Category Archives: Public Policy and Governance

Checks And Balances

There’s a reason Donald Trump has been focused on the selection and seating of highly partisan judges with little to no judicial experience. When he is sued over his autocratic actions, and the cases are heard by competent judges currently on the bench, he loses. Bigly.

The courts are part of that “checks and balances” thing the Founders were so hung up on.

The Washington Post considered Trump’s “win-loss” ratio, and Ed Brayton (Dispatches from the Culture Wars) commented on the report.

The Washington Post looks at the track record of legal challenges to Donald Trump’s policies, especially in regard to changing Obama-era regulations and issuing executive orders, and finds that he’s losing those cases in court at an astonishing, but predictable, rate.

It’s clear from the Post’s report that Trump and his cabinet of incompetents lost a number of cases simply because they ignored relevant laws prescribing the process that had to be followed.

Federal judges have ruled against the Trump administration at least 63 times over the past two years, an extraordinary record of legal defeat that has stymied large parts of the president’s agenda on the environment, immigration and other matters.

In case after case, judges have rebuked Trump officials for failing to follow the most basic rules of governance for shifting policy, including providing legitimate explanations supported by facts and, where required, public input…

“What they have consistently been doing is short-circuiting the process,” said Georgetown Law School’s William W. Buzbee, an expert on administrative law who has studied Trump’s record. In the regulatory cases, Buzbee said, “They don’t even come close” to explaining their actions, “making it very easy for the courts to reject them because they’re not doing their homework.”

Somehow, “homework” isn’t a word one associates with Trump, or with the Keystone Kop assortment of cabinet officials he has appointed. Usually, the “win rate” for government in these sorts of cases is about 70 percent. But as of mid-January of this year, a database at the Institute for Policy Integrity at the NYU Law School shows Trump’s win rate at about 6 percent.

Actually, that’s not bad for someone who clearly isn’t familiar with even 6% of the Constitution, and who has exhibited 0% knowledge of the rules and norms governing the office he holds.

Ed Brayton, as usual, cuts to the heart of the issue:

There’s a simple reason this is happening and it goes back to the old proverb that a fish rots from the head down. Trump could not possibly care any less about pesky things like legal protocols and requirements. He thinks if he just bellows out “I want this done,” it gets done. Following proper legal procedures is for the little guy, the plebes, the rabble, not for narcissistic wannabe dictators who are used to getting their way.

The only way Trump, McConnell and today’s GOP can game the system going forward is by corrupting the judiciary. And on that, their progress should terrify us all.

The Trump Effect

The more I learn about Trump’s Washington, the more nauseated I become.

I recently came across an article in the Washingtonian, looking at the ways in which Trump’s Presidency has changed lobbying.The lead-in to that discussion was a report detailing another “Trump effect”–his negative effect on tourism.

The development, Dow explains, was rooted in several forces, including a stronger US dollar, economic weakness in Latin America, and dirt-cheap airfare in Europe. But there was another factor, Dow says: “the Trump effect.” The 2017 executive order blocking entry to citizens from six majority-Muslim countries, and the President’s hostile proclamations about immigration, had signaled to foreigners they weren’t welcome here, even if they only wanted to spend money in Times Square and go home.

Understandably, travel agencies and their lobbyists wanted to “change the rhetoric.” In previous administrations, the lobbyists would have started with the bureaucracy, whose officials the lobbyists usually knew.

In Trump’s government, though, the rhetoric came from the President’s own gut. Sharing policy insight with an agency functionary wasn’t going to help. They had to plant their talking points in front of POTUS himself. But how?

The coalition hired S-3 Public Affairs, one of the many DC lobbying-and-media-consulting firms scrambling to adjust to the city’s new power structure. In prior years, says S-3 partner Amos Snead, the firm might have designed an “outside-in” approach—collect letters or petitions from industry backers around the country, bring them to Washington, and use the testimonials to influence lawmakers, agency officials, and other thought leaders. Trump’s Washington, Snead believed, required a different approach. He sensed there might be a more direct path into the President’s head, via one of his favorite mediums: Twitter.

They followed Trump’s movements and sent their ads to IP addresses that covered wherever he was. This is what’s known in the industry, as the “audience of one” strategy—and according to the article, it’s become a staple of the business of Washington under Trump.

We may be critical of bureaucracy, but individual bureaucrats typically know a great deal about their particular area of governance. Lobbyists who want to be effective have to pitch their arguments to people who can immediately spot the weaknesses, ask pertinent questions, and “vet” proposals before sending them on up the chain of command.

Not in Trumpworld. He Who Knows Nothing responds only to flattery, so lobbyists now bypass informed underlings (to whom Trump doesn’t listen anyway.) Now…

During at least the first seven months of the new administration, staffers in the White House communications department compiled flattering news stories about Trump into packets, which they delivered to the President twice a day. According to a former White House aide, as the packet made its way to the Oval Office, additional officials inserted other news articles they wanted the President to read. “It would typically be, like, Stephen Miller putting his latest race-baiting story in there,” the former White House aide says.

When consultants and lobbyists learned about the folder, they saw a fresh opportunity. One Republican consultant told me he was able to plant stories favorable to his corporate clients in Breitbart News—the far-right outlet once run by Trump’s former strategist, Steve Bannon—and then pass those stories to a friend in the White House, who in turn slipped them into the daily packet destined for the Oval. “If you have a friend in there who can get something on the Resolute desk,” the consultant says, “it doesn’t really matter what the source [of the information] is anymore.”

And then there’s television…

The cornerstone of the audience-of-one strategy, though, is Trump’s love affair with television. After the election, consultants began buying commercial time during Fox & Friends, the conservative morning show that the President is known to watch religiously. But how do you get a 72-year-old man with no interest in policy to watch a commercial on ethanol subsidies? Well, the influencers decided, you find old footage of Trump discussing the issue on the campaign and make him the star of the commercial.

“The President’s favorite topic is himself,” says a Republican consultant. “What better way to get him interested in a message than by providing him with the thing that he’s most obsessed with?”

There’s much more along these lines in the article. Those of you with strong stomachs should click through and read it. I’ll just warn you that the policy process in Trumpville looks nothing like the one I’ve been teaching for twenty years.

As for me–I’m just going to go throw up now.

 

Meanwhile, Behind The Scenes…

While most of our media is caught up in “Mueller frenzy,” and Trump continues to suck all the oxygen out of the room, I thought I’d just share some underreported information about what our disgraceful federal government has been doing largely out of public view.

The Guardian is one of the few publications that seems to be following the day-to-day efforts of the Trump Administration to thwart global environmental efforts.

The United States and Saudi Arabia have hamstrung global efforts to scrutinise climate geoengineering in order to benefit their fossil fuel industries, according to multiple sources at the United Nationsenvironment assembly, taking place this week in Nairobi.

The world’s two biggest oil producers reportedly led opposition against plans to examine the risks of climate-manipulating technology such as sucking carbon out of the air, reflective mirrors in space, seeding the oceans and injecting particulates into the atmosphere.

Geoengineering is the name given to technical efforts to stop or reverse climate change; as scientists have proposed various methods, concerns over the potential for dangerously negative global effects have increased. Assessing the risks of proposed massive environmental interventions would certainly seem prudent–but the fossil fuel industry has seized on these proposals as a way to justify further expansion of their industries, and they aren’t interested in risk assessments that might cast doubt on that expansion. Full steam ahead.

Add that to the administration’s other efforts to sabotage environmental measures.

This was not the only agenda item in Nairobi that Trump administration diplomats were accused of watering down; they were also accused of undermining efforts to ensure strong environmental governance. “They are trying to remove all targets and timelines,” said one senior delegate.

An ambitious Indian resolution to phase out single-use plastics by 2025 has been diluted to resolving to “significantly reduce” them by 2030, said another delegate. The US was supported by Brazil and at least four other countries in pushing back the deadline and making the language more vague.

On marine waste, a Norwegian proposal to build an effective global strategy for dealing with plastics that enter the oceans has also met with resistance from the US. “They want to postpone measures so they can protect their industry,” said an ambassador from a large developing country.

In yet another example of being on the wrong side of history, there is the administration’s push-back against women’s rights. 

US officials in New York are attempting to water down language and remove the word “gender” from documents being negotiated at the UN, in what is being seen as a threat to international agreements on women’s rights.

In negotiations at the Commission on the Status of Women(CSW), which resume at UN headquarters this week, the US wants to replace “gender” in the forum’s outcome document with references only to women and girls.

The move follows similar attempts by the US last year to change languagein documents before the UN human rights council.

In draft documents, seen by the Guardian, the US is taking a step further at CSW by refusing to reaffirm the country’s commitment to the landmark Beijing declaration and platform for action, agreed at the fourth world conference of women held in 1995.

After all, why would practitioners of “locker room talk” and predatory sexual behavior want to empower women?

Under the Trump administration, US negotiators have found themselves more aligned with countries including Iran, Saudi Arabia and Russia than European nations. These countries consistently seek to undermine agreements on women’s rights at the UN, specifically around reproductive health and rights. This year’s US delegation includes Valerie Huber, a proponent of abstinence-only sex education and now a senior policy advisor in the Department of Health and Human Services, and Bethany Kozma, an anti-choice activist and senior advisor for women’s empowerment at the US Agency for International Development.

Just file these “factoids” in the growing category “why the world no longer looks up to the United States.”

 

 

Regulatory Capture

Those of us who teach classes in public administration routinely include lessons on what is called “regulatory capture.” That’s jargon for the “coziness” that often develops between regulators and those whom they regulate.

The more technical and “exclusive” the area being regulated, the easier it is for employees of the government agency charged with oversight, and the representatives of enterprises they are overseeing to become comfortable with each other, and to develop a trusting relationship.

The concern, of course, is that it gets too trusting, and that the oversight intended to protect the public becomes too lax.

Regulatory capture is generally not intentional–familiarity leads to comfort, and things slip between the cracks. But of course, there are also situations in which lax enforcement is, shall we say, more calculated. The question being asked in the wake of two Boeing aircraft crashes, and reports that the FAA allowed Boeing to “self-certify” the safety of its aircraft, is: which kind are we dealing with?

According to the Washington Post, Boeing and the government have long had a “special relationship.”

As a top economic adviser to President Bill Clinton, Dorothy Robyn was charged with advancing America’s aerospace industry.

Part of the job was not choosing sides between companies. But there was one exception: Boeing.

“It was the one company for which I could be an out-and-out advocate,” Robyn said Thursday. In competitions between American companies, the administration as a rule remained neutral. But Boeing’s commercial airplane division employed tens of thousands of Americans and its prime competition, Airbus, was in Europe.

“In the engines business, you can’t choose between GE and Pratt & Whitney. With Boeing, that’s it. They’re ours. It is the only sector where we have a de facto national champion and you can be an out-and-out advocate for it.”

That “special relationship” has existed for decades. Boeing makes the planes that fly as Air Force One. A former Boeing executive, Patrick M. Shanahan, was tapped by Trump to be acting defense secretary after the resignation of Jim Mattis, despite the fact that he had no prior government experience. Boeing’s business is so dependent on federal government policies that the company spent $15.1 million last year on approximately 100 Washington lobbyists.

Boeing booked a record $101.1 billion in 2018 revenue, up 13 percent from the year before, and analysts say about a quarter of that was from government contracts. In 2017, Boeing received an estimated $23.3 billion in taxpayer-funded contract awards, not including classified military funding. And its joint ventures with Lockheed Martin and Bell Helicopter Textron received $2.2 billion and $2.5 billion, respectively, in federal contract funding in 2017….

Daniel Auble, a senior researcher at the Center for Responsive Politics, called Boeing “an excellent illustration” of the “the undue influence of money in our political system.”

In the wake of the two crashes, Congress has demanded answers about FAA oversight of Boeing, including why the FAA didn’t ground the company’s planes until regulators in Europe, China, Australia and elsewhere had done so.

Some FAA personnel have complained that the agency has given Boeing too much responsibility for its own safety checks.  Concerns about a lack of rigorous oversight–especially as reports have emerged about Boeing’s “rush” to beat a rival and deliver these aircraft–is only the most recent evidence that warnings about the company’s “cozy” relationship with the government are not misplaced.

The close relationship between the Pentagon and Boeing is part of a long-standing revolving-door culture in which senior defense officials move back and forth between jobs in government and with defense contractors.

In 2004, Darleen Druyun, a high-ranking Air Force procurement official, was sentenced to prison after she admitted that she approved a purchase of 100 refueling airplanes from Boeing at an inflated price of about $20 billion to enhance her job prospects with the company. She also leaked proprietary pricing information from a competitor and helped Boeing secure a separate $4 billion as a thank you for hiring her daughter and future son-in-law.

According to Bloomberg (link unavailable)

In one previously unreported case involving a separate aircraft program, a Boeing engineer sued three years ago, claiming he was fired for flagging safety problems that might have slowed development. Boeing has denied the claims.

If the investigations now underway find evidence that regulatory oversight was lax–whether due to an excess of trust or something worse–it will be yet another item on the growing list of reasons other countries no longer feel they can trust us.

As airlines cancel several billion dollars of orders for Boeing airplanes, and the company’s stock tanks, the livelihoods of Boeing’s 153,027 employees are at risk. The economic consequences for the whole country could be very ugly.

America is about to get a lesson that our anti-government Republicans won’t like: effective regulation and oversight are essential to economic stability and growth, and only government can provide it.

 

Penny Wise…

Investigators looking into those raging, destructive fires in California a couple of months ago have determined that the fires were caused by power lines that came into contact with each other during high winds.

According to Engineering News Record (I know–you have a copy on your coffee table, don’t you?),

The resulting arc ignited dry brush on Dec. 4, 2017 , starting the blaze in Ventura and Santa Barbara counties that resulted in two deaths and blackened more than 440 square miles (1,139 square kilometers), according to the investigation headed by the Ventura County Fire Department .

The arc “deposited hot, burning or molten material onto the ground, in a receptive fuel bed, causing the fire,” said a statement accompanying the investigative report.

Investigators said the Thomas fire first began as two separate blazes started about 15 minutes apart that joined together. They determined Southern California Edison was responsible for both ignitions…

The fire destroyed more than 1,000 structures before it was contained 40 days after it began near the city of Santa Paula . A firefighter and a civilian were killed.

If the damage from the fire itself wasn’t destructive enough,

A month after the blaze started, a downpour on the burn scar unleashed a massive debris flow that killed 21 people and destroyed or damaged hundreds of homes in the seaside community of Montecito . Two people have not been found.

Here’s my complaint. (Okay, my diatribe.)  The ravages of the fire–the destruction of homes, the deaths, the dislocations– could have been avoided had the power lines been buried. And it isn’t just California, and it isn’t just the enormous amount of damage done every year by downed or otherwise unsafe power lines–there’s also an aesthetic issue, at least in cities, where poles and lines clutter the sky.

The immediate response to this complaint is always the same: burying power lines is too expensive. That response is typical of America’s approach to infrastructure generally, which can be perfectly summed up by the old adage “penny wise and pound foolish.”

Over the long term, buried power lines will require less maintenance and will cause far less damage. (Southern California Edison is now in bankruptcy, thanks to the fires.)

It’s the same story with other infrastructure. Streets that are properly paved and repaired last longer and require less annual attention. (Indianapolis’ third-world streets are the result of many years of “fixing” recurring potholes with haphazard and ungainly patches and the application of paper-thin asphalt coatings to untouched, steadily deteriorating street beds.)

There’s an old saying that “long term” to a politician means “until the next election.” The political system’s incentives are all perverse: spend as little as you can (pretend it’s the result of “efficiency”); whatever you do, don’t raise taxes; do the repairs that you absolutely must as cheaply as you possibly can, and let the next guy worry about it.

The problem is, when we don’t do it right–we have to do it over. And over.