2007-2011 ~ Graduate School fragments, papers, thoughts

Final Paper in Grad School ~ Occupy Wall Street, Performance Management, Institutionalization, and Bureaucracies: Where's the Moral-ity?

2011-12-11T19:06:00.001-05:00

Occupy Wall Street,Performance Management, Institutionalization, and Bureaucracies: Where's theMoral-ity?

"[F]ollowingthe logic of counterfactuals, there is no evidence that performance measurementactually 'causes' improved performance. Nevertheless, agency officials tend to believeit does."[i] As the National Performance Review concludedduring the Clinton Administration when it recommended adopting and implementingGPRA[ii]:"Our government ... has lost its sense of mission; it has lost its ethicof public service; and, most importantly, it has lost the faith of the Americanpeople."[iii]Thus, the fashion continues, administrators of programs cannot be trusted tofulfill program obligations unless they are provided with quantifiable andmeasurable controls and incentives not only to implement them, but also toexceed them beyond stated objectives.[iv]

IfI understand the argument for performance management correctly, Americans lacka clear and cohesive understanding of the direction their nation is headed inand therefore require tools to assist them in assessing the conditions of thepath they are on.[v]In many ways, the argument for program evaluation and performance metrics isalmost like saying that we don't know whether the mountain that we are climbingwill lead us to the peak of the Matterhorn or to the top of K-2. Therefore, (tomime promoters of organic government), we should take samples of the soilconditions along the way to make sure that those conditions are just right forus to achieve that goal (however unspecified or elusive). As Dubnick andFrederickson note, "[t]he promise of accountability through performancemeasurement is the fashion of the day."[vi]And as a fashion – a fad – program evaluation and performance managementreflect insecurity about the direction we are headed in — and, I contend, may actuallybe driving administrators to stray from achieving collective social goals orfulfilling national aspirations.

Why Program Evaluationand Program Management?

The complexity of administration(and the lack of trust that results from agents having to respond to changedcircumstances that often require deviation from original objectives) arises ingreat measure because of the complexity of human interaction.[vii] Each action taken, each playerinvolved, creates a series of new and equally complex interconnections. Theanswer to ensuring that this complexity does not derail (at least) legislativeintent lies, according to the National Performance Review, in performancemanagement tools. Such tools are required because "those who resist change... fear ... jeopardizing our democratic values [values such as equalopportunity, justice, diversity, and democracy and] doom us to a governmentthat continues ... to subvert those very values."[viii]Thus, legislators and regulators should prefer to include program evaluationand performance management within implementing legislation so that they can"determine whether their enactments are having the intended effects."[ix]

Indeed,at an intuitive level, "governing is 'the conduct of conduct.'"[x]Even if administrations clearly disagree on ultimate goals (expressed usuallyalong (or against) supra-political lines), both federal and state bureaucraciesshould be charged with the task of carrying out the will of the Legislature(and in many cases also the will of the Executive and of the Judiciary). Fulfillingthat will, though, comes at a price: It requires a measure of trust in thebureaucracy actually implementing that will. Trust, after all, "is the keydeterminant of cooperation, responsiveness, or consumer protection."[xi]

Yet,at least "state and local governments have hardly been models ofefficiency, effectiveness, or even honesty; ... [don't share] nationalobjectives, [and are] dominated by a small, local power elite."[xii]Thus, "abandon[ing] the obsolete, eliminat[ing] duplication, and end[ing]special interest privileges" will not necessarily lead to more"effective, entrepreneurial governments [that would] transform theircultures by decentralizing authority."[xiii]It does not follow (and, indeed, is contradictory) that ensuring accountabilitywould require "detailed guidelines and controls on objects of expenditure[given that (in the worst case) such measures spawn] red tape and rigiditywithout introducing incentives to more outputs."[xiv]

Thatsaid, program evaluation can also be useful to social scientists, since (ifimplemented properly) the metrics allow them to track benchmarks over longerperiods of time — thus permitting them to effectively gather data that wouldotherwise not be at their disposal and that could assist in further tweakingprograms or modifying affected or related legislation.[xv]From this angle, program metrics are viewed as tools that could be effective indriving social and legislative change.

"Unfortunately,however, often 'lip service' is all that policymakers, administrators,practitioners, and others are willing to commit to carefully-designed andconducted evaluation research. Evaluation components are omitted from mostpolicy reform."[xvi] Such omissionsmay, of course, be due to the complexity not only of gathering and storingquantitative data but of also interpreting any collected results. Because ofintangible and often unknown factors, it may be impossible to establish properinter- and intra-program comparables to make proper assessments of outcomes.[xvii]At the same time, too many metrics will stand in the way of properimplementation of statutory objectives and may themselves result in unintended consequences.[xviii]Worse, statutes could be drafted to demand program review based on randomizedcomparable studies, leaving some communities without intended services to meetrandomized testing objectives.

Whileprogram evaluation to meet social science objectives may prove successful duringthe formal structuring of statutory frameworks (dealing primarily with processimplementing regulations), in other cases, short-term negative effects (also inpolitical capital -- as politicians insisting on randomized pre-implementationtrials could be viewed insensitive to constituent needs) could outweighlong-term benefits.[xix] In similarvein, you could find few judges willing to tie judicial decisions (that arebased ideally on notions of equity and fairness and principles of justiciabilityand precedent) to performance metrics.

Outsidecomplex cases, such as school busing where a particular uniform nationalobjective may be deemed desirable, judges would likely, however, find measuringthe success or failure of their rulings distracting.[xx]In their minds, constituent remedies preferably lie in their filing claims to addressany injustice or unintended consequence arising from or related to theirdetermination. Thus, preferred remedies would include education and training todemonstrate good faith in compliance and as antidotes to claimed or realdiscrimination or illegal conduct, litigation related to compliance withconsent degrees, or punitive damages incorporated into settlements to securedeterrent effects.[xxi]

Developing CollectiveNorms Beyond the Metrics

Accountability,in itself, is a "vague" term[xxii]:It is rather difficult to assess with certainty[xxiii]in advance (or even in hindsight) "what accounts are to be rendered towhom, or how a community will know that its own administrators are doing abetter job."[xxiv]Furthermore, "[t]he Left remains concerned about the loss of publicaccountability, by which society as a whole has to consider what sorts of humanneeds will be accepted as a collective responsibility ... [and the] Rightprefer public accountability by which individuals who have needs can decide howtheir needs might best be met ..."[xxv] Thus, "perfectly ordinarycircumstances[] present serious obstacles to implementation,"[xxvi]which itself cannot take place unless the ability exists to "forgesubsequent links in the causal chain ... to obtain ... desired results."[xxvii]But, if accountability is "a form of governance that depends on thedynamic social interactions and mechanisms created within a moral community,"[xxviii]then we have to ask ourselves what is the "moral community" fromwhich we are asking an accounting?

Ithink that the answer lies in how the United States engages in (allows and thenco-opts) Civic Protest. The most recent national expression of that protest isfound in the Occupy Wall Street movement.[xxix] Occupy Wall Street is described as a bottom-up organization.[xxx]The movement began as a protest call from an editor at Adbusters in response tothe debt ceiling debate, was picked up by left-wing "radicals," andspread by word of mouth. I remember from Facebook postings that the protest wasoriginally meant to last for only a few days. Then a friend (and others) beganpetitioning for water and food, members were arrested trying to cross theBrooklyn Bridge on October 1, 2011 (Day 15), and the movement took off.[xxxi]Not only in the United States but around the world.[xxxii]

Withthat in mind, I haven't been to an Occupy Wall Street sit in. I haven't sleptovernight at one of their tent camps. All I can say about Occupy Wall Streetcomes from stories on the internet, from television broadcasts, in thenewspapers, and word-of-mouth passed on by friends on Facebook. I've watchedwith some interest how they communicate in chain-transmitted shouted commands,how they voice their opinions at communal gatherings, how they have establishedlibraries, communal shrines, meal service, and other activities.[xxxiii]By the end of November 2011, the camps had formally organized and expanded andthe movement has spread across the world. Indeed, the daily press coverage isdedicated to reports on their activities.[xxxiv]

OccupyWall Street (and it's preceding counterpart - The Tea Party) is, in a sense, anexpression of a collective will: Of a desire to engage the political processthrough the semiotics of demonstrative conduct. The movement's protests areencouraging because they show public engagement and the churning of a discourseon how the nation (and nations) should be fashioned. In contrast, apathyequates to the suppression of participative democracy and reflects anauthoritarian state.[xxxv]Still, administrative and bureaucratic intolerance expressed through demandsthat the rule of law be followed (so that the public square can be, forexample, cleaned -- in itself a semiotically pregnant demand) do remind of theclaim that bureaucratic arrangements can supply the bedrock on whichauthoritarian regimes stand.[xxxvi]

Thus,if we are to accept that apathy is an expression of submission to authority,then protest (in itself) would be the measure for dissatisfaction with publicand government policy. While "vague" or maybe"uncomfortable" to those seeking to rigorously and formulaicallyimplement legislative intent through measurable program metrics, the collectivedemonstrative voice would seem to be a better, albeit chaotic, measure ofadministrative success.

Defining an AmericanCollective

Providingeveryone in our American society with the opportunity to participate, and havea voice, is a complex endeavor in itself. At some level, it seems there is avisceral American reaction against protecting the poor and the sick fromsuffering, old-age, illness, accident, and unemployment.[xxxvii]Just the fights over a national health care system and over a stimulus thesepast three years, should give anyone pause that our American values really areequal opportunity, justice, diversity, and democracy. As Central European writersof the 1970s recognized, ensuring opportunity, justice, diversity, and (inparticular) equality (or, at least, equal rights) requires rules -- and theireffective administration.[xxxviii]

MaxWeber did not consider the role of a bureaucrat to be the purveyor of moralauthority. Rather, to Weber, the bureaucrat's position is "in the natureof a duty. ... [It] is considered an acceptance of a specific obligation offaithful management in return for a secure existence."[xxxix]Merton equally dehumanizes the bureaucrat by tagging his "personalitypattern" as "nucleated" around a "norm ofimpersonality" that is woven into an "organized network of socialexpectations."[xl]Yet, over time, bureaucrats have come to be expected to cooperate towardachieving "supra-organizational goals and commitments" and totranscend "vested interests, regional ties, and professional biases."[xli]

Incontrast, writers like Downs and Barzelay and Armajani believe that forbureaucracies to do useful social work, they must shed themselves of an"obsolete focus on rules, centralization, and enforcement."[xlii]Rather, they should turn their attention to a "winning adherence tonorms" built around the pillars of "missions,""services," "customers," and "outcomes."[xliii]Indeed, Barzelay and Armajani would prefer bureaucrats to assume the roles ofjudges. They argue that "[a]rguments premised on rules should bechallenged and the issue reframed in terms of achieving the best possibleoutcome, taking into account the intention behind the rules, the complexity andambiguity of the situation, and the ability to secure support from those whowould enforce the norms."[xliv] Nevertheless,they seem to suggest that bureaucrats and administrators should not engage indefining collective norms.[xlv] Rather, contradictingtheir central thesis, they would seem to agree that the definition ofcollective norms should be left to legislators, executive leaders, and(possibly) judges and that the implementation of those norms by bureaucratsshould be measured by performance metrics and program evaluation outcomes.[xlvi]

Therules[xlvii]and regulations governing Social Security, Medicare, Medicaid, public works,transportation, or national security, all need bureaucratic structures toenable them to work.[xlviii]Placing services in private hands and without the direct bureaucratic controlsthat executive departments supply defacto and de jure, allows for thedissipation of public goods. Here, I agree with the Kennedy School's Moore whenhe claims that "the valuation of important public goods ... ought to bedebated regularly [in the executive, legislative, and judicial branches] notonly to ensure their just and efficient production, but also to maintain asense of both interdependence and political competence in dealing with the factof our interdependence."[xlix]Control systems are naturally required as defense mechanisms against waste andfraud, but they should not come at the price of administrative flexibility andat the cost of losing our national vision.[l]

Conclusion

Itis odd to me that bureaucracy is viewed in the United States as a collosusentity focused on efficiency but bereft of morality. Even odder is thefetishized focus on pre-World War II "Austrian Economics" -- theoriesthat were developed in the middle of a Civil War, which remained unresolveduntil after the National Socialist conquest had been extinguished by theAllies. I was taught, at least, that Austrians and Germans learned theirlessons from the Second World War that in order to secure equality andfairness, a bureaucracy must be infused with morality and moral thinking. Yet,in the United States, rarely does one speak in public of a bureaucrat's moralobligations.

Inthe end, "The erosion of the civil service and the widespread practice ofcontracting out have almost certainly weakened the promises of accountabilitythrough bureaucratic control and accountability through civil service meritprocedures, codes of ethics, oaths of office, annual audits, and otherethics-enhancing mechanisms."[li] What wouldbe needed to counteract this hollowing out would be some kind of "GoodSamaritan" clause in statutes requiring administrative implementation ~ aclause that would clearly delineate the moral basis for issuing the legislationand that would provide aspirational guidance to those seeking to secure programcompliance.

Bibliography

., Non classé. "Occupy Best Buy." In, LeMonde.fr (2011).Published electronically 11/24/2011. http://clesnes.blog.lemonde.fr/2011/11/24/occupy-best-buy/.

Barzelay, Michael, and Babak J. Armajani. "Breaking throughBureaucracy." Chap. 52 In Classicsof Public Administration, edited by Jay M. Shafritz and Albert C. Hyde.519-40. Boston, MA: Wadsworth, 2012.

Bennis, Warren. "Organizations of the Future." Chap. 24 In Classics of Public Administration,edited by Jay M. Shafritz and Albert C. Hyde. 218-28. Boston, MA: Wadsworth,2012.

Bertelli, Anthony M. "Governing the Quango: An Auditing and CheatingModel of Quasi-Governmental Authorities." Journal of Public Administration Research and Theory 16 (2005):239-61.

Bingham, Lisa Blomgren. "Designing Justice: Legal Institutions andOther Systems for Managing Conflict." OhioState Journal on Dispute Resolution 24 (2008): 1.

Bisom-Rapp, Susan. "An Ounce of Prevention Is a Poor Substitute for aPound of Cure: Confronting the Developing Jurisprudence of Education andPrevention in Employment Discrimination Law." Berkeley Journal of Employment and Labor Law 22 (2001): 1.

Dahrendorf, Ralf. Konflikt UndFreiheit: Auf Dem Weg Zur Dienstklassengesellschaft. München: R. Piper & Co. Verlag,1972.

Dernbach, John C. "Symposium: Environmental Sustainability:Navigating the U.S. Transition to Sustainability: Matching National GovernanceChallenges with Appropriate Legal Tools." Tulsa Law Review 44 (2008): 93.

Downs, Anthony. "The Life Cycle of Bureaus." Chap. 26 In Classics of Public Administration,edited by Jay M. Shafritz and Albert C. Hyde. 237-49. Boston, MA: Wadsworth,2012.

Follett, Mary Parker. The New State: Group Organization the Solution of Popular Government. University Park, PA: The PennsylvaniaState University Press, 1998.

Hoover, Herbert. AmericanIndividualism. Doubleday Page & Co., 1922.

Hutton, John P. "Contingency Contracting:Improved Planning and Management Oversight Needed to Address Challenges withClosing Contracts." edited by United States Government AccountabilityOffice, 42. Washington, D.C.: US GAO, 2011.

———. "Defense Contract Management Agency: AmidOngoing Efforts to Rebuild Capacity, Several Factors Present Challenges inMeeting Its Mission." edited by United States Government AccountabilityOffice, 44. Washington, D.C.: US GAO, 2011.

Merton, Robert K. "Bureaucratic Structure andPersonality." Chap. 12 In Classicsof Public Administration, edited by Jay M. Shafritz and Albert C. Hyde.Wadsworth Cengage Learning, 100-08. Boston, MA: Wadsworth, 2012.

Moore, Mark H. "Symposium: Public Values in anEra of Privatization: Introduction." HarvardLaw Review 116 (2003): 1212.

Mucha, Peter. "Occupiers Defy Deadline, QuietReigns at Dilworth." Philly.com (2011).

Pressman, Jeffrey L., and Aaron Wildavsky."Implementation." Chap. 33 In Classicsof Public Administration, edited by Jay M. Shafritz and Albert C. Hyde.317-20. Boston, MA: Wadsworth, 2012.

Rivlin, Alice M. "Systematic Thinking for SocialAction." Chap. 32 In Classics ofPublic Administration, edited by Jay M. Shafritz and Albert C. Hyde.Wadsworth Cengage Learning, 306-16. Boston, MA: Wadsworth, 2012.

Sewell, Abby, and Kate Linthicum. "Occupy L.A.Protesters to Seek Court Order to Block Eviction." In, L.A.NOW: Southern California -- This Just In (2011). Published electronically11/28/2011. http://latimesblogs.latimes.com/lanow/2011/11/occupy-la-court-order-eviction.html.

Thiessen, Marc A. "The Supercommittee's 13thMember: Occupy Wall Street." In, The Washington Post: Post Opinions(2011). Published electronically 11/28/2011. http://www.washingtonpost.com/opinions/the-supercommittees-13th-member-occupy-wall-street/2011/11/28/gIQAIC9C5N_story.html?hpid=z3.

Thorson, John E., Ramsey L. Kropf, Andrea Gerlak, andDar Crammond. "Dividing Western Waters: A Century of Adjudicating Riversand Streams, Part Ii." University ofDenver Water Law Review 9 (2006): 299.

Weber, Max. "Bureaucracy." Chap. 6 In Classics of Public Administration,edited by Jay M. Shafritz and Albert C. Hyde. Wadsworth Cengage Learning,44-49. Boston, MA: Wadsworth, 2012.

Weithorn, Lois A. "Protecting Children fromExposure to Domestic Violence: The Use and Abuse of Child Maltreatment." Hastings Law Journal 53 (2001): 1.

Williams, Douglass E., and Richard H. Sander."Symposium: Poverty Law and Policy: The Prospects for 'Putting America toWork' in the Inner City.". GeorgetownLaw Journal 81 (1993): 2003.

Yardley, William. "The Branding of the OccupyMovement." In, nytimes.com (2011). Publishedelectronically 11/27/2011. http://www.nytimes.com/2011/11/28/business/media/the-branding-of-the-occupy-movement.html?ref=general&src=me&pagewanted=all.

Endnotes

[i]Dubnick, Melvin J., andH. George Frederickson. "Accountable Agents: Federal PerformanceMeasurement and Third-Party Government." Journal of PublicAdministration Research and Theory 20, in The State of Agents: A SpecialIssue (2009): 152.

[ii]"GPRA obligates federal agencies to develop and implement multi-yearstrategic plans that include a mission statement, goals and objectives formajor agency activities, a description of how those goals and objectives willbe achieved, external factors that could significantly affect achievement ofthose goals and objectives, and a description of the program evaluation methodthat will be used to evaluate achievement of those goals and objectives. TheAct also requires each agency, as part of its annual budget submission, toprepare, and submit to the Office of Management and Budget, a performance plan.The annual performance paln is to include performance goals for the upcomingfiscal year, describe the indicators that will be used to measure theirachievement, and explain how they will be achieved. The annual performance planis to be consistent with the strategic plan. The overall objective is for 'theFederal Government [to] plan [to] present a single cohesive picture of theannual performance goals for the fiscal year.' In addition, the act requiresagencies to publish a report after each fiscal year comparing the agency'sperformance goals for that fiscal year with what was actually achieved, evaluatingsuccesses in achieving goals, and explaining, when applicable, why theperformance goals were not achieved."

Dernbach,John C. "Symposium: Environmental Sustainability: Navigating the U.S.Transition to Sustainability: Matching National Governance Challenges withAppropriate Legal Tools." Tulsa Law Review 44 (2008): 93, 105-106.

[iii]The National PerformanceReview. "From Red Tape to Results: Creating a Government That Works Betterand Costs Less." Chap. 53 In Classics of Public Administration,edited by Jay M. Shafritz and Albert C. Hyde. Wadsworth Cengage Learning,541-48. Boston, MA: Wadsworth, 2012: 547.

[iv]Rivlin, Alice M."Systematic Thinking for Social Action." Chap. 32 In Classics ofPublic Administration, edited by Jay M. Shafritz and Albert C. Hyde.Wadsworth Cengage Learning, 306-16. Boston, MA: Wadsworth, 2012: 309-310.

[v]Rivlin, Alice M."Systematic Thinking for Social Action." Chap. 32 In Classics ofPublic Administration, edited by Jay M. Shafritz and Albert C. Hyde.Wadsworth Cengage Learning, 306-16. Boston, MA: Wadsworth, 2012: 308-309.

[vi]Dubnick, Melvin J., andH. George Frederickson. "Accountable Agents: Federal PerformanceMeasurement and Third-Party Government." Journal of PublicAdministration Research and Theory 20, in The State of Agents: A SpecialIssue (2009): 146.

[vii]Pressman, Jeffrey L.,and Aaron Wildavsky. "Implementation." Chap. 33 In Classics ofPublic Administration, edited by Jay M. Shafritz and Albert C. Hyde.317-20. Boston, MA: Wadsworth, 2012: 318.

[viii]The National PerformanceReview. "From Red Tape to Results: Creating a Government That Works Betterand Costs Less." Chap. 53 In Classics of Public Administration,edited by Jay M. Shafritz and Albert C. Hyde. Wadsworth Cengage Learning,541-48. Boston, MA: Wadsworth, 2012: 546.

[ix]Weithorn, Lois A."Protecting Children from Exposure to Domestic Violence: The Use and Abuseof Child Maltreatment." Hastings Law Journal 53 (2001): 11-12.According to Weithorn, "[a]necdotal, retrospective, and subjectivejudgment, in the absence of carefully-planned empirical evaluation, isnotoriously unreliable in determining whether policy outcomes are consistentwith program goals and expectations." Id.at 145.

[x]Kipnis, Andrew B."Audit Cultures: Neoliberal Governmentality, Socialist Legacy, orTechnologies of Governing?". American Ethnologist 35, no. 2 (2008):277.

[xi]Dubnick, Melvin J., andH. George Frederickson. "Accountable Agents: Federal PerformanceMeasurement and Third-Party Government." Journal of PublicAdministration Research and Theory 20, in The State of Agents: A SpecialIssue (2009): 147.

[xii]Rivlin, Alice M."Systematic Thinking for Social Action." Chap. 32 In Classics ofPublic Administration, edited by Jay M. Shafritz and Albert C. Hyde.Wadsworth Cengage Learning, 306-16. Boston, MA: Wadsworth, 2012: 309.

[xiii]The National PerformanceReview. "From Red Tape to Results: Creating a Government That Works Betterand Costs Less." Chap. 53 In Classics of Public Administration,edited by Jay M. Shafritz and Albert C. Hyde. Wadsworth Cengage Learning,541-48. Boston, MA: Wadsworth, 2012: 545.

[xiv]Rivlin, Alice M."Systematic Thinking for Social Action." Chap. 32 In Classics ofPublic Administration, edited by Jay M. Shafritz and Albert C. Hyde.Wadsworth Cengage Learning, 306-16. Boston, MA: Wadsworth, 2012: 309.

[xv]Weithorn, Lois A."Protecting Children from Exposure to Domestic Violence: The Use and Abuseof Child Maltreatment." Hastings Law Journal 53 (2001): 101.Program evaluation has its origins in the Office of Economic Opportunity'sdesire to keep a social scientist's tab on the implementing effects of theGreat Society's policies. SeeWilliams, Douglass E., and Richard H. Sander. "Symposium: Poverty Law andPolicy: The Prospects for 'Putting America to Work' in the Inner City.". GeorgetownLaw Journal 81 (1993): 2003, 2062-2067. The authors continue:"Clearly, we have not yet reached a level of political maturity at whichcareful experimentation is an ingrained part of policy development. Indeed,strong institutional pressures push policy in the opposite direction: the taskof generating congressional support often seduces policy proponents into thinlyspreading spending nationwide, rather than concentrating it enough to havemeasurable effects; and when test sites are chose, they are often selected witha view to placating key congressional allies rather than according to intrinsicscientific merit." Id. at2066-2067.

[xvi]Weithorn, Lois A."Protecting Children from Exposure to Domestic Violence: The Use and Abuseof Child Maltreatment." Hastings Law Journal 53 (2001): 144.

[xvii]Id. at 145-146.

[xviii]Id. at148-149.

[xix]See e.g. id. at 145-150.

[xx]Thorson, John E., RamseyL. Kropf, Andrea Gerlak, and Dar Crammond. "Dividing Western Waters: ACentury of Adjudicating Rivers and Streams, Part Ii." University ofDenver Water Law Review 9 (2006): 299, 434-444.

[xxi]For a general discussion of such remedies in the EEOC context, see Bisom-Rapp, Susan. "An Ounce of Prevention Is a Poor Substitutefor a Pound of Cure: Confronting the Developing Jurisprudence of Education andPrevention in Employment Discrimination Law." Berkeley Journal ofEmployment and Labor Law 22 (2001): 1, 25-29.

[xxii]"Accountability as traditionally defined (1) is a social relationshipbetween at least two parties (2) in which the demand or obligation foraccount-giving is accepted and expected by both parties. Account-giving is,therefore, 'after the fact' of an accountable matter. Accountability in modernterms also (3) includes organizational and/or political mechanism designed to'bring' or 'cause' individuals or agencies to account 'before the fact' bycausing them to act accountably." Dubnick, Melvin J., and H. George Frederickson. "AccountableAgents: Federal Performance Measurement and Third-Party Government." Journalof Public Administration Research and Theory 20, in The State of Agents:A Special Issue (2009): 144.

[xxiii]Some have attempted to create utility formulas to assess the value of auditingprogram implementation. Bertelli, in assessing the effectiveness of auditingquasi-governmental organizations (quangos) in the United Kingdom, developedthis formula: "The government's problem is to choose a level of auditingrequirements for the quango that maximizes its utility by minimizing cheatingat the least cost, or formally:

"The first term on the right-hand sideof equation [1] represents the government's utility if it cannot detect the cheating (the auditing mechanisms are notperfect, and the government knows this); the second term is the government'sutility if it catches the quango'scheating (which is simply the government's utility u(x;b) evaluated in the absence of cheating, x = 0); and the third represents the cost of audit activity to thegovernment. Thus, the government's objective is to maximize the benefits fromcatching public bodies (which depend on the probability of catching) whencheating, minus the costs of auditing." Bertelli, Anthony M. "Governing the Quango: An Auditing andCheating Model of Quasi-Governmental Authorities." Journal of PublicAdministration Research and Theory 16 (2005): 246.

[xxiv]Rivlin, Alice M."Systematic Thinking for Social Action." Chap. 32 In Classics ofPublic Administration, edited by Jay M. Shafritz and Albert C. Hyde.Wadsworth Cengage Learning, 306-16. Boston, MA: Wadsworth, 2012: 311.

[xxv]Moore, Mark H."Symposium: Public Values in an Era of Privatization: Introduction." HarvardLaw Review 116 (2003): 1212, 1212-1213.

[xxvi]Pressman, Jeffrey L.,and Aaron Wildavsky. "Implementation." Chap. 33 In Classics ofPublic Administration, edited by Jay M. Shafritz and Albert C. Hyde.317-20. Boston, MA: Wadsworth, 2012: 317.

[xxvii]Id. at319.

[xxviii]Dubnick, Melvin J., andH. George Frederickson. "Accountable Agents: Federal PerformanceMeasurement and Third-Party Government." Journal of PublicAdministration Research and Theory 20, in The State of Agents: A SpecialIssue (2009): 146.

[xxix]In some sense, the Wall Street protestors are fulfilling Mary Follett's dreamfor a participative democracy. In The NewState, she writes: "We are no longer to put business and politicalaffairs in the hands of one set of men and then appoint another set aswatch-dogs over them, with the people at best a sort of chorus in thebackground, at the worst practically non-existent. But we are so to democratizeour industrial and our political methods that all will have a share in policyand in responsibility." Follett,Mary Parker. The New State: Group Organization the Solution of PopularGovernment. University Park,PA: The Pennsylvania State University Press, 1998: 339.

[xxx]Yardley, William."The Branding of the Occupy Movement." In, nytimes.com (2011). Published electronically11/27/2011. http://www.nytimes.com/2011/11/28/business/media/the-branding-of-the-occupy-movement.html?ref=general&src=me&pagewanted=all.

[xxxi]A search on google.com for "Occupy Wall Street Brooklyn Bridge"returned 6,060,000 hits.

[xxxii]Occupy Wall Street/Tokyo: http://angrygaijin.wordpress.com/2011/11/02/345/;http://blogs.wsj.com/japanrealtime/tag/occupy-wall-street/; Frankfurt:http://www.spiegel.de/international/germany/0,1518,791918,00.html; and evenDelhi: https://www.facebook.com/pages/Occupy-Delhi/165488160208729

[xxxiii]Chin, Robert K."Occupy Wall Street Community Space." 2011 (accessed online11/28/2011 at http://www.youtube.com/watch?v=jJkKFKpsBxE)

[xxxiv]For example: Mucha,Peter. "Occupiers Defy Deadline, Quiet Reigns at Dilworth." Philly.com (2011); Sewell, Abby, and KateLinthicum. "Occupy L.A. Protesters to Seek Court Order to Block Eviction."In, L.A. NOW: SouthernCalifornia -- This Just In (2011). Published electronically 11/28/2011. http://latimesblogs.latimes.com/lanow/2011/11/occupy-la-court-order-eviction.html.; Thiessen, Marc A. "The Supercommittee's13th Member: Occupy Wall Street." In, The Washington Post: Post Opinions (2011). Publishedelectronically 11/28/2011. http://www.washingtonpost.com/opinions/the-supercommittees-13th-member-occupy-wall-street/2011/11/28/gIQAIC9C5N_story.html?hpid=z3. And even in tongue-in-cheek Goscinny and Uderzolooks at the U.S.: ., Non classé. "Occupy Best Buy." In, LeMonde.fr (2011). Publishedelectronically 11/24/2011. http://clesnes.blog.lemonde.fr/2011/11/24/occupy-best-buy/. ("Un nouveau signe du mouvement deprotestation anti-capitaliste qui déferle sur toute l'Amérique? Non. Les genscampen pour être les premiers à l'ouverture du magasin, vendredi. Best Buypropose des TV haute définition pour 200 dollars.")

[xxxv]As Dahrendorf wrote in the 1970s about the collective choice facingbureaucratic governments in post-War Germany: "Mangelndes politisches Interesse aber isthistorisch eine Begleiterscheinung autoritärer Herrschaft. Gewiß waren es inder Vergangenheit die autoritären Herren, die die Vielen daran hinderten, sichfür Politik zu interessieren, während es heute die Indifferenz der Vielen seinkönnte, die autoritäre Herren schafft und stützt." Dahrendorf, Ralf. Konflikt Und Freiheit: AufDem Weg Zur Dienstklassengesellschaft. München: R. Piper & Co. Verlag, 1972: 164.

[xxxvi]For a description of the process through which authoritarian control isimplemented, see Bergès, Louis. Résister À La Conscription,1789 - 1814: Le Cas Des Départements Aquitains [in French] [Resisting thedraft, 1789-1814: The case of the Departments in the Aquitaine.]. Paris: Comité des travaux historiqueset scientifiques, 2002: 349 (describing the transformation of the revolutionarygovernment of France in 1792 into a dictatorship because of external pressurescaused by Prussian incursions and the need to defend national boundaries):"Avant d'organiser une répression brutale envers les désobéissants, lalégislation de la République puis de l'Empire a installé un carcanadministratif très strict visant à réduire les possibilités de se soustraire àl'exécution des lois sur le recrutement militaire. Dès le Directoire, laliberté de circuler a été soumise à des contraintes administratives."

[xxxvii]Hoover, Herbert. AmericanIndividualism. Doubleday Page & Co., 1922.

[xxxviii]Cf. Dahrendorf, Ralf. Konflikt Und Freiheit: Auf Dem Weg ZurDienstklassengesellschaft. München: R. Piper & Co. Verlag, 1972: 101.

"Wirksame soziale Teilnahmechancen bedeuten, daß derEinzelne gegen Armut und Not geschützt werden muß. Schutz gegen Not - Alter undKrankheit, Unfall und Arbeitslosigkeit - verlangt in jeder modernenGesellschaft die Errichtung umständlicher Organisationen zur Erhebung undVerteilung von Geldern, also vielfältiger Institutionen der Sozialversicherung.Wie immer diese im einzelnen aufgebaut sein mögen, sie brauchen Regeln und eineBürokratie, die diese Regeln verwaltet. Zugleich beschränkt jede einzelnedieser Regeln und mehr noch deren Verwaltung den Raum für individuelleEngscheidungen: derer, die zwangsversichert sind, obwohl sie lieber andere Wegegehen würden; der Ärzte, die zu bloßen Agenten der Sozialversicherungsanstalterniedrigt und dadurch den Patienten und ihren Ansprüchen entfremdet werden;der Altersrentner, die durch die Regeln benachteiligt werden, und der anderen,die ebenso unberechtigt bevorzugt werden; ganz zu schweigen von den vielen,vielen Stunden des Wartens, Bettelns und Ärgers hinter und vor den Türen derÄmter. Nicht die bösen Absichten einzelner Beamten, sondern das Prinzip derOrganisation selbst macht den Einzelnen, zu dessen Nutzen die Organisationgeschaffen worden ist, zum Objekt unkontrollierter und möglicherweiseunkontrollierbarer Instanzen."

[xxxix]Weber, Max."Bureaucracy." Chap. 6 In Classics of Public Administration,edited by Jay M. Shafritz and Albert C. Hyde. Wadsworth Cengage Learning,44-49. Boston, MA: Wadsworth, 2012: 45-46.

[xl]Merton, Robert K."Bureaucratic Structure and Personality." Chap. 12 In Classics ofPublic Administration, edited by Jay M. Shafritz and Albert C. Hyde.Wadsworth Cengage Learning, 100-08. Boston, MA: Wadsworth, 2012: 104-105.

[xli]Bennis, Warren."Organizations of the Future." Chap. 24 In Classics of PublicAdministration, edited by Jay M. Shafritz and Albert C. Hyde. 218-28.Boston, MA: Wadsworth, 2012: 227.

[xlii]Barzelay, Michael, andBabak J. Armajani. "Breaking through Bureaucracy." Chap. 52 In Classicsof Public Administration, edited by Jay M. Shafritz and Albert C. Hyde.519-40. Boston, MA: Wadsworth, 2012: 527.

[xliii]Barzelay, Michael, andBabak J. Armajani. "Breaking through Bureaucracy." Chap. 52 In Classicsof Public Administration, edited by Jay M. Shafritz and Albert C. Hyde.519-40. Boston, MA: Wadsworth, 2012: 527-528.

[xliv]Barzelay, Michael, andBabak J. Armajani. "Breaking through Bureaucracy." Chap. 52 In Classicsof Public Administration, edited by Jay M. Shafritz and Albert C. Hyde.519-40. Boston, MA: Wadsworth, 2012: 529.

[xlv]In discussing a norm-based accountability for public administration thatincludes a consideration of private interests, Moore suggests that "Wehave to create a kind of accountability that articulates what is collectivelydesired."Moore, MarkH. "Symposium: Public Values in an Era of Privatization:Introduction." Harvard Law Review 116 (2003): 1212, 1225. Thataccountability is found through governance structures, customer relations, orcommunal public ownership all of which depend on "1) the ability to form acoherent collective aspiration that reflects many voices and ambitions...; 2)the ability to measure activity and results in ways that assure us that goalswe collectively agreed upon were reached; and 3) the capacity to provideincentives for those who are doing the inventing, the managing, and the working... to work hard and to remain creative and adaptable." Id. at 1226-1227.

[xlvi]Contrast, for example: Bingham, Lisa Blomgren. "DesigningJustice: Legal Institutions and Other Systems for Managing Conflict." OhioState Journal on Dispute Resolution 24 (2008): 1. (discussing theimplementation of a "dispute system design" as a contemporaryinstitutional alternative to traditional dispute resolution management -- withthe aim of providing better measurable responses to normative social needs.Bingham proposes a 15 point metric to "identify who is eligible" touse particular dispute resolution programs. Id.at 14-15.

[xlvii]According to Kerwin:

"Rulesare products of the bureaucratic institutions to which we entrust theimplementation, management, and administration of our law and public policy. Weusually view bureaucracies as inferior in status to the 'constitutional'branches of government ... We do so because the authority of these agencies isderivative, patterned after and drawn from the three main branches. In oneimportant respect, however, agencies are the equal of these institutions. Therules issued by departments, agencies, or commissions are law; they carry thesame weight as congressional legislation, presidential executive orders, andjudicial decisions. An important and controversial feature of our system ofgovernment is that bureaucratic institutions are vested with all threegovernment powers established in the Constitution. Through a device calleddelegation of authority, government agencies perform legislative, executive,and judicial functions. Rulemaking occurs when agencies use the legislativeauthority granted them by Congress."

Kerwin,Cornelius M. Rulemaking: How Government Agencies Wirte Law and Make Policy. Washington, D.C.: CQ Press, 2003: 3-4.

[xlviii]See generally, Bertelli, Anthony M. "Governing theQuango: An Auditing and Cheating Model of Quasi-Governmental Authorities."Journal of Public Administration Research and Theory 16 (2005): 242 ("Publicbodies may have legal personalityseparate from the government. But their legal status public or private andgradations therein as well as the structure of the organization are matters ofdiscretion for the legislature or executive when creating the public body.Legal status lays the framework for legal accountability.").

[xlix]Moore, Mark H."Symposium: Public Values in an Era of Privatization: Introduction." HarvardLaw Review 116 (2003): 1212, 1218.

[l]See Hutton, John P. "Defense Contract Management Agency: AmidOngoing Efforts to Rebuild Capacity, Several Factors Present Challenges inMeeting Its Mission." edited by United States Government AccountabilityOffice, 44. Washington, D.C.: US GAO, 2011, 35-37. See also Hutton, John P. "Contingency Contracting: ImprovedPlanning and Management Oversight Needed to Address Challenges with ClosingContracts." edited by United States Government Accountability Office, 42.Washington, D.C.: US GAO, 2011.

[li]Dubnick, Melvin J., andH. George Frederickson. "Accountable Agents: Federal PerformanceMeasurement and Third-Party Government." Journal of PublicAdministration Research and Theory 20, in The State of Agents: A SpecialIssue (2009): 146.

Final Presentation - GAFL589 - FALL 2011 (Maxwell, McCabe, Mitchell, Manda) - Dr. Martinez

2011-12-09T07:33:00.001-05:00

This is the final presentation for GAFL589, Dr. Martinez, 2011.

Team Members:

Josh Maxwell (Housing as a Right)

Katie McCabe (Poverty through the Lens of Education)

Mark Mitchell (Education, Unemployment, and Homelessness in the Veteran Community)

Peter Manda (Replacing the "Income Threshold" with a Net Present Value-based "Asset Threshold")

Legislative Proposal - Modifying the Poverty Threshold

2011-12-08T21:46:00.001-05:00

This was the final paper for Policy Development at Fels. The paper bears a lot of revision and review and I look forward to working on it in greater detail over the next few months.

Peter Manda

LegislativeProposal

GAFL589, Fall2011

Dr. DeirdreMartinez

Legislative Proposal: Calculating thePoverty Threshold based on an Individual's Net Present Value

Table of Contents

Summary ........ 1

Introduction........ 1

Proposal ........ 2

PROPOSAL: TheSupplemental Income Threshold adopted in November 2011 by the U.S. Census Bureauis a good step forward. However, the Income Threshold should be combined withan Asset Measure and a Measure of the Barriers to Earning Income and AccumulatingWealth. This will allow Policymakers to have a better tool at their disposal toaddress poverty traps and provide the poor with meaningful Tools to Overcomeand Escape Poverty.

....... 2

Supplementing the Poverty Threshold: 2011....... 3

Combining The Poverty Threshold with an Asset and Barrier Threshold....... 4

conclusion........ 5

SUMMARY

On November 7, 2011, the U.S. Census Bureau adopted a supplementalpoverty measure to better capture the threshold below which individuals andfamilies would be deemed unable to survive. This supplemental poverty measureexpands on the official threshold by incorporating factors such as welfarebenefits received, basic living needs, and the costs of basic housing. Thesupplemental measure is a great step forward because it allows policy makers tovisualize the contributions welfare benefits make to alleviate poverty in theUnited States. However, even the supplemental measure remains insufficient inguiding policy-makers in the direction of adapting policies aimed at fullyeradicating poverty. This policy proposal therefore suggests that theadministration initiate steps toward developing (and having Congress adopt) a poverty threshold measure that takesinto account not only an individual's and family's current wealth but also incorporatesthe barriers they face when seeking to obtain the income, and accumulate thewealth, necessary to overcome and escape poverty.

INTRODUCTION

In 1990, "one-third of households in the United States [had]zero or negative net financial assets."[i]More precisely, median net worth (in 2007 dollars) in 1999 was $91,300 and in2007 was $120,300.[ii] Incontrast, the official poverty threshold in 2007 for an individual was $10,991and for a family of four was $21,203.[iii]

These numbers (and the gaps between them) are significant for twoprincipal reasons. First, rights in the United States are primarily definedthrough property.[iv] Being assetpoor is actually defined as a lack — having insufficient assets to meet basicneeds for a period of time.[v] That is,those who have no property, essentially have no rights to enforce.[vi]They are, in effect, non-citizens.[vii] Second,the numbers highlight the huge income discrepancy between those living at ornear the threshold of poverty (measured by income) and those living at or nearthe population's net worth (measured by income and assets held). The median networth line[viii] istherefore helpful in making comparisons with the poverty threshold -- though thosecomparisons are, in themselves, insufficient to guide policy-makers towardadopting policies that would help to overcome poverty.

This policy proposal therefore suggests adopting a poverty measurebased on a combination of an individual's and family's income, net worth, andthe costs they must incur to overcome the barriers that prevent them from overcomingand escaping poverty.

The SupplementalIncome Threshold adopted in November 2011 by the U.S. Census Bureau is a goodstep forward. However, the Income Threshold should be combined with an Asset Measureand a Measure of the Barriers to Earning Income and Accumulating Wealth. Thiswill allow Policymakers to have a better tool at their disposal to address povertytraps and provide the poor with meaningful Tools to Overcome and Escape Poverty.

It's misleading to talk about government action in the povertypolicy sphere after 2007 by only looking at poverty through the lens ofunemployment rates and income. The collapse of the subprime mortgage marketsand the rippling effects from the Lehman bankruptcy not only left the economyin tatters[ix]-- it left entire communities vacant.[x]Homes in the millions were foreclosed on and there were indications thatforeclosures will continue through 2012.[xi]Indeed, the increase in the poverty rate in 2008 tied - at 1.2% - for thehighest on record[xii] while themedian supplemental poverty income measure fell by 1.6% from 2009 to 2010.[xiii]As tent cities began to proliferate between 2006 and 2009,[xiv]federal policy focus moved from maintaining the status quo to revamping thefinancial regulatory system and inserting huge capital infusions into the economy.[xv]These infusions included continuation of TANF and billions of dollars in extrafunding under the American Recovery and Reinvestment Act of 2008 (ARRA).[xvi]

Yet, even though the collapse of the markets in 2007 caused analleged shift in political thinking about America's economic structure from anindividualist toward a more collectivist morality, in October 2011 the WhiteHouse still highlighted only provisions of ARRAto reflect its commitment to poverty.[xvii]While several billion dollars were set aside for traditional povertyalleviation practices (food stamps and job training), most of the funds in ARRAwent to shore up state operating budgets.[xviii]An effort to pass a second stimulus package failed and was later repackaged asa jobs bill that was submitted to Congress in September 2011.[xix] Critical in the debate arising from the 2007financial crisis was the government's commitment to revamp its approach tosupporting affordable housing and providing access to mortgage finance.[xx]

Supplementingthe Poverty Threshold: 2011

Beginningin 1973, the Office of Management and Budget's Statistical Policy Divisioninitiated studies to update the poverty threshold, improve the measurement ofcash income, and measure non-cash income.[xxi]By the 1980s, arguments that non-cash benefits should be included in thepoverty measure began to shift the policy debate away from income as the focaldata-point for the threshold.[xxii] Thecontinuing debate led in the 1990s to the House Appropriations Committeeauthorizing the National Academy of Sciences and the Bureau of Labor Statistics"to develop ... appropriate methods of revising the current povertymeasure" which led, subsequently, to the publication of a report in 1995recommending a revision of the poverty threshold calculus to include "acombined budget allowance for food, clothing, and shelter (includingutilities), plus a small additional amount to allow for other needs (e.g.,household supplies, personal care, and non-work-related transportation)."[xxiii]

Amongits recommendations, the panel suggested adopting a new measure that would"comprise a budget for the three basic categories of food, clothing,shelter (including utilities), and a small additional amount to allow for otherneeds (e.g., household supplies, personal care, non-work-related transportation)."[xxiv]This recommendation was incorporated into the Supplemental Poverty Measure forwhich research was released for the first time on November 7, 2011. Equallysignificant, while "[t]he official poverty measure [did] not take accountof taxes or of in-kind benefits aimed at improving the economic situation ofthe poor," the new Supplementary Poverty Measure did.[xxv]

Thedevelopment of the official poverty threshold was in itself an example of"windows of opportunity" at work. The threshold measure wasoriginally proposed in 1960, but few were interested. It was only in 1964, in arepublication of the initial studies for the Social Security Administration,that the proposed threshold was adopted as the poverty guidepost forpoverty-related / welfare safety net legislation.[xxvi]By providing a supplemental measure, policy makers are now better able toassess the influence of varying factors on poverty and may be able to come upwith better safety net mechanisms to alleviate the pains of abject poverty andto lift as many as possible further above the threshold.

Asthe Obama Administration aims to circumvent Congress's blocking of his administration'spolicy proposals — such as the Jobs Bill — through executive order and agencyaction[xxvii],it is laying the groundwork for the possibility of a return of his party topower in the 2012 elections. Thus the partisan gridlock approach of theRepublican majority in the House of Representatives opened a window ofopportunity for the Obama Administration to continue its policies of structuraland substantive reform through agency and executive action — allowing it totake advantage of the gridlock in Congress to release research on theSupplemental Poverty Measure, and accordingly initiate a move toward expanding(and refining) the official definition of poverty.[xxviii]

CombiningThe Poverty Threshold with an Asset and Barrier Threshold

Thisproposal suggests that the administration should further take advantage of thisopportunity and continue its relentless work toward addressing the severeinequalities in our nation. As some researchers have already concluded, "apoverty measure should take household wealth into consideration together withincome in order to get a better assessment of well-being."[xxix]This is because "[a]ssets provide an economic protection for the hardtimes and enable people to invest in their future."[xxx] However, having income and holding assets aloneare not measures of mobility. That is, they do not incorporate the costsindividuals (and families) living in poverty have to incur if they desire toimprove their lot and move out of poverty. To incorporate these costs into thethreshold, this proposal suggests a poverty measurement formula according tothe following variables:

(1) NPV_w= Income + Net Worth + Home Equity + Liquid Wealth - Income Barriers - WealthBarriers - Taxes Paid + Benefits Received[xxxi]

The formula calculates an individuals current wealth "netpresent value" based on the annuity (or fixed income streams) of cash andcash equivalents and the net present value of assets held discounted by a ratebased on the consumer price index and inflation.[xxxii] Eachvariable is analyzed based on current and projected streams of payment andcalculated and adjusted to its present value to take into considerationinflation and changes in the consumer price index, interest rates on debtaccumulated (credit cards), and borrowing costs for education, moving, andovercoming barriers such as red-lining.

In essence, the formula reflects the calculations for median netwealth described in the introduction. And, by incorporating the amount of taxespaid and benefits received, it reflects the calculations that are now includedin the supplemental income measure. What is added in (and is different) is thecapturing of the costs associated with barriers to earning income (such as thecosts of obtaining an education, the costs of being excluded from employmentbecause of race or other peculiar and insular factors, and the costs of accessto employment created by being on long-term unemployment) and barriers toacquiring (and accumulating) wealth (such as the costs of obtaining a bankaccount, gaining access to credit to finance entrepreneurial ventures, andovercoming redlining). Thus the proposed formula would be better able tocapture shifts in income and wealth disparity and would provide policy-makerswith a threshold figure that would enable them to assess what benefits andcontributions government can make to help individuals escape poverty.

CONCLUSION

It's all fine and good to define poverty as "below a certainincome threshold" but such a measure does not capture the growingdisparity in wealth and the burgeoning asset inequities in the country. Thus,the measure is insufficient in guiding policy direction toward creating a morejust or fair society. The supplemental income threshold is a good analyticalstep forward; but we could do more. This policy proposal therefore suggestscombining factors for determining wealth and income with factors that act asbarriers to accumulating wealth and generating income to derive a truer measureof poverty and how much it costs to overcome it.

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Endnotes

[i]Caner, Asena, and EdwardWolff. "Asset Poverty in the United States, 1984-1999." Challenge 47,no. 1 (2004): 9.

[ii]Census, U.S. Departmentof. "Table 721. Family Net Worth—Mean and Median Net Worth in Constant(2007) Dollars by Selected Family Characteristics: 1998 to 2007." In, StatisticalAbstract of the United States: 2010 (2012). http://www.census.gov/compendia/statab/2012/tables/12s0721.pdf. CompareCaner, Asena, and EdwardWolff. "Asset Poverty in the United States, 1984-1999." Challenge 47,no. 1 (2004): 13 (finding that median net worth during the 1990s in 1999dollars was $56,500).

[iii]Census, U.S. Departmentof. "Table 710. Poverty Thresholds by Size of Family Unit: 1980 to2009." In, StatisticalAbstract of the United States: 2010 (2012). http://www.census.gov/compendia/statab/2012/tables/12s0710.pdf.

[iv]Baron, Jane. "The'No Property Problem': Understanding Poverty by Understanding Wealth.". MichiganLaw Review 110 (2004): 1000.

[v]Caner, Asena, and EdwardWolff. "Asset Poverty in the United States, 1984-1999." Challenge 47,no. 1 (2004): 11.

[vi]Baron, Jane. "The'No Property Problem': Understanding Poverty by Understanding Wealth.". MichiganLaw Review 110 (2004): 1000.

[vii]In the United States,the poor have traditionally been "negative symbols of moral degradationagainst which middle class identity has been defined." (Jones, Gavin. AmericanHungers: The Problem of Poverty in U.S. Literature 1840-1945. Princeton: Princeton University Press,2008. p. 9). They have been blamed for their moralfailings, "their passivity and disorganization, effectively rationalizingschemes to limit welfare and other forms of economic redistribution." (ibid.at 16.). Forbetter or worse, the poor have been the moral punching bags of America's statuspolitics. (ibid; Evelyn Z. Brodkin, "The Making of anEnemy: How Welfare Politics Construct the Poor," Law & Social Inquiry 18, no. 4 (1993): 647, 648. Hudson,Kenneth, and Andrea Coukos. "The Dark Side of the Protestant Ethic: AComparative Analysis of Welfare Reform." Sociological Theory 23,no. 1 (2005): 1-24).Yet, the American moral arena has also placed great emphasis on caring andcompassion and on attempting to find ways to include (or re-include) those whohave gone by the wayside. (Heclo, Hugh. "General Welfare and Two American PoliticalTraditions." Political ScienceQuarterly 101, no. 2 (1986): 179-96). The proposal submitted here seeks to resolve this moral tensionbetween dispositions insisting on individuality and those claiming collectiveresponsibility -- a tension that continues to drive the policy debate onpoverty to this day.

[viii]For a detailed analysis of "net worth" and an explanation of how themedian net worth numbers are gathered and compiled, see Bucks, BrianK., Arthur B. Kennickell, Traci L. Mach, and Kevin B. Moore. "Changes inU.S. Family Finances from 2004 to 2007: Evidence from the Survey of ConsumerFinances." In, www.federalreserve.gov (2009). http://www.federalreserve.gov/econresdata/scf/files/2007_scf09.pdf.

[ix]Johnson, Simon."The Quiet Coup." the Atlantic, Sept. 30 2009.

[x]Federal Reserve System,Board of Governors of. "Resources for Stabilizing Communities." 2011.(accessed 10/7/2011 online athttp://www.federalreserve.gov/communitydev/stablecommunities.htm).

[xi]Californians forCommunity Empowerment, Alliance of, and California Reinvestment Coalition."The Wall Street Wrecking Ball: What Foreclosures Are Costing Los AngelesNeighborhoods." 14. (accessed 10/7/2011 online at http://www.calorganize.org/sites/default/files/WreckingBall_LosAngeles_web_0.pdf), 2011.

[xii]Bivens, Josh. Failure by Design: The Story Behind America's Broken Economy. Ithaca and London: ILR Press, 2011: 26.

[xiii]Short, supra, at 11.

[xiv]Associated Press,“In hard times, tent cities arise across the country” MSNBC, September 18,2008, accessed April 22, 2009 at http://www.msnbc.msn.com/id/26776283//;Associated Press, “Sacramento moving homeless from tent city” MSNBC, April 13,2009, accessed April 22, 2009 at http://www.msnbc.msn.com/id/30199025/

[xv]Johnson, Simon."The Quiet Coup." the Atlantic, Sept. 30 2009.

[xvi]111th Congress. AmericanRecovery and Reinvestment Act of 2009. First Session, H.R. 1. Interms of specifically addressing poverty, ARRA set aside funding for countiessuffering from “persistent poverty” (Sec. 105), tied funding provided forhigher and lower public education to an assurance by grantees that they would“address inequities in the distribution of highly qualified teachers betweenhigh- and low-poverty schools” (Sec. 14001), provided for increases in recoveryzone bond allocations targeted to “recovery zones” having “significant poverty,unemployment, rate of home foreclosures, or general distress” (Sec.1400U-1(b)(1)), and allowed for the issuance of “qualified school constructionbonds” with preferential treatment given to the “100 local educational agencieswith the largest numbers of children ... from families living below the povertylevel” (Sec. 1521). These provisions were embedded within other terms thatprovided “a $20 billion increase for the Supplemental Nutrition AssistanceProgram,” “$2 billion in New Neighborhood Stabilization Funds to help maintainailing neighborhoods,” a $1 billion increase in Community Services Block Grantfunding and a $5 billion increase in the Weatherization Assistance Program,“$3.95 billion in additional funding for the Workforce Investment system,” “anincrease of $25 per week for Unemployment Insurance recipients,” and “an extra$250 payment to Social Security and Supplemental Security Income beneficiaries.”(White House. 2011.Issues: Poverty. 2, http://www.whitehouse.gov/issues/poverty.)

[xvii]White House."Issues: Poverty." In, (2011): 2. http://www.whitehouse.gov/issues/poverty. (accessed 10/7/2011).

[xviii]State Legislatures,National Conference of. "State Budget Update: November 2010." (2010).http://www.ncsl.org/LinkClick.aspx?fileticket=AqSBWjZkwK8%3d&tabid=21829. (accessed 10/7/2011)

[xix]Obama, Barack. "TheAmerican Jobs Act: President Obama's Plan to Create Jobs Now." (2011). http://www.whitehouse.gov/sites/default/files/omb/legislative/reports/american-jobs-act.pdf. (accessed 10/7/2011)

[xx]HUD. "Reforming America's Housing FinanceMarket: A Report to Congress." edited by Department of the Treasury andDepartment of Housing and Urban Development, 32. Washington D.C., 2011: 12. While the poverty debate in the United Stateshas generally been illuminated through welfare and family policy, the Public Housing Act of 1937 establisheda framework for public housing that remained in place until 1998 when it wassubstantially amended. The PHAcontributed in great measure to the settlement of large masses of homeless andmigrating American workers (Depastino,Todd. Citizen Hobo: How a Century of Homelessness Shaped America. Chicago and London: The University ofChicago Press, 2003),yet made public housing available only to those who were earning some income (n.A. "United States Housing Act of 1937 asAmended by the Quality Housing and Work Responsibility Act of 1998 as of3/2/1999." Washington D.C.: Department of Housing and Urban Development,1999 (accessed 10/7/2011 online at http://www.hud.gov/offices/ogc/usha1937.pdf)). Itsamendment in 1998 articulated a policy recognition that housing could not (andwould not) be provided for everyone. It also shifted the eligibility focus froman income-based test to a means-based test that took financial hardship intoconsideration. The framework implemented during the New Deal, and continuedtoday, has thus been built around the morality of individual responsibility.The only exception to the policy framework articulated itself during the Kennedyand Johnson Administrations through the EconomicOpportunity Act of 1964 (Economic Opportunity Act. P.L. 88-452, 78 Stat. 508 (1964))EconomicOpportunity Act, P.L. 88-452, 78 Stat. 508 (1964).Economic Opportunity Act, P.L. 88-452, 78 Stat. 508 (1964).Economic Opportunity Act, P.L. 88-452,78 Stat. 508 (1964).Economic OpportunityAct, P.L. 88-452, 78 Stat. 508 (1964).EconomicOpportunity Act, P.L. 88-452, 78 Stat. 508 (1964).Economic Opportunity Act, P.L. 88-452, 78 Stat. 508 (1964)..

[xxi]Fisher, Gordon M. "The Development of theOrshansky Poverty Thresholds and Their Subsequent History as the Official U.S.Poverty Measure." In, (1997).Published electronically Last Revised December 20, 2010. http://www.census.gov/hhes/povmeas/publications/orshansky.html: 17-18.

[xxii]Id. at 21-22.

[xxiii]Id. at 23. Citing, Povertyand Family Assistance, Panel on, Committee on National Statistics, Commissionon Behavioral and Social Sciences and Education, and National Research Council.Measuring Poverty: A New Approach. Washington, D.C.: National Academy Press, 1995. (accessed 11/16/2011 at http://www.census.gov/hhes/povmeas/methodology/nas/report.html.).

[xxiv]Poverty and Family Assistance, supra,Summary at 4.

[xxv]Short, Kathleen. "The Research: SupplementalPoverty Measure: 2010." In, Current Population Reports no. P60-241,November 2011 (2011): 8. (accessed 11/15/2011 at http://www.census.gov/hhes/povmeas/methodology/supplemental/research/Short_ResearchSPM2010.pdf).

[xxvi]Fisher, supra, at 7 ("The complete contrast between the fate ofthese 1960 items and the fate of Orshansky's 1963 and 1965 work is anoutstanding illustration of her own comment, 'Apparently the right timing is asimportant as the right idea.'").

[xxvii]Calmes, Jackie."Jobs Plan Stalled, Obama to Try New Economic Drive." In, New York Times (2011). Publishedelectronically 10/23/2011. (accessed 11/17/2011 at http://www.nytimes.com/2011/10/24/us/politics/jobs-plan-stalled-obama-to-try-new-economic-drive.html?_r=1&partner=rss&emc=rss&wpisrc=nl_wonk.)

[xxviii]The use of this tactic to slide past Congress to still achieve policy goalsrelated to poverty may also be a good indicator of President Obama's character(as a participant in the policy debate on poverty). As South Korea's PresidentLee was recently quoted as saying: "One thing that I've always noticed about Obama isthe fact that he displays a lot of Asian characteristics — both in histemperament and way of thinking," Lee says. "Outwardly he's very calmand collected, but inside he's a man of resolve." Lim, Louisa. "South Korean President FacesMounting Pressures." In, npr(2011). Published electronically 11/15/2011. http://www.npr.org/2011/11/15/142307775/south-korean-president-faces-mounting-pressures.

[xxix]Caner, Asena, and EdwardWolff. "Asset Poverty in the United States, 1984-1999." Challenge 47,no. 1 (2004): 6.

[xxx]Id.

[xxxi]This formula is modifed and adopted from Caner, Asena, and Edward Wolff. "Asset Poverty in the UnitedStates, 1984-1999." Challenge 47, no. 1 (2004): 11. See also generally Brealey, Richard,Stewart Myers, and Franklin Allen. Principles of Corporate Finance. 10thed.: McGraw-Hill/Irwin, 2010.

[xxxii]According to Caner, "[t]heincome flow generated by wealth can be computed as a lifetime annuity that runsdown wealth to zero at the end of one's lifetime." (Caner, Asena, and Edward Wolff. "Asset Povertyin the United States, 1984-1999." Challenge 47, no. 1 (2004): 9).This is not an uncommon methodology to assessing the current value of financialassets. See generally Brealey,Richard, Stewart Myers, and Franklin Allen. Principles of Corporate Finance.10th ed.: McGraw-Hill/Irwin, 2010.

Performance Audits and the Press: Who’s Your Buddy When Auditors Obfuscate?

2011-12-04T15:44:00.001-05:00

This paper was written for GAFL652 - Government Auditing. The power point slide presentation for this paper is posted separately.

Performance Audits and the Press:Who’s Your Buddy When Auditors Obfuscate?

Thispaper reviews 3 performance audits conducted by the Government Accountability Officeduring the past year under the Government Auditing Standards[i]and analyzes the role of the press and the media in relation to those audits.The three performance audits reviewed are: (1) "Suspension and Debarment:Some Agency Programs Need Greater Attention, and Governmentwide Oversight Couldbe Improved;"[ii](2) "Contingency Contracting: Improved Planning and Management OversightNeeded to Address Challenges with Closing Contracts;"[iii]and "Defense Contract Management Agency: Amid Ongoing Efforts to RebuildCapacity, Several Factors Present Challenges in Meeting Its Mission."[iv]

Thethree audits relate to and review the United States government's handling ofmilitary contracts during the wars in Iraq and Afghanistan. The paper willfirst review in general terms press reports on fraud and abuse in militarycontracting during these two wars, will then turn its attention to the threeaudits and their findings and recommendations, and will conclude with anassessment of the effective role of performance management of governmentcontracts and respond to the question of whether the interplay between themedia and government auditing is meaningful.

The Press and Government Contractsduring the Iraq-Afghanistan Contingencies (e.g. Wars)

Theevents of 9/11 overwhelmed the United States and required a quick and decisiveresponse by the nation and - in particular - by the United States military. TheUnited States government (and a large coalition of mainly NATO forces) quicklymoved to invading Afghanistan in late 2001 and Iraq in early 2003. While thecountry was swept up by the euphoria of decisive action, very little press was initiallydedicated to the large amount of money that was flowing into the hands ofmilitary contractors. Military and government personnel were focused onaccomplishing the mission of defeating and rooting out the enemy and general administrativetasks -- such as contract close-out -- were generally left for the final phasesof the contingencies.[v]

By2003, initial reports of inconsistencies and inaccuracies in militarycontracting began appearing in the foreign and domestic press. In December 2003the New York Times reported that in July of that year Halliburton had submitteda $75.7M bid to rebuild a water treatment plant in Iraq.[vi]The report detailed how six weeks later the Bush Administration submitted anappropriation request to Congress for the very same water treatment plant inthe amount of $125M — a 65% increase over the original bid request. Congressapproved the appropriation.

In2005, "The Air" in Melbourne, Australia reported that the UnitedStates Department of Defense had attempted to hide $200M in overcharges fromthe United Nations monitoring board.[vii]According to the report, a case filled with $7.2M in $100 bills had simplyvanished and of $23.34B authorized to, and spent by, the United StatesCoalition Authority, $20B were unaccounted for as of that time. A report in theCanadian press in 2006 showed that following audits of the Canadian military'sramp-up to war and a review of the military's material and personnel needs in2002, issues relating to sufficiency andcorruption in military contracting were not unique to Canada.[viii]Simultaneously in 2006, the Dallas News reported that DynCorp had been awardedbillions of dollars in awards but that lax supervision of subcontractors anddeliberately limited access to the contracts made it almost impossible toassess how the funds were being spent.[ix]

WhileCongress and other watchdogs had begun to scrutinize military contractingrelating to the wars in Afghanistan and Iraq, close investigations into how thefunds were being spent did not begin until after Blackwater mercenaries hadarbitrarily gunned down Iraqi civilians at a square in Baghdad.[x]By 2011, the Washington Post, in reporting about contracting relating to thecontingencies, concluded: "Tens of billions of taxpayer dollars have beenwasted through poor planning, vague and shifting requirements, inadequatecompetition, substandard contract management and oversight, lax accountability,weak interagency coordination, and subpar performance or outright misconduct bysome contractors and federal employees."[xi] As Figure 1 from a 2009 report by the Center for Strategic & International Studiesshows, US$84 billion and US$22 billion incontract spending were documented for Iraq and Afghanistan respectively between2001 and 2009.[xii] A furtherUS$45 billion and $2.3 billion were spent for the Iraqi and Afghan theatersrespectively, totaling US$153.3 billion for that period. This amount reflectsabout half of the amount administered by the Department of Defense's DefenseContract Management Agency.[xiii]

The Three Performance Audits onGovernment Contracting

Untilthe 2006 mid-term elections, Congressional investigation into governmentcontracting was lax or non-existent.[xiv] The threereports auditing military contracting in Iraq and Afghanistan were issued, inpart, on the request of Congressional committees looking into governmentcontracting. While the reports address peculiar issues relating to the handlingof military contracts during the Iraq and Afghanistan wars, theirrecommendations (if followed) lay the foundations for more robust (andcost-effective) handling of large-scale military contingency operations in thefuture.

Suspension and Debarment: SomeAgency Programs Need Greater Attention and Governmentwide Oversight Could beImproved (August 2011)

Thefirst of the three reports reviewed focused on the processes and proceduresfollowed by United Stated government agencies when suspending and debarringgovernment contractors from contracting with the government. Subpart 9.4 of theFederal Acquisition Regulations sets forth the "policies and proceduresgoverning the debarment and suspension of contractors by agencies for thecauses given in 9.406-2 and 9.407-2."[xv]Under the regulations causes for suspension and/or debarment includeembezzlement, bribery, destruction of records, and making false statements.[xvi]Agencies seeking to ascertain whether a contractor is suspended or debarred cancheck the Excluded Parties List System (EPLS), which is operated by the GeneralServices Administration.[xvii]

Inreviewing government-wide suspension and debarment processes and procedures,the GAO found that only 16% (or 4,600 cases) of all cases (roughly 29,000cases)[xviii]in the "EPLS were suspensions or debarments while the remaining 84 percent... were other exclusions based on violations ... from certain prohibitedconduct."[xix] Of those,only 53% were procurement-related and based on violations of the Federal Acquisition Regulations.[xx]As Figure 2 copied from the report shows, most of the procurement-related casesoriginated from action taken by the Defense Logistics Agency, the Department ofthe Navy, the General Services Administration, and U.S. Immigration and CustomsEnforcement.[xxi]As can be seen from figure 2, while U.S. Immigration and Customs Enforcementhad a lower percentage of contract obligations than the U.S. Treasury, theDepartment of State, or the Federal Emergency Management Agency, it reported agreater number of procurement-related suspension and debarment cases.

Intheir report the GAO concluded that the four agencies that reported the mostsuspension and debarment cases shared three common traits that made adifference: (1) They had "a dedicated suspension and debarment programwith full-time staff,"[xxii] (2) They"had detailed policies and procedures that supplement FARrequirements,"[xxiii] and (3) They"engag(ed) in practices that encourag(ed) an active referralprocess."[xxiv] That is,they referred "appropriate matters to their suspension and debarmentofficials for consideration." Most importantly, senior officials of eachorganization promoted "a culture of acquisition integrity where suspensionand debarment is understood and utilized by staff."[xxv]

Contingency Contracting: ImprovedPlanning and Management Oversight Needed to Address Challenges with ClosingContracts

Thesecond report reviewed focused on the processes and procedures followed by theDepartment of Defense in closing contracts awarded in response to the needs arisingfrom the Iraq and Afghanistan contingencies.[xxvi]Figure 1 of the report provides an overview of the Contract Closeout Process.[xxvii] As caneasily be seen from the report, each contract requires an administrator toperform a series of discrete steps to ensure that the goods and services weredelivered as agreed, that payments were made correctly and accurately, that allindirect costs have been settled, that the government is released from anyliability for claims, and that any excess funds are deobligated.[xxviii]"A contract not closed within the FAR time frames is considered to be overage for closeout and increases an organization's exposure to a number offinancial issues."[xxix]

Amongother things, the GAO found that (1) "DOD does not have visibility intothe total number of its Iraq contracts eligible for closeout,"[xxx]"weak internal controls, turnover in contracting personnel, and competingdemands contributed to incomplete or inaccurate information that hinderedmanagement oversight of contracting activities,"[xxxi]and (3) the ability to close contracts included "the failure to plan foror emphasize the need to close ... contracts ..., staffing shortfalls, andcontractor accounting issues."[xxxii] Morepeculiarly, the GAO found that in Iraq "[e]each regional contracting centerawarded manually written contracts and documented contract actions onindependent spreadsheets, ... [that] included duplicate or inaccurate contractnumbers and inaccurate period[s] of performance dates."[xxxiii]These conditions were "exacerbated by the constant turnover of contractingpersonnel and the command's emphasis on awarding contracts to support the warfighter."[xxxiv]

Thechallenge posed by the sheer volume of contracts that currently requireclosing is reflected in Table 1 of the report.[xxxv]As can be seen from the table, there are currently approximately 103,693contracts that have been inventoried of which only 30,245 have actually beenreviewed.[xxxvi]More startling, of the 73,448 contracts remaining to be reviewed, the GAO wasunable to ascertain the place of performance for 14,336 due to lack of data.[xxxvii]

Giventhe severe nature of the problem, the GAO made recommendations that werefocused more on preparing for the next contingency. Accordingly, the GAOrecommended "advanced planning to close contracts awarded in a contingencyenvironment, encouraging a greater command emphasis on completing andoverseeing administrative requirements, and establishing a process to providebetter management visibility and insight into contracting efforts."[xxxviii]As also follows from the next report reviewed, the GAO further recommended theDOD ensure that its "contracting workforce has the capacity to provideappropriate contract administration and contractor oversight."[xxxix]

Defense Contract Management Agency:Amid Ongoing Efforts to Rebuild Capacity, Several Factors Present Challenges inMeeting Its Missions

Thethird report reviewed for this project was GAO's recently issued review of theDepartment of Defense's Defense Contract Management Agency.[xl]The Defense Contract Management Agency (DCMA) supervises "more than $360billion [in awarded] contracts ... to help ensure that goods and services aredelivered on time, at projected cost, and that they meet performancerequirements."[xli] The agencywas founded by the Department of Defense in 1990 "to consolidate andstreamline contract administration services" in the Defense LogisticsAgency and became an independent agency in 2000. It's 10,000 staff, of which500 are military, oversee 71 functions under the Federal AcquisitionsRegulations, including "activities such as issuing contract modifications,reviewing and approving contractors' requests for payments, performingproduction and engineering surveillance, ensuring contractor compliance withcontractual quality assurance requirements, and maintaining surveillance offlight operations."[xlii]

Inreviewing the DCMA's operations, the GAO concluded that the "DCMA'sworkforce numbers [had] declined [since the 1990s] and there was significanterosion of some areas of expertise ... that the organization could not fulfillall of its oversight functions."[xliii]When Figures 1 and 2 of the GAO performance audit are put side-to-side this marked lack of capacity becomesimmediately clear.[xliv] Figure 1shows the actual and projected number of civilian DCMA

employees declining fromaround 20,000 in 1993 to around 10,000 in 2007 and then increasing to thecurrent level. At the same time, Figure 2 shows unliquidated obligationsdeclining from around 300 billion in 1990 to around 100 billion in 1999 andthen dramatically increasing in a near straight line to their current level ofaround 250 billion.

Inaddition to determining that the DCMA lacked a sufficient and qualifiedworkforce, the GAO also found that the DCMA's efforts in the mid-2000s todecentralize administrative functions and to implement performance managementtools and "thousands of metrics" "with the intent of becomingmore customer-focused" had resulted in "inconsistent oversight andsurveillance activities" and caused a significant "level of confusionamong ... program office customers."[xlv]As the GAO stated: "Contractor business systems and internal controls arethe first line of defense against waste, fraud, and abuse on governmentcontracts, and so the government is at greater risk of overpaying contractorsif possible deficiencies exist in the systems."[xlvi]Among its several recommendations, therefore, the GAO suggested that DCMA (1) improveinternal systems to better reflect contract status, (2) clarify confusion onfunding sources for new hires, (3) centralize operations, and (4) reduce thenumber of metrics used to assess contractor performance.[xlvii]

Conclusion

Thethree performance audit reports conducted by the Government AccountabilityOffice and reviewed in this paper highlight the importance of performanceauditing to effective government operations and administration and underscorethe difference political willingness can make in ensuring that fraud, waste,and corruption are effectively prevented and caught. If it had not been for thedomestic and international press's vigilance during the early and mid-2000s, itis doubtful that Congress would have begun suggesting that the GAO reviewmilitary contracting operations and functions. And while it appears thatgovernment auditing of military contracts relating to the Iraq and Afghanistancontingencies only began with any seriousness after the 2006 mid-term electionsand the shift of the House of Representatives to Democratic control, there's nodoubt that if the recommendations in these reports are followed, the Departmentof Defense should be able to implement processes and procedures that will allowthe United States to more effectively leverage its resources in future wars andbetter meet the sudden demands placed on it through unexpected contingencies.

Equallyimportant, these reports highlight that performance auditing under theGovernment Auditing Standards can be used to effectively review whethergovernment fads such as decentralization and administering bureaucracies byperformance metrics should be assimilated into institutional conscience orshould be discarded as the pipedreams of consultants and business-managers thatthey often are. Most important, however, the review of the three reports andthe preceding press reports of corruption and waste in military contractinghighlight the critical role the Fourth Estate plays in ensuring that thegroundwork of ethical government does not erode into the quicksand of officialcorruption and profiteering that is so endemic to the administration ofgovernment in so many countries with lesser traditions of transparency andaccountability.

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Baker, Richard. "Revealed: How Iraq's Future Went up in Smoke."In, The Age no. December 10 (2005). www.lexisnexis.major.world.publications.

Blanchfield, Mike. "Military Losing Battle: Challenges IncludeChanging Demographics, Shrinking Ad Budget, Loss of Professionals."In, The Gazette (Montreal) no. May 17 (2006). www.lexisnexis.major.world.publications.

Carter, Sara A. "Blackwater under Review in Afghanistan; Iraq OustsContractor." In, The Washington Times no. February 3(2009). www.lexisnexis.major.world.publications.

DeYoung, Karen. "'Crucial' Audit on Afghanistan." In, washingtonpost.comno. October 28 (2010). www.lexisnexis.major.world.publications.

———. "For the U.S., Afghan Corruption Is an Elusive Target."In, washingtonpost.com (2010). www.lexisnexis.major.world.publications.

Franzel, Jeanette M. GovernmentAuditing Standards: 2011 Internet Version. Washington D.C.: Government Accountability Office, 2011. http://www.gao.gov/govaud/iv2011gagas.pdf.

Gerth, Jess, and Don Van Natta. "The Struggle for Iraq: PostwarRebuilding." In, The New York Times no. December 29(2003). www.lexisnexis.major.world.publications.

Hutton, John P. "Contingency Contracting: Improved Planning andManagement Oversight Needed to Address Challenges with Closing Contracts."edited by United States Government Accountability Office, 42. Washington, D.C.:US GAO, 2011.

———. "Defense Contract Management Agency: Amid Ongoing Efforts toRebuild Capacity, Several Factors Present Challenges in Meeting ItsMission." edited by United States Government Accountability Office, 44.Washington, D.C.: US GAO, 2011.

Pincus, Walter. "Military Lacks Overall Plan forAfghan Building Projects." In, washingtonpost.com no. January25 (2011). www.lexisnexis.major.world.publications.

Robberson, Tod. "Dyncorp: In the Shadows of WarExclusive: Contractor with Texas Ties Has Big Role, with LittleOversight." In, DallasNews.com (2006). www.lexisnexis.com.

Shays, Christopher, and Michael Thibault."Reducing Waste in War Contracts." In, washingtonpost.comno. August 29 (2011). www.lexisnexis.major.world.publications.

Woods, William T. "Suspension and Debarment:Some Agency Programs Need Greater Attention, and Governmentwide Oversight CouldBe Improved." edited by United States Government Accountability Office,45. Washington, D.C.: US GAO, 2011.

Endnotes

[i] Franzel, JeanetteM. Government Auditing Standards: 2011 Internet Version. Washington D.C.: GovernmentAccountability Office, 2011 (accessed 12/3/2011 at http://www.gao.gov/govaud/iv2011gagas.pdf).

[ii] Woods, William T."Suspension and Debarment: Some Agency Programs Need Greater Attention,and Governmentwide Oversight Could Be Improved." edited by United StatesGovernment Accountability Office, 45. Washington, D.C.: US GAO, 2011 (accessed12/3/2011 at http://www.gao.gov/new.items/d11739.pdf).

[iii] Hutton, John P."Contingency Contracting: Improved Planning and Management OversightNeeded to Address Challenges with Closing Contracts." edited by UnitedStates Government Accountability Office, 42. Washington, D.C.: US GAO, 2011(accessed 12/3/2011 at http://www.gao.gov/new.items/d11891.pdf).

[iv] Hutton, John P."Defense Contract Management Agency: Amid Ongoing Efforts to RebuildCapacity, Several Factors Present Challenges in Meeting Its Mission."edited by United States Government Accountability Office, 44. Washington, D.C.:US GAO, 2011 (accessed 12/3/2011 at http://www.gao.gov/new.items/d1283.pdf).

[v] Hutton, John P."Contingency Contracting: Improved Planning and Management OversightNeeded to Address Challenges with Closing Contracts." edited by UnitedStates Government Accountability Office, 42. Washington, D.C.: US GAO, 2011:18-19. (Other assumptions also contributed to the poor administration ofcontracts during the contingencies. For example, at the same place in thereport, the auditors noted that "DOD officials noted that the departmentinitially assumed that post-conflict stability and reconstruction efforts wouldnot last for an extended period and as such, any organization that awardedcontracts to support these efforts would close contracts under theorganization's standard processes.")

[vi] Gerth, Jess, andDon Van Natta. "The Struggle for Iraq: Postwar Rebuilding." In, The New York Times no. December29 (2003). www.lexisnexis.major.world.publications.

[vii] Baker, Richard."Revealed: How Iraq's Future Went up in Smoke." In, The Age no. December 10 (2005). www.lexisnexis.major.world.publications.

[viii] See generally Blanchfield, Mike. "MilitaryLosing Battle: Challenges Include Changing Demographics, Shrinking Ad Budget,Loss of Professionals." In, TheGazette (Montreal) no. May 17 (2006). www.lexisnexis.major.world.publications.

[ix] Robberson, Tod. "Dyncorp:In the Shadows of War Exclusive: Contractor with Texas Ties Has Big Role, withLittle Oversight." In, DallasNews.com(2006). www.lexisnexis.com.

[x] Carter, Sara A."Blackwater under Review in Afghanistan; Iraq Ousts Contractor."In, The Washington Timesno. February 3 (2009). www.lexisnexis.major.world.publications.

[xi] Shays,Christopher, and Michael Thibault. "Reducing Waste in War Contracts."In, washingtonpost.com no.August 29 (2011). www.lexisnexis.major.world.publications. See also DeYoung, Karen. "For theU.S., Afghan Corruption Is an Elusive Target." In, washingtonpost.com (2010). www.lexisnexis.major.world.publications.; DeYoung, Karen."'Crucial' Audit on Afghanistan." In, washingtonpost.com no. October 28 (2010). www.lexisnexis.major.world.publications.; Pincus, Walter."Military Lacks Overall Plan for Afghan Building Projects." In, washingtonpost.com no. January25 (2011). www.lexisnexis.major.world.publications.

[xii] Sanders, Gregory. "Contractingfor Operations in Iraq and Afghanistan (11/05/2009)." In Current Issues,edited by Defense-Industrial Initiatives Group, 2. Washington, D.C.: Center forStrategic & International Studies, 2009.

[xiii] TheDefense Contract Management Agency administers about US$360 billion incontracts for the Department of Defense. Hutton, John P. "Defense ContractManagement Agency: Amid Ongoing Efforts to Rebuild Capacity, Several FactorsPresent Challenges in Meeting Its Mission." edited by United StatesGovernment Accountability Office, 44. Washington, D.C.: US GAO, 2011: 1

[xiv] See e.g. Baker, Richard. "Revealed: How Iraq'sFuture Went up in Smoke." In, The Age no. December 10 (2005). www.lexisnexis.major.world.publications. (noting thatCongressional investigations into the corruption in military contracting inIraq and Afghanistan did not begin until 2006).

[xv] See Federal Acquisition RegulationsSection 9.400(a)(a) (accessed 12/4/2011 at https://www.acquisition.gov/far/current/html/Subpart%209_4.html).

[xvi] Id. Section 9.406-2(a)(3) and9.407-2(a)(3).

[xvii] Id. Section 9.404.

[xviii] Woods, William T."Suspension and Debarment: Some Agency Programs Need Greater Attention,and Governmentwide Oversight Could Be Improved." edited by United StatesGovernment Accountability Office, 45. Washington, D.C.: US GAO, 2011: 8.

[xix] Id. at 7.

[xx] Id. at 8.

[xxi] Id. at 12.

[xxii] Id. at 13.

[xxiii] Id. at 15.

[xxiv] Id.

[xxv] Id.

[xxvi] Hutton, John P."Contingency Contracting: Improved Planning and Management OversightNeeded to Address Challenges with Closing Contracts." edited by UnitedStates Government Accountability Office, 42. Washington, D.C.: US GAO, 2011.

[xxvii] Id. at 7.

[xxviii] Id. (Figure 1).

[xxix] Id. at 7.

[xxx] Id. at 8.

[xxxi] Id.

[xxxii] Id. at 13.

[xxxiii] Id. at 9.

[xxxiv] Id.

[xxxv] Id. at 10.

[xxxvi] Id. at 10 (Table 1).

[xxxvii] Id. at 10 (note a to Table 1).

[xxxviii] Id. at 32.

[xxxix] Id. at 32.

[xl] Hutton, John P."Defense Contract Management Agency: Amid Ongoing Efforts to RebuildCapacity, Several Factors Present Challenges in Meeting Its Mission."edited by United States Government Accountability Office, 44. Washington, D.C.:US GAO, 2011.

[xli] Id. at 1.

[xlii] Id. at 3 (citing Section 42.302(a) and 42.302(b) of the Federal AcquisitionsRegulation).

[xliii] Id. at 8.

[xliv] Id. at 9-10.

[xlv] Id. at 15-16.

[xlvi] Id. at 27.

[xlvii] Id. at 35-37.

Performance Audits & The Press - Study of 3 GAO Audits

2011-12-03T13:42:00.001-05:00

This is the final presentation for Government Performance Auditing class, Fall 2011.

Paper and Presentation: When the Chips Come Down to Visions, Tides, and Perspectives: Reading Goodsell, Chapter 7: Fads and Fundamentals of Bureaucracy

2011-11-26T22:09:00.001-05:00

When the Chips Come Down to Visions,Tides, and Perspectives: Reading Goodsell, Chapter 7: Fads and Fundamentalsof Bureaucracy — PeterManda – GAFL732 – Prof. Howard – Fall 2011

There is amoment following a successful revolution where the committee structure that drivesthe revolution transforms and begins to entrench itself into a bureaucracy.[i]That moment usually comes when the revolutionary government faces a foreigninvasion (as in France with the Prussian invasion of 1772, Iran with the Iraqiinvasion of 1980, the United States with the British in the War of 1812, andRussia with the German invasion of February 1918). Thus, in contemporaryregimes, community committees have their origins in protest and revolutionaryfervor and bureaucracies find their origins in military necessity.[ii]I personally have experienced 4 types of bureaucracies in my lifetime: (1) Thedictatorial bureaucracy [Iran, Czechoslovakia, and Chile], (2) the nepotisticbureaucracy [Austria], (3) the streamlined bureaucracy [Japan], and (4) theFederalist bureaucracy [the United States].[iii]

Classifying Bureaucracies: The 4Types

The dictatorial(or authoritarian) bureaucracy is rigidly driven by a need to enforcethe will of the state. The state in many cases is an individual (as in Iran andChile) or a junta (as in Burma). In general, dictatorial bureaucracies exist ina state that is insecure, fears for its continuity, and seeks to rigidlyenforce its will to the exclusion of dissent. In dictatorial bureaucracies, thefear of abduction and of arbitrary administrative (usually through police)action, and the risk of death when openly opposing state policy are pervasiveand weigh on the conscience of all individuals. Political change is puncturedby frequent curfews, blackouts, and martial law. Travel is demarcated through checkpoints,speech is dedicated to perpetuating the state image, and assembly outside ofthe family-sphere is confined to pre-approved gatherings that are oftenattended by representatives of the state (usually the local constable). Indictatorial bureaucracies, junta action is state action.

Partymembership, geographic or territorial affiliation, and personal and filial tiesdefine nepotistic bureaucracies. The state is usually parliamentary(as in Austria, Mexico, or Brazil) and parliamentary factions are built anddeveloped through a more-or-less rigidly defined spoils system that securesparty and political loyalty. To ensure effective governance, accountability,and a measure of transparency the bureaucracy is weighed down by a long list ofrules and regulations that require administrators to confirm their acts andtheir interaction with citizens through complex administrative approval systemsthat include revenue stamp requirements for any official documentation,multiple approval layers, and the intervening of political officials who oftenact as deus ex machina whenintransigence grinds the administrative process to a halt. In nepotisticbureaucracies, filial action is state action.

Streamlinedbureaucraciesare most often found in Commonwealth countries or in countries that have beenoccupied by the United States. They are characterized by parliamentary systemsthat attach like transistors above a traditional tribal or religious template thatpredates the occupation period. Here the bureaucracies cater essentially to twodifferent systems — the local / traditional system where ethnographic customsdefine interactions and the superimposed state system that follows Westernizedprecepts inculcated through the administrative demands and requirements ofconquering forces. Thus, the bureaucratic structure of Nigeria, the Navaho,Tibet, and Japan are remarkably similar. The local religious or tribal leaderwill have more power over family and neighborly disputes than the local cityhall or local politician. In this sense, the bureaucracies are streamlined,since they are designed to meet quasi-colonial or state-treaty requirementsthat aim at securing military hegemony and national cohesion. In streamlinedbureaucracies, tribal action is state action.

Federalist bureaucracies, on the other hand, arecharacterized by layering. There is a local bureaucracy, a state bureaucracy,and a federal bureaucracy. In contrast to streamlined bureaucracies, localbureaucracies in federalist systems have the power to influence filialrelations. While there are ward leaders and local power brokers, they interactwith the community through the bureaucracy. The boundaries between eachbureaucratic layer are clearly defined and much administrative time is spent ondefining and defending those boundaries. In federalist bureaucracies, agencyaction is state action.

Given thisbackground, Goodsell (to me) comes up short.

Summarizing Goodsell's Chapter 7

Goodsell opensChapter 7 with a restatement that "governmental administration in America,despite conventional opinion to the contrary, is relatively effective,reasonably efficient, and supportive of our democratic way of life."[iv]I suppose the emphasis should be on the word "relatively." Havinglived in Trenton for about a year and also having been exposed to life among thelower classes, I have experienced (and heard of) enough horror-stories ofarbitrary and capricious action to know full well that governmentaladministration is only "effective," "reasonably efficient,"or "supportive of our (?!!) democratic way of life," if "our"is defined as those who live well above the poverty threshold and are a part ofthe moneyed classes. I suppose that if you're sitting in rural Blacksburg,Virginia and are reflecting on how minorities have been allowed to participatein society, you could conclude that American bureaucracies are working to"strengthen democracy by bringing citizens into the social mainstream andinto active citizenship."[v] Indeed,after reading this chapter and considering the various "re-form"proposals Goodsell reviews in this chapter, I remain convinced of my initialproposition in the seminar paper I wrote at the outset of the semester:"administrative reform, in its focus on creating efficiency through theelimination of redundancy and the paring down of excess and waste, creates apeculiar topography that seeks to reinforce the continued exclusion ofAfrican-Americans from the American dream of middle class wealth and success."[vi]

I don'tcome to this conclusion lightly — and, certainly, some of my classmatesdisagree (including African-Americans). But over the years of living withAmerican "exceptionalism," I haven't come across a genuine argumentthat has convinced me otherwise. The "reforms" Goodsell reviews toreflect his notion of American administrative "resilience and reliability"[vii]could equally be seen as revisions on the themes of racial exclusion and minorityoppression. If "Reform! is thewatchword for American public administration," what changes have actuallybeen brought about? Goodsell doesn't really answer the question. Rather, heengages in a critical catalogue of the various reforms and reform movements inthe United States — ostensibly to convince us that these movements (these fadsand fundamentals) allow "the most creative minds in each bureaucracy ...[to] become personally engaged withthe work of individual administrative institutions."[viii]

Goodsellclassifies his catalogue of administrative fads and fundamentals into threegroups of visions, tides, and perspectives:

. GuyPeters's four types of emerging vision

o Market Model

o Participative Government

o Flexible Government

o Deregulated Government

. PaulLight's four tides of reform

o Scientific Management

o War on Waste

o Watchful Eye

o Liberation Management

. Goodsell'sthree perspectives

o Consolidate-Control Perspective

o Downsize-Outsource Perspective

o Business Model

Goodsellthen proceeds to discount the first two models and prefers to analyze the visionsand types from the angle of his own perspectives. His approach here is ratherunfortunate, because in many ways the three perspectives he chooses are morereflective of the perspectives of the Reagan / Reinvention years we reviewed inChapters 39 to 54 of Shafritz.[ix] In otherwords, Goodsell may well be accused of himself having fallen victim to the fadof decentralization that began with the "reforms" of the utility andwelfare systems in the United Kingdom and Chile and ended with the demise ofEnron.

That said,according to Goodsell, the "Consolidate-Control Perspective" focuseson the government's drive to "assure that administration is efficient,orderly, and coordinated" to allow both for "democraticresponsiveness" and for the "chief executive[to be] regarded as the principalchannel through which policies and programs are ... shaped in accord withelectoral and statutory guidance."[x]While Goodsell focuses on FEMA and the Department of Veterans Affairs, heclaims that the model is mobilized only "when the chips [are] down"as otherwise, "on its face, it is incompatible with divided government, networkedpolicymaking, bottom-up influence, and collaborative governance."[xi]

On theother hand, Goodsell claims that the "Downsize-Outsource Perspective"allows the government to focus on what is "inherently governmental"as defined by the Federal Activities Inventory Reform Act (FAIR). Under FAIR,something is "inherently governmental" when it is "so intimatelyrelated to the public interest as to require performance by Federal Governmentemployees."[xii] Yet, Goodselldoes not address the truly dark consequences of administrative hollowing out[xiii]:Abu Ghuraib, repeated salmonella outbreaks, or deteriorating infrastructurethat is barely managed by so-called public-private partnerships.[xiv]And he makes short-shrift of the Corrections Corporation of America by merelypointing out that the administration of corrections simply "offer[s] agood measure of how the society balances out competing values of stateauthority and fundamental human dignity."[xv]Worse, he misses (or fails to clearly articulate) a fundamental problem withFAIR and the definition of "inherently governmental" functions: Thosefunctions are defined in (and by) the U.S. Constitution. If we take thedefinition of "inherently governmental" cited by Goodsell at itsface, then we are left with (1) the contract clause, (2) Article II, (3)Article III, (4) the contract clause, (5) the due process clauses of the Fifthand Fourteenth Amendments, (6) Article II, and (7) Article II as modified bythe Fifth Amendment.[xvi] Goodsellappears so enamored by bureaucracy that he is even willing to defend itshollowing out, even if that hollowing out contravenes fundamentalConstitutional notions of "inherently governmental."[xvii]

In contrastto the two preceding models, Goodsell divides his third perspective model (theBusiness Model) into "four core concepts: market creation, entrepreneurialconduct, performance measurement, and customer orientation."[xviii]Here Goodsell embeds the conceptual critiques into his overarching"organic"[xix] thesis. Ofthe market creation concept he notes that "market processes areessentially anarchic, in that they involve no community ideals, only privatelybeneficial deals."[xx] Of theentrepreneurial conduct concept, he quips that "[o]ne might also hope thatgovernment executives who adopt the business style will set aside suchEnron-style practices as looting the corporation, deceiving stockholders, andinventing fraudulent accounting practices."[xxi]Of performance management he glosses over the rigidities of accounting-drivenaccountability by quoting Hyong Yi "that the road to improvinggovernmental performance is not a sprint, but a never-ending marathon over manydifferent types of terrain that will require a multitude of tools toachieve."[xxii] And ofthe customer orientation concept, he discounts the bumps in the road toconclude that "the adoption of new laws, market principles, andorganizational shifts such as decentralization seem less important thanproviding sufficient resources to agencies and giving employeesmorale-enhancing leadership."[xxiii]

Equallytroubling -- though not as disturbing as glossing over theextra-constitutionality of FAIR's definition of "inherently governmental"-- is Goodsell's closing argument that wraps bureaucracy in the tinfoil of theorganic model of governing.[xxiv] Inbusiness and urban planning, organic models are lauded for their "spontaneity"and thus are deemed superior to centrally-planned models for growth.[xxv]The organic argument that Goodsell espouses thus lauds current trends ofgovernment hollowing-out and business-driven deconstruction as positive overthe aesthetic of community standards and norms. It rests its belief inlong-term survival of the current American state on the laurels of a"citizen engagement" that ostensibly can be fostered and culled through"a citizen police academy."[xxvi]

Summary

Ultimately,Goodsell's argument hails private "citizen engagement" over communitynorms and standards to the point that he is willing to allow the hollowing outof the bureaucratic state by private interests in the name of long-termadministrative resilience and reliability. Goodsell's argument, andparticularly his analysis of fads and fundamentals in American bureaucracy,would be much more successful if he had undertaken a comparative approach. Forexample, have the other bureaucratic forms I roughly delineated at the outsetsuffered from the same fads and fundamentals? Why and why not? Morespecifically, privatization worked extremely well under Pinochet. Does thatmean that Pinochet's bureaucracies were open to "citizen engagement"and were thus "good"? Is being open to fads a sign of beingdemocratic, or not? For example, can one say that the adoption of performancemanagement techniques in the urban planning department of Vienna have actuallyled to greater democracy and to a loosening of the Proporz system? Have certainfundamentals resulted in greater civil rights? Or not? That is, has theestablishment of a supra-bureaucracy in the European Union really led togreater human rights? The success of the European Court of Human Rights mayindicate as much; but the recent collapse of the Greek and Italian socialwelfare nets and the rise of radicalism across Europe would temper that notion.

Despite itsbeing a polemic, Goodsell's effort misses the opportunity to articulate ameasure for scaling the benefits of bureaucracy against its darker side: Theability to extend and perpetuate authoritarian government and dictatorship (andthus minority-exclusion exceptionalism) through its tendency to administer thestate efficiently and effectively under rigid accountability and frameworks of personalethics and community ideals that are (or become) suppressed under the thumb ofcoercive state conduct "[even] when the chips are [not] down."

Bibliography

Ammon, Harry. James Monroe: TheQuest for National Identity. Charlottesville and London: University Press of Virginia, 1990.

Arendt, Hannah. On Revolution. Kingsport, TN: Kingsport Press, 1965.

Confessore, Nicholas. "Policy-Making Billionaires." In, TheNew York Times: Sunday Review | The Opinion Pages (2011). Publishedelectronically 11/26/2011. http://www.nytimes.com/2011/11/27/sunday-review/policy-making-billionaires.html?pagewanted=all.

Dickinson, Laura A. "Government for Hire: Privatizing Foreign Affairsand the Problem of Accountability under International Law." William & Mary Law Review 47 (2005):135.

Goodsell, Charles T. The Case forBureaucracy: A Public Administration Polemic. 4th ed. Washington, D.C.: CQ Press, 2004.

Ibrahim, Darian M. "Financing the Next Silicon Valley." Washington Univ. Law Review 87 (2010):717.

Ketcham, Ralph. James Madison: ABiography. Charlottesville andLondon: University Press of Virginia, 1990.

Shafritz, Jay M., and Albert C. Hyde. Classicsof Public Administration. 7th ed. Boston, Ma: Wadsworth, 2012.

Stivers, Camilla. Governance in DarkTimes: Practical Philosophy for Public Service. Washington, D.C.: Georgetown University Press, 2008.

Weyeneth, Robert R. "The Architecture of RacialSegregation: The Challenges of Preserving the Problematical Past." The Public Historian 27, no. 4 (Fall2005): 11-44.

Endnotes

[i]In describing the American revolution, Hannah Arendt writes: "What enabledthe Founding Fathers to transcend the narrow and tradition-bound framework oftheir general concepts was the urgent desire to assure stability to their newcreation, and to stabilize every factor of political life into a 'lastinginstitution'." Arendt,Hannah. On Revolution. Kingsport, TN: Kingsport Press, 1965: 229. The exigency of war andoutside threats then transform the "desire to assure stability" intoa mechanism that operates to actually "assure" the desire, namely theformation of a bureaucracy to administer the will of the revolutionarygovernment and to an effectively operate it into perpetuity. See Ketcham, Ralph. James Madison: ABiography. Charlottesville andLondon: University Press of Virginia, 1990: 574 (describing Madison'sdetermination "to lay down some rules for conducting the business of the[War] Department") and seeAmmon, Harry. James Monroe: The Quest for National Identity. Charlottesville and London: UniversityPress of Virginia, 1990: 322-323 (describing Monroe's desire to establish anintelligence service in response to the British invasions during the War of1812).

[ii]Goodsell essentially makes this argument in describing his"Consolidate-Control Perspective" of bureaucratic adaptation. Goodsell, Charles T. The Case forBureaucracy: A Public Administration Polemic. 4th ed. Washington, D.C.: CQ Press, 2004: 139,142.

[iii]In my travels across 50 +/- countries, I've encountered variations to theseand, viscerally, these are the 4 general types that I have come across.

[iv]Goodsell, supra: 139.

[v]Goodsell, supra: 141.

[vi]Segregation Through Efficiency: Hayes, Garfield, & Arthur and Civil ServiceReform — Redefining Equality and the Formation of American Bureaucracy1876-1884 (Reading: Shafritz - Chapter 1 - Woodrow Wilson “The Study ofAdministration”). Peter Manda – GAFL732 – Prof. Howard – Fall 2011: 5.

[vii]Goodsell, supra: 141.

[viii]Goodsell, supra: 160.

[ix]Shafritz, Jay M., andAlbert C. Hyde. Classics of Public Administration. 7th ed. Boston, Ma: Wadsworth, 2012: 370-561.

[x]Goodsell, supra: 143.

[xi]Goodsell, supra: 143-144.

[xii]Goodsell, supra: 146-147. Goodsell writes furtheron the definition of "inherently governmental" in FAIR:

The definition is then elaborated as the exercise of judgment anddiscretion in the application of government authority and the execution of U.S.laws so as to: (1) legally bind the government; (2) protect the country bymilitary or diplomatic action; conduct judicial proceedings; (4) engage incontract management; (5) significantly affect the life, liberty, or property ofpersons; (6) appoint or direct officers of the United States; and (7) controlgovernment property or funds.

[xiii]Dickinson, Laura A."Government for Hire: Privatizing Foreign Affairs and the Problem ofAccountability under International Law." William & Mary Law Review 47(2005): 135. Dickinson summarizes the contemporary "hollowing out"trend at 1460-147:

To be sure, manyof the functions that are now being shifted to private actors under contractwith the government were, at some point in the past, similarly performed byprivate actors. Indeed, the modern state itself emerged only relativelyrecently, in a process of increasing centralization and bureaucratization thatculminated in the mid-twentieth century. Thus, one cannot say that there is aone-way move toward ever-increasing privatization. Yet, the unmistakable trendin the past several decades has been toward more and more private contracting,a hollowing out and deconstruction of the state that is in a sense the classiccondition of postmodernity. This trend raises questions about the extent of privateactors' accountability -- to the international community and to variousdomestic and transnational communities -- under international law.

[xiv]Stivers, Camilla. Governancein Dark Times: Practical Philosophy for Public Service. Washington, D.C.: Georgetown UniversityPress, 2008: 104-122.

[xv]Goodsell, supra: 148. To be fair, Goodsell ismaking an implied critique of bureaucracies failures here. He is claiming that governmentbureaucracies are likely better at administering penal colonies andtransportation and that these (and other non-inherent) functions should not beoutsourced for a variety of reasons -- including civil rights concerns.

[xvi]Compare with the original listreprinted supra in note xii. Ineffect, FAIR is a subtle rewrite of the Constitution -- and that rewrite should(at a minimum) raise some Vulcan's eyebrow.

[xvii]I'm willing to argue that the Constitution is flawed and bears re-writing forthe very reasons that Goodsell defends the current bureaucratic framework. Thatis, I view the Constitution as inherently supporting and perpetuating arace-based caste system despite reform. Goodsell misses this point, however;and in doing so, his argument for bureaucracy fails notions of fundamentalfairness and equality.

[xviii]Goodsell, supra: 150.

[xix]Arendt would argue here that Goodsell is being contra-revolutionary. Arendtmakes the convincing argument that America suffers from a "failure toremember that a revolution gave birth to the United States and that therepublic was brought into existence by no 'historical necessity' and no organicdevelopment, but by a deliberate act: the foundation of freedom." Arendt, supra at 216.

[xx]Goodsell, supra: 151.

[xxi]Goodsell, supra: 153.

[xxii]Goodsell, supra: 155.

[xxiii]Goodsell, supra: 156.

[xxiv]Goodsell, supra: 157-158.

[xxv]Ibrahim, Darian M."Financing the Next Silicon Valley." Washington Univ. Law Review 87(2010): 717, 724.

[xxvi]Goodsell, supra: 160-161. And see Confessore, Nicholas. "Policy-MakingBillionaires." In The NewYork Times: Sunday Review | The Opinion Pages (2011). Publishedelectronically 11/26/2011. http://www.nytimes.com/2011/11/27/sunday-review/policy-making-billionaires.html?pagewanted=all.,for the notion that philanthropy, "can never be a substitute forgovernment spending." Indeed, given the issues of private actors assumingcontrol over policy even in the contracting realm, I would argue that nocontracting de facto and per se can never be a substitute forgovernment action and that however I cut it, contracting has morphed into aform of pillage and plunder.

The presentation for this paper follows: