Weathering a Partisan Storm

Despite their leaders’ efforts, federal agencies are anchored by mission and statutes — for now

While the United States grows increasingly politically divided, new research shows that government agencies are often rising above the fray — at least for the time being.

In an analysis of social science and legal scholarship research dating back 25 years, a Texas McCombs researcher found that the executive branch’s federal agencies are making decisions consistent with their respective missions, in spite of the increasingly strong political leanings of theirs leaders appointed by the executive branch.

Lead researcher David B. Spence, McCombs professor of Business, Government, and Society, analyzed studies from the late 1990s forward that looked at whether agencies made more or less conservative choices based on the strength of political opinion in the executive branch.

“We all know that polarization in both Congress and the electorate has been going on for a long time, and that, ideologically, the parties are further apart than ever,” says Spence. “But when we looked at what the literature says about whether these ideological differences are affecting agencies, we didn’t find a systematic problem — at least not yet — in the executive branch.” That includes the 15 executive departments in the cabinet, like the Departments of Energy, Labor, and Transportation, along with agencies outside the cabinet, such as the Central Intelligence Agency, the National Aeronautics and Space Administration, and the Environmental Protection Agency.

Statutes Stand Firm

Spence’s research found that these agencies’ founding statutes, created by a pro-regulation Congress, are shielding them from political influence.

“If the laws on the books tell agencies that they’re supposed to regulate in certain ways, there’s only so much an anti-regulatory president and his appointees can do.” — David Spence

But it is not for lack of trying. Spence describes President Donald Trump and former U.S. Energy Secretary Rick Perry’s early attempts to prop up coal-fired power plants through the Federal Energy Regulatory Commission. In the name of reliability, Perry proposed providing cost recovery to power plants with 90 days supply of fuel on hand — a stipulation that applies only to coal and nuclear plants. While the proposal drew support from the coal and nuclear industries, many other stakeholders said it would not enhance power grid resilience, but could raise customer costs and increase pollution. The commission flatly rejected the proposal.

The Federal Energy Regulatory Commission is an agency whose statutes demand bipartisan leadership, with no more than three of its five commissioners from a single party. That’s a fairly common statute that the research found keeps agencies from becoming too extreme, Spence says.

Another powerful factor curbing polarization: the dedication of the agencies’ career staff. “Would you go work somewhere for 20 years if you didn’t believe in what they’re doing? Probably not,” Spence says. “So if a political appointee wants to subvert the agency’s mission, the career staff is going to do all they can to stop that.”

Legislative Log Jams

But when agencies must depend on Congress for guidance, partisanship can render them rudderless, Spence found. He cites the Environmental Protection Agency’s attempt to address ozone depletion during the Obama administration.

When Congress failed to pass legislation regarding greenhouse gas emissions, the EPA tried to gain regulatory power through the Clean Air Act of 1970, a law designed to control poisonous pollutants rather than carbon dioxide emissions. “It was a tough fit,” Spence says. “The EPA was using that old structure to try to address this new problem, which made it vulnerable to judicial challenge.

“In the past, Congress would’ve stepped in to give the agency additional guidance,” but partisan gridlock prevented it, he says.

These types of barriers may become more common, Spence predicts. “Conservatives generally have become more hostile to regulation,” he says, noting how the Trump administration has left several scientific advisory panels empty.

“This president is certainly willing to appoint people who are blatant about trying to undermine the agency mission.” — David Spence

A Shifting Tide?

Perhaps the greatest threat to agencies’ missions are higher courts, including the Supreme Court, that are “hostile to the administrative state,” Spence says. “Even if we get a president who wants to, say, re-instate Obama’s greenhouse gas initiative, it’s less likely to survive judicial review,” Spence says.

His research shows how the courts have, thus far, tempered the Trump administration’s anti-regulatory activities. “This administration has lost an enormous number of cases because of how poorly they follow the rule of law when they try to change the executive branch policies,” Spence says. Regardless of who sits in the White House, he or she must stay with the boundaries of the laws that gave them the power to act.

Generally, Spence says the research bore out what presidents have long understood about the limitations of executive power. Spence quotes President Harry Truman, when he learned that then-General Dwight Eisenhower would replace him: “He said, ‘Poor Ike! He’ll sit there and say, “Do this and do that,” and nothing will happen.’

“Truman was lamenting that he can’t just boss around everybody in the executive branch,” Spence says. “It just doesn’t work that way.”

“The Effects of Partisan Polarization on the Bureaucracy” is a chapter by Spence in the book Can America Govern Itself? published in May 2019 by Cambridge University Press.

Story by Judie Kinonen