Balkinization  

Tuesday, June 03, 2014

Money Matters

Guest Blogger

Kristin Collins

This post is part of an online symposium discussing Nicholas Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940 (Yale University Press 2013).

The history of nineteenth-century American administrative law is in the midst of a revival, and Nicholas Parrillo’s book Against the Profit Motive is an important contribution to this growing body of scholarship.  But unlike many fine studies that have examined the nature and scope of early administrative law, Parrillo focuses on fundamental questions of governance which shaped the front-line administrative techniques used by state and federal governments:  How did the government get people to do things they didn’t want to do, like pay higher taxes?  How did it get prosecutors to enforce unpopular laws? How did it determine who was eligible for various social goods, like veterans’ pensions and land?  How did it decide whether a foreign-born resident could naturalize?
Parrillo’s answer: Money matters.  The money that matters in his account was the fees paid to many public officials to do the work of administration.  He introduces us to bounties, which are now part of a rather mysterious corner of law enforcement but were once a common way of getting public officials to implement unpopular laws and policies, like the collection of customs duties.   He examines the norms and policies that governed “facilitative payments”:  payments made to officials by individuals who sought something from the government, like a pension or naturalization.  He charts the history of these fees in American law over a century and a half, from the 1780s through the gradual extinction of fees as a means of compensating public officials in the early twentieth century. 
It is a story of extinction that was so complete that, as Parrillo notes, the fact that the administration of laws was once fueled by fees of the kinds he describes has been overlooked in conventional histories of American governance.  Such fees are also in tension with our modern, common-sense understanding of how government should operate.  Parrillo’s book is a granular account how those modern sensibilities developed.  As he explains, the legal and political meanings of fees were transformed as Americans decided that official disinterest – untainted by pecuniary reward – was the hallmark of liberal republican government.

That line of argument runs through Against the Profit Motive, but the book is not a simple or celebratory account of the end of remunerative fees in public employment and the concomitant rise of the salary.  History is messy, and this history is no exception.  I will focus on the shift from fees to salaries in the context of naturalization because I have been thinking a lot about the history of the administration of nationality laws recently (here), and because the fees-for-naturalization story may be among the most unsettling for modern readers.  Citizenship for sale?  Surely not!  But Parrillo shows us that, up until the early twentieth century, the fee paid to a state or federal court clerk to process a naturalization application went into the clerk’s pocket (or sometimes that of a judge).  For example, in the 1840s the fee for naturalization in New York state courts was set at $2.50.  The fee was paid only if the application was approved.  Citizenship wasn’t exactly for sale under this system – the applicant also had to satisfy several requirements – but close to it. 
And the story gets even richer.  For many early nineteenth-century laborers, $2.50 was a day’s wages.  Whether we think that was a lot or a little to pay for naturalization, many potential applicants apparently thought it was too steep a price.  So in the weeks leading up to an election, local party officials rounded up would-be voters and paid their naturalization fees in exchange for their vote.  (The open ballot had not yet gone the way of the dodo bird, so the newly minted voter’s party allegiance was verifiable.)  In the period before 1906, when naturalization applications were decided by state and federal courts, the clerks in those courts had significant discretion regarding whether to approve an individual’s application.  In New York, party officials arrived at court with stacks of five-dollar bills.  Every time two applications were approved, they handed a bill to the clerk.  It isn’t difficult to imagine what such a system generated:  lots of applications to naturalize (especially right before elections), liberal application of naturalization eligibility requirements, high naturalization rates, and – depending on how one understands the concept and the historical record – fairly significant levels of fraud. 
Today, the idea that people were effectively buying citizenship, and that political parties were effectively buying votes, is disconcerting.  Responding to relatively recent proposals that would allow the United States government to sell the right to immigrate and naturalize, the political philosopher Michael Sandel argued that such schemes have a degrading effect:  Citizenship is corrupted when it is commodified. It seems unlikely that the nineteenth-century clerks who were paid to process naturalization applications thought that they were selling citizenship.  And it seems equally unlikely that the individuals naturalizing thought that they (or their sponsors) were buying citizenship.  But in the late nineteenth and early twentieth centuries, critics of the system succeeded in convincing state legislatures and Congress that “facilitative payments” for naturalization were corrupt and corrupting.
Why did those sensibilities prevail?  One might like to think that the story of fees-to-salaries in the administration of naturalization is an example of the ascendance of a more enlightened practice of administration – a practice animated by the kinds of values that Sandel embraces.  And by many important measures, the shift to salarization marked progress.   But Parrillo’s account is unflinchingly honest:  the institutionalization of salaries in the administration of naturalization was not only driven by high-minded ideas about administration and citizenship.  It was also driven by the nativist turn in American nationality law. 
We know a lot about the substance of the racist and nativist  nationality laws that were in place in various forms until 1965.  Only white people could naturalize until 1870, when Congress allowed persons of “African descent” to naturalize as well (though most historians of American citizenship law think that liberalization was wholly symbolic).  In the  late nineteenth century, Congress barred Chinese people from entering the country, and over the course of several decades it expanded the race-based exclusion laws to apply to people from the “Asiatic zone.”  National-origins quotas were enacted to ensure that the lion’s share of European immigrants hailed from northern and western Europe, while only small numbers of people from southern and eastern Europe were allowed to immigrate.  It takes a lot of administrative capacity and ingenuity to implement these kinds of gatekeeping laws. In A Nation by Design, Aristide Zolberg posed an important question:  How did America develop the “elusive ‘remote control’ to which [restrictionist] regulators had long aspired”?  Zolberg’s work, along with important books by Erika Lee, Lucy Salyer, Patrick Weil, and others, have helped answer that question.  Parrillo’s account of the end of facilitative fees in naturalization –  just a chapter in his compendious and searching account of the rise of salaries in public employment – adds an important new dimension to our understanding of the administrative apparatus that developed to enforce nativist nationality laws.
A key moment in Parrillo’s account is the enactment of the Naturalization Act of 1906, which created a Bureau of Naturalization that introduced full-time salaried examiners endowed with substantive decision-making power.  That act also transformed the fee structure for naturalization by effectively eliminating the incentivizing effect of fees paid by applicants to clerks.  With these changes, an important component of the elusive “remote control” in the administration of America’s nativist naturalization laws was securely in place. 
One way to understand the shift from an immigrant-friendly, fee-driven naturalization process to one dominated by adversarial examiners is that the new system ensured that naturalization decisions would be fairer and would more accurately assess individual eligibility against the statutory requirements.  Parrillo rightly rejects this reading of the sources, explaining that the salaried examiners had about the same level of discretion as their fee-taking predecessors.  The difference was that salaried officials exercised their discretion in a restrictionist manner.   As Parrillo explains it, “[W]e can say only that naturalization became harder and less friendly to immigrants, not that it became more accurate.”  The cost?  Immigrants were alienated and significantly less likely to naturalize. 
So here is the messiness:  The story of the end of the profit motive in public administration is at once a story of high-minded liberal ideals and a story of the development of administrative systems designed to effect substantive policies that, in hindsight, were neither high-minded nor liberal.  Such tensions are familiar to students of the history of American citizenship, who have learned from Rogers Smith’s Civic Ideals that American nationality law has long been shaped by a combination of “liberal, democratic republicanism” and “inegalitarian, ascriptive” ideas.  Parrillo’s study of fees-for-naturalization demonstrates that one can find similar tensions in the nitty-gritty administration of American nationality law.
Fees charged to foreign-born individuals in the naturalization process have recently re-emerged as a source of controversy.  The path to naturalization is far more expensive today than it was in the early nineteenth century.  It costs $650 just to apply for naturalization – the equivalent of two weeks’ wages for some immigrants.  That fee is not a “facilitative payment,” of course, but a processing fee.  Some people have argued that the current fee is too high and prevents many foreign-born residents from naturalizing.  Just a few weeks ago Chicago mayor Rahm Emanuel and Representative Luis Gutierrez made that argument in the pages of the New York Times, calling on Congress to make a “common-sense fix to ensure that eligible permanent legal residents who are already in this country don’t have their path to citizenship blocked by onerous fees.”  They also suggested that the question of fees is readily disaggregated from other “polarizing aspects of the immigration debate.”  I am sympathetic with their proposal for many reasons.  But Parrillo’s history of fees and naturalization should make us skeptical of the idea that naturalization fees can easily be cordoned off from political and ideological contests over how best to regulate formal membership in the American polity.  Fees collected in the administration of government have political and legal salience.  That much has not changed.

Kristin Collins is Professor of Law at Boston University. You can reach her by e-mail at collinsk at bu.edu

Home