In his 2014 book “Political Order and Political Decay: From the Industrial Revolution to the Globalization of Democracy,” Francis Fukuyama of Stanford opines that good governance requires a centralized state, the rule of law, and accountability. He thinks our three branches of government in the U.S. go a long way towards addressing those basic factors. However, remaining at this high level of analysis is not very helpful in reforming government. We need adjustments of feet and inches, not miles. Let’s not exaggerate the degree of our impairments because that could lead to an overreaction in the other direction. No sense throw the baby out with the bathwater.
In this essay, I will flag a few selected issues and suggest preliminary proposals for improvements.
We should use a checklist when drafting and reviewing legislation or administrative rules, such as the one I presented in my book “No More Stupidtry.” That way we can ensure that all the key issues are considered, even if we cannot guarantee a perfect outcome. Think process.
We should always double check expenditures above a certain amount, which means that there must be multiple authorizations for expenditures (particularly salary limits and contract total spending limits). These checks and balances mean separations/firewalls within an agency, but may also require in some cases a double check by at least one outside agency.
We need a procurement system that allows for regular and fair procedures to create a level playing field, but which also allows the agency to freely conduct true background checks so that red flags can be identified and incorporated into the decision. Relying on the references proffered by a vendor is obviously not enough. If we have a long term project (e.g. IT or infrastructure), we must be willing to authorize long term contracts (or at least extendable contracts) so that we do not have to renegotiate price under duress from the vendor. It is basic to negotiations that if you can’t walk away, your counterparty can make you bleed.
We need transparency, not the kind that turns into a blizzard of useless and incomprehensible paper, but selected data that the public needs to know to evaluate what is going on at a high level. One can always put in a freedom of information act request after examining the overview.
We need to run a meritocracy and create serious consequences for a manager that subverts that process. There should be a soft “rule of thumb” to prefer applicants with a broad background. The reason for that is the people need to have perspective on themselves and not believe that they are more important than they are, or that the work they do is more important than it is, and so that they realize that they may not be the smartest people on the planet. It helps greatly to have significant business experience prior to entering government because you need to know how the two activities are similar and how they are different. And as with the federal judiciary, applicants for a government job should disclose any relatives who work for that branch of government (or at least that agency).
We should have a basic training program for all incoming government workers, not on the specifics of any given job, but on: (a) why the rule of law is important; (b) the fact that every agency has limits on their jurisdiction; (c) the basics of due diligence, fact-checking and research; (d) the difference between correlation and causation; (e) the key types of cognitive bias that affect human judgment; (f) the need for accuracy in communicating with the public in order to maintain credibility; and (g) how to identify a material conflict of interest.
We should create feedback loops so that workers and managers know the relative timeliness of their output and have a feel for the experience of the consumers that are using the services of the agency. It might be a surprise to some people, but relatively few workers in the government are front facing to the public in the sense of actually talking to them. Many jobs are back office, behind the scenes jobs.
We need an internal appeals process to foster the sharing of information if a given manager or worker is lying or hoarding information and dysfunction results.
We need an internal appeals procedure to allow input on the process by which decisions are made. This will act as a check on managers who try to subvert the decision-making process.
We need an internal procedure consistent with law that allows a confidential referral of a problem worker to a psychological counselor when the matter exceeds the ability and training of the manager to resolve; provided that this additional process may not be used against the employee in a personnel matter.
We need a way to avoid having politics infect decisions that should be made on the merits. To do that we need certain separations, including a separation between the political layer and the professional layer (decision makers from decision recommenders), and the separation of investigations from the exercise of prosecutorial discretion. This means that professional recommendations from the staff need to be in writing so that there is a record if they are rejected from above. There should be a soft “rule” that a manager that consistently refuses to put their decisions in writing or sign their initials on a recommendation should be fired for attempting to avoid accountability. If you don’t want to make decisions, then don’t get yourself into a position where you have to do that. If you can’t stand the heat, get out of the kitchen.
We should have an absolute rule that those who leave the professional layer and move into higher temporary political positions thereby lose any right to return to their old jobs. That way they are not insulated from the consequences of their political decisions and they cannot threaten workers in the professional layer by saying “I’m always going to be here, so watch out.”
We should find ways to avoid any government worker from becoming overly dependent upon their job and therefore overly subject to political influence. For example, government workers should not be barred from moving to a job in the private sector for any post-employment restriction period that exceeds four months from the date of separation from government service. Another possibility is a soft “rule of thumb” to make sure that new hires have sufficient prior private sector experience so that they have a reasonable ability to return to the private sector in the future.
Finally, everyone always talks about enforcing “accountability.” Well, I could write a whole essay about why it is so difficult to achieve that when it comes to government, from civil service to unions to the elected or appointed status of high officials, to politics, to legal liability. But I won’t do that now. Let’s just accept that we’re not going to get much accountability. Given that, our key objective must be to reduce the error rate. If there is no error, then there is no need for accountability. Also, may I say that the public plays a role in this? If the public doesn’t want to pay key government workers the market rate, then we might not get the best people and they might make mistakes. Folks should understand that most government workers are “do-gooders” of a sort and they find it just as embarrassing to be attacked for mistakes as you would. Maybe we would all be better off with a government of smaller scope that paid higher salaries. As I have told many people, if you’re going to do something, fund it properly, otherwise don’t do it.
Now, in the end some of these ideas may be discarded for any number of reasons. But we do need to start thinking down into the level of implementation, instead of merely saying that we don’t like corruption, particularly when we can’t even define what kinds of corruption might be unacceptable and what others kinds might be tolerable or even advisable under some circumstances in order to avoid disrupting the market. Typically, under the federal law, corruption occurs when a government worker takes official action in response to some kind of valuable gift (what we lawyers call a quid pro quo). Beyond that obvious case, the matter gets less clear very quickly.
Our Founding Fathers did not completely trust the judgment of the mob, nor did they completely trust the judgment of the elites. They did not completely trust special interests or political factions, but they recognized that they had to be accommodated. As a result, they came up with a system with mixed styles of decision making and checks and balances. Unlike some, I believe that we can make no blanket assumptions about the wisdom of the collective versus the wisdom of the expert, any more than we can make any assumptions about the relative wisdom of people inside the government versus the wisdom of people outside the government. People are flawed; information is limited; prediction is difficult. The upshot? We fall back on process. I therefore define “corruption” as subversion of the process by which decisions are made. I do not define “corruption” as mere input or influence by any stakeholder. The issue is whether there is undue influence. Not to be a smart alec, but those who complain about government corruption are often the same people who complain that government is anti-business. I want a clean government that follows the rule of law in a consistent way, but I don’t want bureaucrats harassing business people unnecessarily.
I hope you noticed, dear reader, that many of the suggestions in this essay do not require legislation or rule-making. It is just a matter of having intelligent management who know why a clean government is better for society and the market than one that is not. These things are easy to fix, for those who wish to fix them.
So let’s get down to the brass tacks. After all, we only started the American government two hundred and twenty-nine years ago. We should be ready for a few technical, yet strategic, adjustments by now, don’t you agree?
The author formerly worked for the State of Hawaii as an insurance regulator, but his views as expressed here do not necessarily reflect the views of his former employer. He has a B.A. from Columbia University, a J.D. from UCLA, an M.B.A. from the University of Hawaii at Manoa, and a CPCU.
“Social engineering has failed, but I think that we can continue to improve incrementally through the free exchange of ideas and a relatively free market system. As we do this, however, we must remain realistic. We may not have to accept the world as it is, but we must take it as we find it. You can’t get to utopia by living in a dream world.” From page 164 of “No More Stupidtry: Insights for the Modern World,” by Lloyd Lim (Tate Publishing 2016).