Michael Livermore 0:10
Welcome to the Free Range Podcast. I’m your host, Mike Livermore. The episode today is sponsored by the Program on Law Communities and the Environment at the University of Virginia School of Law. With me today is Sabeel Rahman, a professor at Cornell Law School, who recently served in the Biden administration in the Office of Information and Regulatory Affairs, sometimes referred to as OIRA, as senior counselor, and then later as the Acting Administrator. Before that, he was the president of the think tank demos. And he’s also the author of the book “Democracy Against Domination”, amongst other works, hi Sabeel, thanks for joining me today.
Sabeel Rahman 0:47
Thanks for having me.
Michael Livermore 0:48
So, in your book, “Democracy Against Domination”, you describe kind of two broad visions about how to do policymaking that we’ve had in the US, maybe thinking back to the New Deal as a as a watermark anyway of a moment that we might look to as the origin of this. And so on the one hand, there’s kind of a laissez faire, what we might say libertarian, these days approach to governing are not governing the marketplace, the economy. And then there’s a managerial technocratic approach that has antecedents but we really see coming into full flourishing during the New Deal Post New Deal period periods. And you argue in the book, or at least, that’s the way I read it that both of these approaches, there’s something non democratic, or at least distrustful about democratic politics in both of these approaches, it really limits the ability of people to affect policy outcomes. And neither again, this is kind of my reading, and be very interested in your your take is they don’t address a key challenge of our particular time, which is economic and political inequality. And so you argue, again, just kind of paraphrasing, for an anti domination understanding of democratic institutions, and you have reforms that you offer for the regulatory process, among other things. So I’d love to talk about all of this in more detail. But just to further situate, where the book was, it was published in 2016. If I look at the publication date correctly, it was in November 2016. So it was a moment a period of time in American politics. And it was also one where the regulatory state was in the news, right, there was Donald Trump during his campaign talking about draining the swamp and all of the deep state rhetoric that he was deploying, that struck a chord with a lot of voters. So I’m curious how, as the book came out, and as the administrative state was, in the news, how you saw your arguments, contrasted with the, you know, the kind of this alternative vision that was being offered by the Trump campaign at the time.
Sabeel Rahman 2:50
Yeah, well, so first, Mike, thanks so much for for starting us there. And it’s been really interesting, sort of think back on, on the book, you know, in light of the Trump era, and everything that’s, that’s come since. So, so kind of going back to that original moment, a lot of what really got me going in that book project was really the financial crisis that started in 2008. And, and in particular, sort of this concern that I had watching the response to the financial crisis play out that on the one hand, here, you had such a great, sort of very clear example of corporate and financial power, right, that, you know, the deregulation of financial markets, the the huge economic influence and power that these mega firms had, you’re really bringing the entire financial and the larger economy down to its knees, right. And it really got me thinking about this question of economic power on the one hand, and then on the other hand, how, sort of very technocratic, you know, engine, like, like, let’s just engineer financial markets a little bit better, you know, how that mentality just seemed to not be, not be meeting the moment that it seemed, you know, it was called for that time, right, between, you know, occupy Occupy Wall Street and the larger sort of longer tail of, of the financial crisis, it really seemed like, a moment tailor made for just a top to bottom rethinking of our political economy. And we got some of that in terms of, you know, public debate and grassroots social movements, but comparatively less of that in terms of public policy. So I say all that because that’s what really got me to try to do this work of trying to unpack you know, well, where where are those constraints coming from? And they’re really like intellectual, paradigmatic constraints that the, the sort of, you’re used to thinking about big government versus markets as like our left right, you know, formulation, you know, the right cares about markets, the left cares about big government that will, you know, solve public problems. And and, you know, I’m a believer, big believer in, in, in democratic government, but what I What I was troubled by is the way in which a certain kind of sort of wonky technocratic managerialist approach to government, you know, among, among progressives or liberals really suffered from two problems one, it often would take as a given a lot of the underlying inequities and disparities of economic power in the in the market economy, and so sort of reduced to a nibbling around the edges kind of orientation, and to really sort of almost shared with the laissez faire view, the libertarian view, a distrust of democratic politics that at the end of the day, we don’t really think we that people ought to govern on these complex matters, it really it should be done by people who know what they’re doing, you know, we we look to the Fed rather than to, you know, the Congress or to, you know, folks on the street to decide what should happen. And so that was sort of the the motivation for the project. But you know, now, like fast forwarding, I think what’s interesting in 2023, is, you know, two things. One is that a very narrow, managerial technocratic approach to economic policy, I think leaves a huge gaping moral void, in which, among other things, the kind of appeals that you saw from Trump, you know, can can flourish, right, because it’s offering a critique both of a seemingly distant, unaccountable state, and in its own way, a critique of of an existing political economy. That’s, that’s one problem. And then the other problem is that it also, you know, that can managerialist approach to policy design, just didn’t have enough resources, intellectual or moral, to imagine a much more transformative, different way of doing of structuring our economy. Right. And I think the pandemic created another moment to rethink, you know, both the substance and the form of economic policymaking. And I think you’ve seen a very different political and policy response, you know, since 2020, this time around.
Michael Livermore 7:08
Yeah, it’s super, it’s super interesting. And there’s, you know, there’s a lot to it, maybe we can kind of return to this the question of the moral void, and, yeah, and Donald Trump kind of stepping into that. So really interesting. And then maybe offering potentially competing visions, some kind of competing vision, as seemingly encoded can cohere does that was but but maybe, you know, just to kind of just get further pieces of the argument on the table, we could dive into this notion of inequality, economic inequality, political inequality a little bit more. So there’s a there’s a quote in that book that I liked that I wanted to see, just maybe have you expand that a little bit. So here’s how it goes. “The fundamental problem of the modern economy is best understood not as a matter of income inequality, or distributive justice, but rather as a broader problem of power and domination”. Okay, so that’s the quote. So then the question is, you know, just to unpack that a little bit, what is the distinction you’re drawing here between on the one hand inequality or distributive justice? And on the other hand, power and domination? How are these related to each other? But how are they distinct? And what is the distinction you’re trying to draw?
Sabeel Rahman 8:13
Yeah, totally. So so they’re related, but they’re two very different lenses, I think on on diagnosing the economic problems. So, you know, I think, distributive inequality, we have an intuitive sense of what that is, there’s some folks who just have a lot more than other other people and and Bernie Sanders formulation that top 1% versus the 99%. And that’s certainly true. But what I was hoping to capture by a focus on power and domination is that it’s not just the literal like dollars in a bank account, what we really ought to be concerned about is who gets to govern who gets to decide. And so the problem of say, the financial crisis wasn’t just that you had these mega firms that were worth so much money, and whose whose collapse, then like it, Misery hated huge swathes of the country, in a recession that, you know, workers and communities had to bear the brunt of the costs, you know, that. So that’s a problem of just, you know, income and inequality and distributive shares. Sure. But there’s another deeper problem, which is that, in a sense, we are all, you know, we’re all sort of subjects to the arbitrary whims and desires of these Masters of the Universe whose decisions are not accountable to us, and whose decisions affect all of us. And so, that, to my mind, was the bigger problem of, you know, shadow banking or of you know, take any, take some of the debates now about corporate concentration and anti trust, for example, is another area that I talk a little bit about in the book, but has really flourished as a newer area of policy attention of late that in some ways, what we’re really ought to be worried about is the sense that the firms and individuals and groups that Aren’t sit at the commanding heights of our economy. They’re essentially making decisions governing decisions about, you know, who wins and who loses which products make it to market, which regions will live or will thrive or die, you know, based on where investment goes. They’re making these decisions that are really political decisions that ought to be in a democratic society responsive to in some form and larger democratic politics. And so that’s what it shifted power gets us as it gets us an attention to who’s actually governing, and how, which downstream then can affect distribution. But you could easily you know, redistribute income without redistributing power. And that that would that’s a that’s a bad outcome, I think, for a democracy if we were to have it. Yeah, that’s
Michael Livermore 10:51
really interesting. Just the last thing that you said was, is a really interesting thought so so just to kind of continue to play with that. So I think, just to offer the, you know, maybe the counterclaim, or maybe the argument that you’re arguing against, or, you know, again, just trying to situate the arguments in the book. So, you know, I think a classic libertarian, laissez faire type would say something like, yeah, it’s bad when these big firms, they accumulate all this power, and then they go to government with their hands out. And the government uses its course, or power to, to extract wealth from folks who don’t have political power and deliver it to these well organized interest groups. So of course, their solution is to shrink government, right, shrink it way down, so that it can’t be captured functionally by these by these powerful actors. And then, you know, of course, just to again, off, maybe offer with a slightly more liberal version of that would just say, Nope, we can’t do that. Because there’s too much that we need government for there’s externalities, the marketplace, just operating on its own, is going to lead to all kinds of inefficiencies, market failures, and also a horrendous distribution of wealth, that’s going to lead to like lots of just small number of very wealthy people, having all of the having all of the, the wealth in society, and that’s, that’s not good. And so the program would be something like, Okay, we’re going to have government. And then what we’re going to do, what government’s going to do is it’s going to correct for these inefficiencies, it’s going to do the redistribution of wealth, that is called for it in order to maximize well being, and then we’re going to insulate the government from these political forces from the large economic actors. And then the market will you know, once once we have a distribution of wealth, that makes sense, then the markets are going to discipline the the big economic actors, and then the government is going to solve for these inefficiencies and do redistribution, and it’s going to be insulated from these economic actors. So that’s like the nice, you might think of it as a kind of the standard story at some level. So what’s the what do you see as the as the flaws? What are the what are the weak points there?
Sabeel Rahman 12:58
Yeah, so it’s so interesting, because in a way, right, both of those standard models, even though they often are not presented as theories of power and accountability, they are implicitly partial theories of power and accountability. So the free market idea, you know, in its in its strongest form, I think, is an attempt to rein in the potential concentration of economic and political power by resorting to market mechanism. In a competitive market, no one firm dominates. And in a limited government, you don’t have that kind of like, unaccountable rule by political elites that you’ve alluded to. That’s, that’s an account of power that actually has quite a bit to, to, you know, quite a bit of compelling us to it. But But what it misses us is, you know, what the, what the standard liberal argument, highlights is that market mechanisms are themselves systems that encode structural inequities and disparities, and actually allow for other kinds of power to flourish. Other kinds of unaccountable power, I should say, to flourish. flip that around for the standard, you know, liberal, big government story, that’s a response to certain forms of market power and inequities in a market system. So that’s why you want government to do things like you know, provide public goods and so forth. But in its in, its thinner, like, just trust us because we are government experts version. It’s that argument for government, I think is is is normatively brittle, because it doesn’t have the kind of moral resources to respond to the very real concern and challenge like, Well, what happens when government gets it wrong? What happens when we don’t really think the experts are expert or the experts actually know what’s best for all of us, which is a very real concern. And so this all sets up what from for me, the focus of the book then ends up being is to can we imagine us systems of democracy that are built to respond to both of these forms of unaccountable power, right? We want it we want democracy as a way to protect against economic domination, the domination of dominant firms, the domination of employers, over employees in the workplace, the domination of the market system that, you know, structurally encodes class, race and gender inequities on the one hand, and also a form of democracy that responds or protects against political domination, the control of government by unaccountable political elites of one form or another, and so and so. So that then became becomes the the crux of, of the book, I should say, one more thing is, there’s all sort of super abstract part of what I really loved in that project was sort of discovering along the way, some really interesting historical figures who are grappling with this exact tension. And so I spent some time in the book, talking about thinkers, and reformers and activists like Louis Brandeis, and like John Dewey, and sort of grounding some of this in, you know, moments, previous moments of reform, not not quite the New Deal, but certainly in the pre New Deal period around labor, financial regulation, the first wave of antitrust regulation, as as really having this explicit democratic, small d democratic valence to it that often gets lost in the traditional government versus market story.
Michael Livermore 16:29
Right? Yeah, that’s definitely yes, very interesting part of the project is to kind of recover, you know, some of these ways of thinking about about government about markets that, you know, not perhaps altogether lost, but maybe lived more in history departments, and, you know, the occasional kind of labor scholar, and weren’t so much an active part of the of the discourse, at least in the legal academy. So yeah, so that’s, that’s super interesting. Well, of course, there’s been a whole movement around you and other folks, Lena Khan, now, you know, at a very high level, like government making some more arguments Jed Purdy, who we had on the podcast, not that long ago. So yeah, so that’s all super interesting. So okay, so if we think of this dynamic here, we’ve got market failure on the one hand, and there’s different ways of describing market failure, of course, right. So on the, from a kind of straightforward economic perspective, they’re going to talk about things like externalities. And they might talk about things like the diminishing marginal utility of consumption and concerns that, you know, the marketplace is going to just generate too much concentrate too much wealth in a way that’s actually quite inefficient from the perspective of human well being. But that’s a very different way of thinking than the way you’re you’re often talking about the failures in the marketplace, where you’re looking at, you’re concerned with, or you seem to be concerned with domination, like we don’t like certain types of relationships, that maybe even a, an ideally functioning market, quote, unquote, around ideal. But you know, what, let’s call the The Economist idealized version of the marketplace might generate. And that’s a whole interesting subset that we could probably dig into. But anyway, but in any case, however, you think one thinks about market failure, we’ve got that problem, we’ve got a problem of political failure on the other side, which again, different people might diagnose slightly differently, but broadly speaking, we’re going to have a shared understanding that it’s like the government not delivering on his promise, right, you know, of making well, you know, maximizing well being for the for the public, however, that we understand that. And then your alternative, your your solution here is, as a democratic is democratic reforms. And actually, I really want to get into this. And here, I think we can go back to Donald Trump because he often also offered an alternative to this dynamic where he wasn’t a laissez faire guy, really, sometimes maybe he wasn’t, he’s not altogether coherent, obviously. But sometimes he would talk in that way. But he also was happy to talk about the government supporting coal to bring back jobs in West Virginia, or, you know, he intervened in Trump, he was happy to say, No, we shouldn’t have free trade with China, you know, we should be the government should be intervening here. And so he was pretty interventionist, but it was very much like I, the President, I’m going to intervene on behalf of a, you know, favorite political constituencies, basically. And it was pretty clear about that. And you offer something that’s very different is this notion of democratic, a, you know, a kind of a democratic alternative. So maybe, you could just describe just to kind of in broad strokes what that democratic alternative looks like. And then of course, I’m going to try to complicate it and, and yeah, of course, you know, those could get into the difficulties but but, but yeah, but let’s start with what what is the vision?
Sabeel Rahman 19:47
Yeah, totally, you know, and there are many, many difficulties and challenges to be sure it’s not an easy thing to to do as a society. But um, you know, a couple of things I’d say about this, I mean, one is. So first, it’s really important as we even as sort of we juxtapose some of the Trumpist appeals, you alluded to this, Mike, but, you know, the Trumpist appeal has a particular view of who the Deimos is, in addition to, like making some of these gestures towards, you know, breaking with free trade or orthodoxy and, and, and sort of breaking with the Republican standard Republican approach to coming to cut Social Security, right, there’s some really important breaks from conventional laissez faire libertarian, you know, neoliberal, what have you economic orthodoxy, which actually did have played a big role in, in, in his crossover support. And in 2016, a lot of people coded Donald Trump as being more moderate than he really was because of those economic positions he had, even though he didn’t govern that way at all. But it’s really a point that his his account of of democracy is I think, both plebiscitarian, a, you know, to your point, so like I the President say, so it’s plebiscitarian, you know, bordering on autocratic and, and increasingly more autocratic as he went, you know, up to January 6, but it was, and it was also, first, implicitly, but then increasingly, explicitly, a white nationalist view of who the Deimos is, right that the most is, is white people and, and sort of, and people who are who have made their, their peace with with white supremacy in the country. I think. So contrast that then with what what I think we ought to want, which is a sort of full embrace of the moral equality of all persons in our in our polity. And so that means a multiracial, multi ethnic, feminist democracy, then, and be then thinking about a political political regime that isn’t just about who wins an election, and isn’t just about who shows up at a town hall, but creating structures that allow for meaningful agents, collective agency, over our, our shared conditions of, of political, economic, and social life. And so, in the book, I tried to frame this around an idea that contestatory democracies are drawing from a bunch of different traditions and political theory. And then, and the idea there being sort of democracy is going to require continual sort of experimentation, debate, disagreement, productive disagreement, because we have a diverse polity. And we’re not necessarily going to always agree, and we want to be able to revise your collective judgments over time. And that that requires institutional structure. So I’m also critical in the book about sort of thin notions of democracy, like the town hall, you know, notice and comment, mechanisms that are perfectly fine, and as a piece of a larger hole. But if you think that, you know, that is equivalent to real meaningful agency, particularly for those who you know, are the most vulnerable or impacted, then then that’s a problem. And so the later parts of the book is an attempt to try to think through, you know, what constraints do hard constraints might we need to prevent concentrations of economic and political power? What affirmative channels or vehicles might we need for productive participation that can handle complexity of the time that you have in say, financial regulation? But that also is, you know, rooted meaningfully in community?
Michael Livermore 23:40
Yes, I mean, okay, great. So this is it’s very attractive vision, right, especially when compared to the, to the alternative. And, you know, and I tend to agree that the administrative state in its current manifestations are, you know, faces legitimacy problems, and kind of always had, it’s interesting to contrast your vision with the earlier podcast guest, Jed Stiglitz, now your colleague at Cornell, because you’re both thinking in deep ways about about these these questions of legitimacy in the administrative state. But coming to, I think, some pretty different, different conclusions, but that’s good in a productive way. So maybe the, you know, one of the, again, kind of paradigms that I think you offer in the book when thinking about reforms. So I should say, you know, there’s, again, a kind of a standard move. When we talk about democratizing the administrative state, and we should, yeah, it’s probably worth going through this is to say, you know, yeah, absolutely. We’ve got big Democratic problems in the administrative state. There’s a huge democratic deficit. And what we need is a more robust non delegation doctrine. We should celebrate decisions like West Virginia v. EPA and the major questions doctrine that takes power out of the hands of Have these unaccountable, you know, pointy headed bureaucrats and puts it back in the hands of Congress, the true democratic institution in our society. And and there you go. That’s that’s kind of the argument. And then, you know, there’s a standard response. It’s kind of along these democratic lines, which you address in the book, which is the Presidential supervision response. Justice Kagan’s argument that no administrative agencies are democratically, they have good sound democratic pedigree due to presidential supervision. And those, again, are pretty standard moves in the literature. And you don’t go with either one of those. I don’t I don’t take you as a proponent of non delegate delegation doctrine. Right. And, and it but I don’t think you’re fully on board or feel at the Kagan I presidential supervision argument is, is sufficient. So So yeah, so what what of Congress, what of agencies? If we’re trying to think about democratizing political decision making?
Sabeel Rahman 25:57
Yeah, totally. No, this is, this is great. And and, you know, it’s funny for me to sort of revisit this part of the book. Now, after having spent some time, you know, in, in the deep part of the regulatory apparatus, you know, over the last couple of years, but no, I think that’s right. So I’m absolutely you know, not not a fan of the of the non delegation doctrine, or its modern version of the major questions doctrine, which we can talk about, if you like, you know, in part because I actually see that as an aggregation of anti democratic power onto the court, away from both the Congress and the executive branch. So you know, it masquerades. But it sort of goes to the broader point where we started the discussion that I think some of the insofar as there’s like a normative moral appeal, that that some of those arguments hold, it’s because it’s sort of tapping into some of these anxieties about the our limited democratic, small d democratic role and control, as you know, citizens of the polity. And it’s sort of trading on that to then by sleight of hand to then accomplish a further concentration of political power away from, from the public and in favor of, you know, those corporations and already powerful interests who benefit from a gutting of those specific regulations, right, major questions doctrine, was not invoked, for example, to rein in the Trump administration’s attacks on communities of color and, and, and immigrants. Right. So and that’s notable. So yeah, I think not definitely not for non delegation, I think on presidential administration, it’s, that’s it, that’s an interesting wrinkle. So in the book I had, I tried to formulate this, this account of regulatory agencies as sites of democratic participation. And by that what I meant is it’s not just that we elect the president, and then the President makes policy, that’s part of it. But if you actually think about what it means to meaningfully engage, as individuals, and as communities in collective governance, collective decision making, you actually need more than just like, like sanctioning someone to rule in your in your stead, right? You, you want to be able to sort of get into the weeds a little bit you want to be able to convey like, what are the particular needs of your particular constituency or your particular region? How might that cash out in context of, you know, a particular set of proposals around, you know, housing policies, say or, or, or environmental policy? And so this idea of agencies who, who marry some forms or, or who, in an ideal form, could map potentially marry some forms of grassroots engagement and participation and input with technical expertise of the kinds you need, was really interesting to me that like, you need institutional spaces and structures to exercise collective judgment. This is one of the big lessons, I think from, for example, the vast deliberative democracy literature, and it’s not just, you know, people sit around and and think deep thoughts. When you have deliberative democracy, it’s that you actually need to construct institutional spaces that enable and empower and, and sort of enlightened people into the ability to exercise collective judgment. So the idea of a regulatory agency that isn’t just doing whatever the President says, but he’s also engaged in the more in greater specificity on policy issues, then what say the legislature might be able to do you know, at a higher level, you know, ex ante seems like an important missing piece in our institutional ecology for democracy. And so that’s a very different read of, of the regulatory agencies potential. It’s not regulatory agency as a bastion of technocratic expertise, but rather regulatory agency as a place where a range of constituencies and needs and values and and, and goals can all kind of be hashed out, you know, kind of like a legislature but under a different logic.
Michael Livermore 30:19
Yeah. And one of the things I do enjoy about this take, of course is that, again, amongst the arguments that you’re resuscitating this is, you know, along the lines that Dick Stewart argues in his very famous, I think 1971 paper, reformation of American administrative law. So of agencies as sites of pluralistic bargaining, so I guess I’ve to quest. Again, I’m super interested in all of this. It’s a it’s a fascinating line of argument, and good to keep it on the table. So that the two things I think, well, and this is, especially in light of your recent time in the in the Biden administration. So one concern or question that I always have, even though I’m attracted to so many of these ideas, is like, when you look at real regulations, I’m like, how the heck is anybody going to participate in this stuff? There’s so complicated. There’s so there’s so much technical detail. So as you note in the book, and it was, I think, very broadly accepted these days, you know, there are value judgments, absolutely. And questionable value judgments that are embedded in many, many, many agency decisions, from climate change, to housing, to education, to immigration to I mean, literally any issue that you might decide to pluck out of a hat, and agencies dealing with it, and it’s there’s likely to be value laden decisions that the agency are doing, are making, on the other hand, in order to even understand what the stakes of the value judgments are, requires often enormous technical expertise. And, and they’re often in the, you know, at a level of detail and granularity that most people don’t have a sense about, like, I want clean air, that is a very reasonable thing for someone to want. Does that mean 65, five parts of particulate matters, 35 parts per million particulate matter. And like, even like, literally, how does one translate that value judgment, I want clean air, which is really all you can expect a regular person walking around the street to have into, you know, an something that would get actually operationalized in a regulatory decision. So that’s so curious what your reflections are on that, that what I find personally to be a pretty substantial difficulty.
Sabeel Rahman 32:32
Yeah, that’s great. And it is a challenge, I think. You so one way to, to think about that challenge is actually just to take a few steps upstream from the like, the parts per million, you know, point of the of the, of the discussion and sort of think, well, okay, that’s not the only part of, you know, a broader, you know, Clean Air Act regulation that’s been formulated, as you were saying, which I agree with, there’s a whole range of value judgments that have to be made. So one way we might think about, like, part of the regulatory design is, is it creating the right hooks and levers that enable impacted affected interests? You know, so on the philosophical principle that democracy about in franchising, all affected interests, and different interests are affected differently in different in different ways? Does the regulatory apparatus create hooks and levers for effective interest to first have a seat at the table to begin with, and there are different ways you can institutionalize that, that don’t require sort of superhuman levels of, you know, outside reading and study by lay persons to, to then weigh in on the parts per million question. And so, you know, the book, I talked about some of these, but there, but the literature has, has really grown quite a bit since since the book came out, you know, there are models of interest representation in the regulatory state. So, you know, for example, I talked about the Consumer Financial Protection Bureau and how it has embedded in it offices whose job is actually to like, do proactive outreach to particular constituencies, you know, veterans, student debt holders, and so forth, to sort of understand what the needs and challenges are and help sort of channel those and represent those in, like within the sort of administrative apparatus. And you can imagine dialing that up. There’s a proposal on the hill. That’s been kicking around for a while, I think. I think it’s Senator Warren bill and Representative Jayapal bill, that includes a proposal for an office of a public advocate, to be created to serve as a similar function. So you could so one piece is like helping channel a wider range of needs and voices and interest into the regulatory process with some some help and support. Another another piece is how we enable more democratic monitoring of monitoring and responding to outcomes. So I talked a little bit in the book about the Community Reinvestment Act and it’s a A day allowed grassroots groups to kind of register their register with federal financial regulators whether banks were in fact lending to those communities of color, part of the regulations and where they weren’t, that would weigh against the those banks when they went up for seeking approval for a new merger, for example. And so there are these are mechanisms which I find interesting because they are ways of bringing communities into the decision making process in a way that doesn’t require everybody to like be a top to bottom expert in all the ins and outs of like the technical policy design, but still very much gives them a a meaningful catalytic role in shaping and driving the direction of the policy. So that’s all like one set of stuff. I think there’s another set of stuff, which I didn’t talk about in the book as much. But I think there’s been a lot of really interesting experimentation on over the last year since the book came out, came out on models like Citizen assemblies and citizen juries, you know, where you sort of create a decision making process that includes, you know, briefings from experts for a lay for for a lay jury of sorts, that, that then puts the technical expertise in its appropriate role as an input into an ultimately normative balancing of values judgment, as opposed to like, the other way around, right. And some of those experiments have in other parts of the world have actually involved, like, fairly high stakes and fairly complex matters. And it’s an interesting question, sort of, could we start to adopt some more of those types of practices in our own regulatory practice going forward? Yes,
Michael Livermore 36:49
super interesting. Again, just there’s lots of different ways we could go with this. I’ll just note, there was another podcast guest guest we had on I was Guerrero recently, who talks about Latok cracy, which is not that far off of the citizen jury idea. Yeah, one critique that folks sometimes raised against autocracy that I would be curious if it resonates with you. And there’s a lot on the table. So I don’t want to get too sidetracked and autocracy thing. But one concern I think folks have is that there’s a participatory element of what we mean by democracy. So it’s not enough to have a body that is, in some sense, a representative sample of the population making decisions is we actually want the regular person walking down the street to have some element of power in a participatory way. So So I’m curious if that critique resonates with you? And then if so, how does that play into this problem of you know, we still, there’s this, there’s this hard thing where a lot of the decisions are highly technical. You know, Oscar Wilde famously said, The problem with socialism is that it takes up too many evenings, right? We don’t want, you know, everyone to have to become experts in the Clean Air Act and did everything else. But we want them to exercise power. So. So any case, yeah, just that question about dissipation and autocracy. And then how does that then, you know, complicate this issue of, of, of engaging regular folks?
Sabeel Rahman 38:13
Yeah, I mean, I’m also sort of fascinated by by the autocracy are sortition types of ideas that are kicking around, I think one response to that is, is, ultimately I think of democracy is a deeply associational and collective enterprise. Not a highly individualistic one, right? And so, you know, it’s what if your model of you know, humans is, they’re sort of like out there as, as a collection of isolated individuals, and we scoop up a couple of them, and then we like, get a result, right? You know, sure. But if you actually think about like, flesh and blood humans and, and the kinds of the ways we the ways we formulate our values, and formulate our ideas and make decisions in the world, it’s, it’s almost always socially embedded, right? We have some community, some, some familial or communal or collective, formal or informal place where, where we, we develop our values, we sharpen them, we learn we, and where we develop our learning, and we do it as a collective enterprise. And I may not be, you know, the deep expert in, you know, X, Y, or Z. But as a, as a group, we might have enough sort of collective resources and expertise to, you know, address the issue in ways that are there enough for what my particular needs might be. It’s how unions function, it’s how tenant advocacy groups function, for example. So the book doesn’t talk as much about the associational side of things. But there’s a way in which it is sort of the the missing complement to the parts that are in the book is actually a parallel story about why you need civil society Association and organization to to create the muscle, the capacity, and and just the space for for people to be able to exercise collective self government.
Michael Livermore 40:10
Yeah, great. And maybe we could talk about your time at demos in a second because you know, you’re a part of this effort to create these types of institutions. But I wanted to just a thought struck me and I was curious. Just along these lines, I’d be curious your take on it. So we were just talking about the Clean Air Act. So national ambient air quality standards are set by EPA, under the Clean Air Act, according to a, you know, a kind of pretty specific statutory standard protection of public health with adequate margin of safety. There’s a lot of technical details that go into figuring out the parts per million, right. So that’s one kind of decision that’s embedded in the and the Clean Air Act, centerpiece of the Clean Air Act, these knacks, but then you set the standards. And then there’s decisions that are delegated to the states, right, so states come up with state implemented, you all know all this, but just to just to refresh for our listeners, the state implementation plans are developed by the states. And that’s how states determine how they’re going to comply with these standards. And there’s lots of different tools they can use, there’s going to be lots of different distribution of the cost of compliance. And there’s going to be distribution about the benefits as well, in terms of the timeline, who gets their clean air first, and that kind of thing. So in a way, you could almost say, there’s something like the vision that you’re offering here, which is to place, you know, a technical decision within a technical body. And of course, we could talk about the imperfect imperfections of that. But then there’s this allocation of a different set of decisions. And I don’t know if that, you know, what the thinking was in Congress at the time. You know, there was a variety of different reasons that Congress possibly decided that the states were the appropriate parties for that. But one kind of argument would be, well, it’s more democratic, we’re going to place these kinds of distributional and compliance decisions at the state level, where there’s going to be a robust democratic conversation to develop the state implementation plans. And so the so I guess the two questions are one. Do you think that that is attractive as a as a way of thinking about engaging people in regulatory decision making is using the states? And then if we don’t like the states, you know, and we were going to revise the Clean Air Act along lines that you think would, you know, would comport with your vision and put aside the setting of the standards just focus on that compliance element of it? What would be better than the states, like then state governments which are set up their political bodies, their, you know, elections and democratic accountability and all of that?
Sabeel Rahman 42:38
Yeah, yeah. That’s, that’s great. Yeah, I’ve been fascinated by the sort of what the localism question, right? Like, what is the right when we think about decentralization as part as one, one flavor or one component of democracy? How do we think about, you know, cities, states, counties, etc. So I mean, there’s some kinds of decisions that I think makes a lot of sense to really flow through a geographically routed decision making apparatus, where I think the challenge comes with the states is that it’s not, it’s not obvious to me that either states or in some cases, nor cities are actually sort of the right. boundaries of the relevant sort of geographic community of interest. Right. So if you think about, like, if you look at those maps of media markets, for example, right, were sort of like maps out like, the scope of a particular media market. Like what I always find those maps interesting, because it’s, it’s a, it’s one sociological slice into, like, what’s the sort of what is the greater New York area? It’s not literally New York City, it’s also but it’s also not New York State, but there is like a, an area that, like has some, enough of a shared lived experience that there’s a real there there. Right. So so all of it, just to say, I think, sort of place based collective decision making is really important and interesting. It may or may not line up with our formal boundaries of states or cities or counties. And in fact, like, one of the ways in which political authority has often been gerrymandered is by sort of fiddling around with the boundaries of the local. Right. You know, there’s a den Farben has written some some great historical work, for example, about how southern redemption after the Civil War, in part was operationalized through a rewriting of local jurisdictional boundaries to to as a way to reassert sort of the planter classes control over free persons and so so I think this decentralization questions is really important and interesting, but we should sort of be open to and thoughtful about what is the right way to constitute the local region, where decisions are made,
Michael Livermore 45:01
right? I mean, we tend to default to the States, but they, you know, there are lots of lots of problems with with states as political bodies.
Sabeel Rahman 45:08
Oh, totally. And and, you know, I mean, not not to, you know, not to get into constitutional text interpretation, rabbit holes, but like, I was kind of wondering as a tongue in cheek thought experiment, well, you know, the concision talks about states and the importance of states and so forth. But if we understood state boundaries functionally rather than formally, you know, what if by state, we just simply mean, a collection of people in a in a geographic community of interest? That is, you know, what, what was the population of a given state at the time of the founding, it was nowhere near the size of even a current House District, right. So. So like, you know, it’s not obvious that this that a, our fixation on the 50 states really is supposed to be in the 50 states
Michael Livermore 45:52
is an interesting originalist take on the right the the idea of estate. So maybe we could talk a little bit about your your time in the Biden administration, right? Because you’re not just a theorist, you’re you’ve put this stuff into into practice. And so you know, so now that we’ve got a lot of ideas on the table about, you know, integrating democratic practice into regulatory decision making, you know, problems of done as a way of addressing, you know, some of the Democratic failures or democratic critiques of agency decision making, and, you know, the role of domination, both political and economic domination, you know, what kinds of, you know, realistic opportunities for the kinds of democratic participation, did you kind of specifically see, to the extent that you’re, you know, there’s, there’s things that you can talk about? So, you know, what were the what were the promises that you saw, you know, once you got your hands on the actual, you know, mechanisms of power?
Sabeel Rahman 46:52
Yeah, yeah, no, I appreciate the question a lot. So, for folks, for folks tuning in, I served for two years, in the Office of Information, regulatory affairs, which is sort of the regulatory hub office for the White House, versus senior counselor. And then, as the Acting Administrator, before, I said, it confirmed administrator who, who has fantastic, and also a law professor himself took over. It was incredible experience and, and a really fascinating time to be there. You know, of course, when you’re when you’re serving your, like, your, your, the role morality of the position is to, you know, serve the President’s priorities and to serve, you know, the statutory directives, and so on. So that said, I mean, some of the things I was most excited about to see, as real opportunities and real areas of interest. Were along some of these lines. So for example, going, thinking about the problems of economic domination, the President issued fairly early on in the administration, and executive order on competition. And on day one of the administration issued an executive order on equity. And when you stack those two together, in a sense, what what what those two did were to point to two very different kinds of structural systemic inequity in our, in our political economy, you know, one that was in terms of marginalized exploited excluded communities, one which was in terms of the concentration of economic control and power among dominant firms in particular markets, you know, airfare transit, broadband, etc. And, and those executive orders had directives for the agencies to figure out, you know, a more holistic, big picture way of tackling those, those those challenges. That meant a lot of individual regulations that then came forth, the competition, EO listed, you know, some 60 or 70 individual regs that you’ve started making their way through the ohio review process. And we worked with agencies to help help them sort of develop and sharpen those regs as they came up. The equity EO also then led to a bunch of regulatory action. So So one big bucket was I think it was really interesting and exciting to see agencies thinking about their existing authorities and directives from Congress, with an eye towards these broader systemic inequities. It was also I should also say that, in a lot of cases, that was a truer return to form to the original statutes that the agencies were operating under. And competition. A lot of those regulations are are really revivals of old Progressive Era statutes that have been on the books for a long time, but have not been sort of front and center the way they are now. So that’s like one big bucket of like, on the substance of like tackling concentrations of power. I thought it was really interesting. The second big bucket was on sort of like More than machinery of government. So this goes to some of our conversation about you How should agencies be structured? And how should they run? You know, if you look at things like the customer experience executive order, the in the equity executive order there were there particular provisions around improving participation in the regulatory process. So there are there are a number of the Open Government, the National Open Government plan, I should mention, which comes out every two years, the Biden administration’s first one came out in December 22, you know, took a lot of sort of old good governance, ideas of like transparency, and so forth, but really focused much more on participation, equity, you know, kind of robust onramps, for communities to have their voices heard, you sort of you when you look at all of these things, I thought you get you get a pic, you get an overall picture of some really interesting experimentation. You know, the agencies that that administer major social programs, for example, benefits programs are under the equity EO and the customer experience co one of the big initiatives that is now underway is an attempt to rethink the forms and enrollment processes with an eye towards making sure as many people who are eligible can actually get on access to government benefits. So a sort of a user does oriented design approach to those services, which among other things, involves, like, a lot of participatory dialogue, you know, workshopping and focus grouping and sort of CO designing with representatives from the communities who are trying to access a disability benefits, you know, to design a better system around it. It’s really interesting approach, right, kind of participatory, you know, in some ways, but it’s like a new muscle that that, that has been created. So all of that I thought was super exciting. I think the last thing I’ll say about this sort of at a high level is it also, it also gave me a really deep appreciation for the importance and skill of the of the civil service, and the ways in which like, if we’re serious about tackling structural inequality, and if we’re serious about democratic participation, you really need to resource that vision. So it takes person power and ad and its own form of expertise to know how to design a good participatory community engagement, right? Not every agency has, you know, enough slots, and people who can be sort of on the ground organizers to, to do that. Well. But that’s the thing we could do. If we really wanted to write we think we can, agencies have done great with on a shoestring. But if we really resource this vision from the Congress, then I think you can actually see even more stuff happen.
Michael Livermore 52:55
He is really interesting. And the role of the civil service, I think, is sometimes you know, as outsiders are, we under appreciate just the scale and the right the time and expertise that the civil servants have. So, you know, a lot of times I think there’s a contrast just on this. It’s offered between civil servants and democracy, we want to take power away from civil servants and deliver it to you know, in some ways, that’s, that’s the contrast that would often be given is the, in the way that you describe the managerial technocratic view is one where the civil servants are the central decision makers, and then the democratic one is where the people are the real decision makers, so. So do you buy into that contrast? If not, why would you like to complicate it in your in your way of thinking about these these issues?
Sabeel Rahman 53:46
Yeah, it’s such a good question, Mike, because because I do think it’s something that gets overlooked. And then that can create blind spots that are that day dangerous. So I actually really believe that a well resourced, protected civil service is essential to democratic governance. And by that what I mean is, you know, you need a professional civil servants that, whose mission is to serve the public, but doesn’t turn over every time the White House changes hands, and whose loyalty is to the public writ large and not to the particular president that appointed them. That’s really important. And I think it’s telling that, you know, in the same way that the non delegation doctrine sort of masquerades as a democratic intervention but really operates to aggregate more power to the few. I think you actually see some really troubling or really troubling new consensus on the right with around the idea of blowing up the civil service. You know, the trumpets are all about this. For people who followed it towards the end of his administration, Trump started a project on what’s called scheduled F which which would have reclassified many, many, many civil servants to be directly fireable by the President. If you look at some of the more wiedzy administrative law opinions that Roberts has authored of late, it seems to offer some constitutional foundations for the notion that the President ought to be able to hire and fire at will, civil servants, you know, even those who are sort of deeper down in the ranks, and not just sort of the, the principal officers, right. And I think that’s super dangerous, because what that what that enables is, this sort of like, Banana Republic style like loyalist partisan loyalist approach to governance, it’s the spoil system that actually the independent civil service is supposed to get us away from. So that’s like the negative thing we want to prevent, in terms of an affirmative vision of of democratic regulation, Democratic administration, if you, if you think about all the stuff we just talked about, you know, the expertise we need around setting the parts per million level, but also the the capacity and expertise we need around pulling together the citizens assembly or the right kinds of consultative and participatory spaces that, that empower meaningfully the people who really like need a seat at the table, that takes staff, right, it takes staff to do that. And you need people who are doing that day in and day out, and who are really like waking up every day thinking about how do I do this better? And to my mind, that is what a civil service at its highest form is really about?
Michael Livermore 56:48
Yeah, no, it’s really interesting. It’s it’s a really interesting tension, you’re absolutely right, that this has become, you know, a real point of attack for, for folks who are skeptical of the administrative state. So so maybe we could just spend the last few minutes talking about this, this question of association, alright, because I mean, in a way, this, this helps square the circle to a certain extent that we have, you know, very complex governance apparatus that, you know, is, is that we just cannot expect regular folks walking around to, to understand even a small part of it. I mean, I don’t understand any part of it. It’s like my whole career. Right. And so, so that’s, we that’s not going to work. On the other hand, you know, we want to have robust, something that we can call democratic. And I think that’s an interesting question. And you mentioned the associate sociation also possibility, so. So maybe just a few questions about this. So one, you know, version of this could be something like corporatist where, you know, EPA, when it doesn’t rulemaking post together environmental groups and business associations, and you know, that few other kinds of NGOs, interest group trade organizations, and like, that could even have real power in the regulatory process. There’s negotiated regulation, and that whole kind of world. One criticism of this, of course, is that the association’s don’t have democratic pedigree that the environmentalists are just funded by wealthy foundations, and that the consumer groups don’t really represent consumer groups, they, you know, they just kind of have an ideological axe to grind. One might not like that version of, you know, that critique of consumer groups, but then, you know, you can make the same critique of industry trade associations, that they’re just like, kind of ideological, and they don’t really, you know, the, the Farm Bureau doesn’t really represent the interests of many farmers. So yeah, so how do you how do you manage this? You know, what would the associational vision look like? Are there as is a governmental process? Are we kind of counting on quote, unquote, civil society to do this? Well, how do you how do you think that soccer could potentially work?
Sabeel Rahman 58:45
Yeah, these are, these are great questions and tensions. I mean, you know, on some level, like democracy is it’s a fractal challenge, right? It’s not we don’t solve it in one arena, we have to sort of think about democracy in in multiple nested spaces. And so I think, you know, we were talking about the design of the regulatory process, we want that to be democratic, but then we also, you know, have real questions about, you know, what the, the interest group ecology looks like. So, I think those are fair, fair critiques. I mean, I think as as a general matter, like, what we ought to want is, I think, a, a, a robust, thick civil society, ecology, where communities are able to organize and through that organization able to then you know, have have the ability to to participate and shape the political process. There are going to be some organizations that are more rooted, you know, in community than others. There’s a problem of astroturf groups and all of that. So those are just like, endemic challenges, but I think as like, as a north as a as a matter of like what our North Star is, I think we want for democracy to thrive. I think we want lots of grassroots independent membership based organizations that can empower those communities. Now, in a non ideal world, we bootstrap our way to that, you know, we have some membership organizations, labor and, and sort of other sort of grassroots membership groups of which there are many. And lots of great organizing work has been has been done over the last, you know, decade plus, to, to create the kind of ecology we have today. You know, for example, just take one example out of many, I don’t think we get the sort of policy attention on the child care and elder care crisis, that is one of the big sort of domestic policy debates now was not front of mind even three years ago in in domestic policy. And I think we owe that a lot to the grassroots organizing of care workers and, you know, predominantly women of color care workers through formations like the the National Domestic Workers, Alliance, and many, many others that put that issue on the table, like, to my mind, that’s democracy, you have a membership based grassroots civil society organization that in coalition with others, was able to sort of build enough independent political power, that it could set the agenda for the Democratic Party in a really important way, and thereby, you know, help address the issues of a huge swath of our of our country that you know, what folks are struggling with? So I would just say you need organization, you need civil society. Organizations, I think it is really hard from the regulator standpoint to sort of figure out well, who do I need to have at the table for the table to be balanced and inclusive? Because like, what if I miss somebody? What if I went if I’m listening to a group, I think is a real membership group that actually has an astroturf group like, those are really tough questions. And that’s why I think that’s part of the reason why I come back to this point about sort of staffing, resourcing and and sort of, obviously, expertise in democracy, so to speak, right, like, when I think about some of the amazing organizers who I’ve met over the last few years of my career, like they are very much experts, right? They are very much experts in their communities, and how to organize their communities how to how to effectively sort of coalesce disparate voices into a shared vision. So you need that expertise, actually, to make a consultative, inclusive, participatory process, actually genuine and meaningful in some form.
Michael Livermore 1:02:35
Yeah, no, it’s really interesting. Okay, I’m gonna just have to ask one more question, and then I’ll let you go. I appreciate your indulgence. So because so I think you have, in some ways, a really interesting vision of democracy that is maybe in contrast to some pretty common ways of thinking about this stuff. So can you talk about this a little bit in the book, you’re critical of the deliberative democracy? View, right, that sees, you know, that we’re going to all get together and be reasonable. And the cofund book agenda, genteel consensus amongst participants will emerge, right? And, okay, so So you’re, you’re, you’re skeptical of that. There’s another view, which is the aggregate of view, right, which is that people vote we aggregate people’s preferences, right. So you have this, you know, it’s really an older fashioned vision, in many ways, this associational view that we’re part of groups, and, and so on. But, you know, ultimately, if you actually say in the book, you know, that your vision is you described as a route towards the gradual emergence of considered judgments and common understandings through debate and experiment. And to be honest, that sounds a little bit like a genteel consensus. Yeah. Yeah, there is a, you know, even what you were kind of just describing it, it sounds very nice. But, you know, power is part of the story, right? Like, sometimes it’s just about a majority, or whoever can capture the organs of power having their say, and people are going to very much disagree with, with whatever outcome, you’re going to write that so. So in your case, you know, especially when we’re structuring, like a Democrat, like a process, right, who do we bring to the table? Is it balanced, there’s always going to be this element of, well, who you bring to the table is going to really affect the outcome. And there’s a lot of power in that decision about who you bring to the table. And then who oversees that, and how is that democratic? And so, you know, there’s a little bit of a recursive problem that I feel like is always kind of embedded in these in these in these institutional design questions.
Sabeel Rahman 1:04:33
Yeah, totally. No, and I think there’s a very real tension, but I completely agree with you that like, you have to contend you have to contend with power and it’s where we started the discussion in a way that you know, for if you frame our problem as the problem of domination, then of course, you have to think about power. So I think a couple of things about this one is that I don’t think we should expect any one party to spit Tory moment or or episode or engagement to, like produce the answer capital A, right? Because there isn’t a an answer to a lot of these contested like value judgment questions, we disagree about stuff. And, and there are disparities of power in any sort of space and, and process so so in some ways the best we can do is to try to approximate as, as best as we can is sort of fair and equal process, and then have that sort of play out over time. Right? We might. So we might reach a judgment, you have an approach today, and we might change our view about that tomorrow. And that’s fine. You know, like, I think that’s what it means to live in a democracy. But there are certain forms of, of power that that then that become, that becomes so concentrated and extreme that it’s, it’s a threat to the democratic ideal itself. So like, it’s okay to disagree, and to keep contesting for, you know, a different way of doing things. That’s, that’s what we sign up for. But what’s not okay, you know, I don’t think is to, you know, use one’s use one’s moment of power to permanently disenfranchise Right. Or other constituencies like that’s, that’s power too. But that’s that sort of a rock our politics that is that is fundamentally disloyal to the idea of democracy. And so, you know, when, so you could say, okay, coalition wins an election and then decides to engage in widespread voter suppression or gerrymandering, is that democratic? Well, in a really kind of dumb literalist sense. Yeah. But if I didn’t have like, real deeper sense, of course not. Because that, like that is, that’s domination. That’s not democracy, that’s using a moment of political control to permanently subjugate and and insulate from, from their views, you know, insulate yourself from the views of this of another constituency. Right. And so, so I think, you know, that’s, you could both things can be true at the same time, right, that we have to contend with power. And power is irreducible in our disagreement is irreducible. And there are certain types of power. That and disagreement that go way past way past that into something that is actually hostile to the Democratic project.
Michael Livermore 1:07:27
Yeah. All right. Well, you know, we could probably keep talking about this for a long time. There’s so many interesting issues and to discuss and your interventions on all of these events. super interesting. And thanks for your great work at Ira great work at demos. It’s been a really wonderful conversation. I appreciate you joining me.
Thanks so much, Mike. This is a blast.
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