Mortal Bureaucracy
A Libertarian Approach to Reengineering Government
by Paul Hager

Big Government Reengineers Itself

In the 1992 Presidential campaign, there was a great deal of discussion about "fixing government." No doubt this discussion was prompted by the view, widespread among Americans today, that the federal government doesn't work very well. Candidate H. Ross Perot touted his business experience and likened the federal government to a stalled car. If elected President, said Mr. Perot, he would get under the hood, fix that car, and get it back on the road. Not to be outdone by the folksy Mr. Perot, candidate Clinton and his policy wonks appropriated the language of modern business and management theory and spoke about applying the methods of Total Quality Management (TQM) and Business Process Reengineering (BPR) to government.

In 1993, now President Clinton commissioned Vice-President Gore to conduct a study of how to reengineer government. This produced the National Performance Review (NPR). Using the philosophy of TQM and BPR, the NPR called for making the federal government "entrepreneurial" and more customer-oriented. The NPR called for a "customer service contract" in which the federal government would be more efficient and responsive to "customers". Although the NPR states that the term "customers" is not the same as "citizens", as a practical matter the two terms are equivalent. For example, if you pay income taxes you are a "customer" of the IRS.

The NPR makes a number of revealing admissions. For example, it notes that in the previous fiscal year, the federal government had spent $25 billion on welfare (for the poor), $27 billion on food stamps, and $13 billion for public housing -- yet more Americans fall into poverty each year. Even more revealing is the statement that $12 billion was spent on the drug war yet drug use continues to increase. The magic bullet for ameliorating these problems is TQM. In essence, the NPR concludes that the federal government should operate like a business and apply modern business practices to its day-to-day activities. That this is the conclusion of the NPR should come as no surprise -- it was foreordained by the assumptions that drove it.

Nowhere in the NPR is there a serious discussion of the possibility that the federal government may be responsible in large part for the problems it is trying to solve. Applying a destructive policy more efficiently will only exacerbate the harm that is being done. There is also the matter of describing citizens as customers -- as consumers of government services. The idea that we are "customers" of the federal government is ludicrous on its face. Being a "customer" of the IRS is akin to being a "customer" of an armed robber.

If, for the sake of argument, we don't question any of the premises behind the NPR, it still remains flawed in its own terms. In order to explain why this is so, a little history is in order.

Enough! Go to, The Solution: Mortal Bureaucracy

A Little History About Quality Management

Around 1950, a middle-aged expert in statistical quality control named W. Edwards Deming presented seminars for businessmen in post-war Japan. Deming had been a consultant to Douglas McArthur during the occupation and was now advising the Japanese how they might rebuild their war-ravaged industry and become a world economic power. The distillation of Deming's prescription for business was to focus on quality and have the customer drive the process. Deming told the Japanese that as they rebuilt their industry, they could apply sound principles of quality management, something that American businesses were failing to do. In short order, said Deming, Japanese products would capture world markets and American companies would eventually beg the U.S. government to erect trade barriers to protect them from Japanese competition.

Deming's ideas found fertile ground in Japan, even as they were completely ignored in the United States. Of course, we know the end of the story: "made in Japan" went from being a joke in the 1950s to being synonymous with quality today and American businesses did, indeed, beg the U.S. government to protect them from the Japanese who, by the 1980s, had captured world and domestic U.S. markets. Deming was rediscovered in America and his ideas have fueled a renaissance in American business.

Enough! Go to, The Solution: Mortal Bureaucracy

The Problem Stated

It is demonstrably true that employing the methods espoused by Deming and others can improve productivity and quality in an organization, even a government bureaucracy. However, in the private sector there is always the market acting to reward those companies that do the best job of improving quality and customer satisfaction and punishing those that do not. Government bureaucracies, on the other hand, are inherently monopolistic and largely isolated from the consequences of poor performance. The NPR recognizes this problem but dismisses it by claiming that internal competition, where departments within a bureaucracy set performance goals and then strive to continually better them, will magically take the place of market forces. The closest the NPR comes to providing a "stick" to punish poor performance is to recommend a line-item veto for the President.

It has been nearly 3 years since the NPR report was published. How well is it working? It is instructive to look at one of the recommendations it made. The NPR called for the elimination of the Bureau of Alcohol, Tobacco, and Firearms (BATF). More recently, prominent Republicans in Congress -- notable among them, Senator Arlen Specter -- have called for the elimination of the BATF. With both the Clinton Administration and the Republican Congress largely in agreement it should have been easy to kill this particular bureaucracy, right?

Wrong. The BATF is alive and well and still making headlines. In early May of this year, acting on information supplied by one of their ubiquitous informants, the BATF dispatched "more than a dozen" heavily armed agents to a home in suburban St. Charles, Missouri. They entered in typical BATF fashion: breaking down the door in the dead of night. After holding the family of four at gunpoint for an hour while their home was ransacked, the agents retreated when it became clear that yet another BATF informant had proven to be somewhat less than reliable. Not only were no taxable firearms found (the supposed purpose of the BATF is only to enforce excise taxes on certain firearms), the family didn't even own a B-B gun. In the business world this would NOT be considered good customer relations.

If an organization that both the Congress and the President agree should die continues not only to exist but to prosper then something is desperately wrong. It is not apparent that if the President had the line-item veto it would have made one iota of difference.

The goal of the line-item veto is certainly laudable: to make it easier to kill programs by allowing the President to unbundle them from other legislation that makes them politically "veto proof". Given that many in Congress support the line-item veto, it amounts to a plea to "stop me before I legislate again."

Whatever the merits of the line-item veto, it has two very serious problems. The first is that it further unbalances the legislative and executive branches of the federal government. Essentially, Congress is surrendering some of its power to the President. It is very dangerous to tamper with the system of checks and balances, particularly when it leads to further concentration of power in the hands of the executive. A second problem is that killing a program takes an affirmative act by the President. Presidents, like members of Congress, naturally like to create programs, not destroy them. Moreover, each program on the chopping block will have a dedicated constituency. In general, elected officials (and this includes Presidents) would rather avoid alienating a powerful minority that wants a program to continue, knowing that what they lack in numbers they more than make up for in intensity and organization come election day.

What all of this boils down to is that proposals by the established politicians to "reengineer government" will never accomplish real change. Government distorts markets, it doesn't respond to them, and no amount of hortatory language about quality management is going to change that.

Enough! Go to, The Solution: Mortal Bureaucracy

A Look At The Original Engineering

Reengineering of government is definitely called for. But it should be consistent with the original engineering of the system. The Declaration of Independence succinctly states the primary role of all government and it behooves us to refresh our memories before we proceed.

WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness -- That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed...
Governments, says the Declaration of Independence, exist to protect or "secure" the fundamental rights of their citizens, not to make them contented consumers of government services.

The framers of the Constitution, many of whom were also signatories of the Declaration of Independence, wanted to "secure the blessings of liberty" and "form a more perfect union". In order to do this they created a federal republic, choosing that system as best for self-government.

As students of history, the framers also knew that all previous attempts at self-government had ultimately failed, almost always because they degenerated into autocracy. Failure seemed to follow a basic pattern: power would slowly accrete to the central government and become increasingly concentrated; a real or perceived threat would arise and citizens would entrust that power to a strong man or junta; once the citizens surrendered the power, they never regained it. This pattern possessed an almost Newtonian inevitability.

In order to break the pattern, the framers came up with an engineering solution which embodied fail-safe mechanisms based upon dynamic feedback, or in 18th century parlance, "checks and balances." In practice, this meant establishing a central government in which delegated powers were explicitly enumerated and any not so enumerated were reserved to the states or the people. The power of the central government was divided among 3 separate institutions. One of those institutions, Congress, was further divided into two pieces, one directly elected by the people (the House of Representatives) and the other selected by state legislatures (the Senate). Thus, the states acted as a check on the central government; the House and Senate checked each other, while together, as Congress, they checked the executive, which in turn checked Congress. The federal judiciary, with the doctrine of judicial review established, became a final check on both Congress and the executive.

This simple, yet elegant piece of engineering has served the citizens of the United States well for over 200 years. Unfortunately, over that span, a number of components of the original design have been jettisoned and the system today is much more centralized and much less robust. Moreover, nothing in the original design took into account today's huge bureaucracies to which legislative power has been delegated. Federal agencies promulgate regulations which have the force of law -- and while accountable in theory, in practice these agencies function as laws unto themselves. This amounts to legislation without representation, because no one elected the bureaucrats who create and administer the regulations and there is no way to remove them from office.

We know that competition in the private sector is fairly efficient at culling unproductive businesses, but we also know there is no reliable mechanism for killing bureaucracies that have outlived their usefulness. In the words of Ronald Reagan, government bureaucracies are "the closet thing to immortality on earth." Any entity that is immortal, by definition, cannot die. The solution, therefore, is to render government bureaucracies mortal.

The Solution: Mortal Bureaucracy

Mortality will be achieved by making ALL federal government activities (laws, enabling legislation, etc.) subject to a 7-year "sunset" provision. The idea of "sunsetting" is to have a law automatically lapse or come up for renewal after a set amount of time. It is not particularly revolutionary: from time to time a sunset provision is inserted into federal legislation. What separates this "Mortal Bureaucracy" version from normal sunsetting is the idea of applying it across the board, along with an added kicker: after 7 years a super-majority (2/3 or 3/5) of both houses of Congress would be required to sustain a law/program. This would have the effect of permitting a dedicated minority in either house to kill ANY program. This exactly reverses the current situation where a dedicated minority can keep a program alive essentially forever.

This is an engineering solution in the spirit of the original design because it does not involve one branch of government ceding power to another (as is the case with the line-item veto) and because, in operation, it will tend to strip away the power the central government has slowly acquired over multiple generations. Mortal Bureaucracy does not propose to eliminate any particular program: it merely requires that each federal program will be subject to a speedy death after 7 years. For every 7 year period thereafter, a given program will come up for review/ratification. Practically speaking, only those programs that have widespread support will continue; the rest will die.

In order to bring Mortal Bureaucracy into being, a constitutional amendment would be required. Existing laws and agencies would become subject to the 7 year sunset via a phase-in process: in year 1, 1/7 of the laws/agencies would be given an expiration date 7 years in the future, in year 2 another 1/7, in year 3 another 1/7, and so on. This would allow Congress to engage in an orderly process of evaluating programs without being faced with a massive surge of expirations in one year.

Clearly, anyone who believes that a strong central government, with broad power to regulate every facet of the lives of American citizens, is a good thing will be horrified by the idea of Mortal Bureaucracy. However, the rest of us -- and I include principled moderates as well as libertarians -- will have a way of freeing ourselves from the unelected bureaucrats who either represent narrow constituencies or, worse, only themselves.

Some Additional Considerations

In proposing Mortal Bureaucracy, I've tried to follow the KISS principle: "Keep It Simple, Stupid!" However, there may be a few refinements that should be considered. In the following I will lay out some questions posed by Mortal Bureaucracy and some possible answers.

  1. What should be the duration before a "dead" bureaucracy may be resurrected? My idea is that any similar law or program must wait either 1 year or until the next session of Congress -- whichever is longer -- before it may be introduced to "resurrect" a bureaucracy. After a year has passed, most of the original bureaucrats will have either been moved to another government agency or found work in the private sector, so that resurrecting the bureaucracy will necessitate its starting over from scratch.
  2. Would Mortal Bureaucracy promote more governmental experimentation? Mortal Bureaucracy doesn't address what new laws might be passed or what new programs might be created; it merely states that they die after 7 years without the super-majority sustaining vote. Experimentation is not ipso facto a bad thing, so long as it operates within constitutionally established limits. The purpose of Mortal Bureaucracy is to make it easier to eliminate unnecessary and/or unconstitutional laws/programs once they've been put in place.
  3. Can't a program already be eliminated if 41 Senators filibuster its reauthorization? Theoretically, the current system requires a 3/5 majority in the Senate to sustain existing programs during each funding cycle. In practice this acts as virtually no check on the burgeoning federal bureaucracy. Sunsetting will change the game by requiring both the Senate and the House to affirmatively support a program by a super-majority. This will be much harder to accomplish. I personally favor the 2/3 majority requirement because I want to make it easier for programs to die -- the 3/5 majority is more status quo oriented.
  4. Would Mortal Bureaucracy cause "necessary" governmental functions to be abandoned? As a practical matter, a "necessary" program would be defined as one that a large majority of citizens favored. A program that has only a narrow interest group supporting it -- a corporate welfare program or price support for example -- would have a hard time garnering the necessary Congressional votes to keep it alive.
  5. Why not a simple majority instead of a super-majority? This question relates to #3, above. Obviously, the lower the percentage vote required, the more likely that programs will continue. In my version, the vote to continue a program is a new legislative act that does not involve the executive -- there is no veto possibility. Of course, a more conventional approach could be chosen which would entail a bare majority and a possible Presidential veto. I doubt that such an approach would have a significant impact. Keep in mind that the goal is to make it hard for programs that don't have broad support to continue.
  6. Why is the time limit 7 years? The longest term of office (Senate) is 6 years. The choice of 7 years guarantees that no elected official would be able to vote to renew a program/law in the same term of office in which it was enacted.


President Clinton recently said that the era of "big government" is over. If politicians were like Pinocchio, by now the President's nose would reach from Pennsylvania Avenue to downtown Little Rock. Even if we give the President the benefit of the doubt, the current approach to reengineering, no matter how well intentioned, amounts to mere tinkering. The existing system of legislation without representation will continue on with no end in sight. The only other idea for reengineering government, the line-item veto, unbalances the power between the legislative and executive branches and still has the fatal flaw that inaction allows a program to continue.

The idea of limiting the number of Congressional terms a person may serve has come into vogue in recent years. It represents a reengineering approach to increasing turnover in Congress and preventing the formation of entrenched political power blocks. However, without some way of limiting the number of years unelected bureaucrats can "serve", Congressional term limits will actually have the effect of increasing the bureaucrats' power. For that reason, if I am elected to the House of Representatives I would never support Congressional term limits without something like the Mortal Bureaucracy in place to check bureaucratic power.

As a libertarian, I am committed to increasing personal choice and decreasing the power and intrusiveness of the federal government. I will honor that commitment. However, you as a voter should have a firmer guarantee than the word of any politician -- even one as trustworthy as I. The framers of the Constitution and Bill of Rights understood this fundamental truth and didn't ask the people to trust them. That's why they designed a system with multiple safeguards against the concentration of power. Events have shown that the existing safeguards aren't enough. If we are to continue to enjoy the "blessings of liberty", we must be able to slay the bureaucratic monster. This can only happen if we render it mortal.

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