Seeking Authority Rather Than Authoritarians

I’m very happy to comment on my friend Philip Howard’s recent article “Letting Leaders Lead,” based on his new book Everyday Freedom. His bottom line conclusions are ones that I have been emphasizing in my work on bureaucracy and effective government over the years, only stated in a somewhat different language. 

Unfortunately, that language is likely to be misunderstood, and to the extent that is in fact properly understood, will engender hostile responses on both the left and right. Nonetheless, a hostile response would be better than none at all, which is a big risk today in a political environment preoccupied with culture wars and partisanship.

To put Howard’s fundamental argument in simple terms, he is saying that elected representatives in modern democracies need to delegate more discretionary authority to lower-level bureaucrats, who will be empowered to use their own best (and hopefully, expert) judgment to make decisions. Because publics in modern liberal democracies, and particularly in the United States, do not trust government officials, they typically seek to encumber them with thousands of detailed ex ante rules constraining their discretion, or else subject them to voluminous ex post procedures that allow second-guessing of past decisions. Howard argues that these procedures should not be eliminated, but cut back and moderated.___STEADY_PAYWALL___

There are numerous examples of detailed rules displacing human judgment throughout government. Federal procurement, for example, is subject to the Federal Acquisitions Regulations (FAR), which amount to hundreds of pages of guidance on how procurement officers in federal agencies have to approach any purchase of goods or services. They are far more detailed than the rules typically applied to procurement in a corporate setting; the FAR specifies requirements for layers of necessary approvals before RFPs can be opened, bidding by small, minority, and female-owned businesses, rights of appeal by losing bidders, and the like. It is the FAR that drives up the costs and slows the speed of government procurement. An RFP for procurement of year-end holiday cakes put out in late summer of 1990 as U.S. troops were headed to the Persian Gulf was not bid upon until the following summer, after they had successfully ousted Saddam Hussein from Kuwait and were on their way home. 

Why do the FAR and similar procedural morasses exist? At various points there were genuine scandals in procurement, leading Congress to demand that discretionary authority be limited by extensive ex ante rules. The competitive environment of Congress does not allow legislators to recognize that a tradeoff exists between transparency, scrutiny, and accountability, on the one hand, and the speed, cost and effectiveness of decision-making on the other. This tradeoff is one that private sector leaders confront all the time. But they, unlike their public sector counterparts, have to worry about bottom lines as well as procedural compliance. In government, this tradeoff in considered only in emergency situations like Pennsylvania Gov. Josh Shapiro’s rebuilding of I-95 in two weeks, mentioned by Howard, which was accomplished through the suspension of the myriad of permitting rules that encumber any U.S. infrastructure project.

I’m afraid that Philip Howard’s argument will not find favor on either the Left or Right. Nicholas Bagley, a law professor who had been chief legal advisor to Michigan Governor Gretchen Widmer, recently wrote an article (featured in an interview with New York Times columnist Ezra Klein) arguing that liberals wanted to use government to do more things, but undermined themselves by wrapping state action in so many procedures that they couldn’t accomplish their own goals. Left-of-center liberals tend to believe that legitimacy comes from procedural correctness rather than outcomes, whereas democratic publics focus on the latter. They want I-95 fixed for their morning commutes and don’t care about whether all the environmental impact assessments have been completed.

On the right, the situation is a bit more complicated. Many conservatives would be instinctively hostile to Howard’s agenda of granting more authority to bureaucrats. There has been a longstanding conservative critique of the administrative state, out-of-control regulations, and the “unaccountable bureaucrats” who allegedly exercise tyrannical control over citizens. They accuse bureaucrats of exceeding their legislative mandates and making up rules that suit their own left-wing preferences. This then leads this group of conservatives to demand that bureaucrats be controlled by strictly defined legislative mandates and by the courts. It is very likely that the current conservative Supreme Court will overturn the 1984 Chevron Deference decision this term, and return that discretionary authority from the bureaucracy to the courts and Congress.

On the other hand, another group of conservatives on the MAGA right would embrace greater administrative discretion. The Heritage Foundation’s Project 2025 envisions a right-wing takeover of the federal government, but it is not at all clear that they want to dial back the bureaucracy’s powers, as much as use it for their own purposes. The same hostility to excessive proceduralism shades into a demand for outright dictatorship in parts of the MAGA right. As Ohio Senator J. D. Vance put it:

I think that what Trump should do, like if I was giving him one piece of advice, fire every single mid-level bureaucrat, every civil servant in the administrative state, replace them with our people, and when the courts, because you will get taken to court, and then when the courts stop you, stand before the country like Andrew Jackson did and say the Chief Justice has made his ruling, now let him enforce it…

So I like Philip Howard’s basic argument a great deal. We have too many procedures, and I think that ordinary government officials should be allowed greater authority to make decisions based on informed, professional judgment. Good government has long been based on a substantial degree of bureaucratic autonomy.

The problem is that our current politics makes this agenda a dead letter. Imagine the scene at this summer’s Republican National Convention. Vivek Ramaswamy will get up and say, “If we are elected, we will fire three-quarters of all bureaucrats.” Then Trump will get up and say, “I said in 2016 that ‘I alone can fix it.’ When you elect me, you will be giving me the authority to fix our country, and no court, bureaucrat, or media organization will be allowed to stand in my way.” He will be arguing for greater administrative authority from the very top. He will sound a bit like Philip Howard, but will use the argument for ends that Philip never in a million years intended. And the Democrats, hearing this, will distance themselves from any position that would seemingly promote greater authority on the part of a Trumpist administration. They will understandably double down on procedural checks and balances to protect the country from a MAGA dictatorship. 

Philip’s argument is an important one that needs to be made. I just hope that people will engage what he has actually said, rather than a caricatured version of it. It should not be appropriated by the MAGA right, nor rejected outright by progressives. Getting people to listen and think about these ideas is the first challenge to be overcome.

Francis Fukuyama is chairman of the editorial board of American Purpose and Olivier Nomellini Senior Fellow and director of the Ford Dorsey Master’s in International Policy program at Stanford University’s Freeman Spogli Institute for International Studies.