The Deep[ly Necessary] State (with K. Sabeel Rahman)

Sabeel Rahman [clip]: Dismantling government isn’t actually, to my mind, about liberation. Dismantling government is about removing those protections in a way that makes us even more vulnerable to other centers of power that are super problematic.

Felicia Wong: That’s Sabeel Rahman, today’s guest, and he’s going to tell us what working in government is really like.

Michael Tomasky: And why the right wing is trying to do away with the administrative state.

Felicia: Oh, Michael, you make that sound so cheerful, but—

Michael: I’m happy that it’s not succeeding! 

Felicia: Okay, good. Good, good, good. Because what we really should be doing, and maybe be cheerful about, is developing a strategy to fight back against all of this.

Michael: He’s going to tell us all that. Plus, what parts of the government the left wants to shrink.

Felicia: I’m Felicia Wong, President and CEO of the Roosevelt Institute.

Michael: And I’m Michael Tomasky, editor of The New Republic.

Felicia: And this is How to Save a Country, our show about the ideas and the people behind a progressive vision for America.

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Felicia: So Michael, last week we promised to tell our listeners what OIRA is. That’s the acronym for the Office of Information and Regulatory Affairs.

Michael: It’s a key agency and as we’ll learn quite a small one by federal government standards. It’s little known but really important.

Felicia: There was never a West Wing episode about OIRA, as far as I remember.

Michael: If any of the striking TV writers are looking for ideas, they could gin that up into a great show—after they win, of course.

Felicia: Yeah. OK. Let’s, first, make them win and then let’s see if any of them are going to do a TV show about OIRA. But anyway, regardless, I’m really excited to talk to Sabeel about it.

Michael: Yeah. Sabeel Rahman just left OIRA, that’s the Office of Information and Regulatory Affairs. He started there as a senior counselor and then became associate administrator, but he really ran the place. He’s a vital part of the progressive movement as someone whose expertise has made him indispensable across fields. He’s a legal scholar who focuses on administrative law and constitutional law. He also has served as president of the progressive think tank Demos, which is a really important piece of the infrastructure.

Felicia: Not only is he a lawyer, but he’s also a political scientist. A lot of his work focuses on democracy. And Michael, as we talk to Sabeel, I think it’s important for us to keep in mind that civil servants like Sabeel and the ones that he’s worked with these past few years have really taken the brunt of so much criticism from the right. When Donald Trump talks about “the swamp,” he’s really disparaging agencies like OIRA. In this conversation, we’re definitely going to get into why the right wing is so focused on dismantling the “administrative state” and what progressives need to do to fight against that, and frankly, why it is so critical. Sabeel, welcome to How to Save a Country.

Sabeel Rahman: Thanks so much for having me. 

Felicia: Over the last few years you were a senior counselor and really, for a while, the head of something called the Office of Information and Regulatory Affairs, which people in the know call OIRA. It’s this little agency that’s housed in the Office of Management and Budget. Tell us about OIRA and tell us about why OIRA is exciting.

Sabeel: Yeah, that’s great, love this question. OIRA is really the regulatory hub for the executive branch. So we talk a lot about the policies that the president makes. What that means in practice is there are tons of people in the agencies on environment, on immigration, on transportation, who are the experts on these different policy areas. When the president is making a policy, those folks are kicking into high gear. They’re drafting up what the rules should be. 

Felicia: Just to clarify, when the president says something should happen on student debt or on the kinds of cars the government should purchase or whatever, that isn’t the end of the process? 

Sabeel: Yeah, that’s just the start. You’ve got a big executive order or Congress says EPA set the standard for regulating pollutants in the air. That’s just the start. Then you’ve got all these folks in the agencies who are experts, who are economists, they’re lawyers, they’re scientists, they are the ones who then get into the hard work to figure out what those policies should look like, and hearing from folks in the public. All of that work then has to go through a final review by the Office of Information Regulatory Affairs. And so we would review these regulations, look at the legal basis, the policy analysis, but also , Does this make sense? Does the left hand know what the right hand is doing? Other agencies, do they have expertise that needs to be brought in? Are there different policy views within the executive branch that might need to be talked through so that everyone’s on the same page? That all happens in the OIRA review process. It’s the last stop on the policy making train. If the first step is the executive order or the legislation, the last stop is OIRA review.

Michael: How many people work for you? Worked for you?

Sabeel: The OIRA team is a small but mighty about 45 really tremendous career staff, and OMB in general. I think we and a lot of folks who’ve been in the administration will say that the civil service is a real crown jewel of our democracy. We do not get anywhere close to a functioning democracy without their incredible talent and expertise and dedication.

Michael: Yeah, go ahead and talk about that. Because all people here in the broader media is “bureaucratic drones,” “drain the swamp,” so rebut that. Make the nonswamp argument to people.

Sabeel: It’s so interesting because on the one hand, we live in a democracy so of course we want our government to be responsive and accountable to the public. But I would actually argue that the way we do that is through the regulatory process, through having policy makers in government who are apolitical neutral civil servants whose whole mission is to serve the public, not to serve any one party, and who do that by building years and years of expertise. They know deeply how the wetlands work and the ecology that underlies all our environmental policy or the science behind what batteries we need for electric vehicles. There’s so many things that are just really complicated. You want experts, but it’s not an expertise that’s over there. These are folks who are from our community. These are Americans who have come into the civil service from a range of backgrounds and a range of experiences and geographies. FDR says government isn’t some foreign outside force, “government is us.” And you really feel that with the civil service. This is us collectively shaping and deciding our future in a way that is based on evidence, but also based on input from the public. There’s all sorts of ways that these policies are trying to hear from communities on the ground. Now we should get into it because there’s all kinds of ways where this can be better. The administration and the team have been doing some good work on ways to make that better. But at the end of the day, we are going to need a government to do any of the things that we want to do for our country.

Michael: Yeah, we don’t dissent from that, that’s for sure. And we’ll get into that. Since you mentioned things that OIRA has done, talk about some of the changes that happened under your leadership and some of the streamlining and so forth that I know you’re proud of.

Sabeel: Yeah. So there are a number of things that are really exciting to be a part of. Full credit to the team, I think these are all collective efforts. One big one is: In a couple weeks ago, the administration announced a number of changes to OIRA’s approach to regulatory analysis. That’s a mouthful. But basically, when agencies are deciding what a policy should be, one of the requirements is that agencies have to do some analysis and look at the evidence to justify their approach, to explain why the environmental regulations should say X instead of Y. That’s the in-the-weeds stuff that OIRA will look at when we’re reviewing regulations. A lot of the guidelines for what that analysis should look like are pretty outdated. There’s a document OMB Circular A-4 which is super wonky, but is at this point 20 years old. This hasn’t been updated since the Bush II administration. And if nothing else, science in the world has moved on quite a bit in the last 20 years, and the needs of the public have moved on quite a bit. So one of the big things that the administration just announced is a rewrite to that guideline. And that covers all sorts of things like how agencies should analyze inequality and how their policies might reduce inequality. How should they factor in the impact on future generations of say, climate change? Really important stuff. The other big bucket that I’ll name is on equity work. It was really important to this administration that the very first executive order in the whole flurry of day one executive orders that the president signed was executive order on advancing equity.  

Felicia: When you say equity, do you mean race equity, gender equity communities that have been left out of American prosperity? Is that what that means for that first executive order?

Sabeel: Yeah. The executive order framed it really in terms of underserved and historically marginalized and vulnerable communities. It includes on the basis of race or gender, geography, LGBTQ status, disability. There are a whole bunch of ways, if you think about it, where different communities have not had the responsive, engaged government that they need. That’s true of rural communities that have been disinvested in for a long time. That’s true of communities of color. It’s true of the disability community whose needs are often not reflected in how our buildings are designed or how airplanes are designed. So there’s a bunch of ways that this manifests. And because it’s so cross-cutting, one of the things that we were really excited and energized to dig into is to think, OK, since OIRA and OMB sees all these different policies from across the executive branch, on immigration, on climate, on transportation, on economic recovery, what have you, how do we bring equity into all of that work? And so that was, I’d say, the other big bucket of things that we worked on. And that work is continuing, right.

Felicia: Yeah. One could imagine that one does not make a more equitable America wholesale in just a year or two. That work is definitely ongoing. I get that. I want to ask you about one of your other priorities. You’ve talked about reducing what’s called administrative burden. And you talked about that actually as a race equity and a gender equity priority. The journalist Annie Lowrey has called this something like a time tax. So what is this and why is an important part of OIRA’s mandate?

Sabeel: I love this topic. So, if you think about the social safety net and all the kinds of services that government provides. On paper, that’s great, but in practice it’s really hard for some of the people who need those benefits and support the most to get access to them. If you’re trying to file a disability claim, for example, the number of documents you need to provide—doctor’s notes and proof of employment, all of this stuff—if you think about it from just a real world context, that means days you have to take off of work to get those documents, you have to trek out to the doctor to get that doctor’s note. You might not be able to afford to take that time off. You have to then get to the government office to file that paperwork. This idea of the time taxes is really a huge barrier to people who are already, by law, entitled to those benefits and support to getting that actual support. Some of those paperwork requirements are built into the law. We can’t do much about that. That’s for Congress to fix. But some of them are regulatory, meaning they’re within the discretion of the agency. That’s where we really put a focus. We said that, Look, we actually have a requirement by law that agencies have to reduce as much as possible the paperwork burden on Americans.” Historically that’s been thought of in terms of business and that’s important, but what we thought is, Well, with this focus on equity, it’s really important to look at the paperwork burdens on the most vulnerable and underserved communities. How do we help them streamline their access to those benefits and supports? That was the project. And there’s actually a whole other executive order on this: the Customer Experience Executive Order, which can also really supercharge a lot of this work. OMB is a big part of that. I think it’s all about equity, but also just good governance, having government actually deliver the things that people expect of government in a smooth and efficient way.

Michael: Let’s talk a little bit more broadly about that. I want to get into a tax on government, on the administrative state from the right and defenses from our side. We’re going to play a little clip here from Congressman Mike Johnson. He’s a Republican from Louisiana. 

Representative Mike Johnson [clip]: But we have to acknowledge that the federal government is way too big and it does way too many things and very little of what it does, does it do well. The administrative state has grown exponentially over the recent decades, and it has, as stated earlier, consolidated governmental powers in the executive branch. And what that’s done then is it’s usurped the proper and constitutional role of Congress, our Article One authority over lawmaking and policymaking. And that consolidation of power has become really very dangerous. It’s created an administrative state that is out of control.

Michael: How do you rebut that? Particularly the part about the executive branch usurping congressional authority?

Sabeel: So there’s a lot going on there. The lawyer in me has all sorts of things to say about Article One and Article Two, but maybe just to start from first principles. It’s a big country with a lot of needs and a lot of challenges and a lot of existential crises that we’re facing: inequality, climate, the pandemic, which we just got out of but is still very much with us. Those needs demand response. When people are like, Oh, government is too big. It’s like, Well, do we want to solve these public problems or not? We have a big government because we have a big, complex society, and a lot of people need government to be responsive. That’s just a first principle. The question then becomes, if we’re actually committed to serving the various needs of the public and creating an egalitarian, inclusive democracy where everybody has the freedom and opportunity to thrive, then we need to resource and support that government to do that. A lot of the criticisms about government ineffectualness and so forth… I mean, there are very real problems, for sure, even from a racial justice and economic justice angle, there are a lot of things about government that don’t meet that North Star. But I would argue that a lot of the failures of government are failures of design and not intention. We’ve built a government to be ineffectual at some things, we haven’t resourced it enough, or we’ve built in other places, we’ve built a government that is counterproductive where we’ve created too much unchecked, unbridled authority. From a racial justice angle, if you think about the rise of mass incarceration, that’s government too. And that’s something that we need to tackle. I think the first principle is if we’re committed to this collective project of government serving our public problems, then we need to build it accordingly. On the Congress Article One, Article Two stuff, this may be a longer conversation about where the courts are going and where administrative law is going, but I think two things can be true at the same time. One, Congress is the most important branch of our government. I believe that. Article One sets the powers of Congress, and it’s the first article in the Constitution. It’s Article One for a reason, but part of what that means is that Congress said we should have clean air and it passes a clean air act. And it says the way we get clean air is we get experts in the Environmental Protection Agency to help figure out how many parts per million of carbon dioxide is okay. And how much is not okay. And that’s Congress. 

Felicia: Do you mean you think individual members of Congress should not be expected to have that level of expertise? That’s what you’re saying.

Sabeel: Yeah. I don’t think any one of us as individuals have that level of expertise. We need people who have dedicated their lives to understanding climate science to help inform what we should do. But to my mind, that’s not the executive branch usurping Congress’s role. That’s the executive branch delivering on a mandate that Congress has provided. If Congress wants to do something different, it can totally do that whenever it wants, and Congress responds to us because we elect the Congress. There’s a little bit of sleight of hand that happens sometimes when conservatives are trying to paint a target on the back of supposedly overreaching government, when that’s actually just government doing what government said it’s going to try to do what we’ve asked it to do on behalf of the public. 

Felicia: It’s not that surprising for conservatives to call for smaller government. You and I both know this, Sabeel, Michael knows this, that has been part of their ideology for multiple generations. But I don’t know. It seems to me like we’re hearing more extreme versions of that message recently. It’s not just that we need a smaller government or an efficient government. It’s almost let’s abolish government. Steve Bannon, remember him? Steve Bannon famously called for deconstructing the administrative state early in the Trump administration. So do you think there’s something new here in this rhetoric, or is this just neoliberalism reborn for a more contentious era?

Sabeel: Yeah, it’s a little bit of both. Our new dangers always have their seeds in the old, but I do think there’s something different and maybe especially dangerous about the moment we’re in now. There’s absolutely a good faith understandable set of debates that we have been having forever and we’ll continue to have about the appropriate reach and scope of government from liberal versus libertarian standpoints. And that’s fine. What I think is not fine is the legal guerrilla warfare that I think we’re starting to see where we have a duly elected president and a duly elected Congress that has tasked the president with doing things in legislation. Then you have grenades lobbed at those policies from the courts from critics who are trying to undermine those policies, when there’s a right way to do that. If you don’t like it, go and pass a different law and change the law through Congress. I think it’s a little backward to try to undercut the policies after the fact. To your point about we don’t want to abolish government, we want government to solve problems. Just speaking for myself, there are parts of government that I think we should dismantle. I mentioned before, the carceral state and mass incarceration; that’s government policy that I think is really bad for communities of color, for our economy, for the idea of democracy. What’s interesting to me about these new Bannonite attack on the administrative state is I don’t think it’s just libertarianism of the familiar kind. This is really a white supremacist ideology wearing a different set of clothes. It’s about dismantling the parts of government that are trying to create a more inclusive, egalitarian society and leaving unchecked and unshackled the parts of government that terrorize communities of color. The Bannonites are not at all troubled by ICE and CBP and the way the Trump administration treated migrants at the border. They have very little to say about mass incarceration. Some good faith libertarians might have something to say about that, but that duality is really worth bearing in mind because when you hear rhetoric about “government is too big and we need to dismantle it,” OK, but if you interrogate which parts of government they’re most upset about, it’s not actually the parts of government that I would say are really posing a problem for communities. It’s the parts of government that are trying to be most helpful and maybe are the most threatening to the one percent or most threatening to old hierarchies of race and gender.

Michael: I want to continue this and ask about how well you think our side does defending government because I think not that well. Here’s my observation over a number of years. Government broadly, and you’re correct to say that they only mean certain parts of government, but everybody understands the parts they mean when they talk. Government broadly has been under attack for 45 years from these folks. And they’ve had a lot of effect, obviously, your average person has a much more anti-government view today than your average person two generations ago. On the other side, elected Democrats and other people in our world, I think, don’t do a very good job of defending government. I think we defend particular programs of government. We defend Social Security, we defend Medicare, we defend food stamps when that’s under attack, but we don’t defend the principle of the public sector providing service and creating equity and creating wealth. I don’t see many people who do that. Am I wrong?

Sabeel: I think that’s right. That goes a little bit to we’re still kind of crawling out from under the yolk of 40 years of neoliberal ideas. Not just on the right. At least since Reagan, arguably since well before then, for a lot of liberals, the best argument for government was one that was quiet about government. A lot of liberals had come to accept the idea that, Yeah, we actually are not so comfortable with government either. We either have ourselves adopted or just have given up on the fight with critics of government and so we’re just going to keep trying to do good public policy but turn everyone’s attention somewhere else. We’ll talk about the individual policies. We’ll talk about how efficient we’re being in how we’re operating government, how streamlined we’re being. When Bill Clinton says the era of big government is over—

Bill Clinton [clip]: We know big government does not have all the answers. We know there’s not a program for every problem. We know and we have worked to give the American people a smaller, less bureaucratic government in Washington. And we have to give the American people one that lives within its means. The era of big government is over.

Sabeel: That’s a well remarked turning point. That’s a very different story than from say the Progressive and New Deal era or the civil rights era, where in both of those moments you had very explicit visions of government that was leading the charge to remake our country in a more small democratic direction. The New Deal was very much about that, but so is the Civil Rights Act, and so is the Voting Rights Act. These landmark achievements of the civil rights era are all in part about building a government that can meet those deep public problems that we were talking about before. You’re right, Michael, that that’s tended not to be the lexicon from centrist liberals Democrats. I do think that’s changing lately. And part of what I think is fascinating about having this conversation in 2023 is that a lot of the last five, six, seven years have been about creating a new vision for what our country should look like, and a really a bottom up one if you look at all the social movement activism around the movement for Black lives, around climate, around inequality. And then in these last couple years, we’re starting to see some attempts at trying to govern in that direction. Partial attempts, lots left to do, so I don’t mean to be celebratory at all, but to say that critique you’re offering is starting to change. A big project for progressives, I think for the next five years is really to continue that trend: to build out a language, a lexicon, and a policy playbook for government writ large, to have a government that can execute on climate, on inequality, on racial justice, on care, on all the things that we need. 

Felicia: I so love your optimism Sabeel, and I don’t want to take away from it, because I agree with much of it, but I do want to turn us to something that has felt not so great in the past several weeks or months. That’s the debt ceiling fight. So can you talk a little bit about how the conservative–progressive divide on the administrative state or on government itself, how has that played out in this fight over whether or not to raise the debt ceiling?

Sabeel: And as we’re recording, we’re close to a resolution. We’ll see if it lands in these last few days.

Felicia: By the time this show airs, something will have happened.

Sabeel: Yeah. Totally. This is a hugely frustrating and, I think, legitimately terrifying close call here on the debt ceiling. On the right, what you’re seeing is this more poisonous, dangerous, vituperative attack on government. This willingness to take the government and the whole economy hostage for a set of demands, when the debt ceiling is really a formality. 

Felicia: What do you mean it’s a formality?  

Sabeel: For folks not in the weeds on this stuff, Congress passes the budget and allocates the money that the government then spends on all of the programs that Congress has passed. So the fight over how much money should we spend really happens when Congress passes the bill in the first place. What the debt ceiling is about is a more technical, formal cap on the federal government’s borrowing ability. So when conservatives are saying, Oh, we don’t want to raise the borrowing cap, the debt cap, because we’re concerned about government spending, this is really cart before the horse. It’s backward because the fight over spending happens when Congress passes a bill in the first place. So Congress said we should do the Inflation Reduction Act. Congress said that last year, so we’re going to spend that money. The debt ceiling is neither here nor there in my view. What we’re seeing here is an increasingly dangerous anti-government ideology on the right, where they’re basically willing to impose any cost on the whole country, on pensioners waiting for the Social Security checks and people who would need access to government programs, and on the full faith and credit of the United States Treasury itself. They’re willing to pose any cost for a set of demands. And their demands were things like, we want to cut benefits, we want to make it harder for people to access those benefits, we want to stop spending money on new clean energy programs, we want to stop the administrative state from being able to pass any of the regulations that we’ve asked it to pass. It’s a really a pretty radical agenda that they’re trying to force down the throats of the country using this hostage taking tactic as opposed to trying to win an election and trying to win control of Congress and then pass legislation the way the Constitution says. I think you’re right. It’s a close call and it raises a lot of concerns because I don’t think we have anything close to a consensus in this country about whether or not we should actually have a government that serves all of us. To me, that’s what the debt limit fight and the Bannonite idea says. And that’s a real problem, obviously.

Michael: Their side talks in, if we agree to put it this way, political philosophical terms, big picture terms. We talk about particular things, generally speaking. We don’t mount a philosophical defense of government and the public sector generally in a way that I think we should. Would that even work, do you think? Or do we, and I’m wrong, or if we don’t, and I’m right, would doing that be compelling to voters?

Sabeel: We could say more. We could always say more at the level of public philosophy and vision and narrative. I do think we continue to need an aspirational and clear vision about what government is trying to do on behalf of the public. The reason why we harken back to these key moments like the New Deal or the civil rights era is that there’s a clear moral vision there about what we’re trying to do. There are folks who have been trying to do this. The reason why we even get anything close to the climate provisions in the Inflation Reduction Act, for example, has a lot to do with the Sunrise movement and the environmental justice movement and the climate movement more broadly making that demand. I think we’re making progress, but I guess my reaction to your question, Michael, is that it’s partly a matter of philosophy, but it’s also a matter of policy. For example, on the debt limit, we could have, should have removed the debt ceiling problem by legislation two years ago when Democrats had had control of Congress and were passing these big bills before. There’s a whole political story that we could get into about why that may or may not have happened. But what that says is it’s not just that we need to prosecute the case in public opinion about the role of government. We need to get a lot smarter and a lot savvier about how we design and do our policy when we have the ability to do policy in a way that shores up government. One of the things that the Trump administration started to do toward the very end of its time was this policy called Schedule F where basically they were threatening to remove civil service protections from the career civil service. They didn’t have enough time to get it off the ground.

Felicia: Civil service protection means it can’t be fired by the president at will basically?

Sabeel: Totally, right. If you think about these folks in the agencies that we were talking about before, who’s the person who knows the migratory patterns of whales that might be affected by wind turbines that go up offshore, and who’s the person who understands deeply contaminants in water that might have long-term health consequences that we need to regulate to keep our communities safe. All of those folks, they’re meant to be neutral public servants whose mission is to serve the public, not to serve any one party. Removing those protections would be catastrophic for our ability to govern and for our role as democracy. This has now become an article of faith among many on the right. If you look at a lot of the former heads of OMB, who are now incubating ideas for a future GOP administration, they’re all talking about Schedule F and talking about dismantling these administrative protections. That’s extremely dangerous and super, super scary. But to our point about governing better, Congress could pass legislation to shore up those civil service protections and not make it be subject to a president’s new executive order. That’s also something that we could have done, should have done legislatively in 2021 and 2022. The fact that that kind of stuff didn’t gain traction goes to the deeper problem, which is that there aren’t enough progressive policy makers who are thinking about, in a smart strategic way, how do we shore up the idea of government and the institutions of government from concerted attack? 

Felicia: Just one more follow up here, because when you really think about it, what is the conservative end goal here? When they imagine government without any of these experts, or a government gutted of the “administrative state,” what world are they picturing?

Sabeel: It’s a great question. I like to say that a world without government isn’t a world where we’re not being governed. It’s just we’re being governed in a super undemocratic way. Without labor protections that the government enforces, for example, does that mean you’re free? No. It means you are now subject without any checks and balances to the whims of your employer, or to the whims of the investors who have decided to close down the factory because they can make more profit that way. That’s bad, right? That’s still being governed, but it’s being governed and ruled by people who are not responsive to us as a democracy to our needs as a community. So dismantling government isn’t actually, to my mind, about liberation. Dismantling government is about removing those protections in a way that makes us even more vulnerable to other centers of power that are super problematic. This is why we really want to think about: What are the economic interests? What are the class interests, the racial hierarchies, the gender hierarchies that would thrive or would be left unchecked when we remove these really important protections and these really important civil servants who enforce those protections?

Michael: I want to go big picture here again. We talk on this show a lot about democracy and freedom and we try to connect economics to democracy and freedom. So do that. Connect what you’ve just been talking about to the concepts of democracy and freedom. How are they related? 

Sabeel: Yeah. So these are really two sides of the same coin. We’re used to, in our conventional political philosophies, thinking about freedom in a political sense. That we’re free if we’re free from arbitrary powers of government, which is why we have elections. It’s why we have the separation of powers, all of that kind of Con Law 101. But freedom is also about social and economic freedom. It’s freedom from exploitative relationships in the workplace. It’s freedom from the private hierarchies in the home or in communities that made women not full citizens, and made it so that LGBTQ folks could not be their full selves in earlier eras. Those are also threats to freedom. So when we talk about democracy, to my mind, democracy is all about the institutions and practices and values that we create together to protect those freedoms. Sometimes that means removing constraints. It means the civil rights liberations that we’ve tried to advance in the ’60s and more recently with LGBTQ rights in recent decades. Other times it means imposing limits on other kinds of power. We don’t want corporations and bosses in the workplace and finance to control everyone’s destinies. So we put governmental regulations on all of that. To me, all of that is democracy. So it’s not just who we vote for. It’s creating those rules of the road that protect political, economic and social freedom. 

Felicia: Yeah this reminds me of the work that you and your co-director Amy Kapczynski do at the Law and Political Economy Project. So I wanted to make sure to connect that set of comments to the legal work that you do within the academy, partly because what happens to the courts and the jurisprudential direction of the courts is so important, and partly just because what you are trying to do at LPE is to connect the economy, democracy, and freedom in a very legally specific way. One of the things that you say in the LPE manifesto, which everyone can go read and we’ll link to it on the show notes is “Scholars working in this vein are seeking to reconnect political conversations about the economic order with questions of dignity, belonging, or recognition.” And scholars are seeking “to challenge versions of ‘freedom’ or ‘rights’ that ignore or downplay social and economic power.” Say a little bit more about this and say a little bit more about why the courts specifically are so important in this battle.

Sabeel: I’ll give an example that will be familiar to at least some of your listeners. One of the big threats to economic freedom and economic dynamism productivity is concentrated corporate ownership. So you have a lot of industries where there’s finance or dominant market players, where there’s no longer a lot of competition. There are a few big players. Think Amazon. Think fossil fuel companies. Think big agriculture. All of our food produce comes from two or three big companies that end up jacking up prices for consumers and making our economy super dependent on these two or three companies. That’s a product of law. That’s a result of some changes to antitrust law that the Supreme Court and other courts put in place in the ’70s, reinterpreting Progressive era statutes in a way that I don’t think has a ton of foundation right in the history or in the original goals of those statutes. Those changes on the court became changes in law and policy, which then led to a very different economic structure that has impacted communities in a really significant way. There’s a whole new approach now to thinking about those court cases and those statutes from an anti-monopoly perspective, where the goal is a more dynamic, inclusive, economic freedom. That’s an example of an area where you have esoteric interpretations of law having very real implications for communities and for a vibrant, inclusive democracy and economy. But now you’re starting to see this more progressive approach to antitrust law gaining some more traction in regulations, in legal analysis. That’s opening up more policymaking room to experiment with the kinds of things that we might need. You could tell the same story then about our debates over care, our debates over police reform and criminal law reform, on industrial policy, you name it. Law is always there in the backdrop and it’s one of the key areas where this skepticism of government that we were talking about before has embedded itself over the last 40 years and has produced policies that are really constraining, I think, for the kind of freedom that you were speaking about, Michael, a moment ago.

Michael: Yeah. I think that’s right. Let me also ask a broader question about law and democracy. You’re a lawyer and a constitutional lawyer. And a law professor. And this is something I’ve been thinking about for a while: When we talk about the things that ail democracy and that are weakening democracy, we tend to talk about constitutional things, process things, the electoral college, the winner-take-all congressional districts, but what about simply the way the law is administered and exercised in this country? Doesn’t it make people lose faith in our system when they see how unevenly and inequitably the law is administered? I think people see that every day, every week. Elizabeth Holmes just went to jail for 11 years. That’s something. But is Donald Trump going to pay? That’s going to be wrestling five alligators to get a conviction of that guy, because the system is just rigged. It just doesn’t work. How bad is that for democracy?

Sabeel: Yeah. I think you’re totally right, it’s extremely corrosive. This is part of why when we talk about government as progressives, it can’t just be a story about all the ways in which government is good. I think it has to be a story about the ways in which we need a different government to serve the values that we all ought to believe in. It is absolutely true that we have not enforced the laws that exist on the books nor have we created anything resembling parity in how folks are held liable for different kinds of harm. The story today about the Sacklers limiting their civil liability for the opioid crisis, that’s unconscionable. 

[clip]: The Federal Appeals Court has ruled that the billionaire owners of Purdue Pharma, the Sackler family, will be protected from civil lawsuits linked to the opioid crisis in exchange for a 6 billion settlement. Purdue, which filed for bankruptcy in 2019 amid thousands of lawsuits made drugs like Oxycontin and is blamed for fueling the opioid epidemic.

Sabeel: There’s a ton of legal machinations behind that and some existing laws and practices that were exploited or leveraged by the Sacklers to get that result. That’s really bad. That’s bad morally, but it’s also bad for democracy because to your point, Michael, that makes it hard to believe in this notion that we as a collective can in fact govern ourselves toward a more inclusive and vibrant future for all of us. It’s just corrosive to that idea. You see that in a lot of different areas of the law. Also, honestly, this is part of what’s going on in criminal law reform context as well. I’ve mentioned mass incarceration a couple of times, but in addition to the life and death danger that poses to Black and brown communities, there’s also a lot of great research which shows that even individual communities where there have been unwarranted or illegitimate strip searches and police stops that are racially biased and motivated, that creates a very clear impact on rising distrust of government, decrease in participation in elections. There are a whole bunch of ways in which communities take that trauma and that trauma then expresses itself in a deep disaffection or disbelief in government as a collective agent, because that’s not their lived experience. So I think it operates both ways. It operates and manifests where government is not enforcing in ways that are deeply unfair and unjust, and it operates in ways where government brings the full hammer and force of the state down on communities in a deeply unjust and unfair way as well. And so if we want a democratic government, I think we need to solve both of those problems. We need a government that’s going to do the stuff we need to do and do a lot less of the stuff that is really, really bad.

Michael: Well said.

Felicia: I think it’s come time to ask our traditional last question to all of our podcast guests. Sabeel, how would you save our country?

Sabeel: So I don’t think it’s going to be any one thing, but we’ve talked a lot about democracy and government and so I’ll close with that. A big part of how we save this democracy going forward is putting in place the policies that allow government to actually serve all of us as a whole public. To me, that’s voting rights reform, that’s campaign finance reform, but it’s also the stuff that we talked about here: protections for the civil service, a lot more money and authority to allow government to make policies that serve the public good. Without any of those things, what we’re going to get is this vicious cycle of a government that’s failing to meet our public needs and that’s producing more distrust, which is then just the fertile territory for authoritarians to exploit and run with.

Felicia: So the answer then is more, as we’ve all been saying, more government and more support of government full-throatedly. 

Sabeel: Yeah, I’d say more, More democracy, more democracy, more democratic government. 

Felicia: More democracy.

Sabeel: Because we want a government that is serving us and democracy is how we achieve that.

Felicia: The answer is more democracy. Sabeel Rahman, thank you so much for joining us on How to Save a Country. Always a pleasure.

Sabeel: Thank you so much. Grateful for all you’re doing.

Felicia: It’s so great to talk to somebody like Sabeel, who just came from working in government and also, of course, has experience on the outside. 

Michael: It totally is. I’m always interested when I meet people with that kind of experience to ask them what that job is like on a day-to-day basis because it remains so opaque to the public. It’s so easy to deride bureaucrats, but these are people who are dedicated people, most of them, vast, vast majority of them, and work really hard and could be making more money elsewhere. And they work long hours and it’s just a pity that Americans don’t know and appreciate that that’s number one. 

Felicia: Right. I mean, Sabeel said that civil servants are the crown jewel of our democracy.

Michael: Yeah. And I wish politicians did more to celebrate that, but that’s another show. I was intrigued by our exchange about progressive defense of government and lack thereof. I think this is a point that people really need to work on, that government has been attacked by the right for 40 years just as this monstrous entity. And there just hasn’t been enough of a defense of it. There are, as we agreed, defenses of particular programs, but nobody defends why government is necessary and the good government does, or some people do, but it’s not nearly enough. The thing that I found really interesting was the last part where he was talking about the law and we got into this conversation about law and democracy and he brought up the example of the Sacklers and I’ve been thinking about this a lot, the question of how people see justice applied so unevenly and how deeply that colors people’s views of whether our republic is really functioning well. So that’s my take.

Felicia: Yeah, I only have one thing to add, which is, obviously Sabeel was defending government. You and I often defend government on this show. I work at the Roosevelt Institute. Roosevelt was all about government. Government is us, not an alien power over us. So that was really important, but what was also striking about Sabeel’s commentary is that he also believes that government needs to be changed. The government needs to be reformed. That some things, like all of the paperwork that people have to do to access unemployment insurance or food stamps, actually has to be streamlined. We need to fix these issues of a time tax if we’re going to make our government live up to its real promises.

Michael: I am with you.

Felicia: So Michael—

Michael: Yes. 

Felicia: —we’ve got to always talk about the good news here on How to Save a Country, and that is this. Yes, all Americans now know, as we’re taping this, we have now just heard that the Senate has passed the debt ceiling bill, the House passed the debt ceiling bill yesterday. And so we have averted the worst of default and catastrophe. That is, I think, good news in context. But here’s the piece of good news even within the good news. We’ve talked about the Fourteenth Amendment on this show. That’s the idea that the president has the responsibility to carry out the spending directives of Congress and pay our bills no matter what the debt ceiling law says. Anyway, the Fourteenth Amendment is continuing to get traction and not just from a few progressive lawyers or legal scholars. The president has actually been saying that he wants to look at using the Fourteenth Amendment at interpreting the Constitution in this way more assertively in the future. The conversation about who gets to interpret the Constitution and for what purposes has really shifted in a progressive direction. So that’s my good news.

Michael: Well that is great news if true.  

Felicia: I mean, it’s just a hunch. I’m just reading the tea leaves.

Michael: Yeah, right. 

Felicia: Maybe! 

Michael: Yeah. OK. Well, our listeners are probably familiar with the concept of the Overton window. That’s when you shift the landscape and the reality of the frame of the conversation in the first place. So have we moved the Overton window on the debt limit in our direction on balance as a result of this recent episode? Yeah, I think we have. You could argue it the other way, that this is now normalized and that the American public accepts that the debt limit is something that has to be negotiated over, which is an outrage and shouldn’t be the case. At the same time, a lot of people saw that that is outrageous and that is wrong. And maybe that helps explain why the Republicans in the House went along with this so easily. I wrote a column on Thursday that said what happened to the big bad House Freedom Caucus? They got rolled. And they did! They protested and they voted against it, but they were powerless in this situation. And the fact that so many Republicans voted for this and that Kevin McCarthy behaved like a normal politician, horse trading. Those are good signs.

Felicia: And the Fourteenth Amendment. Both good signs. Okay, that’s our good news. Victory from the jaws of defeat, Michael. 

Michael: What’s happening next week?

Felicia: Next week we have a conversation with arguably the most famous economist in the world, Thomas Piketty. 

Michael: Mon Dieu! 

Felicia: Yes, that’s right. I was lucky enough to be at a conference with him in Paris, and so he agreed to speak to us on How to Save a Country. I actually asked him more about how to save the whole planet, ’cause he’s French. But we had a great conversation. I’m excited to share with our listeners.

Thomas Piketty [clip]: The true source of U.S. prosperity historically has not been inequality, has been education, and a relatively more inclusive educational system and social fabric. 

Michael: Well, that is pretty cool and I’m excited to hear it myself. Even I haven’t heard it yet, so I can’t wait.

Felicia: How to Save a Country is a production of PRX in partnership with the Roosevelt Institute and The New Republic.

Michael: Our script editor is Christina Stella. Our producer is Marcelo Jauregui-Volpe. Our lead producer is Alli Rodgers. Our executive producer is Jocelyn Gonzales, and our mix engineer is Pedro Rafael Rosado.

Felicia: Our theme music is courtesy of Codey Randall and Epidemic Sound with other music provided by APM. How to Save a Country is made possible with support from Omidyar Network, a social change venture that is reimagining how capitalism should work. Learn more about their efforts to recenter our economy around individuals, community, and societal well-being at omidyar.com.

Michael: Support also comes from the Hewlett Foundation’s Economy and Society Initiative, working to foster the development of a new common sense about how the economy works and the aims it should serve.