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Do Republicans Understand Policy Implementation Best?

Recent Transitions Provide Some Clues

Photo by Tingey Injury Law Firm on Unsplash

Yes, this is a blog post about a blog post about a blog post — or whatever the New York Times now calls the articles written by columnists. Last week, Ezra Klein wrote a piece for the New York Times — “What America Needs Is a Liberalism That Builds” — about “administrative capacity” and the failure of Democrats to understand the importance of effective government to successful policy. Donald Moynihan wrote a blog post — “Why is American administrative capacity in decline?” — earlier this week in response. I learned a lot from both and these are a few thoughts on both of these interesting pieces on the state of government in the US.

Klein concludes his essay by stating:

“Democrats spend too much time and energy imagining the policies that a capable government could execute and not nearly enough time imagining how to make a government capable of executing them. It is not only markets that have failed.”

This seems to be an argument, in part, about policy implementation, generally, and the difficulty of implementation, more specifically. This is an intriguing point, though one that’s hard to prove.

To be fair, though, we’re all probably guilty of something similar in the classroom. For anyone who has taught Policy Analysis, many of us have to admit to tucking the section of the course on implementation into the last session of the semester, and sometimes running out of time to address it altogether. That Democrats do the same is, then, not surprising.

It also suggests Republicans think about this differently, a point Moynihan raises in his piece:

“While Republicans are the political actors most responsible for this source of administrative decline, the Democratic preferences for policies over administrative matters means they don’t treat administrative capacity as a priority, seemingly failing to understand in a way that Republicans do that progressive goals depend on a capable state.”

In on-going research on recent presidential transitions, I stumbled on one piece of evidence to back this up, if not prove the point exactly.

Transition teams are typically divided into working groups focused on various facets of getting the new administration ready for Day 1: White House planning, Cabinet staffing, agency review, policy, etc. This is how Republicans and Democrats have organized things for decades.

In 2016, though countless reports concluded that the Trump transition was a mismanaged mess, they at least thought about implementation. In addition to a set group focused on “Agency Action”, the transition team named Ado Machida the “Director, Policy Implementation”, charged with overseeing at least 16 transition volunteers. On the policy issues Trump cared most about — Building the Wall, Regulatory Reform, and Protecting Constitutional Rights — there was someone tasked to think about implementation and an entire section of the transition team focused on it, as well.

It is hard to know if this amounted to anything more than names on an organizational chart, but it does indicate that implementation was on the radar of Republicans overseeing the Trump transition. That the Trump administration couldn’t deliver on implementing many of these policy changes — including a partially built wall — likely relates to Trump’s own limited capacity to translate campaign promises to federal action.

Nevertheless, in 2020, from what we know about the not-so-public Biden-Harris transition was that there was no equivalent of this focus on implementation. The transition had a massive agency review apparatus with hundreds of volunteers working, but the terminology of “policy implementation” was not used. If there was such a team in place during the 2020–21 transition, the Biden-Harris team never took credit for it publicly.

There’s a second thread that runs through the Klein post, and Moynihan’s response, on the preponderance of lawyers involved in the Democratic Party. Citing research by Nicholas Bagley, a law professor at the University of Michigan, Klein writes:

“American politics in general and the Democratic Party, in particular, are dominated by lawyers. Biden and Kamala Harris hold law degrees, as did Barack Obama and John Kerry and Bill and Hillary Clinton before them. And this filters down through the party.”

Moynihan interprets things differently:

“Republicans who are creating administrative dysfunction…are also contributing to declining state capacity by picking judges inherently suspicious of administrative power. This seems like a bigger threat than the preferences of Democratic lawmakers with legal backgrounds.”

I’m not sure who is right here, but recent transitions also provide some insights into the role of lawyers and preference for legal proceduralism. I’ve been collecting data on who served on the agency review teams for the past four transition teams: Bush, Obama, Trump, and Biden. To be sure, this isn’t everyone who served on each team — there’s no federal requirement that the names are shared publicly, so many volunteers are never revealed — but is the best information we have and does reflect hundreds of people people during each transition.

I used publicly-available data on the professional background of those serving on each transition. This allows me to compare the percent of each agency review team who’d been working at a law firm prior to the transition. Of course, there are many lawyers who do not work for law firms, so this is at best a proxy for this influence of lawyers, not a direct measure.

With these limitations noted, what I found is that in 2020 there were many fewer transition volunteers who came from law firms than twenty years ago. For example, during the 2000–01 transition, nearly a quarter of the 500 or so people on the Bush-Cheney transition team had been working at a law firm. Five lawyers from Gibson, Dunn & Crutcher were involved in the Bush transition and four from Latham & Watkins.

Eight years later, the Obama-Biden transition had many fewer on loan from law firms, just 10%. As Klein notes, the President-elect was a law school lawyer, not a law firm lawyer, and there were at least eight who served on the Obama-Biden transition with a primary affiliation to a law school. This compared with three law school law school lawyers who served on the Bush transition. Nevertheless, the difference in law firm representation across these transitions is stark.

In comparison, the next transition, Trump transition of 2016–17, resembled the Bush transition and the last one, the Biden 2020–21, the Obama. Fourteen percent of the Trump transition team members came from a law firm compared to just 5% of Biden transition team members.

What this suggests is that Klein’s assertions should be understood in the context of the staffing decisions Republican and Democratic president’s have made at the very earliest point, prior to even being sworn into office. Recent Republicans, not Democrats, appear to have drawn more advice and counsel from law firms. While this does not get to the central claims made by Klein or Moynihan, this is additional context to understand the partisan differences in management and policy.

It also suggests thinking more deeply about the types of lawyers each party relies upon and what intra-professional differences might mean for administrative capacity, policy, and implementation.

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Heath Brown

Heath Brown, associate prof of public policy, City University of New York, study presidential transitions, school choice, nonprofits