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Chris Weigant

Chris Weigant

Posted: May 26, 2010 07:49 PM

Separating Enforcement From Permission

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President Obama has just announced he'll hold a (for him, rare) press conference on Thursday. The questions asked will largely be focused on the oil spill in the Gulf... as well as the usual assorted inanity from the White House press corps (has anyone else noticed that the intelligence of a question these reporters ask is inversely proportional to the amount of money that reporter makes?). But there's a "big picture" type of question which really should be asked -- or, even better, that Obama should answer, even before the question round begins. And that is the fundamental disconnect a lot of federal agencies have at their core: their mission statement is both to award permission (and rake in fees for doing so), and also to enforce the laws the permission is bestowed under. In other words, these departments (and there are many of them) act as both a salesman and a cop.

This, it should be easy to see, is a conflict of interest. If an agency's main purpose is to make money off of an industry (by the granting of oil drilling leases, for example), but also to police that industry, then there is an inherent, built-in conflict. When one part of the agency does its job better, the other part of the agency can't do its job as well. These jobs may not be mutually exclusive, but they're definitely working at cross purposes.

Right now, of course, due to the BP oil rig disaster, the agency under the microscope is the Minerals Management Service (MMS). But the problem doesn't end with just the MMS. There are likely dozens of other such agencies in the federal government's alphabet soup of departments and agencies and services. All of these agencies share one thing in common -- their mission is to both make money off of some government service, and also to police such activity. The fox is not just guarding the henhouse, the fox is part of the henhouse's reason for existence. And the fox and the hens report to the same boss.

Metaphor abuse aside, though, the Obama administration, in the person of Secretary of the Interior Ken Salazar, was quick to announce that MMS would be broken up into three independent and separate units: the Bureau of Ocean Energy Management (who will award leases), the Office of Natural Resources Revenue (who will be the accountants dealing with the royalties coming in), and the Bureau of Safety and Environmental Enforcement (who will in charge of enforcement of the safety and environmental laws).

Of course, this is a little after the fact -- it's hard to avoid the "rearranging the deck chairs on the Titanic" comparison. The oil spill is a fact. Oil in the marshes and bayous is a fact. Rearranging the federal agencies is not exactly going to help in the short term (or even the medium term, for the Gulf coast). But all of that doesn't mean it isn't a good idea, or a worthwhile thing to do, which will (hopefully) work to prevent such ecological and financial disasters from ever happening again.

It doesn't even really matter what government service we're talking about, either. The only recent time I can think of when the government reshuffled a department to remove such a conflict of interest was when the Department of Homeland Security was being set up, and the Immigration and Naturalization Service was broken into Immigration and Customs Enforcement, and the U.S. Citizenship and Immigration Services.

But that was a fairly easy thing to do, politically. It made sense to everyone at the time, and (the key point), immigrants aren't a gigantic and profitable industry -- the way oil drilling is. To put this another way, immigrants don't exactly have a lot of lobbying weight to throw around on Capitol Hill. Most of the other industries that have such dual departments (permission and enforcement) do, however.

But that doesn't alter the fact that separating enforcement and permission is a great idea to reform the federal government. In fact, it's such a good idea that it ought to be a government-wide effort. This is where the "big picture" comes in. The whole concept of having the guys who bring in federal revenue by selling something and the guys who police the industry reporting to the same boss is kind of ridiculous, when you think about it, because it will inevitably lead to that boss trying to get more revenue -- by telling the industry cops to take it easy. It's built in to the system, unless you have a boss that is incredibly dedicated to the idea that it is his or her job to protect instead of generate revenue. And at that level, such people are sadly few and far between.

The smart thing for Obama to do would be to announce Thursday night that he is going to conduct a full review of all federal agencies, to see where such conflicts of interest exist in the organizational chart. And then he's going to separate them all. He could perhaps gather all the policing agencies thus created into an overall Inspector General's office, or he could dole them out among other federal law enforcement agencies, or he could leave them where they are -- as long as they are fully independent agencies from now on. Much as Clinton tasked Al Gore with "reinventing government," Obama could hand such an effort off to Vice President Biden, or anyone else he thinks could do the job right.

To be realistic, this will probably not happen. I have a sneaking suspicion it's one of those ideas that just "makes too much sense" to actually come about. Although it was the Obama White House which, early on, stated its "don't let a crisis go to waste" philosophy, it's easy to see that they might not want to take on another large-bore project at the current time -- especially not one which would lead to a government-wide disruption and shakeup, but also one which would be heavily lobbied against by many industries (not just a single one).

So we will likely continue to deal with the underlying conflict-of-interest problem reactively and on an ad hoc, case-by-case basis -- one crisis at a time, in other words. Which is a shame, because it will waste the opportunity presented by the Gulf oil spill to rethink the way federal agencies are set up in a very basic way, in favor of seeing this particular (MMS) tree and ignoring the forest of other agencies which surrounds it. Granting permission to an industry, and enforcing laws and regulations for that same industry are two diametrically-opposed functions. There is no reason they should be handled by the same agency -- no matter what industry we're talking about.

 

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