The Power (and Threat) of the Unelected

Timothy L. Coyle
Consultant specializing in housing issues

It’s easy to bash the Governor for this and that.  It’s equally simple to criticize state lawmakers for passing bad laws – something they do with great regularity.  Indeed. it’s a fairly effortless and common exercise – carping at the Governor and legislators – mostly because they are public figures.  It’s almost sport.

Should we cut them a little slack?  I don’t think so.  Keep in mind that although one can’t expect the Governor or legislators to master every one of the multitude of issues they face each year, they are accountable for their actions.  We know they are beholden to hundreds of special interests who line up at the Capitol each year to push their respective agendas – full of seemingly limitless priorities.  And when it comes to development those priorities are most assuredly hostile.    

However, it’s a different matter when assessing the cumulative impact of all the public-policy decisions made by countless non-elected officials and bureaucrats holding key governmental posts on conditions in California – on its streets, at the border, in its downtowns and meeting local needs to produce adequate housing.

Case in point:  mayors and city councils – starved for capital and besieged by angry activists – are presiding over increasingly filthy neighborhoods while sanctuary status laws have emasculated local police forces and prosecutors.  Moreover, liberal policies give shelter priority to street-dwellers over private citizens in search of affordable rentals – hotel rooms for the homeless while a chronic failure to systematically build high-density housing.  How are bureaucrats responding?  They’re busy deciding ways to penalize these very localities.

The state of California employs well more than 200,000 individuals.  But, while some of them are truly experts the vast majority isn’t.  Rarely do they help in a tough situation.  It seems more like their tendency is to regulate first and ask questions later.  Their reach is far greater than it’s ever been.  So is their power.

Truth is, we are all obliged to regularly abide by the rules and regulations created by these “specialists” who are unelected and accountable to no one.  Hundreds of state directives are issued every year by them – ranging from Appliance Efficiency Regulations for General Service Lamps, from the Department of Energy, to Reporting Work-Connected Fatalities from Serious Injuries from the Department of Industrial Relations, and many more. 

Bureaucrats from countless state departments, agencies, offices, conservancies, boards and commissions in California are duty-bound to first, broadly translate then secondly, narrowly implement thousands of new laws every year.  Knowing this, legislators are free to – and do – pass broadly worded bills which will be then, later interpreted, then enacted and enforced by these state employees.

(It’s worse with California lawmaking when you consider there is no such thing as “legislative history” to guide bureaucrats.  So, they are essentially left on their own when it comes to writing the rules for a new state program or policy.)  

So, at the close of each legislative session, lawmaking shifts from the Legislature to one of more than 230 state administrative entities.  There, personal biases, relationships with interest groups or other humans to whom a regulation-writer has “last talked”.  All have an influence over what’s determined to be right or wrong.  In this environment things quickly and routinely get out of hand.

I often tussled with these so-called experts during my stint in state service.  Yet, even as a department director I was constantly and continuously hemmed in by evermore strict yet uneven judgments of the law.  I once spent nearly three years – plus seven lawyers and program specialists – resolving an issue. 

The experience at the national level of government is similar.  Writes Mollie Hemmingway and Carrie Severino in their compelling book Justice on Trial, about the hearings surrounding the confirmation of Justice Brett Kavanaugh:

“The growth of the administrative state introduced the proliferating regulations of a multitude of federal agencies, administrations and commissions which have the force of law.  Members of Congress found it simpler to “do something” about major problems by writing vague laws and leaving it to the “experts” in administrative agencies.”  

In California, for example, the state’s premier environmental law (CEQA) – the nightmare measure regularly used by NIMBYs to arrest housing development – is governed by a set of guidelines.  These guidelines are composed by state bureaucrats – few with any “real world” experience – in numerous state departments and agencies in response to frivolous pieces of legislation and many more court decisions, all producing many senseless “environmental” dictates.  

To illustrate, in addition to setting standards for traffic, well-drilling and tree removal – as well as many other idiotic requirements – CEQA played a central role in reducing the size of road leading into and out of Paradise, California which later trapped several individuals attempting to flee the deadly “Camp” wildfire there.  An estimated 86 people perished in that fire, including many in their cars.

About federal government, Hemmingway and Severino conclude:

“All too often, the unelected experts charged with making (the) hard calls are not the non-political technocrats they are billed as but are pursuing a partisan (or special-interest) end.”  

Back home, there’s no relief in sight.  California bureaucracies continue to grow – nearly 15 percent in the last 10 years – filling agencies with nameless, faceless and always unaccountable personnel.  And, there doesn’t seem to be any let-up in bills being introduced in the Legislature either – after trending lower the first part of the decade introductions are again on the rise; close to 3,000 annually.

Nationally and in California, we regularly rail against our elected leaders – and with good reason.  But, shouldn’t we worry more about the unelecteds?

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