People and Practices

Governing is more than priorities, more than policy, more than power

For the first few of these newsletters, I’ll experiment with form. Some will be one column on a single issue. Some will have thoughts on several different topics. Some will include recommended articles, podcast episodes, etc. For this one, I’ll touch upon two issues at the heart of this entire project—the people and the practices of governing.

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A Quiet Place

First, the people.

As I mentioned last time, I’m convinced that the public’s perception of governing gets distorted when the lion’s share of commentary comes from those who’ve never governed themselves and/or are primarily interested in campaigns, communications, philosophical abstractions, and political spats.

Let me explain one aspect of this. Bear with me.

Photo by Andrew Medhat on Unsplash

There’s a well-worn joke inside the Beltway: What’s the most dangerous place in Washington?

Between Chuck Schumer and a camera.

Though this version takes aim at the current Senate Majority Leader, it can apply (and has been applied) to lots of DC denizens. The joke works because it leans on the public’s sneaking suspicion that political leaders want attention first and foremost. Sadly, that’s not entirely wrong for a subset of officials—those desperate to get in the papers, on cable-news shows, have viral moments, and so on. They give the impression that the job they hold is valuable not because of its official roles and responsibilities but because it gives them greater access to the spotlight. (Incidentally, this helps explain why they are so willing to change positions on issues: The office isn’t a means to accomplishing a policy goal; the office is the goal.)

One of the many problems with this is that the things a public figure must do to get constant attention are often unseemly. Outrageous claims. Publicity stunts. Insults. Tragically, more extreme and partisan officials get much more coverage. That means such bad behavior is disproportionately represented in what the public reads and sees about public life. The public then infers that governing is a toxic mess. Similarly, since such actors are overrepresented in news stories, on television, and at public events, the public infers that this is how all public officials act.

That is not my experience. At all.

Most of the officials I’ve worked with in public life do not behave that way. In fact, they are more likely to shy away from public attention than lean into it. I think this is so for several reasons.

Most public officials I’ve seen in action have an old-fashioned sense of propriety and honor. They would never act like that because it’s simply not in their character.

First, most don’t want or need the attention. They are serving on a school board or on a county council because they want to get things accomplished, not because they want to become famous.

Second, most realize that behaving in such ways would inhibit their effectiveness. Boorishness projects unfounded confidence not competence; quickly, their colleagues wouldn’t like or trust them.

Third, they appreciate that such behaviors hurt the institutions they are serving. They respect their body, committee, or board ; they want it to be successful; they don’t want to tie it in knots or make it a laughingstock.

Lastly, most public officials I’ve seen in action still have an old-fashion sense of decorum, propriety, or honor. After getting to know these officials, I can’t imagine that they would ever act like that because it’s simply not in their character.

Now, back to my point about commentary. If commentators haven’t spent much time doing the actual work of governing, they wouldn’t have had the chance to see the quiet, understated public servants I’m talking about. In fact, a commentator interested in splashy events and nasty fights would be disinterested in the folks who purposely avoid splashy events and nasty fights.

I’ll have more to say about these matters in the weeks and months ahead but a few things are worth raising now. First, don’t despair of public life. Lots of great people are doing great things. American governing is still a marvel.

Second, lists of the most effective members of Congress (or state legislatures or councils) will generally have little to no overlap with members who get the most attention. Seriously, look at the list. Talented people are doing the work. Quietly.

Third, more public institutions are internally healthy than you might imagine. Yes, it makes for a good story to present them as viper pits. But that doesn’t make it so.

Fourth, we desperately need the media to stop spotlighting show horses.

Fifth, for decades, we’ve believed that a great way to improve governing is by making more things public and transparent. We have open-meetings and sunshine laws and FOIA and C-SPAN and streaming committee meetings and much more. But I’ve found that often the most interesting, thoughtful, productive conversations happen in executive or closed sessions because good people are more willing to have frank conversations in private. A modest person’s fear of publicity can cause deafening silence. Without returning to the days of secluded, smoke-filled rooms and shady deals, states should find ways to provide more private space for deliberation.

Lastly, if you are someone who cares about public service and would behave in institution-supporting ways, call or email your governor’s appointments office today and tell them that you’d like to find a way to serve. Even if the governor is of a different party. There are literally thousands of seats to be filled. They want and need good people to serve.

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A Major Question About That Rule

On to the matter of governing practice. One of my core beliefs is that the distribution of power—through democracy, federalism, localism, community, etc.—is essential to America’s health. Bad things happen when too much authority is centralized. Lousy decisions are made. Those lousy decisions can have pervasive, long-lasting negative effects. Too many of America’s valuable differences disappear because of homogenization. Minority communities lose control of the things that matter to them.

One of the predictable consequences of centralization is populism. People rebel against the system when they sense that those with power are distant, unknown, presumptuous, condescending, and/or have priorities and views at odds with their own. This is a variation on the theme captured by Dr. King’s famous line that a riot is the language of the unheard. When I see a movement like Brexit or prolonged anger at an institution, I always ask myself, “Were those people continuously made to feel powerless over things that matter to them?”

This is one approach I bring to thinking about the ongoing battles over the federal “administrative state,” the collection of executive-branch bodies that exert an enormous influence over public life through regulations, guidance documents, “Dear Colleague” letters, administrative hearings, and so on. Officials in these agencies are almost always unelected. They are generally based in Washington, DC. They typically achieve their positions because of “expertise” (i.e., they know a lot about farm subsidies, labor contracts, submerged aquatic vegetation, psychometrics).

This all can have a distinctly undemocratic air about it. If it’s not technocracy, it sure is in the vicinity. I think the administrative state, by its very nature, is always at risk of inadvertently mobilizing populist sentiment. That doesn’t mean we should unwind all aspects of the executive branch. In fact, I think legislation written at the proper level of specificity requires a measure of agency interpretation. But it does mean that someone should regularly whisper in the administrative state’s ear, “Be modest.”

Unfortunately, in recent years, Congress has been weak and agencies have grown brash. Unelected officials are making major policy decisions that ought to be made by Congress. I’m a firm believer that as a general rule, big policy choices made through the legislative process are wiser and lead to greater stability than those made by departments and agencies. The public gets frustrated when unknown figures via unknown processes control big parts of social or economic life. That frustration only grows when major areas of policy can turn 180 degrees every time a new administration elevates a new cabinet secretary.

As you can see, my argument here is actually about proper process not particular policy preferences. So what I am not saying is, “I want my policy goals realized by any means necessary.” Yes, of course, I want to win policy debates. But as a matter of good governing, I believe that following the procedures of democratic law-making is essential in our pluralistic republic. And that means I’m against an overreaching administrative state whether my political allies or opponents are in charge.

In recent years, battles over the powers of the administrative state have often been fought on the fields of two U.S. Supreme Court decisions—Chevron and Auer—that enhanced the authority of these entities (see also Seminole Rock and Kisor). Two major cases now being considered by SCOTUS could lead to the overturning of Chevron. That would be big. Lots of people have written about these matters, so I won’t repeat the arguments here.

But I do want to end by pointing to two lawsuits (filed by Texas and a separate slate of states) against Uncle Sam related to the recent issuance of new Title IX rules. Though nearly all of the media coverage of the rules has focused on its most contentious and sensitive elements, the lawsuits touch on the matter I’ve been discussing: Who has the power to make major policy decisions?

One of the most important and interesting SCOTUS decisions of the last decade came in 2022 in West Virginia v. EPA. The Court’s conservative majority more clearly articulated what is known as the “major questions doctrine” (see also Justice Barrett’s later explanation). In short, the Court now expects executive branch agencies to have clear legislative authority before making policy in major areas of public life. That is, unelected agencies can’t assume legislative powers constitutionally delegated to Congress. The current lawsuits say, in essence, “Through these rules, a federal department is creating and will administer far-reaching policies that were never considered, much less approved, by our elected representatives. The administrative state can’t treat a short, abstract statutory statement as a license to legislate. That unconstitutionally steals power from Congress.”

Obviously, this case makes a big demand of the justices—asking them to determine whether the U.S. Department of Education has answered a major question that should be answered by Congress. But it also makes a big demand of those of us who care about good governing. It asks if we are willing to say that regardless of our views on this particular executive-branch decision, we believe that most big policies choices need to be made by Congress.

To put a fine point on it, if you support this administration’s bold claims of authority here, would you be comfortable if your opponents acted on a similarly bold claim of authority? And if you oppose this administration’s claim, will you oppose such a claim when made by an administration with which you are aligned?

I believe that governing well is not only about what you do; it’s also about how you do it.