Podcast Summary
Liberalism's Complex Relationship with Government: Liberalism's focus on procedures over substance, driven by its reliance on the legal profession, can hinder government's ability to effectively govern in areas like environmental regulation and health care.
American liberalism's relationship with government and the processes it has put in place presents a complex and unacknowledged challenge. While liberals may desire a powerful government capable of achieving big things, the systems they've established to restrain government power often hinder its ability to effectively govern. This is particularly evident in areas where liberals control government, such as environmental regulation and health care. Nick Bagley, a law professor at the University of Michigan, argues that this "procedure fetish" within liberalism stems from an overreliance on the legal profession and its focus on procedure over substance. This mindset, while intended to make government more legitimate, can ultimately handicap its ability to achieve its goals. To build the necessary infrastructure and achieve its aims, liberalism must confront and address this internal challenge.
The Complexity of the Regulatory State: The regulatory state involves complex procedures and rules, leading to high-profile disputes and low-profile wars over federal register notices and code of federal regulations.
The passing of legislation, such as the Affordable Care Act, may only tell part of the story. While the bill itself may contain the broad strokes of policy, a significant amount of decision-making is delegated to regulatory agencies and administrative processes. This results in a complex and often inflexible system with numerous procedural rules, which can lead to high-profile disputes and low-profile wars over federal register notices and code of federal regulations. The American administrative state is designed with strict procedural rules to ensure legitimacy and accountability, but these rules can also make the system overbearing and inflexible. This dynamic is particularly relevant in American politics, where the regulatory state is often viewed through a partisan lens, with conservatives advocating for procedural reforms to limit regulatory power.
Institutions created to enforce compliance can hinder government action: The creation of institutions to enforce public notice, cost benefit analysis, accountability, and environmental protection can actually hinder government action and be detrimental to their intended goals due to burdensome regulatory demands and the need for massive state capacity.
While the commitment to public notice, cost benefit analysis, accountability, and environmental protection are positive, the institutions we create to enforce these compliance can actually hinder government action and be detrimental to the very goals they aim to achieve. This was evident during the Reagan administration's use of cost benefit analysis, which created a bottleneck and made it impossible for many agencies to implement rules that benefited the public. The current debate around environmental regulations highlights this issue, as the burdensome regulatory paperwork and analysis require a massive amount of state capacity. Agencies must make choices about who to hire, and the constant need to respond to regulatory demands can result in a government unable to act effectively within reasonable constraints.
Overlooking benefits of relaxing administrative procedures for progressives: Progressives' distrust towards government power led to external focus on rules and court intervention, but a more nuanced approach considering procedural advantages is needed for meaningful progress.
The ongoing debate around administrative procedures and their impact on the functioning of government agencies often overlooks the potential benefits of relaxing existing constraints for progressive agendas. The speaker argues that this oversight stems from the internalization of distrust towards government power among progressive groups, which emerged during the 1960s and 1970s. This distrust led to the creation of non-profit organizations that focused on using procedural rules and court intervention to influence government actions from the outside. However, this mindset may be corrosive to the collective goal of achieving meaningful progress through government institutions. Instead, a more nuanced approach that considers the potential advantages of streamlining administrative procedures for progressive causes is necessary.
Government's need for restraint and accountability: Both the right and left agree on the importance of limiting government power and ensuring accountability to the public.
Throughout American history, there have been valid concerns about the need to restrain the government due to its significant powers and potential for capture by special interests. This issue transcends traditional political labels, with both the right and left expressing critiques. The right often argues against regulatory overreach and the inability of Washington experts to understand local trade-offs. The left, meanwhile, fears government capture and the prioritization of corporate and organized interests over the broader public. Both critiques hold truths, as government has a history of catering to the rich and powerful. It's crucial to strike a balance, ensuring that government tools can effectively address societal issues while remaining accountable to the public.
Focusing on institutional design for a more effective and accountable administrative state: Instead of relying solely on procedural rules and public comment periods, improving the administrative state requires institutional design, adequate budgetary support, clear mandates, good leadership, and management solutions to level the playing field and ensure public voice is heard.
While procedural rules and public comment periods are important in theory for ensuring transparency and accountability in government agencies, they may not be enough to prevent capture or address the underlying imbalance of power between well-organized interest groups and the broader public. In fact, these procedures can sometimes be exploited by those with more resources and influence, leading to regulatory outcomes that favor their interests. Instead, efforts to improve the functioning of the administrative state should focus on institutional design, adequate budgetary support, clear statutory mandates, good leadership, and management solutions. These measures can help level the playing field and ensure that the public's voice is heard more effectively. The empirical evidence shows that private entities participate at much higher rates in procedural opportunities than the broader public, and agencies tend to be more responsive to those who make the most noise or have the potential to mount a litigation campaign. By addressing the root causes of capture and ensuring a more balanced participation in the regulatory process, we can make the administrative state more effective and accountable to the public.
Unequal Participation in FOIA and Regulatory Processes: FOIA system disproportionately benefits large corporations due to their resources, leaving public interest groups and the public at a disadvantage. Agencies can invite diverse voices and be proactive in seeking public input to create a more balanced system.
The current Freedom of Information Act (FOIA) system, while intended to promote transparency, disproportionately benefits large corporations due to their greater resources to submit requests and engage in regulatory comment processes. Studies show that business interests dominate these processes, with their comments being of higher quality and more likely to influence regulatory decisions. This leaves public interest groups, and the public at large, at a disadvantage in shaping the administrative state. To create a more balanced system, it's crucial to strategically invite diverse voices and groups into the process, such as through listening sessions, conference calls, and reaching out to experts. Additionally, agencies may need to be more proactive in seeking out public input, rather than solely reacting to comments during the notice and comment phase. Historian Paul Sabin's work on public citizens highlights the importance of addressing this stark participatory advantage for private interests in the current system.
The Role of Courts in Advancing Social Change: Courts have been instrumental in advancing social change, but their role should not replace government service in creating lasting progress.
The rise of public interest groups and liberal legal complex in the mid-20th century led to an increase in the ability to sue the government and created institutions that do so. However, this tactic, while effective in some ways, can also be exploited by private interests with their own agendas. The speaker argues that courts often protect the status quo, but there have been substantively important moments where they have challenged it, such as desegregation, same-sex marriage rights, and the regulation of greenhouse gases. The speaker believes that progressives seeking genuine, lasting change should consider government service as an honorable profession that advances the public interest, rather than relying solely on outside litigation.
Courts as Arbiters of Social Change: A Hollow Hope: The speaker argues that relying on courts for widespread and lasting social change is unrealistic, as seen in the lack of progress following significant court decisions on same-sex marriage and greenhouse gases.
While the courts have played a role in significant social changes, relying on them for widespread and lasting change is a hollow hope. The speaker argues that the country moved in the direction of recognizing same-sex marriage before the Obergefell decision, and the EPA's attempt to regulate greenhouse gases after the Massachusetts v. EPA decision led to little progress. The speaker also critiques the prevalence of lawyers in positions of power, suggesting that this has led to a more legalistic approach to institutions and less faith in bureaucracy and expertise. The speaker notes that every democratic presidential nominee since Carter has gone to law school, implying a potential connection between the legal profession and liberal politics. In summary, the speaker challenges the notion that the courts are the ultimate arbiters of social change and questions the concentration of lawyers in positions of power and its impact on the institutions we create.
The dominance of lawyers in American liberal politics: The legalistic culture in politics can limit our imagination, hinder effective institution running, and prioritize procedures over action.
The dominant culture of law and legalistic thinking in American liberal politics, particularly in the administrative state, can limit our political imagination and hinder the ability to effectively run institutions and achieve common objectives. The pressure to become a lawyer as a means to make a difference and the perceived safety net of a legal career can lead individuals away from their original goals. Lawyers, while effective at understanding and managing legal rules, are not naturally equipped to run organizations or bring people together. This dominance of lawyers within political circles can limit our ability to think beyond procedures and get things done. The procedurally intense administrative state raises concerns about legitimacy in the eyes of the public, and a critique of this structure can be found in the principled arguments within the legal profession.
The importance of both procedural regularity and capability for administrative agency legitimacy: Procedural rules ensure legitimacy, but too many can hinder agencies' ability to act effectively in the public interest. Balancing procedural regularity with capability is crucial for administrative agency legitimacy.
While procedural regularity is important for the legitimacy of administrative agencies, it is not the only factor. Legitimacy also arises from the perception that government is capable, informed, prompt, responsive, and fair. However, there can be a tension between these two aspects of legitimacy. Adding numerous procedural rules and checks can make it harder for agencies to carry out their functions effectively. This is a concern that has been raised in various circles, and it is particularly relevant when it comes to the need for swift action on renewable energy and other pressing issues. Yet, there seems to be a lack of attention and energy on the left to rethink the procedural burdens placed on agencies, which could hinder their ability to act in the public interest.
Environmental regulations can slow down climate initiatives: Lengthy environmental reviews and opposition from various groups can cause delays and abandonment of climate initiatives, hindering progress towards goals.
While procedural rules intended to protect the environment are important, they can also hinder our ability to effectively address climate goals due to lengthy environmental review processes. This was exemplified by New York City's congestion pricing plan, which has faced significant delays due to environmental review despite being a beneficial environmental initiative. These delays can lead to projects being abandoned before they even begin, limiting our potential solutions to climate change. Even seemingly straightforward environmental reforms, like those attached to the Inflation Reduction Act, can face opposition from both environmental groups and political factions, making progress towards climate goals challenging.
Progressives struggle to counter Manchin's Inflation Reduction Act: Progressives lacked a clear counteroffer to Manchin's Inflation Reduction Act, hindering its progress. A more comprehensive approach is needed to address climate change and infrastructure development.
The Inflation Reduction Act, a crucial piece of legislation aimed at addressing climate change and reducing inflation, faced significant hurdles due to the lack of a clear and compelling counteroffer from progressives. Senator Joe Manchin's bill included a mix of environmental review accelerations, a special carve-out for a natural gas pipeline, and important permitting reforms. Although some parts were questionable, the permitting reforms were a much-needed step towards building the necessary decarbonizing infrastructure. However, progressives didn't have their own permitting reform package or a clear vision on how to get all the infrastructure built. The lack of a progressive counteroffer, coupled with frustration towards Manchin, stalled the bill's progress. This situation highlights the need for a more concrete and comprehensive approach from progressives to address the challenges of climate change and infrastructure development. The ongoing debate also raises concerns about the legitimacy of liberal democracy and the potential for populist authoritarianism if people lose faith in government's ability to deliver.
The vicious cycle of public distrust and talent drain in government: The perception of government as inefficient and overburdened by rules leads to a loss of public trust and a talent drain, creating a self-fulfilling cycle. Instead, we should measure the legitimacy of the American state by its ability to achieve common goals.
The perception of government as overburdened by rules and inability to effectively address common goals leads to a loss of public trust and a talent drain. This vicious cycle can be self-fulfilling, as frustration with government's inefficiencies pushes talented individuals towards the private sector or activism. The speaker laments the lack of appreciation for the slow, patient, hard work of civil servants and calls for a shift in measuring the legitimacy of the American state by its ability to achieve common goals, rather than the number of rules it labors under. The speaker's personal experience working in both federal and state government reinforces their belief in the dedication and talent of civil servants, and they advocate for valuing and extolling their virtues.
The importance of state and local governments: Effective state and local governments are crucial for implementing programs, reducing delays, and supporting private businesses, but it's important to balance autonomy with accountability and trust in the democratic process.
The ability of governments to effectively carry out their responsibilities, or state capacity, is crucial, and a greater focus should be placed on state and local governments rather than the federal government. This is due to the fact that many programs and initiatives, such as Medicaid, unemployment insurance, environmental permitting, and infrastructure spending, are implemented at the state and local level. Additionally, procedural rules that may cause delays at the federal level can be insurmountable hurdles at the state and local level. Furthermore, an effective public sector is essential for private businesses to thrive, as they rely on state support, permits, and infrastructure. However, it's important to consider the potential consequences of easing regulations and giving agencies more autonomy, such as the risk of misuse of power and the potential for democratic misfires. Instead, it's crucial to work towards improving the functionality of government while maintaining trust and faith in the democratic process.
The Benefits of Government Regulation Outweigh the Drawbacks: Regulation addresses important issues like climate change and financial stability, despite criticisms, and improving regulators is a better solution than crippling them. Long-term benefits of regulation outweigh potential drawbacks.
While there are valid criticisms of government regulation, particularly from the right wing perspective, the benefits of regulation, such as addressing climate change and preventing financial catastrophe, outweigh the potential drawbacks. The speaker acknowledges that regulators may not always be perfectly expert or public-spirited, but argues that improving them is a better solution than crippling them. The speaker also counters the argument that regulations stymie progress by pointing to improvements in environmental quality and the negative consequences of government inaction on issues like housing affordability. The speaker emphasizes the importance of recognizing the long-term benefits of regulation for future generations and the potential negative consequences of inaction.
Future financial challenges and the Supreme Court: Acknowledge the Supreme Court's stance, focus on winning elections to change its composition, and promote a positive vision of effective government to address future financial challenges
The future generations will face significant financial challenges due to climate adaptation, brittle financial markets, and the Supreme Court's increasing autonomy and potential obstruction of progressive change. The speaker argues that these constitutional debates are often ahistorical and a cover for deregulatory agendas. However, acknowledging the current Supreme Court's stance, the only solution is to win elections and change the composition of the court. The speaker also emphasizes the need for a more positive vision of the administrative state and effective government, but recognizes the challenges in selling this idea due to distrust in institutions. Three influential books for the audience are Paul Sabin's "Public Citizen," Michael Lewis's "The 5th Risk," and the speaker's own paper on legitimacy and accountability in government.
Exploring complex issues and the role of bureaucrats: Bureaucrats can contribute to complex solutions and it's essential to challenge dominant narratives and seek diverse perspectives.
There are valuable and nuanced perspectives on government bureaucrats that are often overlooked in popular discourse. A recent example I encountered is the novel "Babel or the Necessity of Violence" by RF Quang, which offers a thoughtful exploration of themes like colonialism and translation. Despite its dark and magical elements, it's a reminder that complex issues require complex solutions, and those who work in bureaucracy can play a crucial role in that process. It's important to challenge dominant narratives and seek out diverse perspectives, even if they're not directly related to our work.
