"The Neglected Value of Effective Government," by Prof. Rick Pildes (NYU)

"How law and policy have undermined the ability of government to deliver both large-scale policies and a range of public goods."

I saw Prof. Pildes's forthcoming article, and asked him if he might guest-blog about it; he kindly agreed, and passed along the following:

I thank Eugene for inviting me to write about a new essay of mine entitled "The Neglected Value of Effective Government."

A central challenge, and threat, to democracies throughout the West in recent years is the perceived failure of democratic governments to deliver effectively on the issues their members care most about. When democratic governments cannot do so, that failure can lead to distrust, alienation, withdrawal, anger, and resentment. Even worse, it can fuel desires for a strongman figure who will supposedly cut through the dysfunction and deliver when democratic governments have failed to do so. Many of these manifestations of dissatisfaction are already visible in the United States.

Despite the critical importance of delivering effective government, democratic and legal theory have given too little attention and weight to this value. Much of democratic theory and legal scholarship on democracy focuses on values such as political equality, fair representation, democratic deliberation, political participation, and individual rights, among other values. This focus is largely on the input side to democracy. But less weight is given to the output side: the capacity of government to deliver effectively on the issues citizens care about most urgently.

I have been writing about the decline of effective government, focused initially on the United States, since 2014. In this essay, I aim to bring greater affirmative attention to the imperative of effective government in our thinking about the design of democratic institutions and processes. My approach is to identify and highlight tensions that arise between effective government and other important democratic values. These tensions or tradeoffs arise at both the macro-level of democratic institutional design and the more routine level of matters such as the administration of public policy.

The article focuses on five areas of tension or tradeoffs between effective government and other democratic values. These other democratic values are themselves important ones; the question I raise is whether we need to recalibrate the balance between them and the importance of enabling effective governance.

[1.] Political accountability versus effective government. Political accountability is obviously of central democratic importance. But what's less recognized is that excessive accountability can hamper the ability to deliver effective government. When the Constitution was drafted, there was a strong push to require annual elections to the House; it is easy to see today how much more difficult governing would be were House elections held every year.

Indeed, even the two-year term is an outlier among democracies: most parliaments are elected for four or five years. The rate at which elections are required is a window into the larger window into whether other forms of political accountability come at too great a prices to the capacity of government to function effectively.

[2.] Political equality versus effective government. One area in which this tension arises is campaign finance. Desire for a more equal system of campaign financing is understandable. But when the McCain-Feingold law, in the name of political equality, strictly limited the sources and amounts that could be donated to political parties, it triggered a massive rise in outside spending by groups and individuals; Citizens United added to this flow. But the flow of money away from parties to other actors has made governing far more difficult.

Today, in the name of political equality, many reformers support government providing matching funds for small-donor contributions. Yet small donors fuel political polarization and extremism; matching small donations would further exacerbate factionalism and paralysis in Congress. Traditional forms of public financing better advance political equality without further fueling polarization.

[3.] Open government versus effective government. A distinction exists between transparency of outcomes, in which decision-makers must explain the justifications for the choices they've made, and transparency of process, in which the steps along the way to that outcome are required to be public. In the 1970s, policy shifted strongly to transparency-of-process requirements, including for Congress. Yet as numerous studies document, and those involved in the legislative process confirm, this shift to transparency of process have contributed to Congress' inability to compromise and deliver legislation. An American Political Science Association (APSA) task force from 2012, designed to analyze the ever-growing paralysis and dysfunctionality of Congress, concluded that "gridlock in the American Congress has been exacerbated by the 'sunshine laws' that opened up committee deliberation to the public but also to lobbyists and other special interests."

Indeed, many studies find that excessive transparency requirements have been ineffective or even counterproductive to the instrumental goals they were thought to serve. Contrary to the assertion that transparency would promote high-quality deliberation, the APSA study concluded that "the empirical evidence on the deliberative benefits of closed-door interactions [compared to public ones] seems incontrovertible."

[4.] "Fair" representation versus effective government. Many ways of designing the system of political representation exist. Recently, academic reformers have proposed that Congress permit or require states to shift to electing members of Congress from multi-member districts. These districts would be designed to elect five members, which reformers believe would create a Congress with five or six political parties. In the view of these reformers, this would create a fairer system of representation than our two party system, along with having other benefits.

I suggest that such a change would come at too great a cost to the output side of democracy: it would make the legislative process even more dysfunctional. Drawing on the recent experience of multi-party democracies in Europe, I argue that the need to cobble together majority coalitions, issue by issue, in a six-party Congress would make it all the more difficult to generate public policy on urgent issues.

[5.] Process and participation versus effective government. This set of tradeoffs applies particularly to the provision of public goods, with particularly implications for the clean-energy revolution. Participation, voice, and appropriate process are important democratic values, which can also lead to better public projects. But the cost and amount of time it now takes to provide various public goods-airports, subway lines, railroads, transmission lines for clean power-has become so great that the loss in social welfare is high, along with creating perceptions that government is incompetent. This is another area in which we should re-examine the relationship between the values of process and participation and the importance of delivering effective government.

[***]

Taken as a whole, the point of these examples is to bring attention to the value and importance of state capacity to deliver effectively. You don't have to agree with all these examples to see the problems that at least some of them raise.

In re-organizing and synthesizing under the general framework of effective governance several discrete subject areas I and other scholars have engaged, my aim is to spur greater attention among legal scholars and democratic theorists on the outputs of democracy–on the delivery of effective government—in work on democracy. Viewing current arrangements and proposed reforms through the lens of effective government opens up new directions for scholarship on democracy. But the first step is to recognize that the failure to deliver effective government is roiling most democracies today, and that if democracies cannot overcome that challenge, popular frustration, anger, distrust, or worse, will continue to grow.

Comments

[John F. Carr]

"public policy on urgent issues"

How often do we have truly urgent issues?

[bernard11]

Depends.

Everything gets urgent if you wait long enough.

Read about the MBTA lately?

[Brett Bellmore]

That's silly. A lot of things start out not urgent, and become even less urgent as time goes by.

[ReaderY]

This post touches on a theme I’ve often brought up in comments. Government nearly always requires a balancing among conflicting principles, with diminishing or negative returns resulting as pursuing one principle interferes with others.

But our adversarial legal system, and increasingly our adversarial political system, doesn’t recognize or encourage doing that. It rewards people who focus on a single principle and advocate it ever more strongly and effectively. Only by doing that can one “win.” In order to have winners and losers, one has to have a total ordering, a single dimensional spectrum. Once one has even two dimensions, pecking orders become less possible. It becomes less clear who won and who lost. It becomes harder to keep score. And life, and the art of government, has many, many, many dimensions.

The urge and need to win, politics as a zero sum game, drives prople towards extreme positions, towards focusing on a single goal. Indeed, in the extreme, treating anyone with any other goal as an enemy, as committing treason. It breaks the fabric of society which has been invisibly keeping it from destruction.

Thus the drawbacks of monopolies and complacent elite consensuses have to be balanced against the drawbacks of too cutthroat a competition, whether in law or in politics. Once one is in it to win, solely in it to win, government becomes impossible. Society as a whole and everybody in it loses. And you, too, along with them.

Indeed, once one has a culture where it becomes normal for political elites to see politics as essentially a war, to see winning the AIM, indeed the WHOLE, of being in politics, what it is about, then tyranny is not going to be that far around the corner. And chaos and social dysfunction and decay is very likely to precede it.

[Reallynotbob]

Zero sum game. The late Harvard Law Prof. Philip Heymann used this analogy (apologizes if someone else developed it ):

Imagine a Super Bowl halftime commercial. The camera pans slowly over the smoking wreckage of an airplane splintered among residential houses in Queens, NY. There are clearly no survivors. Bystanders appear shocked; a young girl is crying. The shot settles on what remains of the tail, the American Airlines logo clearly visible. Fade to a black screen, then fade in this text:

"United Airlines. At least we'll get you there."

No company would do that. Why? Because air travel is a market and shrinking the total number of passengers is bad for business. But in politics, the total number of voters isn't relevant. If all voters stay home except the one who votes for me, I win.

[Brett Bellmore]

The whole topic of "effective" government raises the obvious question, "effective" to what end? Effectiveness is not an unalloyed virtue, if government is trying to do the wrong thing, it may even not be a virtue at all.

"A central challenge, and threat, to democracies throughout the West in recent years is the perceived failure of democratic governments to deliver effectively on the issues their members care most about. When democratic governments cannot do so, that failure can lead to distrust, alienation, withdrawal, anger, and resentment."

I'd suggest the problem is less a matter of "cannot", and more a matter of "will not", and that's why you see so much distrust, alienation, and so forth: The electorate are coming to the conclusion that the government isn't incapable of delivering what they want, it is simply unwilling.

[Ed Grinberg]

Yes.
Were the relevant authorities "incapable" of effectively dealing with a couple of hundred scumbags rampaging through Minneapolis three years ago? Of course not; they were unwilling to do so.

[Moderation4ever]

I think your comment and ReaderY's before your capture a lot of the problem. The politics of zero sum, winner take all is more profitable than compromise and cooperation. Politicians are therefore incentivized to be unwilling to address problems.

[Brett Bellmore]

I think you're missing the point: We genuinely disagree about what constitutes "problems" and "addressing" them. One person's "addressing problems" is another person's "causing problems"!

And the political class systematically differ from the electorate in their opinions on these matters, so that voting becomes an ineffective way of getting government to address problems from the electorate's viewpoint.

So, of course the electorate becomes alienated and angry.

[Sarcastr0]

Except you're not content to disagree - you call those who disagree with you liars, operating in bad faith, and their decisions illegitimate.

You're alienated and angry because that's what you choose to be, embracing the narrative of a persecuted minority rather than deal with the fact that your ideas are unpopular.

[Dilan Esper]

I think the "we genuninely disagree about what constitutes 'problems'" line proves too much.

Sure, it's sometimes true. E.g., right now, some on the Right think there's a crisis with some of the gender stuff in schools, and some on the Left don't think that's a problem at all. And classically, many on the Left will say income inequality is a big problem and at least some on the Right will say it doesn't matter at all. So stipulated.

But nonetheless, there's a heck of a lot of stuff we all agree are problems and yet the government can't do anything about in part because of the problems Prof. Pildes identifies. E.g., how come it takes so long (outside of rare emergency situations like we saw with I-95 this month) to construct an infrastructure project? That's not something where there's this great ideological disagreement between the parties or the ideologies-- almost everyone agrees we have to build stuff. But there's political and democratic obstacles to doing it.

This is a real problem and it extends to situations where ideological disagreement IS NOT the primary obstacle.

[Brett Bellmore]

" E.g., how come it takes so long (outside of rare emergency situations like we saw with I-95 this month) to construct an infrastructure project?"

I think the primary problem THERE is that from the government's side of things, these aren't "infrastructure" projects. They're graft and kickback projects that incidentally produce infrastructure.

[ReaderY]

When you look back at the history of the country, when late 19th and early 20th century “progressives” talked about graft and corruption in government, especially Southern “progressives,” they were really talking about the presence of black people. They just assumed that any government that had black people in it could only be corrupt. When they wanted enlightened policy, they were talking about skin color.

Today’s meme that any government that has Democrats in it is always corrupt seems a throwback to that. Sure government is sometimes corrupt, but asserting it’s always corrupt seems a good way for corrupt people to convince others their behavior is normal, just as, as we’ve seen up-close and personal these past few years, liars find it very advantageous strategically to assert that everyone’s lying.

And it’s not like Donald Trump and Co. ran the cleanest business operation. Or administration.

[David Nieporent]

Yeah, no. As always, Conspiracy Theory Brett gets the wrong answer.

[CommentMonkey]

It certainly is true that some government dysfunction is not the result of ideological disagreement. The inefficiency and delay associated with infrastructure projects, however, owes a great deal to ideology. Environmental policy has made it more onerous to undertake large projects, added substantial regulatory delays, and made it easier for private interest groups to sue the government, placing some projects on indefinite hold and empowering those interest groups to make unreasonable demands. Labor policy has increased the cost and complexity of staffing government infrastructure projects and introduced artificial labor shortages. De facto racial and other disadvantaged-group quotas likewise result in higher costs, with more administrative and regulatory battles. All of these policies may have independent merit (or may not) but the combined effect is to compromise efficient infrastructure-building.

[David Nieporent]

This.

But it's not just environmental policy! It's the fetishization of process. You could prioritize environmental considerations without having it be the roadblock that it is. Yglesias had a column about this recently. One excerpt:

Elected officials should, of course, listen to people. But they should also decide what they want to do and make it happen. And we should not have state or federal laws that are designed to disempower elected officials. Unfortunately, though, we live in a world where the New York State Legislature can decide in 2019 that it wants congestion pricing for Manhattan and then spend three years compiling a 4,000+ page NEPA review.

What’s fascinating about this is that NEPA doesn’t even feature any substantive environmental standards. It’s a perfect example of what Nicholas Bagley calls “the procedure fetish,” a purely formal requirement that a lot of environmental impacts be thoroughly studied and thoroughly documented. Any action will make someone unhappy, and a big part of the post-1970 political order in the United States is that any governing decision is followed by a lot of lawsuits. So you do a lot of really arduous and time-consuming NEPA compliance so that you don’t lose in court. You do a lot of public hearings so that you don’t lose in court.

There's a separate problem, which is that it's so hard to pass anything that people feel fully justified in hanging whatever their agenda is on the handful of things that do pass. For example, D.C. politicians managed (for good or ill) to get the CHIPS act passed, to provide subsidies to build advanced microchip plants in the U.S. And then the administration decided to lard down the subsidies with all sorts of requirements for things like housing and childcare and education and prevailing wages and diversity requirements that have nothing whatsoever to do with actual microchips.

[tkamenick]

I agree with BB. I think the current state of politics generally shows that we've dealt with basically all of the real & significant problems that the federal government can actually do something good about. The stuff we bicker about is pretty much stuff that we'd be just fine to ignore.

[Brett Bellmore]

I don't think I'd quite go that far. I do think most of the low hanging fruit is picked, and that the government is past the point of diminishing returns and into the realm of negative returns, but that doesn't mean they didn't along the way skip doing some genuinely worth while things. Maybe even some genuinely worthwhile things that are actually within their constitutional ambit.

Rather, I think a big part of the problem is that we have developed an actual "political class", self-perpetuating and distinct from the general population, whose values and opinions are different from those of most of the electorate. And they've gamed the system enough that they can largely block anybody outside their class who doesn't meet their approval from getting elected, or at least render them ineffectual.

As a result, voting fails to be terribly effective at getting the voters what they want, and so voters keep "turning up the volume", in the hope that voting for somebody who promises to turn the volume to 11 will at least get it turned from 3 to 4.

In such an environment, running on turning it up to 4, and meaning it, is not a winning strategy. But, sadly, running on turning it up to 11, and really meaning it? That might get you into office...

[David Nieporent]

I’d suggest the problem is less a matter of “cannot”, and more a matter of “will not”,

Right, and that's an example of the mental dysfunction that causes you to be a conspiracy theorist. There are easy problems out there. Those problems are quickly and painlessly resolved and don't get any attention. The ones that don't get solved are hard. They require solutions that do not currently exist. When those solutions do exist, they still require the balancing of competing interests; including but not limited to money, time, civil liberties. The possible solutions have undesirable side effects.

This is what leads to fascists like Trump gaining power: the promise that solutions are easy, and that the failure to solve them proves corruption and malice on the part of people in charge. So only an outsider can ride in on a white horse and fix everything.

[Brett Bellmore]

Look, I'm not saying the solutions are "painless". It's more like the politicians don't like WHO would suffer the pain; Their donors, rather than the electorate.

[Archibald Tuttle]

I lived 10 years in Sweden. Their government is noticeably more effective. That makes near-socialism much easier to swallow. In Sweden government hires the best and brightest, and arms them with discretion rather than hem them in with rules and policies. In areas where they do hem with rules and policies, their government is less effective.

Americans can't imagine a system where, for example, Steve Jobs or and Elon Musk works for government rather than the private sector, and that those innovators are empowered to change government to make it more effective.

In the USA, I'm libertarian. 50% of that is ideology, but the other 50% is due to observations that government screws almost everything up, making it worse rather than better. One cure could be a mandatory goal attached to every law, every program. If it fails to produce the goal, the law sunsets automatically.

[Reallynotbob]

"...government screws almost everything up, making it worse rather than better."

Yet some of the greatest successes in US society are government creations. Nothing is perfect, but the US pioneered public schooling with great success. The post office is largely a success, if burdened lately by a declining model in the electronic society. The interstate system. Hoover Dam and similar large public works. The Mississippi flood management system, air traffic control, OSHA regulation (annoying, I know, but it largely works and saves lives), the federal courts, OCC and the Federal Reserve system--and of course the US military. And these are just the headliners. The NTSB is fantastic. The FBI is top notch.

I'm not saying these institutions are perfect. Every one of these has failures and waste also. But so does private industry. I'm just saying this "all government is bad government" perspective is unfair.

Everyone likes their local firefighters, right?

[Bob from Ohio]

"The FBI is top notch. "

At what?

[Reallynotbob]

I submit that it is one of the world-leading organizations in developing and refining forensic criminology. It has a good track record with organized crime (but see Whitey Bulger for a notable miss). It has excellent JTTF coordination with other agencies. It's been effective in interstate manhunts....

Your turn. What law enforcement agency is doing a better job, in your view?

[Brett Bellmore]

I'd say that the FBI may largely be coasting on the basis of a reputation that they earned many years ago when maybe they deserved it. A lot of institutions are like that in modern America.

[Archibald Tuttle]

A bit more detail. My salary back then was about $45K. I paid 50% income tax and 84% marginal tax. But I got real benefits, health care, a mortgage with negative interest, subsidized recreation.

But along with high marginal tax, they made all loan interest deductible. Therefore, Swedes could afford to buy luxury homes, cars, yachts and summer camps, and vacation in Thailand. 85% of the cost of those loans was financed via tax deductions. They also made taxes and regulations on industry very moderate compared with the USA. The economy could and did soar despite high tax rates. I view that as thoughtful effective government.

I understand that today's Sweden is very different than what is was in the 70s and 80s.

[tkamenick]

""the empirical evidence on the deliberative benefits of closed-door interactions [compared to public ones] seems incontrovertible.""

Only if you assume that "getting things done" is the "benefit". That's a big assumption.

[Reallynotbob]

The whole theory is to make the government effective at "getting things done" but responsive to the people to select which things those are.

The idea that all government is bungling government doesn't fit either actual history or the framers' vision for American society.

[tkamenick]

And if the people have strong divisions over what's "getting done" such that doing them pisses off large portions of the electorate? I don't think that's useful.

[Reallynotbob]

I can't tell if you're critiquing popular politics/media, or rejecting the core principle of democracy.

[Brett Bellmore]

Democracy is a great decision making principle for a limited set of cases, (Collective arbitrary decisions, like what side of the road to drive on.) and a 'least worst' decision making principle for a larger set of cases. (Decisions that have to be made collectively, and voting stops one or a handful of people from jerking around the rest.) The problems comes in when people idolize it, and insist on using it for decisions that didn't have to be collective in the first place.

You've got a supper club, and you're trying to decide where to meet. Fine. It's not like you can meet in 20 different restaurants at the same time, but which one isn't critical.

You're at the restaurant, and you vote on what to order, when the restaurant could just as easily serve each person what they specifically wanted. Not so fine. Just better than having the one vegetarian force everybody to eat celery.

It comes time to pay the bill, and 60% of the club members decide against splitting the check, and vote that Bob should pay it all. Really bad.

[apedad]

Democracies are BY DESIGN messy and therefore inefficient.

Roe yesterday and then - woosh - not today (and maybe - woosh - next decade back on again).

Something about limited resources with unlimited wants.

Also:

‘Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…’ Winston S Churchill, 11 November 1947

I'm good with what we have.

[John F. Carr]

The author wants to avoid requiring coalition building after elections (as in the typical European parliament). I would love to see more defections than the occasional Manchin, Sinema, or the handful of Republicans who wrung concessions out of McCarthy. The two parties are dominated by extremists and do not reflect average American values.

[DaveM]

My Plea to Presidental Hopefuls: Make the Federal Government Competent Again

The federal government is not a healthy organization. Its goals are diffuse, its priorities are overlapping and contradictory, and its efforts are scattershot. It spends enormous amounts of money, but fails to deliver on its promises, time and time again.

The best legacy you could leave for the country is to right-size and re-focus the federal bureaucracy. Make the government competent again, and you will help everyone for generations to come, regardless of our politics.

A simple, repeatable plan is best. The job of righting the ship of state will take much longer than one term, or even many terms. I suggest alternating cycles of pruning and planting.

For one year, focus on pruning the organization, especially the regulations which are used to justify headcount. Anything that is outside the core mission of each agency will be the target. The goal is to cut out the deadwood, and prune away the things which are draining the organization.

In the next year, focus on doing new projects. This is how you test how well your pruning worked. A leaner organization should be meaner. Re-allocate resources within the agencies to work on things which serve the core mission. Focus like a laser beam on doing the job and doing it better than the private sector.

Now repeat this process until the federal government is competent. No doubt it will take many cycles. Your job as the first is to lay the groundwork and start the trend.

By doing this, you will attract the very best talent the country has to offer. High performing people don't work primarily for the money, they work to make an impact. This is what the Elon Musks of the world understand.

In short, do the job of a chief executive. Your promise must be to make it so the government can execute any mission given to it by the legislature with excellence. Yours is not a policy-setting office, it is tactical and logistical.

A well-run, high-functioning administration should be your core mission, not politics. Leave the politics to the talkers. You've got something that needs to be built.

[mydisplayname]

The implicit premise ( à la Somin) of the paper is that the federal government _should_ be enabled to deliver more ["good governance"?]. I must echo the sentiments above that "the whole topic of 'effective' government raises the obvious question, 'effective' to what end?"

Just as I do not want a more effective heroin dealer on every street, I do not want a more effective provider of "good governance" whose presence is felt on every street; accordingly, I use my voice and vote deliberately to create barriers to the effective operation of the federal government. At the federal level, the concept of democracy is secondary to the concept of individual liberty: an effective method of delivering bread and circuses to the masses historically has not led to positive outcomes.

[Theendoftheleft]

‘When democratic governments cannot do so, that failure can lead to distrust, alienation, withdrawal, anger, and resentment. Even worse, it can fuel desires for a strongman figure who will supposedly cut through the dysfunction and deliver when democratic governments have failed to do so’.

Alternatively, it can show people, across the political spectrum, that the system is NOT in fact democratic, that it is unaccountable, and that their system is really an oligarchy. That it is not a government of the people, by the people, for the people, but rather an elite institution with global imperialist ambitions, one which is not just content to treat its own citizens as fungible commodities, but rather one which consciously aims to engage in a comprehensive social re-engineering project via massive population transfers, pervasive propaganda, and authoritarian, Orwellian tactics.

Hence, people will support an outsider to enforce the rule of law and democratic institutions as THEY, the people, in their delusions believe the government used to run, how it ‘should’ run given their understanding(s) of the constitution. They’ll support such a person, in other words, because they want democracy, they want the rule of law, they want the constitution and government they believed they’d had all along, one which somehow went astray.

That this is doomed to fail, ie, because all the government institutions (and others, eg, the media), will, for Weberian reasons (amongst others), be united in their hostility to the outsider, should have been obvious to everyone in 2016. The various governmental bodies will see and treat him/her as a direct threat to their agenda and power, and so will do everything they can to discredit and thwart him/her.

So Pildes can write about ‘effective’ government, but he misses the balance. His approach misunderstands the problems of DEMOCRATIC government and the increased alienation of sizable portions of populations — on both the left and right — from ‘their’ government and the status quo. Indeed, Pildes has the balancing of the first consideration entirely backwards: what you desperately need is to increase widespread belief and faith in POLITICAL ACCOUNTABILITY, since it’s falling apart, and, with it, the USA. Many Americans no longer trust the US government. Indeed, they see it as being HOSTILE to them and their interests. (Though the phenomenon is of course manifesting in other Western countries too, albeit to a less extreme degree.)