The Only Government System That Actually Works Is The One With No Populism In Its Design

Via Jonathan Rauch and Benjamin Wittes

Even if voters were much better informed and more rational than the available evidence allows, their knowledge and sophistication would come nowhere near the level needed to make most of the public-policy judgments that confront the government on a daily basis. Those judgments entail knowledge of complexities, trade-offs, and specialized technical details that no one should expect, or even want, voters to possess. Like it or not, most of what government does simply must be decided by specialists and professionals.

Of course, specialists and professionals are subject to the same cognitive biases and shortcomings as all other members of the species. Being human, they certainly are not immune to ignorance, bias, partisanship, motivated reasoning, and the rest. Importantly, however, they provide a very different set of filters, because their institutional positions, personal incentives, and knowledge bases are different from those of the general public. The leaders of political parties or congressional committees need to worry about the long-term health of their institutions, and so they often take a longer view. Party officials need to balance multitudes of interests in order to build effective and durable coalitions. Technical experts are well-informed on particular subjects and deeply invested in educating themselves and others about them. Career politicians are repeat players who have reputations to maintain and need to live with the consequences of their choices. Lawyers, who make much of the government run, constrain and regulate public decision making.

The point is not that specialist or professional judgment is necessarily better than voter judgment, nor that specialists and professionals are better able to reach consensus (frequently, their views are all over the map), nor that they are free of corruption or self-interest. For the Founders to have been right in choosing a hybrid system, all that matters is that specialist and professional judgment be different than the judgment of the public–in much the same way that the judgment of the Senate is institutionally different from that of the House, and the judgment of the executive branch is institutionally different from that of the Congress. That is, it matters whether specialist and professional judgment would add useful information to the picture and, in combination with public judgment, tend to produce better decisions.

That said, modern anti-institutional populism, with its instinctive suspicion of anything or anyone deemed “elite,” often underestimates and unfairly denigrates how much intermediation has to offer–and how successful it has been.

Here it is worth distinguishing between two types of intermediaries, types that play very different roles in our democratic culture. The first is the political intermediary: people such as elected officials and political party professionals. These people’s job is to make political judgments on behalf of the electorate or to help candidates and politicians frame their–and the public’s–choices. A second type is the substantive intermediary: the technical expert or specialist whose job is actually to know things about the policy space in which the government acts. The lines between these two types are not bright ones; some people play both roles at once. But broadly speaking, the political intermediary stands in for the voter in deciding fundamental policy choices: Should Congress adopt the Affordable Care Act? Should it repeal and replace it? The substantive intermediary, by contrast, frames responsible policy choices and implements them in a fashion consistent with law and technical realities. Neither of these functions is one which voters can perform competently on their own.

To see vividly the successful interaction of voters, political intermediaries, and substantive intermediaries, let’s take a close look at the area in which our system functions at its least populist: intelligence oversight.

The intelligence oversight system has been largely immune to populist reform, but not because the area has lacked for reformist instincts. (It has actually seen a lot of reform over the years.) Rather, the very nature of intelligence makes it resistant to populism. The public has no access to the CIA and the NSA and their day-to-day work. In sharp contrast to the public’s regular interaction with law enforcement officers, members of the public don’t generally interact with intelligence professionals doing their jobs. And the oversight system for all of it is uniquely opaque. Intelligence oversight is technically dense across a number of different dimensions; some of the law at issue is arcane and unusually intricate, and much of the subject matter involves highly technical electronic surveillance taking place on complex computer networks. It also involves material that is nearly always classified at the highest levels. So while the activities of the intelligence community stoke all manner of public passions, the subject is simply not amenable to populist reform. There is just no way to involve the public in decisions that, by their very nature, have to be kept from the public.

The result is that reforms in intelligence oversight have empowered intermediary actors–politicians and experts–to stand in for the public. And these mechanisms have proven remarkably durable and effective.

The intelligence oversight system operates in all three branches of government. Within the executive branch, a series of compliance regimes, inspectors general, and Justice Department officials oversee operations, particularly those involving technical collection at the National Security Agency. Collectively, those actors investigate suggestions of misconduct, rigorously count more mundane compliance failures, and review activity for legal compliance–and they report errors both internally and to the other branches of government. They also build legal compliance into the very design of technical systems; to see certain data, for example, analysts often have to enter into computer systems the facts and analysis that would justify their access to the information they seek.

In the judiciary, the Foreign Intelligence Surveillance Act (FISA) Court both reviews applications for national security surveillance of U.S. persons and, more broadly, reviews the legality of surveillance programs taking place domestically but targeting overseas actors. The FISA structure does not merely put a federal judge between the intelligence community and electronic surveillance targets. It also creates bureaucracies within intelligence agencies that are designed to speak to that federal judge–bureaucracies deeply invested in keeping their agencies within the law and maintaining credibility before the judiciary. Representing the agencies before the court are Justice Department lawyers, who likewise act to keep the agencies in line. The system of judicial intermediaries thus dramatically reinforces and empowers executive-branch intermediaries, who have ongoing reporting obligations to the judicial branch.

The executive and judicial branch intermediaries are, generally speaking, substantive experts. But the intelligence oversight system uses political intermediaries too, particularly in Congress. The congressional intelligence committees review intelligence programs, get briefed on covert actions, and investigate major matters within the intelligence agencies–everything from torture to Russian hacking of the 2016 election. Unlike other congressional committees, they are staffed with intelligence community professionals cleared at the highest levels, and they have access to the most sensitive programs the government runs. The public never sees the vast majority of the work these committees do, but anyone in the intelligence community will tell you that fear of upsetting congressional overseers is a major restraint on intelligence community behavior. Note that the members of these committees are not specialists; they are just regular members of Congress. Their job is to stand in for the members of the public who cannot know what the intelligence community is up to, and to make major political decisions in the public’s stead and on behalf of the rest of the legislature.

Most people who have engaged the congressional intelligence committees agree–notwithstanding the House committee’s recent flap over the behavior of its chairman, Devin Nunes–that they function on average dramatically better than other committees do. The reasons are all related to their intermediary, non-populist nature. The professional nature of the staff reduces partisanship, for example. And the secrecy with which they operate discourages political grandstanding on the part of the members. A hearing of a normal congressional committee, which takes place in public, is a show whose audience is the public. Witnesses are chosen for C-SPAN. Questions are asked because they offer opportunities for theatrics and gotchas. By contrast, most intelligence-committee hearings have no audience beyond the staff and members. They are actually designed to convey information from the executive branch to Congress. They are arguably the only part of Congress for which hearings still consistently serve that role.

While the intelligence oversight process is decidedly intermediary-based and non-populist, it has not proven itself remote from “the people” or incapable of responding to public concerns. To the contrary, it has proven over the years to be highly responsive to public sensibilities. In other words, if the populist anxiety is that relying on intermediaries makes government distant and unrepresentative, the experience of the intelligence oversight process suggests otherwise.

The most recent example of this responsiveness is the system’s response to the Edward Snowden revelations about NSA activity in 2013. The congressional oversight process was critical in helping the community weather the storm, as when the bipartisan intelligence committee leadership spoke up publicly in defense of the legality and propriety of NSA’s programs. But the system also adapted relatively swiftly in response to the revelations and generated serious change. Congress passed the USA Freedom Act, substantially altering one of the key programs that Snowden revealed and generating new transparency with respect to certain categories of NSA and FISA Court activity. It is currently considering reauthorization of a much larger program, and further reforms are certainly on the table as it does so.

These adaptions are only the latest in a long string of legislative updates to FISA and other authorities–major changes to which took place at least in 1994, 2001, 2007, 2008, and 2012. This flurry of loving attention to the statutory scheme over time–legislative attention to make sure the statutory architecture of intelligence remains up-to-date as technology and public attitudes change–stands in sharp contrast to the more general environment of legislative dysfunction. In what should be a sharp challenge to reformers who believe that increasing public participation makes the policy process more responsive to public concerns, the portion of Congress that is least populist is exceptionally capable of actually responding to public concerns.

The long-term success of this oversight system is actually hard to overstate. America is a country, after all, whose popular culture produces movies like “Minority Report” and “Enemy of the State,” and whose civil libertarian culture is predicated on a deep suspicion of intelligence operations and government power generally. It is also a country with a history of genuine intelligence community abuses. Yet, even within the context of this culture, the oversight system allows the intelligence community the political and legal latitude to wield extraordinary powers.

And, amazingly, it does so with relatively high confidence from the population in general. The Pew Research Center has for more than a decade been polling Americans on whether they believe the government has “gone too far restricting civil liberties” or whether they believe the government has “not gone far enough to protect the country.” With the exception of a brief blip around the time of the Snowden revelations, many more Americans believe the latter than the former. Although good data on public attitudes toward the intelligence community over time do not exist, this poll question–asked since 2004–suggests that majorities do not believe the intelligence community is out of control. At a time of rock-bottom confidence in public institutions, it is notable that the intelligence oversight system, a system with hardly a trace of populism in its design, actually works effectively at its core purpose: assuring the public that the intelligence community is doing its job within the law.

The system shows that when intermediation is designed and empowered carefully, it can accomplish in a durable and robust fashion many of the objectives that populist reformers purport to seek.