11/03/00 1:05 p.m.
It’s Not Just Gore
We elect a whole bunch of people with him.

By Roger Clegg, general counsel of the Center for Equal Opportunity

lert readers know now that this November we will be electing a new president and vice president. There has also been much discussion of the fact that this election will have serious consequences for the federal judiciary, including especially the Supreme Court.

But what has not been emphasized is that the president will appoint not only justices and judges, but literally thousands of otherwise unaccountable officials to run the federal bureaucracy — 3000 full-time, plus 3000 part-time commissioners and the like. And, for most Americans, their power is at least as important.

The president appoints the head of all federal departments and most other agencies as well, from glamorous and high-profile positions like the secretary of state and the attorney general, to more obscure figures like the chairperson of the Marine Mammal Commission.

Then there are the subordinates of these appointees, like the deputy secretary of state, or the assistant attorney general for antitrust. And, of course, the chairperson of the Marine Mammal Commission has his (or her) fellow commissioners, also presidentially appointed.

Even further down, we have the subordinates of the subordinates, the deputy assistant attorney general, or even the special assistant to the deputy assistant attorney general. (A good rule of thumb in Washington is, the longer a person's title, the lower on the totem pole he or she is.) Appointments at this level are usually not made by the president himself, but since they are made by people whom he has appointed, and subject to the approval of his White House personnel office, they still bear his mark.

All of these political appointees then do their best to run the federal bureaucracy. They may or may not be at odds with the career civil servants working for them; when they are, then their job is both more difficult and more important.

Do these appointments matter? To be sure, some are make-work jobs and don't. But many, many of these officials wield considerable authority. Collectively, their power is enormous.

For example, the Clean Air Act gives so much authority to the executive-branch appointees at the Environmental Protection Agency that it is being challenged in the Supreme Court as an unconstitutional delegation of congressional authority. Whichever way that case comes out, there is no denying that the appointees at EPA have had enormous discretion in writing the regulations that govern the day-to-day operations and technological choices of private companies.

Or consider the role of standardized tests in education. The officials at the U.S. Department of Education's Office for Civil Rights get to decide whether to cut off federal funding to schools that use such tests if, in OCR's view, they are illegally discriminatory. This has a profound effect on what kinds of K-12 educational reforms will be allowed at the state and local level, and what role the SAT will play in college admissions.

Another example of the power of the civil-rights bureaucracy, in particular, involves the use of racial and ethnic preferences, also known as affirmative action. The Justice Department officials in the Reagan and Bush administrations aggressively challenged such discrimination in court, but it has been defended with equal resourcefulness by the Clinton administration. The laws themselves have not changed, just the people interpreting them. In one celebrated instance, the Justice Department actually switched sides in the middle of a case: challenging the decision to lay off a Piscataway, New Jersey, schooteacher because of her race during the Bush administration, but then supporting the school board's discrimination under Clinton.

Al Gore would appoint different people to all these positions than George W. Bush would. What's more, the philosophical differences between the two men will likely be magnified by the appointments, since typically the officials selected will reflect the party's respective bases.

Congress frequently passes very vague statutes that provide only limited guidance to those it purports to regulate. The laws are fleshed out and enforced by executive-branch bureaucrats. As a consequence, when the bureaucrats change, it is as if statutes themselves had been amended.

So when you pull the lever on November 7, it's not just to fill one slot in the government, but hundreds. And it's not just the faces that will be different, but the meaning of the laws themselves.