Why Government Fails So Often: And How It Can Do Better (60 page)

Several constitution-level changes might be designed to mute the strong parochial bias of our national politics. Lawyer and political scientist Sanford Levinson, for example, takes particular aim at the Electoral College and the equal representation of all states in the Senate
, regardless of their population.
⁸
Were we writing on a blank slate today, he argues, we would not tolerate a Senate in which Wyoming has the same representation as California despite their seventyfold difference in populations, much less an Electoral College that extends this gross distortion to a process that precludes direct popular election of the president. I accept Levinson’s “blank slate” argument. It does not follow, however, that any deviation from the one person, one vote (OPOV) model of representation is undemocratic. For many reasons—beginning with the need to hold the Union together, and the desire to give greater weight to certain interests that otherwise would always be outvoted—a democratic polity might choose to make certain concessions to some minority groups, such as agricultural interests, that are valuable parts of our national community. We certainly cherish equal representation in the OPOV sense, but it is not our only political value and it may properly be made to yield a bit to others.

The important question here is how much it must yield. This a matter of degree about which reasonable people will differ, and it is constrained by the great advantages of decentralization. With Levinson, I believe that the Senate, and indirectly the Electoral College, now magnify a constitutional, institutional, and cultural bias that favors local over regional and especially national interests.
*
This pronounced parochialism shapes, and to a degree deforms, many of our federal programs by allocating resources and authority away from the areas (including localities) where most people live and where their needs arise. Given urban and regional voting patterns, changes that modestly reduced this bias—by affecting representation in the Senate but also by rule changes that facilitated cloture, for example—would likely move public policy, and national politics more generally, in a liberal direction. But the justification (for me) lies in securing more political accountability and equality. If so, let the votes fall where they may.

Another reform that would mute the existing localistic bias would be to give the president line-item veto power. Depending on the form
that such a change takes, it may or may not require a constitutional amendment. It would tend to counteract the strong propensity of members of Congress to logroll for wasteful pork barrel projects for their constituents at the expense of the national interest in efficient priorities in government spending.
*
It would also affect budgetary politics more generally. More generally, it would significantly increase the president’s power to protect what he views as national interests (as well as other political concerns) in his interactions with Congress. But the political and policy effects of this shift would extend well beyond appropriations legislation to political tactics more generally, which makes its effects very difficult to predict. Still, the fact that the vast majority of states already give their governors this authority in one form or another is somewhat reassuring.
⁹
Although states’ political systems do differ from the federal system in many ways, their experiences would make this change at the federal level less of a leap in the dark than would, say, reforming the Senate’s essential structure, which has no such precedent.

Strong arguments also exist for a congressional districting process, now conducted largely by state legislatures, that reduces the present wholly politicized partisan and racial gerrymandering of House constituencies, one in which legislators in effect decide who will vote for them. Close students of the districting process, which is now limited only by a few weak constraints imposed by Supreme Court decisions, believe that it produces members who are less accountable to the median voters in their districts, whose only real challengers are in party primaries dominated by a relatively small number of voters at the ideological extremes, and whose seats are otherwise quite safe. Several states have sought to remedy this abuse by enacting
relatively
nonpartisan districting commissions—“relatively” because some person or body with political authority must select commission members—that political scientists are now assessing. In the
most recent assessment of this experience, districting expert Bruce Cain finds that although they have reduced line-drawers’ conflicts of interest, they have not eliminated the partisan wrangling and commission deadlocks.
¹⁰
Whether instituting such a reform at the federal level would require a constitutional amendment would depend on its precise form.

Campaign finance regulation is a perennial favorite among structural reformers, but it is so replete with political, consequential, and constitutional difficulties—many discussed in
chapter 7
—that I conclude that the only reforms that merit unequivocal support are those that would give challengers access to free television and mail privileges that would increase their access to voters in ways that incumbents already exploit, magnifying their already considerable advantages.

CROSS-CUTTING REFORMS

Chapters 3
through
10
identified many deeply embedded defects that contribute to government ineffectiveness and failure. For analytical purposes, I analyzed these defects under a number of different headings: policy process; incentives; irrationality; information; rigidity; lack of credibility; mismanagement; misunderstanding of markets; implementation; and bureaucracy. In the rest of this chapter, I shall use these same headings to organize my presentation of reform ideas that could improve policy outcomes across the board. (These headings overlap somewhat; some reforms could fit under several of them.)

POLICY PROCESS

Any first-year law student quickly learns that the relationship between procedure and substance is a very close one. Indeed, they are so tightly coupled that separation is possible only at the conceptual or definitional level. Nowhere is this fact clearer than in federal policy making. Earlier chapters have demonstrated that substantive policy coherence and effectiveness are almost always hostage to decision
processes in which Congress plays a highly interventionist set of roles. These congressional roles are firmly embedded in our political culture, constitutional framework, and commitment to electoral responsiveness and accountability. They could only be altered significantly if we moved to an altogether different kind of government structure—say, a Westminster-type parliamentary system in which parties were stronger, members were far more politically dependent on the chief executive than they are now, and policies were more coherent (but not necessarily more effective).
*
Even if such a transformation were possible, which I strongly doubt, it is impossible to show that it would actually improve policy outcomes without sacrificing some deeply cherished features of our current system.

That said, the preceding chapters have shown that Congress is the single greatest
institutional
source of government failure. Its poorly designed policies, tendency to subordinate broad but diffuse interests to narrow but well-organized ones, rigidity and inertia in the face of new challenges, lack of credibility in maintaining earlier policy commitments, insouciance about implementation problems, gerrymandered representation system, and other defects give it much to answer for. Unsurprisingly, astute critics have advanced plausible, thoughtful proposals for its fundamental reform, and I cite some of them in an endnote.
¹¹
However, I do not present them here for two reasons (other than space). First, they are political nonstarters. Congress is well aware of its poor reputation with the public, but shows no interest in reforming itself. Nor can outsiders do it without a well-organized rebellion by voters that is nowhere in prospect. Second, the earlier point about the risks of tinkering with complex, poorly understood human systems applies in spades to our Congress-centered politics whose countless moving parts will adjust opportunistically and in unforeseen ways to any reform.

Instead, I prefer to focus this section on reforms to the policy-making process that might gain Congress’s assent (or not require it) and that one can more confidently predict will improve substantive policy outcomes. I present them in no particular order.

The General Accountability Office is one of Congress’s most valuable institutions, providing auditing, investigation, advice, and assessments on a vast array of programs that often highlight problems in policy design or implementation that enrich public policy debates and often arouse Congress to action. Resources for its core functions should be expanded, and its findings given greater publicity. The same is true of the offices of inspectors general in the departments, whose independence and investigation capacity can alert the public to needed policy and administrative changes.

Congress’s own procedures might better facilitate collegiality, which should in turn foster compromise. Norman Ornstein, a leading expert on Congress, has long urged that the legislative schedule be changed in ways that would improve the members’ ability to engage in committee work, legislative debate, and lubricating informal interactions, as well as their time working at home with constituents.
¹²
With his colleague Thomas Mann, Ornstein has also proposed many other, more formal changes designed to overcome partisan gridlock and encourage political moderation: alternative voting rules, including instant runoff reallocations; easier registration and voting systems; open primaries; campaign finance reforms; filibuster reform; and others.
¹³
Other political scientists have their own proposals, including some designed to encourage compromise.
¹⁴
Although all deserve serious attention, there are good grounds for skepticism about their political viability—and even about their efficacy if just grafted onto the existing system.
¹⁵

Drawing on analogous efforts by health care institutions to reduce avoidable in-hospital problems, I have proposed a legislative checklist that congressional committees should use to ensure that their statutes address issues—many procedural or not particularly controversial—that will almost certainly generate costly, time-consuming, and unnecessary litigation if not addressed by Congress in advance.

Congress should have to comply with the same rules that it imposes on the public, yet as noted in
chapter 3
it has in effect exempted itself from doing so in many cases. If members are obliged to feel the burdens of the laws that Congress enacts rather than being freeloaders on their own creations, they may become wiser legislators.

Transparency throughout the domestic policy process should be encouraged. Fortunately, new technologies are opening up new opportunities to improve not only transparency but innovation, collaboration, citizen participation, feedback, and decision making.
¹⁶
Law professor and former Obama administration official Beth Noveck has advanced many proposals for such reforms.
¹⁷

INCENTIVES

In
chapter 5
, I explained that policy makers up and down the line face incentives that produce policies that are often myopic; favor small well-organized groups over vastly larger but more diffuse ones; encourage logrolling coalitions at the expense of the general public; ignore government “internalities”; and create perverse incentives for private actors that end up imposing costly inefficiencies on the taxpayers. Moral hazard, a type of incentives defect analyzed in
chapter 5
, is particularly important because it afflicts so many large programs, imposes immense costs on taxpayers, and threatens to impose even more in the future. Fortunately for policy reformers, it is also a familiar problem that private insurers have been managing for centuries
¹⁸
—and for which at least partial remedies exist.

The most obvious remedy for moral hazard, of course, is to avoid creating it in the first place.
*
Some of the programs criticized in
chapter 5
for their moral hazard are candidates for outright repeal or substantial change, depending on a more detailed analysis. Fannie Mae and Freddie Mac, discussed below, are the most important current examples. Other programs, even if retained, should be required to reduce their moral hazard through the various techniques discussed
in
chapter 5
,
*
such as more data-based screening, monitoring, risk-adjusted cost sharing, and tougher enforcement. The student loan programs, for example, are ripe for screening criteria that would avoid committing scarce public funds to particularly bad bets when better bets can use them more effectively and with fewer defaults. It is folly to imagine that all high school graduates should go on to college at public expense, when in truth good vocational training would serve many of them far better and screening criteria can make successful outcomes reasonably predictable. Where student loan programs do cover vocational training, the government’s costs are far lower, even taking into account the high default rates.

More generally, all programs vulnerable to significant moral hazard should require cost-sharing adequate to assure that beneficiaries have enough skin in the game to act responsibly, with the amounts scaled to what they can afford. Formulas for determining financial need and risk of default are already in wide use in various private and public programs. This approach might borrow a technique in the Coastal Barrier Resources Act of 1982, which provides that on sensitive coastlines that were then undeveloped, any future development would not receive federal subsidies, such as flood insurance and post-storm relief. In this spirit, the government might declare, for example, that once Hurricane Sandy victims receive their current bailout funds, the federal responsibility for reconstruction subsidies is over.
¹⁹
(A 2013 report by the Department of Housing and Urban Development’s inspector general, finding that as much as $700 million in federal post-Katrina reconstruction aid to Louisiana homeowners may have been misspent, makes this approach even more urgent.
²⁰
)