The Crisis of the Administrative State, Part 5: Government as Faction

The whole point of a limited government republic with the separation of powers and other constitutional safeguards is to keep government as a neutral force between factions and interests.  (See: Madison, Federalist #10. Rinse and repeat.) But today’s administrative state—the increasingly independent fourth branch of government—has transformed government into its own special interest faction, lobbying itself on behalf of itself—increasingly in partisan ways.

Case in point is a front page New York Times story today that ought to be a scandal:

Critics Hear EPA’s Voice in ‘Public Comments’

WASHINGTON — When the Environmental Protection Agency proposed a major new rule intended to protect the nation’s drinking water last year, regulators solicited opinions from the public. The purpose of the “public comment” period was to objectively gauge Americans’ sentiment before changing a policy that could profoundly affect their lives.

Gina McCarthy, the agency’s administrator, told a Senate committee in March that the agency had received more than one million comments, and nearly 90 percent favored the agency’s proposal. Ms. McCarthy is expected to cite those comments to justify the final rule, which the agency plans to unveil this week.

But critics say there is a reason for the overwhelming result: The E.P.A. had a hand in manufacturing it.

In a campaign that tests the limits of federal lobbying law, the agency orchestrated a drive to counter political opposition from Republicans and enlist public support in concert with liberal environmental groups and a grass-roots organization aligned with President Obama. (Emphasis added.)

The story goes on to report how the EPA worked in direct collaboration with environmental groups such as the Sierra Club to “stuff the public comment ballot box,” so to speak, likely in violation of the law. Good for the Times for giving this story front-page treatment. Now it should be the turn of the House Committee on Governmental Affairs and Oversight to hold some tough hearings of senior EPA officials, whom the Times names:

The most contentious part of the E.P.A.’s campaign was deploying Thunderclap, a social media tool that spread the agency’s message to hundreds of thousands of people — a “virtual flash mob,” in the words of Travis Loop, the head of communications for E.P.A.’s water division.

The architect of the E.P.A.’s new public outreach strategy is Thomas Reynolds, a former Obama campaign aide who was appointed in 2013 as an associate administrator. “We are just borrowing new methods that have proven themselves as being effective,” he said.

Make Mr. Reynolds have to hire an expensive lawyer, at the very least.