Government By Waiver Strikes Again

I’ve seen some headlines recently that Obama will give waivers to ten states that aren’t meeting education standards. No Child Left Behind, (in)famously passed by George W. Bush, said that students had to be “proficient in math and reading” by 2014 or the school systems would face penalties. Now that the deadline is actually in sight, educators say that goal is “unrealistic” and the penalties are “unfair,” and the Obama administration is talking about granting waivers “if they adopt certain education reforms in exchange for greater flexibility in deciding how to measure school performance.”

Ah, here we go again. Remember the 1,500 temporary Obamacare waivers granted by Health and Human Services? (After a lot of attention, they said they were stopping, but then they didn’t). When this health care waiver stuff was happening, I found a very long but very fantastic article by Richard Epstein about the ways that “government by waiver” is a corrupt and expensive threat to democracy.

The most direct problem with granting waivers is that it’s an arbitrary process that invites lobbying and corruption, and Epstein provides a frustrating litany of theoretical reasoning and historical examples. We saw claims that Democratic unions were getting favored in the health care waivers. With the education waivers, it looks like they’re deciding that ten states might get them. But by what criteria? From Epstein’s article:

What about employers who do not have the resources to navigate the waiver process? What about those lacking the political connections to make their concerns heard in Washington? And what happens when the one-year waivers run out? Will they be renewed? Under what conditions? And what rights will insurers have to waive then in order to avoid going out of business?

That last sentence reveals a second, related problem. The arbitrary process of waiver-granting often requires that you surrender certain rights to get the waiver. Epstein talks about how this has happened with the HHS, the FDA, the FCC, and more. Today we are seeing that with the education waivers too: “in exchange for greater flexibility in deciding how to measure school performance.”

First, the government gives you unreasonable requirements. Then you have to convince the government that these requirements are unreasonable. Then they might grant you an exemption from those unreasonable requirements, but only if you have the right connections and if you are willing to give up certain rights. Epstein explains how this bait-and-switch undermines our justice system:

The fate of our rights and liberties is left to the wisdom and discretion of individuals; we are therefore governed by men, not by laws. It was this exact circumstance that our system of government was designed to avoid: As James Madison noted in Federalist No. 10, “enlightened statesmen will not always be at the helm.”

But there are more practical consequences as well. When the government is trying to pass a bill, they focus on all the nice things it is supposed to accomplish. They also focus on the nice budget number they got from the non-partisan Congressional Budget Office, who tries to calculate how much things will cost and how people will respond based on the things done by the bill. So what happens when some of these things turn out to be unreasonable and the government starts granting lots of waivers? Now those faulty assumptions are being thrown out the window and the bill will no longer accomplish what it is going to do. A bill that was allegedly going to reduce the deficit may now increase it. A bill that was supposed to make children proficient will not succeed in doing so. With health care and now education, we see that Democrats and Republicans are equally guilty of expanding government in these shady ways. Why should we believe the nice things our politicians say a bill is going to accomplish if it builds those accomplishments on unreasonable assumptions that will later be waived away?

We all disagree about the things that our federal government should do, but we all should agree that granting lots of waivers for those things is a horrible way to govern. My bias sees that as evidence that maybe the government shouldn’t be trying to do these things in the first place…