I don’t need to convince the readers of these pages of the widespread belief that federal administrators are appointed, not elected. Nevertheless. Ruling that “double-for-cause” removal is unconstitutional, Chief Justice Roberts explained that the President must have control over administrators because people vote for the President, but “people do not vote for ‘Officers of the United States.’” Justice Scalia worried about “unelected federal bureaucrats” in City of Arlington v. FCC. Dissenting in INS v. Chadha, Justice White argued that by empowering Congress to better control agencies, the legislative veto protected against “unaccountable policymaking by those not elected to fill that role.” The list goes on.
And yet, there are elected federal administrators. There are currently over 7,500 elected individuals serving 3-year terms on over 2,000 committees in almost every county across the country. These committees are part of the United States Department of Agriculture’s county committee system. What do they do?
The Powers of Elected Administrators
The committees have shaped constitutional doctrine, for one thing. It turns out that these elected administrators gave rise to Wickard v. Filburn, which defined the outer limits of the Commerce Clause. Farmer Filburn challenged USDA’s authority to fine him for producing wheat beyond the USDA quota. A USDA county committee first investigated Filburn’s farm to discover his overproduction and then imposed the fine. Filburn challenged the fine, and the rest is history.
Today, the committees carry out a range of tasks. USDA promotes the committees as advisors, responsible for being the voice of farmers within government. In fact, the county committees are not just advisors, they are full-fledged administrators that make significant adjudicatory and policy determinations about the applicability of federal programs. For instance, a county committee will set a “final planting date” for a given crop, the date by which a farmer must plant in order to be eligible for certain federal revenue protection. This is prospective, general, jurisdiction-wide policymaking. If a farmer’s crop fails, she may seek federal aid from the same elected county committee, which, in an informal adjudication, could confirm that she planted before the “final planting date” and is therefore eligible for federal support.
In addition to serving as a go-between, sharing information on federal programs among farmers and federal decisionmakers, promulgating jurisdiction-wide policies, and adjudicating a variety of disputes, the elected committees also hire and fire staff, manage finances, and oversee USDA property. In short, these committees are real administrators. They have considerable responsibility and are Officers of the United States (inferior officers because higher-ups within the USDA have final say over their decisions.)
There’s nothing unusual about the administrative responsibility of these committees. Except they are elected!
The Origin Story
The committees have existed in various incarnations since the New Deal. Congress and the Roosevelt Administration advanced plans to support agriculture by compensating farmers for limiting their output, thereby reducing supply and raising prices. The plan required transitioning USDA from a research and education agency to a regulator with operations in every county. On top of the vast new reach, USDA needed buy-in from farmers. The county committees could address both concerns. With a federal office in each county, the USDA could maintain close contact with farmers. By populating these offices with elected farmers, the USDA could gain the confidences of a particularly independent industry.
No doubt practical politics were part of turning to elected administrators. But Congress and the USDA could have achieved much the same by appointing rather than electing farmer-administrators. A few other perspectives might help explain the electoral structure. First, Jeffersonianism was a widespread ideology in the New Deal USDA. For Jeffersonians who believed farmers should govern the country, it was natural to put them in charge of their own regulatory programs. By relying on elected administration, the Jeffersonians assured wider self-governance within farm communities. Second, the USDA also had its share of adherents of deliberative democracy. These leaders saw local administration not as unique to or necessary only in farm country, but as the best way to foment communicative, self-realizing, collaborative democracy. Farm programs were simply an opportunity to advance the deliberative experiment. The shortcoming of deliberative democracy as the explanation for elections is that localism helps deliberation, but it is not obvious that elections would. Thus, a third justification for the electoral turn is corporatism. Corporatism is a form of pluralism in which government recognizes heterogeneous interest groups and grants them some degree of public authority and self-governance. Corporatism was widespread during the New Deal and helps explain the decision to allow farmers to elect regulators from their own ranks.
There is still, however, a more troubling explanation for elected committees: Racism. Powerful, wealthy, white farmers wanted elected committees in order to maintain control. Poor farmers, tenant farmers, and black farmers in particular were excluded from the electoral process. Wealthy white farmers were in charge and were able to distribute funds, promote technologies, and generally favor their friends but could justify their accumulation of power by hiding behind the electoral luster of the committees.
When I first began learning about these committees, I had the chance to ask Nick Parrillo what he thought about elected administrators. He said something to the extent of “if there are elected administrators it might force us to reconsider everything we think we know about administrative law.” I took that as a loud call to continue research into electoral administration and I decided to write two articles about it.
The Georgetown Law Journal published the first article last week. That article, like this post, is a descriptive account of the USDA’s elected county committees. I will address some of the normative implications of this under-the-radar system in my next paper. Suffice it to say, the implication is not that our administrative state is rife with elected agencies.
There are a few examples of elections within the Department of Labor, Housing and Urban Development, the Federal Home Loan Bank system, and elsewhere within USDA. But these elections are almost exclusively to appoint advisors who do not make or adjudicate federal policy. The only other example that comes close to the USDA county committees involves another set of USDA committees that also have real powers, but not real elections. The county committee system seems to be the only example of genuine administrators who are genuinely elected.
A single example of elected administrators would be only a passing curiosity were it not nearing its 90th year and had it not sustained, impoverished, and enriched countless farmers. Indeed, deeper and more frequent attention is worthwhile and, as my follow-up article will argue, administrative elections force us to more carefully consider the sources of authority, legitimacy, and majoritarianism in the administrative state.
Joshua Ulan Galperin is a Visiting Associate Professor of Law at the University of Pittsburgh School of Law.