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Has the Administrative State Lost its Mandate?

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Michael R. Ford
February 14, 2020

For the past several years I have served on Oshkosh, Wisconsin’s Plan Commission, a body empowered to make land-use recommendations to our city council. Last year we wrestled with, and ultimately approved, a decision to shut down our municipal golf course. We took the action so that the land could be used for the new headquarters of our city’s most prominent employer, the Oshkosh Corporation. Naturally the public had strong opinions. But something I was not expecting was public questioning of the legitimacy of our city-manager form of government. The basic complaint was populist in nature: I did not vote for the city manager, therefore he has no authority to take away our golf course.

Oshkosh, like so many other places, has a long history of professional management of our government. A city manager, by design, is insulated from direct democracy by serving at the pleasure of an elected city council rather than the public at-large. The city manager’s mandate comes in part from the council’s approval, but also from the manager’s professional abilities as evidenced by their experience and training, i.e. their expertise. Of course my experience in Oshkosh is just one anecdote. But, it made me wonder, have we reached a point where expertise is not enough? Has the administrative state lost its mandate?

It is worth reflecting on the contradictions that founded the American experiment in self-government. As Richard Stillman so clearly explains in his Preface to Public Administration, there is a longstanding conflict between majority rule and individual rights in the United States. We were founded as a government based on the will of the people, yet we quickly passed a bill of rights protecting the individual from the majority. As Hillary Clinton and Al Gore can attest, we also have an indirect election of our president, at least in part, as a check against direct democracy. While this brief reflection is far from a full analysis of the role of direct democracy in the United States, it is a reminder that our government’s legitimacy flows from the rule of law, in addition to the will of the people.

And, of course, the role of the administrative state is to implement the law in a fair and professional way. Our Masters of Public Administration programs teach hard skills such as budgeting and human resource management, but also softer skills such as ethics and leadership to ensure our civil service has the tools to act in a fair and professional way. We assume, however, that expertise, fairness, and professionalism will be enough to gain the public’s trust. Going back to my previous example of Oshkosh, the residents questioning the city manager form of government were loud for a brief period of time, but no serious attempt was made to change government form. The lags built into the machinery of government ensured a passing passion did not create permanent change.

But what happens when a change in the balance of power between the administrative state and political actors is codified? This happened in Wisconsin in 2011 when the state’s administrative rule making authority was shifted from an agency-dominated task, to a governor-dominated task. To put it another way, the changes shifted rule-making authority from an administrative function with political oversight, to a purely political function. The results, not surprisingly, have been legal battles and an overall decline in the number of administrative rules.    

What happened in my Oshkosh example is neither new nor troubling. The questioning of administrative authority based on an administrator’s policy choices is a healthy part of a functioning government. Had citizen complaints been widely shared, the city council could choose to take action, and install a new city manager. The administrative rule changes, in contrast, are troubling. In that case a set of political actors made permanent changes to agency authority based on the short-term anti-bureaucracy political whims of the day. Wisconsin’s state agencies indeed lost their mandate, as well as some of their capacity to implement the law in a manner consistent with their expertise.

The answer to the broader question of whether the administrative state in general has lost its mandate is no—at least not yet. But to again paraphrase Richard Stillman, attacks on administrative authority are eroding government capacity as part of a vicious cycle where:

1) Reduced administrative capacity borne of political actions reduces public confidence in the administrative state.

2) A lack of public confidence is weaponized to further reduce administrative capacity.

All of which is to say, the erosion of the administrative state’s mandate is not a function of its performance, but a function of deliberate immediate-term political choices that will have lasting long-term impacts.

Author: Michael R. Ford is an associate professor of public administration at the University of Wisconsin  Oshkosh, where he teaches graduate courses in budgeting and research methods. He frequently publishes on the topics of public and nonprofit board governance, accountability and school choice. He currently serves as the president of the Midwest Public Affairs Conference.

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