appointees project

On May 4 and 5, 2012, Indiana University’ s School of Public and Environmental Affairs and Virginia Tech’s Center for Public Administration and Policy and School of Public and International Affairs sponsored a workshop on “Appointee Politics and the Implications for Government Effectiveness.” The workshop drew 52 guests from the Hill, policy circles, and academia for two days of discussion and debate at CPAP-Virginia Tech’s old town Alexandria campus.

See the full workshop schedule here.

Clay Johnson III, the Bush for President Transition Planner, gave the keynote speech titled, “Appointments in the President’s First Year: The Problem and Solution.” He graciously agreed to allow his remarks to be posted here as a wav sound file. Johnson’s commitment to good governance and his bird’s eye view of White House planning make him a leading voice in appointment nomination, confirmation, and vacancy reform. Johnson also served as Former Deputy Director for Management at the Office of Management and Budget at the White House. Martha Kumar supplemented Johnson’s remarks with her own advice for the future presidential transition based on the experience in 2008-09.

The two-day conference also featured off-the-record insights from reform advocates on the Hill, as well as insights from leadings scholars of the administrative presidency. Some of them have agreed to allow us to post their remarks here, in hopes that they might spark new thoughts about appointee politics. For others, we expect to see the work they presented at the conference in print very soon.Among the food for thought presented at the conference, David Nixon offered this tasty morsel on New Directions in Empirical Research. His big picture remarks on where appointee research is headed build on ideas in what has become known as the Gang of Five AJPS article on Separated Powers in the United States.

Richard Waterman cautioned participants that a primary focus on PAS appointments ignores much of the diversity in appointments and may provide a distorted picture of presidential appointment politics since appointments to lower level positions may function differently. In a paper he is working on with David Lewis, Waterman examines Schedule C and SES appointments in the Bush and Obama Departments of Labor. Obtaining the resumes of lower level appointees was no easy task, but it will be essential if scholars are to measure the work and personal characteristics of appointees.

Participants from congressional committees and the Congressional Research Service focused attention on the problems of confirmation delay and vacancies, and Mark Abramson of Leadership, Inc. reminded participants of the potentially constructive role that careerists can play in fulfilling appointees’ policy objectives, and in helping appointees look before they leap. Mark is instrumental in the National Academy of Public Administration’s new appointees website, which is aimed at scholars, the media, and appointees themselves. Mark drew on his long experience in Washington, and, for his most recent book, on interviews with 24 top level Obama officials. Appointees in attendance including Thomas Weko and Mary Jo Wills added the voice of experience, recounting how appointees themselves can sometimes be called upon to manage tensions among career staff and political superiors.

Robert Durant refocused the conversation around the place of appointee politics and the administrative presidency in American government more broadly. His summary of Lynn, Heinrich, and Hill’s Governance Framework formed the spine of his remarks. In a talk that could have been called “Politicization vs. Centralization,” Andy Rudalevige portrayed presidential expansion of appointed position as part of a politicization strategy that presidents sometimes choose over a strategy of centralization of control in the White House.

In a different vein, Patrick Roberts and Matthew Dull asked whether appointees are best understood as a single category, or as multiple types. They then tested the idea by analyzing oversight appointees–inspectors general, general counsels, and CFOs–as a type of appointee with its own history and problems.

Bill Resh began the conference with a presentation on a new dataset of presidentially appointed and Senate confirmed (PAS) appointees in all departments, single-headed independent agencies, and Executive Office of the President organizations during the administrations of George H. W. Bush, Bill Clinton, and George W. Bush, between January 20, 1989 and January 20, 2009. Bill and colleagues compiled more than 2,300 valid observations using the Office of Personnel Management (OPM), Government Accountability Office (GAO), and a variety of published sources. Bill is working on this dataset with Matthew Dull and Patrick Roberts and able research assistants. After very useful comments at the workshop on the dataset project, they hope to make the dataset widely available very soon. Stay tuned!

Another line of discussion focused on whether appointees were best seen from great heights, as patterns of large-N data, or whether appointee politics were best understood through the close observation of one or a few cases. Yet another version of the debate asked whether appointees were best studied in a snapshot of the present day, or as part of a process of an evolution of American government that produced particular virtues of political responsiveness and representation and particular problems of overt politicization, and lengthy confirmation times and vacancies.

Some scholars favored one position more than others, but Bert Rockman, Anne KhademianMartha Kumar, Marissa Golden, Karen Hult, Matthew Dickinson, and James Pfiffner all recognized that the study of appointees required these multiple perspectives.

The workshop brought together practitioners and scholars from different perspectives, and attendees reported hearing the comment below more than once, each time with the name of a different foreign tribe inserted in the blank (whether political scientists, public administration scholars, or Washington policymakers).

“Wow, these _________ really do know something about political appointees.”

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Kung fu legislation

The kung fu master teaches the student to use the smallest possible movement that achieves the desired result. Flailing around looks dramatic but is a waste of energy. The kung fu master rarely speaks, but each statement follows the same principle, using as few words as possible.

There are multiple ways to apply the teachings of the master to legislation. To give a concrete example, the SHIELD Act (Saving High-Tech Innovators from Egregious Legal Disputes Act of 2013) is an attempt to make as small a change as possible to existing law.

Here’s the problem it hopes to surgically eliminate: a company with no engineers and a lot of lawyers obtains a patent (typically for software), finds somebody who (typically by simple coincidence) uses the method described in the patent, then sends a letter demanding a licensing fee. A full trial can cost millions just to defend against, and until the suit is resolved it must be disclosed as a risk and potential liability for the company, so a licensing fee of $10,000 to $100,000 to make the pain go away is worth it for most companies. Few people think this sort of behavior promotes the progress of science and useful arts.

This blog summary of research by Colleen Chien is a good round-up of numbers showing that this isn’t a trivial problem. Depending on how you define patent-assertion entities (PAEs, or patent trolls for short), they are 62% of U.S. patent litigation, and growing.

How can we change the law to solve this problem? One read of the kung fu principle is that the change should be carefully designed to affect trolls and only trolls: we like individual inventors who really came up with something original but who don’t have the capital to put out a full implementation, and want them to keep on patenting things.

More on the problem, from the above-linked blog roundup by Professor Chien:

Though the PAE share may surprise some, patented technologies like software are the building blocks of modern commerce. “Low-tech” industries like funeral homes, advertising agencies, and retailers like JC Penny [...] are all taking steps to protect themselves from troll demands. Though historically a “tech” problem, in 2012 PAEs sued more non-tech companies than tech companies [...].

Those of us who were paying attention weren’t at all surprised: Math You Can’t Use, a book I wrote in 2006, has a full chapter on how allowing the patenting of software, which courts in the mid-00s were increasingly willing to do, will create liability on all companies, not just those in the narrowly-defined software industry. I bring up my own writing not to say I told you so (because, frankly, it’s not a good feeling), but to point out that there’s a larger problem. What is patentable has grown far beyond expectations, to the point that every company with a web site has patent liability. How will a carefully-circumscribed law about trolls change this? IBM doesn’t fit the definition of PAE the SHIELD Act is written around, but it has patents on web-related elements and will still has the ability to send licensing demands to funeral homes and retailers if it so desires. Practicing the typical web-based software patent requires only an appropriately-configured web site, so can a PAE set up its own web site for a few hundred bucks and then claim to be a practicing entity? [Conversely, if you're going to argue that setting up a web site is not a "substantial" investment, then how can any holder of a web-related patent ever claim to have made "substantial investment" and thus avoid the additional barriers put up by the SHIELD Act?]

When applied to modifying law, the principle of least action and the principle of fewest words actually contradict: the smallest change to law requires voluminous verbiage to pick out only those parties and activities that are disfavored, while a brief, simply worded change would have far-reaching implications.

A law clarifying that software and information processing without serious real-world effect is not patentable would be a short paragraph, but would have real effects on the sort of companies that have a lobbying presence in DC; the SHIELD Act is multiple pages of little details about how to define a non-practicing entity and what those entities are required to do when entering into litigation. Nobody is happy with how practicing entities are defined in the law, and you’ll find more than enough people (myself included) who think no definition exists that commits neither Type I nor Type II errors. Further, nobody said patent trolls are all idiots, and the smaller the range of prohibited action, the greater latitude they have to circumvent the law by inventing strategies that are still trolling but just outside the definitions. Perhaps we might see subsequent legislation two years from now that modifies the law just a little bit more to chase the trolls out of their new methods. Such kung fu surgery is why the tax code is an incoherent mess.

The Electronic Frontier Foundation is famously pro-software patent, but knows that patents are a thorn in the side of its constituents, who are very likely to oppose softpatents. They are thus always on the lookout for ways to propose small changes to patent law that still allow softpatents to flourish, such as being on record opposing software patents that fail non-subject-matter requirements like being obvious or badly specified. The SHIELD Act is thus exactly up their alley, and they support the SHIELD Act.

Summary paragraph: we like laws of few words and few loopholes, but the incentives consistently push for the production of verbose laws of minimal effect. The SHIELD Act is a fine example of such a law, and it has low odds of achieving even its stated effect.

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