The Bureaucracy

1. The Bureaucracy Bureaucracy: the agencies, departments, commissions, etc within the executive branch who are charged with enforcing the laws (that Congress makes) —non elected--(also means a large, complex organization) See handout

2. Types: see handout Michael ChertoffHOMELAND SECURITY SECRETARY (2005- ) Singer Janet Jackson performs with singer Justin Timberlake during the halftime show at Super Bowl XXXVIII in Houston, Texas, in this February 1, 2004 file photo. The Federal Communications Commission late on Friday defended its decision to fine 20 CBS Corp. television stations $550,000 for airing a brief breast flash by Jackson. REUTERS/Win McNamee FDA is an agency within the Department of Health and Human Services

3. WHAT’S MISSING?

4. three main functions of bureaucracies: Implementation • The process of putting the new policies into practice, after a law has been passed • Since policy directives are not often clearly defined, bureaucrats must interpret the meaning of the law. • Thus, bureaucracy has administrative discretion in actual implementation. Administration • The routine work. • includes collection of fees, the issue of permits and the conducting of tests. Regulation • Rules and regulations affecting the public. • The administrative process through which they are enacted is known as rule making. • Due to the lack of time and technical knowledge on the part of the Congress, it needs to delegate the authority of formulating rules and regulations • E.g the Federal Communications Commission polices the nation’s radio and television networks .

5. this non-elected branch can be can be significant policy makers: they have “administrative discretion” The exercise of professional expertise and judgment, as opposed to strict adherence to regulations or statutes, in making a decision or performing official acts or duties. Authority given by Congress to the federal bureaucracy to use reasonable judgment in implementing the laws.

6. Wednesday, August 7, 2013Kahng: The IRS Tea Party Controversy and Administrative DiscretionBy Paul Caron The IRS Tea Party controversy erupted when the Treasury Inspector General issued a report finding that IRS employees in the Cincinnati office had targeted certain organizations’ applications for tax exempt status for heightened scrutiny, in particular singling out groups with “Tea Party” or “Patriot” in their names

7. Why? • Congress lacks expertise: they have it • Congress does not have time to do it all; they have more • It’s not Congress job to work out the details

8. And the. . .

9. Title 18 of the United States Code, Section 1464 provides: “Whoever utters any obscene, indecent, or profane language by means of (broadcast) communication shall be fined not more than $10,000 or imprisoned not more than two years, or both” The delegation of authority Congress gave the Federal Communications Commission (FCC) the responsibility for administratively enforcing the law that governs these types of broadcasts. Among other things, the FCC has authority to issue civil monetary penalties, revoke a license, and deny a renewal application. In addition, a federal district court may impose fines and/or imprisonment for up to two years on those who are convicted of criminal violations of the law

10. Your task . . . . . • Assume you are the experts: i.e. members of the FCC (you bureaucrat you) and that you must write regulations to put this law into effect. • Discuss what those devilish details will be (what behaviour will be subject to a fine or imprisonment?) • Write 6 regulations to put this law into effect Title 18 of the United States Code, Section 1464 provides: “Whoever utters any obscene, indecent, or profane language by means of (broadcast) communication shall be fined not more than $10,000 or imprisoned not more than two years, or both”

11. Issues to consider • What is “obscene” “profane” and “indecent” • Is there a diff in the 3 in terms of when/where they can be broadcast • What is “broadcast” • Labels or prohibitions? • Time? • Type of shows? • List terms? Or vague? • Constitutional issues? • What is the public interest? • What is consequence? • What is “utter” • How will you find violations? • Who will apply your definition How did you work as a group? Did you agree? Did you list? Were you tempted to render this law toothless?

12. The FCC obscenity guidelines have never been applied to non-broadcast media such as cable television or satellite radio. It is widely held that the FCC's authorizing legislation (particularly the Communications Act of 1934 and the Telecommunications Act of 1996) does not enable the FCC to regulate content on subscription-based services, which include cable television, satellite television, and pay-per-view television. Whether the FCC or the Department of Justice could be empowered by the Congress to restrict indecent content on cable television without such legislation violating the Constitution has never been settled by a court of law Since cable television must be subscribed to in order to receive it legally, it has long been thought that since subscribers who object to the content being delivered may cancel their subscription, an incentive is created for the cable operators to self-regulate (unlike broadcast television, cable television is not legally considered to be "pervasive", nor does it depend on a scarce, government-allocated electromagnetic spectrum; as such, neither of the arguments buttressing the case for broadcast regulation particularly apply to cable television).

13. Here’s what the FCC did http://www.fcc.gov/guides/obscenity-indecency-and-profanity (see print out)

14. So . . . People need to know when they violate the law

15. George Carlin’s first listed in 1972 in his monologue "Seven Words You Can Never Say on Television". http://www.youtube.com/watch?v=vbZhpf3sQxQ stop around 5: 16 Then you are confronted with this case: George Carlin’s 7 dirty words Facts of the Case  During a mid-afternoon weekly broadcast, a New York radio station aired George Carlin's monologue, "Filthy Words." Carlin spoke of the words that could not be said on the public airwaves ." The FCC received a complaint from a man who stated that he had heard the broadcast while driving with his young son.

16. Or this case of “fleeting expletives” "I've had unbelievable support in my life and I've worked really hard. I've had great people to work with. Oh, yeah, you know what? I've also had critics for the last 40 years saying that I was on my way out every year. Right. So f***** 'em. I still have a job and they don't." . Cher cursed at the 2002 Billboard Music Awards, which were carried on the Fox Network

17. And another case of “fleeting expletives” Paris Hilton and Nicole Richie exchanged vulgarities at the 2003 awards show In December 2003, a Fox broadcast of the Billboard Music Awards included an appearance by Paris Hilton and Ms. Richie to promote their show "The Simple Life." Hilton: "Now, Nicole, remember, this is a live show, watch the bad language." Richie: "OK, God." Hilton: "It feels so good to be standing here tonight." Richie: "Yeah, instead of standing in mud and [live audio blocked]. Why do they even call it 'The Simple Life?' Have you ever tried to get cow [expletive] out of a Prada purse? It's not so [expletive] simple." (In the broadcast only the first use of the "s" word was blocked, the two other expletives were not.) Roughly 2.3 million viewers under 18 saw the program and 1.1 million were under 12, according to the government.

18. The commission also took issue with a 2003 episode of “NYPD Blue” that included images of, in Justice Kennedy’s words, “the nude buttocks of an adult female character for approximately seven seconds and for a moment the side of her breast.” Actress Charlotte Ross appeared in a brief nude scene in a 2003 episode of "NYPD Blue." The scene is at the center of a legal battle that will be taken up by the U.S. Supreme Court this year. For all three of these cases, it did not matter, the commission said, that some of the offensive words did not refer directly to sexual or excretory functions. Nor did it matter that the cursing was isolated and apparently impromptu. The commission imposed no punishment on Fox, but it fined ABC and its affiliates $1.24 million.

19. Other FCC “connections” Government shutdown: Does no FCC mean nudity, f-bombs on networks? October 01, 2013|by Scott Collins http://articles.latimes.com/2013/oct/01/entertainment/la-et-st-government-shutdown-does-no-fcc-mean-swear-words-on-network-tv-20131001 Ted Cruz seeks to press FCC nominee on ad policy During the debt and budget debates that dominated Congress last week, Cruz used his prerogative as a senator to block the chamber from voting on the nomination of Tom Wheeler to lead the FCC, which oversees communications industries in the United States. The FCC has five seats, two of which are vacant. http://www.reuters.com/article/2013/10/24/us-washington-summit-cruz-fcc-idUSBRE99N1KZ20131024

20. The Constitutional Questions . . . Facts of the Case  During a mid-afternoon weekly broadcast, a New York radio station aired George Carlin's monologue, "Filthy Words." Carlin spoke of the words that could not be said on the public airwaves. His list included shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. The station warned listeners that the monologue included "sensitive language which might be regarded as offensive to some." The FCC received a complaint from a man who stated that he had heard the broadcast while driving with his young son. Question  Does the First Amendment deny government any power to restrict the public broadcast of indecent language under any circumstances?

21. No. The Court held that limited civil sanctions could constitutionally be invoked against a radio broadcast of patently offensive words dealing with sex and execreation. The words need not be obscene to warrant sanctions. Audience, medium, time of day, and method of transmission are relevant factors in determining whether to invoke sanctions. "[W]hen the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene” 5 votes for FCC, 4 vote(s) against http://www.oyez.org/cases/1970-1979/1977/1977_77_528

22. Facts of the Case  In 2004, the Federal Communications Commission said that TV stations could be fined for indecency violations in cases when a vulgarity was broadcast during a live program. That happened on Fox in 2002 and 2003 when Cher and Nicole Richie cursed during award shows and were not bleeped.
The FCC never actually fined Fox, but the network took issue with the regulatory agency setting the stage for future fines and challenged the fleeting-expletive rules. The U.S. Court of Appeals for the Second Circuit ruled that the FCC's rules were "unconstitutionally vague" and had a "chilling effect." Question  Does current indecency enforcement regime violate the First or Fifth Amendments?

23. : • FCC v. Fox Television Stations • AT ISSUE: Whether the government's current TV indecency enforcement policies regarding profanity and sexual content violate the free speech and due process rights of broadcasters. • THE CASE: Controversial words and images have been aired in scripted and unscripted instances on all the major over-the-air networks in the past eight years, dating to when the FCC began considering a stronger, no-tolerance policy. • THE ARGUMENTS: The high court ruled two years ago in favor of the FCC over "fleeting expletives," but the justices refused at the time to decide whether the policy violated the First Amendment guarantee of free speech, ruling only on the agency's enforcement power. The justices will now hear the larger constitutional issue after the Justice Department, in its new appeal, lumped both the expletives and nudity cases together. • THE IMPACT: The TV networks and its supporters have framed this case as a larger free speech dispute that could affect a range of expressive and artistic content. But the Obama administration and parents groups say the broadcast airwaves are a public resource deserving of tough, tight regulation when networks fail to properly monitor their programming.

24. Justice Anthony M. Kennedy, writing for seven members of the court, vacated the lower judgment and remanded the case. The Supreme Court held that the FCC’s standards, as applied to the broadcasts in this case, were vague. The FCC did not give proper notice to broadcasters that they would be fined for fleeting expletives, so the practice violated due process. However, Justice Kennedy carefully noted that the Court did not decide whether the practice violated the First Amendment or that the indecency policy itself was unconstitutional. Only the way the policy was applied in this case was unconstitutionally vague. The FCC is free to modify its policy in light of this decision. • Justice Ruth Bader Ginsburg concurred in the judgment, stating her belief that FCC v. Pacifica was wrong when it was decided. Justice Elena Kagan did not participate in the consideration of decision of the case.

25. Court rulings about the “fleeting explitives” cases • Federal Communications Commission v. Fox Television Stations (2009): A 2009 legal case in which the United States Supreme Court upheld regulations of the Federal Communications Commission that ban "fleeting expletives" on television broadcasts, finding they were not arbitrary and capricious under the Administrative Procedure Act. • Federal Communications Commission v. Fox Television Stations (2012): A Supreme Court case about whether the FCC's scheme for regulating speech is unconstitutionally vague.

26. Making Regulations: use of governmental authority to control or change some practice in the private sector Done by both: IRA like FRB, FCC, FTC, SEC IA like the EPA and Departments like Dept of Commerce, US Dept of Health and Human Services (FDA) An Example: F.D.A. Tentatively Declares Food From Cloned Animals to Be Safe After years of delay, the Food and Drug Administration tentatively concluded yesterday that milk and meat from some cloned farm animals are safe to eat. That finding could make the United States the first country to allow products from cloned livestock to be sold in grocery stores. Bob Schauf, with two of his cloned cows in Barron, Wis. Mr. Schauf said his family has been drinking the milk from cloned animals.Dec 29. 2006

27. November 17, 2010 F.D.A. Issues Warning Over Alcoholic Energy Drinks By ABBY GOODNOUGH The Food and Drug Administration sent warning letters to four manufacturers of alcoholic energy drinks on Wednesday, saying the caffeine added to their beverages was unsafe. The popularity of the drinks has exploded over the last few months, and there have been numerous reports of young people falling ill after drinking them. A brand called Four Loko — a fruit-flavored malt beverage that has an alcohol content of 12 percent and as much caffeine as a cup of coffee — came under particular scrutiny after students who drank it this fall at Ramapo College in Mahwah, N.J,. and Central Washington University in Ellensburg, Wash., ended up in emergency rooms, some with high levels of alcohol poisoning. The F.D.A. announcement came a day after Phusion Projects, the Chicago company that makes Four Loko, said it would stop putting caffeine in the drink. The company’s founders said in a statement that while they still believed it was safe to blend caffeine and alcohol, they wanted to cooperate with regulators. The F.D.A. began reviewing last whether the drinks were safe a year ago this month, at the urging of 18 attorneys general. At issue was whether adding caffeine to alcoholic beverages was “generally regarded as safe,” an agency designation that requires accepted scientific evidence.

28. Disputes over Regulation/De-regulation abound Presidential debate: http://www.youtube.com/watch?v=8KBwVIl-xmE

29. From left, bank chiefs Lloyd Blankfein, James Dimon, John Mack and Brian Moynihan are sworn in on Capitol Hill earlier this month to testify before the Congressional Financial Crisis Inquiry Commission, which is investigating the causes of the financial crisis Jan WASHINGTON—President Barack Obama proposed new limits on the size and activities of the nation's largest banks, pushing a more muscular approach toward regulation that yanked down bank stocks and raised the stakes in his campaign to show he's tough on Wall Street. With former Federal Reserve Chairman Paul Volcker at his side, Mr. Obama said he wanted to toughen existing limits on the size of financial firms and force them to choose between the protection of the government's safety net and the often-lucrative business of trading for their own accounts or owning hedge funds or private-equity funds. Mr. Volcker has been an outspoken advocate of such rules; until recently Mr. Obama's top economic advisers, including Treasury Secretary Timothy Geithner and Lawrence Summers, were less than enthusiastic. "Never again will the American taxpayer be held hostage by a bank that is too big to fail," Mr. Obama said Thursday, two days after voters crimped his ability to pursue his agenda by sending a Republican to the Senate to fill a vacancy created by the death of Edward M. Kennedy. The election deprived Democrats of the 60 votes often needed to get major measures through the Senate.

30. The fate of the Obama proposal is uncertain. The House already has passed a provision that would give regulators new authority to limit the scope and scale of banks. Congressional passage now depends primarily on Senate Republicans. Several Republican senators expressed skepticism about the Obama proposal Thursday. "Let's solve problems," said Arizona Republican Sen. Jon Kyl. "Let's not be finding a bogeyman so that we can turn public attention away from what they're doing wrong in the administration." But in a political environment decidedly hostile to big banks, Democrats might need only a few Republican votes to enact a variant of what Mr. Obama called "the Volcker rule." Sen. John McCain, the Arizona Republican, said the White House appears to be moving closer to a proposal he is co-sponsoring that would reinstate restrictions on banks that were repealed in the late 1990s. "It seems to me that a number of the proposals [Mr. Obama] has move in that direction," Sen. McCain said, "but I haven't had a chance to examine the details

32. Issues about regulation in environmental pollution cases: • command-and-control policy: the government tells business how to reach certain goals, checks that these commands are followed, and punishes offenders. • Examples include: • Requiring sulfur-removing scrubbers on the smokestacks of coal-burning utilities. • Prohibitions against dumping of toxic substances. • incentive system Give polluters or consumers an economic incentive to reduce pollution • Examples include: • Pollution taxes • Marketable pollution permits • Deposit-refund systems Charles L. Schultze (chairman of President Carter's Council of Economic Advisors

33. Emissions trading (also known as cap and trade) I • market-based approach used to control pollution by providing economic incentives for achieving reductions in the emissions of pollutants. • A central authority (usually a governmental body) sets a limit or cap on the amount of a pollutant that can be emitted. • The limit or cap is allocated or sold to firms in the form of emissions permits which represent the right to emit or discharge a specific volume of the specified pollutant. Firms are required to hold a number of permits (or carbon credits) equivalent to their emissions. The total number of permits cannot exceed the cap, limiting total emissions to that level. • Firms that need to increase their emission permits must buy permits from those who require fewer permits (Stavins 2001, p 4.).

34. Control of the Bureaucracy CONGRESS: controls budget (most important is Appropriations committee) , influence appointment of agency heads (senate and not a whole lot) , can reorganize, hold oversight hearings "sunset legislation" that give agencies a limited time and requires they justify their existence, rewrite legislation to make it more detailed, casework as source of information, NPR November 17, 2010 The head of the Transportation Security Administration is defending controversial screening procedures at the nation's airports that have everyone from civil liberties groups to airline pilots upset. TSA Administrator John Pistole told a Senate panel Tuesday that the measures are a balance between privacy and security. Pistole's appearance before the Senate Homeland Security and Government Affairs Committee came after several days of criticism of the TSA's newly enacted screening policies. Those policies give travelers a choice of going through full-body scanners at the some 60 airports where they are installed or submit to an invasive pat-down by a TSA officer. A passenger at Ronald Reagan Washington National Airport is subjected to a full-body scan. Passengers who don't want the scan are given invasive pat-downs. The measures have drawn criticism from civil liberties groups and airline pilots, but the head of the Transportation Safety Administration defended the measures before a Senate panel on Tuesday

35. Congress may repeal the legislation that authorizes the appointment of an executive officer. But it "cannot reserve for itself the power of an officer charged with the execution of the laws except by impeachment" (Bowsher v. Synar (1986)). Congress has from time to time changed the number of justices in the Supreme Court.

36. PRESIDENT: can appoint top-level bureaucrats; fire top level bureaucrats; reorganize executive branch; propose budgets; use executive orders Bush Directive Increases Sway on Regulation President Bush, seen here at the White House Monday, has signed an executive order that in effect increases his control over guidelines the government issues regarding health, safety, privacy and other issues. 1/29/07

37. January 12, 2009 Democrats Look for Ways to Undo Late Bush Administration Rules By CHARLIE SAVAGEWASHINGTON — Democrats are hoping to roll back a series of regulations issued late in the Bush administration that weaken environmental protections and other restrictions. Potential targets include regulations allowing concealed weapons in some national parks and forbidding medical facilities that get federal money from discriminating against doctors and nurses who refuse, on religious grounds, to assist with abortions. “Congress is going to have to roll up its sleeves and review these midnight regulations,” Senator Ron Wyden, Democrat of Oregon, said in an interview, “because it’s clear that they are part of a desire for the administration, as it heads out the door, to put some ideological trophies on the wall.”

39. U.S. Ends Protections for Wolves in 3 States . Gray wolves, like these, nearing a Bison in Yellowstone National Park, will no longer receive federal protection2/22/2008

40. February 22, 2008 U.S. Ends Protections for Wolves in 3 States DENVER — The Bush administration on Thursday announced an end to federal protection for gray wolves in Montana, Wyoming and Idaho, concluding that the wolves were reproductively robust enough to survive. “Wolves are back,” said Lynn Scarlett, the deputy secretary of the Department of the Interior, in a telephone conference call with reporters. “Gray wolves in the northern Rocky Mountains are thriving and no longer need protection.” A coalition of wildlife and environmental groups dismissed the government’s claims and announced plans for a lawsuit to reverse the decision, which is to take effect next month. Advocates for the animals said there were too few wolves to make a genetically sound population, and that state plans to manage wolf populations were underfinanced and fueled by a long-simmering animosity against wolves that could drive them back to threatened status. “The numbers are inadequate and the state programs are, too,” said Louisa Willcox, a senior wildlife advocate at the Natural Resources Defense Council, a conservation group that is participating in the planned lawsuit. By KIRK JOHNSON

41. From a base population of 66 wolves introduced into Yellowstone National Park and central Idaho in the mid-1990s, there are now nearly 1,300, with an additional 230 or so in Montana that have drifted down from Canada. State management plans allow for wolf hunting, or outright eradication in some places — including most of Wyoming — with a target population of 150 in each of the three states. Biologists cited by the environmental and wildlife groups say that target population is too small, and suggest instead that 2,000 to 3,000 animals are the minimum needed. Gray wolves were first protected in 1974, one of the first animals to be covered by the Endangered Species Act, which was passed a year earlier. But it turned out there were none left to protect across most of the West. That led to the idea of reintroduction, which began in 1995. “We’re not at recovery yet,” said Doug Honnold, the managing attorney at the Northern Rockies office of Earthjustice, a nonprofit legal group based in Oakland, Calif. “We’re in the neighborhood, we’re close, but we’re not there.” Removing federal protections now, Mr. Honnold said, would violate the language of the Endangered Species Act that requires decision makers to use the best possible science in determining a viable target population. Federal officials said their science was sound.

43. Questions about Contracting out Gov’t Work • Competition, intended to produce savings, appears to have sharply eroded. An analysis by The New York Times shows that fewer than half of all “contract actions” — new contracts and payments against existing contracts — are now subject to full and open competition. Just 48 percent were competitive in 2005, down from 79 percent in 2001. • The most secret and politically delicate government jobs, like intelligence collection and budget preparation, are increasingly contracted out, despite regulations forbidding the outsourcing of “inherently governmental” work. Scott Amey, general counsel at the Project on Government Oversight, a watchdog group, said allowing CACI workers to review other contractors captured in microcosm “a government that’s run by corporations.” • Agencies are crippled in their ability to seek low prices, supervise contractors and intervene when work goes off course because the number of government workers overseeing contracts has remained level as spending has shot up. One federal contractor explained candidly in a conference call with industry analysts last May that “one of the side benefits of the contracting officers being so overwhelmed” was that existing contracts were extended rather than put up for new competitive bidding.

44. The most successful contractors are not necessarily those doing the best work, but those who have mastered the special skill of selling to Uncle Sam. The top 20 service contractors have spent nearly $300 million since 2000 on lobbying and have donated $23 million to political campaigns. “We’ve created huge behemoths that are doing 90 or 95 percent of their business with the government,” said Peter W. Singer, who wrote a book on military outsourcing. “They’re not really companies, they’re quasi agencies.” Indeed, the biggest federal contractor, Lockheed Martin, which has spent $53 million on lobbying and $6 million on donations since 2000, gets more federal money each year than the Departments of Justice or Energy. Contracting almost always leads to less public scrutiny, as government programs are hidden behind closed corporate doors. Companies, unlike agencies, are not subject to the Freedom of Information Act. Members of Congress have sought unsuccessfully for two years to get the Army to explain the contracts for Blackwater USA security officers in Iraq, which involved several costly layers of subcontractors. Weighing the Limits

45. “There’s something civil servants have that the private sector doesn’t,” Mr. Walker said in an interview. “And that is the duty of loyalty to the greater good — the duty of loyalty to the collective best interest of all rather than the interest of a few. Companies have duties of loyalty to their shareholders, not to the country.” Even the most outspoken critics acknowledge that the government cannot operate without contractors, which provide the surge capacity to handle crises without expanding the permanent bureaucracy. Contractors provide specialized skills the government does not have. And it is no secret that some government executives favor contractors because they find the federal bureaucracy slow, inflexible or incompetent. Boeing won a contract for the Secure Border Initiative, which includes high-tech watchtowers in Arizona. NYT Feb 3 2006