Why Government Fails So Often: And How It Can Do Better (17 page)

Such arguments also help to explain the trend toward “privatizing”—that is, contracting out to private profit or nonprofit providers—a growing number of basic functions traditionally performed by governments, such as corrections, waste management, charter schools, water and electric supply, revenue collection, some highway maintenance, and so forth. (As noted in
chapter 1
, market actors perform many functions that are governmental in other advanced societies.) Studies indicate that these services can usually be provided better and more cheaply by private groups due to competition, more access to capital, nonunion labor, technology, cost consciousness, and other efficiencies.
²³
How accountable these privatized services are to taxpayers and consumers is another matter, for agency supervision through contract provisions, periodic monitoring, and other accountability techniques varies in its intensity, credibility (see
chapter 6
), and effectiveness. Abuses are most likely to occur when the target populations are poor, vulnerable to predation, and politically weak, and when oversight is lax. (Indeed, such abuses occur whether the providers are private or public.) Investigations by officials and
journalists yield many blistering critiques and even some criminal charges, but one suspects that these publicized exposes are but the tip of the iceberg of abuse.
Chapter 6
, on managing fraud, waste, and abuse, discusses these problems more fully.

PROTECTION OF INDIVIDUAL RIGHTS

Long before Alexis de Tocqueville and ever since, foreign observers have been struck by Americans’ faith—some view it as a naive and unwarranted faith—in the power of individuals to shape their own destinies through their exercises of freedom. Americans, far more than Europeans, believe that success in life is determined by their own efforts rather than “forces outside their own control.” In 2012, according to the Pew Research Center, fully 77 percent of Americans feel that way; even in the United Kingdom, the European country that most felt the same way, only 57 percent took that view, as did 45 percent of the Chinese.
²⁴
Compared with other peoples, Americans have especially cherished “negative” liberty, understood as freedom from government restraint, more than “positive” liberty, which imagines government as the source and shaper of moral community and guarantor of the resources necessary to develop individual capacity and social fulfillment.

This belief in individualism causes Americans to place an unparalleled emphasis on the notion of individual rights in every area of social life, defining public issues as matters of conflicting rights rather than of different preferences.
*
This emphasis also makes them correspondingly suspicious of group rights like affirmative action.
²⁵
It also causes Americans to disparage their governing institutions, especially Congress (whose approval rating reached historic lows in 2013) and the bureaucracy, even as they revere the constitutional system that has created and sustained these institutions. When asked whether
they “completely agree” that the government should provide a safety net, only one-third of Americans say “yes,” compared to 60 percent or more in most European countries. This ethos of individualism is manifested in almost all of the institutions and public policies discussed in this book. Religious pluralism, with a marked emphasis (even in Catholicism, to an extent) on decentralized administration, congregation-centered organization, and doctrines of individual access to Scripture and God, is probably the most important and historically continuous of these individualistic manifestations. But much of the same pronounced individualism is also true, mutatis mutandis, of the American economy, education systems, public administration, health care system, law enforcement, and much, much more.

This cultural commitment to individual rights is most evident in the extraordinary power of American courts, which the public esteems as the ultimate custodians and protectors of those rights. The link between this obsession with rights and the extent of judicial authority is stronger and deeper in the United States than in any other constitutional democracy—including countries such as Canada and Germany, whose judiciaries are already powerful and becoming more so.

This link goes far to explain several important features of our policy system. First, as legal historian Lawrence Friedman observes, “Other countries may have as much law as the United States, if we define law broadly enough. But they have much less lawyering. They are also less rights-conscious. They give more power and discretion to administrative agencies, and they make it harder to challenge these agencies in court…. Only the United States feels it is in the grips of a litigation crisis.”
²⁶
As James Q. Wilson put it, “we are not more litigious because we have more lawyers: we have more lawyers because we are so litigious.”
²⁷
Private lawyers and the clients and causes they represent thus play an outsized role in the policy process.

Second, the open-ended nature of most legal texts, particularly the Bill of Rights and the due process and equal protection clauses, both invites and demands judicial interpretation, which often amounts to judicial lawmaking. (The line between them is itself a matter of
interpretation about which reasonable lawyers vehemently disagree.) This inevitably injects even deferential judges into the policy-making process.

Third, public law litigation, relatively undeveloped in other democracies’ legal systems but widespread here,
*
empowers individual and class plaintiffs to increase individual influence on the policy-making process by getting courts to shape statutes and administrative rules and grant additional remedies. Almost all law-and-policy scholars who have carefully studied this policy-making-through-litigation phenomenon condemn the courts’ policy incompetence, the collateral damage that their interventions have wreaked on the effectiveness of government programs, and the culture of “adversarial legalism” (in Robert Kagan’s phrase) that supports it. These criticisms include: long implementation delays, increased regulatory costs, inconsistent interpretations by different courts, a rigidified decision process, technical ignorance, invading agency discretion, displacing agency expertise, ignoring or misunderstanding congressional intent, distorting regulatory priorities, advantaging certain political groupings over others, increasing policy uncertainty, elevating the interests of individual litigants over those of society at large, and many others—most of this in the name of protecting individual rights against official error.
²⁸
These large, chiefly adverse consequences of policy making through litigation, then, may plausibly be seen as a disadvantage of our veneration of individual rights.

The rights obsession (not too strong a word) of Americans bears another disadvantage. Legal scholar Mary Ann Glendon argues that this pervasive “rights talk” impoverishes political discourse in a number of troubling ways. Citizens, she claims, see almost all social controversies as a zero-sum clash of competing rights instead of a field of competing interests in which accommodation is desirable. This discourse engenders litigation in which the courts often formulate rights
in absolute terms, making them difficult to compromise. Such a rights culture, she argues, emphasizes a radical individualism in place of social responsibility, self-assertion instead of dialogue and fellowship, and conflict rather than collegiality, creating a winner-take-all ethos that is “inhospitable to society’s losers.” Glendon, a prominent communitarian and advocate of Catholic social doctrine, finds the American approach to rights far less congenial in these respects than that of European polities.
²⁹

INTEREST GROUP PLURALISM

As in all democratic political systems (and even in some autocracies, like China
³⁰
), vigorous competition among groups for membership and other resources, along with competition among these groups for influence over the shape of public policy, are central dynamics of the governmental process. The term
pluralism
hardly seems adequate to convey the remarkable number and diversity of these interest groups, or the extent of their influence on policy makers. James Madison called these groups “factions” and in his “Federalist No. 10” famously described how their self-interested activities could, in a large republic like ours, advance rather than paralyze democratic government.
³¹
Almost two centuries later, political scientist Theodore Lowi inveighed against their success at penetrating policy process and outcomes at the expense of the less organized public interest.
³²

Interest groups affect every stage of policy making: idea generation, information flows, agenda formation and prioritization, recruitment and selection of officials, public education and mobilization, the legislative and regulatory processes, budgeting, implementation, and even post-hoc evaluations of program effectiveness. The excerpt from James Q. Wilson and John DiIulio quoted in
chapter 1
notes that the “new system” has coincided with, and to some extent been caused by, a substantial growth in the number of Washington-based interest groups; about 70 percent of them opened those offices after 1960, and nearly half did so after 1970. Wilson and DiIulio attribute this proliferation to four main factors: (1) economic changes that created
new interests and redefined old ones; (2) government encouragement of group formation; (3) organizational entrepreneurship; and (4) the larger government agenda.
³³

Interest group political activity is a mixed blessing. As I have argued elsewhere, it is both inevitable and beneficial in a liberal democracy.
³⁴
But it can also promote unjust, inefficient, and ineffective policies. Although generations of scholars have studied how interest groups operate and what goals they pursue,
³⁵
they cannot show conclusively how much these groups actually influence outcomes. Examples of apparent interest group political efficacy coexist with examples of the groups’ failure to get their desired policies. Interest groups dedicate most of their campaign contributions and lobbying efforts to legislators they already agree with, helping them make their case; they spend little time trying to persuade opponents.
³⁶
Causality is almost impossible to prove. All that the studies can tell us with confidence is that “lobbyists often get at least some of what they want and more than they would have gotten had they not entered the fray.”
³⁷

Prominent among these interest groups—but often ignored by commentators on interest group pluralism (including Lowi)—is the government itself. The government, of course, is not a single entity; rather, it is an almost unimaginably complex congeries of institutions and actors each pursuing some combination of goals. To conceive of the policy-making process as one in which the government magisterially sits above and presides over clashing interest groups is a fundamental category mistake. In reality, the discrete components of the formal government—elected politicians, bureaucracies, civil servants, legislative staffs, procurement officials, and many others—are active participants in the political bargaining process, asserting their own institutional prerogatives and interests as energetically as private organizations do. Sometimes these government interests are closely—even inextricably—allied with private ones, as with the “military-industrial complex” of which president Dwight D. Eisenhower warned.

In the current economic crisis, public employee unions are among the most powerful of these progovernment interests. Despite the limitations of the Hatch Act, the unions’ political influence on both
Congress and executive branch policy makers is substantial, deriving from their numbers (especially in Maryland and Virginia, where many of them live and vote), their financial war chests, their lobbying skills, and their provision of many essential public services (as with air traffic controllers).
³⁸
This influence has at least four far-reaching effects on government. First, these unions heavily support Democrats, who generally seek to expand government.
³⁹
Second, their compensation, pension benefits, and work rules are among the major forces that raise program costs. The Postal Service is the most notorious of these political-fiscal battlegrounds at the federal level, but the conflicts are even more intense at the state and local levels, where governments are required, often constitutionally, to run balanced budgets.
⁴⁰
Because their pension plans tend to be much more generous than private pensions (the richer ones are called “Cadillac plans”), they are at the center of bankruptcy risks in Detroit and other municipalities.
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Third, the unions’ opposition to the programmatic and budgetary reforms that are essential to the nation’s long-term fiscal solvency makes those reforms very difficult to enact. Fourth, and most important, public employee unions are the strongest interest groups pressing vigorously for a larger government workforce and programmatic agenda. Their raison d’être, after all, is to increase the number, security, compensation, and working conditions of government jobs, thereby enlarging their membership and revenues. From the narrow perspective of their organizational self-interest, these goals will trump fiscal balance and policy effectiveness. We should not be surprised, then, to find the American Federation of Government Employees denouncing proposals to reduce federal prison overcrowding, to cut corrections budgets, and to privatize prison management.