The FISA court, and the Bureaucratic View

One place where we might still prefer the Traditional view of bureaucracy is the FISA court. These courts operate completely in secret, with only the intelligence community having any real access. This court oversees all federal wiretaps. The reasons that judges have enough slack such that, even in an era where voters (and therefore congressmen) are wary of surveillance, are several. First of all, already sitting federal judges are appointed to the court to serve short terms that are non-renewable, so the judge will never have to justify past action to their subcommittees, and have no incentive to reform (they'll never be up for this job again). Second of all, the cases are not public, so oversight is virtually impossible. The only way to measure the court's output is in the number of wiretaps granted, but since organizations can withdraw beforehand, and modify their requests to be more legal, judges can reasonably argue that the wiretaps were acceptable, and we have no reason not to accept what they say. A good avenue for reform would be the appointment of specific judges to serve just on this court, who can have their terms renewed. With this, there would be incentives for justices to act with more transparency.

Shaking up the FCC

With Republicans taking over congress and the senate new changes are expected, including how the FCC believes that it should act. Switching from Democrat to Republican power in the committee that watch over the FCC Commissioner O'rielly is already planning ahead to how to appease these new overseers, before they have even taken power. He has talked about focusing more on market place competitiveness and changes in stricter oversight. He gathers these views from the past , when in 1996  a republican congress passed the Telecom Act.

This will be an interesting issue to watch progress. It seems that by expecting "tougher scrutiny" and greater reviews of their workings, the republican congress will take more of a congressional control oversight of the FCC than it did with the democratic congress which used a more "deference" way of controlling the FCC. The deference method is tied closely with the bureaucratic discretion because is a way of respecting the committees goals without being directly told what to do. From the start it seems like the congressional control is already working better as before the republicans have even come into their positions of power, the FCC is trying to figure out what they want and how to implement them. However, because they are mobilizing so soon expecting the congressional control method, it doesn't mean that that's the better alternative. It could be because the democrats did not bring the hammer down hard enough to keep them inline, even when they were split on the net neutrality issue. Meanwhile with the new republican congress they are already expecting more oversight on their hearings and closer examination of their efforts, leading them to rewrite  everything that they have on the table. Overall it will be interesting to see if this scared tactic works out to bring the agency and the committee into the better alignment that it seems to be moving toward.

Ambassadorial Nominations and the Weingast Theories

Obama’s ambassadorial nominees to Hungary and Argentina will likely be voted on after Thanksgiving.  The vote for these two nominees has been delayed because both performed poorly during their Senate confirmation hearings.  These delays, as Weingast and Moran/Marshal emphasize, are not typical Congressional behavior when dealing with presidential nominees.  Rather, as Weingast and Moran argue, the president wants to appoint people who are likely to be confirmed.  Thus, the President sends his nominees to Congress prior to their nomination in order to gauge Congress’s reaction.  Weingast and Marshall’s interpretation of “perfunctory confirmations” is different because they posit that nominees are typically confirmed in a rubber stamp fashion. 

          

The nominees are clearly not being approved in a rubber stamp fashion since their confirmations were delayed.  Further, since the nominees are having issues in the formal hearing portion of the confirmation process, it appears that they passed the pre-nomination informal meetings with Congressmen.  This means that Obama likely expected the two nominees to be confirmed when he nominated them.  The situation does not clearly fit within either of the Weingast theories since both assume “perfunctory confirmation.”  It is possible that this case is simply an outlier and serves as a counterexample to the theories put forth by Weingast and Moran/Marshall. 

Weingast and Moran – The Narrative Continues

The IRS, a prominent bureaucracy, has been notoriously featured over the past few years because of its recent alleged practice of unjustly targeting conservative groups. This article by the Associated Press covers updates about the House Oversight and Government Committee investigating the IRS. Recently, the Republican-dominated committee retrieved thousands of emails to advance their investigation, perhaps leading to the prosecution of leading bureaucrats in the IRS for allowing and maybe even leading the targeting. A few years ago when presumably many of the conservative groups were targeted, the 111^th Congress (from January 1, 2009 to January 1, 2011) was in session, and the Democrats held the majority in the House Oversight and Government Committee. This scenario parallels Weingast and Moran’s example about the FTC in the 1970s, in which they argue for the congressional dominance approach. In this case, though, the congressmen on the House Oversight and Government Committee possessed “sufficient rewards and sanctions to create an incentive system” to influence the IRS. When the Democrats controlled the committee, the IRS assumed more power and harnessed it against conservatives. However when the Republicans took control, they favored a less powerful IRS and soon discovered the corrupt practices of unfair targeting of specific political groups. Just as scandal erupted in the 1970s after the FTC had overstepped its authority and new congressmen favoring a less activist FTC took control of the Senate Commerce Committee, scandal erupted at the IRS after Republicans took control of the House Oversight and Government Committee in the 112^th and 113^th Congresses.