The president's budget as a source of agency policy control.

Author:Pasachoff, Eloise
Position:III. Assessing the OMB's Control of Agency Policymaking Through the Budget Process B. Troublesome Aspects 1. The Lack of Transparency b. Protecting the Deliberative Process through Conclusion, with footnotes, p. 2258-2290
 
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  1. Protecting the Deliberative Process

    OMB's second rationale for requiring secrecy in the intra-executive budget context--protecting the integrity of the government's decision-making process-similarly does not justify the full extent of secrecy employed though it, too, is rooted in valid and important concerns.

    Preliminarily, the mere existence of a FOLA. exemption for documents that reveal the government's deliberative process--Exemption 5 (363)--is no reason to require withholding of those documents. As Attorney General Holder explained in a memorandum sent to agency heads early in the Obama Administration, "an agency should not withhold information simply because it may do so legally." (364) OMB has thus disclosed material protected by Exemption 5 because "disclosure would not create a harm protected by that exemption." (365) Similarly, the executive order that governs regulatory review requires agencies to disclose both their original regulatory proposals and the substantive changes OIRA requested and to explain to the public "in a complete, clear, and simple manner" the differences between the two (366) even though OMB during the Reagan Administration had successfully used Exemption 5 to block disclosure of much more information about the agency-OIRA regulatory process. (367)

    The real question, therefore, is whether it would help or hinder deliberation to disclose predecisional budget documents that reveal the development of OMB's and agencies' thinking, (368) in keeping with the purpose of Exemption 5. (369) The deliberative costs associated with too much transparency often include entrenching positions rather than letting parties develop more nuanced ideas through conversation; (370) silencing good ideas for fear of being publicly rejected or pilloried; (371) and driving deliberation underground, further out of sight, through mechanisms developed to avoid whatever transparency regime is imposed on unwilling participants. (372) These interests may be heightened in politically polarized times, when interest groups monitor their own party for orthodoxy and the other party for everything, and when Congress and the executive are at war with each other.

    These are serious concerns that we should not dismiss lightly. However, there are costs to the current system of opacity with respect to accountability. As Lisa Heinzerling has noted in the context of OIRA's lack of transparency, opacity in government limits "people from understanding the way their government operates, how they can intervene and at what points, what the government is up to, who is making important decisions, [and] why the government has made those decisions." (373)

    Moreover, the problems associated with too much transparency may already be present under the current non-transparent system. We just do not know about it. For example, agency officials and the RMOs may already find themselves in entrenched positions simply by virtue of the structure of their relationship. (374) Agency officials may already silence good, creative ideas if they constrict their proposals based on what they think their program examiner wants to see. (375) And the pyramid structure of OMB's operation may drive deliberation underground. That is, program examiners may reach agreements with agency officials on certain matters on the condition that agency officials take certain actions; subsequently, those agreed-upon actions may not become an issue as the agency's budget request moves up the chain of command within OMB.

    These costs suggest that some recalibration of the current regime is worthwhile. In another context, the D.C. Circuit has rejected the contention that the congressional goal of centralized budget formulation cannot be achieved without secrecy," reasoning that the requirement that "the President submit a single, unified executive branch budget proposal to Congress for consideration does not "require that the President's proposals be the only budgetary information available to the public." (376) While formally discussing the public-meeting requirement for multi-member agencies, the D.C. Circuit used language about good public policy that could apply more generally: "disclosure of budget deliberations would ... inform the public 'what facts and policy considerations the agency found important in reaching its decision, and what alternatives it considered and rejected,' and thereby ... permit 'wider and more informed public debate of the agency's policies.'" (377)

    Indeed, in this same litigation, OMB attempted to justify secret deliberations about the budget without distinguishing between multi-member and executive agencies. Its arguments relied on the general "importance of the budget process" and the fact that internal "budget discussions lead to presidential recommendations reflecting the President's 'best judgment of how the nation's fiscal resources should be allocated to meet its future economic and social needs'" with respect to "'vital policies and billions of dollars ... at issue every year.'" (378) The D.C. Circuit roundly rejected this argument and demanded disclosure: "The public can reasonably be expected to have an interest in matters of such importance." (379)

    The question then is how to design a more nuanced approach to transparency that would accommodate the public interest while still taking seriously the need to protect the deliberative process.

  2. Disclosing Procedural Aspects of the Budget Process and Post-Deliberative Decisions

    At the very least, it should be clear that OMB's reliance on the interests implicated by the deliberative process applies only to the content of documents. (380) It does not apply to the confidentiality that exists around the RMOs' interactions with agencies and with outside interest groups or to other procedural aspects of the intra-executive budget process that remain hidden. OMB's interest in protecting policy consistency by forbidding the disclosure of predecisional budget material also does not extend to these procedural aspects. More disclosure of this procedural information could be a valuable source of accountability because it would permit better monitoring of who is participating in the process and when.

    In addition, OMB's confidentiality rationales do not extend to the various post-deliberative decisions that are nonetheless not routinely disclosed, such as its budget execution decisions. For example, while apportionment requests and decisions are formal documents made on a standardized government form and transmitted via a standardized web-based portal, (381) there is no public collection of apportionment decisions, much less apportionment footnotes, which makes it difficult for the public to track OMB's directions to agencies. Similarly, there is no centralized compendium of OMB's approved requests to Congress to transfer or reprogram sums, making it difficult for the public to track how agencies' spending diverges from Congress's original appropriations decisions or the extent of Congress's approval and disapproval of these requests. (382) Here, too, more disclosure would improve accountability. (383)

    1. The Role of Civil Servants and Political Officials

      A second concern about OMB's control of agency policymaking through the budget process involves the players engaged in effectuating that control. Contrary to the usual understanding of power in the administrative state, where higher-level political officials have authority over both lower-level political officials and the civil service, (384) civil servants and lower-level political appointees in OMB can supersede the policy goals of Senate-confirmed agency officials. This reversal of expectations impedes accountability and is exacerbated by the lack of transparency discussed above. (385)

      One conventional concern about White House control over agency policymaking is that high-level political advisors close to the President may direct agency officials, whether political appointees or civil servants, to take actions that are illegitimate. For example, these advisors may direct officials to take actions going beyond the agency's legal authority, or beyond the facts, in the service of a pre-ordained position driven by private political interests. (386) More generally, these advisors may direct officials to act on the basis of "pure partisanship or raw politics" instead of some notion of the public interest. (387) Another view is that the White House achieves some of these same goals by nominating ideologically partisan political appointees to head the agencies--appointees who will loyally align their policies with the President's goals without being swayed by "civil-service-led resistance to their preferred policies." (388)

      Relatedly, the value of civil servants in agencies is thought to be their ability to "resist and redirect agency leaders intent on shortchanging procedures, ignoring or downplaying congressional directives or scientific findings, or championing unvarnished partisan causes." (389) "[U]nlike the political leadership beholden to a particular presidential agenda," this view holds, "the civil servants are ... generally understood to be animated by professional norms and legal commitments to fair administration and enforcement of the laws." (390)

      The structure and work of the RMOs complicate this view. On the one hand, it is civil servants, not political appointees, who take a front-line position in directing agency action. (391) To be sure, these civil servants are also bound by professional norms, (392) with loyalty to the institution of the presidency rather than to any political party. (393) And most of the time, RMO staff work with agency staff, rather than directly with Senate-confirmed agency officials. But RMO staff hardly serve a checking function over political or politicized activity; to the contrary, their very job is to ensure that agency policy is consistent with presidential priorities. (394) Their portfolio is...

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