Government at the Dawn of the 21st Century: A Status Report

Order Code RL30808

Report for Congress

Received through the CRS Web

Government at the Dawn of the 21st Century: A

Status Report

January 17, 2001

name redacted

Specialist in American National Government

and Project Coordinator

Government and Finance Division

Congressional Research Service ˜ The Library of Congress

Government at the Dawn of the 21st Century: A Status

Report

Summary

Shortly after the beginning of the 20th century, the federal government entered

a new phase—the rise of the administrative state. Among the forces propelling this

development was the Progressive Movement, which sought greater government

engagement with and regulation of various sectors of American society. An

autonomous Department of Labor, with Cabinet status, was established in 1913, along

with the Federal Reserve. The Federal Trade Commission was created the following

year. With the entry of the United States into World War I, regulatory activities

further expanded, and the number of administrative agencies and federal employees

increased. With the postwar era, the expansion of the federal government

momentarily slowed, but began again with the onset of the Great Depression and the

launching of the New Deal. The colossus that was constructed to combat the national

economic emergency was soon refashioned and augmented to enable the United

States to victoriously end a world war. With the return to peace in 1945, the federal

government stood as a giant complex organization, with over 3.8 million employees.

During the next 45 years, it would continue to expand in terms of both its principal

units and resources. In the immediate past few years, however, some downsizing has

occurred.

This report reviews trends regarding various aspects of the operations of the

federal government during the past 50 years, as evidenced by personnel, budget, and

other data. It also identifies and discusses, in cameo form, various developments

during this period that are considered significant for federal operations during the next

century. Some of these are crafted innovations, such as mission performance planning

and measurement; some are imposed restraints, such as the Supreme Court’s Chadha

decision rendering so-called congressional or legislative vetoes unconstitutional.

Some developments are still evolving, such as the electronic government

phenomenon, and await conclusive assessment. This report is intended to provide

background or contextual information and will not be updated.

Contributors to This Report

Keith A. Bea

Eugene P. Boyd

Mildred Boyle

Unfunded Mandates

Federalism

Report Production Support

Benjamin Canada

Grants-in-aid

(name redacted)

Workload Trends: Regulatory Activity

(name redacted)

Personnel Trends: Executive Branch

(name redacted)

Executive Order vs. Statutory Policymaking

(name redacted)

Inspectors General

(name redacted)

Budget Trends: Executive Branch Outlays

Budget Trends: Federal Government Outlays

Financial Management Improvement

Impoundment Control and Item Veto Restraints

Performance Management and Budgeting

(name redacted)

Budget Trends: Legislative Branch Outlays

Personnel Trends: Legislative Branch

Principal Units Trends: Congressional Committees and Subcommittees

Workload Trends: Legislative Activity

(name redacted)

Chadha Decision

Open Government

E-government

Outsourcing and Privatization

Principal Units Trends: Executive Departments and Agencies

Steven Rutkus

Budget Trends: Judiciary Outlays

Personnel Trends: Judicial Branch

Principal Units Trends: Federal Courts

Workload Trends: Judicial Activity

(name redacted)

Decentralization of Personnel Management

Personnel Trends: Executive Branch

(name redacted)

Federal Civilian Procurement

Contents

Trends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Workload . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Grants-in-aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Federal Civilian Procurement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Principal Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Developments: Innovations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Open Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Inspectors General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Performance Management and Budgeting . . . . . . . . . . . . . . . . . . . . . . . . 32

Financial Management Improvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Developments: Restraints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Chadha Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Impoundment Control and Item Veto Restraints . . . . . . . . . . . . . . . . . . . 38

Unfunded Mandates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Developments: Evolving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Executive Order vs. Statutory Policymaking . . . . . . . . . . . . . . . . . . . . . . 40

Outsourcing and Privatization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

E-government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Decentralization of Personnel Management . . . . . . . . . . . . . . . . . . . . . . . 50

Federalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

For Further Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

List of Tables

Table 1. Total Outlays for the Federal Government, Selected Years . . . . . . . . . 2

Table 2. Total Outlays for the Legislative Branch, Executive Branch Agencies, and

the Judiciary, Selected Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Table 3. Congressional Staff and Agency Employment, Selected Years . . . . . . . 5

Table 4. Executive Nominees and Career Civilian Employment, Selected Years . 7

Table 5. Executive Schedule Changes, Selected Years . . . . . . . . . . . . . . . . . . . 8

Table 6. Total Judicial Employees, Authorized Article III Judgeships and Supreme

Court Employees, Selected Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Table 7. Legislative Workload, Selected Measures, Selected Years . . . . . . . . . 13

Table 8. Final Rules and Regulations Published in the Federal Register,

1982-1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Table 9. Judicial Workload, Cases or Appeals Terminated or Disposed of by U.S.

District Courts, U.S. Courts of Appeals, and Supreme Court of the United

States, 1950 to 1999. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Table 10. Federal Grants-in-aid to State and Local Governments . . . . . . . . . . 19

Table 11. Senate Committees and Subcommittees, Selected Congresses . . . . . 22

Table 12. House of Representatives Committees and Subcommittees, Selected

Congresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Table 13. Principal Organizations of the Executive Branch, Selected Years . . . 25

Table 14. Number of Federal Judicial Circuits and Districts, Selected Years . . 27

Government at the Dawn of the 21st Century:

A Status Report

As the federal government embarked upon the first year of the 20th century, the

United States consisted of 45 states and the territories of Arizona, New Mexico,

Oklahoma, and Hawaii. Congress counted 86 Senators (four vacancies) and 389

Representatives (two vacancies). The Senate conducted its business with 55 standing

and eight select committees; the House of Representatives performed its functions

with 58 standing and four select committees. President William McKinley was about

to begin his second term of office, but would serve little more than eight months into

the new year before being felled by an assassin. Eight departments were represented

in the Cabinet, and these, together with 10 other principal entities, including the

National Home for Disabled Volunteer Soldiers and the Soldiers’ Home, constituted

the major units of the executive branch.1 The American public, numbering over 76

million people, were being served by some 231,000 executive branch civilian

employees, 5,690 legislative branch employees, and 2,730 judicial branch employees

of the federal government.2

As the first decade of the 20th century elapsed, the federal government entered

a new phase—the rise of the administrative state. Among the forces propelling this

development was the Progressive Movement, which sought greater government

engagement with and regulation of various sectors of American society. An

autonomous Department of Labor, with Cabinet status, was established in 1913, along

with the Federal Reserve. The Federal Trade Commission was created the following

year. With the entry of the United States into World War I, regulatory activities

further expanded, and the number of administrative agencies and federal employees

increased. With the postwar era, the expansion of the federal government

momentarily slowed, but began again with the onset of the Great Depression and the

launching of the New Deal. The colossus that was constructed to combat the national

economic emergency was soon refashioned and augmented to enable the United

States to victoriously end a world war. With the return to peace in 1945, the federal

government stood as a giant complex organization, with over 3.8 million employees.

During the next 45 years, it would continue to expand in terms of both its principal

units and resources. In the immediate past few years, however, some downsizing has

occurred.

This report reviews trends regarding various aspects of the operations of the

federal government during the past 50 years as evidenced by personnel, budget, and

1

Source: data are derived from U.S. Congress, Joint Committee on Printing, Congressional

Directory, 56th Cong., 2nd sess. (Washington: GPO, 1901).

2

U.S. Department of Commerce, Bureau of the Census, Historical Statistics of the United

States: Colonial Times to 1970 (Washington: GPO, 1975), pp. 8, 1102.

CRS-2

other data. It also identifies and discusses, in cameo form, various developments

during this period that are considered significant for federal operations during the next

century. Some of these are crafted innovations, such as mission performance planning

and measurement; some are imposed restraints, such as the Chadha decision

rendering so-called congressional or legislative vetoes unconstitutional. 3 Some

developments are still evolving, such as the electronic government phenomenon, and

await conclusive assessment.

Trends

Budget

Table 1. Total Outlays for the Federal Government, Selected

Years4

Fiscal Year

Current Dollars

(in billions)

Constant (FY1996)

Dollars (in billions)

Percentages

of GDP

1950

42.5

332.0

15.6

1955

68.4

444.2

17.3

1960

92.1

497.0

17.7

1965

118.2

571.7

17.2

1970

195.6

758.0

19.3

1975

332.3

903.3

21.3

1980

590.9

1,087.9

21.6

1985

946.4

1,300.4

22.9

1990

1,253.1

1,478.0

21.8

1995

1,515.8

1,550.6

20.7

2000 (est.)

1,789.5

1,670.3

18.7

The growth of the federal government in terms of total outlays during the past

50 years is shown in table 1. Outlay numbers reflect the amount of funds the

government actually spends in a given fiscal year. Total outlays for the federal

government increased from about $42.6 billion in FY1950 to nearly $1.8 trillion in

FY2000. The increasing size of the federal budget is reflected in outlay figures

expressed in both current (or nominal) dollars and constant dollars, the latter

3

INS v. Chadha, 462 U.S. 919 (1983).

4

U.S. Office of Management and Budget, Budget of the United States Government Fiscal

Year 2001, Historical Tables (Washington: GPO, 2000), pp. 104-109.

CRS-3

involving the use of a deflator to convert all the numbers to the same base (FY 1996

dollars). The conversion to constant dollars removes the impact of inflation (or

deflation), and provides a more accurate picture of the relative change over time.

Using constant (FY1996) dollars, total outlays more than doubled from 1950 to1970

(from $332 billion to $758 billion), and then more than doubled again in the next 20

years (from $758 billion in FY1970 to almost $1.5 trillion in FY1990); during the 50

years from 1950 to 2000, total federal outlays in constant dollars increased over

400%.

It is also useful to assess the growth of the federal budget in comparison to the

size of the U.S. economy. Gross Domestic Product (GDP) provides a common

measure of the size of the economy; it reflects total production of goods and services

within the United States in the given year. The column on the far right in table 1

provides data on total federal outlays as percentages of GDP. In FY1950, federal

outlays amounted to 15.6% of GDP, and increased rather steadily until a peak was

reached in FY1985, when total outlays represented nearly 23% of GDP. In the past

15 years, federal outlays as a percentage of GDP have declined; the estimated figure

for FY 2000, with total outlays representing under 19% of GDP, is the lowest figure

(at least for the five-year intervals included in table 1) since FY1965.

Table 2. Total Outlays for the Legislative Branch, Executive

Branch Agencies, and the Judiciary, Selected Years5

5

Fiscal Year

Legislative Branch

(current dollars,

in millions)

Exec. Branch Agencies

(current dollars,

in millions)

The Judiciary

(current dollars,

in millions)

1962

196

106,568

57

1965

212

117,941

75

1970

353

195,163

133

1975

739

331,309

284

1980

1,224

589,156

567

1985

1,610

943,847

966

1990

2,241

1,249,311

1,646

1995

2,625

1,510,309

2,903

2000 (est.)

3,197

1,781,987

4,378

U.S. Office of Management and Budget, Budget of the United States Government, Fiscal

Year 2001, Historical Tables, pp. 65-74. Derived from a table titled “Outlays by Agency,”

the figures for the executive branch agencies were computed from the OMB source table as

the residual totals, after subtracting the lines for the Legislative Branch and the Judiciary; the

author wishes to acknowledge the assistance of Phillip Winters, Government and Finance

Division, in compiling these figures for the executive branch agencies. This OMB source

table begins with FY1962 and provides data only in current dollars.

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After several years of modest, steady growth in the 1950s and 1960s, legislative

branch spending in the mid-1970s took a sharper, upward swing, with outlays more

than doubling between1970 and1975, and more than tripling through the 1970s. This

increased spending was due primarily to congressional implementation of the

Legislative Reorganization Act of 1970, which increased the budgets and staffs of

congressional committees and support agencies. The creation of the House and

Senate Budget Committees and the Congressional Budget Office in 1974 and funding

for the development of House and Senate computer capabilities during the 1970s and

1980s also account for increases. In contrast with executive branch spending, growth

of spending in the legislative branch has been steady across all organizational units,

and, following the decade-long upgrade of institutional capacity in the 1970s, the

1980s and 1990s were characterized by steady decreases in the rate of spending

growth.

Agencies and entities included under “Executive Branch Agencies” in the data

provided in table 2 constitute a disparate group, comprising all components of the

federal government except those of the legislative branch and the judiciary. Among

these are the 14 Cabinet departments—Agriculture, Commerce, Defense, Education,

Energy, Health and Human Services, Housing and Urban Development, Interior,

Justice, Labor, State, Transportation, Treasury, and Veterans Affairs—as well as

some of the larger nondepartmental agencies, which are individually identified, such

as the Corps of Engineers, Environment Protection Agency, Federal Emergency

Management Agency, General Services Administration, National Aeronautics and

Space Administration, National Science Foundation, Office of Personnel

Management, and Small Business Administration. There are also groupings for

“Other Defense Civil Programs,” “International Assistance Programs,” the agencies

of the Executive Office of the President, and the remaining “Other Independent

Agencies.” The data also reflect outlays for the Social Security Administration (both

on-budget and off-budget).

As shown in table 2, total outlays in current dollars for executive branch agencies

reflect continuing growth during the latter half of the 20th century. The percentage

distribution of all federal outlays going to executive branch agencies remained steady

at 99.7% throughout most of the period, with a slight decline to 99.6% for FY1995

and FY 2000. While beyond the broad trends purview of this report, a more detailed

examination of outlays within the executive branch during the period might show

changing patterns in the relative distribution of spending among the various agencies

and departments.

Judiciary outlays derive from more than 10 separate accounts funding the

Supreme Court, the lower federal courts, and related judicial services.6 The

6

The largest of these accounts funds the salaries of circuit and district judges, retired justices

and judges, judges of the U.S. Court of Federal Claims, bankruptcy judges, magistrate judges,

and all other officers and employees of the federal judiciary not specifically provided by other

accounts. Other accounts fund the compensation and reimbursement of attorneys appointed

to represent criminal defendants in federal trials, juror fees, the U.S. Court of International

Trade, the Administrative Office of the U.S. Courts, the Federal Judicial Center (which

(continued...)

CRS-5

judiciary’s budget does not include funds for three “special courts” in the federal

court system—the U.S. Court of Appeals for the Armed Forces and U.S. Court of

Appeals for Veterans Claims (both funded in the executive branch budget) and the

U.S. Tax Court (funded in the legislative branch budget). The judiciary’s budget has

increased dramatically over the last 35 years. Total outlays for the judiciary in current

dollars roughly doubled every five years between 1965 and 1980, then increased 70%

between 1980 and 1985, 76% between 1990 and 1995, and 50% between 1995 and

2000. Steady increases in the judiciary budget in recent decades paralleled substantial

workload growth for the judiciary during the same time frame.

Personnel

Legislative Branch

Table 3. Congressional Staff and Agency Employment, Selected

Years7

Year

Congressional

Staff

Congressional

Agency Staff

Legislative

Branch Total

1950

NA

NA

NA

1955

5,706

15,761

21,467

1960

6,866

15,651

22,517

1965

8,754

16,728

25,032

1970

11,127

18,523

29,811

1975

17,039

20,264

37,303

1980

18,838

19,862

38,700

1985

19,488

18,590

38,078

1990

19,181

17,557

36,738

1995

17,453

14,606

32,059

2000

17,063

12,928

29,991

Congressional staffing over the past 50 years, as indicated in the table above, can

be broken down into four distinct periods. During the 1950s and 1960s, staffing

6

(...continued)

provides the lower courts with research and educational program support), and the U.S.

Sentencing Commission (an independent agency in the judicial branch, which establishes

sentencing policies and practices for the courts).

7

Source: U.S. Office of Personnel Management, various years; December figures for all years

except 2000, which are from May.

CRS-6

levels were characterized by modest, steady growth. This pattern gave way to a

sharper increase in congressional staff throughout the 1970s, pursuant to

implementation of the 1970 Legislative Reorganization Act. By the 1980s, legislative

branch employment was essentially flat, stabilizing at post reorganization levels

considerably higher than those seen before the reorganization act. The early 1990s

were characterized by a significant downward turn in staffing levels, and the

emergence of what may be another period of stability at the end of the decade.

Congressional staff growth accounts for a greater part of the overall increase in

legislative branch employment than does congressional agency staff growth. In 1960,

6,866 people were assigned to member, committee, and other congressional offices.

Congressional agencies employed 15,651.8 By 1969, those numbers had increased to

10,721 and 18,112, respectively, an increase of 3,855, or 56.15%, in congressional

staff, and 2,461, or 15.72%, in agency staff. This disproportionate growth continued

throughout the 1970s; during the 1980s, legislative branch employees were effectively

evenly divided between congressional staff and congressional agency staff. In the

1990s, both congressional staff and agency staff numbers declined significantly, but

the decline was higher for agency staff, at 19.09%, than the 12.96% congressional

staff downturn. Thus, the relationship of more agency staff than congressional staff

that characterized the 1950s, 1960s, and 1970s reversed by the end of the century.

8

Congressional agencies include the General Accounting Office, Congressional Budget Office,

Architect of the Capitol, Botanic Garden, Government Printing Office, and Library of

Congress.

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Executive Branch

Table 4. Executive Nominees9 and Career Civilian Employment,10

Selected Years

Year

Military

Noms.

Postmaster

Noms.

Civilian

Noms.

Total

Noms.

Career

Civilians

1950

28,822

1,477

1,656

31,955

2,052,000

1955

37,467

1,490

1,729

40,686

2,376,000

1960

40,248

1,696

2,598

44,542

2,403,000

1965

49,211

1,456

5,098

55,765

2,507,000

1970

57,878

3,427

61,305

2,961,000

1975

71,598

3,441

75,039

2,830,000

1980

64,732

3,853

68,585

2,933,000

1985

55,924

3,719

59,643

2,944,000

1990

42,570

2,364

44,934

3,173,000

1995

45,813

2,466

48,279

2,880,000

1999

20,381

3,259

23,640

2,708,000

Over the past 50 years, presidential appointments, as reflected in nominations

sent forward, have remained relatively constant. General civilian appointments and

promotions peaked in 1965, a fact that may be explained by the expansion of several

social programs in which civilian uniformed personnel were employed. The large

9

Sources: executive nominee data are from U.S. Congress, Senate, Journal of the Executive

Proceedings of the Senate, vol. 121 (96th Cong., 1st sess.) and vol. 139 (105th Cong., 1st sess.),

“Table of Nominations Received...” in respective volumes, “Résumé of Congressional

Activity,” Congressional Record, vol. 145, 106th Cong., 1st sess., Dec. 3, 1999. Note that,

with the creation of the U.S. Postal Service, postmasters were no longer political

appointments; note also that civilian (Public Health Service and other civilian uniformed

personnel) and military nominations include promotions as well as appointments.

10

Sources: career civilian employment data include the U.S. Postal Service and temporary

census workers—36,417 (1960), 33,000 (1970), 81,116 (1980), and 111,120 (1990)—but

exclude the Central Intelligence Agency, the National Security Agency, the Defense

Intelligence Agency (as of November 1984), and the National Imagery and Mapping Agency

(as of October 1996). Career civilian employment data for 1950-1995 are from U.S.

Department of Commerce, Bureau of the Census, Statistical Abstract of the United States

(Washington: GPO, 1971, 1982-1983, 1986, 1999), pp. 388, 264, 322, 364. Career civilian

employment data for 1999 are from U.S. Office of Personnel Management, Office of Merit

Systems Oversight and Effectiveness, Federal Civilian Workforce Statistics, Employment

and Trends As of November 1999 (Washington: GPO, 2000), p. 17.

CRS-8

number of military appointments and promotions during the 1970s reflects the

Vietnam era.

Most of the presidential appointments requiring Senate confirmation are to

positions on the Executive Schedule. The Executive Schedule, which includes

department secretaries to assistant secretaries and the heads of minor agencies, was

established in 1964.

Table 5. Executive Schedule Changes, Selected Years11

Executive Schedule (5 U.S.C. 5312-5316)

U.S. Code

Edition

Level I

Level II

Level III

Level IV

Level V

Total

(5 U.S.C. 2211)

10

19

50

210

126

415

1982

14

31

87

315

192

639

1999

18

42

66

345

143

614

1964

Table 5 has been developed to reflect the changes in the Executive Schedule over

the past 36 years. Many other positions in the federal system are paid at rates equal

to the levels of the Executive Schedule, but are not listed in the Schedule. The

President is authorized to place positions in salary rates equal to Levels IV and V, and

other positions are created statutorily, but, due to technical errors in the statutes, are

not placed on the Schedule. The estimates shown in table 4 provide a usable snapshot

for the purpose of studying trends.

Executive branch civilian employment, shown in table 4, is indicated in terms of

on-board annual personnel averages. Among the significant trends associated with

civilian employment are growth during the Korean and Vietnam wars and decline

from 1993 through 1999, the years of the Clinton Administration.12 In March 1994,

with the enactment of the Federal Workforce Restructuring Act (FWRA),

employment limitations for fiscal years 1994 through 1999 were established, providing

for a reduction of 272,900 employees.13 The statute covered federal civilian executive

employment, not including the U.S. Postal Service.

Brookings Institution scholar Paul Light, based upon research he has conducted

over the past several years on the “huge numbers of ‘off-budget’ employees doing the

11

Source: data are derived from 1964 and 1982 editions of the United States Code, along with

the most recent edition of the United States Code Annotated; some numbers are estimates

because several of the positions are listed in multiples (members of...) without specific

numbers being identified.

12

For an analysis of federal employment prior to the Clinton Administration, see Tax Notes,

vol. 58, Jan. 11, 1993, pp. 237-240.

13

108 Stat. 111.

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government’s work,” has observed: “A more accurate count would have to include

not just the civil service, but also the uniformed military, postal workers, and the

contractor, grantee, state and local government workforce needed to deliver the

federal mission. This fuller accounting puts the total number of jobs attributable to

the federal government at 16.8 million in 1999.” Peter Zimmerman of the John F.

Kennedy School of Government at Harvard University responded, saying that “[t]he

reach of the federal government has in fact been reduced,” and that, for 200 years, the

Department of Defense and the U.S. Postal Service have employed the majority of

federal workers.14

14

See Paul C. Light, “Pressure to Grow,” Government Executive, vol. 32, Oct. 2000, pp. 2227; Paul C. Light, The True Size of Government (Washington: Brookings Institution, 1999);

and Peter Zimmerman, “Not So Big,” Government Executive, vol. 31, March 1999, pp. 3942).

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Judicial Branch

Table 6. Total Judicial Employees, Authorized Article III

Judgeships and Supreme Court Employees, Selected Years15

15

Fiscal

Year

Total Judicial

Employees

(excluding S. Ct.)

Total Article III

Judgeships

(excluding S. Ct.)

Article III

Judgeships %

of Total Jud.

Employees

Total

Supreme

Court

Employees

1950

4,345

282

6.5

195

1955

4,700

311

6.6

201

1960

5,562

326

5.9

198

1965

6,461

398

6.2

223

1970

7,395

513

6.9

238

1975

10,082

512

5.1

287

1980

14,011

663

4.7

358

1985

17,542

748

4.3

340

1990

22,490

748

3.3

355

1995

27,217

833

3.1

360

2000

31,576

839

2.6

437

Sources: total judicial employee numbers for 1950-1990 are from Richard A. Posner, The

Federal Courts; Challenge and Reform (Cambridge, MA: Harvard University Press, 1996),

pp. 10-11; 1995 number is full-time equivalent (FTE) employees number for FY1995, minus

number for Supreme Court, in The Judiciary; Budget Estimates for Fiscal Year 1997;

Congressional Submission, p. x; 2000 number is estimated FTE number for FY2000, minus

number for Supreme Court, in The Judiciary; Budget Estimates for Fiscal Year 2001;

Congressional Submission, p. x.

Article III judgeship numbers are from the Administrative Office of the U.S. Courts.

Numbers account for judgeships in the U.S. Courts of Appeals and the U.S. District Courts

for all years in the table; the U.S. Court of International Trade from 1980 to the present; the

U.S. Customs Court to 1979; and the U.S. Court of Customs and Patent Appeals and the

Court of Claims to 1981.

Numbers for Supreme Court employees include the Court’s Justices and individuals

providing administrative and other services under the authority of the Supreme Court, plus

a smaller number of individuals assigned to the care of the Court’s building and grounds under

statutory authority granted to the Architect of the Capitol. Numbers for the years 1950-1995

are from Lee Epstein, Jeffrey A. Segal, Harold J. Spaeth, and Thomas G. Walker, The

Supreme Court Compendium; Data, Decisions, and Developments, 2nd edition (Washington,

Congressional Quarterly, 1996), pp. 51-52 and, for 1995 and 2000, from the FY1997 and

FY2001 Congressional Submission documents cited above in this note.

CRS-11

The workforce of the federal Judiciary consists of the Chief Justice, eight

Associate Justices, and support personnel of the Supreme Court, plus the judicial

officers and staff of a vast system of lower courts and judicial support agencies under

the central policymaking direction of the Judicial Conference of the United States.16

While the workforce of the Supreme Court, as shown in table 6, has a bit more than

doubled over the past half century, the total number of employees of the rest of the

Judiciary during that time has increased more than seven-fold, from fewer than 4,400

employees in FY1950 to more than 31,500 in FY2000. Apart from the Supreme

Court, today’s federal judicial workforce consists of the judges and staff of the 13

U.S. Courts of Appeals; the 94 U.S. District Courts (each including a district court,

bankruptcy court, and probation/pretrial services office); the U.S. Court of Federal

Claims; the U.S. Court of International Trade; the Territorial Courts in Guam, the

Virgin Islands, and the Northern Mariana Islands; and staff of the Judiciary’s two

support agencies, the Administrative Office of the U.S. Courts and the Federal

Judicial Center.

In its budget submission document to Congress for FY2001, the Judiciary

offered the following overview of the composition of its workforce: “There are 852

active Article III judgeships, 486 senior Article III judges, 447 magistrates judges, 16

federal claims judgeships, and 326 bankruptcy judgeships. Combined, there are more

than 2,000 judges presiding over the work of the judiciary. The judiciary is staffed

by over 30,000 dedicated employees who work in all areas of the federal court

system. They are employed as deputy clerks, court security officers, criminal defense

attorneys, interpreters, probation and pretrial services officers, court reporters, circuit

executives, librarians, staff attorneys, and law clerks.”17

The Supreme Court, the Courts of Appeals, the District Courts, and the Court

of International Trade are referred to as “Article III courts” since all were established

under Article III of the Constitution. Specifically, Article III provides for “one

Supreme Court, and ... such inferior Courts as the Congress may from time to time

ordain and establish.” It also provides that judges in these courts “shall hold their

offices during good Behaviour,” that is, they receive lifetime appointments, unlike

judges in certain specialized courts established by Congress under constitutional

authority other than Article III, where appointments are to fixed terms of various

lengths.

16

The Judicial Conference is the national governance body for the U.S. Circuit Courts, the

U.S. District Courts, and the U.S. Court of International Trade; comprising 27 judges and

chaired by the Chief Justice of the United States, it is convened twice a year in Washington,

DC.

17

The Judiciary; Budget Estimates for Fiscal Year 2001; Congressional Submission, p. 4.1.

The Congressional Submission statement, in referring to “852 active Article III judgeships,”

overstates the correct number by four, apparently by including four Territorial Court

judgeships, which Congress established under authority of the Constitution other than Article

III. A separate, more authoritative historical table of federal judgeships, obtained from the

Administrative Office of the U.S. Courts, lists 848 Article III judgeships authorized as of

calendar year 2000, consisting of nine Supreme Court Justice positions and 839 lower court

Article III judgeships.

CRS-12

While the number of Justice positions on the Supreme Court has remained

constant, at nine, for more than 130 years, the total number of other Article III judges

has increased dramatically. Between 1950 and 2000, as Congress periodically

authorized additional Article III judgeships, their number tripled, from 282 to 839

(excluding the nine Supreme Court Justices). Even so, the rate of increase in Article

III judgeships from 1950 to the present has been much less than the rate of increase

in the total number of employees in the federal judicial system during the same period.

A leading authority on the Judiciary’s growth, writing in 1995, observed that Article

III judges had become, by that point, “a diminishing fraction of the total employees

of the federal court system.” This shrinkage, he said, began “well before 1960,

accelerated between 1970 and 1975, and continues unabated to this day.”18

The dramatic increase in the federal judicial workforce over the past half century

has coincided with an increasing number of claims that must be heard in federal

courts. This trend was underscored in a recent budget request to Congress, in which

the Judiciary noted that, over the past 20 years, Congress had enacted more than 200

new laws, many creating new federal crimes. As new criminal defendants and

“releasees” from prison continued to increase, the Judiciary noted, increased demands

were placed on the federal courts’ 7,500 probation and pretrial service program

officers, requiring, according to the Judiciary, a further increase in their numbers.19

Besides Article III judges, thousands of other federal employees perform in

judicial or judge-like roles, but are not regarded as being part of the federal judicial

workforce. Most notable among these are administrative law judges, who are

appointed by and work with federal agencies, and judges and support staff in

specialized “legislative courts” created by Congress under constitutional authority

other than Article III—namely, the U.S. Tax Court, the U.S. Court of Appeals for

Veterans Claims, and the U.S. Court of Appeals for the Armed Forces. The Office

of Personnel Management counts Tax Court and Court of Appeals for Veterans

Claims personnel as being part of the legislative branch workforce, and personnel in

the Court of Appeals for the Armed Forces as executive branch employees.

The growth in federal judicial employment described here, according to one

observer, “understates the expansion of the federal court system” by omitting the

number of people who work for the federal courts without government compensation.

Judicial employment numbers, this observer notes, fail to take into account law

students who work part-time for many federal judges while receiving credit from their

law schools (a practice “unknown thirty years ago”), private practitioners appointed

by district judges to represent civil litigants (“ also ... unknown thirty years ago”), and

the increased use of private practitioners or law professors as special masters paid for

by the opposing parties in litigation to assist judges.20

18

Richard A. Posner, The Federal Courts: Challenge and Reform (Cambridge, MA: Harvard

University Press, 1996), p. 8.

19

The Judiciary; Budget Estimates for Fiscal Year 2001; Congressional Submission, pp. 4.3

and 4.6.

20

Posner, The Federal Courts, p. 9.

CRS-13

Workload

Legislative Activity

Table 7. Legislative Workload, Selected Measures, Selected

Years

Congress

Years

Public Bills

Enacted Into

Law

Private Bills

Enacted Into

Law

Total

Measures

Introduced

Cong. Record

Pages of

Proceedings

81st Cong.

1949-1950

496

706

14,629

24,882

84th Cong.

1955-1956

637

759

14,983

27,723

86th Cong.

1959-1960

477

299

11,145

28,854

89th Cong.

1965-1966

810

473

26,566

55,326

91st Cong.

1969-1970

696

223

28,883

60,408

94th Cong.

1975-1976

588

141

24,284

67,012

96th Cong.

1979-1980

613

123

14,594

61,424

99th Cong.

1985-1986

664

32

11,602

60,836

101st Cong.

1989-1990

650

16

14,464

58,487

105th Cong.

1997-1998

394

10

9,143

48,739

When considering the legislative activities of Congress, a popular measure is the

number of bills enacted into law. As table 7 demonstrates, however, the number of

public bills so enacted reveals no particular upward or downward trend over the last

50 years.21 Other measures, such as private bills enacted into law and the total

number of measures introduced, reveal more consistent patterns of change. Taken

21

A public bill is one that affects the public generally; a bill that affects a specified individual

or a private entity, rather than the population at large, is a private bill. A typical private bill

provides relief in immigration and naturalization matters and civil legal claims against the

United States.

CRS-14

together, they offer a mixed picture of legislative activity. Several trends stand out,

including a decrease in both the number of measures introduced and the number of

private bills enacted into law. Also of note is the increase in the volume of the record

of proceedings, which has grown even as legislative productivity has declined.

After a sharp increase from the 1950s to the 1960s, there has been, since the mid1970s, a steady decline in the number of bills and joint resolutions introduced. The

decline in public bills in the 1980s is largely due to a change in House rules allowing

multiple sponsors (cosponsors) of bills. The number of cosponsors allowed on an

individual bill was once so severely limited that many Members introduced identical

versions of popular proposals. In addition to fewer measures introduced, there has

been a sharp drop in the number of private laws enacted over the last 50 years. The

decline in private laws enacted cannot be traced to a specific rule change, but rather

to broad changes in immigration and government claims law, through which Congress

has delegated some of its authority, on matters that affect individuals, to executive

branch agencies for resolution.

While these data suggest a general decline in legislative productivity, they also

chart a steady rise in the record of legislative proceedings, indicating an upturn in the

attention given to legislative matters. The 84th Congress, 1955 through1956, enacted

637 public and 759 private bills into law. The proceedings of those efforts were

recorded in 27,723 pages of the Congressional Record. Four decades later, the 105th

Congress, 1997 through 1998, passed almost 1,000 fewer bills, yet the proceedings

required almost twice as many pages of the Congressional Record to chronicle.

These data offer a picture of legislative activity, but they should not be taken as

a definitive, reliable determination of congressional workloads. Statistics detailing

legislative productivity do not directly illuminate all facets of work carried out by a

Member of Congress, because they fail to account for time and effort spent carrying

out legislative and oversight activity at the committee level, representational duties

carried out in Washington, DC, and home districts, and constituent services carried

out through Member offices. Even though these activities are likely to take up more

of a Member’s working time than legislative activity, they are often interrelated and

carried out simultaneously, which causes difficulty in quantifying this activity in a

widely accepted manner. Thus, while legislative statistics demonstrate productivity

in one area of congressional service, they provide an incomplete picture of the work

of Congress and its Members.

CRS-15

Regulatory Activity

Table 8. Final Rules and Regulations Published in the Federal

Register, 1982-199922

Year

New

Requirements

Revisions

of

Requirements

Elimination of

Requirements

All

Others

Total

1982

294

1,530

299

4,165

6,288

1983

248

1,430

217

4,154

6,049

1984

260

1,350

162

3,383

5,155

1985

358

1,255

177

3,053

4,843

1986

366

1,267

142

2,814

4,589

1987

451

1,241

85

2,804

4,581

1988

395

1,250

74

2,978

4,697

1989

367

1,175

51

3,118

4,711

1990

313

1,038

50

2,933

4,334

1991

388

1,126

68

2,831

4,413

1992

335

1,136

68

2,616

4,155

1993

389

1,118

78

2,781

4,366

1994

416

1,216

68

3,166

4,866

1995

284

1,155

95

3,179

4,713

1996

255

1,362

177

3,169

4,963

1997

215

1,269

110

3,082

4,676

1998

243

1,036

59

3,560

4,898

1999

253

1,113

44

3,250

4,660

Since the early 1970s, Congress and the President have struggled to lessen the

perceived intrusiveness and cost of federal rules and regulations issued by over 100

federal agencies. During the past three decades, significant increases in the number

22

Sources: data for 1982-1992 are from U.S. Executive Office of the President, Office of

Management and Budget, Regulatory Program of the U.S. Government, April 1, 1992March 3, 1993 (Exhibit 18) (Washington: 1993), p. 623; data for 1993-1999 are from the

Regulatory Information Service Center, U.S. General Services Administration.

CRS-16

and scope of federal regulations and regulatory programs have challenged the reform

effort. In particular, regulations and regulatory agencies promulgating rules relating

to public health and safety, and the environment—the so-called “social” regulations

and regulatory programs—have, while providing substantial benefits, also levied

significant costs for society.

Regulatory reform efforts have focused on several areas: requiring agencies to

prepare cost-benefit analyses for major regulations, centralizing mandatory review and

clearance of new regulations in the Office of Management and Budget (OMB) and by

Congress, establishing control over regulatory agency budgets, setting sunset

limitations (automatic termination on a specific date) for regulations and regulatory

agencies, and expanding judicial review of regulations.

While Congress has not reached agreement on a comprehensive regulatory

reform bill, it has enacted several other important measures, including the Paperwork

Reduction Act,23 the Regulatory Flexibility Act,24 the Unfunded Mandates Reform

Act,25 the Small Business Regulatory Enforcement Fairness Act,26 and the

Congressional Review Act,27 among other legislation. Congress has also legislatively

deregulated specific sectors of the economy—for example, areas of

telecommunications, transportation, and other industries—previously subject to

federal regulation.

Regulatory activity, responding to changing conditions in American society,

remains vigorous. As previously stated, Congress and the President continue their

efforts to mitigate the perceived intrusiveness and cost of this activity. In the absence

of a consensus on a comprehensive regulatory reform bill, smaller scale efforts are

likely to continue. Contending factions remain split, however, over the degree of risk

a society should reasonably tolerate regarding health, safety, and environmental

matters, as well as how best to determine and evaluate such risk.

23

94 Stat. 2812; recodified at 109 Stat. 163; 44 U.S.C. 3501 et seq.

24

94 Stat. 1164; 5 U.S.C. 601 note.

25

109 Stat. 48; 2 U.S.C. 1501 et seq.

26

110 Stat. 857; 5 U.S.C. 601 note.

27

110 Stat. 868; 5 U.S.C. 801 et seq.

CRS-17

Judicial Activity

Table 9. Judicial Workload, Cases or Appeals Terminated or

Disposed of by U.S. District Courts, U.S. Courts of Appeals, and

Supreme Court of the United States, 1950 to 1999.28

Year

District Courts

Courts of

Appeals

Supreme Court

Civil Cases

Terminated

Criminal

Cases

Terminated

Appeals

Terminated

Total Cases

Disposed of

Written

Opinions

1950

53,259

37,414

3,064

1,202

91

1955

58,974

38,580

3,654

1,630

82

1960

61,829

29,864

3,713

1,911

110

1965

65,478

32,078

5,771

2,665

97

1970

80,435

36,819

10,699

3,167

109

1975

104,783

43,515

16,000

3,632

138

1980

163,869

28,606

21,932

4,096

123

1985

272,356

38,190

32,403

4,103

146

1990

214,435

44,570

38,790

5,283

112

1995

229,820

41,527

49,805

6,506

75

1999

272,526

56,511

54,088

7,374

77

For many decades prior to 1960 (except during the National Prohibition years),

caseload growth, shown in table 9, had been moderate in the U.S. district courts and

slight in the courts of appeals. Since then, caseload growth has been great in both,

except during the early and mid-1990s, when caseload levels dipped in the district

courts. In the quarter century period from 1960 to 1985, the number of cases

terminated (action completed) in the district courts more than tripled, from 91,693 to

310,546. Growth had been larger on the civil than on the criminal side of the district

courts’ calendar, even when “criminal” was defined to include post-conviction

28

Sources: Administrative Office of the U.S. Courts, Office of Legislative Affairs, all years’

numbers for the district courts and courts of appeals; Lee Epstein, Jeffrey A. Segal, Harold

J. Spaeth, and Thomas G. Walker, The Supreme Court Compendium: Data, Decisions, and

Developments, 2nd edition, pp. 77-79 and 84-95, numbers for the Supreme Court for 19601995; “The Supreme Court, 1999 Term; The Statistics,” Harvard Law Review, vol. 114,

November 2000, pp. 394 and 402, numbers for the Supreme Court’s October 1999 term.

CRS-18

proceedings and other prisoner petitions.29 Between 1985 and 1995, however, the

district courts’ overall caseload dropped, from 310,546 terminations in 1985 to

271,347 in 1995, primarily on the civil side, with declines greatest in federal contract,

social security, and diversity of citizenship cases. Since then, the district courts’

caseload has witnessed an upsurge. With significant increases in both criminal and

civil caseload, overall case terminations in 1999 rose to 329,037—21% more than

in 1990 and 6% more than in 1985.

The increase in district court caseload has been dwarfed by the increase in courts

of appeals cases—from 3,713 appeals terminated (action completed) in 1960 to

54,088 terminated in 1999 (an almost 14-fold increase). By 1995, one judicial

authority has observed, it was possible to “infer that the federal courts of appeals have

become primarily criminal courts of appeals; more than half the total docket now

consists of criminal or prisoner cases.”30

The 7,374 cases that the Supreme Court disposed of during its October 1999

term were a record number, reflecting a steady increase in the annual number of cases

brought over the preceding five decades, and dwarfing the Court’s caseload level of

almost a half century earlier—1,202 cases disposed of in 1950. This long-term

growth in caseload, one scholar notes, reflected, in the 1950s and 1960s, the

development of interest groups that assisted litigants in carrying litigation through the

courts, a massive growth in the activities of the federal government, which “produced

new laws and legal questions,” and the Court’s “considerable sympathy to challenges

to government action based on alleged violations of civil liberties.”31 After a slower

rate of caseload growth in the 1970s through the mid-1980s, a second period of rapid

growth took place thereafter—with 7,374 cases disposed of in the 1999 term

representing an 80% increase over the 4,103 cases disposed of in 1985. This new rise

in cases “was entirely in papers’ petitions,” the bulk coming from prisoners or criminal

defendants—despite recent rulings by the Court and laws passed by Congress to limit

the use of habeas corpus actions to challenge criminal convictions.32

Another notable trend was that, beginning in the late 1980s, the Court’s justices

reduced the volume of cases they decided on the merits. By the Court’s 1999 term,

its annual number of cases accepted and the number decided with full, signed opinions

had declined by about half, compared with 1985 levels. The central factor explaining

29

Posner, The Federal Courts, p. 59.

30

Ibid., p. 64. The author, at the time, was Chief Judge of the U.S. Court of Appeals for the

Seventh Circuit. Judge Posner, on page 67, cautions that statistics on appellate terminations,

by themselves, may be misleading as workload indicators since many appeals are dismissed

summarily or terminated simply by being consolidated with other pending cases. Almost half

of all federal civil appeals, he notes, are disposed of before being fully briefed and argued or

submitted without argument.

31

Lawrence Baum, The Supreme Court, 7th edition (Washington: Congressional Quarterly

Press, 2001), p. 117.

32

Ibid., pp. 118-119.

CRS-19

this reduction, according to one authority, was that “the justices collectively have

raised their standards for granting [writs] of certiorari.”33

Grants-in-aid

Table 10. Federal Grants-in-aid to State and Local

Governments34

Fiscal Year

Outlays in Billions of

Constant (FY 1992)

Dollars

As Percentages of

Federal Outlays

(constant dollars)

1950

17,405

5.3

1955

20,239

4.7

1960

35,157

7.6

1965

50,295

9.2

1970

88,743

12.3

1975

124,837

15.0

1980

153,373

15.5

1985

131,204

11.2

1990

141,433

10.8

1995

207,760

14.8

2000

235,730

15.9

Congress appropriates funds for grants to state and local governments to further

national goals and assist sub-national governments. Federal grants address numerous

substantive purposes, including community development, crime prevention, and

transportation. Since President Franklin D. Roosevelt initiated his New Deal

programs, the number and dollar amount of grant programs, the latter shown in table

10, have steadily increased. President Lyndon B. Johnson’s “Great Society”

programs increased the relative amount of funding to metropolitan areas, reflecting

the geographic distribution of the population. Many of these programs focused on

minority and disadvantaged populations. The “Great Society” initiative accounted for

the largest increase in federal outlays for grants during the second half of the 20th

century. During the administration of President Richard M. Nixon, Congress and the

President implemented new forms of federal aid called block grants and revenue

33

Ibid., p. 121.

34

Source: U.S. Office of Management and Budget, Budget of the United States Government,

Fiscal Year 2001, Historical Tables, pp. 205-206; the “Other Grants” deflator from p. 170

was used to adjust for inflation.

CRS-20

sharing. These new forms of aid were designed to give states and localities greater

flexibility in using federal funds. The only period in which the grants-in-aid system

has not grown was during the early 1980s. Congress and President Ronald Reagan

created several block grants and reduced the amount spent on grant outlays. This halt

in the growth of the grant-in-aid system was brief: by the late 1980s, the number of

programs and amount of outlays was again increasing. Arguably, the most significant

change in the grants-in-aid system during the 1990s occurred when the 104th Congress

converted the open-ended entitlement grant, Aid to Families with Dependent Children

(AFDC), to a capped block grant called Temporary Assistance to Needy Families

(TANF).

Federal Civilian Procurement

Emergency World War II procurement procedures, and the rapid growth of new

technologies, provided the impetus for the establishment of a statutory basis for

federal postwar procurement. Enacted in 1949, the Federal Property and

Administrative Services Act established the General Services Administration (GSA)

to procure supplies and services, including buildings management, for the federal

civilian agencies.35 This enabling law subsequently evolved to provide an integrated

system of administrative procedures and controls for execution by GSA. 36 The

Federal Acquisition Regulation (FAR) is a codification of uniform policies and

procedures for executive branch acquisitions that is prepared and maintained jointly

by the GSA Administrator, the Secretary of Defense, and the Administrator of the

National Aeronautics and Space Administration. The FAR is published as chapter 1

of Title 48 of the Code of Federal Regulations.

The continued growth of federal procurement during the 1950s and 1960s

resulted in a proliferation of complex and overlapping federal regulations that often

hindered an agency’s ability to procure the best goods and services at a low cost.

Potential vendors increasingly complained about the frustrating complexity of federal

specifications that controlled the production of goods. In 1969, Congress established

the Commission on Government Procurement to study the $50 billion procurement

process.37 The commission noted a void in procurement policy management, and

recommended the establishment of a central procurement policy office to issue policy

guidance within the executive branch. Based on these recommendations, the Office

of Federal Procurement Policy (OFPP) was established in 1974 to provide overall

direction of the nearly $80 billion procurement process.38 OFPP was reauthorized in

1979 for an additional four years, and again in 1983 for a similar period.39 In 1988,

Congress enacted legislation to establish OFPP permanently within the Office of

35

63 Stat.377.

36

40 U.S.C.475 et seq.

37

83 Stat. 269.

38

88 Stat. 796.

39

93 Stat. 648, and 97 Stat. 1325.

CRS-21

Management and Budget.40 A Federal Acquisition Regulatory Council was created

to assist with the direction and coordination of approximately $179 billion in total

federal procurement.

The 103rd Congress enacted the Federal Acquisition Streamlining Act (FASA)

in 1994 as a comprehensive procurement reform designed to streamline the $180

billion federal acquisition process.41 Enactment of FASA revised existing procurement

law in an effort to simplify the government’s acquisition system that, after 50 years,

had become cumbersome and duplicative. The use of simplified acquisition

procedures and a greater reliance on commercial off-shelf products have reduced

impediments to federal procurement, which totaled approximately $186 billion in

1999.

Principal Units

Congressional Committees and Subcommittees

Long periods of gradual growth and intervals of decline in the number and size

of committees and subcommittees can be explained primarily by the major

congressional reorganization acts, periodic rules changes, party caucus reforms, and

informal changes to meet emerging needs and demands. The development of today’s

committee system is the product of internal congressional reforms, but national forces

also have played a role. The Great Depression and World War II greatly expanded

the legislative agenda and inspired the Legislative Reorganization Act of 1946, from

which the modern Congress is customarily dated.42 Outside forces also spurred a

second bicameral reorganization act 24 years later. New complex policy areas, an

increasingly dominant executive branch, and low opinion polls were cited by

supporters of the Legislative Reorganization Act of 1970.43 The periodic reforms of

the past 30 years have resulted from Members' responses to such developments, as

well as their desire to improve the organization and operation of their institution.

40

102 Stat. 4055.

41

108 Stat. 3242.

42

60 Stat. 812.

43

84 Stat. 1140.

CRS-22

Table 11. Senate Committees and Subcommittees, Selected

Congresses44

Congress

Years

Full

Standing

Sub.

Select and Special

Full

Sub.

81st Cong.

1949-1950

15

63

2

84th Cong.

1955-1956

15

87

86th Cong.

1959-1960

16

89th Cong.

1965-1966

Joint

Full

Sub.

NA

10

NA

5

NA

10

11

87

5

0

11

8

16

92

3

6

11

14

91st Cong.

1969-1970

16

101

5

12

9

15

94th Cong.

1975-1976

18

122

6

13

7

14

96th Cong.

1979-1980

15

90

5

10

4

5

99th Cong.

1985-1986

16

88

4

0

4

6

101st Cong.

1989-1990

16

86

4

1

4

8

104th Cong.

1995-1996

17

69

4

0

4

0

106th Cong.

1999-2000

18

69

3

0

5

0

Among other changes, the 1946 act reduced the number of Senate standing

committees from 33 to 15. Since then, as table 11 indicates, the change has been

slight. The number increased, peaking at 18 in the mid-1970s. In 1977, the Senate

shifted committee jurisdictions and eliminated three standing committees (District of

Columbia, Post Office and Civil Service, and Aeronautical and Space Sciences), based

on a reform proposal by the first Temporary Select Committee to Study the Senate

Committee System (the “Stevenson-Brock Committee”). In the 97th Congress (19811982), the Select Committee on Small Business was elevated to a standing committee;

16 standing committees have existed since then.45

44

Sources: Data through the 101st Congress are taken from U.S. Library of Congress,

Congressional Research Service, Committee Numbers, Sizes, Assignments and Staff: Selected

Historical Data, by (name redac t ed)

and (name redacted), CRS Report 96-109

(Washington: Feb. 1, 1996), p. 18; hereafter, CRS Report 96-106. Data for the 104th and

106th Congresses are derived from the Congressional Yellow Book, Fall 1995 and Fall 2000.

45

The term “standing committees” refers to the permanent panels identified in chamber rules,

which also list the jurisdiction of each one. In their areas, standing committees consider bills

(continued...)

CRS-23

The Senate has used more standing committees than any other type of committee

over the past 50 years. During this time, between one and seven select, special, or

other committees have handled particular issues for the Senate, with four such panels

existing since 1989. Senators, too, met with House counterparts to deal with business

affecting both bodies on between five and 11 joint committees from 1945 through

1978. During those years, Congress, on average, had nine joint committees. Since

the 96th Congress (1979-1980), four permanent joint committees have been

maintained, and an additional temporary joint committee was created in the 103rd

Congress (1993-1994), raising the count to five for that time. During the past four

Congresses, joint committees did not establish subcommittees, whereas in the earlier

years there were as many as 16 such subpanels.

Subcommittees, primarily a creation of standing committees, increased in

number, as well as importance, in the Senate from the 1940s to the 1970s. The figure

of 61 in the 80th Congress (1947-1948) more than doubled to 127 in the 93rd Congress

(1973-1974). The growth in the number of subcommittees reflects the federal

government’s expansion into new policy areas, efforts to disperse committee

leadership authority, and attempts to foster specialization.

Since the mid-1970s, periodic reforms have reversed the earlier trend of

increasing subcommittees. In 1977, the recommendations of the Stevenson-Brock

Committee led to a reduction of about one-fifth of the number of subcommittees

(from 122 to 96). The figure rose somewhat in the 1980s, partly because the Select

Committee on Small Business was elevated to a standing committee.

The number of Senate committees and subcommittees and assignments to them

were examined in 1984 by the second Temporary Select Committee to Study the

Senate Committee System (the “Quayle Committee”). Largely as a result of this

committee’s work, the numbers of assignments per Senator and of subcommittees

were reduced in 1985. Fourteen subcommittees of standing committees were

eliminated, leaving 88. This figure varied little until the 104th Congress (1995-1996),

which cut 18 subcommittees of standing committees. The reduction brought the

number of subcommittees to its lowest level since 1954. Reductions in committee

budgets, and concerns about the number of panels and assignments, prompted

committees to cut back on their subunits.

45

(...continued)

and issues and recommend measures for consideration by the respective chambers, as well as

conduct oversight of agencies, programs, and activities. Most standing committees

recommend authorized levels of funds for government operations and for new and existing

programs within their jurisdictions. The term “non-standing committee” is used in this report

to describe the joint, select, special, and other panels of Congress. The joint committees

usually are permanent panels that conduct studies or perform housekeeping tasks rather than

consider measures. Members of both chambers serve on them. Conference committees,

temporary joint committees formed to resolve differences in House- and Senate-passed

versions of a particular measure, are not addressed by this report.

CRS-24

Table 12. House of Representatives Committees and

Subcommittees, Selected Congresses46

Congress

Years

Full

Standing

Sub.

Select and Special

Full

Sub.

81st Cong.

1949-1950

19

62

2

84th Cong.

1955-1956

19

85

86th Cong.

1959-1960

20

89th Cong.

1965-1966

Joint

Full

Sub.

NA

10

NA

1

5

10

11

120

1

7

9

13

20

125

1

7

11

14

91st Cong.

1969-1970

21

130

2

6

9

15

94th Cong.

1975-1976

22

149

3

4

7

14

96th Cong.

1979-1980

22

150

5

8

4

5

99th Cong.

1985-1986

22

140

5

12

4

6

101st Cong.

1989-1990

22

138

5

9

4

8

104th Cong.

1995-1996

19

86

1

2

4

0

106th Cong.

1999-2000

20

89

1

2

5

0

Table 12 shows that, during the past 50 years, the number of House standing

committees has been stable, but the number of subcommittees increased considerably

from the 1940s through the 1970s. Total House and joint committees and

subcommittees peaked at 199 in 1975. Dramatic cuts, primarily in the past four

Congresses, have left 117 such panels. Today, as in the past, a House standing

committee is, on average, roughly twice as large as a Senate standing committee.

House subcommittees of standing committees currently are about two-thirds larger

than their Senate counterparts. The larger size of the House committees and

subcommittees is primarily due to the larger size of the chamber, more than four times

that of the Senate.

As the number of House committees and subcommittees increased during the

post-war period, so did the number of assignments per Representative. The average

doubled from three to six from 1947 to 1975, and grew to seven in 1987. Today’s

lower average of five assignments per Representative can be attributed to stricter

46

CRS Report 96-106, p. 11. Data for the 104th and 106th Congresses are derived from the

Congressional Yellow Book, Fall 1995 and Fall 2000.

CRS-25

assignment limitations and cuts in the number of committees and subcommittees

during the past four Congresses.

Despite the reductions in assignments and committees and subcommittees, the

sizes of standing committees and subcommittees have moved upward during the 50year period reviewed here. Figures for 1995 reflect the largest average size. In 1995,

House standing committees and subcommittees averaged 40 and 15 Members

respectively; 18 was the average Senate standing committee size, with nine as the

average size for each subcommittee. Since then, the number of standing committees

has remained fairly constant, increasing gradually to a high of 22 in the 93rd Congress

(1973-1974). For the next two decades, the House operated with 22 standing

committees, dropping to 19 in the 104th Congress (1995-1996) and going to 20 in the

106th Congress (1999-2000).

Executive Departments and Agencies

Table 13. Principal Organizations of the Executive Branch,

Selected Years47

47

Year

Executive Office

of

the President

Principal

Executive

Departments

Independent

Establishments

1950

9

9

48

1955

8

10

57

1960

9

10

45

1965

10

10

46

1970

15

12

44

1975

15

11

59

1980

11

13

56

1985

9

13

57

1990

11

14

61

1995

9

14

62

2000

11

14

55

Source: data are derived from the United States Government Manual, selected years.

“Principal executive departments” does not include the Departments of the Army, Navy, and

Air Force; “independent establishments” does not include organizations listed as quasi-official

agencies, multilateral or bilateral organizations, or selected boards, commissions, and

committees.

CRS-26

Overall, as table 13 indicates, the number of principal executive branch

organizations has grown during the past 50 years. The Executive Office of the

President averaged nine to 11 units. Expansion to 15 entities occurred during the

years of the Nixon Administration, reflecting the President’s strong reliance on aides

and assistants in close proximity to the Oval Office. However, most Presidents,

including Richard M. Nixon, have made varied use of the Executive Office.48

Considering the historical record, former presidential counsel Theodore C. Sorensen

has offered the observation that some Presidents use the Executive Office “as a farm

league, some use it as a source of experts and implementers, and some use it as

Elba.”49

Executive departments and independent establishments are created to administer

federal programs, and are occasionally reorganized into consolidated or larger units

to improve management and efficiency and economy of operations. The departments

grew by one from 1950 to 1955 with the 1953 creation of the Department of Health,

Education, and Welfare (HEW), which was largely an upgrading of the Federal

Security Agency. By 1970, another increase had occurred: the 1965 creation of the

Department of Housing and Urban Development, followed by the 1966 establishment

of the Department of Transportation, both moves constituting a consolidation of

federal programs and an elevation of their administration in response to increasing

urbanization. Later that year, legislation was enacted to replace the Department of

the Post Office, effective the following year, with the U.S. Postal Service and the

Postal Rate Commission. This change is reflected in the 1975 department decrease.

By 1980, however, two more additions had occurred: the Department of Energy was

mandated in 1977, another consolidation of federal programs and elevation of their

administration in response to various national energy concerns, and the relocation, the

next year, of HEW’s education programs in a new Department of Education. The

1988 elevation of the Veterans Administration to departmental status is the most

recent development.

Growth in the number of independent establishments in the mid-1950s reflects

the federal government’s reconversion from World War II mobilization and

preparation for the Cold War. Such entities as the Council of National Defense,

Displaced Persons Commission, Philippine War Damage Commission, War Claims

Commission, and War Contracts Price Adjustment Board soon disappeared. New

arrivals included the Civil Defense Coordinating Board, the Federal Civil Defense

Administration, the Foreign Claims Settlement Commission, the National Security

Training Commission, and the Subversive Activities Control Board. Further

adjustments during the Eisenhower Administration resulted in a foundation of 45

agencies for the successor Kennedy Administration. This number generally rose

during the Nixon, Reagan, and George H. W. Bush Administrations as new agencies

were created to administer economic, consumer, environmental, and energy programs.

During the past few years, efforts to cut the cost of government have resulted in a

notable reduction in the number of independent establishments, the Administrative

48

The Executive Office of the President was established by Reorganization Plan 1 of 1939 (53

Stat. 1423), and was organized with E.O. 8248 of Sept. 8, 1939 (3 C.F.R., 1938-1943

Comp., pp. 576-579).

49

Theodore C. Sorensen, Watchmen in the Night (Cambridge: MIT Press, 1975), p. 100.

CRS-27

Conference of the United States, the Advisory Commission on Intergovernmental

Relations, the Franklin D. Roosevelt Memorial Commission, the Interstate Commerce

Commission, the Pennsylvania Avenue Development Corporation, the United States

Arms Control and Disarmament Agency, and the United States International

Development Cooperation Agency being among those recently abolished.

Judicial Units

Table 14. Number of Federal Judicial Circuits and Districts,

Selected Years50

Year

Circuits

Districts

1950

11

91

1955

11

91

1960

11

91

1965

11

91

1970

11

93

1975

11

94

1980

12

95

1985

13

94

1990

13

94

1995

13

94

2000

13

94

During the past 50 years, the basic structure of the federal judicial system, and

the number of units making up that system, have undergone relatively little change.

Yet, within that structure, Congress, through legislation, has made various important

modifications, creating several new courts of specialized jurisdiction to supersede

already existing courts, splitting one geographically large court of appeals into two

circuits, and creating one appellate court of special subject matter jurisdiction within

the circuit court of appeals system.

Table 14 shows that, a half century ago, the federal trial courts consisted of 91

U.S. district courts, having jurisdiction to hear nearly all categories of federal cases,

including both civil and criminal matters. Today, there are 94 federal judicial districts,

including at least one district in each state, the District of Columbia, and Puerto Rico.

Three territories of the United States—the Virgin Islands, Guam, and the Northern

Mariana Islands—also have district courts that hear federal cases, including

bankruptcy cases.

50

Source: all data are from the Administrative Office of the U.S. Courts.

CRS-28

Besides trial courts of general subject matter jurisdiction, the federal system

historically has included various special trial courts having nationwide jurisdiction

over certain types of cases. In 1950, these included the U.S. Customs Court, having

jurisdiction in actions arising under the tariff acts. In 1980, Congress reconstituted this

court as the U.S. Court of International Trade, when it passed the Customs Court

Act, to implement broad judicial review powers enacted into law in the Trade

Agreements Act a year earlier. Shortly thereafter, in 1982, Congress established the

U.S. Claims Court, which succeeded the former Court of Claims in having jurisdiction

over claims seeking money judgments against the United States. In 1992, Congress

changed the name of the court to the U.S. Court of Federal Claims.

Also, a half century ago, the federal appellate court system consisted of 11

geographical circuits —10 denominated numerically as the First through the Tenth,

with the other being the District of Columbia Circuit. Today, there 12 regional

courts of appeals (the First through the Eleventh, plus the DC Circuit), each of which

hears appeals from the district courts located within its circuit, as well as appeals from

federal administrative agencies. The increase in geographical circuits, from 11 to 12,

occurred in 1980 when Congress passed legislation to divide the U.S. Court of

Appeals for the Fifth Circuit (made up of Alabama, Florida, Georgia, Louisiana,

Mississippi, and Texas) into two circuits. Pursuant to the legislation, the new Fifth

Circuit is made of up of Louisiana, Mississippi, and Texas, while a new Eleventh

Circuit consists of Alabama, Florida, and Georgia. More recently, in 1997, the Senate

passed legislation to split the nation’s largest geographic judicial circuit, the Ninth,

into two circuits, but that effort failed completion in the House of Representatives.

The federal appellate court system also includes a Court of Appeals for the

Federal Circuit, which Congress established in 1982. This court has nationwide

jurisdiction to hear appeals in specialized cases, such as those involving patent laws

and cases decided by the Court of International Trade and the Court of Federal

Claims. Upon its creation, it succeeded the former U.S. Court of Customs and

Patent Appeals, and assumed the appellate functions of the U.S. Court of Claims.

During the last half century, Congress passed legislation, as well, creating other

specialized federal courts outside the primary federal appellate and trial court system.

In 1969, legislation was enacted creating the U.S. Tax Court, which has jurisdiction

to try controversies involving deficiencies or overpayments in income, estate, and gift

taxes. In 1988, Congress statutorily created the U.S. Court of Veterans Appeals

(renaming it the U.S. Court of Appeals for Veterans Claims in 1998), giving it

exclusive jurisdiction to review decisions of the Board of Veterans Appeals.

CRS-29

Developments: Innovations

Open Government

When Congress enacted the Administrative Procedure Act (APA) in 1946,

provision was made for unpublished official records to be made available to persons

properly and directly concerned with a rulemaking matter. Allowance was also made,

however, for federal agencies to restrict such access to their records “in the public

interest” or “for good cause found.”51 A secrecy-minded bureaucracy, conditioned

by recent information restrictions prompted by global hostilities, fearful of Cold War

spies, and intimidated by zealous anti-Communist investigators within and outside of

government, was not eager to have its activities and operations disclosed to the

public, the press, or other government entities. The discretionary protections of the

APA and other statutes were applied to create a so-called “paper curtain” of secrecy.

At the urging of the press, House leaders created a special subcommittee in 1955 to

examine the availability of information from the executive departments and agencies.

By the early 1960s, this panel and a Senate counterpart subcommittee were actively

preparing corrective legislation to guarantee “the people’s right to know.” The

proposal, known as the Freedom of Information Act (FOIA), was ultimately approved

by Congress in 1966.52 No executive official supported the measure, and President

Lyndon B. Johnson, under pressure from the press, reluctantly signed it.

The FOIA would prove to be the first in a series of open government laws. It

established a presumptive right for any person—individual or corporate, regardless

of nationality—of access to identifiable, unpublished, existing records of the federal

departments and agencies without having to demonstrate a need or to even give a

reason for such a request. The burden of proof for withholding material sought by the

public is placed upon the government. The statute specifies nine categories of

information that may be protected from disclosure, and disputes over the availability

of records may be settled ultimately in court. Agency resistance to the law and other

changing circumstances would necessitate its amendment in 1974, 1976, 1986, and

1996, the last modification being made to accommodate access to information in

electronic form and formats.

Other open government laws, based upon the FOIA model, would soon follow.

The Federal Advisory Committee Act of 1972 made the meetings of federal advisory

committees presumptively open to public observation.53 The Privacy Act of 1974

gave American citizens and permanent resident aliens a presumptive right of access

to agency files maintained on them personally, and a right to correct the information

contained in such files through emendation.54 The Government in the Sunshine Act

of 1976 made the business meetings of collegially headed agencies presumptively

51

60 Stat. 237at 238.

52

80 Stat. 250; 5 U.S.C. 552.

53

86 Stat. 770; 5 U.S.C. App.

54

88 Stat. 1896; 5 U.S.C. 552a.

CRS-30

open to public scrutiny. 55 The Presidential Records Act of 1978 made the official

records of the President and Vice President created after January 20, 1981, federal

property that was to remain under the custody and control of the Archivist of the

United States.56 It ended the longstanding practice of departing Presidents taking

their papers with them as personal property to dispose of as they might wish. The

John F. Kennedy Assassination Records Collection Act of 1992 established

arrangements for the collection, systematic review, and public availability of all official

records pertaining to the assassination of President Kennedy in 1963.57 Such laws

have contributed significantly to making the federal government the most open

government in the world today.

Inspectors General

Created to combat waste, fraud, and abuse in federal programs and operations,

the statutory inspector general (IG) office marks its 25th anniversary in 2001.

Inaugurated in the Department of Health, Education, and Welfare (now Health and

Human Services) in 1976,58 IG offices presently exist in nearly 60 federal

organizations, including all of the cabinet departments, the largest agencies, and

numerous other boards, commissions, foundations, and public corporations. Two

major statutes—the Inspector General Act of 1978 and 1988 amendments to

it 59—mandate and empower the offices and obligate them, as well, to keep their

agency heads and Congress fully and currently informed about their findings and

recommendations. Importantly, the IG offices were established in response to major

financial scandals or other serious abuses of authority in some of the departments and

agencies. This misconduct was magnified at the time by the executive’s inability to

prevent, detect, or investigate these problems adequately, in part because of a lack of

coordination, power, independence, and resources among existing audit and

investigation entities.

Largely, two types of IGs have been created. In all of the cabinet departments

and larger agencies, the IG is appointed by the President, subject to Senate

confirmation, and can be removed only by the President or through the congressional

impeachment and removal process. In the smaller boards, commissions, foundations,

and public corporations, the IG is appointed by, and can be removed by, the agency

head. Two other statutory IG offices—both modeled on the provisions of the basic

IG act—have been established in the Government Printing Office, where the IG is

appointed by the agency head,60 and in the Central Intelligence Agency, where the IG

55

90 Stat. 1241; 5 U.S.C. 552b.

56

92 Stat. 2523; 44 U.S.C. 2201.

57

106 Stat. 3443; 44 U.S.C. 2107 note.

58

90 Stat. 2429.

59

92 Stat. 1101 and 102 Stat. 2515; the amended Inspector General Act may be found in 5

U.S.C. Appendix.

60

102 Stat. 2530.

CRS-31

is appointed by the President, with Senate confirmation.61 Coordination among the

first type of IGs occurs through the President’s Council on Integrity and Efficiency,

and for the second type, through the Executive Council on Integrity and Efficiency,

in accordance with Executive Order 12805 of May 11, 1992, chartering these

panels.62

Established as permanent, independent, nonpartisan entities, the offices are

authorized to conduct audits and investigations of agency programs and operations;

directly access agency records and data; issue subpoenas for all necessary information,

data, reports, and other documentary evidence; hire their own staff and obtain

adequate office space and operational resources; request assistance directly from

other federal, state, and local government agencies; and, in the offices in the federal

establishments, have their own line items in the budget. Except under rare

circumstances, spelled out in the law, an agency head provides only “general

supervision” over the IG, and may not interfere with any of his or her audits,

investigations, or subpoenas. In order to protect their impartiality and objectivity,

moreover, IGs are not authorized to carry out any recommendations for corrective

action or make reforms themselves; and the Inspector General Act specifically

prohibits the transfer of “program operating responsibilities” to the IGs. Criminal

investigators in the IG offices in most of the cabinet departments and largest agencies

have been vested, by statute or special deputation of the Department of Justice, with

broad law enforcement authority.

The IGs also provide “one-stop shopping” for information about waste, fraud,

and abuse in agency programs. They are required to keep the agency head and

Congress fully and currently informed about problems and deficiencies related to the

administration of programs through various reports and other appraisals, including

meetings with legislators and staff and testifying before congressional committees.

The IGs must report their findings and recommendations semiannually to the agency

heads, who transmit these reports, unaltered, along with their comments, to Congress

within 30 days. In addition, the IGs are authorized to issue immediate reports on

particularly serious or flagrant problems to the agency heads, who must transmit

them, unaltered, along with any comments, to Congress within seven days. Whenever

an IG has reasonable grounds to believe that a violation of federal criminal law has

occurred, the Attorney General must be expeditiously so notified.

After a quarter century of experience, IG offices continue to evolve. The

capabilities and priorities of the offices differ according to the IGs’ training,

experience, and length of service; their individual priorities; existing practices of the

offices; and their resources, among other factors. In addition, the IGs’ orientations

may proceed along two different lines: some may adopt an “insider” strategy,

working closely with management to prevent problems and ensure the

implementation of their recommendations, while others may opt for an “outsider”

strategy, focusing on the detection and exposure of problems by developing an open

relationship with the agency workforce. In general, the IG offices have been, and

61

103 Stat. 1711.

62

See 3 C.F.R., 1992 Comp., pp. 299-302.

CRS-32

continue to be, an important innovation in promoting efficiency, economy, and

effectiveness in federal administration and management.

Performance Management and Budgeting

The Government Performance and Results Act of 1993 (GPRA or the Results

Act) seeks to promote greater efficiency, effectiveness, and accountability in federal

spending by establishing a new framework for performance management and

budgeting in federal agencies.63 GPRA establishes three types of ongoing planning,

evaluation, and reporting requirements for executive branch agencies: strategic plans

(covering six years, but revised at least every three years), annual performance plans,

and annual reports on program performance. In complying with GPRA, agencies

must set goals, devise performance measures, and then assess results achieved.

GPRA represents the latest in a series of initiatives taken over the past 50 years

attempting to link budget levels with expected results, so that spending decisions can

be better aligned with anticipated performance. This general perspective is commonly

referred to as “performance budgeting,” and should be viewed as an evolving, rather

than as a static, approach.64

In the aftermath of World War II, the (Hoover) Commission on Organization of

the Executive Branch of the Government, charged with promoting economy,

efficiency and improved services in the executive branch, included among over 270

recommendations a call for performance budgeting in the federal government. Some

of these recommendations were reflected in the Budget and Accounting Procedures

Act of 1950, and led to permanent changes in the presentation of the President’s

budget submission, such as “obligations by activities” tables.65

In the 1960s, the Planning-Programming-Budgeting-System (PPBS) was

introduced in the Defense Department, and subsequently was mandated for

governmentwide application by President Lyndon B. Johnson. PPBS attempted to

integrate planning and budgeting functions through modern systems analysis and costbenefit analysis to review alternatives, costs, and consequences. In 1973, President

Richard M. Nixon initiated Management by Objectives, primarily a management

improvement effort seeking to hold agency managers responsible for achieving

stipulated outcomes, and, further, linking the agreed-upon objectives to the agency’s

budget request. Still another reform effort followed in 1977, when President Jimmy

Carter brought Zero Base Budgeting (ZBB) to the federal government. With ZBB,

agencies were to prepare a series of decision packages to reflect alternative funding

levels; the intent was to link directly the expected program results with the level of

spending.

63

107 Stat. 285.

64

This conception of performance budgeting was suggested in a recent GAO report on the

subject; the brief review of past efforts which follows relies heavily on that source. See U.S.

General Accounting Office, Performance Budgeting: Past Initiatives Offer Insights for

GPRA Implementation, GAO Report AIMD-97-46 (Washington: GPO, 1997).

65

64 Stat. 832.

CRS-33

Successful implementation of GPRA requires direct linkages between an

agency’s goals and objectives and its budget justification. In its annual performance

plan, each agency is to align performance objectives with the program activity

structure contained in the President’s budget. In addition, the law calls for

performance budgeting pilots to provide information on the “direct relationship

between proposed program spending and expected program results and the

anticipated effects of varying spending levels on results.” In October 1999 (two years

behind schedule), OMB designated five pilot projects. GPRA requires that OMB

report to Congress on the experiences with the pilots by March 31, 2001, and

recommend whether performance budgeting in the more extensive form seen in the

pilots should be implemented throughout the federal government.

Progress in GPRA implementation has proved uneven to date. Some agencies

have yet to define adequately their goals, program objectives, and expected outcomes

and results, and to develop appropriate measures to gauge their attainment. There are

concerns about the costs and benefits of developing new results-oriented performance

measurement systems, about the lack of interagency coordination to use similar

measures to compare similar programs, and about the need to link Results Act

implementation to the everyday work of program mangers. Despite such unsettled

issues, it is well to keep in mind that GPRA differs in important respects from past

efforts at performance management and budgeting. Previous formulations, such as

PPBS and ZBB, were executive branch initiatives; in contrast, GPRA has a statutory

base, with its requirements set in public law. Unlike past efforts, which generally

lacked congressional linkages, GPRA provides for mandatory consultation with

Congress and the linking of management planning and budget preparation processes.

Financial Management Improvement

During the past two decades, Congress has enacted a series of laws to reform

and improve financial management in the federal government. The Federal Managers

Financial Integrity Act of 1982 (FMFIA), generally regarded as the first of these

measures, was intended to strengthen internal controls and accounting systems.66

However, by the end of 1989, after seven years of FMFIA implementation, only

limited progress had occurred, and the General Accounting Office “reported that the

government did not have the internal control systems necessary to effectively operate

its programs and safeguard its assets and that its accounting systems were antiquated

and second-rate.”67

66

96 Stat. 814-815; 31 U.S.C. 3512. Arguably, the Inspector General Act of 1978 (discussed

elsewhere in this report), with its focus on increased accountability in the federal government

through improved audits and investigations, might be viewed as the earliest in this series of

related financial management reform laws.

67

U.S. General Accounting Office, Financial Management: Federal Financial Management

Improvement Act Results for Fiscal Year 1999, AIMD-00-307 (Washington: September

2000), p. 7.

CRS-34

The Chief Financial Officers (CFO) Act of 1990 followed, the culmination of a

bipartisan five-year effort to increase federal accountability.68 A major component of

the legislation is a new leadership structure for federal financial management,

consisting of two new positions within the Office of Management and Budget (OMB):

a Deputy Director for Management, to serve as the federal government’s chief

financial officer, and a Controller, to head the statutorily established Office of Federal

Financial Management. In addition, the law created 24 Chief Financial Officers within

the major executive departments and agencies, and an equal number of deputy

CFOs.69 Other provisions in the original act addressed improvement of financial

management systems, requirements for audited financial statements and management

reporting, and changes in audits and reporting requirements for government

corporations.

Each of the 24 agency CFOs reports directly to the agency head and is

responsible for all agency financial management operations, activities, and personnel.

The CFOs develop financial management budgets, produce financial reports, and

monitor budget execution. The 1990 law also established a Chief Financial Officers

Council, chaired by OMB’s Deputy Director for Management. Other members

include the Controller, the Fiscal Assistant Secretary of Treasury, and the 24 agency

CFOs. The CFO Council meets periodically to coordinate relevant agency activities,

and has developed into an important interagency entity.

An additional CFO joins the 24 existing CFOs in early 2001 as the result of a

provision in the Treasury and General Government Appropriations Act, 2000,

establishing a CFO within the Executive Office of the President (EOP).70 The new

CFO for the EOP generally has the same authority and performs the same functions

as the other agency CFOs, but the President has the discretion to determine that

certain statutory provisions applicable to other agency CFOs shall not apply to the

new position. Congress must be notified of any such exemptions.

Important amendments to the CFO Act have extended its original purview. In

1993, the Government Performance and Results Act (GPRA), building upon agency

financial information mandated by the CFO Act, stipulated new performance

measurement requirements, extending the initial language in the CFO Act regarding

“systematic measurement of performance” for selected activities.71

68

104 Stat. 2838; codified as amended at 31 U.S.C., chapters 5, 9, 11, and 35; also 5 U.S.C.

5313-5315, 38 U.S.C. 201 note, and 42 U.S.C. 3533.

69

Of the 24 CFO positions, those in the 14 cabinet-level departments, the Environmental

Protection Agency, and the National Aeronautics and Space Administration are filled by

presidential appointees, confirmed by the Senate. The remaining eight CFO positions (for the

Agency for International Development, Federal Emergency Management Agency, General

Services Administration, National Science Foundation, Nuclear Regulatory Commission,

Office of Personnel Management, Small Business Administration, and the Social Security

Administration), along with all 24 Deputy CFO positions, are career slots, filled by agency

head appointment.

70

113 Stat. 430; for provisions relating to the new CFO position, see sec. 638, 113 Stat. 475.

71

107 Stat. 285.

CRS-35

Provisions in the Federal Financial Management Act of 1994 substantially

expanded the requirements of the CFO Act concerning audited financial statements.72

Initially, agency heads subject to the CFO Act were to prepare and submit to OMB

audited financial statements for each revolving and trust fund and for accounts that

performed substantial commercial functions. In addition, a three-year pilot

program—eventually involving 10 of the original 23 agencies—commenced, requiring

preparation of audited financial statements for all agency accounts. The 1994

amendments extended the requirement for audited financial statements covering all

accounts to include all 24 CFO agencies. Beginning March 1, 1997, and annually

thereafter, agency heads have submitted to the OMB director “an audited financial

statement for the preceding fiscal year, covering all accounts and associated activities

of each office, bureau, and activity of the agency.” The fourth set of these financial

statements was due in March, 2000; 15 agencies received clean audit opinions on their

FY 1999 statements.73 The 1994 law also expanded the purview of audited financial

statements by requiring annual preparation of consolidated, governmentwide

statements covering all federal executive branch agencies. The Secretary of the

Treasury, in coordination with the director of OMB, submitted the first round of these

governmentwide financial statements to the President and Congress in March of 1998.

The Federal Financial Management Improvement Act (FFMIA) of 1996 built

upon the prior legislation and statutorily incorporated certain financial system

requirements established as executive branch policy. 74 The statute sets a general

requirement for CFO agencies to “implement and maintain financial management

systems that comply substantially with federal financial management system

requirements, applicable federal accounting standards, and the United States

Government Standard General Ledger at the transaction level.” The FFMIA also

requires auditors to report on agency compliance with these requirements and agency

heads to correct deficiencies within certain time periods.

72

Enacted as Title IV of the Government Management Reform Act of 1994, 106 Stat. 3412.

73

U.S. General Accounting Office, Financial Management: Federal Financial Management

Improvement Act Results for Fiscal Year 1999, p. 15.

74

Enacted as Title VIII of the Omnibus Consolidated Appropriations Act for FY 1997, 110

Stat. 3009-389; 31 U.S.C. 3512 note.

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Developments: Restraints

Chadha Decision

To control the actions of the President and executive officers, Congress

established arrangements whereby a so-called legislative veto could be exercised over

delegated authority. While various legislative veto arrangements were created,

typically they mandated that the executive branch notify Congress of a proposed

action and then wait for a specified period of time, usually 60 to 90 days, before

actual implementation. During the waiting period, Congress could veto the proposed

action by a majority vote in both houses or in one house, or by a majority vote of a

single committee.

Although the legislative veto has some precedents in the period following the

Civil War, it came into prominence in the 1930s and the subsequent decades. The

Economy Act of 1932, for example, authorized the President to propose limited

reorganizations of the executive branch.75 A reorganization proposal, embodied in an

executive order, had to be transmitted to Congress for a 60-day review period. If

neither house, by majority vote, disapproved the proposal, it could then become

effective at the close of the review period. President Herbert Hoover had asked

Congress for a similar reorganization arrangement in 1929, and his first chance to

exercise the authority given him in 1932 occurred after his electoral defeat that year.

Congress disapproved his proposals for changes in 58 governmental activities,

preferring to leave any such reorganizations to the incoming President, Franklin D.

Roosevelt.

Nonetheless, the legislative veto arrangement was seen to offer advantages to

both the executive and the legislative branches. The President obtained a fixed

timeframe, of relatively short duration, before his proposals might become effective,

and, oftentimes, under terms which prohibited any amendment of his offerings.

Congress retained control of delegated authority through an arrangement far less

cumbersome than passing legislation, which might incur a presidential veto and,

therefore, require a two-thirds majority in each house to override.

Executive reorganization arrangements continued to make use of the legislative

veto over the next few years, with slight variations from the 1932 model. A 1939

version, for example, substituted a reorganization plan for the executive order and a

two-house veto for the one-house disapproval. 76 The innovation also was introduced

in a few other areas, such as military and naval construction, the deportation of aliens,

and public works programs. Suspicions began to arise, as well, that the legislative

veto might not be constitutional. Attorney General Herbert Brownell proffered such

a view to President Dwight D. Eisenhower in 1955 regarding congressional

committee vetoes of proposed executive actions.

75

47 Stat. 413.

76

53 Stat. 36.

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As Congress attempted to redress the balance of power with the executive

branch in the 1970s, legislative vetoes began to proliferate. They appeared in such

major statutes as the War Powers Resolution of 1973,77 the Congressional Budget and

Impoundment Control Act of 1974,78 the Presidential Recordings and Materials

Preservation Act of 1974,79 the Hopi and Navajo Tribe Act of 1974,80 the Energy

Policy and Conservation Act of 1975,81 the National Emergencies Act of 1976,82 the

Emergency Unemployment Compensation Act of 1977,83 and the Airline Deregulation

Act of 1978.84

While Congress appeared to be quite well disposed to the legislative veto, others

were not. In a June 21, 1978, message to Congress, President Jimmy Carter, noting

that, in the pervious four years, at least 48 legislative veto provisions had been

enacted—“more than in the preceding twenty years—declared them “unnecessary,”

“unwarranted,” and “unconstitutional.”85 Others would agree, and a major national

debate ensued. Resolve, of sorts, came with a June 23, 1983, decision of the Supreme

Court in the Chadha case concerning the legislative veto of the Immigration and

Nationality Act of 1952, which authorized the Attorney General to suspend the

deportation of aliens subject to a one-house veto.86 Relying on a strict reading of the

lawmaking process, Chief Justice Warren Burger, writing the majority opinion,

invalidated the one-house veto for violating both the Constitution’s principle of

bicameralism, which requires action by both houses of Congress, and presentation

clause, which requires that all congressionally approved bills be presented to the

President.87 Justice Byron White, one of two dissenters in the case, observed that the

ruling “sounds the death knell for nearly 200 other statutory provisions in which

Congress has reserved a ‘legislative veto’.”88

Following the Chadha decision, Congress has tendered, and the executive branch

has accepted, more subtle and informal checks in place of the legislative veto. These

include requirements for written approval of executive actions by congressional

committees or an extracted pledge from executive officers to confer with appropriate

77

87 Stat. 614.

78

88 Stat. 297.

79

88 Stat. 1695.

80

88 Stat. 1712.

81

89 Stat. 817.

82

90 Stat. 1255.

83

91 Stat. 39.

84

92 Stat. 1705.

85

U.S. General Services Administration, National Archives and Records Service, Office of the

Federal Register, Public Papers of the Presidents of the United States: Jimmy Carter, 1978

(Washington: GPO, 1979), pp. 1146-1149.

86

66 Stat. 163.

87

INS v. Chadha, 462 U.S. 919 (1983).

88

Ibid., p. 967.

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committees before proceeding. Clearly, however, the potentially powerful legislative

veto that Congress was expansively instituting in a variety of legislation during the

decade preceding the Chadha ruling is defunct.

Impoundment Control and Item Veto Restraints

Congress exercises its “power of the purse” by enacting appropriations

measures, but the President has broad authority as chief executive in the

implementation stage of the federal budget process. Impoundment occurs when the

President withholds or delays the spending of appropriated funds. Over the years,

Congress has struggled with the challenge of maintaining some control over

impoundment actions while still allowing sufficient discretion for the executive branch

in implementing the budget.

Conflicts over the use of impoundments increased greatly during the Nixon

Administration, and eventually involved the courts as well as Congress and the

President. During these impoundment conflicts, Congress responded with not only

ad hoc efforts to restore individual programs, but also gradually more restrictive

appropriations language. Arguably, the most authoritative response was enactment

in 1974 of the Impoundment Control Act (ICA), which established a new framework

for congressional review of impoundment actions.89 The ICA differentiates deferrals,

or temporary delay in funding availability, from rescissions, or permanent

cancellations of designated budget authority, with different procedures for

congressional review and control of the two types of impoundments. In the case of

a rescission, the ICA provides that the funds must be released unless both houses of

Congress take action to approve the President’s rescission request within 45 days of

“continuous session”.

For the first few years after its enactment, there was little criticism of the ICA,

but dissatisfaction grew in the 1980s as the number of rescissions requested by the

President increased greatly while the number approved by Congress declined.90 Many

came to view the President as unduly restricted by the provisions in the ICA, and

sought to restore greater flexibility in impoundments so as to facilitate budgetary

savings. Some supported a constitutional amendment to grant the President authority

to veto individual items in a bill, as allowed to the governor in 42 states, and

consideration of impoundment reform became increasingly joined with the subject of

an item veto. However, legislative efforts to modify the framework for congressional

review of rescissions by the President ultimately proved successful, with the

enactment of the Line Item Veto Act of 1996.91

The Line Item Veto Act sought to provide the President with a functional

equivalent of an item veto, by granting the President “enhanced rescission authority”

89

Enacted as Title X of the Congressional Budget and Impoundment Control Act of 1974, 88

Stat. 332; 2 U.S.C.681 et seq.

90

For data on rescissions since 1974, see (name redacted),

“The Impoundment Control

Act of 1974: Restraining or Reviving Presidential Power?” Public Budgeting & Finance, vol.

17, Fall 1997, pp. 42-49.

91

110 Stat. 1200.

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to cancel certain items in appropriations measures and new entitlement provisions, as

well as certain narrowly applicable tax breaks. The act provided 30 days for

expedited congressional consideration of a disapproval bill to reverse the cancellations

contained in special presidential messages. Consequently, the burden of action with

regard to rescissions was reversed from that contained in the Impoundment Control

Act; absent congressional action, under the Line Item Veto Act, rescissions requested

by the President became permanent.

In 1998, the Supreme Court found the Line Item Veto Act unconstitutional on

the grounds that it violated the presentment clause.92 Subsequently, measures seeking

to provide the President with expanded rescission authority, by amending the

Impoundment Control Act in a constitutionally viable manner, were introduced in

Congress. The institutional tensions between the executive and legislative branches

inherent in the federal budget process continue; and additional efforts to modify the

existing framework for congressional review of impoundment actions by the

President, as established by the ICA in 1974, may occur.

Unfunded Mandates

Achieving a balance of power between the federal government and the states has

been an issue of debate since the founding of the Republic and ratification of the U.S.

Constitution by the states—from 1787 through 1790. Increased federal intervention

in domestic policy since the end of World War II, particularly in the 1960s through

the Great Society initiatives of the Johnson Administration, arguably resulted in a

decline in state sovereignty. Federal legislation and regulations preempted state

authority in such areas as civil rights, environmental and consumer protection, and

community development, and required that specific actions be taken by state and local

governments. For citizens unable to achieve redress at the state or local level, such

federal involvement was welcome. For advocates of state sovereignty, however, the

federal government, in some areas, had become too intrusive and powerful in

imposing requirements, often without providing funds to help state and local

governments meet those requirements.

Beginning in the late 1970s, some academics and state and local officials argued

that certain federal mandates had become unnecessary and costly. However, the issue

of federal intervention had already reached the Supreme Court, which ruled in 1976

that the commerce clause of the Constitution does not empower Congress to impose

federal regulation of the states’ “traditional governmental functions.”93 Debate

continued, however, and the issue again reached the Supreme Court in 1985.

Reversing itself, the Court held that states should, instead, seek relief from federal

regulation through the political process in Congress: “The political process ensures

that laws that unduly burden states will not be promulgated.”94 Subsequently, the

states’ advocates turned to Congress for mandate relief.

92

Clinton v. New York City, 524 U.S. 417 (1998).

93

National League of Cities v. Usery, 426 U.S. 833 (1976).

94

Ibid.

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Unfunded mandates were perceived to be responsibilities, actions, or procedures

imposed on state and local governments, and other entities, through legislation,

regulations, or court decisions, with no provision for payments of the costs of

compliance. Various researchers and interest groups identified unfunded mandates

in a number of domestic policy issues, including age discrimination, clean air, energy

conservation, occupational safety, endangered species, and labor standards.

During the 103rd Congress, champions of unfunded mandate reform initiatives

gained support. Members considered 34 bills to arrest the perceived growth of

unfunded mandates, with two bills (H.R. 5128 and S. 993) receiving action. In the

closing months of 1994, prior to the election, House Republicans included unfunded

mandate reform in their Contract with America initiative. After the Republicans

gained control of the House, enactment of the unfunded mandates legislation occurred

in the first 100 days of the 104th Congress. President Clinton signed the Unfunded

Mandates Reform Act (UMRA) on March 22, 1995.95

The UMRA amends the Congressional Budget and Impoundment Control Act

to permit Congress to identify legislation proposing mandates and to decline to

consider legislation proposing unfunded intergovernmental mandates.96 It also

requires that the Congressional Budget Office study and report to Congress on the

magnitude and potential impact of mandates in proposed legislation.97 In response to

concerns over regulatory mandates, the act requires that federal agencies prepare

written statements identifying costs and benefits of a federal mandate that would be

imposed through the rulemaking process. The requirement applies to regulatory

actions determined to result in costs of $100 million or more in any one year.98 In all,

the UMRA is a tool Congress can use to ensure that the delicate tensions of the

federal system in the United States remain in balance.

Developments: Evolving

Executive Order vs. Statutory Policymaking

Although the Constitution does not explicitly and specifically authorize the

President to issue executive orders, Presidents have relied upon Article II executive

power, commander in chief authority, and responsibility for faithful execution of the

laws to justify issuance of executive orders.99 Two scholars have contended that the

ambiguity surrounding the President’s authority to issue executive orders has

enhanced his capability to act unilaterally. 100 They also have argued that broadly

written statutes and the proliferation of statutes have contributed to the latitude

95

109 Stat. 48.

96

2 U.S.C. 658b(a)(2).

97

2 U.S.C. 602(c)(2).

98

2 U.S.C. 1531-1538.

99

Constitution of the United States, Article 2, Sections 1, 2, and 3, respectively.

100

Terry M. Moe and William J. Howell, “The Presidential Power of Unilateral Action,”

Journal of Law, Economics, and Organization, vol. 15, April 1999, p. 133.

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Presidents enjoy.101 As new statutes are passed, they expand the President’s

responsibility and authority, and broadly-written statutes provide opportunities for

Presidents to define, interpret, clarify, and build upon statutory language.102

However, in the absence of a statutory policy pronouncement, the President may issue

an executive order to fill a policy vacuum.

Recent Presidents have capitalized on their capability and opportunities to act

unilaterally. This freedom to act has been manifested in the timing and contents of

executive orders, which vary, as do their significance and impact.

Occasionally, timing and volume are tied to events that necessitate unilateral

action. In the final six days of his tenure, President Jimmy Carter issued 11 executive

orders related to securing the release of Americans held hostage in Iran and providing

them financial compensation. On a more routine basis, transition and reelection

periods have witnessed an increase in the number of executive orders. A study of

executive orders issued between April 1936 and December 1995 indicates that, while

the start of a new President’s term does not result in a higher number of executive

orders, the end of a term may be notable for an increase in the quantity issued.103

Specifically, Presidents who were succeeded by a member of the other party signed

“nearly six additional orders ... in the last month of their term, nearly double the

average level.”104 When party control of the White House did not change following

a presidential election, there was “no corresponding increase in order frequency.”105

This study also found that reelection plays a role in the number of executive orders

signed and issued. Presidents who were running for reelection issued approximately

1.4 more executive orders per month—14 during the campaign season from January

1 through the end of October —than when they were not running for reelection.106

While most executive orders may be deemed fairly innocuous, the remainder

have had important implications for public policy, administrative processes,

government organization, and/or the separation of powers. Two-and-a-half months

after the United States formally entered World War II, President Franklin D.

Roosevelt initiated, through Executive Order 9066, the internment of JapaneseAmericans in relocation camps. Racial integration of the armed forces was set in

motion with Executive Order 9981signed by President Harry S. Truman. President

Dwight D. Eisenhower intervened, through Executive Order 10730, in the effort to

integrate Arkansas’ Little Rock Central High School. Presidents John F. Kennedy,

Lyndon B. Johnson, and Richard M. Nixon all issued executive orders designed to

combat racial discrimination (Executive Orders 11063, 11197, and 11246,

respectively). President Ford, in signing Executive Order 11821, required that

101

Ibid., pp. 141, 143.

102

Ibid., p. 143.

103

Kenneth R. Mayer, “Executive Orders and Presidential Power,” Journal of Politics, vol.

61, May 1999, p. 457.

104

Ibid.

105

Ibid.

106

Ibid., p. 459.

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inflation impact statements accompany proposed legislation, rules, and regulations

originating in the executive branch. Men who resisted the draft during the Vietnam

War were the beneficiaries of President Jimmy Carter’s Executive Order 11967,

which implemented his pardon order. Through Executive Order 12291, President

Ronald Reagan brought agency rulemaking under the control of the Office of

Management and Budget and required cost-benefit analyses of rules. In signing

Executive Orders 12818 and 12800, President George H. W. Bush prohibited uniononly project agreements for federal projects, and required federal contractors to notify

employees of their right not to have to pay any union dues or fees for activities other

than collective bargaining, contract administration, and grievance adjustment. By

signing Executive Order 12889, President William J. Clinton helped to implement the

North American Free Trade Agreement.

Presidential use of executive orders has not gone unnoticed or unchallenged,

particularly in cases where the contents and purpose of an order are objectionable and

presidential encroachment on congressional legislative powers is alleged.107 There are

various means by which the effect, if not the contents, of an executive order can be

altered or voided through congressional action or initiative, a judicial ruling, or

subsequent presidential action. Should Congress object to an executive order, it

might deny funds necessary to implement the order or, if no constitutional authority

is cited for the order, Congress could alter the underlying statute in such a way as to

undermine the order. Another option, but one that has been tried with very little

success, is to write a statute designed to overturn an executive order. Between 1973

and 1997, when approximately 1,000 executive orders were issued, Congress

attempted to pass legislation on 37 occasions that would overturn certain orders, but

only three attempts succeeded and became law.108

If a proactive approach were preferred, Congress could include a sunset

provision in legislation or write more specific legislation, which would limit the

President’s opportunities and latitude in issuing executive orders. A tactic that has

failed, to date, is passing legislation designed to restrict the President’s use of

executive orders and/or make it easier for Congress to monitor that. Between 1973

and 1997, Congress tried three times, and failed in each attempt, to pass legislation

restricting the President’s power to issue executive orders. During the 106th

Congress, three bills and one concurrent resolution aimed at limiting the President’s

use of executive orders and/or their effect were introduced, but none was reported

from committee.

Court challenges to executive orders have been largely unsuccessful as well.

Between 1942 and 1996, approximately 4,000 executive orders were issued, and 86

of these were “challenged in (and accepted for consideration by) the courts.”109 Court

107

Usually, Congress acquiesces to presidential executive orders and, in some instances, has

legislatively ratified or codified an order, thereby establishing something of its own jurisdiction

in the policy area.

108

Moe and Howell, “The Presidential Power of Unilateral Action,” pp. 165-166.

109

Ibid., p. 175.

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rulings favored the President in 83.90% of these cases.110 A challenge to President

Truman’s Executive Order 10340, authorizing government seizure of the steel mills,

did result, however, in a ruling that was favorable to the plaintiff and a concurring

opinion that suggested there are degrees of legitimacy for executive orders. Associate

Justice Robert H. Jackson opined that the President’s position is weakest when his

executive order contradicts the will of Congress; the President’s position is strongest

when an executive order is based on the Constitution, statutes, or both; and that a

“zone of twilight” exists when an executive order falls in an area where the President

and Congress have concurrent authority, but Congress has not made its will known.111

On occasion, Presidents disagree with or wish to improve upon previously issued

executive orders. In any case, a President may amend or revoke, in part or in whole,

an executive order he, or a predecessor, has issued. A President also may issue an

executive order scheduled to expire on a certain date or under certain circumstances.

The Federal Register Act of 1934 requires the publication of executive orders

in the Federal Register and subsequent amendments provided for their compilation

in Title 3 volumes of the Code of Federal Regulations.112 Standardization of

executive orders began with the June 19, 1962, issuance of Executive Order 11030,

which, as subsequently amended, prescribes a systematic process for the preparation,

filing, and publication of executive orders (and proclamations).113 Preparation by the

originating federal agency includes citing the authority—constitutional, statutory, or

both— under which the order is issued.

The executive order is a useful and important device for Presidents, enabling

them to act quickly, when need be; to direct the operations of the executive branch;

and to ensure that laws are “faithfully executed.” Yet, in a system of government that

incorporates a series of checks and balances, self-restraint on the part of Presidents

and vigilance on the part of Congress help to alleviate concerns and questions that

surface, occasionally, about the presidential use of executive orders.

Outsourcing and Privatization

During the four decades after the termination of World War II, the federal

executive workforce steadily expanded, a reflection, at least in part, of the increasing

program responsibilities and tasks of the federal government during that period and

continued reliance upon career civil servants for their performance. Attempts to

reduce the size and cost of the federal government during the final decade of the

twentieth century prompted calls for contracting out, or outsourcing, certain

government functions for performance at reduced cost by the private sector and for

otherwise making some government activities available for assumption by the private

sector. Theoretically, when outsourcing, the government retains ultimate

110

Ibid.

111

Youngstown Sheet and Tube Company v. Sawyer, 343 U.S. 579 at 635-638 (1952).

112

49 Stat. 500; 44 U.S.C. 1501-1511.

113

Other instruments available to the President include letters, memoranda, and

announcements.

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responsibility for the performance of the function by a contractor; when privatizing,

the government effectively cedes responsibility for an activity to the private sector.

In actual practice, some hybrid organizations with both government and private sector

legal characteristics have emerged. For example, when the Federal Investigations

Division of the Office of Personnel Management (OPM) appeared to be ripe for staff

reductions in the mid-1990s due to a declining security clearance workload, the OPM

director sought to establish a private corporation to assume the mission and

employees of the division. The director obtained a feasibility study for creating such

a corporation, which would be eventually owned by its employees—a so-called

Employee Stock-Owned Plan. Despite some congressional opposition to the plan,

OPM pressed ahead, selecting American Capital Strategies to prepare a business plan.

A financial trustee was secured; a management team was established; and the United

States Investigative Service (USIS) was incorporated under the laws of Delaware in

April 1996. Four months later, USIS was reincorporated and 700 federal

investigations employees of OPM were separated from government employment and

became private employees of USIS. OPM awarded USIS a noncompetitive threeyear contract to conduct security clearance investigations.114

Both the Clinton Administration’s National Performance Review (NPR) and

congressional champions of the Republican’s Contract with America, as well as many

Members of Congress, proposed privatizing various government functions,

operations, and entities during the 1990s. However, the USIS example appears to be

the only successful privatization to have occurred during that period.

Another innovation proposed by the NPR was the creation of so-called

performance-based organizations (PBO). According to the NPR model, a federal

executive agency would, for a particular program area, separate service operation

functions from their policy components and place the former in a separate

organization, or PBO, reporting to the agency head. Policymaking for the program

area would remain with the agency. A three- to five-year framework document

between the PBO and the agency would be negotiated, setting out explicit goals,

measures, relationships, flexibilities, and limitations for the PBO. The organization

would also be given authority to negotiate alternative approaches for procurement and

civil service rules, which would be tied to increased accountability for results, the use

of unit cost accounting principles, achieving productivity and customer service goals,

and budgetary savings. An individual to fill the PBO’s chief executive position would

be appointed or hired on contract, through a competitive search, for a fixed term, such

as five years. The contract would reflect clear agreement on services to be delivered

and productivity goals to be achieved, and the chief executive would be personally

responsible for delivering agreed-upon services. Compensation for the chief executive

could be based on existing pay and award authorities; service fees collected by the

PBO, if any; or legislatively authorized rates, with a significant portion of such pay

contingent on performance. President Clinton’s FY1998 budget identified several

entities that were considered to be candidates for the PBO experiment, including the

National Technical Information Service, the Patent and Trademark Office, and the

114

Stephen Barr, “OPM in a First, Acts to Convert an Operation into Private Firm,”

Washington Post, April 14, 1996, p. A4; Ronald P. Sanders and James Thompson,

“Reinventing Government: Live Long and Prosper,” Government Executive, vol. 29, April

1997, pp. 50, 52-53.

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Seafood Inspection Program of the Department of Commerce; the Defense

Commissary Agency; the Saint Lawrence Seaway Development Corporation; the

Government National Mortgage Association and the Federal Housing Administration

of the Department of Housing and Urban Development; the Federal Retirement and

Insurance Service of OPM; and the United States Mint. None of this ambitious

effort, however, came to fruition. The one PBO that was realized was a congressional

creation, established with the enactment of the Higher Education Amendments of

1998 when the Department of Education’s student financial services were vested in

a new Office of Student Financial Assistance (OSFA).115 Headed by a chief operating

officer selected by the Secretary of Education, the OSFA was given independent

control of its budget and finances, personnel decisions and processes, procurements,

and other administrative and management functions. Compensation of the chief

operating officer is based partially upon organizational performance. In return for this

independence, the OSFA must improve student services, reduce costs, and increase

the accountability of administration. The office’s performance is measured in

accordance with a five-year plan, developed by the Secretary of Education and the

chief operating officer of the OSFA, that establishes measurable goals and objectives

for the organization. Furthermore, oversight of the organization is performed through

annual reports submitted to Congress through the Secretary, who maintains authority

to direct the PBO in the implementation of its functions. Another agency, the Patent

and Trademark Office, which was statutorily rechartered in 1999, claims to be a PBO,

but it does not follow the NPR model. 116

Although no federal agency keeps exact data on contract workers, a recent

assessment of such outsourcing in the Washington, DC, metropolitan area found that,

while the number of local federal employees fell from 398,000 to 342,000, a 14%

decline, from FY1993 through FY1998, the number of local federal contract

employees increased from 205,000 to 300,000, a 46% increase, during the same

period. These employment shifts accounted for a 44% increase in contract spending,

rising from $19.9 billion in FY1993 to $28.7 billion in FY1999 (adjusted for inflation),

which resulted in an overtaking of the area federal payroll, which fell 3% in 1999

dollars. Overall job gains generated directly and indirectly by federal contract

spending across the metropolitan region increased 36%, from 377,000 personnel in

FY1993 to 514,000 personnel in FY1999. The jobs involved in such outsourcing

range widely from the unskilled—such as mail sorting, counting, and opening—to the

highly skilled—such as satellite map and navigation chart production and various

information technology tasks.117 Indeed, information technology (IT) work appears

to be a burgeoning area for outsourcing. According to one observer, “more federal

information technology jobs will be turned over to the private sector in coming years.

The only question is whether the numbers will be modest or mammoth.” The Bureau

of Labor Statistics predicts a shrinking federal IT workforce, dropping from a 1998

total of 1.8 million jobs to 1.6 million in 2008—a 9% loss. The bureau also projects

a rise in federal spending on IT outsourcing, increasing from $30.3 billion in 2000 to

115

112 Stat. 1581, at 1604.

116

See 113 Stat. 1537-564.

117

Spencer S. Hsu, “Death of ‘Big Government’ Alters Region,” Washington Post, Sept. 4,

2000, pp. A1, A14-A15.

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$40.3 billion in 2005.118 Recent research by Brookings Institution scholar Paul C.

Light, examining employment trends across the federal government during the 1990s,

found significant reductions in contractor employment positions for the decade at the

Department of Defense (-718,000), the Department of Energy (-424,000), and the

National Aeronautics and Space Administration (-53,500). Among those increasing

their contract employees during these years were the Department of Health and

Human Services (+113,900), the General Services Administration (+94,000), the

Department of Justice (+69,500), and the Department of the Treasury (+52,300). In

Light’s estimate, “the trend in many agencies to contract for services is likely to

continue its upward trajectory.”119

E-government

During the final decade of the 20th century, a new concept began to emerge in

American political and governmental parlance—e-government or electronic

government. A joint report of the National Performance Review and the Government

Information Technology Services Board, Access America: Reengineering Through

Information Technology, issued February 3, 1997, introduced the new term. 120

Almost three years later, in a December 17, 1999, memorandum to the heads of

executive departments and agencies, the President directed these officials to take

certain actions in furtherance of “electronic government.”121 During June 2000, the

concept of e-government, became part of the campaign offerings of the two major

party candidates for the presidency. 122

The concept of electronic government is new in American public discourse.

Initially, the term was little more than a general recognition of a confluence of

information technology developments and the application and use of these

technologies by government entities. Subsequently, it has oftentimes been used as a

symbol, an ambiguous reference to both current applications of IT to government

operations and a goal of realizing more efficient and economical performance of

government functions. It is a dynamic concept of varying meaning and significance.

118

William Matthews, “The Outsourcing Wave Rolls On,” Federal Computer Week, vol. 14,

Sept. 25, 2000, p. 28.

119

Paul C. Light, “Pressure to Grow,” pp. 26, 27.

120

Office of the Vice President, Access America: Reengineering Through Information

Technology; Report of the National Performance Review and the Government Information

Technology Services Board (Washington: GPO, 1997).

121

The White House, Memorandum for the Heads of Executive Departments and Agencies,

Electronic Government (Washington: Dec. 17, 1999).

122

See, for example, Christopher J. Dorobek, “Gore and Bush Make E-gov a Campaign

Issue,” Government Computer News, vol. 19, June 19, 2000, p. 6.

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A variety of policy instruments support and shape the e-government concept,

including the Privacy Act of 1974,123 the Paperwork Reduction Act,124 the Computer

Security Act of 1987,125 the Electronic Freedom of Information Amendments,126 the

Clinger-Cohen Act,127 Executive Order 13011,128 the Government Paperwork

Elimination Act,129 and two Office of Management and Budget (OMB) memoranda

and section 501 of the Department of Transportation Appropriations Act for FY2001

concerning Web site privacy.130 In brief, these instruments seek to promote the use

of new information technology by government entities with a view to improving the

efficiency and economy of government operations. In addition, they seek to ensure

the proper management of these technologies and the systems they serve, their

protection from physical harm, and the security and privacy of their information.

As a consequence of the application of IT to certain government activities, egovernment has become a reality. These activities and related concerns include the

following.

! Communication: Many agencies are managing e-mail communication with the

public in a manner analogous to telephone communication with the public.

Call centers, which serve as an agency contact point for the public (viewed, in

a market context, as “customers”) via a toll-free telephone number, are often

the agency receiving point for e-mail from the public. Indeed, there is growing

recognition of the importance of such centers for realizing “customer”

satisfaction.131

! Information access: In an October 1993 memorandum asking agency heads

“to renew their commitment to the Freedom of Information Act, to its

underlying principles of government openness, and to its sound

administration,” President Clinton also urged each agency “to distribute

information on its own initiative, and to enhance public access through the use

of electronic information systems.”132 The Electronic Freedom of Information

123

5 U.S.C. 552a.

124

44 U.S.C. 3501 et seq.

125

101 Stat. 1724.

126

110 Stat. 3048; 5 U.S.C. 552.

127

110 Stat. 642, 679, and 3009-393.

128

3 C.F.R., 1996 Comp., pp. 202-209.

129

112 Stat. 2681-749.

130

P.L. 106-346.

131

Christopher J. Dorobek, “Call Centers, User Satisfaction Are Crucial to E-gov Success,

Experts Say,” Government Computer News, vol. 19, May 22, 2000, p. 12; also see U.S.

General Accounting Office, Customer Service: Human Capital Management at Selected

Public and Private Call Centers, GAO Report GAO/GGD-00-161 (Washington: August

2000).

132

U.S. National Archives and Records Administration, Office of the Federal Register, Public

(continued...)

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Amendments of 1996 significantly reinforced this view by mandating the

creation of electronic reading rooms accessible to the public via the Internet.

Currently, agencies are making a large amount of information accessible to the

public through their websites.

! Service delivery: Agencies are using websites to provide various services to

the American people and businesses. These efforts include online application

for federal student aid, wild horse adoption, government-owned homes, and

Social Security retirement benefits. Of related interest is the September 2000

launching of FirstGov, the single federal portal to all national government

Web sites. During its first fours days of operation, FirstGov connected an

estimated 250,000 users to 27 million web pages.133

! Procurement: Agencies are using the Internet to facilitate agency purchases

of needed goods and services from the private sector. Details regarding such

procurement are offered on agency websites in various ways, including bid

opportunities and placement arrangements, special contracts, and unsolicited

proposals. Procurement opportunities for small businesses and for womenand minority-owned businesses are often identified, as are acquisitions of

particular goods and services, such as information technology.

! Security: Continuous efforts must be made to protect Internet transactions

among government entities and between them and the public against

obstruction, diversion, interception, and falsification. While the use of

encryption and digital signature capabilities assure the integrity of such

transactions, the Internet infrastructure must also be safeguarded; agency Web

site offerings must be protected against “hacking”; and agency information

technology systems, including Web sites and computers, must be regularly

cleared of viruses and similar such transgressing and destructive contaminants.

! Privacy: Agencies must comply with requirements regarding their

management—i.e., collection, use, and storage—of personally identifiable

information, including Web site visitor data.

While OMB had allowed

agencies to use so-called “sessions cookies” software, which facilitates

transactions at a Web site and monitors the actions of visitors only as long as

they are at the Web site, “persistent cookies,” which may track visitors’

actions after they leave an agency Web site and travel the Internet to other

Web sites, were prohibited. A provision in the Department of Transportation

Appropriation Act for FY2001 appears to have outlawed the use of all

“cookies” by a large number of agencies, including those in the Executive

Office of the President.

132

(...continued)

Papers of the Presidents of the United States: William J. Clinton, 1993 (Washington: GPO,

1994), p. 1685.

133

Tony Lee Orr, “FirstGov Connects Users to 27 Million Web Pages,” Government

Computer News, vol. 19, Oct. 2, 2000, p. 3.

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! Management: For the executive branch, e-government management

concentrates largely in the leadership of OMB. The Paperwork Reduction Act

vests the OMB director with broad authority and responsibility for information

resources management and assuring agency application of, and adherence to,

computer and related systems security standards developed by the National

Institute of Standards and Technology (NIST) for the non-military/intelligence

community. OMB responsibility for oversight and enforcement of agency

implementation of the Privacy Act provides the OMB director with authority

to address agency Web site privacy practices and use, protection, and

disposition of personally identifiable information. The Clinger-Cohen Act

assigned the OMB director duties for coordinating the development and review

of IT purchase policy. It also mandated a chief information officer (CIO) for

each executive agency with responsibility for carrying out the information

management responsibilities assigned to the agencies by the PRA, as well as

some additional duties specified in its own provisions. E.O. 13011 brought the

CIOs together in a CIO Council chaired by the OMB deputy director for

management.

! Maintenance: Continued maintenance of IT systems that underlie egovernment requires at least two resources—personnel and funds. Regarding

the first of these resources, the CIO Council is championing the recruitment,

retention, and development of IT professionals as members of the federal civil

service. The Office of Personnel Management is supporting this effort with a

special pay schedule for IT workers, increasing salaries as much as 33% for

entry-level and mid-level personnel, effective January 1, 2001.134 However,

actual practice—outsourcing—is contrary to the objective being pursued by

the CIO Council. According to one assessment, “more federal information

technology jobs will be turned over to the private sector in coming years. The

only question is whether the numbers will be modest or mammoth.” In fact,

as previously mentioned, the Bureau of Labor Statistics predicts a shrinking

federal IT workforce, dropping from a 1998 total of 1.8 million jobs to 1.6

million in 2008—a 9% loss. The bureau also projects a rise in federal spending

on IT outsourcing, increasing from $30.3 billion in 2000 to $40.3 billion in

2005.135

! Oversight: For the executive branch, the OMB director is a principal overseer

of e-government, monitoring agency compliance with relevant statutes,

presidential directives, and OMB and NIST guidance. Within the departments

and agencies having them, CIOs performing statutory responsibilities and

duties for assuring compliance with PRA requirements and monitoring the

performance of IT programs also play an oversight role.136 Similarly, in

departments and agencies having them, Inspectors General exercise an

oversight capability, particularly with regard to protecting the transmission,

134

Stephen Barr, “Salaries for Federal Tech Workers to Increase,” Washington Post, Nov. 4,

2000, pp. A1, A12.

135

William Matthews, “The Outsourcing Wave Rolls On,”p. 28.

136

See 40 U.S.C. 1425(c)(2) and 44 U.S.C. 3506(a)(2).

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storage, and processing of sensitive data in electronic form and formats.137 In

Congress, with potentially thousands of daily electronic transactions—for

information, benefits, services, and goods—occurring, rapidly and invisibly,

overseers must be alert to the development of administrative or managerial

problems that could quickly snowball, resulting in unnecessary hardship, waste,

misfeasance, or worse. The creation, maintenance, preservation, security,

integrity, and accessibility of the records of these transactions for possible audit

and review by overseers begs careful attention. When agency leaders and

program managers are consulted or brought before a congressional committee

or subcommittee for an oversight proceeding, the agency CIO and IG may also

be consulted or otherwise be found to be important participants. Finally, for

congressional and executive overseers alike, FirstGov, the single federal portal,

may prove to be a useful tool for scrutinizing governmentwide compliance with

certain e-government policies, such as Web site privacy notices, and other

uniform requirements for federal Web sites.

Decentralization of Personnel Management

Decentralization, as it relates to personnel management,138 is especially

associated with less hierarchical organizations and employees who are empowered to

make decisions in a more flexible and less restrictive policy environment. More

efficient organizations and more committed and satisfied employees are said to be

among the benefits of decentralization. Central management agencies, responsible for

overall policy, can significantly affect the extent to which decentralization occurs.

Over the course of the history of the federal civil service, various government study

panels, including the (Hoover) Commission on Organization of the Executive Branch

of the Government of 1949 and the National (Volcker) Commission on the Public

Service of 1989, have recommended less centralized management of the personnel

system. During the past two decades, calls for “letting the managers manage” have

been heard increasingly as the Civil Service Reform Act (CSRA) of 1978139 and the

Federal Employees Pay Comparability Act (FEPCA) of 1990140 underwent

implementation and the initiatives of the National Performance Review (later renamed

the National Partnership for Reinventing Government) were undertaken during the

years of the Clinton Administration.

The CSRA established the Office of Personnel Management (OPM) as the

government’s central personnel agency. Its predecessor, the Civil Service

Commission (CSC), had been created in 1884 by the Pendleton Act—which

established a merit system for federal civil servants—to implement that law and to

137

See “Security, Information Technology, and Facilities,” Journal of Public Inquiry, SpringSummer 2000, pp. 28-30.

138

The term “personnel management” evolved into “human resources management,” which,

in turn, appears to be giving way to the term “human capital.”

139

92 Stat. 1111.

140

104 Stat. 1427.

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devise civil service rules and regulations.141 The “[c]ommission emerged as a central

personnel agency for the entire Federal Government, almost by default, as expanded

duties were continually assigned to it.” In a January 1937 report, the President’s

(Brownlow) Committee on Administrative Management, another government study

panel, had recommended that a new Civil Service Administration serve as the central

personnel management agency and perform most of the CSC functions, but the

proposal was not accepted. What evolved, according to one assessment, was a CSC

with “many faces: its roles are confusing and in many senses contradictory. It is at

once policeman, prosecutor, defender, and judge. It is an advocate before the

Congress and an agent of the Congress; a security sleuth of, and “union” for,

employees; a rulemaker, an inspector, a disciplinarian, and a management consultant

to other agencies; an adviser to and instrument of the President; an insurance agency;

and a public relations office for the government in general.”142 The CSRA embodied

the hope that a new single-headed agency would provide more effective leadership.

By giving OPM the leadership role in federal personnel management, it was believed

that the agency would be able to concentrate on planning and administering an

effective governmentwide program of personnel management. “Without the demands

generated by a heavy, day-to-day workload of individual personnel actions, OPM

should provide the President, the civil service, and the Nation with imaginative public

personnel administration.”143

Some of that ingenuity rested with demonstration projects, authorized by CSRA,

to experiment with different personnel management methods.144 Perhaps the best

known of the demonstration projects was the China Lake experiment, undertaken at

two naval weapons laboratories in California. Begun in the spring of 1980, the

project simplified the systems for classifying jobs; hiring, promoting, and paying

personnel (used pay for performance in the framework of broad pay bands); and

increased the discretion of managers to manage the workforce. It was made

permanent in 1994. The results at China Lake prompted calls for additional

demonstration projects and the application of their features to other agencies. The

Reagan Administration submitted a legislative proposal to Congress, the Civil Service

Simplification Act, to institute the China Lake reforms throughout government, but

it was not considered. During the 1980s and into the early 1990s, OPM delegated

some personnel authorities to the agencies, most notably those covering examination

and hiring, and assumed more of an oversight role. Two other noteworthy

demonstration projects were undertaken. One, begun at the Department of

Agriculture in the spring of 1990, featured a streamlined hiring processes. It was

made permanent in 1998. The other, begun at McClellan Air Force base, featured

141

22 Stat. 43.

142

U.S. Congress, House Committee on Post Office and Civil Service, Subcommittee on

Manpower and Civil Service, History of Civil Service Merit Systems of the United States and

Selected Foreign Countries Together with Executive Reorganization Studies and Personnel

Recommendations, Compiled by the Library of Congress, Congressional Research Service,

committee print, 94th Cong., 2nd sess. (Washington: GPO, 1976), pp. 287-288.

143

U.S. Congress, House Committee on Post Office and Civil Service, Legislative History

of the Civil Service Reform Act of 1978, committee print, 96th Cong., 1st sess., vol. 2

(Washington: GPO, 1979), p. 1470.

144

5 U.S.C. Chapter 47.

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organizationwide quality and productivity measures. It was completed in February

1993. FEPCA authorized flexibilities for recruitment, relocation, and retention.

Efforts to reform the civil service during the Clinton Administration occurred

within the framework of the NPR. Vice President Gore, at the President’s direction,

supervised the NPR effort, which began as an intensive six-month evaluation of

government operations and management. Among its initial September 1993 reports

was one on OPM. That assessment identified OPM as a leader and source of expert

advice concerning a broad range of human resources management matters. For the

immediate future, the NPR envisioned OPM advising the President on issues affecting

the management of federal employees; demonstrating commitment to diversity;

planning for development of the workforce of the future; identifying strategies for

providing the training essential to achieve a cultural shift toward more entrepreneurial

management; conducting research, providing consulting services, and advising

agencies on best practices; coordinating and sponsoring interagency cooperation on

common issues; influencing governmentwide change; and leading by example.145 A

second NPR report, Reinventing Human Resource Management, included among its

14 recommendations proposals for a flexible hiring system, a flexible job classification

system (which could apply broad pay bands), and a strengthened system for dealing

with poor performers. In trying to meet the requirement for a stronger leadership role

to transform human resource management functions, OPM has emphasized personnel

flexibilities currently available to agencies, labor-management partnerships, and

amendments to broaden generally the authority of the laws on demonstration projects

and recruitment and retention allowances. Legislative proposals including these

amendments were offered in the 104th and 105th Congresses (hearings were held in

both congresses) and submitted to the Office of Management and Budget in the 106th

Congress, but saw no further action.146 Agency impatience has led to requests that

Congress authorize separate personnel flexibilities; noteworthy are the flexibilities

enacted in the Internal Revenue Service Restructuring and Reform Act of 1998.147

The December 31, 1994 retirement of the Federal Personnel Manual (FPM), which

provided “over 10,000 pages of policies, regulations, guidance, and processing

instructions” to the agencies, was one of the most significant outcomes of the NPR.148

145

U.S. Office of the Vice President, From Red Tape to Results: Creating a Government

That Works Better & Costs Less; Report of the National Performance Review: Office of

Personnel Management, Accompanying Report of the National Performance Review

(Washington: GPO, 1993), p. 8.

146

In the President’s FY2001 budget, the Clinton Administration advanced three major Federal

Aviation Administration management reforms, including linking employee pay scales to

market rates and implementing a system that ties pay to the achievement of individual and

agency performance targets. The director of the Federal Bureau of Investigation may conduct

demonstration projects for much the same purpose.

147

112 Stat. 685.

148

U.S. Office of the Vice President, From Red Tape to Results: Creating a Government

That Works Better & Costs Less; Report of the National Performance Review: Reinventing

Human Resource Management, Accompanying Report of the National Performance Review

(Washington: GPO, 1993), p. 77.

CRS-53

Efforts to decentralize personnel management further appear likely to continue.

Over four days in June 1999, public administration practitioners and scholars

discussed the future of public service at the Wye River Plantation in Maryland.

Hoping to foster debate, the participants agreed on aspects of a broad vision of the

future, including these: “Central agency that enables agencies, especially managers,

to fulfill the personnel function for themselves”; “Treating human resources as an

asset and an investment”; and “Labor-management partnership based on mutual goals

of successful organization and employee satisfaction.”149 One scholar provided some

cautionary advice about the road to administrative reform: “The most fundamental

point to be made is that reform of the public sector is a political exercise that is rarely,

if ever, informed unambiguously by organization theory. ... In the public sector,

politics and ideology continue to play a crucial role in the selection of the mechanisms

that are supposed to make government (in the words of Vice President Gore) ‘work

better and cost less’.”150 Another scholar expressed an enduring principle: “The

fundamental purpose of government management remains what it has been since

1789; the implementation of the laws passed by Congress.151

149

Patricia Wallace Ingraham, et al., “People and Performance: Challenges for the Future

Public Service—the Report from the Wye River Conference,” Public Administration Review,

vol. 60, Jan./Feb. 2000, p. 58.

150

B. Guy Peters, “What Works? The Antiphons of Administrative Reform,” In Taking Stock:

Assessing Public Sector Reforms, edited by B. Guy Peters and Donald J. Savoie (Montreal:

McGill-Queens University Press, 1998), pp. 79, 100.

151

U.S. Congress, Senate Committee on Governmental Affairs, Subcommittee on Oversight

of Government Management, Restructuring, and the District of Columbia, Has Government

Been Reinvented, hearing, 106th Cong., 2nd sess., May 4, 2000 (Washington: transcript

awaiting publication).

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Federalism

As the United States underwent demobilization and reconversion in the aftermath

of World War II, growing concern about the condition of American federalism—the

relationships among national, state, and local governments—prompted the 1953

chartering of a temporary Commission on Intergovernmental Relations to review

federal assistance to state and local governments and to assess the fiscal capacity of

the national government and the states to undertake various activities of national

importance.152 The panel’s June 1955 report identified several occurrences—“war

and economic crisis”; “intensified industrialization and population shifts from rural to

urban areas; new advances in transportation and communications; and, flowing from

these developments, greatly accelerated mobility of people and interchange of

ideas”—that had contributed to “vast expansions of National activities.”153 Not

without controversy, the report urged a realignment of federal and subnational

authority: “reserve National action for residual participation where State and local

governments are not fully adequate, and for the continuing responsibilities that only

the National Government can undertake.”154

Four years later, in 1959, Congress established a permanent agency—the

Advisory Commission on Intergovernmental Relations (ACIR), a bipartisan body of

26 members representing federal, state, and local governments—and charged it with

monitoring and reporting to Congress on the growing complexities of

intergovernmental relations and the state of American federalism.155 The commission

was terminated in 1995 as an economy initiative.

The creation of the ACIR came on the cusp of two significant periods in

American federalism during the 20th century. The first of these, lasting from 1901 to

1960, has been called the era of Cooperative Federalism, and was characterized by

widening federal involvement in social, economic, and environmental policy. It was

during this era that the national income tax and the grant-in-aid system were

mandated. Indeed, the federal grant system, which expanded in response to the Great

Depression of the 1930s, fundamentally changed the power relationships between

federal and state governments.

The second or subsequent period, from 1960 to 1968, has been denominated as

the era of Creative Federalism. President Lyndon B. Johnson’s Great Society

programs were the embodiment of this era. Creative Federalism and Great Society

programs, including the War on Poverty, sought to expand the national government’s

role in an effort to achieve socially desirable outcomes. Prior to the Johnson

Administration, federal involvement in domestic policy was undertaken as a necessary

evil in order to legitimize intrusion into state and local affairs. Under the new theory

152

67 Stat. 145

153

U.S. Commission on Intergovernmental Relations, The Commission on Intergovernmental

Relations: A Report to the President for Transmittal to the Congress (Washington: June

1955), p. 1.

154

Ibid., p. 6.

155

73 Stat. 703.

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of federalism, involvement of the national government was justified as long as

Congress could establish a national purpose for its actions.

During the past 32 years, the roles of national, state, and local governments have

fluctuated as the courts, the executive branch, Congress, state and local governments,

and the electorate have sought to determine their appropriate status within the system

of federalism. This era of Contemporary Federalism, from 1970 to the present, has

been characterized by:

! shifts in the intergovernmental grant system—from categorical grants to

revenue sharing, then to block and performance grants;

! the evolving awareness of the fiscal impact of unfunded federal mandates on

state and local governments, which culminated in the passage of the Unfunded

Mandates Act of 1995;156

! debates over the federal preemption of state authority—the most recent

infractions, according to state and local government officials, occurring with

the passage of the Telecommunications Act of 1996 and the Internet Tax

Freedom Act of 1998;157

! the growth of federal regulation and subsequent efforts to reduce the federal

regulatory burden on states and local governments, which culminated in the

passage of the Federal Financial Assistance Improvement Act of 1999;158

! the emergence of the states as laboratories of innovation in such areas as

economic development, as illustrated by the enactment of state enterprise zone

legislation by 36 states well before the passage of similar federal legislation;159

and

! the movement to devolve greater authority to state and local governments in

the name of the New Federalism, the Temporary Assistance to Needy Families

Act of 1996 being the most recent, notable example.160

During the 1970s, Presidents Richard M. Nixon and Gerald R. Ford sought to

redirect power relations within the federal system, using principally revenue sharing

and the consolidation of federal aid programs into six special revenue sharing

programs. The intent of President Nixon’s New Federalism initiative was to shift

156

109 Stat. 48.

157

The Telecommunications Act of 1996 (110 Stat. 56) preempted state and local zoning and

land use authority in the placement of cellular towers; the Internet Tax Freedom Act (112

Stat. 2681-719) placed a three-year moratorium on state taxation of internet commerce.

158

113 Stat. 1486. The statute directs federal agencies to streamline and simplify applications

and administrative and reporting requirements for federal grants.

159

107 Stat. 543.

160

110 stat. 2110.

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funds, authority, and responsibility to the states and local governments in an effort to

manage more effectively the intergovernmental grant system.

The election of Ronald Reagan, who was regarded by many as a defender of

state’s rights, coupled with the American people’s growing dissatisfaction with the

national government, revived and elevated the federalism debate after a lull during the

presidency of Jimmy Carter. President Reagan sought not merely to reform the

federalism system at the edges, but also to pursue a fundamental restructuring of the

system through policies and initiatives to strengthen the role of states. In his 1981

inaugural address, he stated that “the federal government did not create states; the

states created the federal government.” This statement expressed the sentiments found

first in the Virginia and Kentucky Resolution of 1798 and the Webster-Hayne debate

of 1830, which championed such ideas as state-centered federalism, state sovereignty,

and the doctrine of nullification.161 The Reagan Administration achieved some

success early in its first term with the Omnibus Budget Reconciliation Act, which

consolidated a number of revenue sharing programs into nine block grants.162 The

administration was not successful in the second phase of its New Federalism initiative,

which would have reallocated federal and state responsibility and resources for

welfare, food stamps, and medicare, and would have turned back revenue sources to

the states.

During the 1990s, Congress and the executive branch continued to debate the

limits of federalism and the role of the federal, state, and local governments. The

1994 elections brought the Republicans majority status in the House of

Representatives after they had campaigned, in part, on a promise to reduce the size

and reach of the federal government. The Unfunded Mandates Reform Act of 1995,

discussed earlier in this report, requires the Congressional Budget Office (CBO) to

identify unfunded federal mandates in any legislation reported from a committee if the

mandate total exceeds $50 million in the case of state and local government or $100

million in the case of the private sector. The act also requires CBO to assess the

cost/benefit impact of federal legislation containing unfunded federal mandates on

state and local governments and on the private sector. On several issues, the party’s

leadership took positions contrary to its long held state sovereignty orthodoxy. For

instance, a Republican controlled Congress supported the Internet Tax Freedom Act,

which usurped state taxing authority over Internet transactions. For their part,

Democrats, through the presidency of William Clinton, sought to reduce red tape and

make the federal government more responsive to citizen needs. The Clinton

Administration’s National Performance Review sought to achieve management

efficiencies throughout federal agencies and programs. President Clinton also sought

to affirm the primacy of the national government in E.O. 13083 of May 4, 1998,

concerning federalism.163 The order noted the supremacy of the federal government

and espoused a set of principles that many state and local officials felt subordinated

the importance of the states as co-equal partners. Rebuffed in this attempt by state

and local governments and the Republican controlled Congress, President Clinton

161

The doctrine of nullification held that any state could suspend within its boundaries the

operation or implementation of any federal law it deemed unconstitutional.

162

95 Stat. 357.

163

See 3 C.F.R., 1998 Comp., pp. 146-149.

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issued E.O. 13132 of August 4, 1999, which sought to balance the rights and

responsibilities of the states with the authority of the federal government. The order

requires federal agencies to develop an ongoing consultative process involving state

and local government offi

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