an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A common adage is that it's not what is illegal that stuns, but, rather, what is legal. So my question--which I mean as a serious one--is why in the world we treat Karl Rove as a "public servant" whose salary we the taxpayers must pay? There is no evidence at all that Mr. Rove has any views on public policy that he genuinely cares about or that anyone has ever paid the slightest attention to; what he is is a brilliant political tactician, first in Texas and then on the national stage, who is able to process the link between certain political positions and the likely consequences for the success of his clients. His sole job, from the first day he met George W. Bush to this very day, is to offer political advice.
Isn't the presence of Mr. Rove on the public payroll simply one more bit of evidence of the bloated presidential office? No doubt there were similar political operatives on the Clinton payroll and in earlier administrations, though I suspect that the casual acceptance of "political advisers" within the very heart of the West Wing as paid public officials is a relatively recent phenomenon. There is simply no comparison between Karl Rove and, say, Daniel Patrick Moynihan, Richard Nixon's principal domestic policy advisor. But we now seem to accept it as a matter of course that public funds will be expended for what Justice Peckham would have properly described as completely private purposes. The casual acceptance of Karl Rove's status as a "public servant" is ideologically linked, ironically enough, with triumph of post-New Deal "interest group liberalism" and the demise of any distinction between "public welfare" and "private rent seeking." It is one thing to declare that courts should no longer try to discern the difference and instead defer to legislatures. It is another to believe that there is no distinction at all that it might be valuable to try to maintain. Let the Republican National Committee pay Mr. Rove's salary; why should the taxpayers?
Readers will, no doubt, discern a connection between this post and my earlier post on the necessity of developing a suitable language to describe what exactly we expect law enforcement officials to do. Posted
by Sandy Levinson [link]
But we now seem to accept it as a matter of course that public funds will be expended for what Justice Peckham would have properly described as completely private purposes.
Well, the good news is that some of the maladministration staff were quite aware of the difference between political work and the stuff they get paid for, and thus to keep from burdening the U.S. taxpayers with obscene IP bills, they started using "gwb43.com" e-mail accounts to converse about the political purge of the UDAs.
Karl Rove's unapologetic specialization may make him seem a bit unusual in the rogue's gallery of presidential political hatchetmen, but I don't think he's really so different than Mike Deaver, John Ehrlichmann, Walter Jenkins, Sherman Adams or Ken O'Donnell.
Nobody questions (much) the rather monarchical personal retinue the President has on the public payroll at the White House of valets, cooks and others -- frankly a political adviser is rather more related to the President's constitutional duties, so I don't think it's really so odd that the taxpayers pay his salary.
The real difficulty is that Presidents tend to claim that their personal advisers are not subject to the same Congressional oversight as other executive officials. This notion ought to be dismissed out of hand, but for whatever reason the courts seem impressed by "separation of powers" arguments that I can't find in my copy of the Constitution, and are in fact inimical to the fundamental principle of accountability to the people (through their representatives assembled in Congress). We've managed to keep Congressional oversight of the Defense Department and the intelligence community in the nuclear age without undue compromising of national security -- most of the serious breaches have come from DoD, CIA and FBI officials.
During my father's time as a senior civil servant, he offered some simple advice to his subordinates -- "never write anything in a memo that you would not want to read on the front page of the Washington Post." In matters of public policy (as opposed to party politics), even close advisers of the President ought to be able to live by that rule. If an administration chooses to view public policy and party politics as the same thing, that's their problem -- and if they are arrogant enough to ask Congress to put their political hatchetmen on the public payroll, they should be prepared to have those hatchetmen be as accountable as any other public servant.
Presidents have brought their political advisors with them to the Executive Branch from the beginning. While they were often appointed to head various Executive departments, they all provided political advice as well.
Given that the work of a democracy always involves politics, why would anyone think this was strange? Unless, of course, the desire is to remove a particularly effective opposition advisor...
Isn't the presence of Mr. Rove on the public payroll simply one more bit of evidence of the bloated presidential office? No doubt there were similar political operatives on the Clinton payroll and in earlier administrations, though I suspect that the casual acceptance of "political advisers" within the very heart of the West Wing as paid public officials is a relatively recent phenomenon.
Actually, having a political operative in the Administration dates back to Jefferson. For years, starting with his administration, the Postmaster General was in charge of patronage and general political machination.
After civil service reform, Presidents found other positions for their advisors. Famous examples include Mark Hanna (McKinley) and Col. House (Wilson).
This is a question I've pondered before. Tentatively: (1) because the Roves of the world do serve a policy coordination function that's at least semi-legitimate, but which is so much less interesting than the overt political stuff that it tends to be under-reported and overlooked; (2) because it's very difficult for anyone, not just courts, to draw the line; (3) because any marginal satisfaction we might achieve by virtue of cutting such individuals loose from the public dole might be outweighed the corresponding marginal loss in their sense of duty to anyone other than members of their party; (4) because involving a few such people, and dressing them up like public servants, is better than having them paid by outsiders, involved (inevitably) by virtue of their close ties in executive branch policy, and eradicating any ability to claim a bright line that freezes out the many other overtly political types from direct involvement in meetings and policy planning.
None of these are complete, and I'm sure some are hopelessly naive.