Factions and the Tyranny of Bureaucratic Power

Derek Suszko

Derek Suszko is a brand-new associate editor for The St. Croix Review.

Preamble

Nations age no less than persons do, and the essential ideals which animate the myth-nourished childhood of nations must dull by the hard process of experience. We are now a great distance from the epoch of our national origin, and the disparities between the present state of our government and the kind envisioned by the Founders are vaster than ever. Increasingly we decline to honor our Founders, and where we make a pretense of honor we bestow on them a vacuous and generic display of cursory acknowledgment. This should not confound us; the technological, scientific, and material conditions of life are radically altered from their time. All ages must suffer inevitably from the discomforts of the progress of history, and it is likely that we have sacrificed a great many wisdoms to the greater object of material improvement. But it is in the nature of great men and great ideas that they find applicability in even the most alien passages of human life. If we trust that the Founding of our nation was a great event, then we must conclude that it remains permanent in many of its essential implications, that the animating principles remain relevant to representative government for all time and that no modifications to the modes of life can entirely purge them of their resonant truth. But no less do we admit that though in their essential aspects, the Founding ideals abide, we cannot see them through that prism of perspective which inculcated the Founders. Our ages are too diffuse for such an unfiltered view, and the discrepancies between them necessitate that some of their convictions must expire. How do we determine what is resonant from what we should discard? How do we discriminate between an everlasting insight and an anachronism? 

I propose a series of essays with the projected purpose of directly applying the principles of the Founders to the conditions of the republic in our own time, and to ascertain which of them ought to be preserved or resuscitated, and with what adaptations to contemporary civic life. I will be vigilant not to reduce the positions of the Founders to the nebulous generalities so common in our discourse and, to this end, I intend to confront them at their words through specific circulations, whether orations, political tracts, private notes, or correspondence, and to approach with fidelity the intricacies of their arguments. There are instances in even the greatest of this heritage when some of the ideas advanced must be, of force, obsolete, but I aim to demonstrate that where violations of principle are concerned, we are nearly exclusively more at fault and unjustified in our contemporary violations than the Founders were misguided in advancing them. The essential quality of the Founders was not expediency, but foresight; they did not mean to construct a government for themselves so much as for their countrymen to come, and their utterances are frequently characterized by the impatience of prophecy. To this end, they recognized that strength of principle is, in the final tally, the only inducement to historical permanence. 

I

The idea that a representative republic of sufficient size and with proper delegation of powers is, of all forms of government, best suited to manage the possible fractures of factional dissension and safeguard the threat to natural freedoms posed by faction, finds a classic expression in the tenth essay of The Federalist Papers, written by James Madison. Madison’s definition of faction is necessarily dissenting: 

"A number of citizens, whether amounting to a majority or minority of a whole, who are united or actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens or to the permanent and aggregate interests of the community."

We observe that Madison admits no possibility of a benevolent faction. An interest motive in society that originates from a desire to reward those activities which tend toward the welfare of the whole state is, by definition, non-factional. To call an interest a faction is to declare that it is subversive to the interests or the rights of some minority or majority of the whole and that the fulfillment of its aims will resolve in a manner detrimental to society, either because those aims destabilize a necessary balance of interests or because they foster the counter-factional resentment of the disadvantaged party. Madison distinguishes factions by the scope of their adherence: a faction of a majority represents an interest motive held by a plurality of the citizen body and a faction of a minority represents a motive held by less than a plurality. The greater part of the argument of Federalist 10 is devoted to considerations for curbing the effects of majority factions since, as Madison argues, pluralities hostile to minority interests represent the great peril to popular governments. Madison dismisses the threat of minority factions by the flat insistence that, in a representative government, “relief is supplied by the republican principle,” and though a faction of a minority might pollute the discourse, it would not have the votes to affect its aims. A pure exercise of the republican principle, or of any government by popular representation, necessarily has the effect of abetting majoritarian interests, and it is a fragile impediment to expect any majority to maintain conciliatory deference to minority claims on the mere basis of appeals to higher principles. The requirement of a national government is then an ability to distinguish between a necessary respect for the non-factional claims of the majority and the claims that, by undermining the natural rights or crucial interests of a minority, meet the definition of factional interest. Madison argues that the strengthened national republic outlined in the Constitution is requisite to distinguish between them. He offers two reasons, by way of contradistinction with both pure democracies and small republics: 

". . . the effect [of a greater delegation of government in a large republic] is to refine and enlarge the views by passing them through a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations."

". . . the other point of difference [between a large republic and a small democracy] is the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it."

So, Madison puts his faith in the temperance offered by a comprehension of the nation in its entirety. The legislators, put at a distance from the immediate milieu of their constituencies and placed in daily association with colleagues from all reaches of the nation, will learn to judge in legislative matters with a double eye to the interests of their constituents and the compatibility of those interests with the broader nation. This temperance is achievable only in a large republic because only a republic of sufficient scope can dilute the disparate aims of the citizen body so vastly as to make a perfect obstinacy in a majority faction untenable. In effect, Madison suggests that a truly amalgamated majority faction, in a republic so large as to offer a diffusion of distinctly regional interests, is impossible. 

II

The most lethal of all majority factions to a representative republic are those which are motivated to topple the republican form of government itself. It remains the great achievement of the American Constitution that no faction in the United States has ever coalesced in opposition to its principles of representative government. Whatever we may say against the Constitution for its failures to safeguard the natural rights of minority interests, perhaps even its initial sanction of them, only fringe political movements up to our time have ever openly insisted that the constitutional mechanism is inadequate to remedy its deficiencies. To attest to that would require a denial of the efficacy of the amendment process and a rejection of the authentic and obvious remedies supplied by it. No credible faction has ever existed in the United States that has openly challenged the supremacy of the republican principle as the abiding philosophy of a national government. Since we cannot say this for the myriad republics of European history, we must count the absolute adherence to republicanism among all political affiliations as a particular quirk of the American people. Only the densest of ideologues would deny that this owes, at least in part, to the resonance of the Founding principles. It is noteworthy that even in the greatest crisis of the republic, fidelity to the republicanism of the Constitution was so innate that the states that rejected the Union crafted a separatist government on the basis of strict Constitutional federalism, even when such a government was inimical to their war effort. The judgment of history thus far has declared the American republic victorious over factions of overthrow and subversion. But what is the cause for the uncharacteristic stability of American republicanism and its apparent immunity from factions of this kind? Is it, as Madison prophesied, a direct consequence of the prudence of the legislators and the large scope of the republic? Certainly, the dynamism displayed by the early American Congresses combined with the restrained and decisive exercise of executive power established robust precedence for the supremacy of the Constitutional government among all interest groups. But what can we say of such factors today? 

We recall that Madison distinguished between factions comprising a majority and minority of the population, and declared that the essence of republicanism represented a sufficient safeguard against the corrosive influence of minority factions. The argument of Federalist 10 is applicable then exclusively to majority factions, and the republic ought not to experience any menace from smaller factions so long as the representative conditions of the Constitutional mandate abide. We have the attestation of history to demonstrate the judiciousness of Madison in locating the remedy to majority factions in the scope of the republic. But I would like now to consider a different factor in the circumstance of republican governments, one that alters the consideration of factional influences and which is expository for the conditions of our present governance. No manner of government, at any stage of existence, is entirely free from the threat of overthrow or subversive machinations from a popular majority, but it is a historical truth that republican forms are most vulnerable to these hazards the more proximate they are to the time of their inceptions. An early-stage republic lacks the implements of a large corpus of law and an entrenchment of civic values, and has yet to routinize a public and cultural life associated with representative government. The tabula rasa conditions of an early-stage republic empower the legislative capacities and require their initial vigor to placate the agitations of the citizens, especially when the republic has emerged from a state of insurrection. The history of abortive and short-lived republics is replete with instances of the failure of legislative bodies to break from an unsatisfactory pervading policy or to offer clarity of political direction.¹ The uncharacteristic security of the early American republic owed itself to the rich tradition of representative colonial government but also had much to do with the proactive energy of the early Congresses and the sagacity of the first administrations. A republic that surmounts the challenges of its infancy finds itself ever more gradually resistant to lacerations from possible popular majorities. But though the threat from majority factions declines as a republic prospers, the threat from another kind of faction grows incommensurately. 

III

The gravest threat to our present republic, which is now in a late stage of its evolution, derives not from the encroachments of a popular, autocratic majority but from the covert machinations of delegated power. This delegated power represents a kind of faction of minority unforeseen in Federalist 10, and yet it is a kind that is perhaps inevitable in the progress of republican government. We remember that Madison regarded the republican principle as sufficient protection against minority factions. But there are a number of assumptions that are implicit in Madison’s definition of faction. The proposition of the sufficiency of the republican principle assumes that factions are public, sincere, and influential in proportion to the population of their adherents. But we cannot hope that in the arena of politics all parties will “speak openly to the world and say nothing in secret.”² It is true that though a faction might falsify its designs and hide its ultimate motives to amass a broader swath of support, these measures can have only the eventual effect of diluting the cohesion of the original objective or of turning the deluded followers against the faction when they uncover its authentic ambitions. In either instance, a faction obliged to persuade has no abiding incentive to falsify its desires. But there are kinds of factions which may operate covertly and bypass constitutional obligations to the electoral will. As Madison suggests, we have little to fear from a minority faction that must compete on its persuasiveness. But a faction may circumvent the marketplace of political persuasion by two primary means in violation of a pure republican principle: 1) the faction represents an interest group that maintains privileged access to the legislators or the officers of the executive agencies or 2) the factional motive emanates from government officers themselves. The former means is evident in a number of instances, among them the role of special interest groups in campaign funding, the role of lobbyists in the drafting of legislation, and the appointments of industry figures to head bureaucratic offices. The outsized influence of “special interest” is not a desirable feature of the republic. Efforts might be made to reduce it, but a significant portion of it will always remain ineradicable. We may lament this constraint while also recognizing that a special interest faction remains subject to some conditions of electoral persuasion. Such a faction might wield an insidious influence over the constitutional officers of one or more of the branches, but it can hope in vain that its claims on those officers supersede electoral considerations when its advocacy is overtly damaging to the interest of a voting majority. The legislators may attempt to cloak their deference to special interests under the guise of generalized political aims, but they can maintain this mirage only so long as the aims of the interest faction coincide with the wishes of the electorate — at least partially. No legislator can survive being openly hostile to the interests of his majority constituency; it is, therefore, necessary for any special interest to attune its advocacy to alternating considerations of the electorate. Because a minority faction of this kind will still be subject to some of the vicissitudes of the electorate, the “republican principle,” though it is strained, is not obliterated. A minority faction of the second kind, the adherents of which are members of the government itself, is an altogether different dilemma and represents the greatest instance of “tyranny of faction” to the republic of our time.

Over the course of time the exercise of republican governments illustrates a history of the ascent of delegated power. By delegated power, I refer to those powers exercised by extra-Constitutional executive bureaucracies in the American government. The necessity of permanent bureaucracies is recognized by the Constitution in three clauses³, and though there is some dispute over the division of authority between the legislative and executive functions over “inferior Officers,” it is incontestable that all power vested in the bureaucracies are subject to the authority of Constitutional officers. Bureaucracies are granted no autonomous power by the Constitution and are theoretically constrained by the discretionary delegation of the legislature. But we have reached that crucial stage of republican government when the legislative power is in eclipse, and the routinization of bureaucratic power is such that the bureaucracies are decisive in the crafting of legislation and the orientation of policy. The legislature of our own time offers scant succor to the diminution of autonomous bureaucratic power. Why has the legislature been so weakened? Legislators, like those in the American Congress, who are deprived of executive and administrative functions must rely exclusively on the passage of legislation to exercise power. They thus have a tendency to accumulate authorizations for expanded administrative bodies and regulatory measures. This exercise of power has the effect of diminishing the overall share of future power because the legislature maintains a greater facility for institution than for revocation. Legislatures are generally incapable of destroying what they create because the political costs of decremental initiatives to the individual member are so much higher than additive measures, and the endowment of executive authority always makes itself harder to dislodge by usage. As the course of a republic unfolds and the body of legislation becomes permanent and routine, the legislative capacity naturally cedes authority to the organs that are tasked with the execution of its laws. We may note the phenomenon that the legislative powers of a republic are thus at a paradoxical apex when they have been least exercised.

A republic in a late stage of development is dominated by the fruits of this long active legislature: a vast administrative state, the offices of which were sanctioned by a legislative power that has become too weak to deconstruct them. In our own time, the bureaucratic departments (i.e., the NSA, FBI, CIA, FDA, CDC, EPA) and the other unelected loci of federal power (i.e., the Federal Reserve System, the military) maintain a decisive influence on the inclinations of policy in both the legislative and executive branches, and they each have come to represent a “bureaucratic faction” motivated by considerations of aggrandizement and political ideology. For much of their histories, these and other various bureaucracies had been motivated exclusively by a desire for expanded funding or greater autonomy; though these motives have suffered no diminution, we may now add to them corresponding politico-ideological motives. Once wary of overt partisanship, federal bureaucracies no longer fear direct opposition to hostile administrations and direct support for compliant ones. They may engage in outright deception and obfuscation because they recognize that efforts at oversight in the legislature will always divert into partisan antipathy. They maintain an advantage over the constitutionally vested executive authorities because a President and his cabinet are subject to term limits, while the bureaucratic officers are installed indefinitely. They may conspire against and outlast an elected regime hostile to their factional interests. They receive minimal opposition to their demands for budget allocation, and the auditing of their expenditures goes unexamined. It is not erroneous to observe that the federal bureaucracies collectively now comprise the greatest power in the American government, and they exercise a greater influence on the representative members of government than the citizens who elect those members. The republican principle that Madison so trusted to derail the pernicious ascendancy of minority factions has no power against such factions when they emanate from the republican government itself.  

A tyranny may emerge by habit just as well as by impulse. The slow ascent of bureaucratic factions, furnished with extra-Constitutional authorities and motivated by increasingly autocratic ideologies, continues to abrade the relics of an authentic government by popular representation. We must confront the question of inevitability: is it in the nature of all republics founded on the basis of enfranchisement, not exempting ours, to succumb to the habitual power of centralized apparatchiks? Does the Constitution, so resistant to exterior forces which sought to destroy it, have the means to hinder also those forces which seek to annihilate it from within? No historical postulate can abide as truth if it cannot combat the alternatives which seek to obstruct it. The principles of representative government contributed decisively to the hegemony of the United States; but if we abandon them, if we allow the nation to slip permanently into the quiet yet tenacious tyranny of unrepresentative overlords, then the judgment of history must condemn them as too fragile to survive the prosperity they fostered. Then the Constitution shall become a mere inkblot, a parchment exalted in “monumental mockery,”⁴ the posthumous testament of a forgotten faith, and another postulate consigned to the purgatory of historical memory.  

Notes

1. There are numerous republics to cite under these criteria. Some of the most significant from European history include: the English Interregnum, the French First Republic, the French Second Republic, the Kerensky Provisional Government, the Weimar Republic, the Spanish Second Republic, and the French Fourth Republic.
2. John 18:20
3. Article I Section viii: [Congress shall have the power] to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Article II Section ii: [the President] may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.

Article II Section ii: [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

1. Troilus and Cressida: Act III scene iii.     *