superrific
Legend of ZZL
- Messages
- 5,694
This is going to be a bat signal for Paine, I think. LOL. The first post will be long. Hopefully interesting.
"A liberalism that builds" is something Ezra Klein has talked about a lot recently. The idea is that the government has become too burdened by administrative processes that it can't do basic things that it should be able to do, and did do in the past. Would it be possible for us to build an interstate highway system in today's world? Hard to say.
The sapping of the government's ability to build has been a product of an odd (and unintentional) coalition of three different groups: conservatives who like to muck up the gears of government; leftists who fear government's power and want to constraint it; and centrist lawyers who see process as a solution to ideological struggle. Let's go through these briefly, before coming to the policy discussion on this thread:
1. Conservative business interests hating government regulation is, of course, nothing new. The Administrative Procedure Act, passed Congress in 1946. Before FDR, business interests could effectively head off regulation because they tended to own Congress. The ownership of Congress was so extreme that it created the only flurry of constitutional activity in the history of the country (not counting the actual drafting of the Constitution/Bill of Rights, and the reconstruction amendments which were easier to pass because half the country had no power). But even well into the 1920s, businesses had little to fear from the federal government -- and the Great Depression was one result of that. The Treasury Secretary was Andrew Mellon.
But FDR created a bunch of agencies that could pass regulations, and this represented a threat to the business interests' corruption of Congress. So the business interests wanted to throw sand in the gears of the agencies, and the APA was one part of that. It takes forever for an agency to make any sort of significant rule making, and those rule makings can be disrupted if a new executive is elected. In other words, this was an intentional effort to sabotage government effectiveness.
2. Centrist lawyers. I'm not really a centrist politically -- I'm more eclectic than that -- but I'm pretty centrist when it comes to law. So I can speak to this point fairly well: there is a danger of agencies being TOO empowered to do, and thus able to do unconscionably bad things. This is pretty intuitive: for an example, just imagine RFK Jr. being able to set policy unrestrained by any need to provide actual evidence to justify those policies. The APA provides for judicial review of agency action, and a major component of that review is that agencies have to provide substantial evidence to justify any rules they pass. And in practice, "substantial" means more than what we normally think the word means. It's not exactly "exhaustive" but it's closer to that than the ordinary meaning of substantial.
In theory, of course you'd want this. And this is the centrist attempt to fit agency rulemaking within our constitutional structure. Our constitution is very old; it more or less predates science, and it certainly predates data collection of any sort. The world was very simple. It would have never occurred to the Framers that there would be issues far too complex for Congress to get a handle on. We clearly need agencies staffed with experts. But there's no provision for them in the constitution. The Administrative Procedure Act was a way to allow agencies to operate according to instructions passed by Congress, and reviewable by courts.
3. The leftist activists. This group, I would argue, came of age in the late 1960s. These were the people who created the mantra that the personal was political; that communities needed the ability to make decisions on a local level; and that the government was as likely to be oppressive as beneficial. They were, in short, deeply distrustful of the government -- which they saw as representing the rich, white business class.
A good microcosm of this viewpoint is the Robert Moses transportation projects in New York City -- i.e. the construction of highways that cut through the Bronx (and other boroughs, but primarily the Bronx) and tore neighborhoods apart. In essence, the highway was like a modern railroad tracks, in that they segregated the city and created pockets of being "on the wrong side." They created traffic and pollution. They were devastating to some extant communities. This was the abuse of power that the Left sought to protect against.
****
It's no surprise that, as these different groups started pulling on the system, it became unwieldy. Business interests were able to capture agencies, basically through constant pestering and hiring of agency staff. That fed into the Leftists' fears of the government working as a rubber stamp for industry, so the Leftists wanted even more procedural safeguards. But the leftists made a critical error: they ignored that the highway had been built. The Robert Moses equation was actually a cost benefit issue: benefit -- an efficient new highway allowing quick transport across the city; cost -- destroying neighborhoods. The leftist groups, wanting to make sure that the latter didn't happen, ignored that the former also did. [I'm simplifying a complex story because I'm not writing a book].
And the centrist lawyers? Well, the APA was good for them. Lots of lawyer jobs have been created by these administrative procedures. And these aren't grunt jobs either. Some of the most prestigious legal practices are the administrative law practices in DC. Lots of judges come from these areas of law. But even aside from the crass self-interest that undoubtedly existed but isn't the entire story, the lawyers didn't necessarily see the negative effects. The Robert Moses highway was, to them, a good thing because nobody told them about the consequences (not until much later, at least). And the lawyers also didn't necessarily appreciate time and hassle as a cost. So they were more than happy to settle the dispute with, in essence, more procedures.
And now we have a system with a lot of red tape. Nicholas Bagley at U of M law school has written about this. And even assessing the red tape, there are disputes. Right-wingers think of it as pure hassle, because they don't give a shit about what the red tape protects. The Robert Moses highway was, to business groups, unabashedly awesome. Efficient transportation, and if the locals didn't like it, they could just move. In economics, this viewpoint was justified by the famous Coase Theorem -- except they didn't apply the Coase Theorem correct. Whatever. Leftists want to protect the rulemaking, because it's one of the few ways to protect marginal groups. And the centrist lawyers . . .
Well, the centrist lawyers end up being the protagonist of this story. When I say "lawyers" I don't mean exclusively people with JDs. I'm using them as a microcosm for not just people like me, but also people like Ezra Klein. And the idea Ezra puts forward is that it's time for the centrist lawyers to find ways to break through the logjam, to reduce red tape without throwing the baby out with the bathwater as right-wingers tend to do.
*****
Which brings us to this thread. How can we construct a government that can do things, while also protecting the rights and interests of those who are less represented there? I have one thought which I'll get to in my next post.
"A liberalism that builds" is something Ezra Klein has talked about a lot recently. The idea is that the government has become too burdened by administrative processes that it can't do basic things that it should be able to do, and did do in the past. Would it be possible for us to build an interstate highway system in today's world? Hard to say.
The sapping of the government's ability to build has been a product of an odd (and unintentional) coalition of three different groups: conservatives who like to muck up the gears of government; leftists who fear government's power and want to constraint it; and centrist lawyers who see process as a solution to ideological struggle. Let's go through these briefly, before coming to the policy discussion on this thread:
1. Conservative business interests hating government regulation is, of course, nothing new. The Administrative Procedure Act, passed Congress in 1946. Before FDR, business interests could effectively head off regulation because they tended to own Congress. The ownership of Congress was so extreme that it created the only flurry of constitutional activity in the history of the country (not counting the actual drafting of the Constitution/Bill of Rights, and the reconstruction amendments which were easier to pass because half the country had no power). But even well into the 1920s, businesses had little to fear from the federal government -- and the Great Depression was one result of that. The Treasury Secretary was Andrew Mellon.
But FDR created a bunch of agencies that could pass regulations, and this represented a threat to the business interests' corruption of Congress. So the business interests wanted to throw sand in the gears of the agencies, and the APA was one part of that. It takes forever for an agency to make any sort of significant rule making, and those rule makings can be disrupted if a new executive is elected. In other words, this was an intentional effort to sabotage government effectiveness.
2. Centrist lawyers. I'm not really a centrist politically -- I'm more eclectic than that -- but I'm pretty centrist when it comes to law. So I can speak to this point fairly well: there is a danger of agencies being TOO empowered to do, and thus able to do unconscionably bad things. This is pretty intuitive: for an example, just imagine RFK Jr. being able to set policy unrestrained by any need to provide actual evidence to justify those policies. The APA provides for judicial review of agency action, and a major component of that review is that agencies have to provide substantial evidence to justify any rules they pass. And in practice, "substantial" means more than what we normally think the word means. It's not exactly "exhaustive" but it's closer to that than the ordinary meaning of substantial.
In theory, of course you'd want this. And this is the centrist attempt to fit agency rulemaking within our constitutional structure. Our constitution is very old; it more or less predates science, and it certainly predates data collection of any sort. The world was very simple. It would have never occurred to the Framers that there would be issues far too complex for Congress to get a handle on. We clearly need agencies staffed with experts. But there's no provision for them in the constitution. The Administrative Procedure Act was a way to allow agencies to operate according to instructions passed by Congress, and reviewable by courts.
3. The leftist activists. This group, I would argue, came of age in the late 1960s. These were the people who created the mantra that the personal was political; that communities needed the ability to make decisions on a local level; and that the government was as likely to be oppressive as beneficial. They were, in short, deeply distrustful of the government -- which they saw as representing the rich, white business class.
A good microcosm of this viewpoint is the Robert Moses transportation projects in New York City -- i.e. the construction of highways that cut through the Bronx (and other boroughs, but primarily the Bronx) and tore neighborhoods apart. In essence, the highway was like a modern railroad tracks, in that they segregated the city and created pockets of being "on the wrong side." They created traffic and pollution. They were devastating to some extant communities. This was the abuse of power that the Left sought to protect against.
****
It's no surprise that, as these different groups started pulling on the system, it became unwieldy. Business interests were able to capture agencies, basically through constant pestering and hiring of agency staff. That fed into the Leftists' fears of the government working as a rubber stamp for industry, so the Leftists wanted even more procedural safeguards. But the leftists made a critical error: they ignored that the highway had been built. The Robert Moses equation was actually a cost benefit issue: benefit -- an efficient new highway allowing quick transport across the city; cost -- destroying neighborhoods. The leftist groups, wanting to make sure that the latter didn't happen, ignored that the former also did. [I'm simplifying a complex story because I'm not writing a book].
And the centrist lawyers? Well, the APA was good for them. Lots of lawyer jobs have been created by these administrative procedures. And these aren't grunt jobs either. Some of the most prestigious legal practices are the administrative law practices in DC. Lots of judges come from these areas of law. But even aside from the crass self-interest that undoubtedly existed but isn't the entire story, the lawyers didn't necessarily see the negative effects. The Robert Moses highway was, to them, a good thing because nobody told them about the consequences (not until much later, at least). And the lawyers also didn't necessarily appreciate time and hassle as a cost. So they were more than happy to settle the dispute with, in essence, more procedures.
And now we have a system with a lot of red tape. Nicholas Bagley at U of M law school has written about this. And even assessing the red tape, there are disputes. Right-wingers think of it as pure hassle, because they don't give a shit about what the red tape protects. The Robert Moses highway was, to business groups, unabashedly awesome. Efficient transportation, and if the locals didn't like it, they could just move. In economics, this viewpoint was justified by the famous Coase Theorem -- except they didn't apply the Coase Theorem correct. Whatever. Leftists want to protect the rulemaking, because it's one of the few ways to protect marginal groups. And the centrist lawyers . . .
Well, the centrist lawyers end up being the protagonist of this story. When I say "lawyers" I don't mean exclusively people with JDs. I'm using them as a microcosm for not just people like me, but also people like Ezra Klein. And the idea Ezra puts forward is that it's time for the centrist lawyers to find ways to break through the logjam, to reduce red tape without throwing the baby out with the bathwater as right-wingers tend to do.
*****
Which brings us to this thread. How can we construct a government that can do things, while also protecting the rights and interests of those who are less represented there? I have one thought which I'll get to in my next post.