We have cancer
We have cancer
When procedures proliferate unchecked, they impair our bureaucratic functions. We should treat this as seriously as we treat cancer.
It absolutely boggled my mind when I learned that NEPA, the National Environmental Policy Act, doesn’t require review of projects at all. As Marc Dunkelman (whose new book I am eagerly awaiting) said, “the authors thought two bureaucrats should kibitz once a year.” That’s a far cry from what we have today. Not only do we review most infrastructure projects, from roads and rail lines to power plants and transmission lines, but those reviews take an average of four years and result in reports of close to 2,000 pages. Hundreds, maybe thousands of people will work on writing, reviewing, and stewarding these reports, both inside and outside government. In a bitter irony, this law designed to protect the environment is now one of our biggest barriers to addressing climate change.
NEPA was signed into law on January 1, 1970. What happened in the 54 years since it was written? The same thing that’s happened to the 5000 series procurement framework at the DoD, as Shyam Sankar noted the other day. 53 years ago, when it was written, it was seven pages long. Today it has, in Shyam’s words, “metastasized” to over 2000 pages. It is a big reason why our military is not prepared for the coming conflicts. Our government is consumed by paperwork and meetings at the expense of producing the things we need: national security, infrastructure, housing, healthcare.
Nick Bagley’s Procedure Fetish is the correct name for what drives the growth of these procedural documents and the further documentation they require before anything can get done, but the growth itself needs a label. Shyam calls it the inflation rate of bureaucracy. He calculates that going from 7 to over 2000 pages in 53 years represents an annual inflation rate of 11%, which is a helpful concept. If you imagine public servants adding to process and guidance by 11% each year, it doesn’t sound that bad. The problem is the compounds over time, and it makes everything government does far more expensive than it should be.
The other problem is that it grows unchecked. We lack the tools for procedural deflation. It’s that unchecked growth that suggests that Shyam’s other characterization might be a better metaphor. If process and procedure can metastasize, then they are a cancer. Cancer starts in one system in the body, but that system is connected to others, and left untreated, the mutated cells invade other systems. Procedural inflation (or carcinoma) in procurement or HR systems are particularly bad, because they’re like blood or lymphatic systems, touching every part of the body. You can’t just cut out a blood cancer.
I can’t help but think in these terms. I have cancer. It’s very early stage, and it’s somewhere relatively easy to cut out. There’s no reason to believe that after my surgery this week I will have any need for chemotherapy or radiation. I’ll feel better, of course, when the labs come back, and hopefully confirm that the “nasty” cells (that’s what one of my doctors called them) had not escaped my breast before they removed them. But I don’t want to overstate the threat to my health; I’m going to be just fine.
It is stressful, though, to deal with the healthcare system. I called a friend in tears the other day, saying “the cancer isn’t going to kill me, but the phone trees might.” My diagnosis came while I was in California for the summer, but it made sense to treat it in the DC area, where my husband and I recently relocated. The only way to get my mammogram images across states lines was on a physical CD I carried to my new doctor at Georgetown, whom I couldn’t speak to on the phone because we license doctors at the state level, and while states have little reason not to provide reciprocity, the process required for two states to recognize each others’ medical licenses is so daunting many have not done it.1 The only way to request my CD was by fax.
Faxing this letter reminded me of Shannon Sartin’s quest to eliminate requirements to transmit information by fax in CMS regulations. Shannon was an Obama-era digital leader who made a strong connection with Trump’s incoming CMS administrator, Seema Verma, and realized she could have enormous impact by sticking around through the change in administration. (A good reminder to public servants nervous about what comes next for them this fall.) Largely due to a misconception that faxing was more secure than email, regulators had required various kinds of information to be shared by fax over the years. The misconception had been debunked, but the regulations remained — lots of them. On a whim, Shannon and a colleague had put a line in one of Seema’s speeches calling to “axe the fax.” There was a strong positive response, and Seema got behind the idea as a real initiative. They would find and repeal all the regulations that required data transmission by fax.
This was personal for Seema. Early in her tenure, her husband had a devastating heart attack. Seema found herself trying to get her husband’s medical records in the hands of the doctors who were treating him, to no avail. She realized with horror that the team trying to save his life was flying blind, with no understanding of what medications he was on or his past medical history. She wasn’t trying to fax his records that day, but she was painfully aware that her own agency continued to promulgate regulations that kept medical information from getting where it needed to go to save lives.
It’s a lot of work to try to find every reference to faxing in CMS regulations, and even more work to change those rules, but Shannon was on a mission. “These policies go back decades, to before CMS was even CMS,” she told me. “They’ve never been rescinded. Until Axe the Fax, no one had ever tried to clean this stuff up.” The agency knew this was a priority – the administrator was talking about it whenever she could. Six months into her project, however, Shannon got a phone call. “Hey, listen,” the caller told her, “I just wanted to let you know that you just put out a new rule that says that fax machines should be used to send information.” She was playing Whack-A-Mole. She could find and repeal as many of the old rules as she could, but as new regulations referenced old ones, and sometimes copied from them, new ones would continue to appear.2
I’m not battling life-threatening cancer (at least I hope not), but someone close to me is. The cancer started in her lungs, but has spread to her brain, and is considered stage four. The path forward for her starts with using targeted radiation to shrink the tumor on her brain that has left her right arm limp and seemingly lifeless. Then they’ll deal with the one large mass they can see in her lungs with surgery followed by a drug regimen intended to attack the systemic invasion. Essentially, they’ll be trying to increase the chance of winning at Whack-A-Mole. They’ll get it out, but it’s pretty likely to pop back up. Whacking at the mole is going to be painful.
My friend’s cancer is a crisis. So is climate change, and so is our nation’s military unreadiness. When Senator Henry "Scoop" Jackson, Chairman of the Senate Committee on Interior and Insular Affairs, introduced NEPA on February 18, 1969. He said:
We are still only reacting to crisis situations in the environmental field. What we should be doing is setting up institutions and procedures designed to anticipate environmental problems before they reach the crisis stage.
Despite the Senator’s best intentions, NEPA has not only not done this, but it has served as an enormous barrier to the effectiveness of subsequent legislation designed to address undeniable crisis, including the climate change provisions of the Inflation Reduction Act. My point here is not that Senator Jackson was a bad legislator any more than I am bad person for having breast cancer. My point is that it should be a national priority to treat the cancer that affects our law and policy.
Our cells are supposed to divide and grow. That process is the basis of life. But those cells are supposed to replace those that we shed, and they’re supposed to do it at a rate in tune with our bodies’ needs. When they divide uncontrollably, the resulting cancer impairs our bodily functions and threatens to kill us. The body of law, policy, regulation, process, and procedure was meant to grow and change as well. But when procedures proliferate uncontrollably, the resulting bloat impairs our bureaucratic functions, as the authors of NEPA or the DoD’s procurement framework or any other number of policies must recognize in horror. The words they wrote to protect life on earth and help it flourish, through environmental protection or national security or whatever other policy levers, have grown into unrecognizable threats to their own mission. We should take what’s gone wrong in our bureaucratic processes just as seriously as we would take a cancer that’s threatening our life. Because it is.
Apparently there’s a project at US Digital Response that is addressing this problem! I hope to write more about it soon.
AI is going to be very helpful with this problem. Ben Bain at the Niskanen Center is working with the amazing folks at the Stanford Reg Lab and various jurisdictions to find and eliminate unhelpful regulatory provisions. It’s harder than it sounds, but it’s getting a lot easier with AI,