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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts How Can Biden Govern? Think "Zero-Based" Governance
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Friday, December 04, 2020
How Can Biden Govern? Think "Zero-Based" Governance
Stephen Griffin
President-elect
Biden faces formidable policy challenges that would daunt any incoming
administration. A still-raging pandemic,
considerable economic uncertainty, and an unusually fraught international
situation, among many others. Devising
responses to these challenges would not be easy even in favorable
circumstances. But circumstances are far
from favorable because of the pervading climate of distrust, relatively unique
in American history, of which the Trump presidency is both consequence and
cause. The issue goes further than
merely registering that most Americans have low trust in government. There is tangible evidence that tens of
millions of citizens have, in effect, seceded from America, at least in terms
of no longer being devoted to the “nation” as distinct from allegiance to a
party-country located mostly in “red states” and rural counties. They have no desire to leave and few are
willing to take up arms to found a True America of the Rural Counties. But they have left behind governance norms as
they are understood by longstanding denizens of Washington, D.C. – including
Joe Biden. So I offer here
some historical and constitutional suggestions on how Biden can govern in a
pervasive low-trust environment. Taking the Covid-19
pandemic as a starter, Biden faces the reality that it has actually been quite
a while since any president, Democratic or Republican, asked the American people
to sacrifice for anything. Notably
President Bush did not after 9/11, something that was widely remarked on at the
time. People of a certain age might
remember President Carter asking Americans to treat the energy crisis as the
“moral equivalent of war.” Post-World
War II presidents got in the habit of over-using the metaphor of war to summon an
extraordinary public commitment or to mark certain policies as having a
superordinate status. Whatever the
merits of the metaphor, what we should notice is that it assumes a relatively
high trust environment – along with, by the way, a familiarity, largely missing
today, with what an all-out war effort actually entails. If most Americans lack this experience, what
is a president to do? There are no
guidebooks for governing in a low-trust environment. This suggests Biden must pursue an unconventional
path if he wants to accomplish anything of substance. I will call my suggestion in chief “zero-based
governance.” Harking back again
to the late 1970s, the Carter administration promoted a concept Carter was
familiar with from his days as Georgia governor called “zero-based
budgeting.” As I understand it, the idea
was to force government agencies to justify everything they were doing during
each budget cycle, thus steering them away from simply asking for marginal
increases in every program every year.
The takeaway for the Biden administration: be prepared to justify
everything from the ground up. Zero-based
governance assumes the persistence of the current low-trust environment and
thus enjoins officials to take nothing (I mean no thing!) for granted. On this model the validity of the credentials
of any expert must be reauthenticated on demand. But how to proceed along this line? Through a particularly ruthless form of
pragmatism, judging by consequences. A
very small “p” populist consequentialism, that is. So, for example, we don’t listen to Anthony Fauci
because he actually is one of the world’s foremost experts on infectious
disease (something I agree with, of course).
We listen to him because his advice (or the CDC’s and so on) can help us
save our lives, our businesses, our economy – and here’s the important part – relative to the advice of anyone else,
particularly “independent” experts nattering on tv and social media. Low-trust governance is pervasively
comparative. It’s line is not, “who’s
your expert, what’s your authority,” but rather, “show me the money,” i.e., that
your advice actually works. I’m afraid
this entails demoting or dismissing any expert whose advice doesn’t work. That there are consequences for bad advice is
intuitively crucial to rebuilding public trust, as it shows the officials in
ultimate charge are not simply careerists protecting their credentialed friends. And so yes, “you’re fired” should remain very
alive in the arsenal of the Biden administration. The Biden
administration must place a relentless emphasis on demonstrating to the public
the concrete and specific consequences of ignoring the advice of experts. It kills your friends. It closes businesses. In other words, however obvious this sounds,
the pandemic is the fundamental cause of our economic distress, not government
action. Perhaps the media should be
allowed to essentially camp out in the health system. More media reporting should be allowed in
hospitals, for example, where it is my impression reporting has been limited
because of an understandable concern for restrictions. At the same time, if particular government
agencies, such as the CDC, made mistakes in the pandemic, those must be clearly
acknowledged on government websites with information provided as to how the
problem was fixed. Zero-based
governance also means there should be an aggressive and rigid commitment to
equality of treatment. Everyone, especially
public officials, must follow exactly the same rules to the letter. So, no meals at the French Laundry (or large
parties at the State Department)! No
more traveling to Cabo while exhorting those at home to stay there! Any official, high or petty, national or
local, who deviates from mandated Covid-19 restrictions must apologize and highly
resolve going forward to practice what they preach – or resign. Parenthetically, I
infer this probably does not get us to what conservatives would regard as a level
playing field. From their perspective
what would be required to restore trust between experts and the public would be
to have all public health experts that were silent or approving during the
Black Lives Matter demonstrations last summer ask for public forgiveness for not
even-handedly applying their own standards.
Of course, many demonstrators did wear masks but what conservatives
noticed was the deafening silence from experts as the demonstrations and summer
went on. Here Biden does have personal
credibility in that he did wear a mask from an early point, practiced social
distancing and so on. He also has the
advantage of invoking the fresh start for the country that any new presidential
administration can lay claim to. The next strategy
I recommend for survival a zero-based environment is one that often strikes
political experts as orthogonal. Biden
needs to make it clear that he stands for fundamental political reform. There are actually good reasons for Americans
to be disgusted with the operation of their political system. One top priority for reform? Congress itself. When the curve of public trust goes down,
Congress is almost always at the bottom.
Biden should recognize this and regard it as an opportunity rather than,
as Obama did, a situation that calls for the president to rely on Congress’s
good faith. Meaningful advocacy of
political reform, including reforms the center-left likes, like non-partisan
legislative districting, is both good policy and makes a lot of sense to voters
angry at both parties. In this respect,
Majority Leader McConnell is the near-perfect foil to demonstrate the Senate’s
inability to act on important national issues.
Here, as Sandy Levinson, Robert Dahl and other scholars have pointed out
for years, many changes can be rung by a properly assertive president. The Senate’s nonrepresentative character,
abetted by supermajority rules like the filibuster which should have been
abolished decades ago, are examples. Yes,
as a former senator, this will be a tall order for Biden. But he cannot afford to be identified one of
the most archaic and distrusted institutions in the country. Congress and our political system require
reform and Biden should be leading the way. Biden is clearly in
for an information war the likes of which the country has rarely seen, with the
opposition being led by Trump himself.
Expect the kind of distortions we saw in the debate over the Affordable
Care Act, such as the “death panel” controversy. The Biden administration needs an active
strategy for not simply advocating its own proposals but keeping the opposition
off-balance. One possible way to do this
in a low-trust environment is to use nonpolitical actors, ordinary citizens as
a way of lending support to public policies.
Some of them may receive retaliation in response. That too, should be documented and used to
suggest the nature of the opposition in difficult times. As Bryce Covert suggests, one way to do this
is by paying close attention to the results from the just-approved ballot initiatives. Increasing the minimum wage should be
overdetermined at this point – if it is not front and center in the Biden non-Covid
agenda, something is quite wrong. Giving
direct democracy its due can offset the inevitable impression of the Biden
administration as credentialed elitists imposing their will on the rest of
America. A low-trust
environment with a former president goosing the opposition demands a different
approach than the D.C. standard – zero-based governance. Take nothing for granted. Judge by proven results, not credentials. Adhere rigidly to a norm of equal treatment
for all, especially with respect to your friends in government. Embrace the necessity of fundamental
political reform and create new approaches to convincing citizens that the
government actually has their back this time.
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Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. 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Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |