Anne Joseph O'Connell

The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World

The changes to the intelligence community and its congressional overseers recommended by the 9/11 and WMD Commissions, both those implemented and those not adopted, raise fundamental questions of administrative and constitutional law. These questions cut to the heart of the federal governments effectiveness in addressing two of the most prominent policy imperatives of our time: protecting national security and maintaining core democratic values, including civil liberties, transparency, and accountability. How should agencies and congressional oversight be structured in a system of separate but overlapping powers that aims to protect both national security and central liberal democratic values? Should administrative agencies (or congressional committees) be combined or placed in competition with each other? Answers to these questions are constrained by political realities. As Terry Moe explains, the bureaucracy arises out of politics, and its design reflects the interests, strategies, and compromises of those who exercise political power. Drawing on research in economics, political science, and law, this paper considers three important perspectives on the recommendations to unify intelligence agencies and to consolidate congressional oversight, which have not, so far as I can tell, been applied to intelligence reform rigorously in combination. These perspectives, in addition, have wider application to any possible restructuring of the administrative state. First, what are the most effective structures of the intelligence bureaucracy and congressional oversight for national security, taking into account both benefits and costs? Second, what structures are politically and legally feasible? It is very difficult, though not impossible, to change jurisdictions of agencies and congressional committees. The Intelligence Reform and Terrorism Prevention Act of 2004 changed some agency jurisdictions, but it did not shift congressional boundaries. Third, what types of agencies and congressional structures should a democratic society desire? How does the organization of the intelligence community and congressional oversight affect core liberal democratic values? This Article questions the siren call of unification on the grounds of national security effectiveness, political feasibility, and democratic legitimacy, and suggests future avenues for research.

Auditing Politics or Political Auditing

I investigate the relationship between Congress and the Government Accountability Office (GAO). The GAO is the federal legislatures primary auditor of the administrative state, evaluating agency programs on its own initiative, by statutory mandate, and at the request of members of Congress. I begin with a basic two-period principal-agent model between a legislature and an auditor, where the auditor must choose between two opportunities for self-initiated oversight in each period. The model identifies how the auditor, who must consider how neutrality or political bias, or the perceptions of either, acts given her own interests and the objectives of the legislature. The model also shows how the legislature can create socially optimal as well as socially perverse incentives for its auditor. I then explore empirically some of the models assumptions and implications with data on the GAOs self-initiated investigations from 1978 to 1998. The empirical results support the theory that the GAO is a nonpartisan auditor facing some political constraints.

Presidential Transitions: The Shaping and Reshaping of the Federal Regulatory Agenda

The federal administrative state does more lawmaking, by some measures, than Congress. In 2001, Congress passed 21 major statutes (Barshay 2001) and 115 other public laws (Final Resume 2003). In contrast, in that year, cabinet departments, the Executive Office of the President, and independent agencies promulgated 70 significant rules and 3,369 other rules (GAO 2005). (The law defines significant, or major, rules as those that have at least a

Vacant Offices: Delays in Staffing Top Agency Positions

100 million, or otherwise significant, effect on the economy.) This research project examines changes in federal agency rulemaking between 1983 and 2002, using a large dataset from the Unified Agenda of Federal Regulatory and Deregulatory Actions. Do shifts in the quantity of rulemaking-related activities depend on changes in the White House or on the independence of agencies? What role do Congress and the courts play? What are the implications of patterns of regulatory activity for agency legitimacy, judicial deference to agency decisions, and desired agency activities during Presidential transitions? This paper presents some preliminary results.