure of many billions of
dollars, the nation remains without a permanent
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solution to its nuclear waste disposal problem. There is no Plan B. High-level waste remains
“temporarily” stored at 121 sites scattered around 39 states, who had hoped to rid
themselves of it. This is not an acceptable solution.
The nuclear disaster in April 2011 at Japan's Fukushima Daiichi nuclear power plant,
caused by an earthquake and tsunami, stimulated efforts to develop a new solution. Waste
disposal experts urged that nuclear wastes be moved to a “halfway house” for at least a
century until a new burial site could be built. Bipartisan interest in something along these
lines developed in Congress. Whether it will result in action is anyone's guess. The
intractability of the nuclear waste disposal problem remains high.
CASE STUDY The Total Maximum Daily Load Program
The Clean Water Act (1972) mandated technological standards to reduce water pollution
coming from stationary sources— factories and municipal sewage treatment plants.
Because these standards did not apply to all sources of water pollution, it was not likely that
the goals of the act would be achieved by the technological standards alone. As a backup,
the Clean Water Act in Section 303 created the Total Maximum Daily Load (TMDL) program,
a complex matter.
Under the TMDL program, states were directed to establish ambient water quality
standards for water bodies (rivers, streams, lakes). These standards were to comprise the
designated use or uses of a water body (e.g., public water supply, industrial water supply,
recreation) and to estimate the total maximum daily amount of various pollutants that a
water body could receive and still meet appropriate water quality standards with a margin
of safety. If a state failed to take this action, then the EPA was directed to develop a list of
water bodies for a state and to set the TMDLs.
To implement a TMDL and achieve the water quality standard it sets, a state can consider
all water pollution sources—point sources, such as municipal sewage facilities or industrial
plants; and nonpoint sources, such as livestock feeding operations and forests (the EPA
cannot deal directly with nonpoint sources).
For two decades, the TMDL program was essentially dormant. National and state
attention centered on the development and implementation of the technological standards.
Then in 1992, recognizing that more controls on pollution were needed to attain water
quality standards, the EPA issued a regulation directing states to list water bodies every two
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years that did not meet water quality standards and to develop TMDLs to achieve these
standards.
Dissatisfied with inaction, environmental groups filed dozens of lawsuits to compel
action. They believed that implementation of the TMDL program would help achieve the
goals of the Clean Water Act and also pressure the EPA and the states to control nonpoint
source pollution. Nonpoint sources had become the major cause of impairment for many
water bodies. Many of the
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lawsuits culminated with court orders mandating expeditious development of TMDLs by
the states or the EPA.
The lawsuits helped goad the EPA into action, and in 1997, it called on the states to
formulate long-term plans for implementing TMDLs. As a consequence, action in some of
the states began to intensify.
Then in August 1999, the EPA proposed a rule to clarify, strengthen, and accelerate the
TMDL program. Changes included requirements for more comprehensive listing of polluted
water bodies; more specification of the content of TMDLs; a requirement that an
implementation plan be included in TMDLs; and provision of greater opportunity for public
participation. The proposed new rule attracted much opposition. States complained about
the burdens the new rule would impose on them. Farm groups, the forestry industry, and
other nonpoint dischargers questioned the EPA's authority to include nonpoint source
pollution in the TMDL program. Municipal and industry groups worried that their burden
under the technological standards might be further increased. Environmental groups,
which favored a stronger TMDL program, fretted about possible delays in cleaning up
impaired water bodies.
The final EPA rule was issued in July 2000. Although some provisions were dropped,
including several affecting agriculture and forestry, in all, the new rule put more backbone
in the TMDL program. However, the controversy over the rule had attracted unfavorable
congressional attention. A rider was added to an appropriations act that prohibited the
expenditure of any funds to implement the new rule until after the end of fiscal year 2001
(October 31).
The Bush administration now came to the aid of the rule's opponents, stating that it would
delay its effective date until May 2003. The administration said it needed time to review the
rule and to consider alterations. In March 2003 it withdrew the rule, stating that it was not
workable without major changes. A new weaker rule was given some consideration, but
the ultimate decision was to do nothing. Thus, the TMDL program continues to be
administered under the 1992 rule.
In recent years, the rule-making failure aside, activity under the TMDL programs has
gained momentum. By 2008, some 34,000 TMDLs had been developed by the states and the
EPA. How effectively they are being implemented is another matter. Good information on
this is hard to acquire.
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There appear to be two major obstacles to a fully effective TMDL program. One is that
good data on water quality are scarce and costly. Moreover, it is highly difficult to calculate
the maximum amount of each pollutant that can be permitted in each water body during a
twenty-four hour period. Second, there is the matter of political will or commitment. To
accomplish its goals, the TMDL program needs political support and adequate resources at
both state and national levels. People and public officials must want clean water and be
willing to support its attainment. Some states, such as California and New Jersey, have
shown more commitment to pollution control than have others, such as Texas and
Kansas.
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Techniques of Control
Whether labeled promotional, regulatory, prohibitive, redistributive, or whatever, almost
all policies incorporate an element of control. That is, by one means or another, overtly or
subtly, they are designed to cause people to do things, refrain from doing things, or continue
doing things that they otherwise would not do. This holds true whether reference is to tax
provisions intended to encourage industrial-plant modernization or charitable giving, the
provision of information and financial assistance to expand international trade, or a
prohibition of an activity such as price-fixing with penalties for violators. Even Smokey
Bear's admonition that “only you can prevent forest fires” embodies a control element.
The control techniques authorized for their implementation are an important component
of public policies. Decisions on these matters, like those on the substance of policy itself, can
be highly productive of controversy during the policy-adoption process. The control
techniques that an agency is permitted to use may in practice have important consequences
for the content and impact of policy, for policy as an “operational reality” that affects
human behavior. Those who oppose a policy, for example, may attempt to lessen or even
negate its effects by restricting the administering agency's powers of enforcement or
implementation. Two examples illustrate this point. In 1912, Massachusetts became the first
state to enact a minimum-wage law. While strongly supported by organized labor, it met
with vigorous opposition from manufacturers. The result was compromise legislation that
provided for enforcement only by the publication in newspapers of the names of companies
not complying with the wage standard. As one might guess, the Massachusetts law was not
effective.
In the 1970s, a wave of corporate mergers led to efforts to strengthen antimerger law.
After much struggle, including a Senate filibuster by opponents, legislation was enacted
providing that the Antitrust Division of the Department of Justice had to be given advance
notice of proposed large corporate mergers. Proponents believed that this requirement
would increase the effectiveness of antitrust enforcement by enabling the government to
block mergers before they were completed and the companies involved lost their separate
identities. Opponents, notably investment bankers, who put together mergers, and others in
conservative and business ranks, apparently shared this view. Otherwise, there would have
been no controversy.
Control techniques may rely on a number of behavioral assumptions. Economic
incentives such as subsidies, tax credits, and loans are based on the assumption that people
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are utility maximizers. Incentives to act in their own interest will cause them to comply
with policies. Capacity-enhancing techniques, such as job training, information, and
counseling programs, rely on the notion that people have the desire or motivation to do
what is required but lack the capacity to act accordingly.
Hortatory techniques—declarations of policy, appeals for voluntary cooperation,
admonitions against littering or drunk driving—assume that people act
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on the basis of their beliefs or values, that they will do what is right if informed about what
is right. If one looks along roadways, however, it is quite apparent that appeals not to be a
litterbug often miss the mark. Also, let it be noted that hortatory appeals may often be a
substitute for more compelling action.
Authoritative techniques rest on the premise that requirements and restrictions, backed
up by sanctions, are necessary to prevent people from engaging in undesirable, evil,
immoral, or unfair behavior. Many government agencies, consequently, have authority to
set and enforce standards on environmental pollution, consumer safety, financial
transactions, and other topics.
In sum, for a policy to be effective, more is needed than substantive authority and
sufficient funding to cover the financial costs for implementation. Adequate and suitable
techniques of control and implementation must be authorized for the responsible agency. In
this section a variety of control techniques are examined, but the list is not exhaustive.
Noncoercive Forms of Action
Many of the methods used to implement policies to bring about compliance are
noncoercive. Here, noncoercive means that they do not involve the imposition of legal
sanctions or penalties, rewards, or deprivations. The effectiveness of these forms depends
mostly upon voluntary collaboration or acceptance by the affected parties, although social
and economic pressures arising out of society may lend them an element of compulsion.
The following are examples of noncoercive forms of action.
Declarations of policy by themselves may cause many people to comply, “to go along.” This
result seems reasonable, especially if the declarations are made by respected or high-status
officials. Presidential appeals to labor and management to avoid making inflationary wage
contracts or price increases, for example, may themselves have a restraining effect, as may
mayoral appeals to citizens to conserve water by not watering their lawns during periods of
drought.
In a book entitled Nudge, Professors Richard Thaler and Cass Sunstein argue for what they
call “libertarian paternalism.” Drawing on behavioral economics and psychology, they
propose structuring choice situations to encourage but not compel decisions that will make
people's lives longer, healthier, and better. For example, a nudge would involve arranging
foods in a school cafeteria to make choosing healthy foods easier than choosing junk foods.
As a second example, Thaler and Sunstein cite the Texas Department of Transportation's
effort to reduce littering by posting signs along highways proclaiming “Don't Mess with
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Texas.” This they label a “stunning success.” (They apparently have not spent much time
traveling in Texas.)
Voluntary standards may be established by official action. The National Institute of
Standards and Technology has developed commercial standards, such as uniform weights,
measures, and grades of products and materials, which are not mandatory. They are widely
adhered to because their use facilitates or promotes business and economic activity. While
the use of most of the standard grades—such as prime, choice, and select for beef—
established by
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the U.S. Department of Agriculture for agricultural commodities is permissive (some are
mandatory for interstate commerce), they are widely followed in practice because they
facilitate trade.
Mediation and conciliation are noncoercive measures often used in efforts to settle labor-
management disputes, as by the Federal Mediation and Conciliation Service. The mediator
works to bring the parties together, to clarify the facts in the disputes and the points at
issue, and to offer advice and suggestions to promote settlement. The mediator, however,
has no formal powers of decision or sanction. Many labor-management disputes are
successfully resolved by these procedures.
The use of publicity to bring the social and economic effects of adverse public opinion to
bear on violators may induce compliance with policy. Much stress was placed on “pitiless
publicity” during the Progressive Era as a way of preventing monopoly. Although labor and
business organizations today exhibit much awareness about their public image, it is
impossible to measure how effective publicity is as a control device. Still, the revelation of
“poor” working conditions or “undesirable” business practices by congressional or agency
investigations may produce some correction or improvement.
Educational and demonstration programs are widely used by agencies in securing
compliance with policy. Much effort is expended to inform people about their rights under
Social Security and veterans' benefits programs, for example. Employers are informed
through publications and conferences about the meaning and requirements of wage and
hours legislation. The demonstration technique is especially used in agriculture. Preferred
practices in soil conservation and crop production are shown and explained to farmers with
the hope that their demonstrated superiority will lead to widespread acceptance and use.
Inspection
Inspection is the examination of some matter (such as premises, products, or records) to
determine whether it conforms to officially prescribed standards. The inspection may be
either continuous, as in the inspection of meat in packing plants, or periodic, as in the
inspection of banks and food-processing establishments. Whichever form it takes,
inspection is intended to reveal compliance or noncompliance with rules or standards by
those involved in an activity, with the objective of preventing or correcting undesirable or
dangerous conditions. Typically, an effort is first made to persuade violators to conform
with the law; imposing sanctions or penalties is a last recourse. Indeed, the ultimate
purpose of inspection is to help gain the cooperation of the regulated.
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Inspection is the most commonly used form of regulatory action. Examples of its use at the
national level include the inspection of locomotives and railroad safety devices by the
Federal Railroad Administration, sanitary conditions in food- and drug-manufacturing
establishments by the FDA, income-tax returns by the IRS, and national banks by the
Comptroller of the Currency.
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Licensing
Licensing, or enabling action, as it is sometimes called, involves government authorization
to engage in a business or profession or to do something otherwise forbidden. An
extensively used form of action, licensing is known by various names. Licenses are required
to engage in many professions and occupations and to do such things as operate motor
vehicles and radio stations. In addition, the term certificate of public convenience and
necessity is used in the public-utility field. Permits may be necessary to drill oil wells, the
corporate charter authorizes the use of a form of business organization, and franchises are
granted to utilities to use city streets for their pipe- and wire lines.
Licensing is a form of advance check in which a person who wishes to engage in a
particular activity (such as driving a car) must demonstrate certain qualifications or meet
specified standards or requirements. The burden of proof in securing a license rests with
the applicant rather than the granting official. The use of licensing ordinarily goes beyond
the initial authorization or denial to do something. It may also include “(1) imposition of
conditions as part of the authorization; (2) modification of the terms or conditions at the
discretion of the granting authority; (3) renewal or denial of the authorization at periodic
intervals; (4) revocation of the authorization.” When these are included, licensing becomes
a form of continuing control. Radio and television broadcasters, for example, must
periodically renew their licenses with the FCC and may have them revoked under specified
circumstances. Only rarely, however, is an applicant's request for a broadcast license
renewal denied.
Loans, Subsidies, and Benefits
Loans, subsidies, and benefits are means by which public purposes are advanced through
aid, in the form of money or other resources, to companies, farmers, students, home buyers,
and others. Under the Essential Air Service Program, cash operating subsidies are granted to
some commuter airlines to maintain an adequate system of air transport. Operating
subsidies are used to promote the American merchant marine. It also benefits from the
Jones Act, which provides that ocean commerce among U.S. ports can be carried only in
ships built and registered in the United States. Commodity loans and payments are made to
farmers to support farm prices and income. Small businesses are assisted by loans from the
Small Business Administration. Also related is the guarantee of loans by the government to
expand the volume of private lending, as with the guarantee of home mortgages by the
Federal Housing Administration.
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In addition to their broad control quality, loans, subsidies, and benefit programs may
include explicit regulatory features. Under the agricultural incomesupport programs,
commodity loans and payments are not available to those who do not comply with various
conservation requirements. Farm Service Agency loans for purchasing farms are made
under conditions designed to ensure good farm management. In effect, the government is
using the loan and benefit operations to purchase consent to policies. The effectiveness of
such programs depends considerably upon the need or desire for the assistance offered.
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Contracts
Many governmental programs are carried out in substantial part through contracts with
private entities. At the national level, the defense, nuclear weapons, and space programs are
well-known examples. State and local governments contract with private companies for the
construction of highways and streets and, in some instances, the management of public
schools and prisons. Many private companies looking for profits want to do business with
the government, and some, as in the aerospace industry, depend heavily upon government
contracts for their very existence. The power to grant or deny contracts includes an obvious
element of control.
Every presidential administration since Dwight Eisenhower's has encouraged agencies to
contract out commercial activities. The OMB, pursuant to its Circular A-76, directs them to
contract for goods and services when these can be obtained at lower cost from the private
sector. Implementation of A-76, however, has varied widely among federal agencies and its
cost savings are difficult to measure.
Contracts sometimes serve as the basis for specific economic controls. Under the Walsh-
Healey Act, companies wanting to sell goods or services to the national government must
pay prevailing wages and comply with other standards on the hours and conditions of
work. Executive Order 11246, issued by President Lyndon Johnson, prohibits discrimination
in employment by federal contractors. The Office of Federal Contract Compliance programs,
which administers the order, requires that contractors also have affirmative-action
programs. Violators of these requirements can be denied present or future government
contracts.
After its adventure in Iraq began in 2003, the United States made extensive use of
contracting. The Congressional Budget Office (CBO) reports that in 2007 at least 160,000
contract personnel worked in Iraq on contracts funded by the United States. (This was about
the same as the number of military personnel.) Some of these workers were American
citizens, some were Iraqis, and some were third-country nationals. They provided personal
protection for American officials, furnished support services for the armed forces, worked
on construction and development projects, and much more. In contrast, CBO notes that
military personnel outnumbered private contractor personnel by a seven-to-one ratio
during World War II. Most of the contract personnel in Iraq have now been let go. Many
others remain in Afghanistan.
General Expenditures
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Apart from their use in connection with the loan, subsidy, and benefit operations,
governmental expenditures for purchasing goods and services can be used by agency
officials to attain various policy goals. Administrative agencies often have considerable
discretion in spending funds appropriated by Congress. Expenditures of funds for goods and
services can be used to foster favored domestic or local industries, or to increase economic
activity in depressed areas. Competition may be promoted by purchasing from smaller
rather than larger businesses so as to strengthen their economic position. The rate and
timing of expenditures
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can be geared to counteract inflationary or recessionary trends in the economy. Thus, in
early 2009 the Congress enacted legislation providing for several hundred billion dollars in
government spending (plus tax cuts) in an effort to offset the severe recession afflicting the
country.
Market and Proprietary Operations
When government enters the market to buy, sell, or provide goods and services, its actions
often have control effects. Thus, the purchase and sale of government securities in the
market (i.e., open-market operations) is a potent tool used by the FRB to expand or contract
the money supply in the economy. When the FRB buys government securities, this increases
bank reserves and their lending capacity; the opposite occurs when the FRB sells securities.
The prices of some agricultural commodities, such as milk, have been supported by direct
Department of Agriculture purchases in the market. The Clinton administration sold
petroleum from the Strategic Petroleum Reserve to counter action by the Organization of
Petroleum Exporting Countries (OPEC) to raise oil prices. Many observers, however, viewed
this as symbolic.
Government enterprises also may have a control effect, as when they compete with
private enterprises. Thus, the sale of electric power at “reasonable” rates by the Tennessee
Valley Authority led to rate reductions by private companies operating in the region. This is
sometimes referred to as “yardstick regulation” in that the reasonableness of private utility
rates can be measured by the public rates. Governmental competition has not been used
extensively as a control device, although it remains a possibility. Some states use state-
owned liquor stores rather than regulation of privately owned stores as a means for
controlling liquor traffic.
Taxation
Taxes are important policy instruments “because they not only provide revenue but also
serve to sanction or encourage certain types of behavior.” The power to tax has
occasionally been wielded for regulatory purposes. A 10 percent annual tax on state bank
notes levied by Congress in 1865 drove them out of existence. State banks then developed
the use of checks to replace their currency. For several decades, high taxes were levied on
colored oleomargarine to discourage its use in preference to butter. Uncolored,
oleomargarine resembles lard, something that most people do not relish. The Carter
administration proposed increasing the federal tax on gasoline as a means of discouraging
its consumption and promoting energy conservation. Congress refused to act on the
recommendation, however, because of strong public opposition. This is a policy idea that
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will not die, however. In 1993, a gasoline-tax increase was adopted instead of the Clinton
administration's proposal for an energy tax.
The idea of a carbon tax to reduce energy usage, by raising the price of gasoline, and to
lessen air pollution, has been with us since the Nixon administration. Many economists are
firm proponents of the idea. Although it is good economics and would have positive
consequences, in a time when tax
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increases are anathema to many citizens and officials, it is bad politics. Its near-future
prospects are dim.
In recent years, some have advocated more positive use of taxation. Thus, it has been
contended that environmental pollution could be better reduced by levying a tax on
effluents rather than relying on the system of standard-setting and enforcement. The tax
would provide businesses with an economic incentive to reduce discharges while
permitting them to determine the most efficient manner to do this. Resistance to the use of
taxation in this fashion has been based on various premises: taxes should be used only to
raise revenue, the present pattern of regulation is adequate, and the tax device would be
difficult to administer in practice. As a consequence, little use has been made of taxation as
a more positive regulatory technique.
Tax Expenditures
A plethora of deductions, deferrals, credits, exclusions of income, preferential rates, and
exemptions enable individuals and corporations who engage in specified activities such as
the purchase of homes, the receipt of employer-provided health insurance (which is equal to
income), charitable giving, capital investment, the receipt of capital gains, and much more
to retain money that otherwise would be paid in taxes. They are frequently called tax
expenditures. The effect is the same as if the government had made direct payments to the
privileged parties. But, it is less open and obvious, and some beneficiaries may be unaware
of their good fortune. For the most part, tax expenditures are meted out through the tax
system administered by the IRS and require no special administrative apparatus.
Beneficiaries claim their benefits when they file their income-tax forms. A payer simply
pays less taxes.
The use of tax expenditures has become widespread. Some were eliminated by the 1986
Tax Reform Act. Since then, however, many more have been added to the U.S. Tax Code.
There are hundreds of them. In 2011, they cost the government more than a trillion dollars
in lost revenue. The three most costly were dividends and capital gains taxed at lower
rates than ordinary income, employer contributions for health insurance, and the home
mortgage interest deduction. High-income persons, overall, benefit far more from tax
expenditures than do those with lower incomes.
The tax expenditure ploy capitalizes on the general aversion to paying taxes that appears
built in to most Americans. It also reduces the visibility of government subsidies.
Directive Power
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Many agencies have authority, through the use of adjudicatory proceedings, to issue orders
or directives that are binding on private parties. (In the preceding section, we discussed the
process of administrative adjudication and its use in developing policy.) Agencies may issue
orders to settle disputes between private parties, as when a mover claims that a moving
company damaged or lost some of his or her furniture; to resolve complaints, as when a
company is charged with false or misleading
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advertising; and to approve or deny applications, as for a license for a nuclearpower project
or a Social Security benefit.
Congressional standards governing administrative adjudication are usually more specific
for benefit programs, such as Social Security and veterans' benefits, than for regulatory
programs, perhaps because political conflict is often less intense over the passage of benefit
legislation than regulatory legislation. Consequently, Congress is less inclined to pass the
buck to agencies through the guise of general legislation on benefit programs.
Services
Many public policies, mostly of the distributive variety, involve the provision of services
such as information, advice, legal counsel, medical treatment, and psychiatric services.
Thus, the Small Business Administration, in addition to making loans, administers a variety
of informational and technical services for the operators of small businesses. The National
Weather Service's forecasts are useful to groups such as farmers, commercial fishermen,
and airline companies, as well as to weekend weather watchers generally. The Department
of Veterans Affairs provides many medical, psychiatric, and counseling services to veterans,
often at no cost.
Service programs variously provide benefits to recipients or users, help enhance the
personal or material well-being of many people, and support the more efficient operation of
markets (as in job training and the provision of foreign-trade data). Moreover, many
services are intended to cause, encourage, or enable recipients to act in preferred ways.
Informal Procedures
Much of the work done by agencies in settling questions involving private rights, privileges,
and interests is accomplished by informal procedures—that is, without formal action and
adversary hearings. Most disputes arising out of income-tax returns are settled by
consultation and correspondence between the IRS and the private parties involved. Claims
for retirement benefits under the Social Security program are mostly settled by
administrative officials using work records, personal interviews, and eligibility rules. A
large portion of the complaint cases alleging unfair labor or management practices initiated
with the NLRB are also informally disposed of in conferences between agency field
examiners and the parties in dispute.
Informal procedures have been referred to as “the lifeblood of the administrative process”
because of their contributions to its efficiency and success. Certainly they are an important
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facet of policy implementation. Many decisions affecting private rights and interests are
reached by such means as negotiation, bargaining and compromise, consultation,
conference, correspondence, reference to technical data, and examination of material.
Extensive use is made of such methods because of the large number of cases coming before
agencies, the need or desire for quick action, agencies' wishes to avoid becoming
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embroiled in formal proceedings, and private parties' desires to avoid the courthouse and
unfavorable publicity.
Voluntary Regulation
Rather than rely on mandatory government controls to protect the public against some evil,
voluntary regulation would depend upon companies to regulate themselves, to act with
restraint, to reduce pollution emissions, whatever. Thus, George W. Bush, as governor of
Texas and then as president, called on public utility companies to voluntarily reduce their
emissions of carbon dioxide. In neither case was it effective, although it did create the
impression that something was being done.
Trade or industry associations sometimes take responsibility for controlling the behavior
of their members. An example is the Responsible Care program of the American chemical
industry, whereby industry members agree to comply with a set of ethical and practice
guidelines. Another example involves the EPA and the National Pork Producers Council.
Under an agreement, the Council funds certification of inspectors who can penalize
participating pork producers for Clean Water Act violations. Voluntary regulation can be
an appealing notion, but its effectiveness is clearly questionable. It may be only a dodge to
avoid positive government action.
Sanctions
Sanctions are the devices, penalties, and rewards that agencies use to encourage or compel
compliance. In the form of penalties or deprivations, they put some sting into
administrative action. In some instances, sanctions are built into control techniques. Thus,
when an agency decides to grant or deny a conditional benefit, the sanction rests in this
action. Other sanctions that agencies may be authorized to impose include the threat of
prosecution, favorable or unfavorable publicity, modification or revocation of licenses,
monetary assessments, product recalls, seizure or destruction of goods, award of damages,
and issuance of injunctions or cease-and-desist orders.
Agencies may also seek to impose criminal penalties (fines and jail sentences), but this
requires taking action through the courts. On the other hand, agencies may be enabled to
assess civil penalties for law violations. A civil penalty looks much like a fine, but it does not
entail a finding of criminal guilt. OSHA frequently levies civil penalties for violations of
industrial health and safety standards.
Concluding Comment
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There appears to be general agreement that policies should be implemented in such manner
as to cause the least possible material and psychological disturbance to the persons affected.
(This generalization may not hold for some criminal laws.) Within this constraint, the most
technically or economically efficient method of enforcement may not be the most
acceptable politically. This consideration will
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influence both the legislature in authorizing control techniques for an agency and the
agency in using its techniques and sanctions.
Another consideration in choosing control techniques stems from the general objective of
public policy, which is to control behavior (or secure compliance) and not to punish
violators, except as a last resort. Consequently, the usual preference will be for less harsh or
coercive techniques. Some sanctions may be considered so harsh that they are rarely used,
as with jail sentences for business executives who violate the antitrust laws. Government
tends to follow the rule of parsimony in employing legal restraint and compulsion in policy
implementation, except for some types of criminal conduct.
A Controversy: Standards or Incentives?
Traditionally, economic regulatory programs have relied heavily upon such administrative
practices as setting standards, inspection to determine compliance, and imposing sanctions
upon violators. Following the lead of economist Charles Schultze, however, many now
designate and stigmatize this pattern of regulation as “command-and-control” regulation.
(In reality, of course, a great deal of education, persuasion, negotiation, bargaining, and
compromise goes on in the regulatory process.) Opponents object to use of the “command-
andcontrol” approach because, they say, it dictates behavior, discourages private initiative
and innovation in attaining policy goals, and causes waste or misuse of societal resources.
In its stead they prefer economic incentives in the form of rewards or penalties, which they
see as utilizing individual self-interest to achieve public purposes. The incentive system, it is
said, “lets individuals make their own decisions, thus enhancing freedom and voluntarism,
and yet (under the right circumstances) achieves desired goals at the lowest possible cost to
society.”
Let us take the question of how to control environmental pollution as an illustration of the
incentive system because it is here that the incentive approach has been most widely
proposed. The system apparently would work like this: First, it would be determined how
much reduction in a pollutant would be necessary to meet a policy goal. A tax or fee would
then be imposed on each unit (perhaps a ton) of the pollutant (perhaps sulfur dioxide)
discharged sufficient to achieve the goal. Those discharging the pollutant could then choose
to pay the tax or lower their discharges. Ideally, they would choose the latter, reducing their
discharges, by whatever means chosen, as much as economically practicable, or to the
extent that it costs less to reduce pollution than to pay the tax. Economists Allen Kneese and
Charles Schultze explain the consequences of a selected level of taxes:
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Firms with low costs of control would remove a larger percentage [of a pollutant] than
would firms with higher costs, precisely the situation needed to achieve a least-cost
approach to reducing pollution for the economy as a whole. Firms would tend to choose
the least expensive methods of control, whether treatment of wastes, modification in
production processes, or substitution of raw materials that had less serious
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polluting consequences. Further, the kinds of products whose manufacture entailed a
lot of pollution would become more expensive and could carry higher prices than those
that generated less, so consumers would be induced to buy more of the latter.
The incentive system, its supporters believe, would be easy to administer. Once the level of
taxes appropriate for achieving a policy goal was determined, it would then be a simple
matter to monitor discharges and collect the taxes due. Large bureaucracies would be
unnecessary, and political struggles would be avoided. Governmental coercion to cause
compliance with standards, with all the balkiness that it creates, would give way to choice
driven by self-interest.
In practice, however, the incentive system would be unlikely to eliminate either politics or
the need for administrative agencies. Determining how much reduction of pollution was
necessary (or conversely, how clean the air should be) and what level of taxes would be
needed to achieve this goal would be open to much disagreement, conflict, and struggle; in
short, such decisions would be highly political. Businesses would want to hold down the
taxes, environmentalists would opt for higher taxes, small businesses would seek
preferential treatment because it would cost them more to reduce discharges, and so on.
Administrative structures would be needed to develop studies and information for making
these decisions.
Once goals and taxes were set, an agency would be needed to monitor the discharge of
pollutants (unless one was willing to trust polluters to monitor themselves) and to collect
the taxes due. The more complex and finely calibrated the structure of pollution taxes, the
more complex the monitoring program would have to be. Professor Deborah A. Stone
remarks, “Where a standard and penalty system might levy a single fee for all discharges in
excess of the standard, an incentive system would vary the taxes according to the amount of
the discharges, and thus its information needs are greater than those of a standard
system.”
Nor would the incentive system eliminate government coercion because it consists of a
control system contrived and imposed by government on economic behavior. Companies do
have a choice between cleaning up or paying up, or some combination of the two. Their real
preference, however, might be to do nothing; they are left to select from among
governmentally mandated alternatives.
A couple of other objections to the incentive system should be noted. One is that it leaves
decisions on how much to pollute to the judgment of private parties, dictated by self-
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interest, and fails to stigmatize pollution as “morally wrong.” A second objection is based
on equity. Because of their stronger economic position, some will be better able to pay the
emission taxes and avoid restriction. In other words, the law will bear down more heavily
on some than on others.
Emissions trading (or cap and trade) is another alternative to traditional regulation.
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CASE STUDY The Clean Air Act's Emissions-Trading System
An emissions-trading system is authorized by Title IV of the Clean Air Act Amendments
(CAAA) of 1990 as part of a strategy to reduce acid rain. A mandatory limit was imposed on
nationwide emissions of sulfur dioxide, the primary precursor of acid rain, reducing them
by 10 million tons (roughly 50 percent) by the year 2000. Under Phase I, which took effect in
1995, each of 110 electric power plants, located mostly in the Midwest, was issued a
specified number of allowables. In Phase II, which got underway in 2000, most electric
utilities were brought into the system.
An allowable entitles a utility to discharge a ton of sulfur dioxide annually. Companies
reducing their emissions below specified levels, whether by energy conservation programs,
conversion to low-sulfur fuels, or the installation of smokestack scrubbers, can sell
unneeded allowables or “bank” them for future use. Companies that exceed their specified
emission levels and that do not buy additional allowables are subject to heavy fines.
Continuous emissions monitoring enables the EPA to keep track of what the companies are
doing.
The Chicago Board of Trade (CBOT), a large commodity exchange, was authorized to
create a market for the buying and selling of allowables. CBOT's first auction of allowables
was held in March 1993. All of the allowables put on the market by the EPA were bought;
however, only a few privately offered allowables changed hands. The prices paid were only
a fraction of the costs of meeting pollution-reduction requirements by using smokestack
scrubbers. Utility companies initially appeared wary of participation in this new market.
The volume of allowables traded increased at the 1994 and 1995 CBOT auctions, and prices
further declined. An early study reported that “though the auction market has been
sluggish and prices have fallen short of expectations, it appears that the intent of CAAA '90
is working.” More recently, the market for allowables has become more robust.
The sulfur dioxide emissions-trading system provides an empirical test of the feasibility of
using economic incentives to reduce pollution. Preliminary evaluations support the
conclusion that it has been fairly successful in reducing the volume of sulfur dioxide
emissions. An authority on emissions trading says that “targeted emissions reductions have
been achieved and exceeded. … Total abatement costs have been significantly less than
what they would have been in the absence of trading provisions.” Under the trading
system, however, it is possible for emissions to increase in some areas even as they decline
overall, thus letting pollution “hot spots” exist.
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Data provided by EPA indicate that the Acid Rain Program to reduce sulfur dioxide
emissions is accomplishing its goals. Thus, a progress report for 2007 indicates that sulfur
dioxide emissions from electric generating units were 43 percent lower than at the
program's inception. Estimated public health benefits from ARP reduction exceed program
costs by more than a 40:1 ratio. Reduction in nitrogen oxide emissions, another cause of
acid rain, and
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were later included in ARP, also were significantly reduced. These reductions resulted in
improved water quality in lakes and streams.
In 2005, the European Union put into place the first emissions trading program to reduce
carbon dioxide emissions, a major cause of global warming. It is a large program that
now includes twenty-five of the twenty-seven EU members. It got off to a rocky start.
Officials initially planned to sell permits but, because of intense industry lobbying, decided
to give most permits for free. The system was tightened after a couple of years and fewer
permits were issued, and permits gained in value on the trading market. Nonetheless,
carbon dioxide emissions rose slightly in 2006 and 2007. Leaders of the EU still hope to
reduce emissions by 20 percent by 2020.
American opponents of carbon emissions regulatory program are prone to call the
European system a failure. In contrast, a careful study done by two economists holds that
the program has worked as intended. A European carbon price has been set, businesses are
taking this price into account in making decisions, and a market for trading emissions
permits is in place.
Soon after taking office, President Obama proposed an emissions trading system to
reduce carbon dioxide and other greenhouse gas emissions. Mandatory limits (caps) would
be imposed on emissions and permits for emissions would be auctioned to emitters. He
subsequently indicated that he would not oppose the award of some free permits. By a
narrow 219 to 212 margin, with no Republican support, the House passed a bill calling for a
17 percent reduction in greenhouse gas emissions from 2005 levels by 2020 and 83 percent
by 2050. It also included several energy efficiency measures. The Senate reported a bill
from committee but was unable to pass it because the sixty votes needed to block a
filibuster could not be rounded up. Global warming dropped off of the Congressional
decision agenda for the remainder of Obama's first term. The EPA then began action to use
its rule-making authority under the Clean Air Act to restrict greenhouse gas emissions as a
threat to the public health.
Should an emissions trading scheme to control greenhouse gas emissions be put in place
sometime in the future, most of its cost likely will be passed on to consumers in the form of
higher prices. That has been the case with the European trading system.
Compliance
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All public policies are intended to influence or control human behavior in some way and to
induce people to act in accordance with government- prescribed rules or goals, whether
reference is to policy on such diverse matters as interest rates, nighttime burglary, patents
and copyrights, open housing, agricultural production, or military recruitment. If
compliance with policy is not achieved, if people continue to act in undesired ways,
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if they do not take desired actions, or if they cease doing what is desired, to that extent
policy becomes ineffective or, at the extreme, a nullity. (Foreign policy also depends for its
effectiveness on compliance by the affected foreign countries and their officials.) To make
consideration of this problem more manageable, we focus primarily but not exclusively on
compliance with domestic economic policies.
Except perhaps for crime policies, political scientists have not given much attention to the
problem of compliance. This neglect may be caused partly by our traditional legalistic
approach to government, with the assumption that people have an absolute duty to obey the
law. Too, those whose aim is securing governmental action on public problems often lose
interest therein or shift their attention elsewhere once they secure the enactment of
legislation. Political scientists have certainly been far more interested in the legislative and
executive formulation and adoption of policy than in its administration, which is where
compliance enters the picture. A complete study of policymaking must cover not only the
events leading up to a decision on policy but also what is done to implement it and,
ultimately, whether people comply with it.
In this section, we examine some of the conditions affecting compliance and
noncompliance with policy, along with the role of administrative agencies in securing
compliance. Because empirical data are not plentiful, the discussion must be somewhat
tentative.
Causes of Compliance
Respect for authority, including authority as expressed in decisions by governmental
agencies, is substantial in our society. Contentions that Americans are a lawless people are
exaggerations and should not be permitted to obscure the favorable disposition of most
people toward compliance with most public policies. Respect for and deference to authority
are built into our psychological makeup by the process of socialization. Most of us are
taught from birth to respect the authority of parents, knowledge, status, the law, and
governmental officials, especially if these forms of authority are considered reasonable.
Consequently, we grow up generally believing it to be morally right and proper to obey the
law. Disobeying the law may produce feelings of guilt or shame. Prior conditioning and
force of habit thus contribute to policy compliance.
Compliance with policy may also be based on some form of reasoned, conscious
acceptance. Even some whose immediate self-interest conflicts with a policy may be
convinced that it is reasonable, necessary, or just. Most people undoubtedly would rather
not pay taxes, and many do try to avoid or evade their payment. But when people believe
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that tax laws are reasonable and just, or perhaps that taxation is necessary to provide
needed governmental services, such beliefs will in all likelihood contribute to compliance
with tax policy. Factors such as this and respect for authority clearly seem to contribute to
the high degree of compliance with the national income tax in the United States.
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In a study of police–citizen relationships in the Chicago area, Tom Tyler concluded that in
complying with the law, people were much influenced by “social values about what is right
and proper.” He explained:
People obey the law because they believe that it is proper to do so. They react to their
experiences by evaluating their justice or injustice, and in evaluating the justice of their
experiences, they consider factors unrelated to outcomes, such as whether they had a
chance to state their case and been treated with dignity and respect.
This runs counter to self-interest models of compliance behavior.
Another possible cause of compliance is the belief that a governmental decision or policy
should be obeyed because it is legitimate, in the sense that it is constitutional, or was made
by officials with proper authority to act, or that correct procedures were followed in its
development. People would be less inclined to accept judicial decisions as legitimate if the
courts utilized decisionmaking procedures akin to those of legislatures. Courts gain
legitimacy and acceptance for their decisions by acting as courts are supposed to act. Some
people in the South were willing to comply with the Supreme Court's 1954 school
desegregation decision because they considered it legitimate and within the Court's
competence, even though they disagreed with its substance.
Self-interest can be an important consideration in compliance under some circumstances.
Individuals and groups may directly benefit from accepting policy norms and standards.
Thus, farmers for decades complied with production limitations in the form of acreage
allotments, marketing quotas, and set-asides in order to qualify for price supports and
deficiency payments. Securities regulation is accepted by responsible members of the
securities business as a way of protecting themselves and the reputation of their business
against unethical practices by some wayward dealers. Businesses engage in industrialplant
modernization in order to receive investment tax credits. Compliance thus results because
private interests and policy prescriptions are harmonious, a fact sometimes ignored. That is,
compliance may yield monetary rewards. This arrangement, though, is not likely to occur
outside the economic-policy area.
Any legislation, such as a minimum-wage law or an occupational-safety law, has more
than simply supporters and opponents. Rather, many points of view will surround it,
ranging from strong support through indifference to intense opposition. A sizable
proportion of the population will often be indifferent or neutral toward the legislation, if
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indeed they feel affected by it at all. This group, given the general predisposition toward
obedience, would seem especially subject to the authority of the law. Here, in effect, the law
becomes a “self-fulfilling prophecy”; by its very existence, it operates to create a climate of
opinion conducive to compliance.
The possibility of punishment in the form of fines, jail sentences, and other penalties may
also contribute to compliance. “Classical deterrence theory assumes that individuals
respond to the severity, certainty, and celerity [speed]
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of punishment,” state political scientists Anne Schneider and Helen Ingram, “and in this
respect it implies that individuals are utility maximizers.” The threat or imposition of
sanctions alone, however, is not always sufficient, even though the likelihood of their use is
overestimated. “The strong disposition in this country to believe that any behavior can be
controlled by threatening punishment has filled American statute books with hundreds of
unenforced and unenforceable laws.” Experience with national prohibition, World War II
price and rationing controls, many Sunday “blue laws,” highway speed limits, and penalties
for using marijuana shows that the threat of punishment is not always sufficient to induce
general compliance with policies.
Although many people may comply with policies because they fear punishment, the main
function of sanctions is to reinforce and supplement other causes of compliance. Policies
depend greatly for their effectiveness upon voluntary or noncoerced compliance because
those responsible for implementation cannot effectively handle and apply sanctions in large
numbers of cases. Moreover, widespread penalization might not be politically acceptable.
The IRS would find itself at an impasse, for example, if several million people decided not
to file tax returns because the effectiveness of the income tax depends upon self-
administration and voluntary compliance. As it is, the IRS director has estimated that the
underreporting of income and the fabrication of deductions cost the Treasury $250 billion
annually. Audits of tax returns decreased in recent years because of cuts in the IRS
budget and its chariness in enforcement activity resulting from the 1998 reform
legislation. An opinion survey found that 76 percent of Americans believed that tax
cheating was unacceptable behavior, down from 87 percent in 1999. To counter a feared
epidemic in tax cheating, the IRS hired hundreds of tax-collection agents and examiners and
stepped up the frequency of taxpayer audits. Shifting course from a few years earlier, when
it complained about IRS abuses of taxpayers, the Senate Finance Committee now urged the
agency to crack down on tax cheats.
In many instances, sanctions are effective more because people desire to avoid being
stigmatized as lawbreakers than because they fear the possible penalties. In criminal
proceedings for antitrust violations, the fines levied usually have been quite nominal,
considering the violators' economic resources. Not until 1961 did a businessman actually
spend time in jail for an antitrust violation, although this punishment had been possible
since the Sherman Act was adopted in 1890. The real deterrent in these cases is probably the
adverse publicity that flows from the proceedings.
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In recent years, Antitrust Division officials have been successfully advocating harsher
penalties for antitrust violators, especially jail sentences, to encourage compliance.
Legislators and judges, however, remain somewhat reluctant to create or impose jail
sentences and other severe penalties on business people because of their social status and
because of the often diffuse and complex nature of such law violations as embezzlement
and the misuse of “insider information” in stock deals. In other situations, sanctions may be
more severe and certain and have a more powerful deterrent effect.
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Finally, acceptance of most policies seems to increase with the length of time they are in
effect. As time passes (and it always does) a once-controversial policy becomes more
familiar, part of the accepted state of things, a condition of doing business. Further, more
and more persons come under the policy who have no experience with the prepolicy
situation. Because “freedom is (in part) a state of mind, such men feel the restrictions to rest
more lightly upon them.”
Although at one time business interests found the Wagner Act of 1935 highly
objectionable, and the Taft-Hartley Act of 1947 was bitterly opposed by labor unions, today
these statutes have lost much of their controversial quality. They have become a fixed part
of the environment of labor–management relations, and businesses and labor unions have
“learned to live with them.” Predictably, environmental pollution-control policies will seem
less restrictive or intrusive in a decade or two than they do at present.
Causes of Noncompliance
Even to the most casual observer, it is readily apparent that not all persons affected by
public policies comply with them. Statistical information on reported violations is readily
obtainable, as in the Federal Bureau of Investigation's Uniform Crime Reports. In addition,
lots of law violations go undetected or unreported. Why do some people, or in some
situations many people, deviate from officially prescribed norms of behavior? As the
obverse of compliance, noncompliance may result when laws conflict too sharply with the
prevailing values, mores, and beliefs of the people generally or of particular groups. Many
of the extensive violations of national prohibition and wartime price and rationing controls
can be attributed in considerable measure to this cause, as may much of the noncompliance
in the South with the Supreme Court's school desegregation decisions and related policies.
In such instances, the general predisposition to obey the law is outweighed by strong
attachment to strongly held values and established practices.
It is not very useful, however, to ascribe noncompliance to a broad conflict between law
and morality. Those who proclaim that “you can't legislate morality” not only oversimplify
the situation but also ignore the fact that morality is frequently legislated with considerable
success. (Those who make this contention often cite national prohibition in its support.)
Failure to comply results when a law or set of laws conflicts with values or beliefs in a
particular time and situation. This law–value conflict must be stated with fair precision if it
is to have operational value in explaining noncompliance.
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Thus, quite a bit of noncompliance has confronted the Supreme Court's 1962 decision in
Engel v. Vitale that using officially required prayers, even those that were thought
nondenominational, in the public schools violated the First and Fourteenth Amendments'
prohibition of the establishment of religion. All efforts to legally circumvent this decision
have failed. The Supreme Court stirred the fire again in 2000 when, in a Texas case, it
upheld an appeals-court ruling that banned religious invocations at public high school
football games. In a very different area of human activity, opinion surveys
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indicate that tax evasion is commonest among persons who do not believe that the federal
tax system is fair in its effect.
The concept of selective disobedience of the law is closely related to the law–value
conflict. Some laws are thought to be less binding than others on the individual. Those
who strongly support and obey the statutes ordinarily labeled criminal laws sometimes
have a more relaxed or permissive attitude toward economic regulatory legislation and
laws on the conduct of public officials. Here one can aptly reflect on the behavior of Vice
President Spiro T. Agnew, a staunch advocate of “law and order,” who resigned his position
after pleading nolo contendere (following plea bargaining) to a charge of federal income-tax
evasion. Likewise, many businesspeople apparently believe that laws relating to banking
operations, insider stock trading, competitive trade practices, and environmental pollution
are not as compelling for individuals as laws prohibiting robbery, burglary, and
embezzlement. This attitude may be common partly because legislation controlling
economic activity developed later than criminal laws and has yet to gain the same moral
force.
Moreover, much economic legislation runs counter to the ideological belief in limited
nonintervention by government in the economy held by many people in business. They
regard it as “bad law.” Also, the same degree of social stigma usually is not attached to
violations of economic policies as to criminal law offenses. Sociologist Marshall B. Clinard
writes, “This selection of obedience to law rests upon the principle that what the person
may be doing is illegal, perhaps even unethical, but certainly not criminal.”
One's associates and group memberships may also contribute to noncompliance (or, under
other conditions, to compliance). Association with persons who hold ideas disrespectful of
law and government, who justify or rationalize violation of the law or who openly violate
the law may cause people to acquire deviant norms and values that dispose them to
noncompliance.
In a study of labor-relations policy, Professor Robert E. Lane found that the rate of law
violations varied with the community in which the firms studied were located. It was “fairly
conclusive” that one reason for these patterns of difference was the “difference in attitude
toward the law, the government, and the morality of illegality. Plant managers stated that
they followed community patterns of behavior in their labor-relations activities.”
Similarly, attorneys for some of the defendant executives in the great electrical-industry
price-fixing conspiracy late in the 1950s—which involved dozens of companies, including
some of the largest in the industry—attempted to explain and justify their actions, hoping to
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lessen their punishment, as being in accord with the “corporate way of life.” The scandals
that occurred in the savings and loan business in the 1980s and early 1990s indicate that
such attitudes persist.
The desire to make a fast buck, or something akin thereto, is often proposed as a cause of
noncompliance. This claim certainly seems applicable to many instances of fraud and
misrepresentation, such as short-weighting and passing one product off for another in retail
sales, promotion of shady land
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sales and investment schemes, failure to comply with minimum-wage laws, and price-
fixing agreements. (Price-fixing continues to be the most obvious and the commonest
violation of the Sherman Act.) It is really not possible, however, to determine how
widespread greed is as a motive for noncompliance. By itself it often seems insufficient as
an explanation.
If two companies have equal opportunities to profit by violating the law, and one violates
the law but the other does not, what is the explanation? One answer may be that companies
that are less profitable or in danger of failure are more likely to violate in an effort to
survive than are more financially secure firms. One should be careful, however, in
attributing noncompliance to pecuniary motives. Many violations of labor–management
relations policy stem from a desire to protect management's prerogatives, and
noncompliance with some industrial health and safety standards may rest on the conviction
that they are unnecessary or unworkable.
Noncompliance may also stem from such factors as ambiguity in the law, lack of clarity,
conflicting policy standards, or failure to adequately transmit policies to those affected by
them. Income-tax violations often arise from the ambiguity or complexity of provisions of
the Internal Revenue Code, which someone once described as a “sustained essay in
obscurity.” In other instances, persons or companies may believe that a practice is not
prohibited by law, only to find upon prosecution that it is. The explanation may be that the
frames of reference of businesspeople and public officials are different; thus, each
interprets the law differently.
Violations sometimes result from difficulty in complying with the law, even when its
meaning is understood. Insufficient time may be allowed for filing complicated forms or for
making required changes in patterns of action, as in installing pollution-control devices.
Sheer ignorance of laws or rules regulating conduct also cannot be discounted as a cause of
noncompliance. Though ignorance of the law may be no excuse, it does account for some
violations. In sum, noncompliance may stem from structural defects in the law and its
administration, and from ignorance and lack of understanding of the law, as well as from
behavior that is more consciously or deliberately deviant.
Administration and Compliance
The burden of securing compliance with public policies rests primarily with administrative
agencies; the courts play a lesser role. The broad purpose of many administrative
enforcement activities, such as conferences, persuasion, inspection, and prosecution, is to
secure compliance with policies rather than merely to punish violators. Conscious human
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behavior involves making choices among alternatives, deciding to do some things and not
others. For purposes of discussion, we can assume that there are essentially three ways in
which administrative agencies, or other governmental bodies that engage in implementing
public policy, can influence people to act in the desired ways, selecting behavioral
alternatives that result in compliance with policy. First, to achieve a desired result, agencies
can strive to shape, alter, or utilize the values people employ in
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making choices. Educational and persuasional activities illustrate this type of activity.
Second, agencies can seek to limit the acceptable choices available to people, as by attaching
penalties to undesired alternatives and rewards or benefits to desired alternatives. Third,
agencies can try to interpret and administer policies in ways designed to facilitate
compliance with their requirements. Thus, time limits for compliance were extended to give
automobile manufacturers more time to meet tailpipe emission standards. More than one of
these alternatives are normally used in seeking compliance with a policy.
Administrative agencies engage in many educational and persuasional activities intended
to convince those directly affected, and the public generally, that designated public policies
are reasonable, necessary, socially beneficial, or legitimate, in addition to informing them of
the existence and meaning of those policies. The effectiveness of public policies depends
considerably on the ability of agencies to promote understanding and consent, thereby
reducing violations and minimizing use of sanctions. This approach is in keeping with my
earlier comment on the importance of voluntary compliance.
When changes are made in the coverage and level of the federal minimumwage law, the
Department of Labor seeks to acquaint the public, and especially employers and employees,
about them and their implications by distributing explanatory bulletins, reference guides,
and posters; announcements through the news media; meetings with affected groups;
appearances at conventions; direct mailings; telephone calls; and the like. After the changes
become effective, press releases and mailed materials provide information on enforcement
activities and agency interpretations of the law. The Federal Deposit Insurance Corporation
likewise relies heavily on advice and warnings to banks, based on inspections, to get them
to bring their operations into accord with banking regulations. Formal proceedings are
initiated only when persuasion appears ineffective. The Nuclear Regulatory Commission
typically compiles a technicalassistance manual to assist the operators of nuclear-power
plants in complying with new regulations.
Agencies may also use propaganda appeals in support of compliance. (Propaganda is used
here not in a pejorative sense but rather to denote efforts to gain acceptance of policies by
identifying them with widely held values and beliefs.) Appeals to patriotism were used to
win support and acceptance of the military draft. Agricultural programs have been depicted
as necessary to ensure equality for agriculture and to help preserve the family farm as a
way of life. Antitrust programs have been described as necessary to maintain our system of
free competitive enterprise. The Forest Service utilizes Smokey Bear to tell us that “only you
can prevent forest fires.” Propaganda appeals are more emotional than rational. They can
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be viewed as attempts either to reduce the moral cost of adapting to a policy or to make
compliance desirable by attaching positive values to policies.
In administering policies, agencies may make modifications in policies or adopt practices
that will contribute to compliance. Revealed inequities in
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the law may be reduced or eliminated, conflicts in policy standards may be resolved, or
simplified procedures for compliance may be developed, such as simplified federal income-
tax forms for lower-income earners. Administrative personnel may develop knowledge and
skill in enforcing policy that enables them to reduce misunderstanding and antagonism.
Consultation and advice may be used to help those affected by laws come into compliance
without issuing citations.
Laws may be interpreted or applied to make them more compatible with the interests of
those affected. The administration of policy on oil-import controls by the Oil Import
Administration “was almost wholly in the interests of the petroleum industry.” They had
little cause for complaint. Several hundred of the health and safety “consensus” standards
initially issued by OSHA were later rescinded because of widespread complaints that they
were outmoded, trivial, or of little use in protecting against health and safety hazards.
OSHA hoped thereby to reduce the antagonism of the business community toward itself by
eliminating those standards.
Agencies will resort to sanctions when the sociological and psychological factors
supporting obedience and other available methods fail to produce compliance. Sanctions
are penalties or deprivations imposed on those who violate policy norms and are intended
to make undesired behavior patterns unattractive. They directly punish violators and serve
to deter others who might not comply if they saw violators go unpunished.
Sanctions can be imposed by either administrative agencies or the courts. Common forms
of judicial sanctions are fines, jail sentences, award of damages, and injunctions. However,
in most areas of public policy (crime policy is a major exception), administrative sanctions
are used much more frequently because of their greater immediacy, variety, and flexibility.
Among the sanctions that agencies may impose are threat of prosecution; imposition of
fines or pecuniary penalties that have the effect of fines, as by OSHA; unfavorable publicity;
revocation, annulment, modification, or suspension of, or refusal to renew, licenses;
summary seizure and destruction of goods; award of damages; issuance of cease-and-desist
orders; and denial of services or benefits.
To be most effective, the severity of sanctions must be geared to the violations against
which they are directed. If they are too severe, the agency may be reluctant to use them; if
they are too mild, they may have inadequate deterrent effect, as is the case with minimal
fines often imposed by national and state agencies for pollution violations. In many
instances, when fines are assessed, they are less than the economic benefits realized by the
violators. The Office of Education was handicapped in its early administration of Title I of
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the ESEA because the only sanction it had for state and local violations was to cut off funds
totally. Because of the adverse reaction this penalty would have caused, the agency was
politically reluctant to impose the penalty and chose not to do so. Agencies clearly need
appropriate and effective sanctions to help ensure compliance with policy.
Agencies may also seek to induce compliance by conferring positive benefits on compliers
and thereby bringing self-interest into support for compliance. This
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method can be referred to as the purchase of consent. Benefits may take such forms as
favorable publicity and recognition for nondiscrimination in hiring, tax credits for
industrial-plant modernization, and federal grants-in-aid for the support of state programs
of medical aid to the indigent that meet federal standards.
It is often difficult, however, to distinguish rewards from sanctions. Does an individual
comply with a policy to secure a benefit or to avoid losing it? Whatever the motives of
persons seeking benefits, the government does use rewards extensively to gain compliance
with policy. In many situations they are much more acceptable politically than would be a
clear-cut prohibition or requirement of some action with penalties for noncompliance.
Imagine the reaction if rather than using tax credits, businesses were required to modernize
their plants or else be subject to fines and other penalties.
Clearly, then, compliance—or noncompliance—with public policies is a function of many
factors. It is a complex topic that needs more explicit attention from policy analysts because
of its importance for the implementation and effectiveness of public policies.
For Further Exploration
▮ http://www.gpo.gov This site contains links to issues of the Federal Register published since 1995, the Code
of Federal Regulations, public laws, and administrative decisions.
▮ http://www.osha.gov/index.html The Occupational Safety & Health Administration's (OSHA) official website provides
information in relation to workplace health and safety issues, and a collection of
statistical data related to topics such as inspections and workplace safety.
▮ http://www.whitehouse.gov/ This site provides numerous links related to the executive branch, including a link to
presidential press briefings, radio addresses, and executive orders issued by the
President.
Test Your Knowledge
Log on to the student companion website at
login.cengage.com
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to access tutorial quizzes, chapter outlines, crossword puzzles, and glossary flashcards that
review chapter concepts and terminology.
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Suggested Readings
Cornelius M. Kerwin and Scott R. Furlong, Rulemaking: How Government Agencies Write
Law and Make Policy, 4th ed. (Washington, DC: CQ Press, 2010). Thorough, readable, and
replete with examples, Their book discusses the politics and process of federal rule-making.
Denise Scheberle, Federalism and Environmental Policy, 2nd ed. (Washington, DC:
Georgetown University Press, 2004). An analysis of federal-state relations and what shapes
them in some areas of environmental policy.
Dennis D. Riley and Bryan E. Brophy-Baerman, Bureaucracy and the Policy Process
(Lanham, MD: Rowman and Littlefield, 2006). This text provides a thorough, in-depth, and
readable look at the national bureaucracy's role in policymaking.
Francis E. Rourke, Bureaucracy, Politics and Public Policy, 3rd ed. (Boston, MA: Little Brown,
1984). This volume retains its usefulness as an examination of administrative agencies and
their power, politics, and role in policy formation.
Ken Godwin, Scott H. Ainsworth, and Erik Godwin, Lobbying and Policymaking
(Washington, DC: CQ Press, 2013). The authors provide an excellent empirical and
theoretically guided look at lobbying, which is expecially valuable on regulatory agencies.
Kenneth J. Meier and John Bohte, Politics and the Bureaucracy: Policymaking in the Fourth
Branch of Government, 5th ed. (New York: Harcourt Brace, 2006). A comprehensive and
systematic treatment of the national bureaucracy as a policymaking organization, this book
deals with structure power, politics, and policy.
Paul C. Light, A Government Ill Executed (Cambridge, MA: Harvard University Press, 2008).
A master student of the federal bureaucracy, drawing on Federalist Paper #70, examines its
decline and what can be done about it.
Philip B. Heymann, Living the Policy Process (New York: Oxford University Press, 2008). An
outstanding treatment, utilizing case studies and more, of policymaking and
implementation.
Notes
1. Peter C. Bishop and Augustus J. Jones Jr., “Implementing the Americans with Disabilities Act of 1990: Assessing the Variables of Success,” Public Administration Review, Vol. 53 (March-April 1993), pp. 121-128.
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2. Cf. Randall B. Ripley and Grace A. Franklin, Policy Implementation and Bureaucracy, 2nd ed. (Chicago, IL: Dorsey, 1986), pp. 4-5.
3. Charles S. Bullock III and Charles M. Lamb, eds., Implementation of Civil Rights (Monterey, CA: Brooks/Cole, 1984), p. 5.
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4. Those political scientists interested in the government regulation of business had long been concerned with the implementation because of its policy consequences. See Emmette S. Redford, The Administration of National Economic Control (New York: Macmillan, 1952); and Marver H. Bernstein, Regulatory Business by Independent Commission (Princeton, NJ: Princeton University Press, 1955).
5. Jeffrey L. Pressman and Aaron Wildavsky, Implementation (Berkeley, CA: University of California Press, 1973). The book's subtitle is “How Great Expectations in Washington Are Dashed in Oakland: Or, Why It Is Amazing that Federal Programs Work at All, This Being a Saga of the Economic Development Administration as Told by Two Sympathetic Observers Who Seek to Build Morals on a Foundation of Ruined Hopes.”
6. Representative studies of implementation include Eugene Bardach, The Implementation Game: What Happens after a Bill Becomes Law? (Cambridge, MA: MIT Press, 1977); David A. Mazmanian and Paul A. Sabatier, Implementation and Public Policy (Chicago: Scott, Foresman, 1983); Malcolm L. Goggin, Policy Design and the Politics of Implementation (Knoxville, TN: University of Tennessee Press, 1987); and Bradley C. Canon and Charles A. Johnson, Judicial Policies: Implementation and Impact, 2nd ed. (Washington, DC: CQ Press, 1999).
7. Paul A. Sabatier, “Top-Down and Bottom-Up Models of Policy Implementation: A Critical Analysis and Suggested Synthesis,” Journal of Public Policy, Vol. 6 (1986), pp. 21-48.
8. Denise Scheberle, Federalism and Environmental Policy, 2nd ed. (Washington, DC: Georgetown University Press, 2004), well illustrates this.
9. Paul Berman, “The Study of Macro- and Micro-Implementation,” Public Policy, Vol. 26 (Spring 1978), pp. 157-184.
10. Barry G. Rabe, “Power of the States: The Promise and Pitfalls of Decentralization,” in Norman J. Vig and Michael E. Kraft, eds., Environmental Policy, 6th ed. (Washington, DC: CQ Press, 2006), pp. 49-50.
11. This account relies on Michael Kirst and Richard Jong, “The Utility of a Longitudinal Approach in Assessing Implementation: A Thirteen-Year View of Title I, ESEA,” in Walter K. Williams et al., eds., Studying Implementation (Chatham, NJ: Chatham House, 1982), chap. 6; and June A. O'Neil and Margaret C. Simms, “Education,” in John L. Palmer and Isabel C. Sawhill, eds., The Reagan Experiment (Washington, DC: Urban Institute, 1982), Chap. 11.
12. Andrew Rudalevige, “The Politics of No Child Left Behind,” Education Next, Vol. 3 (Fall 2003), pp. 62-69.
13. Brian Friel, “Damage Control for ‘No Child Left Behind,’ ” National Journal, Vol. 36 (June 5, 2004), pp. 1786-1787; and Chester E. Finn Jr. and Frederick M. Hess, “On Leaving No Child Behind,” The Public Interest, No. 157 (Fall 2004), pp. 35-56.
14. Bryan Shelly, “Rebels and Their Cause: State Resistance to No Child Left Behind,” Publius, Vol. 38 (Summer 2008), pp. 444-468.
15. Scott Franklin Abernathy, No Child Left Behind and the Public Schools (Ann Arbor, MI: University of Michigan Press, 2007), esp. Chaps. 1, 2; and The New York Times (June 12, 2008), pp. Al, A21.
16. Charles T. Goodsell, The Case for Bureaucracy, 4th ed. (Chatham, NJ: Chatham House, 2003), Chap. 1.
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17. See Harold Lasswell, Politics: Who Gets What, When, and How (New York: McGraw Hill, 1936).
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18. Frank Goodnow, Politics and Administration (New York: Russell and Russell, 1900).
19. Martha Derthick, Agency under Stress: The Social Security Administration in American Government (Washington, DC: Brookings Institution, 1990); and Susan Gluck Mezey, “Policy-making by the Federal Judiciary: The Effects of Judicial Review on the Social Security Disability Program,” Policy Studies Journal, Vol. 14 (March 1986), pp. 343-355.
20. George C. Edwards III and Stephen J. Wayne, Presidential Leadership, 6th ed. (Belmont, CA: Wadsworth, 2003), pp. 287-288.
21. See James E. Anderson, “Presidential Management of the Bureaucracy and the Johnson Presidency: A Preliminary Exploration,” Congress & the Presidency, Vol. 1 (Autumn 1984), pp. 137-164; and David M. Welborn, Regulation in the White House: The Johnson Presidency (Austin, TX: University of Texas Press, 1986).
22. Peter Baker, “For Obama, a Tricky Balancing Act in Enforcing a Law He Viewed as Invalid,” The New York Times (March 29, 2013), p. A17.
23. Robert Diclerico, The Contemporary American President (Boston, MA: Pearson, 2013), pp. 221-233.
24. Jonathan Weisman, “Congress and Country Fired Up after Hearings on IRS Abuses,” Congressional Quarterly Weekly Report, Vol. 55 (October 4, 1997), pp. 2379-2384.
25. Wall Street Journal (December 9, 1999), p. A28; The New York Times (August 15, 2000), p. 1.
26. The New York Times (March 31, 1989), p. 8.
27. Louis Fisher, Constitutional Conflicts between Congress and the President, 4th ed. (Lawrence, KS: University Press of Kansas, 1997), p. 157.
28. Leroy N. Reiselbach, Congressional Politics: Evolving Legislative System, 2nd ed. (Boulder, CO: Westview, 1995), pp. 400-405.
29. David T. Stanley and Marjorie Girth, Bankruptcy: Problems, Process, Reform (Washington, DC: Brookings Institution, 1971), p. 172.
30. Adarand Constructors v. Pena (1995). Reported in The New York Times (June 13, 1995), p. A8.
31. See Samuel P. Huntington, “The Marasmus of the ICC: The Commission, the Railroads, and the Public Interest,” Yale Law Journal, LXI (1952), pp. 470-509.
32. This discussion draws on Harold Seidman, Politics, Position, and Power, 5th ed. (New York: Oxford University Press, 1999), pp. 197-202. See also General Accounting Office, Federal Advisory Committee Act (Washington, DC: USGAO, October 1988).
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33. Kay Lehman Scholzman and John T. Tierney, Organized Interests and American Democracy (New York: Harper & Row, 1986), p. 334.
34. Sheila Jasanoff, The Fifth Branch: Science Advisers as Policy-makers (Cambridge, MA: Harvard University Press, 1990), pp. 65-66.
35. James W. Davis Jr. and Kenneth M. Dolbeare, Little Groups of Neighbors: The Selective Service System (Chicago: Markham, 1968).
36. CQ Weekly, Vol. 59 (February 3, 2001), pp. 283-285; and Vol. 60 (November 2, 2002), pp. 2861-2863.
37. Seidman, op. cit., pp. 12-13.
38. Paul C. Light, Thickening Government (Washington, DC: Brookings Institution, 1995).
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39. This account draws on Charles Noble, Liberalism at Work: The Rise and Fall of OSHA (Philadelphia, PA: Temple University Press, 1986), pp. 89-95.
40. This discussion draws some ideas from my Politics and the Economy (Boston, MA: Little, Brown, 1966), pp. 86- 90.
41. Wall Street Journal (August 10, 1989), p. 1; and The New York Times (August 13, 1993), p. 1.
42. Cf. Matthew Holden Jr., “ ‘Imperialism’ in Bureaucracy,” American Political Science Review, LX (December 1966), pp. 943-951. This is a seminal article.
43. Richard Tobin, The Expendable Future (Durham, NC: Duke University Press, 1990), p. 98.
44. Interview with the author.
45. Holden, op. cit., p. 944.
46. Daniel McCool, Command of the Waters (Berkeley, CA: University of California Press, 1987), Chap. 2.
47. This discussion, and that in the first part of the next section, draws on Francis E. Rourke, Bureaucracy, Politics and Public Policy, 3rd ed. (Boston, MA: Little, Brown, 1984), Chaps. 4-5.
48. Ibid., pp. 106-107.
49. Ibid., p. 108.
50. On the separation of the ability to decide from the authority to decide in organizations, see Victor Thompson, Modern Organizations (New York: Knopf, 1961). See also James G. March, A Primer of Decision Making (New York: Free Press, 1994).
51. Theodore C. Sorensen, Kennedy (New York: Harper & Row, 1965), Chap. 25. On secrecy in administration generally, see Harold L. Wilensky, Organizational Intelligence (New York: Basic Books, 1967), Chaps. 3 and 7; and Symposium on “The Freedom of Information Act,” Public Administration Review, XXXIX (July-August 1979), pp. 310- 332.
52. See James A. Nathan and James K. Oliver, Foreign Policy Making and the American Political System, 3rd ed. (Baltimore, MD: Johns Hopkins University Press, 1994).
53. Rourke, op. cit., p. 108.
54. This story is told well by Richard E. Neustadt and Harvey V. Finebert, The Swine Flu Affair (Washington, DC: U.S. Department of Health, Education, and Welfare, 1978).
55. Stephanie Ann Lenway, The Politics of U.S. International Trade (Marshfield, MA: Pitman, 1985).
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56. Florence Heffron, with Neil McFreely, The Administrative Regulatory Process (New York: Longman, 1983), pp. 226-235.
57. Cornelius M. Kerwin, Rule-Making: How Government Agencies Write Law and Make Policy, 3rd ed. (Washington, DC: CQ Press, 2003), pp. 89-90.
58. Heffron, op. cit., p. 239.
59. Kerwin, op. cit., pp. 63-67.
60. Ibid., p. 111.
61. Heffron, op. cit., pp. 227-230.
62. Clayton R. Koppes, “Public Water, Private Land: Origins of the Acreage Limitation Controversy,” Pacific Historical Review, Vol. 47 (November 1978), pp. 607-636.
63. Congressional Record, Vol. 149 (January 7, 2003), pp. 551-552; and Doug French, “Water Is Gold,” Liberty Watch Magazine (November 8, 2007). www.lewrockwell.com/french/french64.html.
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64. A cease-and-desist order is an agency's civil directive to stop engaging in a practice held to be in violation of the law. Agencies such as the Federal Trade Commission and the NLRB are authorized to issue such orders.
65. Chuck McCutcheon, “Nuclear Waste Issue as Hot as Ever Despite Senate OK of Nevada Site,” CQ Weekly, Vol. 60 (July 13, 2002), pp. 1880-1881.
66. Matthew L. Wald, “Future Dim for Nuclear Waste Repository,” The New York Times (March 6, 2009), p. A17.
67. This discussion draws on Claudia Copeland, “Clean Water Act and Total Maximum Daily Loads (TMDLs) of Pollutants” (Washington, DC: Congressional Research Service, August 25, 2008).
68. Mark R. Powell, Science at EPA (Washington, DC: Resources for the Future, 1999), pp. 334-335.
69. Federal Register, Vol. 68 (March 19, 2003), p. 13608.
70. See Oliver A. Houck, The Clean Water Act TMDL Program: Law, Policy, and Implementation, 2nd ed. (Washington, DC: Island Press, 2002).
71. Walter A. Rosenbaum, Environmental Politics and Policy, 7th ed. (Washington, DC: CQ Press, 2008), p. 204.
72. James P. Lester, ed., Environmental Politics and Policy: Theories and Evidence, 2nd ed. (Durham, NC: Duke University Press, 1995), Chap. 3.
73. “Smokey Bear at 50: Still Going Strong,” National Woodlands, Vol. 17 (April 1994), pp. 16-19.
74. This paragraph draws on Ann Schneider and Helen Ingram, “Behavioral Assumptions of Policy Tools,” Journal of Politics, Vol. 52 (May 1990), pp. 510-529. See also their Policy Design for Democracy (Lawrence, KS: University Press of Kansas, 1997), Chap. 4.
75 Richard H. Thaler and Cass R. Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness (New Haven, CT: Yale University Press, 2008).
76. Emmette A. Redford, The Administration of National Economic Control (New York: Macmillan, 1952), p. 104.
77. Stephen Breyer, Regulation and Its Reform (Cambridge, MA: Harvard University Press, 1982), pp. 90-95.
78. Donald K. Kettle, Sharing Power: Governance and Private Markets (Washington, DC: Brookings Institution, 1993), Chap. 3.
79. John David Skrentny, The Ironies of Affirmative Action: Politics, Culture, and Justice in America (Chicago, IL: University of Chicago Press, 1996), pp. 133-134.
80. Congressional Budget Office, Contractors’ Support of U.S. Operations in Iraq (Washington, DC: Government Printing Office, August 2008).
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81. Kenneth J. Meier, The Politics of Sin: Drugs, Alcohol, and Public Policy (Armonk, NY: M.E. Sharpe, 1994), Chap. 5.
82. Daniel P. Franklin, Making Ends Meet: Congress Budgeting in the Age of Deficits (Washington, DC: Congressional Quarterly Press, 1993), p. 23.
83. Charles Schultze, The Public Use of Private Interests (Washington, DC: Brookings Institution, 1977).
84. Paul R. McDaniel, “Tax Expenditures as Tools of Government Action,” in Lester M. Salamon, ed., Beyond Privatization: The Tools of Government Action (Washington, DC: Urban Institute, 1989), Chap. 6.
85. Christopher Howard, “Tax Expenditures,” in Lester M. Salamon, ed., The Tools of Government (New York: Oxford University Press, 2002), Chap. 13.
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