Divided Government

Julie O. of They Get Letters, noted in response to my post on corruption that:

One way to keep government somewhat honest (or at least curb the corruption) is to keep it divided. This one-party control of all branches is really mucking everything up. But we can't control the electorate.

This is a good point and one that deserves more analysis a mere comment in response to consider. You see, few people realize just how divided our government already is, and this fact has been critical in providing damage control during the Bush Administration.

As of 2002, the last year for which I have good figures easily at hand, there were about 22.8 million governmental employees, military and civilian combined, in the United States. Only a small fraction of them report to the President.

About 18.6 million of those employees worked for state and local government, (about 82% of the total). More than 37% of the civilians employed by the United States government also do not report to the President, because they work for Congress, for the Judiciary, for the Postal Service, or as one of the roughly 182 thousand other employees of independent agencies (this is really somewhat more complex, because some independent agencies like the EPA and NASA report pretty directly to the President, while other agencies within the Executive Branch, most notably the FBI have considerable independence from the President who cannot, for example, fire the FBI director without good cause). Thus, only about 11% of governmental employees in the United States report directly to the President and about 46% of those are military personnel.

Only 9,051 people who work for the United States government in the executive branch are political appointees. A significant share of these appointees, moreover, are to insignificant posts like the Barry Goldwater Scholarship and Excellence in Education Foundation, or the United States Holocaust Memorial Council. There are, for example, only eight political appointees in the Central Intelligence Agency, widely believed to have about 30,000 employees. Everybody else in the government is either a merit system employee or hired by someone who is a merit system employee. No bid contracts are the exception, rather than the norm.

The division that exists in our government has practical effects.

Within the military, political appointees rarely trouble themselves with appointments below the rank of General, and almost always make appointments to vacancies from the pool of candidates in the rank below the one for which an appointment is to be made. Brigadier General and Vice Admiral positions are not filled by outside candidates or from the ranks of junior officers. This seriously limits the ability of politicans to shape the ranks of the military brass. The Posse Comitatus Act, currently under attack in the wake of a failure to sufficiently use military assets in the wake of Hurricane Katrina, despite the fact that the law actually did permit them to be used, further limits the usefulness of the military in carrying out a domestic political agenda.

Even a Congress of the same party is not a blank check. Even with his own party allegedly in control, the President was forced to make a recess appointment of John Bolton as United Nations Ambassador. There is doubt on the Hill right now about whether Bush has the votes to approve his U.S. Supreme Court nominee Harriet Miers, due to opposition from within his own party. The President's Social Security reform package is dead, despite months of the President actively pushing for its passage in meetings of pre-screened supporters around the country. The President probably couldn't enact a draft at this point if he wanted to do so, and is have a hard time preventing a torture ban supported on the Senate floor by 90 out of 99 Senators voting from being passed by Congress.

The fate of the Bush "enemy combatant" doctrine in the Courts has still not been resolved and is far from a sure thing. The enemy combatant cases decisions last made by the U.S. Supreme Court were certainly not a complete win for the administration and have opened up further litigation. Certainly, the Justice Department does not win anything close to all of the time in the federal courts, although it does have a good track record.

Tom DeLay was able to squelch a House Ethics Committee investigation of his wrongdoing in Texas, but he didn't have the political clout to repeal the rule that has forced him to resign from his leadership post now that he is facing indictment, and it is notable that Ronnie Earle, the District Attorney who is pressing charges against him, is an elected state official who reports to neither the President, nor the Governor of Texas, nor county officials in his jurisdiction.

Wall Street corruption had to contend with New York State Attorney General Eliot Spitzer, as well as the Securities and Exchange Commission (itself an independent agency that does not report to the President). Even national corporate giants like Merrill Lynch can be forced to pay billions by state and local officials.

There is real reason to doubt that Bill Frist, the leader of the Republicans in the Senate, would be under investigation right now for insider trading, were it not for the fact that the Securities and Exchange Commission is an independent agency.

And, a mention of officials that the President does not control would not be complete without including the independent counsel, Patrick Fitzgerald. While Fitzgerald would normally report directly to the President as a U.S. Attorney, he has been permitted, pursuant to law, to operate independently while investigating top leaders in the President's administration. He has apparently done so with vigor, despite the fact that both he and most of the men and women he is investigating are Republicans. While an individual's personal integrity in the face of political pressures to the contrary is not always a reliable way to insure the independence necessary to effectively provide the benefits of a divided government, it does surface on rare occassions.

State legislatures can stymie federal efforts as well. The biggest federal education initative of the Bush Presidency is the No Child Left Behind Act. Yet, which state, of all states, was one of the first to reject funding under the act in exchange for being free of its mandates? Utah, one of only states in the nation where Bush still have positive approval ratings. At least fifteen other states are considering following suit.

This pattern is repeated at the state level. Governor Owens learned to his own chagrin earlier in his time as Governor, that he can't order the State Treasurer or State Attorney General to toe his party line. He now faces a legislature that disagrees with him, and unlike the President, he cannot chose a political crony to be a judicial appointee. He has to make his judicial picks from lists provided to him from a blue ribbon commission. Redistricting for state political office in Colorado is handled by a commission not controlled by either the legislature or the Governor completely and subject to significant restrictions on the options it is permitted to consider. Many important decisions in the state, such as land use decisions and the day to day mangement of the public schools, are reserved to counties and other local governments. Like almost every state, Colorado does not permit Governors and legislators to run signficant deficits without voter approval. Administrative policy making regarding education is largely restricted to an elected school board, and the state's flagship University likewise reports to an independently elected board of regents. And, Colorado, like the federal government, has its fair share of independent agencies.

Going down even one level further, county government outside the state's two cities and counties (Broomfield and Denver) is so hopelessly divided it is a wonder that counties are governable at all. And, the recall power in Colorado (which unlike the intiaitive and referendum process, I do support at the local government level), has been used repeatedly to remove elected officials (most recently District Attorney Truden in Aspen who faces a recall vote she is almost sure to lose in December, and before that Tracy Baker, the corrupt clerk and recorder in Arapahoe County) from office.

There is reason to question whether Presidents and Governors, in some respects, have too little power, but in moments when we face corrupt leadership, or in times past when we as a nation have faced Congresses that have been unable to reach agreement on appropriations bills, forcing much of the federal government to shut down, the divided nature of our government has come in handy. Without a doubt that is one reason that the United States is not in worse shape right now than it otherwise might be.