The Case for a "National Clarification Initiative" to Reduce Needless Bureaucracy

Reducing bureaucracy is on the agenda for a new administration, but doing so can be difficult if it requires changing the actual U.S. Code, or a long-standing Executive Order, or an agency regulation that involves a lengthy notice-and-comment process.

No matter how commonsense a reform might be, the public choice phenomenon can arise. That is, there will be a few passionate supporters of the current bureaucratic requirements, whereas the opponents will be quite diffuse and scattered, with little incentive to mobilize.

That said, there’s a much easier way to make significant changes in at least some overly bureaucratic processes where the agency right now is just wrong in how it interprets the law, and where clarification by some authoritative body would bring the agency practice back to what the law actually says.

There are way too many cases where government employees think that the law requires them to do something that makes no sense, or think that they’re banned by law from doing something that would indisputably aid their job (or would be useful to the public).

In the decades since I studied at Harvard Law School, I’ve noticed over and over that when someone claims the law requires something that seems absurd, that’s a signal to dig deeper. You’ll often find that there’s some fundamental misunderstanding or overinterpretation at hand.

To be sure, there are some instances where the law really does require something absurd. Sometimes the law is an ass (to quote Charles Dickens).

But not nearly as often as people think.

In many cases, government employees’ hands have been mistakenly tied by overly risk-averse counsel, by years or decades of agency practice that is not legally required, or by a game of gossip whereby the law actually says something much different than is thought.

We could liberate agencies and increase government capacity just by following the actual law rather than bureaucratic sedimentation.

EXAMPLES

1. Military Procurement

My friend Jen Pahlka (read her excellent book Recoding America!) writes about a case where the military has been stuck using absurdly outdated and inefficient software due to this phenomenon.

To quote her words from an interview:

The story that I've probably told the most is about a friend of mine who worked on a project at the Air Force. Back in 2014, we were trying to get new software on the satellites that manage GPS, and the project was extremely delayed and way over budget. They had inserted a huge enterprise service bus (ESB) in the middle of a really simple protocol; it was so complex and Rube Goldberg-y that it caused timeouts between the ground stations and the satellite. 

He asked why this ESB was in there, and someone said that it's a requirement in the contract. As he pulled the thread, he found out that everybody believed this was required by Congress. So he went back and looked at the Clinger Cohen Act, which requires all agencies to have a plan for how they're going to handle technology. At some point, somebody wrote some guidance around that, which suggested interoperability using ESBs — for software developers who are asking, “Why is she talking about ESBs?”, this was in the ‘90s. As it descended from the federal enterprise architecture to the Department of Defense enterprise architecture to the US Air Force enterprise architecture to an actual contract, it went from being a suggestion to a requirement.

So you have something that comes from Congress or the White House that's pretty on target and very generic and flexible, but as it falls through that cascade, it becomes incrementally more rigid, more specific, and less able to withstand the test of time. This actually jammed up the software to the point where they couldn’t get it out and had to ship the satellites with the old software. Even when we get things right at the legislative level, we screw it up at the implementation level.

For much more technical detail on the software problem, see Pahlka’s essay here.

A National Clarification Initiative could help the military deal with misguided or outdated ideas about some supposed legal requirement that messes up procurement.

2. NSF

I’ve been told by two people employed at the National Science Foundation (NSF) that they were told they could go to prison if they publicly revealed the funding rates for various NSF programs/initiatives. For example, if they publicly said, “For program X, we have 100 applications but only enough funds for 15 of them, but for program Y, there are only 30 applications . . .,” they would find themselves in legal trouble.

I’ve since then tried to figure out why such innocuous and publicly valuable information would be legally banned. No luck to date. Indeed, NIH regularly makes publicly available the paylines for its various institutes and centers, which is basically the same information. And it’s hard to believe that anyone in Congress or the White House would ever have thought, “Oh no, we can’t have anyone ever learning how many grant applications there are, so we have to make it illegal to share that information!”

There’s just not a good rationale for that level of secrecy, nor is there any prominent lobby that would have wanted to make that information secret. Moreover, the main NSF statute that I see related to confidentiality is 42 U.S.C. 1862(i), which doesn't apply unless the confidential information reveals someone's identity, and/or hasn't been transformed into a format for "statistical or research purposes." Overall funding rates don’t match those concerns at all.

Indeed, I even reached out to the NSF General Counsel, and heard back from multiple people who were unable to identify any actual legal restriction like the above.

In short, I don’t think there is actually any law mandating what my friends at NSF were told. A National Clarification Initiative could help put this issue to bed.

(So could a court, but it’s not clear that anyone has standing to sue here, and the lawsuit process is highly inefficient for this kind of issue.)

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3. State Government

Someone who served as a regulatory counsel to a prominent state governor told me:

The lack of clarity is a huge problem; as you say, mythology grows up around what you can or can't do. I don't have any examples off the top of my head that I'm at liberty to share (attorney-client makes it hard for me to talk about [specifics]), but I can confirm from my own experience that it happens all the time!

4. Innovation Prizes

The leaders of Luminary Labs (which works with federal agencies to design and administer prizes for innovations) recently published a piece about the needless legal difficulties they face over and over—all of which have caused the federal legislation authorizing prizes to have “barely been tapped":

We propose an evergreen resource to ensure that federal agencies and their general counsels have a common understanding of what is allowed under the various prize authorities, including the COMPETES Act. On our wish list for the future: updated memos (or perhaps online courses) addressing the Paperwork Reduction Act (PRA), Federal Advisory Committee Act (FACA), judging, and private-sector collaboration. All of these considerations are frequently raised by counsel regardless of how many prizes an agency has produced –– slowing down the innovation process. While precedent from other agencies is often sought, individual agencies may issue their own guidance, resulting in differing interpretations –– or even contradictory guidance –– related to any given authority.

While a 2010 memo suggests that open calls for prize submissions may not be subject to the Paperwork Reduction Act, the same document cautions that structured data and forms –– which are requisite for equitable prizes ––  may be covered by the PRA. One way agencies can reduce friction is to consider a generic clearance such as the Department of Commerce’s 2023 notice.

A different 2010 memo suggests that prizes may be subject to the Federal Advisory Committee Act if they convene non-federal judges or advisors. But effective prize administration often requires working with external experts to design the program, review submissions, or assemble a judging panel. Updated guidance could help agencies by clarifying that FACA does not apply as long as the agency’s employees make the final decision on awarding prizes and these external experts are providing input but are not asked to “vote or veto.”

Agencies would also benefit from detailed guidance on managing potential conflicts of interest. Clear definitions and tools, such as recusal for individual submissions, can be easily implemented to avoid real or perceived conflict, and should be employed during judging.

These are just a few examples of common questions across agencies and prizes. Currently, each agency has its own interpretation of laws and regulations — and each agency’s risk tolerance and approach isn’t always clear to federal prize leads. Resources, convenings, or communities of practice for general counsels could help agencies share precedent and make more consistent decisions regarding judging rubrics and processes, intellectual property stance, use of federal grant funds in the development of submissions, and other prize-related rules and terms.

When agencies are constantly raising the same old issues about the Paperwork Reduction Act and FACA, let alone issuing inconsistent guidance, that is a monumental waste of time for everyone. Moreover, it frustrates the federal goal of allowing agencies to make greater use of prizes for innovation.

A National Clarification Initiative could put these issues to rest by issuing a federal-wide legal opinion that would prevent future agency staff from raising outdated objections.

5. The Privacy Act

An anonymous White House offical pointed out to me that there are “privacy hawks” who don’t care about open data or transparency, and promote an overly conservative interpretation of what the Privacy Act actually says. In his/her words:

This has resulted in massive inefficiencies and delays. One of the big issues is that agencies typically hire lawyers to implement their Privacy Act obligations whereas all other policy areas that run up against the Privacy Act are typically run by non-lawyers. The result is that there's an imbalance in the understanding of the law and the agencies always, always, always defer to the lawyers even when the lawyers are wrong.

Yet another place that a National Clarification Initiative could bring clarity to how government operates.

POLICY RECOMMENDATION

If we want to speed up innovation and progress, there are congressional requirements (cough*NEPA*cough) and agency rules that could be updated and improved. Many such cases.

But in the meantime, how about just clarifying for agencies what the law even is in the first place? That would be a high-impact way to improve government much more quickly, and without getting bogged down in political battles.

In short, we should set up a "National Clarification Initiative" at the White House Office of Management and Budget (or alternatively at the Office of Legal Counsel in the Department of Justice). It would be composed of 3-5 lawyers with expertise in administrative law, supported by a team of 8-10 people with expertise in survey methods, data analysis, etc.

Specifically:

1. The staff should randomly pick, say, 10 to 50 employees at any federal agency that spends over $1 billion a year, and interview them with questions like:

• "Is there anything you think is obviously the right thing to do, but you've been told it’s impossible or it's legally banned?"

• "Is there anything that your job requires that is a total waste of time, at best, but you've been told that the law requires it?"

We have to ask such questions proactively, rather than waiting for government employees to submit ideas of their own accord. In many cases, agency staff will have spent so many years thinking of the status quo as given that they won’t even imagine the alternatives unless affirmatively prodded. We need to prod them.

2. Anyone familiar with government would expect to find many cases where agencies are hampered by an incorrect interpretation of the law. Staff should prioritize these cases by the number of people affected, the budgetary amount involved, the amount of unnecessary delay, and other factors like that.

3. Starting with the most important or pressing cases, the Initiative’s lawyers should issue a formal legal opinion, akin to what a federal appellate court does. The opinion should analyze what the law says and doesn’t say, and should issue a mandate as to what agency personnel are in fact allowed to do.

4. The Initiative’s opinion should be treated by all agencies as legally binding, unless otherwise instructed by a federal court. In other words, if the Initiative says, “Agency X is hereby allowed to do ____,” the agency in question would be required to amend any internal policies, manuals, guidance, etc., so as to comply. As well, it would be required to send out bulletins to all of the relevant employees about the Initiative’s decision, and about what the agency’s policy or practice would be in the future.

Question: Wasn’t there already a “Mythbusters” initiative at OMB, and hasn’t it been relatively ineffective?

Yes, but that isn’t too surprising. The “Mythbusters” lists that I’ve seen are too short, are mostly about best practices rather than legality, and look quite unconvincing and unauthoritative when it comes to legal issues.

Consider this advice:

Misconception– “We can’t meet one-on-one with a potential offeror.”

Fact – Government officials can generally meet one-on-one with potential offerors as long as no vendor receives preferential treatment.

Imagine an overly-zealous agency counsel who sends around memos saying that if you are risking prison if you meet one-on-one with a potential vendor. In that scenario, the above "mythbusting" would not inspire any staff member to contradict the agency counsel.

Much more helpful would be this: A substantive legal opinion mandating that the agency counsel back down. Of course, the opinion would be issued only after exploring exactly which agencies and their general counsels have offered such advice, where they are getting the idea that one-on-one meetings are unlawful, looking into the history and meaning of the legal provisions in question, and analyzing whatever caselaw there might be.