On Convictions, the strength of them, and capture
Why we shouldn’t be surprised by Trump’s u-turns.
President Trump has recently engaged in a series of “stunning” reversals on important issues. In other news, a dog has stunningly bit a man. For those who have followed, or been subjected to, Mr. Trump’s brief political career a change in tune is nothing new. Banking on a promise from Trump, it seems, is to take long odds: I will label China a currency manipulator, I will stay out of Syria, I will pay you for the work you will do, till death do us part etc. etc. This is not to say that he has failed entirely to live up to his promises. He did attempt to repeal Obamacare and ban Muslims from entering the United States. And it seems that his failure to accomplish those tasks arises more from their unanticipated difficulty than from his casual relationship to guarantees. Still, for such a relatively short career in civil service, the sheer quantity and brazen nature of his about-faces is remarkable. Instead of using this space to pile on and point out the obvious, I want to note that these “stunning” reversals are also a bullet point in the relationship between inexperience and inertia.
When we intend to regulate the regulators we have a natural impulse to bring in fresh blood — to send Mr. Smith to Washington. To police the corrupted bureaucrats and weed out ossification and institutional rot you need someone with the strength of their convictions who is not beholden to the interests that led to the aforementioned corruption, ossification, and rot. This logic propelled Trump, and many others, to our nation’s capital. For Trump’s detractors his lack of experience and extreme wealth were bugs, but for his supporters they were features: This is a man who will shake things up, and who cannot be bought. The romantic idea of the citizen-statesman dropping their plowshares and spending their time in government has obvious appeal. But it may work an unintended purpose.
Standing on the strength of your convictions requires both convictions and strength. You may be passionately convinced of the need to label China a currency manipulator, or rein in the EPA, but if those convictions rest on ill understood campaign slogans, shouted one-liners at rallies, or talk radio call-ins, they are not necessarily here to stay. It takes someone with actual and deep understanding of these issues and institutions to do the necessary work to make sweeping changes. Paradoxically, people with actual and deep understandings of China and international trade or the EPA are somewhat less likely to support drastic action such as starting a trade war or getting rid of the EPA. If I were to distill the field of administrative law — the law surrounding the implementation of laws — into as few maxims as possible, one of them may be “Experts are Insiders.” The unfortunate reality is that if you want to know how to fix the Export-Import bank, you may have to talk to a banker. If you want the EPA to make the most effective pesticide regulation, you may want to hear from Monsanto.
Why do these outsiders with strong opinions have difficulty keeping their promises in Washington? Leaving aside the more often cited problems of outright corruption or lying politicians pandering on the campaign trail, I’ll suggest three reasons. The first two are process oriented, the third is more ideological.
First, policymaking is fundamentally different than campaigning in one unfortunate aspect: you actually have to convince people of things. Modern campaigning (at least by the time you get to a general election) is less about truly changing minds then it is about shoring up support and motivating voters. When, on the campaign trail, you proudly declare that on day one you will get rid of the detention facility at Guantanamo Bay, or label China a currency manipulator, you aren’t really trying to convince people that Guantanamo is bad, or that China is a currency manipulator. When you try to get rid of Guantanamo or label China a currency manipulator on the actual day one of your presidency you are faced with a rather different constituency. Generals, trade experts, counterterrorism experts, Chinese diplomats, defense contractors, businesspeople and so forth are testing the aforementioned strength of your conviction. The script is flipped, so to speak. Instead of “convincing” voters — by which we generally mean relying on polls so that a politician can tell the voters what they want to hear — you are being convinced (dare I say “lobbied”) by interested parties. And these parties are extremely sophisticated, both in terms of the substance of the material and the process of convincing. People who have loud, but not strong, convictions can win on the campaign trail only to be easily convinced themselves once in office.
Second, policymaking involves interaction with the real mechanics of government. To a small degree a policymaker can essentially issue edicts with the stroke of a pen. The President can issue an executive order, a congressman can author a resolution expressing the “sense of Congress.” But such resolutions do little, and even Executive Orders have to follow the Constitution. As a soon-to-graduate law student I think about this phenomenon in the context of lawyering. Sure I know the principle behind Federal Rule of Evidence 404(b). I’ve read the advisory committee notes. I know why it should exclude certain pieces of evidence. I know that such issues should be presented in a motion in limine. But where, pray tell, does one actually file a motion in limine? Do you just hand it to the judge? Does it have to be written in a particular font?* Ideas are terribly important, but they are carried out by so much paper, pens and people. Repealing Obamacare on day one! is easy. Health care, it turns out, is “complicated.”
My third suggestion also has to do with the difference between campaigning and policymaking, or politics and policymaking, but is more ideological. I suspect that the bigger the idea, the less the details matter, and the less the details matter, the more malleable those details are. In other words, if you come into office on a platform that you will specifically ask the EPA to reconsider its C02 endangerment finding and abandon efforts to promulgate stricter emissions standards for airplanes, then failure to do so seems like, well, a failure. But if instead you come into office on a platform of “deregulation,” “less government,” and “freedom,” you might miss those things** in your broader scattershot efforts to simply get rid of “regulation.” I suspect that lobbyists, like all lawyers, relish ambiguities. If you can’t cross the street at night, don’t cross the street at night. If you can’t cross the street when it is “unsafe” to do so, hire a lawyer. It’s relatively easy to convince someone that labeling China a currency manipulator is not part of “America first,” because it is unclear what exactly “America first” is.
For what its worth, the problem of the idealist campaigner resulting in the institutionalist policymaker is not unique to Trump, or Republicans. And it is a problem worth considering. Designing truly effective rules for the process of governing starts with honesty about the process of governing. Arguing that the best solution to bureaucratic inertia is to throw a loud know-nothing into the gears is not being particularly honest. Put differently, if experts are insiders we need to be a little more thoughtful when it comes to our distrust of insiders. Further, we should maybe be a little less “stunned” when we hear of the inevitable flip-flops from an outsider.
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*First, Google makes such problems largely obsolete. Second, I now know the answer to this one, but that is really only because I took a clinical course at law school. Without that experience I would be full Google in the real world.
**Not that we should necessarily point this out to the Trump team.
