66 Pages Posted: 10 Sep 2013 Last revised: 9 Dec 2014
Date Written: October 15, 2014
Inducing governmental organizations to do the right thing is the central problem of public administration. If Congress or another principal wants a federal executive agency to pay attention to a value that constrains or conflicts with the agency’s overall mission — that additional value is here labeled, generically, "Goodness" — the principal often creates a subsidiary agency office — an "Office of Goodness." Both policymakers and scholars should care about how and when Offices of Goodness work. Yet while Offices of Goodness are frequently established in federal agencies, they are nearly invisible in scholarship. And the resulting knowledge gap is currently particularly problematic, because President Obama has just proposed a new Office of Goodness, within the National Security Agency, to increase oversight of surveillance activities. An Office of Goodness’s success is far from guaranteed; to actually increase Goodness in its agency, its staff must skillfully use a highly constrained toolkit, and they must avoid the twin shoals of impotence or capture/assimilation. This Article analyzes the relevant dynamics.
The Article begins by describing a paradigmatic Office of Goodness, the Department of Homeland Security’s Office for Civil Rights and Civil Liberties, and the details of four controversies — information-sharing relating to the Occupy movement; laptop border searches; Border Patrol’s Spanish-language assistance for police; and data retention by the National Counterterrorism Center. These examples ground the more general discussion that follows, which is also informed by both theory and other case studies. The Article canvasses tools available to an Office of Goodness — inclusion in working groups; clearance authority; advice-giving; training and technical assistance; program review; complaint investigation; outreach; document generation; and congressional reporting. It then explains why Office influence and commitment are continually threatened, and argues that both depend crucially on external reinforcement, from Congress, the White House, non-governmental organizations, the courts, or other agencies. Office of Goodness efficacy should not be taken for granted. Unless the goal is purely cosmetic, each Office’s tools must be carefully prepared, and its influence and commitment purposefully produced and maintained.
By focusing inside federal agencies and on personnel who offer advice rather than run agency operations, the Article adds to both the "structure and process" strand of positive political theory and research into public administration and bureaucratic theory. Its ambition is to raise the salience of the Office of Goodness strategy, placing it more prominently on the menu of "internal separation of powers" devices for further analysis and assessment.
Keywords: executive branch, homeland security, civil rights, separation of powers, administration, border, language assistance, occupy, NCTC, DHS
JEL Classification: K23
Suggested Citation: Suggested Citation
Schlanger, Margo, Offices of Goodness: Influence Without Authority in Federal Agencies (October 15, 2014). Cardozo Law Review, Vol. 36, No. 2, 2014; U of Michigan Public Law Research Paper No. 353; U of Michigan Law & Econ Research Paper No. 13-017. Available at SSRN: https://ssrn.com/abstract=2322797 or http://dx.doi.org/10.2139/ssrn.2322797