The Checks And Balances Are Working As Intended

Francis Fukuyama makes some unconvincing claims: The political system of checks and balances is paralysing policy decision-making in the United States. Political science spends too much time studying institutions that check and limit government, and not enough time studying state capacity to act autonomously. Max Weber provided the model of bureaucratic capacity and authority against which countries should measure their potential for state effectiveness.

Fukuyama’s argument appears on his blog at American Interest [here and here] and in newspapers [e.g. Financial Times]. In one sense he is quite right. These three big themes do belong together. An autonomous state has great advantages over a politically constrained state when it comes down to getting things done. There is disproportionate emphasis on often spurious or magical properties of democracy. Like many people I favour a strong state … when I like what it is doing. 

However, Fukuyama does a disservice to Weber by taking the bureaucracy thesis out of context. Weber’s analysis of bureaucracy is incorporated within a perspective that prioritises legal-procedural rather than bureaucratic measures of state capacity, alongside a defence of checks and balances which remains persuasive even for today’s exceptional deadlock in US politics. The paralysis over what to do about the deficit and debt, as President Obama concedes, is “ideological”. The Weberian way to break the deadlock is not executive or bureaucratic authority to bypass checks and balances, but rather the impersonal mechanism of law through amendments to the constitution which remove a policy issue from the grasp of politicians and lobbyists.

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To understand state capacity, says Fukuyama, we must have “a good measure of Weberian bureaucracy”. As example of types of studies he says we need, Fukuyama offers the work of Peter Evans and James Rauch who devised empirical measures of bureaucracies on a “Weberianness Scale” correlated to prospects for economic growth.

Yet Weber never looked at bureaucracy or public administration in isolation, the way advocates of ‘state autonomy’ tend to. True, he identified professionalisation, recruitment according to technical expertise, training and examination, and salary-promotion incentives as reasons for the power and effective performance of modern bureaucracy. All this was an outgrowth of formal rules of procedure which have their source in law. State offices serve functional purposes in compliance with regulation, and command and control hierarchies dominate because they have legal authority to do so. There is really no doubt that Weber gave sequential priority to rule of law. Peter Evans has previously based his thesis of why ‘bureaucracy and capitalism belong together’ on a frankly misleading reading of passages in which Weber discussed the primacy of legal underpinnings of effective bureaucracy.

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Weber recognised the creativity of bureaucratic work, but only for administering on behalf of citizens the impersonal rights that have been extended to them by legal and political institutions. Bureaucracy is granted valid authority to issue commands. Yet the powers of bureaucrats, like the powers of private company clerks, are not discretionary.

Meritocratic recruitment is just one of the mechanisms to minimise bureaucratic dysfunction and indiscipline. Constant themes in Weber’s writing are dangers presented by untrammelled bureaucracy and the limitations of bureaucratic knowledge (he had no confidence whatsoever in the ability of bureaucrats to make better economic decisions than market actors). Weber well understood bureaucratic politics as infighting that can cause dysfunction. Bureaucrats pursue their interests like any group. But unlike other groups their power -- if unchecked -- is potentially “overtowering” and terrifying. “Bureaucracy is technically the most highly developed power instrument in the hands of its controller”. Only “general rules” ensure bureaucracy remains close to the ideal: skilled, impartial, unemotional, calculable like a machine, discharging duties without favour or privilege.

In the absence of underlying legal structure it would be impossible to implant or learn to use such things as salary and promotion incentives, exams, or qualifications. Even the legal foundation of bureaucracy is not a sufficient condition for the ‘Weberianness’ of a state, since Weber equally emphasised the subsystems of bureaucracy, law, and political representation. Together as a whole -- i.e. as a state -- it is part of each domain’s function to monitor the quality of decision making in those other domains. They must, after all, share common procedural norms for agenda setting and decision making in order to interact as branches of the state, and in order to present a common predictable front to the public.

Political leaders are no more likely to be selfless or ethical than bureaucrats who compete for promotion and perks. Yet modern democracy, law, and bureaucracy stand as constant reminders to one another of the indispensable “regularity of the exercise of authority, which is a result of the demand for equality before the law, the horror of privilege and the principled rejection of doing business from case-to-case”. In saying this Weber pays bureaucracy his highest possible compliment. These are definitely not the functions of state most desired by advocates of the autonomous activist bureaucracy which performs its functions case-by-case, typically to promote winners or protect losers.

Weber insisted that in a modern society bureaucracy is supervised (checked) by the politicians and parliament despite predictable resistance from bureaucrats. Politics must stop bureaucracy from hiding its knowledge, and must ensure the specialist bureaucrat does not get the better of the cabinet minister. Parliament reserves rights of appointment to top levels of the bureaucracy, and can force resignations. Politics uses the weapon of public criticism to discipline bureaucracy. Commissions of enquiry are used publicly to cross-examine bureaucrats and force them to explain and justify their actions (and educate politicians).

Underlying everything said thus far is Weber’s central thesis relating to what all branches of state (bureaucracy, law, politics) share in common -- the impersonal procedural norm that regulates processes of decision making. ‘Impersonal’ here refers to actions which deliberately do not discriminate between groups, which intentionally are not discretionary. It results from the legal requirement to treat everybody formally and equally, and it is the procedural prerequisite for the interaction and communication of agencies of the state. On this criteria, bureaucratic capacity for autonomous activity cannot be called ‘Weberianness’.

Finally, Weber said “limitation of power and separation of powers exist together”, and it is “this coexistence which so distinctively characterises the modern state”. The obligation to compromise is expressed with binding legal force in the impersonally regulated relations between competing spheres of competence within the state. The constitution is the highest ‘thing’ that can supervise politicians. A constitutional separation of powers is inherently unstable, but its advantage is objectivity and standing apart from status groups, interest groups, and the battle of ideologies where personal influences can hold sway.

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Let’s be clear. Weber supported the principle of constitutional generality for the same reasons now offered by public choice economics. He opposed giving bureaucracies unlimited discretional powers over monetary and fiscal policy. He also had no illusions about “the manifold tasks of social welfare policies which are either saddled upon the modern state by interest groups or which the state usurps for reasons of power or for ideological motives”. Weber may have been right or wrong. But supporters of more state executive and administrative autonomy are mistaken if they ground their desires in Weberian theory without recognising countervailing legal and political constraints.

I would like to see political scientists think through the logic of a genuine Weberian solution to the crisis of decay in governability revealed by debates about state financing, sovereign debt, and budget deficits. There is rhetorical agreement about the need to reduce budget deficits, and rhetorical disagreement over whether to raise taxes or cut expenditure. On a more profound level the role of the state is questioned and rethought. Can expenditures which gave rise to incomprehensibly gigantic deficits and debts be sustained and justified indefinitely? Problems of that magnitude can’t be cured by tinkering. The disagreements are so deep because they throw into doubt the viability of state-society relations that evolved since the 1960s. Nations -- not just polities -- really are divided over this.

Meaningful compromise looks too difficult. The issues are too divisive, the system too dysfunctional, the opinions too polarised, the consequences of missteps too dangerous. Constitutions were invented to resolve polarities of great magnitude. The purpose of separation of powers was to absorb polarities of great magnitude. If politics runs out of control or becomes paralysed, the constitution -- the ultimate impersonal power of the countervailing legal domain -- becomes the final mechanism for supervising politicians.

The ‘fiscal cliff’ epitomises real division (50-50) over the most fundamental economic policy priorities, and exactly fits the purpose of separation of powers. Instead of strengthening state executive and administrative authority in order to circumvent checking mechanisms and make decisions, a true Weberian would strengthen impersonal powers that place limits on political decision making. Budget and monetary policy constraints built into the constitution solve the problem for politicians by permitting them to tell their public - “Our hands are tied, now we must learn to tailor socio-political ends more closely to the available economic means”.

At the very least a constitutional budget amendment would subject politics -- once and for all -- to the same kind of limiting procedural norms which it has been the task of elected political leaders, as ultimate arbiters, to impose hitherto on bureaucracy and law.

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