Thoughts on the Design of Government from December, 1980

Beyond the Beltway no one cares how the Federal government is organized. They want it to work. Both President Carter and President Nixon made reorganizing the government high priority, high visibility objectives. Both efforts failed. Moving intact programs from place to place is a waste of time. Beyond the Beltway no one’s life is touched by the Postal Service or the Department if Agriculture. You see the postman or the county agent. It’s the program, not the department that matters, and program by program the Federal government must be rethought and redesigned.

For example, no one wants more injuries among America’s workers, but a lot of people dislike OSHA immensely. If we can agree on the need to make workplaces safer, the question becomes can we design an effective program that is less costly and less interventionist than OSHA? One candidate would be a national Workmans Compensation program with teeth: if payments to workers were really equal to the damage done, firms would find ways to protect their workers. Their insurance companies would see to that. Under such a program, the money changing hands would go to injured workers rather than to today’s army of clerks, both within and opposing OSHA. Armies of clerks, whether public or private, contribute nothing to the balance of payments and even less to national productivity.

Countercyclical public works programs, intended to cushion recession, contribute instead to the next boom. The economy is on the upswing again by the time (a) the Congress notes a downturn and passes a bill, (b) the Economic Development Administration in Commerce passes out the money, (c) state and local governments pass it out again, and (c) the contractors do the work. The Pharaohs invented countercyclical public works, i.e., the Pyramids, thousands of years ago. Why can’t we come up with a program design that works?

The Law Enforcement Assistance Administration has not reduced crime in America. Soon we won’t have LEAA, but we will still have crime. What should we do next?
Problems such as unsafe workplaces, unemployment during recessions, and crime cannot be solved by reorganizing. We need to find new and better program designs. The search for solutions must be broad and thorough, in states and localities as well as abroad, in the past as well as the present, and across functional and disciplinary boundaries. Departmental staff, congressional staff, and lobbyists too often are bound to the program designs and commitments of the past.

No one now looks regularly at our existing Federal programs to see if they can be improved, if less costly or less interventionist designs might accomplish the same goals as well or better, or if indeed the programs are needed at all. New programs do not receive the scrutiny they deserve.

Most people agree on the goals which government has set out to meet, although their priorities may differ. Through an across the board review of the means we have chosen to reach those goals, we can redesign government programs to be both cheaper and more effective. But the job must begin with the program, not the agency and never the department.

To quote William Blake:
“He who would do good to another must do it in Minute Particulars;
General Good is the plea of the scoundrel, hypocrite, and flatterer,
For Art and Science cannot exist but in minutely organized Particulars
And not in generalizing Demonstrations of the Rational Power.”

The time is now.

Robert A. Knisely
December 1980

Dumb Design

This entry, ever expanding, lists news articles about attempts to correct societal imperfections, governmental and other, and their counterintuitive results, unintended consequences, and general misadventures – all very visible in hindsight.

1. NYT (07Aug11): The Phantom Menace of Sleep-Deprived Doctors, by Darshak Sanghavi. The father of young Libby Zion blamed sleepy doctors for the death of his daughter, and managed to get the rules changed nationwide so that medical residents can get some sleep. Took him 30+ years. Turns out that wasn’t the problem, and more sleep wasn’t the answer. Someone finally did what I’d call “systems analysis” and came up with better solutions for patient care.

2. NYT (06Aug11): Shortchanging Cancer Patients, by Ezekiel J. Emanuel. Fourteen of the 34 generic cancer drugs on the market in the US are in short supply this month. Going generic can drop a drug’s price by 90%, but President Bush’s Medicare Prescription Drug, Improvement and Modernization Act of 2003 prevents raising prices by more than 6% every six months in the event of a subsequent supply/demand imbalance. So why bother, say the manufacturers. Clearly there was no Legislative Impact Statement done on that provision of the law! [BTW, Europe doesn’t have these shortages.]


In late 1966, a young litigator left the Civil Aeronautics Board and later that year went to work for the Office of General Counsel in the newly formed Department of Housing and Urban Development (HUD).  As he requested, he was assigned to the Legislation Division.

In 1967, he learned that HUD was charged with exploring how to impose safety standards on factory-built housing.  Then as now, there existed factories all over the country that manufactured shelter components, assembling them to various stages, for transportation to sites for final assembly, or placement.  A large fraction of such housing finds its market with families of slender means, especially rural families.  The Legislation Division was involved because it was assumed that new program authority would be required, if HUD were to perform safety regulation.  The closest thing that HUD had theretofore done was minimum standards for FHA insured housing.

For most legislation, the first step in the legislation development process is for policy makers to define a goal, then to see if legal authority exists to address the goal, and only then to formulate the additional legal authority that will be required to reach that goal.   In an agency such as HUD, created by organic statute (Department of Housing and Urban Development Act, Pub. L. 89-174), some necessary authorities will already exist in generic form (e.g., the authority to issue implementing regulations) so that legislative authority for additional undertakings can be confined to specific policy goals.

In this case, the goal — safety regulation — was generally clear, although policy discussions most likely addressed unavoidable uncertainties; that is, questions such as whether the administering agency’s regulatory powers should reach manufacturers or sellers or resellers, whether there should be a threshold of value of parts or all the components, whether to address non-factory matters such as foundations or tie-downs, and so on.

Legislation formulated as a part of the policy development process does not ordinarily proceed as if it is to be written on a blank slate.  Rather, knowing in general what the policy formulators are developing, the legislative draftsman will seek analogies, and whatever new authorities are required will then be drafted off existing enacted laws.  The form and content of the existing law also act as a checklist for the new legislation.

Crafting a new authority so that it resembles existing laws helps provide answers to some legitimate questions that the legislature will have.  These questions include:  Is there legislative precedent?  How long has such authority been on the books?  Has the constitutionality been challenged, and with what result?  What are the character of interests that will be affected?  How much specificity is desirable in the legislation, and how much should be left to the implementing regulations?  Drafting off an analogy will permit these and other questions to be addressed in a more informed manner.  It is similar to the preference of experienced lawyers for “litigated language” — language that has been contested in court — in drafting contracts.

For manufactured homes safety regulation, HUD’s Legislative Division was at a loss for an analogy.  But the new lawyer came up with one easily: safety regulation of air appliances. Why?

The existing staff members in the Legislation Division were world authorities on the laws of housing, finance, insurance, land use, takings, banking, safety and soundness regulation, economic development, and state and local government.  The analogy, however, was drawn from the experience of the new, and junior lawyer, in transportation law, consumer protection, and economic regulation, topics with which HUD then had no experience.  Moreover, to that point, the junior lawyer had been a litigator, not a legislative specialist.

The answer in this instance, of course, was fortuitous cross-pollination.  There neither was nor is today any index or encyclopedia or other compilation that would have permitted HUD to have found that analogy, or perhaps any other.

The analogy was the authority of the Federal Aviation Agency to regulate aircraft, and components and appliances under section 603, Federal Aviation Act of 1958, originally codified at 49 U.S.C. 1423, which is an ancestor of the authority now codified at 49 U.S.C. 44702, -4.

The authority for the Manufactured Home Construction and Safety Standards program was in title VI, Housing and Community Development Act of 1974 (such gestation periods are not unusual), Pub. L. 93-383.

[More than a generation later, after substantial elaboration and recasting for codification, the two statutes are still similar!]


(Many thanks to “the young litigator” — KNiZ)

Designing Government by Design

Robert A. Knisely, Esq.

September 7th, 2010

“There are those that look at things the way they are, and ask why? I dream of things that never were, and ask why not?”– Robert Kennedy (1)

“I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times.” — Thomas Jefferson

Executive Summary

In the absence of government, according to Thomas Hobbes, there are: No arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death: and the life of man, solitary, poor, nasty, brutish and short.” Government’s role, then, is to change all that – to alter outcomes.

To do so effectively requires an understanding of society – past and present — and of past efforts to alter outcomes. In an age of increasingly complex, critical, and urgent problems, governments must also anticipate the future.

The resources needed include broad-based perspectives on society’s problems, accessible evaluations of past interventions, an extensive toolkit, a deliberative process, and a thorough vetting of proposed actions.

None of these are available to, or used by those designing government in America today.

A. Broad-based Perspectives

Any attempt to solve a problem must begin with an understanding of the problem in all its complexity – “things the way they are.” California’s restructuring its electricity market, as discussed in Chapter Two of the book “If We Can Put a Man on the Moon” makes this point. In sum, “After promising to reduce electricity costs by 25 percent or more, the new scheme saw electricity prices shoot through the roof, from around $30 to upwards of a staggering $1,000 to $1,500 per megawatt hour.”

We pride ourselves that ours is a government “of laws, not of men.” But as Oliver Wendell Holmes remarked, “In the law, an ounce of history is worth a pound of logic.” Apart from logic , we also need to enlist all of the relevant sciences. As I have said elsewhere, “Of the sciences overlooked, first and foremost are the sciences of complexity and the systems sciences developed around the time of WWII. Norbert Weiner and cybernetics come immediately to mind. There are many others, from game theory to highly reliable organizations.” Perhaps the most significant omission from the design of government is system dynamics. Computer simulation could be used both to sharpen our understanding of society’s interactions and to anticipate problems with our interventions. See Jay Forrester’s 1971 paper, “The Counterintuitive Behavior of Social Systems.”

Recommendation: Task the Congressional Research Service to create a checklist of the analytical methodologies and tools needed to describe societal problems and the systems surrounding them in sufficient detail to support legislative action. Provide for assistance from the General Accountability Office, the National Science Foundation, and the National Academies of Science and Engineering, as well as university centers such as Harvard’s Kennedy School of Government, MIT’s Sloan School of Management, and SUNY/Albany’s Rockefeller College of Public Affairs and Policy.

B. Accessible Evaluations

We need insightful evaluations of what’s working and what’s not, and why. These feedback loops in the Federal government have been evolving over the past half-century — or perhaps styles just change.

In the 1960’s and 1970’s, “program evaluation” was popular. A search for “program evaluation” on the General Accountability Office’s website returns 4,573 hits. In the mid-‘70’s I started an Office of Program Evaluation at the Department of Commerce. In 1989 I became Deputy Assistant Secretary for Budget and Programs at Transportation. The earlier office title, Budget and Program Evaluation, had been changed. No formal evaluations were being done or requested.

The less said about Zero-based budgeting the better. It was a passing fad of the Carter Administration (1977 – 1981).

The [now] IBM Center for the Business of Government published “Using Evaluation to Support Performance Management“ in January 2001. It states “[N]ine of the 13 federal departments contacted for this study had downsized their central evaluation capacity since the 1980s or never had a central evaluation office. The number of staff for program evaluation work has declined steadily from the late 1970s into the 1990s.”

The Government Performance and Results Act was passed in 1993, sounding the death knell for program evaluation. GPRA only looks forward: to plans, goals, and objectives one and five years in the future. Yet GPRA is now fading from view. A search for “GPRA” on GAO’s website returned 202 hits between 1992 and 1999, 91 between 2000 and 2009, and only one for 2010.

Mitch Daniels, President George W. Bush’s Office of Management and Budget Director, introduced the Program Assessment Rating Tool in a memo dated January 14th, 2003. PART’s archive at OMB has guidance only through FY2008. The website promising PART results — — also ends with FY2008 data. I found only two references to PART on the OMB website.

On February 18th, 2010, Jeffrey Zients, President Obama’s Chief Performance Officer, laid out his agenda: “Here are the six performance strategies: eliminate waste, drive top priorities, leverage purchasing scale, close the IT performance gap, open government to get results and finally, attract and motivate top talent. These are the six strategies that represent the biggest opportunity to boost performance and get government working for the American people.”

When “government is working for the American people,” our children get educated, the eggs we buy are free from salmonella, the American economy is creating jobs, medical research is tackling diseases, and so forth. We hold competitions, set safety standards, regulate capital flows, fund medical colleges, and on and on. These are the tools of government.

Yet nowhere, from program evaluation to performance strategies, is there any discussion of whether the Federal government picked up the right tools to ensure that government is working. And there is no collection of program evaluation, or GPRA, or PART, or performance strategy reports. These would need to be extensively indexed by tool, and made available for research into the choice of tools for the next problem.

The tool is usually a “given” from the perspective of the Executive Branch, and all too seldom are the questions asked, “Can this tool solve this problem?” and “What are the possible unintended consequences of wielding this tool?”

Two quick examples come to mind. First, as discussed elsewhere, President Nixon’s Wage and Price Controls could not effectively control prices. At a restaurant on Capitol Hill the price of the souvlaki stayed the same, but the portions got smaller over time. Ashby’s Law of Requisite Variety made nationwide enforcement of Wage and Price Controls impossible. And they failed.

Second, again discussed more fully elsewhere, the introduction of food stamps in rural Louisiana (a) enriched the local storekeepers, (b) permitted both the hiring of white clerks and the firing of Black warehousemen, and (c) was soon driving the poorest of the poor out of state.

Liberals such as Hubert Humphrey and Estes Kefauver had pushed for food stamps for decades. President Kennedy announced a pilot program in February 1961, and President Johnson made it permanent in 1964. The program required that recipients purchase their food stamps. I found that the really poor people of Louisiana were not in the cash economy at all. They could not pay for the stamps. And so they left for the cities of the North.

I’ll never believe that’s what Hubert Humphrey had in mind.

Recommendation: Task either CRS or GAO with creating and maintaining an online database of studies of the effectiveness of government interventions, in both America and abroad, indexed by tool (intervention type), and structured for use in tool choice. Provide sufficient resources to enlist the support of the academic community.

C. An Extensive Toolkit

The “Bible” of these tools is a 669-page book, “The Tools of Government” edited by Lester Salamon. Dr. Salamon directs the Johns Hopkins Center for Civil Society Studies in Baltimore. Amazon lists 91 publications by Dr. Salamon. The Oxford University Press published the book in 2002. An earlier version of the book, “Beyond Privatization: The Tools of Government Action,” was published in 1989.

“Tools of Government” lists fifteen tools of public action, and has chapters on each ranging from about twenty to forty pages. There are an additional five chapters, from introduction to summary. The tools are:

• Direct Government

• Government Corporations and Government-Sponsored Enterprises

• Economic Regulation

• Social Regulation

• Government Insurance

• Public Information

• Corrective Taxes, Charges, and Tradable Permits

• Contracting

• Purchase-of-Service Contracting

• Grants

• Loans and Loan Guarantees

• Tax Expenditures

• Vouchers

• Tort Liability

I would add the criminal law, and there may be other tools yet to be invented. These are more than enough to start with!

Many, many years ago, I used to play a game at Washington parties. Friends would come up with a societal problem, and I would attempt to find at least three “tools” that could be used to fix it. (They were really wild parties.)

Here’s a current example. Massey Energy was cited for 1,342 safety violations over the past five years. In only 25 of these, fines of $10,000 or more were proposed, and Massey has settled only four. In 2009, Massey had gross sales of $2.3 billion on 36.7 million tons of American coal. Massey’s lawyers and the government’s lawyers are arm-wrestling over peanuts.

President Obama’s FY2011 budget for the Mine Safety and Health Administration (MSHA) calls for over $350 million and 2,430 workers. This is for the regulations that have been generating resistance, not compliance.

Since coal mining is inherently dangerous, the Congress should require each mine owner to pay the heirs of every minor killed or injured on their property a sum adequate to encourage the owners to take responsibility for safety. Each fatality should cost at least $10 million, payable immediately. The 25 fatalities from the Upper Big Branch mine would have cost $250 million, or about 25% of Massey’s 2009 net income. This would get even Don Blankenship to focus on safety in his mines. It would also bring some relief to the families.

The coal industry’s response to such legislation would be to buy insurance, and the insurance industry’s response would be to insist on the best and most up-to-date safety procedures from around the world. There would be no lengthy publication and comment period, as required for Federal regulations. The insurance companies would then do the inspections to assure compliance. And the cost of the insurance would be passed on to the consumers of the coal, rather than all taxpayers.

In sum, Tort Liability would be a cheaper and more effective tool to achieve safer coal mining than Economic Regulation, and it would allocate the costs correctly.

We need both principals and staff in the Legislative and Executive Branches to take a similar agnostic and open-ended approach during their initial deliberations about the problems they face. For as the psychologist Abraham Maslow once said, “if the only tool you have is a hammer, you tend to see every problem as a nail”.

Recommendation: Task OMB with implementing Recommendation DES01: Activate Program Design as a Formal Discipline from Vice President Gore’s National Performance Review (1993). (3)

D. A Deliberative Process and Thorough Vetting

The design of a particular intervention should be in three parts. First, an initial scan by an apolitical entity. Second, a wide-ranging team approach that develops several proposals for further review. Third, the widest possible review (i.e., “crowdsourcing”) of the chosen option and the decision-making process itself.

1. The Initial Scan. The initial scan should be performed by an apolitical organization or organizations. The Congressional Research Service, aided perhaps by the National Academy of Sciences, would be an obvious choice. The CRS should be asked to respond to the following questions, among others:

a. Describe the problem being addressed, from an inclusive set of perspectives: historical, economic, systemic, and others.

b. Describe past and present attempts by American institutions (Federal, state, local, private, not-for-profit) to alleviate the problem.

c. Describe past and present attempts around the world to alleviate the problem.

d. Describe past and present attempts around the world to alleviate similar problems.

e. Compare the results obtained by the various tools used in addressing this and similar problems, in terms of cost, effectiveness, and unintended consequences, among other impacts.

f. Annotate all responses fully, including hyperlinks in an electronic version of the resulting report.

g. Accompany the full report with two summaries: one of two pages or fewer, one of ten pages or fewer.

2. The In-House Proposals. The in-house proposal should be the work product of a small team, including at least one attorney and preferably a design professional.(2) Ideally, the team would have representatives of both the Executive and Legislative Branches.

a. The group should contain, and also have access to, expertise in the problem area at every level from conceptual to service delivery. Members of the group should be encouraged to seek additional advice.

b. The group should engage in scenario planning or other future envisioning in the problem area as well as in the larger society.

c. The group should develop at minimum three proposals to address the problem under study using different tools (see above).

d. The proposals should be “red-teamed” (i.e., strongly critiqued) by a separate team of experts within the same organizational context.

e. The proposal chosen should be developed more fully, with particular emphasis on the likely unintended consequences.

f. The final proposal should be incorporated into a draft Legislative Impact Statement, which must include the initial scan verbatim. The draft LIS must be prepared in accordance with a set structure and format.

3. The Public Proposal.

a. The draft Legislative Impact Statement must be made available in electronic form to the public for comment in a timely manner. Comment must be encouraged.

b. Resources must be made available for the review and consideration of all comments.

c. A final Legislative Impact Statement must be again made available to the public in electronic form prior to any implementation.

Recommendation: Task OMB with implementing Recommendation DES04: Commission Program Design Courses from Vice President Gore’s National Performance Review (1993).


(1) Robert Kennedy was quoting a line delivered by the Serpent in George Bernard Shaw’s play Back To Methuselah : “You see things; and you say, ‘Why?’ But I dream things that never were; and I say, ‘Why not?’”. (Source)

(2) Design as a discipline.

In 1969, in The Sciences of the Artificial, Herbert Simon wrote: “…The professional schools will reassume their professional responsibilities just to the degree that they can discover a science of design, a body of intellectually tough, analytic, partly formalizable, partly empirical, teachable doctrine about the design process.
“…[S]uch a science of design [is] not only possible but is actually emerging at the present time. It has already begun to penetrate the engineering schools, particularly through programs in computer science and ’systems engineering,’ and business schools through management science.”

This has come to pass. Check out the Stanford University School of Design, read this introduction to the world of design, and watch this video of one of the leaders in the field.

Design professionals are deeply involved in the most innovative work of the private sector around the world. It’s long past time to bring them into the design of government.

(3) Program design at the National Performance Review.

Early in the spring of 1993, I discussed program design with Vice President Gore during my tenure as a Deputy Director of his National Performance Review. He said that revisiting the design of Federal programs was too difficult, and that we didn’t have the time. I did manage to get a small team assigned to write Rethinking Program Design, one of the fourteen NPR Systems Reports.

The report’s four recommendations were:

1. Activate Program Design as a Formal Discipline

2. Establish Pilot Program Design Capabilities in One or Two Agencies

3. Encourage the Strengthening of Program Design in the Legislative Branch

4. Commission Program Design Courses

Addendum: The problem in a nutshell

The following quotation from The New Yorker (October 7, 1985, p. 30) on the demise of Manhattan’s Westway captures well the frustration that most Americans feel when confronted with the institutions of government that now exist:

“Deeply embedded somewhere in our thoughts or wishes — no doubt in some corner of the brain that is immune to factual evidence — is the belief that public institutions and programs exist to serve public needs. In this perhaps naive view, the links of the chain of public action begin with the identification of a need of society, by, say, a civic-minded group; next, measures to meet the need are debated and decided upon; and, finally, some institutional arrangement is made, and people set to work. It’s hard to help noticing, though, that in actuality things proceed, as often as not, in quite a different sequence. In this other sequence, the chain begins with the institutional arrangement, and only then is a need sought out — a need that will justify the continuing functioning of the institution. In other words, instead of starting with a problem and looking for an answer one starts with an answer and looks for the problem.”

In Theory…

Knisely’s Second Law states that “In theory, there’s no difference between theory and practice, but in practice there is!” My First Law states “Anything that exists is possible.”

Both laws are relevant to how Americans are treated by our legal system in the wake of the Supreme Court’s decision in the Gideon case, and why I’m ecstatic that Lawrence Tribe is joining Eric Holder’s Justice Department to work on improving legal access for the poor. But that’s just my personal opinion.

The post-Gideon history of legal representation for poor defendants is an excellent example of practice obliterating theory, and of America’s inability to establish – or at minimum observe – feedback loops from reality back to policy making. This is the design-of-government issue.

The Wikipedia entry for Gideon v. Wainwright will tell you more than you need to know about the case, starting with: “…the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own attorneys.” The ruling, in 1963, was unanimous. That was the law.

(BTW, googling “Gideon” will get you more than you want to know; the case is properly called a “landmark case.” There is even a famous book, Gideon’s Trumpet (1964). Now with a study guide!)

Ralph Temple delivered an address in honor of the 40th anniversary of the Gideon decision, in which he brought into clear focus its importance to a free people:

“Walter Van Tilburg Clark, in his book The Ox-Bow Incident, wrote: ‘True law, the code of justice, the essence of our sensations of right and wrong, is the conscience of society. . . . None of man’s temples, none of his religions, none of his weapons, his tools, his arts, his sciences, nothing else he has grown to, is so great a thing as his justice, his sense of justice. The true law . . . is the spirit of the moral nature of man. . . .’

“When we enter the court, we enter the temple of justice. And that’s why the Gideon case is so important. For the right to counsel is the most important of all rights, because without it none of the other rights can be protected. In this sense, the right to counsel is the key to the temple of justice.”

But of course the right to counsel means that either (a) lawyers must be found to work for free, or (b) someone must pay them, since the defendants cannot. It also must mean some minimal standards for attorney competence, or the right is meaningless (lawyers would say moot).

Georgetown University’s Law Center (my alma mater, class of ’72) held a symposium in 2003 marking the fortieth anniversary of Gideon. The website for the National Association of Criminal Defense Lawyers, one of the sponsors of the symposium, tells the story of Gideon in practice:

• The American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants published a report, “Gideon Undone,” in 1982 (Gideon plus 19 years) clearly stating that criminal defense lawyers for the indigent were underpaid and overworked, whether public defenders, assigned counsel, or contract attorneys.

• A New York Times article in 2003 (Gideon plus 40 years) stated: “The recent spate of exonerations based on DNA tests has demonstrated that inadequate representation can, and does, lead to wrongful convictions. A Montana man, speaking at an Open Society Institute panel this month, told of spending 15 years in prison on a sexual assault charge after a trial in which his court-appointed lawyer did no investigation, hired no experts and failed to file an appeal. After 15 years, he was cleared with DNA evidence.”

(It is helpful that in 2001, the Fifth Circuit Court of Appeals finally decided that you couldn’t be put to death in Texas if your lawyer had slept through much of your trial. New York in 1996 and California in 1984 also came to recognize that sleeping lawyers weren’t much help.)

The larger problem, of course, is money. Few state or local governments have been willing, and fewer now are able, to pay for adequate numbers of public defenders or contract lawyers. And fewer private attorneys are willing to be assigned as counsel. This lack of resources is highlighted in Justice Denied, America’s Continuing Neglect of our Constitutional Right to Counsel:

“Because of insufficient funding, in much of the country, training, salaries, supervision, and staffing of public defender programs are unacceptable for a country that values the rule of law. Every day, the caseloads that defenders are asked to carry force lawyers to violate their oaths as members of the bar and their duties to clients as set forth in rules of professional conduct. In addition, private contract lawyers and attorneys assigned to cases for fees receive compensation that is usually not even sufficient to cover their overhead and that discourages their participation in defense systems. Equally disturbing, in most places across the country there is no oversight at all of the representation that these lawyers provide, and the quality of the work they provide suffers as a result.

“In addition, defendants throughout the country, especially in the lower criminal courts, are still convicted and imprisoned each year without any legal representation at all, or are “represented” by lawyers who have hundreds of other cases (thus violating rules of professional conduct), and lack the requisite expertise and sufficient support staff, including persons who can investigate their clients’ cases. Sometimes people who cannot afford an attorney sit in jail for weeks or months before being assigned an attorney; others do not meet or speak with their lawyers until the day of a court appearance. Too often the representation is perfunctory and so deficient as not to amount to representation at all.” (page x)

We’re not talking a lot of money here – not compared with redesigning the health care system, or even with Wall Street bonuses. There really should be enough money available to let our legal system hold its head high. There are so many countries where the legal system is a sham – it’s a shame that mine is also, in so many cases involving poor people.

And what does it say about our “respect for law,” and for our system of government? The Supreme Court can be quite explicit about what the legal system requires, and yet the other two branches ignore the Court’s direction, or just give it lip service?

I used to offer free advice (I still do…) to people who worked for me, and to my kids and their friends: “Just do what you say you’ll do,” I’d say. “Don’t promise the moon, don’t promise anything by COB yesterday, JUST DO WHAT YOU SAY YOU’LL DO. And you’ll go far.”

I want to hold my country to that same standard. For both theory and practice.

“The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of any country. A calm, dispassionate recognition of the rights of the accused and even of the convicted criminal, …[and] the treatment of crime and the criminal mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue within it.”

– Winston Churchill

“Rocket Surgery,” “Usability Testing,” and Government

In late December I spent the night with 60 homeless folks, sleeping in the church where my wife and I were married. I do it every year. My job was to keep awake. I was there over a Saturday night.

One of the homeless guys got up just before midnight, and started trying to call his unemployment office. He told me that it was HIS job to call in, every few weeks, to tell ’em that he was, yes, still unemployed. That’d keep his checks coming. No call, no checks. Of course, where and when there’s a lot of unemployment, it’s almost impossible to get through.

He’d found out that the BEST time to call is right after midnight, on Sunday morning. There are operators “always on duty,” but there are far fewer people calling right about then. After many calls, he got through just before 1:00AM.

I had to wonder, how many Congresspersons, political appointees, or even civil servants ever thought that homeless people would be calling the unemployment offices just after midnight on Sunday. I can’t believe it’s intentional.

Couldn’t they hire a few of the unemployed folks to man those phone banks to take the calls of the OTHER unemployed? Shouldn’t they be thinking about how their ‘systems’ are used? Is that “rocket surgery”?

Turns out that “usability testing” for websites, etc., is a recognized trade, and one of its gurus, Steve Krug, (among others) has written two books about it  — one of them called, appropriately enough, Rocket Surgery Made Easy. There’s an association for that, and even a journal!

Does government ever do “usability testing” on its programs? When I was a Deputy Director of Al Gore’s National Performance Review, we were focused on the citizen as “customer,” but I don’t remember anything quite like “usability testing.” It would have been a good idea!

…it’s not too late.

Complexity and The Checklist Manifesto (book)

I heartily recommend reading Atul Gawande’s new book, “The Checkbook Manifesto.” I’m not alone

In it, Dr. Gawande recounts the birth of the modern formal checklist, developed by the US Army Air Corps (now the Air Force) after the crash of a new four engine Boeing bomber on a test flight in 1935. Flying a four engine plane was so much more complicated than flying a two engine plane that the pilot, the Air Corps’ chief of flight testing, left something out. Like releasing a locking mechanism on the elevator and rudder controls…

Dr. Gawande ascribes the safe landing of US Airways Flight 1549 on the Hudson to the crew’s following their checklists. (BTW, Captain “Sully” Sullenberger does too.) The “hero” was the checklist!

He goes on to describe the checklists used by construction companies in building our enormous shopping centers, hospitals, and the like. No longer do they rely on “Master Builders” keeping everything straight in their heads.

He recounts a study in which Intensive Care Unit patients required an average of 178 individual actions per day, and by and large the doctors and nurses missed only about 1 percent. But that’s two a day…

He then describes in detail how he and a team developed surgical checklists for the World Health Organization, testing them in a handful of hospitals of varying sizes in countries ranging from Canada to Tanzania. The health benefits were enormous across all hospitals.

Dr. Gawande points out that the senior surgeons generally rejected the idea that THEY needed to follow checklists – why, they’d been trained by experts and had years of experience! Yet, shown the results, they admitted that if THEY were the patients, they’d like their surgeons to use checklists, certainly.

The book is hard to put down, and I’m about to write up two checklists showing what to do at our house when we lose internet access. I already use a checklist for closing up our house in West Virginia – but it needs updating. I am sold!

The book has lessons for the design of government as well. Here are the last two paragraphs of his introduction (page 13):

“Here then is our situation at the start of the twenty-first century. We have accumulated stupendous know-how. We have put it in the hands of some of the most highly trained, highly skilled, and hardworking people in our society. And, with it, they have indeed accomplished extraordinary things. Nonetheless, that know-how is often unmanageable. Avoidable errors are common and persistent, not to mention demoralizing and frustrating, across many fields – from medicine to finance, business to government. And the reason is increasingly evident: the volume and complexity of what we know has exceeded our individual ability to deliver its benefits correctly, safely, or reliably. Knowledge has both saved us and burdened us.

“That means we need a different strategy for overcoming failure; one that builds on experience and takes advantage of the knowledge people have but somehow also makes up for our inevitable human inadequacies. And there is such a strategy – though it will seem almost ridiculous in its simplicity, maybe even crazy to those of us who have spent years carefully developing ever more advanced skills and technologies.

“It is a checklist.”

So if complexity is a part of our problem in designing governmental interventions that work, then Dr. Atul Gawande would argue that checklists are part of the solution.

But it is here, as he winds up the book, that he makes the point most relevant to the design of government (page 185):

“We have a thirty-billion-dollar-a-year National Institutes of Health, which has been a remarkable powerhouse of medical discoveries. But we have no National Institute of Health Systems Innovation alongside it studying how best to incorporate these discoveries into daily practice – no NTSB equivalent swooping in to study failures the way crash investigators do, no Boeing mapping out the checklists, no agency tracking the month-to-month results.

“The same can be said in numerous other fields. We don’t study routine failures in teaching, in law, in government programs, in the financial industry, or elsewhere. We don’t look for the patterns of our recurrent mistakes or devise and refine potential solutions for them.”

Sounds like he also thinks that the lack of feedback mechanisms is also a problem, doesn’t it?

We can no longer afford the Congressional legislative process described some years ago by then Indiana Congressman (and later President of New York University) John Brademas: “Congress never gets anything right the first time – after five or six years, we have to revisit our ‘solutions’ and correct them.”

In an era of increasingly complex, critical, and urgent problems, that’s simply UNSAT.

I’m starting to think about checklists as part of any “Legislative Impact Statements.” Not rocket surgery, is it?

Glimmer: My best book of 2009

Check out Glimmer by Warren Berger.  I’ve been looking for a guide to the world of design, and Glimmer, with a wonderful website, is a whole sack of Sacagaweas.  I’m not to the bottom of it yet.

[BTW, I’m recusing myself from putting “If We Can Put a Man on the Moon…” by Bill Eggers and John O’Leary at the top of the list, for two reasons. First, I know both authors, and second, I’m listed there under Acknowledgements. I’m forever grateful for their referencing Improving Program Design, a publication of Vice President Al Gore’s National Performance Review that I both inspired and demanded.]

I WOULD like to offer a tip of the hat to Ralph Caplan,  a pioneer of modern design, for the following paragraphs from his book By Design:

“But aren’t the products of design hair dryers, computer screens, cereal boxes, curtains, bedspreads, vacuum cleaners, kitchen appliances…

“Sure. Also chairs and computer programs and office partitions, space capsules and tractors, restaurants and stores and cities, films and books, and government legislation and protest strategies.” [Emphasis added]

That was the first reference I’ve seen to ‘designing government’ since I first wrote “The Design of Government” early in the Carter Administration. It’s about time!

And only this year I found the second reference to ‘designing government’ — in a blog, Design Thinking, by Tim Brown. He’s one of Warren Berger’s glimmerati! I commented on his post on “Redesigning California” and you can see my entire comment there. My key sentence is:

“The need is for (a) design thinking, (b) familiarity with the known Tools of Government, and a deep understanding of the sciences of complexity (from cybernetics to chaos).”

Glimmer’s website has a hyperlinked list of the Glimmerati. What more do you need?

…world enough and time…

Teenagers and Bankers

If you asked your 16 year old son to clean up the garage, but told him that he’d get no dinner until he’d cleaned up his room, would you be surprised the next day to find the garage as messy as ever? Not hardly.

Now suppose you were Daddy Hank (Paulson) or Uncle Tim (Geithner) passing out billions to the biggest American banks. You tell them you’d really like them to resume lending, and get America on its way out of the Great Recession. But you also make it clear that they won’t get to set their own salaries (and bonuses!) until they repay the billions you’re lending them. Would you be surprised to find that they’re paying back the loans without doing any appreciable lending? Not hardly.

So — recently, the Bank of America paid it all back so they could make “a decent offer” to someone to come in and be the boss. And now Citibank is about to repay its loan. And are they lending to help homeowners and small businesses weather the recession? Not so much.

(As an aside, according to the Times article cited above, Standard and Poor’s “wrote a remarkably candid research note that suggested the $45 billion repayment didn’t really matter, because if the bank got in trouble again, taxpayers would be there with another bailout.” That’s probably true. Cf “moral hazard.”)

And today’s news is that Grandpa Obama is taking the bankers to the woodshed because they’re not lending. Do you really think that this will be effective? You’re alone…

Some guy writing under the pseudonym “Smith” wrote the last word on this some years ago: “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own self interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities, but of their advantages.” — Wealth of Nations, Book 1, Chapter 2.

So going back to your 16 year old son for a moment. Suppose you told him that he could drive your old pickup to school if (and only if) he dropped off his younger sister at school – each day. Or if you said, if your soccer team wins State, you’d give him the car? Do you think that’d change his behavior on an ongoing basis? At least until that championship game? Have you ever been a 16 year old that wanted a car?

In the Federal government’s Executive Branch there’s been an emphasis on identifying and measuring “inputs, outputs, and outcomes” for some years. Using this paradigm, one can discuss how the Feds might have leveraged the big bankers into helping others besides themselves.

First, the “inputs” are (a) the bailout money, (b) the ongoing efforts of the banks’ staff, and (c) the ingenuity of the banks’ management. No surprises there.

Second, some useful “outputs” might have been the leveraging of the bailout monies into useful loans to small businesses and homeowners. We might have said to Citibank: “You won’t get the right to set your own salaries and bonuses unless and until you show us that you’ve put that bailout money to work!” And there are metrics for that.

Third, we might have focused instead on “outcomes.” We might have said to the big bank bosses assembled, “Since we just saved your ass(ets), we will control your salaries and bonuses until the unemployment rate goes down to, say, 7%. YOU go figure out how to make that happen.”

And then the interests of the big banks and the government and America itself would have been aligned, which is always useful. And since the big bank bosses are the thought-leaders of their industry, they could have influenced the behavior of all the lesser banks as well.

And yeah, I know it’s probably not quite that simple. Maybe we’d have had to say, “Reduce unemployment at a steady rate through actions that don’t increase inflation beyond such-and-such.” Given that the economists working for the banks are not THAT much smarter than academic economists (although my guess is that industry modeling is better than academic modeling), I think that we could have defined “where the ditches are” with adequate accuracy.

So the TARP legislation was written in such a way that a 16 year old could have gamed it, much less the Masters of the Universe. And that leads to a question: Didn’t the Paulson team (and it’s inheritors) REALIZE how easily it would be gamed? Or was the structure of the bailout “suggested” by the industry itself, and not considered thoroughly? Or did the Bush Treasury team really think that the big banks would have refused a more stringent plan? Perhaps we’ll never know; there’s not that much transparency in government!

The underlying premise of this blog is that insufficient consideration of (a) unintended consequences and therefore (b) alternatives are at the heart of such governmental failures. After all, it was John Brademus, then a Congressman from Indiana and now retired president of New York University, who said, “Congress never gets anything right the first time. After five or six years, we have to revisit our solutions and correct them.”

Unfortunately, we are living in a time where the problems are both complex and urgent, and the solutions can’t always be ‘revisited’ and corrected later. Try health care, much less global warming.

(BTW, I refuse to believe that the big banks had such a stranglehold on our government that they could dictate the terms of legislation that was so easily gamed. That may well be true, but if so it signals the transition from Republic to Empire that brought on the Dark Ages when it happened in Rome. That is, when private interest trumped public interest without question. I’m just not going there.)

So if we need more attention to how government interventions in society’s outcomes and in the workings of the private sector (Note: while under TARP, the big banks were part of the “semi-private” sector, which includes the defense industry. GM is still there…), then we need better “design.” There are at least three ways to get there.

First, we need more attention to the formal world of “design,’ as for example taught at “the d-School” at Stamford. More on that in upcoming posts.

Second, we might go with “Legislative Impact Statements,” as now required in Australia and New Zealand. See Bob Zarnetske’s comment (#3) to my posting entitled “Legislative Impact Statements.” This would require some sort of institution, itself subject to manipulation. It’s worth considering, though.

Third, we might go beyond the “notice and comment” procedures now used in the Federal regulatory process and go directly to wide-open web-wide commenting. Massive collaboration seems the wave of the future anyway. This, too, would require real people to sort and review the comments, but they would be under widespread scrutiny as they did so.

There’s a fourth way: All of the Above.

How about “Legislative Impact Statements”?

Today’s Washington Post column by Allan Sloan includes the following:

“Cash for Clunkers.” It was a well-intentioned plan that was supposed to increase consumer confidence, spur fuel efficiency, jump-start the auto industry and help create American jobs. Instead, it disproportionately benefited foreign automakers, which create fewer North American jobs per car dollar than the Detroit Three do. And sales came mostly from inventory, doing little to increase production and jobs. What’s more, by junking clunkers, the program removed many low-end vehicles from the used-car market, running up prices for the lower-income people who’d normally buy them. So we hurt the people most in need of help, while throwing taxpayer dollars down the drain. As the saying goes, the road to hell is paved with good intentions.

It’s easy to throw up your hands when talking about “unintended consequences,’ but none of these can really be said to be “unforeseeable consequences.” In hindsight they look pretty obvious to me! And I believe that a little foresight would have revealed them as well.

We already have Environmental Impact Statements; they’re either famous or infamous, depending on your viewpoint. There are also financial impact statements: how much will this bill cost, or this revenue measure raise?

Maybe we need to have the Congress publish “Legislative Impact Statements” that list what the legislators think will happen, both good and bad, so that we can judge afterwards how much they thought about what they were doing?