I was asked for my opinion related to this question: “With the advent of term-limits in California, which politician is the most powerful?” My answer: No elected official is as powerful as some appointed authorities/officials have become. The revolving door created by term-limits has the unintended consequence of making one group weaker while making others stronger – just not the groups most voters thought would be impacted. Yes, the professional staff members of elected officials have become much more powerful with the advent of term-limits yet their power still pales by comparison. It’s not the termed-out elected officials nor the increased power of the career staffer I obsess about. It is the increased power of appointed officials (non-elected authorities) as a result of term-limits that really scares me. Any concentration of power in the hands of non-elected individuals or quasi-government bodies should concern all voters.
Before I appear to disparage all of the wonderful individuals that sometimes tirelessly serve the public good -for little or no pay and sometimes at great personal risk – I want you to understand that it is not the individual I am concerned with, it is the concentration of discretionary power in the hands of non-elected public boards and commissions. Too much non-elected power strains our democracy and weakens our elected representative-republic governance model. This power in the wrong hands can be dangerous.
In many cases, the appointed officials are the actual regulators with enforcement authority. Once the laws are passed, the appointed folks are the ones that actually “geterdone”. In some cases they might even be the cheerleaders that positioned the original law for passage. They are often the shield that gives the elected official cover They create the DETAIL and implementation language each and every new regulation will be operationally bound by. They create the nuance and insert words like may”in the place of words like “must”. Their appointments are often purely political and some come with pre-determined agendas or without expertise in the very subject they are being specifically appointed to deal with.
Even though appointed officials have some public exposure, their work is so often opaque because too many decisions are already made prior to the actual public meeting. In other words all to often, the public process is simply perfunctory – which is the opposite of transparency. Interestingly enough, since the appointments tend to overlap the political terms of those making the appointments, the influence of the original appointing authority actually extends past their elected terms. Therefore, the appointed authority can actually be more powerful than elected officials because they are free to do whatever they want, even after the original appointer has left the building. This can be scary.
Since appointed authorities tend to have significant regulatory responsibilities, let me at least establish my baseline understanding of what regulation should consider before being created.
Any new regulatory change may have positive and negative impacts on people, business expansion, and growth in the U.S.. What is not clear is whether those impacts are unintended or intended. Therefore I have developed what I call the “Regulatory Theory of Five” which states:
1. Do no harm.
2. Any regulation that does not solve the specific problem it was created to solve is unnecessary.
3. The fiscal impacts of new regulation should be included in any regulatory justification and scored openly.
4. Any regulation too cumbersome to audit or too complicated to follow will not be adhered to and should not be implemented.
5. Any regulation must have a built-in sunset provision that is justified based upon rules 1-4 and either left as-is, modified to meet the goals of 1-4, or eliminated.
The reality is if regulation meets the Regulatory Theory of Five, it has a good chance of working and can be supported by the vast majority of businesses people and the public. What happens if those that regulate never follow the Regulatory Theory of Five?
Back to the power I fear.
There are boards and commissions that regulate all of the coastal development of entire states. Commissions regulating the entire energy infrastructure. Health access and worker safety. Protection of natural resources. Innovation. In many states these appointed officials regulate EVERYTHING and sometimes they seriously do not know what they are doing. In some cases they know exactly what they are doing and are settling scores – regardless of the facts. I have seen powerful boards and commissions with only 7 – 9 members lording over industry segments valued in the $billions. In other cases I have seen appointed authorities rarely show up to the majority of meetings. I have seen meetings that can barely achieve 50% member attendance. Regardless, rules are still passed with the simple majorities of the folks that do actually show up regardless of the potential impact of the rule making. Yet, these folks are writing diesel emission rules that are not even commercially available – risking entire industry employment in a specific state and violating the Regulatory Theory of Five. Pretty scary.
Some appointed authorities simply do not have any expertise related to the core responsibility their board or commission has oversight for. As a result, too often they have no independent ability to personally analyze issues that impact an entire economy. Since some are paid and others unpaid it is difficult to understand motives. As I said earlier, for the sake of this blog it is not the person, it is the power. It’s not like there are performance measures or incentives to encourage any results at all. Let me say it another way, there may actually be no way to manage, discipline or correct these folks.
You may have never asked yourself these three questions but let me ask for you:
1. Who manages the appointed authorities?
2. How do you discipline or fire them?
3. Can you name the small group of people that will decide what your energy or water rate structure will be next year?
Here is my problem, I assure you that most of you do not know – have no friggin idea – what the answers are to these questions. That is scary.
Elections matter. The elected officials appoint the people that actually run the government because although our laws are what drives our governance, our regulations are the economic fuel that drives our entire economy. Since we operate a capitalist economic model, regulation runs our country. Term limits diminish the power of elected officials. Term limits make appointed authorities much more powerful. You have almost no control of appointed authorities yet they run the most impactful elements of your state …. sometimes your country. Pretty scary.
Oh, by the way, who do you think normally gets those groovy appointments that pay $100k for 30 days of work? “I’ll take Former Elected Politicians for 100,000, Alex”.
Start caring more about who you elect and much more about who they appoint!