We re-elect FDR—and the opposition is installed within the government. The cause which failed to persuade the voters scores an easy victory in Washington. The democratic process operates, yet it is by-passed. Somehow a wedge has been driven between the exercise of power and its popular source. A constitutional crisis impends which makes insistent the question, Whose government?
In a sense a sport has been thrown up by the war. Yet the war has done little more than accelerate trends long in the making. For our political order is undergoing revolution. The three-in-one system—executive, legislature, judiciary—was never so neat as we liked to believe. It still operates in a criss-cross sort of way, but its authority wanes. And a new order, almost unknown to political theory, arises in an area hitherto little occupied. For economic law did not live up to its Newtonian promise; laissez-faire got a bad name; the newly felt necessities of the people came to be of political concern. So the government was called upon to prod, regulate, underwrite, complement, supplant free enterprise. And a host of agencies sprang into being—to put an increasing strain upon the separation of state and economy.
As the barriers fell, the government had to be made over. A state accustomed to letting business alone was not ideally adapted to public control. The need was for a continuous oversight of interests, industries, activities which were unlike and refused to stay put. To this demand for specifics, Congress could respond only with general statutes. It could not act promptly and concretely every time novelty in a situation signaled for a change in remedy. The legislature was most useful in a crisis, when some affair left to itself had broken down and something had to be done about it. On such an occasion it might choose values and point direction; but even then it could do little more than pass an enabling act. It had to delegate actual regulation to some authority which could apply general provisions to particular cases and changing conditions. Only after experience had shown legislation to be inadequate or out-of-date did it have to return to the particular job. It still inquires; it retains a seriously compromised power over the purse. But its power to shape policy is in decline. Its great days are over.
If Congress has moved back-stage, the judiciary has been pushed to the side-lines. In the days when laissez-faire was rampant and respectable, free enterprise was quite able to take care of itself. As the trend toward control made headway, the judiciary came out of the cloister and put up a furious fight in its behalf. But against the current of the times its pretensions had hard going. In a glorious twilight the Supreme Court made a gallant last stand against the President’s “unpacking plan”—and then, in a self-denying ordinance, quietly surrendered judicial supremacy. The result was inevitable; for as an agency of industrial government the court was poorly equipped for the task of continuous oversight. The way of litigation is too expensive and cumbersome for everyday use. The interests at stake cannot all be crowded into the rigid forms of a case in controversy. Its tempo is too slow for a world in a hurry; its channels, too narrow for the heavy traffic of the business system. In the lament of a distinguished jurist, that an official attempt to stop hot oil has outrun the decorous—and interminable—processes of justice, a useful institution is caught off its beat. It may now and then barge in to vex and to harass; for the form of myopia called legalism is an occupational disease to which judges are particularly susceptible. But no longer can the judiciary direct policy.
An instrument of control, simpler, speedier, more flexible than court or Congress became essential. It was the market which had broken down or flunked its social task. It was to correct the market that the state was called to action. A shipper cannot bargain with the rail-road over the price of the haul—the Interstate Commerce Commission comes into being. The investor lacks the skills with which to judge stocks and bonds—the Securities and Exchange Commission is the answer. The law of supply and demands fails to adjust the acreage of staple crops to market demand—the Agricultural Adjustment Administration is sent to the rescue. The private sources of capital, especially in a depression, shrink from risk—the Reconstruction Finance Corporation underwrites a hesitant free enterprise. The individual wage-earner is no longer a match for the corporate employer—the National Labor Relations Board is called upon to ensure “that equality is bargaining power in which freedom of contract begins.” The impact blurs—and even erases—frontiers between the separate provinces.
State and economy are alike changed by the contact. The business unit becomes the corporate estate. Price, output, capacity are put under managerial control; company policy becomes an aspect of the politics of industry. The government adopts the mechanisms of business and widely employs the corporate device to organize its activities. A few years ago the National Recovery Administration put on a dress rehearsal of business as a political institution. As the war approached the President made corporate entities our accredited agents in the mobilization of material resources. He seems to have taken it for granted that they were powerful and selfish and would enlist their domains in the war effort only upon their own terms. So today the War Production Board, a kind of House of Delegates for large-scale enterprise, decrees capacity, regulates output, apportions materials, gears the economy to the military struggle. The state takes over where the economy cannot perform; the economy does delegated duty for the state.
It has all come about without goal or plan. An event, a social shift, a new awareness creates an unexpected situation. The need or breakdown is recorded in an improvised control. As creatures of occasions many of these agencies are amorphous, uncertain of their tasks, unsure of their places. No art has deftly shaped them to the different sorts of works they have to do. Their number is so large that alphabetical combinations must be invoked to name them. Among them is every form of organization, association, corporation known to man. Whether an agency meets the world as bureau, division, authority or corporate subsidiary is not important. Nor does it matter greatly whether it reports to another agency, to a cabinet member, to Congress, or to the President. Even controls which overlap and get tangled are nothing to worry about. They are everyday matters in a society whose affairs are interlocked. A government which does not keep ahead of any blueprint has lost its vitality. The real concern is that the whole establishment is drifting away from responsible government.
If there is a need for political reform, it is to impress office and order upon this motley host. The older channels for the public will not have been extended to the newer establishment. The three great powers of government are no longer separate and two of them are no longer great. The judiciary, aloof from popular currents of feeling, cannot do the work of the administrative agencies. Nor can it efficiently police their activities. A group with everyday experience in what-it-is-about has it all over a bench of judges who must be jacks of all trades. As against the research facilities available to any commission, the fact-finding of the courts is primitive. And remote control, however wise, is no substitute for judgment on the spot. The Congress can create an agency, abate its authority, fit it out with new weapons. It can, through public hearings, expose sloth, muddling, incompetence. But it is impotent to conduct the demands of the people through the whole political order. And it can more easily sterilize than it can give life. The Executive has risen to supremacy; he lords it, so far as anyone does, over this vast and recently occupied territory.
The Executive has been exalted; yet his enlarged authority has grown up in a domain unknown to the Constitution. The establishment is too vast for one man to oversee, too intricate for any man to understand. As a nerve-center the White House is poorly connected with outlying departments. And the President has quite different powers over the various agencies. His example, a new appointment, the call to be up-and-doing make for alertness. But persuasion and command, even if uniformly applied, encounter different degrees of resistance. And his term may be spent before the will which swept him into office is carried very far along. As the executive order replaces the Act of Congress, “the King’s ear” again becomes a political institution. But access to it, as yet grooved into no due process, a goes by chance, proximity, the favor of the secretariat. A question of importance may be resolved upon inadequate information; a decision may reach interested parties by hearsay. Instead of notice, hearing, a channel open to all concerned, it becomes necessary to find someone who is blessed with the proper entree.
At his utmost the President cannot overcome the disposition of agencies to go their separate ways. The spirit of the Interstate Commerce Commission is that of the age of T.R. The Federal Trade Commission is a monument to Woodrow Wilson’s attempt to fix a moral plane for competition. The philosophy of Herbert Hoover lives on in the investment policy of the Reconstruction Finance Corporation. The Securities and Exchange Commission behaves as if these were still the palmy days of the New Deal. The War Production Board is the very incarnation of an attempt to run a war from the business office. And the State Department, in the tradition of an archaic chivalry, insists upon arming the nations we must fight. If each agency were sovereign within its own dominion, we might sport a panorama of all the controls. But any major problem—raw materials, synthetic rubber, transport, manpower, the standard of life—involves a multiplex of authorities. It can usually be resolved only by inter-department diplomacy. And in such a resort pressures count, only the exceptional case can go to the White House, and the-difference-it-makes fades into the background. In the everlasting clash of persons, interests, agencies, national policy serves many masters.
Its very independence exposes an agency to internal and external dangers. A new office is likely to reflect the vitality of the crusade which brought it into being. As age comes, it hardens, formalizes its action, generates a tradition, takes the sterile way of establishment. It is almost as prone as a large corporation—Alcoa, U.S. Steel, Anaconda, American Tel. and Tel.—to go bureaucratic. Its salvation is a nucleus of live officials who persist in sticking their necks out. And it takes eternal vigil to protect it against dry rot, ceremonial, loss of function. The agency is peculiarly susceptible to minority influence. Its task is to mediate between some private interest in the commonwealth and its public. The interest is compact, well defined, insistent upon its rights, alert. Its public is scattered, absorbed in its own affairs, inarticulate. All the advantage of power, knowledge, monies with which to manufacture argument, are with the private group. A close decision turns upon pressure, not in general, but at the point of conflict. Here the interest can mobilize its resources, keep the heat on, wear opposition down; the public concern is usually too dissipated to meet the onslaught. A number of contingencies aid the private cause. The officials of the agency occupy a dual office; the rule of arbiter is likely to overtop that of public guardian. The Civil Service has done much to remove political, but far less to abate corporate, patronage. As yet it has devised no adequate test for vision, devotion to the public interest, guts. The government exhibits no unusual gratitude to faithful servants; the interest can often open careers to “fair-minded” young men. And routine and inertia are enlisted under the banner of do-nothing.
All along the frontier of control a concentrated private interest is pitted against a diffused public interest. The interest is willing to go along if the agency is “cooperative.” If it is not, ways can be found to render it impotent. Witness the judicial review which for years paralyzed the work of rate-making bodies; or note the quiet demise of the National Labor Relations Board. The Supreme Court only recently put a stop to the parade of corporate privileges as the rights of man to claim immunity from the law. But if the members of an industry want to string along together, keep others out, divide markets, share the spoils, an agency of control may prove a positive asset. If it can be captured, it may become a branch office within the government. Then it can lend a sanction to acts which otherwise would be illegal. Milk control is a mighty prop to a rigid price structure; patents have been employed to bless many a monopoly.
If a nation cannot keep its own creations in line, it must expect trouble from the business concerns through which it acts. Corporations consecrated to the pursuit of gain have a terrific kick-back when employed in the public service. A primary precaution is to condition them for delegated duty. Yet no criteria of fitness have been set up for dollar-a-year men. Those called have come far more largely from the business office than from the production line; among them salesmen far outnumber technicians. There has been regard for “acquaintance with the industry,” but the nature of that acquaintance has been little specified. Few are at home with the kind of questions which the current crisis brings to the economy. To Washington they bring the attitudes, habits, goals and fears of acquisitive enterprise. A public official—his name ought to be given—exhibits his confusion by proclaiming the “indispensability” of persons whose special competence lies in keeping output down and prices up. It is no wonder that corporate-public officials, in reference to the government and the industry, are stumped over the antecedents of the pronouns “we” and “they.” Every decision made involves a choice between alternatives and leaves its lasting impression.
It is elementary to the law that “no one shall try his own case.” Yet a business executive, in his public capacity, makes decisions which affect his competitors. It is a common practice for him to have a voice in the terms of the contract when he has a stake in the outcome. Officials, with conflicting obligations, as officers of the state are giving shape to things to come. We convert public funds into private capital; make private citizens architects of the political economy; employ our worshipful companies as departments of government. Yet alien structure has not been adapted to government use. And we have not even fumbled with the problem of imposing responsibility.
Such an institution is a product of volcanic transition. Yet, in their sharp departure from the older pattern, the war agencies present a trend everywhere in evidence. A score of forces move to separate the operating government from the popular sources of power. Divisions, bureaus, commissions are concerned with technical problems. It is not easy to translate their decisions into language which the layman can understand. Usually they move case by case; a policy may be set before its direction becomes generally apparent. Officials are prone to enlarge their authority and sanctions are sought to hide their discretion from critical scrutiny. There is a domain—though not a large one—where “military” or some like necessity may caution secrecy. But the excuse easily becomes a mask for irresponsibility; and the advantage it obtains is small compared with the utter demoralization it brings to public opinion. The official who presumes to withhold from the people what they ought to know is imitating the enemy he professes to fight. A slant to the news is perhaps unavoidable; but as a mark of artifice it becomes suspect. A great part of our current propaganda is ineffective. It seems to be designed to sell us something rather than to make articulate the aspirations of common men in this crisis. If the stream of intelligence does not flow, the democratic process cannot operate. Yet many things move to close or corrupt it and few to keep it open. The ancient glory of Congress flames most vividly in its power of inquiry. The critical work of the Bone, Murry and Truman committees has exposed situations badly in need of surgery and brought to the people facts to which they are entitled. But such resources are inadequate. Congress cannot direct and supervise the whole structure of alphabetical agencies. And, as matters now go, they are even further beyond the reach of the electorate.
In the election of 1942 the dilemma stands sharply out. Administration does not operate as representative government. The will of the people moves in one domain; the real questions of policy lie in another. It was the work of the various agencies about which men were concerned; it was the conduct of Congress which was taken to the polls. The people knew, at least vaguely, of the Knudsen fiasco, the great capital strike, the business deals with the Axis, the muddling of manpower, the trading with the enemy, the union of militancy and appeasement, the bungling in respect to oil, steel, aluminum, synthetic rubber. Yet they could not express resentment against the men who had blundered or betrayed; they could only blindly turn out Senators and Representatives who had little to do with it. The anomaly of a people’s President, operating through key persons, between whom and himself there was mutual distrust, was made to order for the opposition. They were entrenched in power; yet, since responsibility lay with the Executive, they had a perfect alibi at the polls for all their mistakes. It has been said again and again that the election marks a swing to the right. Fortune magazine seems nearer the mark in holding it to be a rebuke to the President because he would not—or could not—purge. Should the people not be consulted about the men and measures which shape their destinies? And how else could they protest against being ruled by a group whom they had rejected with their ballots?
The government moves into a new orbit; yet order and office have not followed. There is no easy way of getting real questions of policy—enlarging personal opportunity, ensuring the economy against breakdown, advancing the standard of life, laying the foundations of a durable peace—raised. And adequate answers can emerge only from an almost miraculous conjunction of unlike wills. In our order of society, agencies of control must be expert, flexible, able to act with speed. But they must be informed, considerate of interests involved, responsive to the public will. As the state changes in character, it occupies an area where the older safeguards do not operate. Our friends to the right, sensitive to the trend, have not been idle. They have attempted to move “independent agencies” under judicial, and away from popular, authority. And, as judicial review runs into difficulties, they set out to capture—or to sabotage—the new controls. The counter task, at which our liberals have made far less headway, is to contrive ways and means for subduing these agencies to the democratic process. A clash of President and Congress is a gallant sideshow; the breach which threatens disaster is between a popular executive and an operative government which the voters cannot reach. Unless “we the people” can make the industrial system the instrument of the general welfare, the dominant interests will take over the government. For the separation of state and economy is gone.
This article originally ran in the January 18, 1943, issue of the magazine.