Legal

Perhaps the most contentious topic involved in drafting the Constitution was related to the power of the central government. For example, we take for granted that coining money is the exclusive province of the federal government. That has worked pretty well. Patents, copyrights, international commerce and diplomacy, war declaration and citizenship are among the issues that could not, as a practical matter, be left to the states. Look at what happened in Europe: They have countries that are no larger than American states, each with its own economic system. It was so cumbersome that the countries had to be melded into the EU.

Perhaps the most alarming thing about our governmental balance is that our federal government is not a representative one. The balance of power is strongly weighted in favor of the smaller states, since each state has two senators, regardless of population, and the distribution of electoral votes also favors smaller states. The winner-take-all proposition in the Electoral College puts things even further out of whack. You may remember that it required a 1913 constitutional amendment just for senators to be directly elected.

Much of this nonsense arose from the battle over the most shameful component of American history, slavery. Back in the day, Southerners would claim that the Civil War was fought over “states’ rights,” not slavery, but we all know better. The constitutional struggle over how to deal with slavery was a large part of why so much political power was assigned on a state-by-state basis. Thus, Republicans now hold a huge political edge nationally because of the sparsely populated Midwest and Mountain states that are overwhelmingly “red.”

Government is made up of two classes of personnel: politicians and bureaucrats. That is a big deal, given that more than 20 million Americans are employed by some branch of government.

So which governmental jobs go to which category of employees?

The bureaucrats are the career government employees, often subject to an array of civil-service regulations that separate them from the politicians. Perhaps the best example of the contrast between bureaucrats and politicians was found in Chicago during the mayoral reign of Richard J. Daley, who was dubbed the “American Pharaoh” in a recent biography. (Daley’s son is the present mayor of Chicago.)

The elder Daley was a master of politics. In Chicago, local governments collectively employ tens of thousands. If each employee’s job security depended on herding grandmothers (some no longer living, it is believed) to the polls for local elections (which do not coincide with national ones), then the mayor could count on a whole bunch of voters. That was how it worked for Daley. The cornerstone of his program was to virtually never hold civil-service exams. With no civil-service exams, there are no civil servants. Without civil servants, there is room for “political-patronage employees,” whose jobs exist as rewards for political favors. In Daley's case, countless clerical workers all would vanish from City Hall on Election Day, going into their wards and off to the polls to garner votes for the slate designated by “Hisonnah Damayah.” President Bush is pretty good at having a staff full of close buddies to whom he owes political debt. But Richard J. Daley was the best!

Daley was a poster child for the conflict between civil servants and political-patronage employees. The whole point of having civil servants, after all, is to ensure that an entire bureaucracy is not replaced with each new mayor or president. Moreover, the public has an interest in an efficiently run government, and if government employees are hired based on political allegiance and not merit, things will not be efficient. Obviously, elected officials want as many patronage employees as they can get, as Mayor Daley demonstrated.

A word about civil servants is in order. It has been said about career prosecutors that there are three axioms of the job: Don’t lose cases, don’t make waves and look busy. The second and third axioms apply with equal force to bureaucrats across the board. When dealing with any public agency, those are important things to remember. For example, the axiom about making waves is what brought about the need for the FW/PBS decision, which requires adult-business licensing ordinances to mandate approval or denial in a short and definite period of time and to refrain from giving discretion to the licensing agency. Otherwise, no adult business would ever get a license. Adult businesses make waves, and, in some cases, any adult-business licensing decision makes waves because granting a license opens a controversial business and denying one leads to litigation. No bureaucrat wants to be responsible for either event, so the applications would become lost in bureaucrats' bottom drawers without the FW/PBS requirements.

Another example of making waves is public speaking by employees. Lectures by assistant district attorneys typically are strings of profundities such as the number of lawyers in the DA’s office and how many cases they handle every day; they never say anything controversial. A marked exception is found in the Obscenity Unit of the current Department of Justice, which is about as political as prosecutors get.

When bureaucrats speak out, litigation often results. For example, if a low-level employee of some public agency makes critical statements about the agency’s policies, the employee may wind up in court and working in the private sector. Courts have wrestled with the problem of striking a balance between the interest of the employee as a citizen commenting on matters of public concern and the interest of the agency as an employer promoting the efficiency of the public services it performs through its employees. The employee wins if it is a matter of public concern; otherwise, the employee stays fired. Congress has enacted a bounty by way of a reward to people —

whistleblowers — who report fraud perpetrated on the government. Such actions are called Qui Tam suits. Don't ask why.

Although this topic is endless, the magazine is not. I hope this will be food for thought for dealing with government.