Federal agencies’ raw power
Posted: Wednesday, May 22, 2013 7:00 pm
By DOUGLAS COHN
and ELEANOR CLIFT
WASHINGTON — The FBI can investigate and arrest you. The SEC can subpoena and investigate you. The IRS can audit, pry, fine, sue, and even refer you to the Justice Department for criminal wrong doing. The CIA can do who-knows-what. This raw power is not what the Founding Fathers had in mind when they wrote in Article I, Section 8 of the Constitution that Congress was empowered “to make laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested in this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Rather, they had in mind a system of checks and balances which included oversight of the various departments that fell under the president’s authority. It did not occur to them that some of these departments would become so powerful that they could intimidate the very senators and representatives whose committees were overseeing them.
When J. Edgar Hoover was the Director of the FBI, the agency kept files on everyone from Rev. Martin Luther King, Jr., to members of Congress, ordinary citizens, and even the presidents he served. These files kept potential foes at bay and kept him in office for 37 years.
The SEC runs a revolving door for attorneys. The agency hires them in bulk, then, after a few yaers, most of them move on to private law firms and advertise their services: “Attorney John Smith, previously with the SEC’s Enforcement Division . . .” The message is clear. If you want entrée, you need a lawyer who knows the folks at the agency. The result has been that the agency has, for whatever reasons, spectacularly missed major securities misdeeds. Enron and Bernie Madoff come to mind. An appeals court in the Madoff case even wrote about its “antipathy for the SEC’s conduct.”
Recent revelations about the IRS and its targeting of Tea Party people for audits may prove to be just the beginning. It is arguably America’s most feared agency. People fail to take all the deductions they are entitled to for fear of provoking an audit. Members of Congress fail to exercise proper oversight of the agency, apparently for the same reason. And it is the only federal agency that has the right to force citizens to prove they are in the right, turning on its head the concept of “innocent until proven guilty.” The IRS, like the FBI, is empowered to delve into the most private aspects of American’s lives.
And it is known that the Nixon administration improperly used the CIA. But, at least with the CIA, Congress has subsequently been more diligent in its oversight duties.
The problem is not that people in these agencies are bad. Quite the contrary. Most of them are dedicated public servants. The problem is in the structure. When an organization is allowed to wield power over those whom it serves, the structure needs fixing. It may be that Congress will need to engage anonymous special counsels to conduct oversight duties as the only way to avoid bureaucratic retributions.
Published in The Messenger 5.22.13