Government by Favor

July 14, 1958

There cannot be two opinions regarding the impropriety of Sherman Adams’s relations with Bernard Goldfine. Goldfine paid hotel bills for Adams of more than $2,000, gave him a vicuña coat, loaned him an Oriental rug worth $2,400. Adams communicated with the Federal Trade Commission and the Securities and Exchange Commission regarding cases involving Goldfine, made an appointment for him, received an FTC memorandum, and transmitted it to Goldfine. These actions, in combination, were more than “imprudent,” as Adams confesses; they were improper.

There is a curious parallel between the defenses now offered for Adams and those put forward centuries ago for Sir Francis Bacon. Bacon himself admitted accepting presents from suitors in cases pending before his court, but his defense was that they had not influenced his decision! He insisted that he was “the justest chancellor . . . since Sir Nicholas Bacon’s time” and this, as the Encyclopaedia Britannica puts it, “on the plea that his intentions had always been pure and had never been affected by the presents received.” Macaulay ridiculed this defense in his famous essay in 1837. “It is plain,” he wrote, “that, long before Bacon was born, the accepting of presents by a judge was known to be a wicked and shameful act, that the fine words under which it was the fashion to veil such corrupt practices were even then seen through by the common people.”

THE NIXON DEFENSE

The strangest defense of Adams’s actions is that put forward by Vice President Nixon, who argues that members of Congress not only have a right but a duty to intervene with Federal agencies in behalf of their constituents. “It is proper for a member of Congress to write or call an agency in order to get information. It is proper to ask for justice for a constituent. . . . [Otherwise] we would wind up having a dictatorship by bureaucracy.”

Let us see. Nearly all the Federal agencies involved are called “quasi-judicial” agencies. Suppose they really were judicial agencies; suppose they were courts. Would Nixon regard it as proper for a congressman to write or call a Federal judge “to ask for justice” for a constituent? Such a request would be improper and insulting. It is taken for granted that a judge will dispense impartial justice to all parties before his court, and not merely to those for whom a special request has been made by a congressman. Would Adams have thought it proper to call a judge presiding in a case involving Goldfine and ask about the status of the case or arrange an appointment for him? The question answers itself.

Why, then, are the Federal quasi-judicial agencies considered fair game? Why is it thought not only right but necessary that individual congressmen or outside officials should intervene and put pressure on them in behalf of individual constituents or “lifelong friends”? Why are the agencies considered a real or potential “bureaucratic dictatorship”?

RIGHT OF APPEAL

The answer is that this is the way Congress has set them up. They are part of the vast growth of government power and intervention in the last few decades. Whenever Congress has not known how to solve a problem it has set up a new agency and delegated broad discretionary powers to it. A judge is bound by the law; his function and duty is to interpret and apply known law to particular cases. But the executive agencies, with their vast discretionary and quasi-legislative powers, and their exemption, over wide areas, from judicial review or reversal, are free to be arbitrary and capricious. This is government by special favor.

Many of the Federal agencies set up in recent years are both needless and pernicious. Those that are not abolished outright should have their irresponsible discretionary powers drastically cut down. Aggrieved parties before them should always be free to have recourse, not to a particular congressman or “an old friend,” but to the courts. They should be entitled to appeal from either questionable factual findings or punitive rulings. These principles should be applied to the FCC, the FTC, the SECM the ICC, the NLRB, and the whole bureaucratic jungle.