The Exhaustion Theory of Non-Policy
And why we desperately need some new governing energy
“Yeah, there are problems. Big problems. But they aren’t going to open that law up any time soon. It took too much energy.”
It was the early 2010s, and an important, experienced policy person was explaining to me (a feisty young buck by comparison) why the state legislature wasn’t going to consider amending its badly flawed charter school law.
In the decade since the law was passed, several outside groups had rated it as the worst in the nation. Moreover, based on a decade of in-the-state experience, knowledgeable people understood that the law had to be altered. Nevertheless, this veteran observer was certain—and turned out to be correct—that the law would remain as-is for the foreseeable future.
As my last column described, I almost always see policy issues first in terms of ideology and principles. So I discounted this analysis. I told myself that the law wasn’t going to change because powerful people didn’t like educational differentiation and civil-society-led schooling and because anti-school-choice forces had the political might to preserve the bad law.
At the time, I gave entirely too little credence to the old hand’s assessment—that the real explanation for a stable status quo was simple, human, and practical: The legislature simply didn’t have the energy to relitigate the bruising fight that produced the law.
Now that I’m decidedly closer to an old hand than a young buck, I appreciate how often this exact scenario happens.
This is what I call my “Exhaustion Theory of Non-Policy.” It’s one explanation for why something doesn’t get done when it seems like it should.
Before explaining exactly what I have in mind, let me give you a few other examples so you get a sense of where my theory comes from.
Federal K-12 education policy has been largely nonexistent for the last decade (since the 2015 passage of ESSA). This is despite the enormous problems we face. Falling student achievement. Massive learning loss during the pandemic. Staggering chronic absenteeism. But in 2001-2, Congress developed and passed and President Bush signed an historic overhaul of schooling via the No Child Left Behind Act (NCLB). ESSA unwound NCLB but didn’t do much else.
How were we able to enact the largest K-12 policy change in nearly 40 years with NCLB yet seem unable to do anything meaningful in the years since?
America continues to suffer a terrible labor-force participation problem. Millions and millions of able-bodied adults (especially men) have simply exited the workforce. They aren’t employed, and they aren’t looking for jobs. Often, they receive disability benefits and/or other types of federal and state aid. But this is in the wake of arguably the most important domestic-policy reform since the Great Society—the massive welfare reform act of 1996. Through that law, we tackled chronic joblessness by thinking anew about welfare benefits, work, and education.
Why we were able to do something huge on these issues in the mid ‘90s but not since?
In 1972, Congress passed Title IX, guaranteeing equal treatment for girls and women in education. This was a necessary, long-overdue policy change. But today, boys and men are struggling mightily in schools. They have lower test scores, lower high school graduation rates, they are underrepresented in college, they are underrepresented among college graduates, they are less likely to get doctoral degrees, and so on.
How were we able to tackle the education needs of girls and women then but we’re unable to seriously address today’s education needs among boys and men?
These are only three examples. You could see how similar statements could be written about our inability to deal with immigration since the 1986 act, our inability to meaningfully reform Social Security since 1983, our inability to replace Obamacare after the GOP congressional landslides in 2010 and 2014, and much more.
For years, I had three general excuses for these things. The first is congressional dysfunction. “Congress can’t get anything done—it can’t even pass an annual budget anymore,” I’d yell. “Members of Congress want to be famous, not work,” I’d lament.
The second excuse is related to the first: America is so polarized that voters don’t want representatives who will compromise, and compromise is necessary for big policy action.
The third excuse was a series of particulars. I’d explain away each case with subject-specific answers. “Congress hasn’t done anything on K-12 schools because America wants Uncle Sam out of education.” Or, “Immigration is so complicated that a comprehensive solution is all but impossible.”
But all of this ignores what that old hand said to me. It underestimates the resources that must be spent on doing something big. It also underestimates the political costs suffered by those doing something big.
Think about what preceded welfare reform. For decades, scholars and policy wonks collected data and stories about the failure of the existing system. Governors and state legislatures tried to innovate. Advocacy groups had to be mobilized. Elections had to be run and won by talking about this issue. Entrenched interests had to be opposed. Federal legislation had to be drafted and amended and amended and amended some more to get cosponsors and ultimately committee and floor votes. This required all sorts of compromises and horse-trading. Editorial boards had to be convinced, squeamish members had to be cajoled or strong-armed. The president had to be convinced. Those who voted for it were targeted for defeat in the subsequent elections. Terrible things were said about anyone who supported it.
It is hard to overstate the effort required to overhaul the federal welfare state. It’s also not a mystery why members faced with the subsequent labor-force-participation crisis were not eager to undertake a similar effort.
A similar story can be told about the passage of the No Child Left Behind Act and the later reluctance to take on another massive federal K-12 reform agenda. After the release of a seminal 1983 federal report, the school-accountability movement grew and grew. There were gubernatorial meetings, state legislative activities, national convenings, think tank reports, and more. Both major-party candidates campaigned in 2000 on the need for education reform. Lots of Republicans and Democrats took tough votes on that legislation. It took more than a decade for Congress to seriously embark on an effort to scale it back.
Similar stories could be told about the massive efforts to reform immigration, entitlements, criminal justice, and more. They convulsed public life. They exhausted big parts of our system.
As we think about why our leaders are not solving big problems, we need to consider the resources—or lack thereof—available for that grueling work.
Two final thoughts.
First, all of the above argues for short legislative authorizations and regular reauthorizations—and probably fewer omnibus or comprehensive legislative packages. The bigger a piece of legislation, the more difficult it will be to pass, and the more exhausted the system will become. And if a law isn’t reauthorized regularly, its weaknesses will grow and its place will become calcified, making the costs of tackling it steeper and steeper.
Second, there is no substitute for a critical mass of new leaders who a) don’t have the scars of the last battle, b) have the energy to tackle a knotty problem, and c) are serious about governing not becoming famous.