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