The Growing Gap in the Rule of Law

Not long ago, I received a plaintive email from a very senior federal official. She wrote about the challenges she faced in accomplishing the work of her agency. She complained about the enormous challenges of complying with the law. But she talked about these as two separate propositions. For her—and for many other government officials—there is a growing gap between the rule of law and the steps required to administer public programs.

Paul R. Verkuil’s insightful and fascinating book, Valuing Bureaucracy: The Case for Professional Government, provides a foundation for exploring why this gap exists. He is among the very few scholars and public intellectuals to press the importance of the rule of law—and where it falls short in governance. In fact, he argues, the rule of law “is too limited a frame from which to view the practice of government.” The implications are enormous—and growing.

The rule of law requires a government to be both accountable and transparent. The laws in place must be fair, and the public must have access to workable mechanisms to resolve disputes. According to the World Justice Project, which has laid out fundamental principles that it believes comprise the rule of law, one of the most important is that “laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights.”

The underlying problem is that both the management of government programs and the process of holding government accountable are rooted in the rule of law. We empower government officials to do their jobs but then constrain the power those officials exercise through the laws we pass and the rules we create. But this process is linear, with new laws carefully building on old ones and new regulations flowing from new laws. In fact, an important foundation of the rule of law is its utter predictability.

However, as Verkuil and others have pointed out, the tools of administering the law are increasingly non-linear. They build on contractors and other bits of what I have called “government by proxy.” This growing reliance on networks creates big challenges. It outsources sovereignty, as Verkuil has powerfully argued, by placing far more governmental responsibility in the hands of non-governmental actors.

Government by proxy poses big problems for government managers and public institutions, because these networked systems are far more complex to administer than the more straightforward programs that government manages itself within its own hierarchical bureaucracies. And it creates fundamental challenges for the rule of law, because we do not have a good system for governing or managing a system that relies so heavily on proxies.

Now, to be sure, there is a rich rule of law for government contracts and a strong base in administrative law for the government’s management of its acquisition process. There are two problems here, however. One problem is that government contracts, important as they are, constitute only a relatively small fraction of the federal government’s activities—about 15 percent of the federal budget in 2016 and just 7 percent of the federal government’s entire financial footprint, after taking into account the costs of tax expenditures, loan programs, and regulatory compliance.

Another other problem is that contract law stipulates rules for bargaining among relatively equal parties. In many contracts, the government is a somewhat junior partner because it, too often, does not have sufficient expertise to know what it is buying or what it ought to pay—even though the prime purpose of these contracts is to advance the government’s goals as the lawmaking process defines them. That is the critical puzzle of outsourcing government’s sovereignty. The government’s capacity to act as a smart buyer is eroding and, so too, is its capacity to exercise its sovereignty.

There are, of course, rich administrative law provisions that cover the basics of contracting. However, they do little to set the boundaries for which services should be contracted out and which are “inherently governmental” and therefore ought to be performed by government. They do little to define the basic questions of who is sovereign when government contracts with non-governmental partners. For non-contract activities, like loan programs and regulations, the rule of law is often far thinner, especially in establishing the foundation for the government’s governance of these areas.

Thus, we face a series of interlocking challenges. Our society places great weight on the rule of law, but the gap between the principles of the rule of law and the actual strategies for governing is growing. We do not have a good managerial model for ensuring the effectiveness and efficiency of government programs we implement through an increasingly complex set of proxy tools. The existing rule of law does not adequately cover many of those tools. And government’s ability to exercise power on behalf of its citizens, in ways that serve the public interest instead of the narrow interests of its proxies, has weakened. That is why Verkuil’s impassioned argument in favor of professionalizing government—and valuing the bureaucracy charged with doing so—is so important.

Those who have not fully absorbed the import of Verkuil’s argument might be inclined to nod in the direction of “good government” reforms without understanding their fundamental importance. The term “bureaucracy,” after all, tends to be viewed as pejorative (“it’s so bureaucratic”); as an afterthought (“we’ll deal with the big questions first and deal with the administrative details later”); or as a nuts-and-bolts residual after the big decisions are made (“we’ll shape the policy and leave it to the bureaucracy to implement it”). The issue here is a far more existential one about government’s capacity to govern.

We often tend to brush aside concerns about governing capacity because we tend to fall back on an underlying assumption that the rule of law, quietly working below the surface, will, in the end, protect us. But too often, strategies of governance and the rule of law are becoming unmoored from each other.

As with the government official who saw getting her job done and complying with the law as separate propositions, we have slid into truly dangerous territory. The core of the problem is the growing gap between the rule of law, as it now exists, and the proxy-based tools of government action, for which there often is not a strong rule of law. The implications of this gap—the struggle to build government’s capacity to produce results and to be held accountable in how it does so—are enormous and growing. Singling out that problem is one of the great contributions of Verkuil’s book.

Donald F. Kettl is a professor at the University of Maryland’s School of Public Policy.