Politics & Policy

Our Broken Checks and Balances

Abuse of power is endemic at federal agencies — smaller government is the only remedy.

The intense controversy over federal agencies’ monitoring of Americans’ phone records and Internet communications presents complicated — and perhaps unanswerable — questions about the appropriate balance between security and privacy. Both are, of course, legitimate interests of citizens.

Many highly respected defenders of the government’s growing information-gathering prowess cite the checks and balances — the need for warrants approved by the courts, congressional oversight, and the like — but those of us who have served in federal agencies or studied them (I have done both) are only too aware of the failure of government officials to abide by the mandated constraints. And the inability or unwillingness of those responsible for congressional oversight to detect, expose, and remedy those failures often leaves citizens vulnerable to the excesses and abuses of federal agencies.

This phenomenon is not new. Through the aggressive accumulation of confidential and compromising material, J. Edgar Hoover managed to wield enormous power, which he used for intimidation in order to hold on to the directorship of the FBI for 37 years (plus another eleven heading its predecessor). Is anyone naïve enough to believe that if a political crony of a Nixon, a Clinton, or an Obama were to become head of the FBI or an intelligence agency, he would be above bending the rules for partisan political advantage? And given the vast amounts of financial and other personal information that now reside in government databases, the mind reels at the current opportunities for abuse.

At many federal agencies, the checks and balances simply do not work very well. The Environmental Protection Agency routinely overestimates the benefits and underestimates the costs of regulations, and poorly manages its research funds. And it took think-tank scholar Chris Horner to expose the EPA’s politically motivated bias in how it granted waivers for Freedom of Information Act fees to nongovernmental organizations.

Government agencies are supposed to waive fees for groups that disseminate information for public benefit, but there is an extraordinary disparity in the granting of those waivers by the EPA, depending on how “friendly” the groups are to the agency’s (and President Obama’s) expansive and precautionary view of government. Left-wing environmental organizations that lobby for more intrusive, obstructionist regulation paid far fewer fees overall, according to an analysis by Horner, a scholar at the Competitive Enterprise Institute. While pro-regulation, EPA-friendly groups had their fees waived 92 percent of the time, Horner’s requests on behalf of CEI and the American Tradition Institute were rejected more than 93 percent of the time.

Kris Newby, the senior producer of the award-winning film Under Our Skin, who is now at the Stanford Center for Clinical and Translational Education and Research, tells a horror story about what should have been a simple Freedom of Information Act request for documents to the Centers for Disease Control and Prevention (CDC). She made a FOIA request that by law the CDC should have taken “approximately a month” to answer. Instead, the agency stonewalled her for more than five years. Newby describes her frustration:

For five years the agency strung me along with frivolous denials, mysterious delays, shifting explanations, and false promises. In essence, the delays became an illegal, off-the-books FOIA denial. Yet no one in the CDC FOIA office went to jail. And no one was fired or reprimanded. The delays were variously attributed to understaffing, year-end deadlines, and people taking vacation. At one point, unanswered calls were blamed on a phone “dead zone” in the CDC’s new FOIA office.

Even interventions by her congressman were unavailing. Newby concludes:

What this FOIA request reveals is a top-to-bottom culture of disdain for the FOIA law, for open scientific debate, and for the public that these government employees are supposed to be serving. . . . The CDC’s FOIA delay tactics were extremely effective in avoiding negative publicity [over bias and corruption in an advisory committee] . . . When a government agency such as the CDC fails to provide this transparency, it dismantles the checks against corruption.

It is not only federal agencies that act inappropriately. In 2011, officials in the White House itself hijacked the impending FDA approval of an obviously innocuous genetically engineered, farmed salmon that reaches mature size more rapidly than its cohorts but is otherwise indistinguishable from them. Ordinarily, this sort of approval would be made by midlevel bureaucrats at the FDA, but partisan politics came into play. The White House interference “came after discussions late last spring [2012] between Health and Human Services Secretary Kathleen Sebelius’s office and officials linked to Valerie Jarrett at the Executive Office [of the President], who were debating the political implications of approving the [genetically modified] salmon,” according to science writer Jon Entine. “Genetically modified plants and animals are controversial among the president’s political base, which was thought critical to his reelection efforts during a low point in the president’s popularity.”

The salmon still has not been approved. This is a grotesque perversion of what is supposed to be transparent and impartial government regulation, but Congress has uttered nary a peep.

When I was at the FDA, during the Clinton administration, direction of the agency’s decision-making from above was rife. Agency head David Kessler willingly obeyed orders from his political masters about which products should be expedited and which delayed by his minions. For example, FDA rapidly approved a female condom that had what many agency scientists considered a grossly unacceptable failure rate after HHS Secretary Donna Shalala told the agency that it was a “feminist product” and that delay was not acceptable. And at Kessler’s direction, agency officials went to extraordinary lengths to look for reasons not to approve biotechnology-derived bovine somatotropin, a veterinary drug, because Vice President Al Gore considered the drug politically incorrect.

Given the tremendous amount of power that government agencies wield over nearly every aspect of our lives, it’s unrealistic to believe that these kinds of abuses can ever be fully prevented or punished. Even absent the high-profile scandals such as the Benghazi murders, harassment of the Associated Press and Fox News’s James Rosen, IRS and EPA discrimination against conservative groups, and so on, there is ample evidence that much of government is systematically inefficient, abusive, and corrupt. Which is exactly why many of us want less of it.

Henry I. Miller is the Robert Wesson Fellow in Scientific Philosophy and Public Policy at Stanford University’s Hoover Institution and a fellow at the Competitive Enterprise Institute. A physician, he was the founding director of the Office of Biotechnology at the FDA.