The Risk of Rule by Appointment

If recent statewide polls are any indication, former Northwest Airlines chief Al Checchi is having a tough time convincing voters he’s an outsider whose business background gives him an advantage over mere politicians. Checchi’s “real world experience” is rated no better than Rep. Jane Harman’s congressional experience and only a little better than Lt. Gov. Gray Davis’ government experience. But the colors of the outsider fit Checchi with tailored precision in one important respect. Unlike the Mike Huffingtons and Ross Perots of politics, whose campaigns feasted on anti-government bromides, Checchi has a relatively clear and detailed concept of how he wants to remodel state government: He wants to be California’s CEO.

Central to this vision are the people whom he will pick to help him. Checchi often talks of 2,400 appointments available to the governor, through which the chief executive can put an imprimatur on the policy-making apparatus of state government. These appointees would, asserts Checchi, allow a governor to replace governance-as-usual with the enlightened model of corporate America. An entirely new culture of government could be born.

As appealing as it sounds on the surface, Checchi’s dream team raises questions about the limitations--or lack thereof--on gubernatorial power. Is it really possible for Checchi, or any governor, to remake state government in his or her image? To the extent it is possible, where does the branch of government closest to the people--the Legislature--fit in? Does rule by appointment promote or circumvent representative government?

In the past three decades, and especially in seven-plus years of Gov. Pete Wilson, the power of the governorship has expanded dramatically. A governor’s primary weapon used to be the power of persuasion and the line-item veto. Today, a strong chief executive can extend his influence into every county and school district in the state. A key component of this influence is the governor’s appointive power. Checchi’s 2,400 number low-balls it somewhat: According to Wilson’s office, there are about 3,500 people at various levels of state government who are appointed by the governor or by his department directors.

By all accounts, the most influential of these are the 500 or so officials directly appointed by the governor. These include agency and department directors, their immediate subordinates, communications officers, budget analysts and the roughly 100 people who work directly in the governor’s office. Another 300 or so appointees are made by agency and departmental directors themselves. These appointments are the “top management” who give about 270,000 civil-service employees their orders. Through these appointments alone, a governor can, in theory, control the day-to-day workings of every department.

In addition to paid appointments, a governor also is empowered to fill up to 2,600 vacancies on some 375 different boards, commissions, committees and task forces. A lot of these gubernatorial appointments wind up in the hands of friends, business associates, former staffers, campaign supporters and even former legislators. These mostly unpaid appointments range in relative importance from county fair boards to the UC Board of Regents.

Since the terms of appointees rarely overlap that of the governor, it generally takes a few years before a new governor can sweep aside previous appointees and put his own stamp on the boards. But once the new appointees are in place, a governor can have a strong impact on some of that board’s decisions. The best recent example of this was the UC regents decision to eliminate all affirmative action programs. The effort was led by Wilson appointee Ward Connerly, and individuals appointed or reappointed by Wilson formed the voting bloc that allowed the governor to cast the deciding vote.

The most important, and visible, check on any governor’s power of appointment is the Legislature. In addition to passing all the laws and enacting the state budget, the Legislature, specifically the state Senate, has a direct influence in the appointment process by virtue of its confirmation power over some 750 different gubernatorial appointments. Yet, the Legislature’s effectiveness as a counterweight to executive power is dribbling away with each passing year. The reason: term limits.

Eight years after passage of Proposition 140, there are only five members of the state Assembly who have ever legislated with a governor other than Wilson. The only reason there are five is that former members who had some time left on their term-limit meter returned to Sacramento to serve again. While the state Senate does have more experienced members, it generally has followed a tradition of respecting gubernatorial appointments and rejecting relatively few. Even the state budget process, the one area where lawmakers have an unambiguous role to play, has, to some extent, been hijacked by Wilson. No longer content to just line out what he doesn’t like in the Legislature’s plan, Wilson demands that most major decisions be negotiated by himself and the four legislative leaders.

Extragovernmental forces such as lobbyists can counterbalance executive excess. But lobbyists’ power largely derives from their ability to influence the Legislature. If the Legislature is less powerful, lobbyists naturally will train more of their time and attention on the administration, thus serving only to strengthen the governor’s hand.

There is a third branch of government known to clip an executive’s wings on occasion--the courts. During the Wilson years, judicial intervention has forced the governor to rescind the diversion of tobacco-tax money, curtail the use of private contractors for road design and give back to schools more than $1 billion in revenue diverted during the budget crises of the early 1990s. But even here, a governor is far from powerless. After all, there are hundreds of judicial appointments to be made by a governor, from municipal court judges all the way up to the justices of the state Supreme Court. When he was battling the Legislature over redistricting in 1991, Wilson refused to negotiate and eventually vetoed everything the Legislature threw at him, secure in the knowledge he’d get better treatment from a high court dubbed by one observer as “Pete’s law firm.”

There is one other power-checking group for which no governor, including Wilson, has developed a “work around”--the bureaucrats. In California, there are about 270,000 of them, all part of an immensely complex civil service that has developed since the early days of the century. The laws protecting their jobs and rights are, in some cases, embedded in the state Constitution, making them virtually impossible to change. There is even a constitutional limit on the total number of civil-service jobs that can be made into “exempt” or politically appointed jobs. The rise of protections for whistle blowers makes it possible for employees to rat on their superiors without any real fear of retribution.

As long as the vast majority of personnel decisions are, in effect, out of his or her hands, no governor can ever hope to have the kind of power that a corporate CEO has. In this respect, at least, Checchi’s attempt to draw an analogy between his corporate domain at Northwest Airlines and the government of the world’s seventh-largest economy seems simplistic and is doubtless one reason why his rivals have not parroted his grand promises of bureaucratic cuts and insurance rate reductions.

If it turns out that the most effective check on executive power is a self-perpetuating bureaucratic behemoth, California voters will have bigger things to consider than whether or not their gubernatorial candidates voted in presidential elections. They will have to decide whether any of the individuals running can be trusted with the raw power wielded by the state’s chief executive. The success of representative government depends at least as much on the ethos of its practitioners as it does on the institutions themselves. The next governor almost certainly will have more real power than any predecessor. How far that governor chooses to take this authority will determine whether or not there is any role left for the Legislature, as a whole, once term limits completely cleans out all semblance of institutional memory or policy expertise.