GovInsights: Strive for Consensus, Fix Education and Stop Blaming Regulatory Agencies

This time we talked to Jeffrey S. Lubbers, Professor of Practice in Administrative Law at American University’s Washington College of Law. Prof. Lubbers served in government as the former Research Director for the recently revived Administrative Conference of the U.S. (ACUS), where he now served as a Special Counsel. He has written extensively in the field of Administrative Law.

It’s not easy to choose the three biggest challenges that government faces today. It’s akin to an essay question on a college application, but here goes:

1. Our polarized political system.

We are now firmly in red and blue camps. Dems are pretty deep blue and Repubs are pretty fire-engine red. Why is this?

Partly because our elected representatives have taken on these hues. Every ten years, congressional districts are gerrymandered by state legislatures to create safe seats for their parties. Primary elections contests become the main event, and these tend to favor candidates from the more extreme elements of each party who, despite their extremism, can still win many of these “safe seats.” Once elected, they decry compromise as weak. Third party or independent candidates rarely can gain traction because people don’t want to “throw away” their vote. And after the Citizens United decision, anonymous election advertising—mostly negative—by shadowy groups has increasingly poisoned campaign dialogue.

Another reason is that the Internet-fueled media has self-selected too. We obviously have right- and left-leaning cable networks and websites, and we tend to reinforce our own views via self-selection, as Cass Sunstein has shown in his 2009 book, Going to Extremes: How Like Minds Unite and Divide.

Needed Reform: In terms of politics, states should do as Iowa does, redraw their congressional districts using a nonpartisan Legislative Services Agency. It produces competitive races. “Instant runoff voting” would allow voters to really vote their real choice in multi-candidate races, knowing that their second choice would count too. See http://en.wikipedia.org/wiki/Instant-runoff_voting for pros and cons. In addition, let’s begin an effort to amend the Constitution to abolish the Electoral College. For its part, Congress should pass the Disclose Act, which would at least require third-party groups funding election ads to disclose their funders. Consensus-producing government agencies like the revived Administrative Conference of the U.S. [www.acus.gov], Congressional Research Service, the IRS National Taxpayer Advocate office, and the Federal Mediation and Conciliation Service should be supported. In terms of the media, I do not suggest regulating the Internet. But ultimately we need more sites like Govloop, and more commentators who are willing and able to defend successful programs like TARP, the rescue of General Motors, and regulatory programs that actually do save lives, and clean our environment.

2. The increasing weakness and inequities of our public k-12 education system.

Our kids are our future, yet we consign great numbers of them to a hopeless future due to our failing system of k-12 education. Most states rely heavily on local property tax revenues to fund the public schools. This means, of course, that wealthier districts generate more funds for “their” schools. This produces a rich-gets-richer and a poor-get-poorer syndrome, exacerbated because the poor have no choice because they can’t afford private schools. Is it any wonder that inequities in schools in poorer districts are perpetuated for generations?

Nor can we take comfort in US students’ overall achievement. The OECD’s 2006 study of science and math competencies among students around the world show that the US is in the bottom half of OECD countries in science and the bottom fifth in math. See http://www.oecd.org/dataoecd/30/17/39703267.pdf. And we wouldn’t even be that high without immigrants. A cursory examination of the 40 Intel Science Talent Search 2010 Finalists shows that at least two-thirds appear to come from Asian-American and Eastern European immigrant families, http://apps.societyforscience.org/sts/69sts/finalists.asp.

Needed Reform: States need to devote more of their general revenues to education to equalize funding across demographic areas. School districts need to be carefully drawn to enable more demographically mixed schools. Public funds now diverted to private schools need to be reinvested in public schools. And finally we need to foster programs for getting students excited about learning. Teach for America is a win-win program. And universities should devote some of their resources to local public schools. A great example is my law school’s Marshall-Brennan Constitutional Literacy Project in which law students teach a special semester-long constitutional law course in the Washington D.C. high schools and organize an annual moot court competition for these students. See http://www.wcl.american.edu/marshallbrennan. I’ve been a judge in these competitions and the students’ enthusiasm and advocacy skills are amazing.

3. The diminishment of resources available to federal non-defense, regulatory agencies.

It is a myth that our federal regulatory apparatus is a swollen bureaucracy that is over-regulating our economy. First a few facts: the Departments of Defense, Veterans Affairs and Homeland Security are by far the three largest in terms of civilian federal employees. In fact, employees in each of the sub-Departments of the Army and the Navy far outnumber the total number of employees of all of the independent agencies (not counting the Postal Service which is also shrinking fast). See http://www.opm.gov/feddata/html/2009/September/table2.asp. Tellingly, by far our smallest federal Department is the Department of Education.

Moreover, total executive branch employment today and for most of this past decade is about the same as in the Eisenhower Administration. See http://www.opm.gov/feddata/HistoricalTables/ExecutiveBranchSince1940.asp.

More to the point, key protective health and safety regulatory agencies, such as EPA, NHTSA, OSHA, and the CPSC, have seen their staffing and budgets (adjusted for inflation) flatline in the last 40 years. For example, the ratio of federal OSHA inspectors to federally protected workers has gone from 1 to 30,000 in the late 1970s to 1 to 60,000 today. Other consumer and labor protection agencies such as the CFTC, EEOC, EPA, FCC, FTC, NLRB, and NRC have shown little if any growth in staffing in the last 20 years. This has resulted in a “hollowing out” of our government. See http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1877&context=fac_pubs.

All this makes calls for freezing or cutting “non-discretionary, non-defense” spending in order to reduce our deficit unrealistic and counterproductive. Our FY 2010 budget consists of only 35.2% discretionary spending (the rest are entitlements and interest payments on the national debt). And only 15% of our total budget is for non-defense discretionary spending (and even that includes veterans payments, homeland security, the FBI, and other sacrosanct programs). See the interactive pie chart at www.americanprogress.org/issues/2010/03/discretionary_spending_interactive.html . The remaining programs have been cut to the bone already.

Needed Reform: The public needs to understand just how small a slice of our budget is represented by regulatory agencies. Politicians need to stop bashing federal workers, who, after all, are trying to carry out congressional mandates with fewer resources every day. Our federal deficit reduction plans need to focus on gradual cuts to the non-discretionary and/or defense portions of our federal budget.

Previous GovInsights:

– Harvard’s Dr. Ganz: GovInsights: We Need a Major Social Movement

– George Washington’s Dr. Langenbacher: GovInsights: What We Need Right Now — Spending Cuts, Higher Taxes and Closer Friends

– National Defense University’s Dr. James Kaegle:s GovInsights: Do You Have a Duty to Die?

– George Washington’s Dr. Gregory Squires: GovInsights: Crack Down on the Wealthy and Powerful; Empower Citizens Instead

Jeffrey S. Lubbers was appointed Professor of Practice in Administrative Law at American University’s Washington College of Law in 2009, after being a Fellow in Law and Government since 1996. He teaches Administrative Law and related courses. He has also taught at the University of Miami School of Law, Washington and Lee University School of Law, the Georgetown University Law Center, Melbourne University, Ritsumeikan University Law School in Japan, the University of Ottawa, and Australian National University. He has an A.B. degree from Cornell University and a J.D. from the University of Chicago Law School and is a member of the bars of the State of Maryland and the District of Columbia.

Prior to joining American University, he served in various positions with the Administrative Conference of the United States (ACUS), the U.S. Government’s “permanent” advisory agency on procedural improvements in federal programs until its closure by the 104th Congress in 1995. (It has reopened in 2010 and he was appointed a Special Counsel.) From 1982-1995 he was ACUS’ Research Director—a position in the Senior Executive Service. He served as Team Leader for Vice President Gore’s National Performance Review team on Improving Regulatory Systems in 1993.

Disclaimer: The views and opinions here represent Dr. Jeffrey S. Lubbers own and not the ones of his employer or affiliated associations and institutions.

Professor Lubbers teaches in the Program on Law and Government at American University Washington College of Law. The Program houses the LL.M. in Law and Government, Marshall Brennan Constitutional Literacy Project, Health Law and Policy Project, Summer Institutes on Law and Government and Health Law and Policy, and the S.J.D. Program. For more information on these programs and the numerous free events held throughout the year, please visit www.wcl.american.edu/lawandgov or email[email protected].

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Michele Costanza

Thanks for the interview. Would he mind expanding on the claim that per pupil spending improves student academic achievement?

Jeffrey Lubbers

This is a fair question and it is one that I admittedly thought would be easier to show than it is. When I looked into this more I found that in fact there is a fair amount of evidence that per-pupil spending alone does not necessarily correlate with pupil performance—at least on standardized tests.

This is apparently because other factors enter into this—for example, schools or school districts with a higher number of special-needs students can have significantly higher per-pupil expenditures without higher average performance. Also, not surprisingly, student performance is affected by parenting and the level of family resources as well, so a higher percentage of students participating in the school lunch program (a proxy for low income) in a school often correlates with lower average performance. Furthermore, when doing state-by-state comparisons, a lot depends on the overall cost of living in the state. Thus New York has among the highest per-pupil expenditure in the country and Mississippi among the lowest. But I also found a study that showed that per-pupil expenditures on technology (computers, etc) do correlate with property assessments.

In sum, Michele’s question shows I was a bit too glib in my analysis of this complicated issue. But ask yourself: all other things being equal, wouldn’t you rather have your child go to a school with more resources than fewer? And if not, is it fair to the schools in poorer areas to have their resource level tied to property values?