David Burnham is, with Susan Long, director of the Transactional Records Access Clearinghouse (TRAC), a nonpartisan research organization associated with Syracuse University that provides comprehensive information about the federal government through aggressive application of the Freedom of Information Act (http://trac.syr.edu).
Far more federal investigators. Many more prosecutions of illegal immigrants. The continuing dominant role of the war on drugs. A decreasing emphasis on white-collar crime. More and more time required for the completion of criminal prosecutions. The unchanging reluctance of federal prosecutors to deal with brutal police officers. Fewer audits for corporate America.
Those are some of the important ingredients of the Clinton legacy. While President Clinton's influence was felt throughout the federal government, it is in the area of law enforcement that some of his Administration's most striking aspects can be documented. Considered together, they point to an Administration that, while talking about liberal values, was extremely successful in capturing the political support of a law-and-order constituency that for many years had mostly backed the GOP.
Often, the role of the White House was relatively minor. But since President Clinton has casually claimed credit for many good things that happened, whatever the size of his contribution, it seems only fair to judge his performance by that same standard. And based on such a review, it is clear that George W. Bush should have little trouble carrying on much of the Clinton tradition.
Headcount and Spending
Perhaps the most startling development of the Clinton years was the change in the basic makeup of the federal government. During the recent election campaign, one of Bush's favorite lines concerned Vice President Al Gore's alleged lust for big government. But as Gore noted in very general terms, the federal government shrank during the Clinton years. With the end of the cold war, the number of uniformed personnel in the military went down. Significantly, however, the 1999 federal payroll listed almost 25 percent fewer civilian employees--in relation to population--than it did in 1992. Meanwhile, the number of criminal investigators was increasing. In 1992 there was one criminal investigator for every thirty federal employees. In 1999 there was one criminal investigator for every twenty employees. With no room for discussion, Clinton is leaving us with a government that has become more concerned with enforcing the law and investigating the people, and less able to provide the public with a range of other services.
Given the overall decline in government employees, it is not surprising that direct federal expenditures did not increase during these years. In constant dollars, payments amounted to $5,694 for each American in 1992, $5,647 in 1999.
An agency-by-agency breakdown of the changes in federal spending, however, provides additional insight about the government's increasing enforcement and investigative roles. We have already mentioned the decline in military personnel. Measured in constant dollars this drop was substantial: from $1,034 per person in 1993 to $871 in 1999. But, accelerated in part by Vice President Gore's "reinventing government" effort, spending by many agencies not under the Defense Department umbrella, including the departments of Agriculture, Treasury and Housing and Urban Development, also declined. The EPA was down 15 percent, other regulatory agencies dropped by 29 percent, the Energy Department was off by 28 percent and NASA dropped by 21 percent.
But hold on. A few agencies bucked the downward trend. Leading this much smaller pack was the Justice Department, where constant per capita spending jumped by 72 percent.
Why is this? Well, with Clinton and the Republicans competing to outspend each other in funding the always popular "war on crime," the startling success of Justice in the budget battles was predictable. Although the Immigration and Naturalization Service (INS) and the Bureau of Prisons were among the biggest winners within the department, it is also worth noting that the Clinton Administration's FBI is larger today--both in raw numbers and in relation to population--than at any time in history, including World War II, the cold war and the period of civil disturbances related to the Vietnam War and after the assassination of Martin Luther King. Individuals listed with the occupational specialty of "intelligence officer" nearly quintupled, jumping from 224 to 1,025.
More federal enforcers and more enforcement dollars might be assumed to translate automatically into more federal prosecutions. But over the years, while the number of prosecutions has edged higher and higher, the annual number of such actions has varied: It was relatively high in 1993, slumped significantly in 1994 and then began going up again. According to Justice Department data, upon which most of this analysis rests, the prosecution count jumped sharply in 1998, to 82,071. (Because the department has withheld 1999 data from us, enforcement information about the last full year of the Clinton Administration is not now available. But court data suggest that in 1999 federal prosecutions reached an all-time high.)
§ Immigration. Immigration matters made up a major part of the recent spurt in indictments. In fact, such actions more than doubled during the Clinton years, jumping from 7,335 in 1993 to 14,616 in 1998. (Once again, court data indicate that immigration prosecutions continued their dramatic rise in 1999.) The recent jump in immigration prosecutions is the major reason that the overall number of federal court cases has increased at a faster rate than at any time since the Nixon Administration launched the war on drugs and ordered federal prosecutors to go after Vietnam War draft dodgers. The surge in immigration prosecutions followed an agreement by the Administration and Congress to step up border control efforts through the simple expedient of hiring many more INS agents.
§ Drugs. For many years the effort to combat the sale and use of illegal drugs has dominated the federal enforcement agenda. From 1993 to 1998, for example, drug cases consistently made up more than one-third of all federal prosecutions. By comparison, fewer than one out of ten prosecutions during the same period were classified by the Justice Department as involving official corruption, environmental and regulatory matters. The sharpest increases in the annual number of federal drug prosecutions came during the Reagan and Bush years. By contrast, in the early Clinton years drug prosecutions actually declined slightly and then began inching higher, reaching 30,014 in 1998. This total is more than three times the 8,938 such actions in 1981. (The overwhelming impact of the drug war on the federal system is hard to exaggerate. In recent years, for example, drugs have been the criminal offense involved for 42-45 percent of all people sentenced to prison.)
§ Guns. By contrast, there was one specialized area that went through an extraordinarily steep decline during the same period: the enforcement of the nation's gun laws by the Bureau of Alcohol, Tobacco and Firearms. Referrals by ATF for federal prosecution declined by 44 percent from 1992 to 1998. (In fairness, the court data suggest that an increase in weapons enforcement actions that began in 1998 continued in 1999.)
A key factor behind the surprising drop in ATF referrals during most of the Clinton years was a 14 percent cut in ATF criminal investigators, mandated by Congress but accepted by the Administration's strategists. Many experienced enforcement officials believe that a second important explanation for the collapse of the ATF was its 1993 raid on the Branch Davidians in Waco, Texas. Their argument: The widespread public criticism of this flawed action profoundly undermined the agency's morale and its will to enforce the law. But no one should forget that the ATF raid itself and the FBI's subsequent horrific effort to end the hostage situation were also dismal parts of the Clinton legacy.
The sharp decline in ATF referrals in the 1992-98 period became a significant political issue in the presidential campaign when the Republicans and the National Rifle Association teamed up to attack the Administration's enforcement priorities. With some legitimacy they joined in asking why Clinton used a series of shooting incidents during the period to make high-publicity requests that Congress pass new gun-control laws when his Administration was not fully enforcing the ones already on the books. Because Congress was ultimately responsible for cutting the ATF budget, the Republican criticism also contained a good dash of hypocrisy.
§ Police Brutality. Sometimes the priorities that go unchanged, the dogs that don't bark, are as revealing as those that do. One example: When local jurisdictions fail to punish brutal police officers and prison guards, the federal government has the option of bringing criminal charges against the offenders, usually under one of two laws. But for many years federal prosecutors have been reluctant to pursue this approach. During the past twelve years, federal prosecutors appointed by both former President Bush and President Clinton have obtained indictments in only 3 percent of all such matters referred to them by the FBI. (By comparison, federal prosecutors have consistently prosecuted a much larger proportion of the matters presented to them concerning another kind of government abuse--official corruption.) In 1998, for example, 48 percent of these other matters resulted in an indictment. Thus the Clinton legacy in this sensitive area simply continued the federal practice of the past quarter-century under both Democratic and Republican Presidents.
The Wheels of Justice
In addition to the specifics of what laws were or were not enforced, the data we have obtained and analyzed also highlight broader problems in the federal justice system. One concerns the startling long-term increase in the time required to complete a case in federal court. At the beginning of the Reagan Administration the median time was ninety-nine days. At the end it was 130. At the beginning of the Bush years the median was 141 days; by the end it was 160. The pattern continued during the Clinton Administration: 168 days in 1993, 205 in 1998. Although the legislature writing the laws and the judges administering the courts bear some responsibility for this explosive change, the vast discretionary powers of the prosecutors appointed by Reagan, Bush and Clinton make them the first among equals.
The doubling of federal prosecution time raises troubling management and budget questions for the Justice Department and the courts. But for those who believe in the American ideas of fairness, and for the hundreds of thousands of defendants being processed through the federal assembly line, there is a second obvious question: Can anyone doubt that justice delayed is justice denied?
The initiation of criminal charges is not the only way the government works to persuade the American people to do the right thing. A second option is for the government to impose administrative sanctions outside the courts. One of the most conspicuous users of this second kind of federal authority is the Internal Revenue Service. Fully acknowledging that IRS policies are heavily influenced by the decisions of Congress, the tax enforcement patterns of the past few years remain a major part of the Clinton legacy, especially given the vast reach of this agency.
One striking reality here is the sharp decline in all kinds of tax enforcement. During the Clinton years, the overall audit rate for individuals has dropped by half, from 0.66 percent to 0.31 percent. During the same period, corporate audits went through a similar decline--2.9 percent in 1992, 1.51 percent in 1999. The decline in the audit rate for the largest corporations--those with assets of more than $250 million--is also noteworthy. In 1992 more than half of these giants were audited. In 1999 the rate had dropped to only one in three.
As just noted, the Clinton Administration is not solely responsible for the broad degradation of the IRS's enforcement presence. During the past few years conservative forces in Congress have mounted an intense rhetorical attack on the agency, which resulted in budget cuts requiring a reduction in the number of expert revenue agents who have the skills to audit upper-income and corporate tax returns. The tax man has in fact been taking it on the chin for a long time. After a substantial buildup of the IRS during the Reagan years, full-time staff is now 31 percent smaller than it was in 1988, when the cutbacks began.
This decline, and other factors that hit the agency in the early 1980s, have resulted in a dramatic shift in how the American people experience the IRS. In fact, the proportion of taxpayers now required to go through the traditional "face to face" IRS audit is five times lower than it was in 1981.
Perhaps the most surprising Clinton-era development occurred last year when--reversing past practice--low-income taxpayers suddenly stood a greater chance of being audited than high-income taxpayers. Because wealthy taxpayers obviously have more to hide from the government and better opportunities for hiding it, the IRS has historically focused its audits on the rich. In 1999, however, the audit rate for those making $100,000 or more was only 1.15 percent. At the other end of the scale, the rate on simple returns reporting $25,000 or less was 1.36 percent.
The data suggest that the federal government President Clinton leaves behind has become less able to serve the traditional needs of the American people but better equipped to investigate and prosecute them. Clinton gave moving speeches about his concern for African-Americans. But when it came to dealing with brutal police officers--a matter of special concern to black Americans--his government followed the minimalist approach of the Reagan and Bush administrations. After almost every major shooting incident of the past few years, Bill Clinton called for new gun-control programs. But when it came to enforcement, his government seemed to lose its way.
Assuming President-elect Bush succeeds in getting John Ashcroft as his Attorney General, the question is just how much of the current policy this outspoken conservative will actually want to change.