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May 24, 2023 - Truth Podcast - Vivek Ramaswamy
27:19
Unmasking the Bureaucracy: Philip Howard on the Administrative State | The TRUTH Podcast #28
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So the biggest myth in America today is that the people who we elect to run the government are the ones who actually run the government.
They don't.
It is a cancerous federal bureaucracy in the federal government that actually runs the show today that increasingly Views even people like me, even if I'm successfully elected as US president, view me as a polite little inconvenience that comes and goes every few years, but that it really is the permanent bureaucracy that actually runs the show.
And part of the reason they view it that way is that's exactly the way the country is actually governed.
And it's invisible to most Americans.
We're taught growing up that there's three branches of government, the executive, the legislative and the judicial, that we have a system of checks and balances.
Where each one of those branches checks the other.
That becomes a farce when a fourth branch of government, the administrative state, actually operates outside of that system of checks and balances.
The dirtiest part of how it was created is that that wasn't just an accident of history.
It was as though it was by design.
I think it's the single greatest threat to not only capitalism, though that does create a regulatory state that impedes economic progress in America, It's also the single greatest threat to our constitutional republic and it's not gonna be something that happens in the future.
It's a threat as it exists today in the mundane reality of how that plays out in real life.
And today, I'm joined by somebody who knows about the details of how that plays out in real life.
Philip Howard.
He's the chairman of a nonprofit called Common Good, but he's also been an attorney at Covington Burling, among other illustrious parts of his background that we'll perhaps hear about in this conversation.
Philip, I'd like to welcome you to the podcast.
I've been looking forward to this conversation.
I should be with you, Vivek.
Let's just get right into it.
What do you see as the threat posed by the expansive administrative state as it exists today?
Make that real for people who might say they want to talk about kitchen table issues.
Why is this a real threat to the American experiment, the American Republic as it exists today?
And then we'll get to solutions after that.
Well, government needs to deliver.
And if it doesn't deliver, if election cycle after election cycle, candidates promise, change we can believe in, and then nothing changes, people become increasingly cynical.
And if government wastes money, tax dollars that ought to be used for many public goods get diverted into feather bedding or waste or programs that don't work.
And what's happened at all levels of government In our society is that government is unmanageable and squanders money, you know, and doesn't deliver.
I mean, you can't get a permit for high-speed transmission lines to go from the wind farms to the city.
It's basically impossible.
No one will take responsibility to make the decisions, and the people elected don't seem to have the ability to Say, go and get it built.
So decades go by and nothing happens.
So give me an example, I mean, to make that real from your experience of where you see that falling at the feet of the administrative state in particular, rather than the executive or legislative branch of government.
Well, I mean, starting at a local level, if you have a school that has not one student proficient in math or English, and there are 33 of those in Chicago, the only way you can fix it is change the personnel and change the way it's managed.
But the governor, the mayor of the city doesn't have the authority to do that.
And so the failure of these schools goes on and on.
If you have an agency that supposedly is in charge of overseeing environmental reviews in the federal government, and no one will take responsibility to make a decision because they're afraid of the Offending someone, whatever.
And the president has no authority to override them.
Then you have this governing system that's like a hamster on a wheel.
It just goes round and round and round.
Lots of people work at it, and it doesn't do anything.
So you're a lawyer, and I never practiced but trained as a lawyer as well.
I guess I disagree with the characterization that at the presidential level, the president can't actually do something about it.
I know that's been the conventional view.
It's part of how we got to where we are.
But the way I read Article 2 of the Constitution is it says that the duly elected President of the United States runs the executive branch of the government.
And the way I understand that is if somebody works for you and you can't fire them, that means they don't work for you.
It actually means you work for them because you're responsible for what they do without having any authority to change it.
I'm looking at governing in a way that actually reads back into that plain understanding of what Article 2 says.
But maybe we should get into the legal mechanics of that, given your background as a lawyer.
I'm curious for your perspective.
Well, I just wrote a book arguing that you're correct.
So I have a new book out called Not Accountable that argues that Congress lacked their constitutional authority in the Civil Service Reform Act of 1978 to put in these procedures that prevent the president from firing anybody and that the president therefore has the authority, which you just stated, to basically disavow Those procedures to disavow the requirement of collective bargaining.
When did your book come out?
This can be like a Bible.
This sounds potentially like a Bible for the how-to manual of how we implement this.
Not Accountable is the book, right?
Yeah, Not Accountable.
It's only out a couple of months.
It's pretty recent.
Yeah, it's gotten more reviews than I think any book I've ever written.
Because people have accepted the stranglehold that public unions have over the Every level of government, like it's a state of nature.
It's not a state of nature.
It's a cancer on democracy.
I mean, how can democracy work if you elect a president who Congress says you don't have the authority to manage the executive branch?
Well, as you point out, Congress doesn't have that power.
Do you make the case in the book that the civil service protections are themselves unconstitutional?
Civil service as such is not unconstitutional.
It's the controls that prevent accountability and that prevent manageability.
For example, if you move an office in the federal government under most of those agreements, you have to collectively bargain who sits at what desk.
If there's a new version, it's incredibly petty.
The inefficiency of it, pick a number, 50%, two-thirds, you can't manage it.
And so I argue in the book that the president should disavow the provisions that take away key management tools, such as accountability and basic resource allocation.
You can have a civil service system That has neutral hiring.
You can do, as the Lloyd Lafollette Act of 1912 provided, you can have a speed bump to guard against partisan firings.
But it's not a trial at law.
It's just an independent commission that looks and says if you're making decisions for the wrong reasons.
But it's absolutely explicit in the Constitution, and James Madison could hardly have been clearer about this, that the executive power is vested in the president and the lowest levels, the middle grade, and the highest level report and are accountable as they must to the president.
An interesting question here.
Let's say you're coaching me as the next president, right?
How do you decide which provisions of those civil service protections to basically ignore, the civil service statutes to basically ignore that get in the realm of preventing a president from exercising reasonable executive authority as the framers envisioned from the parts that You would say are constitutional or a good law in ways that you have to actually respect.
There's a tension in the Constitution between legislative power and executive power always.
There's always a gray area.
And so, you know, Congress sets budgets, all that kind of stuff.
There are many things that Congress does that constrain the president, but the Supreme Court in scores of decisions has interpreted what executive power means.
And it means you have effective day-to-day control over how agencies work.
And so there's another way civil service works, which were all these elaborate procedures that take six to nine months to hire somebody.
They're crazy.
So that means you drive all the good people away, because nobody wants to wait nine months to see if they got a job offer or not.
I mean, it's particularly bad in IT. Jen Palka has a book coming out about this, who founded Code for America.
And so you just look at the provisions that prevent Affected management and you disavow them.
Other provisions, such as the idea of, in general, of having neutral merit-based hiring, it's probably fine because it leaves a lot of discretion in the president still to decide who he wants to hire.
Yeah.
So your basic coaching would be, but disavow, you basically mean, and this is, I think, reasonable to me, is the executive branch As the US president who leads the executive branch will pledge an oath to the constitution, to uphold the constitution, to basically just disregard, ignore that six to nine month process and just say, you're somebody good.
I'm bringing you on now.
It's month one.
We're just doing it.
And we'd be actually on solid constitutional footing to do it.
That's the basic point you're making.
Yes, and then you'd get sued by somebody.
This is America.
You get sued by somebody, it goes to the Supreme Court, and the Supreme Court will uphold you.
Because it's clearly correct under the, you know, again, scores of Supreme Court rulings.
You know, what's interesting is, that's actually one of the ways of driving lasting change, is you codify that understanding in the Constitution, says that even if I'm governing that way and cleaning up the administrative state, The next guy who occupies the office isn't going to be encumbered by those same shackles.
And that doesn't require Congress to act.
It just requires codifying in judicial precedent the unconstitutionality of certain congressional overreach from the past, which is part of what motivates me so much more to run for U.S. president than for U.S. senator or anything else, is we can actually get this job done.
Yeah, that's right.
And, you know, democracy has consequences, or it's supposed to.
And it really hasn't had in recent years.
As long as you've been alive, we've been electing people who couldn't make a difference.
And a lot of it's because of the combination of all these controls that the legislatures have given to Will have imposed and even more insidiously given to their political supporters, the public unions.
Yeah.
We'll get to public unions in just a second.
But before I get there, actually, I want to talk about executive authority.
One of the things I've said I intend to do is to shut down certain government agencies that should have never existed in the first place, like, say, the US Department of Education.
I have my views on how I would go about doing it, but say you're advising me just on the mechanics, the plumbing of it.
What would be the steps to shut down a government agency that represents the use of what the executive determines to be waste, fraud, abuse?
Right.
I think we need a new...
I think that what you need before you do that, or before you, you know, say, fire half the people or whatever, is you need a new governing framework that then you can restaff to allocate those responsibilities somewhere.
For example, I just did a paper for Forum in Columbia on the architecture of daily freedom.
And it's about...
If we move back to a principles-based form of regulation, you don't need two-thirds of the people.
Because we're just talking about administrators administering administrators, you know, where you have thousand-page rule books and procedures that go on for years.
Scrap all of that.
Go back to a system of human agency, responsibility, accountability, and all of a sudden, You know, 1,000 people in an agency can be done better by 100 people who are focused on public goals.
So if you remake an agency that's goals-oriented and principles-oriented, then all of a sudden you don't need all those people.
Mm-hmm.
And you have a mechanism for the agency to do whatever it is it needs to do.
So I would start with a simpler human agency-oriented framework and then staff it.
And by the way, nine-tenths of the people aren't needed.
But you're talking about just picking a given agency by realigning its mission.
Here's the thing.
No, realigning its operating framework.
To the mission.
Yeah, to the mission.
Yeah.
I mean, it's not that different than turning around a flailing business.
I think that The Department of Education, in certain senses, is a different topic because that's an agency that I think should not exist in the sense that its mission should have never been performed by the federal government in the first place.
But let's put that to one side.
I want to swim in the direction you're going then.
Let's take a different agency.
Suppose you're in my position and you believe that, say, the Nuclear Regulatory Commission.
Okay.
Is fundamentally at odds with the function that it was supposed to perform in a way that's become ossified in that agency.
It's fundamentally anti-nuclear at its core.
It operates according to a cultural norm that doesn't really regulate nuclear safety.
It's really just about ensuring that there are no nuclear power plants built in the United States and making this the gatekeeper that ensures it is so.
According to your framework, you would say, let's actually bring in a new governing framework for the Nuclear Regulatory Commission, state it as such, and then figure out who is or isn't needed.
A lot of the existing people need to leave, a lot of new people need to come in.
This is like a management question, an execution question, but to me, that seems less likely to succeed when you have an agency with the same building, the same culture, the same norms, human beings, the same bureaucracy in the org chart.
To know how you can pluck out and change that human behavior across tens of thousands of employees versus taking the alternative approach of shutting it down and then recreating and building from scratch something that's actually new and mission aligned to take its place.
Both from a management perspective and a legal perspective, what's your reaction to that?
Because I'm much more inclined to the latter in certain of these cases.
Well, you know, if you're trying to change directions, so FDR created new institutions.
He didn't do what he did through the existing institutions.
He created the PWA, the WPA, the CCC, you know, all those different things.
They were all new, run by people who were very close to him.
And so if you're changing the mission of something, I agree with you entirely.
And that may apply.
I actually have a background in nuclear energy myself.
Oh, you do?
Yeah.
So that may apply to nuclear energy.
You may want to remake a new agency based not on stopping it, but on focusing on...
You know, reassurances that there are safe principles, and then going forward, so it doesn't take 20 years to build a nuclear power plant, which, in my view, we desperately need in this country.
So that's one.
But if you take something like environmental review, which is the permitting of things like power lines, There's nothing wrong with the concept of environmental review, it's the execution of it.
And so you need to put people in place who are willing to make the judgments about the trade-offs.
You know, do we like sight lines or do we like, you know, the clean energy from the wind farms or whatever?
You make the judgments, people who will make the judgments about You know, when you're doing this, I only need 50 pages on these three issues because those are the important environmental issues.
That's the kind of judgments that aren't being made now.
It's the reason it takes a decade.
And you can find people who will make those decisions.
And if they don't make those decisions in your world and in my world, you get rid of them.
And authority has an incredible motivating force for people.
If you can actually have the executive power To replace people and to get rid of them, then there will be people who will respond.
One of the problems with government is that everyone knows that performance doesn't matter.
There's this phrase called, we be wig.
We'll be here when you're gone, is what you were referring to earlier.
And so guess what?
You need a system that says, oh no, you're going to be gone when I'm here.
Yeah, yeah, yeah.
You know, it's interesting.
I didn't know there was an acronym for that.
It's interesting.
What do they say?
Weeby-wig.
It's in the book, Not Accountable.
I love that.
I'll be here when you are gone, actually.
We'll be here when you're gone.
No, no, no.
But you'll be gone while I'm here, I think is like that.
Yeah.
Oh, that's pretty good.
That's pretty good.
So what do you think is the main – what role do the public sector employee unions play in serving as obstacles to administrative reform?
There's not one virtue that I can find for the public sector.
They exist only for themselves.
They exist only to assert power.
Their two-, three-, four-hundred-page collective bargaining agreements are designed to impose rigidities in management For no good purpose, the origin story of public unions, which only came into power in the 1960s, they were swept in almost as an afterthought of the rights revolution, has nothing to do with the origin story of trade unions when children were being mangled in factories in 1900 or whatever.
It was just a power play.
Because there are a lot of public employees, they had professional associations, their leaders wanted more power, and they got it.
And they've been wielding that power now for 50 years.
And literally, it's You know, you can't fire a bad cop.
You can't fire a bad teacher.
You can't fire a bad, you know, there are employees who are caught, you know, an EPA employee surfing porn sites all day long.
You know, nobody could get rid of them.
Unbelievable.
So, I mean, it's laughable, but it's laughable even though it's not very funny.
It's very sad.
This came into existence under JFK, right?
Didn't he pass some sort of Well, in the federal government, there was an executive order under JFK, Executive Order 10-988, that allowed collective bargaining in the public sector except on wages, you know, in compensation.
And then in the states and localities, it came in in the late 60s.
And then it was codified in federal government in 1978. Where they imposed all these requirements.
It's literally a joke.
If you wanted to put a negative comment in the file of a civil servant, they can and will grieve it.
The union will hire a lawyer to represent you, and you will have a legal hearing over whether you were justified in saying He doesn't work hard.
To even record it in the file.
To record it in the file.
And so that's why over 99% of federal employees get a fully successful rating.
Because nobody wants to go through the agony of having to prove what is unprovable.
Unbelievable.
Who has good judgment?
Who tries hard?
Who is effective in dealing with the public?
You know, all the important judgments in life can be second-guessed.
You can have a speed bump, but they can't be proved.
Mm-hmm.
I knew there was an obstacle to firing somebody based on the negative observation you would make.
I didn't know they had gone so upstream to even deter you from making a negative observation in their file.
It's like you can't give somebody a piece of critical feedback.
Interesting.
And if you look at the statutes, there are all these elaborate procedures where you have to do performance improvement plans for somebody who clearly isn't trying.
Then you have to wait months, and then you come back, and you go through the process again, and then they can appeal it, and it goes to arbitrators who are approved by the union.
The thing is crazy.
And then, when a collective bargaining agreement comes up for renegotiation, if there's a disagreement, guess who decides?
Something called an impasses panel, which is not under presidential control.
Unbelievable.
Whose control is it under?
Nobody's.
Nobody's is the answer.
Who do you report to?
When nobody's the answer, that's a big problem.
Right.
I wrote a book called The Rule of Nobody a few years ago, which is how we lost the human basis for governing.
And so nobody, you know, we have this This culture, this system, we try to create a system of law and a system of government that's better than people.
And it fails.
Because only people make things happen.
Well, this is immensely education.
I'm looking forward to actually reading your book.
It sounds like I said, like sort of a how-to manual or part of a how-to manual for my objective, which is to shut down that unconstitutional fourth branch of government.
In parting, as we wrap this up, we're a great conversation.
I'm kind of excited to potentially, if you'll be around at some point, join us on the campaign trail in places like New Hampshire, Iowa, et cetera, where we're going.
What would be your...
Let's say it's at the top of my domestic policy agenda, because it is, to shut down the fourth branch.
What would be your number one piece of advice to me on how I can actually get this done in a way that takes it beyond just an electoral talking point?
Yeah, I think it's really important...
For the public to understand that while all legacy systems take a life of their own, you know, and don't work anymore, the pharaohs are surrounded by eunuchs and the turkey by the janissaries and whatever, you know, and now we've got the fourth branch of government here that's completely independent of anyone, that we need to restore human control.
And that means Abandoning this Rube Goldberg machine, this giant accumulated legal tangle.
And so I would give people a vision of a framework for how government can meet legitimate public goals.
And the way we're going to do it is going back to the way government used to work, where people are put in charge and they're accountable to the president for whether they're doing a good job or not.
So I would start with the framework and the goals and then say, this is how we do it.
And by the way, this means That we don't need, you know, half or two-thirds of the people working here.
Is that in your book?
And or is that something you could help me with?
Because I will take it.
Yeah, absolutely.
Absolutely.
I've got, yeah, I've written a lot about this.
So, it's a...
Yeah, well, thank you.
I'm grateful for this because there's one thing I care to get done domestically.
I mean, on the international stage is declaring independence from China, domestic top priority, dismantle the administrative state.
And that means having a framework, as you said, I mean, to perform the functions that need to be performed, but under a framework that actually gets the thing done rather than, you know, ossifying.
The Democrats cannot be the party of good government because they're in the pocket of the unions.
Yes.
And the trial lawyers.
I think the new age Republicans should be the party of government that's needed, not all that we have, but whatever we have should be good government.
And this is how that works.
Well, look, I think that you approach it from an efficiency and even an economic perspective.
I start with the principles of restoring a constitutional republic, but I think that those bring us hovering right over the same flame of the managerial bureaucracy that exists today.
And for that, I'm grateful for you sharing your thoughts.
Thank you for that.
I took a lot away from this conversation.
I'm looking forward to continuing more.
All right.
Nice to be with you.
I'm Vivek Ramaswamy, candidate for president, and I approve this message.
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