Our federal government is frozen in place by a stand-off rooted in competing core values. Democrats want to use government to do good for the nation. Republicans are convinced that more government is necessarily bad for the nation. As the sequester continues to be debated without resolution, one way to find middle ground would be through the creation of short-term “pop-up” federal agencies that would exist to solve discrete problems, then disappear.
Such agencies would address the principles of both parties. For Democrats, pop-up agencies would allow government to be vigorous and strong in addressing some of the very real problems we face. For Republicans, the defined duration of the agency will address Ronald Reagan’s accurate assessment of the nature of standing bureaucracies—that they quickly come to serve their own survival above all else. Because pop-up agencies would have an expiration date, they avoid the problem of bloat over time.
Three inherent strengths make pop-up agencies a good idea now. First, they can take advantage of short-term labor markets that are full of talented people. Second, because they are uniquely positioned (due to their independence) to identify waste within existing bureaucracies, they are able to see possible cuts and savings in a way standing institutions cannot. Finally, people with the skill set to efficiently create these agencies are already in our midst (especially in Washington): campaign organizers. They have experience with quickly setting up offices, orienting short-term workers, and achieving well-defined goals.
While a variety of independent counsels and task forces might be held out as models, perhaps the best documented example of a successful pop-up agency was Gerald Ford’s Presidential Clemency Board. Formed in September of 1974, that Board was charged with evaluating over 14,000 petitions for clemency from Vietnam-era draft evaders. They were given exactly one year to complete the task. They did so, and promptly disbanded. Having performed an important service, that board left behind a well-written and thorough report intended to guide such agencies in the future. The report described with precision the “crisis-management” style that allowed the Presidential Clemency Board to complete its task on time and at reasonable cost, and concluded that “reasonable solutions to temporary problems can perhaps best be accomplished in a brief spurt of energy—without the need to create expensive, undying Federal bureaucracies.”
One use for a pop-up federal agency today would be to deal with the current equivalent of those draft evaders: the more than 5,000 federal prisoners who are serving sentences for crack cocaine who would be out now if sentenced under the new, reformed narcotics statute. Such a pop-up agency would not only address a real injustice, but its work would have a built-in financial set-off to its expenses, from savings in incarceration costs.
Nor is criminal law the only area in which pop-up agencies could be useful. Imagine if, in the wake of 9/11, President George W. Bush had created a short-term pop-up agency to evaluate and shore up homeland security, rather than create a new cabinet-level bureaucracy which has continued to grow. In the here-and-now, new efforts to create a national medical database or shore up the security of the southern border would be better served by a pop-up board to identify and implement new systems (which could then be maintained by existing entities or private business) rather than the creation of a new bureaucracy.
Certainly, pop-up agencies can address only a fraction of our challenges. Still, where a government initiative proposes establishing a new agency, making that agency temporary should be considered.
Democrats are right that there are some problems (like overstuffed prisons, the creation of a national medical database, or border security) that can only be solved by government. Republicans are right that standing government bureaucracies tend towards inefficiency over time. Pop-up agencies are one way to serve both principles.
Mark Osler is a former federal prosecutor and currently serves as Professor of Law at the University of St. Thomas, Minn.