The Bureaucratic Incubus; C. Carson

His most recent book, The Rebirth of Liberty ( 1973), covers the· founding of the American Republic from 1760 to 1800. 10 quires a seemingly endless stream of paperwork - "red tape" - is by turn evasive, interminably slow, haughty, arbitrary, autocratic, and is surely an "oppressive hind rance to favorable action." Yet the Federal tribe of bureaucrats increases geometrically, joined by their state and local counterparts. There is an amazing array and variety of Federal bureaus. They range from the Bureau of Out door Recreation to Bureau of Ap prenticeship and Training to Office of Intergovernmental Affairs to Center for Disease Control. J list how many such bureaus there are is well-nigh impossible to deter mine. One reason for this is the variety of names by which they 1976 THE BUREAUCRATIC INCUBUS 11 are called: commissions, boards, bureaus, offices, divisions, centers, agencies, administrations, depart ments, and so on. For example, the Department of Commerce has Domestic and International Busi ness Administration, Bureau of Census, Economic Development Administration, Planning Divi sion, Technical Assistance Divi sion' Public Works Division, Busi ness Development Division, Tech nical Support Division, Equal Opportunity Division, Economic Development Representative, Na tional Oceanic and Atmospheric Administration, National Marine Fisheries Service, Office of Audits, and National Weather Service Forecast Office. How many of these would be called bureaus is a matter of classification.

States have their own panoply of institutes, commissions, boards, services, offices, divisions, and so on. For example, the Secretary of State of Georgia oversees such bureaus and agencies as: Admin istrative Procedure Division, Ar chives and History Department, Bank and Credit Union Charters, Corporations Division, Profession al Examining Boards (Board of Accountancy, Board of Architects Qualifications and Registration of, Board of Dental Examiners and Hygienists, State Board of Exam iners of Plumbing Contractors, Real Estate Commission, and so forth), St,ate Board of Registra tion for Used Motor Vehicle Parts Dealers-Motor Vehicle Disman tIers-Motor Vehicle Rebuilders, among many, many others. Activities and Rules Of the myriad activities of these numerous bureaus there is no end. In a recent column on Federal grants, James J. Kilpatrick noted that there are now some 975 as sistance programs administered by 52 agencies costing more than fifty billion dollars annually. His description of some of their activi ties deserves to be quoted: Each of the 975 assistance pro grams, it perhaps goes without say ing, has its own rules, regulations, application forms, and miscellaneous requirements. These periodically are promulgated, revised, amended, adopted, further amended, with drawn, codified, and readvertised in the Federal Register, a paper printed daily in the city of Washington in type designed to put your eyes out.

The Register, which includes a vast deal of other stuff, last year ran to 35,000 pages. On the matter of bureaucratic rulemaking, Representative Elliott H. Levitas of Georgia had these observations, among others, to make in support of a bill he was introducing to Congress: Time and time again, the principles embodied in good legislation are I02t 12 THE FREEMAN January by the time the unelected bureau cratic rulemakers publish their regu lations. The rules, which really are laws, are now being ground out at the rate of almost 6,000 per year as com pared to about 600 acts of Congress, in the same period. It is absolutely essential that Con gress regain control over this admin istrative lawmaking process, espe cially when the violation of these rules - many of which are unreason able and far beyond, or contrary to, the original purpose of Congress can result in a citizen's being fined or going to jail just as surely as if he had violated an act of Congress itself.

Hardly a day goes by that the newspapers do not report on the doings and misdoings of the. bu reaucracy, but what we find there is, of course, only the tip of the ice berg of bureaucratic activity. For example, recently church groups attempting to assist in aiding Viet namese refugees reported that their efforts were frequently tan gled in red tape. One head of a refugee. committee said: Three months ago we would call one official and he'd tell us one thing, then we'd call the man sitting at the next desk and he'd give us a different answer. Another report from the same meeting was from a factory own er who wanted to employ 35-40 refugees "but he couldn't get any body in the government to respond, even though he's been trying for three· months." Stories of the slowness and time consuming activities of bureauc racies abound. Here is a summary included in an account of efforts by the airlines to reduce bureau cratic regulation: Currently, airlines must go through a process that can last years to get a CAB decision before they can raise or lower their fares or begin to serve or stop serving certain airports.

Another horrendous example was reported recently in Atlanta con cerning the Metropolitan Area Rapid T ra n sit Authority (MARTA). For four years now, MARTA has been about to embark on the building of a rapid transit system for Atlanta with massive Federal aid. The newspaper re ports that MARTA "is about to embark on an $87,500 program to review its 'goals and objectives' and develop a system for monitor ing its progress." To all appear ances, it would not require a study to monitor progress; none is being made. Sympathetic Controllers A common complaint against the bureaucracy is that men appoint ed to regulate industries really favor the activities of the busi nesses rat'her than control them. Here is the report of such a rela tionship: 1976 THE BUREAUCRATIC INCUBUS 13 Federal officials responsible for the integrity of American grain ship ments have frequently yielded to in dustry pressures and ordered unj us tified upgrading of quality ratings for export shipnlents, according to government officials.

A pattern ... of actions by federal aides favoring the industry has emerged fronl interviews with a num ber of officials and fornler officials of the Grain Division of the Agriculture Department. There should be no doubt, then, that bureaus have gained and hold an ever-expanding sway over our lives. If anyone doubts this he need only to attempt to go into business, go out of business, make a prod uct, render a service, sell some thing, or engage in some activity regulated by government. Not only is the bureaucracy omnipresent but it is by way of becoming om nipotent in many areas. Ameri cans do indeed appear to be beset by some sort of incubus, an incu bus that weighs upon us, oppress es us, and hinders favorable ac tion. Earlier Criticisms Criticisms of the bureaucracy are hardly ne\v. More than forty years ago, Herbert Hoover had delineated the pathology of bu reaucracies about as thoroughly as needs to be· done. He perceived that, once created, bureaucracies tend to become self-perpetuating monstrosities, that they are fer tile sources of new programs, that their effect on industry is stultify ing, and that they are veritable propaganda machines. In· 1934, he said: Already a host of new governnlent bureaus and nearly two thousand conlmissions have been established with authority over every trade, and in nearly every town and village. We have witnessed this host of govern nlent agents out over the land ...

threatening the people and prosecut ing for a new host of crinles. They were, he said, leading us in to "the swamps of serfdom." The question - the vital ques tion - is what is to be done about this incubus which oppresses the people? Indeed, can anything be done about it? My suspicion is that nothing u:ill be done about it so long as we focus on bureaucracy as the villain of the piece, or at tribute our ills to bureaucrats. Such a focus leads us to think that the solution lies in reforn1ing the bureaucracy. There is no good reason to suppose that \ve could do this. Herbert Hoover spent a great deal of energ~r first and last on reforrning the bureaucracy b~' reorganizing the governnlent. He even served on a commission un der President Truman with that object in view. Yet, after all his \vords, all his studies, and all his 14 THE FREEMAN efforts, the bureaucracy was as deeply entrenched as ever, and there are none to testify to the positive results of his or anybody else's efforts to reform the bu reaucracy.

Possibly, a particular bureau crat could be reformed along the lines sought by industrious effort, much asa dog can be trained to stand on his hind feet. A bureau crat might be trained to be swift, decisive, responsible, judicious, sparing of paperwork, kindly, and fair. But there is no more reason to suppose that he would be emu lated throughout the service than that dogs in general would take to their hind feet once one of them had been taught to do so. Dogs stand on all four feet because .it is their nature to do so; bureau crats behave ~s they do because of the nature of the function they perform. 'lis Stem from Nature of Job The ills that we so often attrib ute to bureaus, bureaucrats, and bureaucracies do not arise from them. After all, a bureau is· only an organiz:ation patterned after any other by which men would act in concert to realize some common purpose. Any business, church, charity, or school is apt to be organized along similar lines. A bureaucrat is only a man, pretty much the same as the rest of us.

If you cut him, he will bleed. He may be goodnatured or crabbed, hard-working or a dawdler, a faithful husband or a philanderer, a churchgo_er or an agnostic, a clock-watcher or absorbed by his work. The ills that we attribute to bureaucracies really arise from the functions which some bureaus perform. Not all government agencies are castigated as bu reaucracies, nor all government workers as bureaucrats. The spe cies bureaucrat does not include nearly all of those who belong to the genus government employee. A soldier is not a bureaucrat, nor a postal carrier, nor a teacher, nor a judge, nor a policeman, nor even a member of Congress. Even some agencies that are called bureaus do not belong to the bureaucracy. For example, the Federal Bureau of Investigation (FBI) is not a part of the bureaucracy. Whether a government agency belongs to the bureaucracy or not can be de termined by the function it per forms. Those agencies whose func tion is primarily regulatory make up the bureaucracy; those who perform a service to the consumer or protect life, liberty, and prop erty do not.

For example, the Postal Service is not of the bureaucracy because it picks up and delivers mail, thereby serving consumers. (This 1976 THE BUREAUCRATIC INCUBUS 15 is not an argument for govern ment mail deli very, or provision of any other such service; there are good and sufficient reasons why government should not offer what are basically peaceful services, but they have little or nothing to do with bureaucracy.) By contrast, the Interstate Commerce Commis sion (ICC) does not serve con sumers by running trains or trucks; its function is regulatory, and it is bureaucratic. Armies, courts, and police protect life, lib erty, and property; they are not of the bureaucracy. The Federal Com munications Commission is regu latory and bureaucratic. Of course, regulatory agencies claim to protect life and property and would probably justify most of their activities on that ground. Whether they generally protect life and property is a good ques tion (if, under the guise of pro tecting property, they take away some of the rights of property, they are not protecting but invad ing it). Whether they are "neces sary and proper" to the protec tion of life and property is an even better question. But however these questions might be answered in a particular case or in general, the fact remains that regulatory agen cies are bureaucracies by the man ner of the performance of their function.

They do not, themselves, perform a service to the consumer or protect his life or property; they regulate others who are charged with performing the tasks in volved. For example, the ICC does not erect safety signals at railroad crossings; the railroads usually do this, though they' may have done so in a particular instance at the behest of the ICC. It is this regu latory character, this authority over those who do without respon sibility for doing it, this remove from the actual work that makes them bureaucracies, that makes them behave in just those ways that are castigated, and that makes them resistant to all efforts at reform. It is the nature of regu latory agencies to be the way they are. Inevitable Red Tape Let us review some of the charges against the bureaucracy and show by way of illustration that the conditions complained of follow from the nature of the activity. The most common complaint about bureaucracies is the red tape - paperwork - entailed in dealing with them. Anyone seeking the approval of a bureau for some project must submit great quanti ties of paperwork in support of his application. A regulated business must not only submit all this pa~ perwork in support of the original 16 THE FREEMAN January application but must supplement it periodically with, reports, affi davits, depositions, notarized statements, and other assorted proofs of compliance. How could it be otherwise? The only visible product of regulatory agencies is the paperwork they produce and require from others. If the regu latory .bureaucracy be conceived of as an industry, then each bureau is a paperwork factory. Everything the bureaucracy ·actually does is recorded on paper or by some other device.

'What bureaucracies do is issue rules,. hold hearings, have meet ings; send out blank forms which are returned completed, send out inspectors, and. so on. Rules must be in writing, hearings recorded, minutes kept of meetings, applica tions submitted on paper, docu ments of verbal decisions r.educed to writing, accounts kept, and so on, ad infinitum. Of course, any activity today is apt to be accom panied by considerable paperwork; the point about bureaucracies is that paperwork is what they pro duce and· collect. In theory, they provide protection, but they do not do the actual work of provid ing it. The Occupational Safety and Health Administration (OSHA) does not actually take safety and health measures within a plant; it requires the employer to do so. But could the .amountof paper work .not be reduced? If it. could be done, it· could only be· done by reducing the productivity of the burea ucracy. The only certain measure of the productivity of a bureau is the quantity of paper work it produces. To cut back is to reduce its function. A dog can be taught to stand on its hind legs, but it cannot catch rabbits in that position. A bureau. could be made to cut back on its paper work, but insofar as it did so it would be reducing the extent of its regulation. There is no end. to what needs to be reported in order to assure the effectiveness of reg ulation. The whole fabric connect ing the regulator with the regu lated is paperwork. One might as well expect printers to print with out using paper as expect bureauc racies to regulate without volumi nous paperwork.

No Way to Measure Efficiency The charge that bureaucracies are self-perpetuating and expan sive is true enough but somewhat off the mark. The bureaucrat is no more nor less interested in keep ing' his job than anyone else. Any department head usually has vari ous incentives for increasing the number of workers under him. The distinctive thing about regulatory agencies is that there is no handy way to measure the productivity 1976 THE BUREAUCRATIC, INCUBUS 17 of bureaucrats. The paperwork done and required can be meas ured, of course. But Congress is unlikely to find an argument for hiring more bureaucrats to pro duce more paperwork very per suasive. The only other thing burea uc racies do is to· provide protection, and the method is by prevention. Now there is no way to tot up the amount of something that did not happen. The Federal Aviation Agency cannot list the number of airplanes that did not crash. The Food and Drug Administration cannot count. the. number of peo ple not poisoned by foods and drugs ,. they did . not allow to be marketed. The problem of cost ac counting the work of regulatory bureaucracies is further aggra vated by the fact that the actual work of prevention is not even done by them. How many acci..: dents would have been prevented by the employer's safety measures if there had been no Occupational Safety and Health Administra tion? Or, to open the whole mat ter up, how many injuries that did occur. would have been pre vented if the employ~r .. had as sumed full responsibility for de termining how safe his plant was rather than relying on the favor able report of a government safety inspector? There is no way of knowing, then, how many bureaucrats there ought to· be, so the bureaucracy can continue to ex..

pand its numbers by scare tactics. Indecisive and Slow Bureaucracies are indecisive and slow, and they are often arbitrary and capricious. These two charges should be considered together, for they are like two sides of a single coin. The troublesome fact is that they can only become swift and decisive by becoming more arbi trary and capricious, or they can only become less arbitrary, if that is possible, by taking more time. The reason for this bind in which they are caught is not far to seek. Bureaucracies are called upon or take on the making of decisions which would have made Solomon in all his wisdom flee his throne. The CAB may take years to· de cide about authorizing a new flight because, to avoid the. appearance of arbitrariness, just about eveljY thing imaginable and all those !in volved need to be taken into con sideration. Studies must be made, hearings held, documents assem bled, and painful decisions reached.

What will be the impact on com peting airlines if a n~w flight be tween two cities is authorized? What will be the -effect on the air traffic patterns? Is.. the airline seeking to introduce the flight financially sound? Does the traffic between the cities warrant a new 18 THE FREEMAN January flight? Do the airports have the ground facilities to accommodate the additional airplanes and pas sengers? There is no end to the questions that ought to be an swered before a decision is reached. But even a bureau must eventu ally make a decision, and it will have to be to some extent arbi trary. Regulatory bureaus are irre sponsible in their behavior. This is not because they do not attend to their tasks or perform them faithfully. It is rather that as regulatory bodies they are not re sponsible for making the products they inspect or providing the ser vices they oversee. They are not responsible at law or in fact.

Whatever ills may result from their policies, they cannot be held responsible for them. They do not make the moneys that they spend - these come from taxpayers nor do they pay for the time and effort that men spend in comply ing with their requirements. In short, bureaucracies are irrespon sible by nature. Regulatory agencies impinge upon and reduce the liberties of those whom they regulate. Could they not be reformed so as to pre vent this? It is difficult to see how this could be accomplished. Every regulation proceeding from a bu reau to anyone else in society in volves a reduction of freedom of action of those to whom it applies. Since no regulation can be con ceived that would not reduce free dom of action, it goes without saying that regulatory bureaucra cies are an assault upon liberty. Hope for Reform America is afflicted by an in cubus, by a deep-seated and oppres sive hindrance to favorable action.

Is it a bureaucratic incubus? y,es, but only if we stick carefully to the original or first meaning of the word. An incubus, the diction ary says, is "an imaginary demon or evil spirit supposed to descend upon sleeping persons." That is a most apt description of the pre vailing attitude toward bureaus, bureaucrats, and bureaucracies. We stand back and hurl impreca tions at them, treating them as if they were the source of evils which beset us. Moreover, we are made impotent by our belief that we can somehow reform them. But bureaucracies are im,agina,ry demons; the real ills we face come from a deeper source. They come from our determination to have and commitment to government regulation of the economy. Bureauc racies are instruments in this reg ulation, instruments which are as they are because they are assigned the task of regulation. The bureaucratic incubus can be exorcised only by removing the 1976 THE BUREAUCRATIC INCUBUS 19 regulations. To be free of the in cubus we must free ourselves of the regulation. Bureaucracies can not be substantially reformed, but they can be abolished, which is what will happen when their reg ulatory function is taken away.

But, do we not need the pro tective functions provided for us by the regulatory agencies? To put it more directly, do we not need protection from maltreat ment by those who provide us with goods and services? Furthermore, is it not a proper function of gov ernment to police these and set a framework within which they may operate? These are good questions, but they are questions which can only receive the most general kind of answer here. It has been the burden of this article to show that bureaucracies are as they are be cause of the regulatory functions assigned them, to show that they are paperwork factories, self-per petuating and expansive, beyond fiscal accounting, painstakingly slow and indecisive, irresponsible, and destructive of liberty. It would take much more space to show how ineffective they are in performing their protective functions. Only a few observations may be offered.

Three Possible Courses of Action; All Wrong In general, regulatory bodies take three sorts of action. Either they permit what should be pro hibited, or prohibit what should be permitted, or permit what men should be permitted to do without any special authorization. A single example may illustrate all three of these actions. Suppose that the In terstate Commerce Commission authorizes one trucking company, and only one, to haul freight be tween two cities. By so doing, it establishes a monopoly which it would have better prohibited. Sec ondly, it prohibits all other car riers to haul freight to and from these cities when they should be permitted to do so. Thirdly, it per mits a company to operate in ways it should be able to do without permission. Most formal actions of regulatory bodies fall into one or more of these three categories. In short, regulatory bodies tend to be either useless or harmful.

Men do indeed need protection from fraud, deceit, failure to per form on contracts, poisons, tainted food, shoddy merchandise, and as sorted wrongs which may be done to them in the market. There are three time-tested ways to get this protection which do not require regulatory bureaucracies. They are: positive law, competition, and caveat emptor (let the buyer be ware) . If there is some substantive ill from which men need protection by government, it should be pro20 THE FREEMAN January hibited by law, with criminal pen alties provided for convicted vio lators. As for most of the matters with which regulatory bodies deal, the best solution is competition. In the final analysis, however, there is no substitute for the vvaririess of the buyer. Regulatory bodies have not and cannot relieve us 'of the necessity for exercising care in all our transactions. We must reward those who serve us well, refuse our custom to those who do not, and use whatever sanctions that are available to us against those who do not live up to their agreements. If we value our safety and health, we must keep a sharp lookout for potential dangers to them.

There is a choice to be made, I have been saying. We can be rid of the bureaucracies by removing the regulatory function. Or, we can persist in having the regula tion with the understanding that to do so entails all that we de plore in bureaucratic behavior. There is no indication that the bureaucracy can be reformed. There is much reason to beliE~ve, however, that the advantages that are supposed to follow from regu lation are illusory but that the dis advantages are very real and fol low from the method .used. The bureaucracy can be dispensed, with. To do so would be to remove the "oppressive hindrance to favorable action." I) IDEAS ON LIBERTY Regulation of American Business WHAT. WE'RE DOING is applying pointless regulatory brakes to business In many important ways when we should be trying to step on the gas. Weare surrounded by seemingly numberless regu lations of debatable need, uncertain effect, and arbitrary origin.

As for the element of public' consent to this process, the public hardly comprehends what is taking place. Here, perhaps, lies the greatest danger - the danger that indi vidual initiative will become swamped by government edict before enough people awake to the threat. In the words of John Stuart Mill, "A state which dwarfs its men, in order that they may be more docile instruments in its hands - even for beneficial purposes - will find that with small men no great thing can really be accomplished." JOHN E. SWEARINGEN, from an address, February 28, 1962 The ClassicalMedicine ~ JOHN A. DAVENPORT IT IS A FACT' of experience, no less than a law of optics, that in per ceiving an object everything de pends on the angle of vision. For over a quarter century now under the influence of the late John May nard Keynes, most economists have been looking at the pheno mena of employment and unem ployment from the angle or point of view of overall demand for goods and services, and have been em phasizing that where resources are unemployed the cure lies in pump ing up demand by easy credit, mon etary manipulation, and govern ment spending.