I am frequently disappointed to see the quality of testimony by many senior leadership and expert consultants when they address various committees of either the House of Representatives. These are individuals who are responsible for decision making and or for making the recommendations of eventual decisions. The purpose of questions by our representatives is to hold them accountable to past decisions. We want reassurance of our confidence that these senior leaders have diligently evaluated the options and have exercised good judgement before making a decision.
Instead of getting a persuasive defense of their decision making with frank and honest discussions of their considerations, we get non-answers to questions (they assert that they don’t recall) or we get no evidence to back up their broad assertion that they acted responsibly. Frequently, their testimonies to these hearings offer nothing of the persuasion demanded for accountability. We are expected to accept their assertion that they acted with competence and with good judgement.
We are experiencing a government that makes decisions that no one is accountable for. The decision has no decision maker to offer satisfying accountability for it. The title of this post suggests a name for this kind of government as Orphanocracy: government by orphaned decisions. The testimony by people whose position should be accountable for a decision frequently give vague assertions that the decision was thoroughly studied but without any persuasive argument for why the decision was justified. For example, the following except from this article summarizes the content of the recent testimony by Homeland Security Secretary Jeh Johnson to defend the President’s recent immigration executive action:
Testifying before the House Homeland Security Committee on Tuesday, Johnson said he is “fully comfortable” that President Barack Obama’s executive action on immigration reform is within the President’s legal authority.
The justification is a vague assertion:
Instead, Johnson stressed that administration officials “spent months” with lawyers to ensure all executive actions on immigration are legal and said the White House was repeatedly urged by members of Congress to hold off on executive action for months.
I don’t accept this as an accountable defense for a decision. In earlier posts, I described my thoughts on the accountable decision. Persuasive accountability is a key factor in maintaining super-majority consent to be governed. The super-majority needs a thorough accounting of the considerations and doubts that went into a decision, and particularly for a decision that offends a destabilizing minority. Accountability should be different from justice (as I discussed in this post), the decision maker should be free to discuss honestly and frankly his thinking that went into a decision. The goal is to give a satisfying justification for the decision so that we can maintain super-majority consent. One consequence may be a decision to replace the decision maker (similar to how the US Constitution provides for impeachment). As in an impeachment, the accountable decision maker should have generous immunity from prosecution as penalty for a bad decision. The sufficient remedy for a bad decision is to replace the decision maker.
Our current government is not providing adequate accountability for decisions. The testimony we receive from decision makers describes their role as a bystander in the process. My impression is that their testimony can be summed up by their acknowledgement of being present when the decision was made and that they felt comfortable with the decision. This testimony does not attempt to persuade us that we would be equally comfortable if we had the information and concerns he had. This is similar to my earlier discussion of the automated decision maker although in that post, I described machine-generated recommendations that the decision maker is obligated to follow.
I am pretty sure most of government bureaucracy has not yet become automated end-to-end big data processing systems that generate those kinds of recommendations. Yet, the testimony of senior leaderships responsible for decisions describe their decisions in the same terms as the obligated decision maker. The decision maker acted on his obligation to follow a recommendation presented to him. His role is effectively automated as if the only reason we need a human in that role is so that someone can inform congress that he was present when the decision occurred.
In another discussion, I described how accountable human decision makers demand to be more engaged in the decision process so that they would be able to personally defend his decision when asked. From my perspective, we are seeing less of this kind of decision making in government. The government is imposing decisions that affect the population, but the designated leaders are not equipped to provide a persuasive accountability for the decision. The decision is a orphan because it has no decision maker to offer a satisfying defense for the decision. As I stated in the earlier mentioned discussions, I worry that this neglect for accountability is undermining the stability of the country by eroding the necessary super-majority consent to be governed.
We need to do something to regain accountability. I suggested (see here and here) an approach to supplement the current bureaucratic practices with a detailed accounting of all activities performed during duty hours of every government staff and contractor. My concept was to record codes for detailed categories of work product (such as writing an email response) so that we can observe the activities that contributed to a particular decision. The codes do not expose the content of their work, but instead just record the fact that at certain time they were performing a certain kind of activity related to a particular decision or objective. Because this data is free of content, anyone should be able to query this data and perform analytics to investigate the efforts invested into a decision and whether that investment was reasonable for the decision. Such as system can allow us to recover some accountability that is increasingly not available from senior leadership.
For a recent example of orphan decisions, there is the testimony Dr. Jonathan Gruber gave on December 9, 2014 to the House of Representatives’ Committee on Oversight and Government Reform as part of the hearing on “Examining ObamaCare Transparency Failures”. In an earlier post, I described my interest in his case.
His testimony concerned his role in the development of the Affordable Care Act. His written testimony includes his resume and a listing of professional publications and events including those where he discussed health care reform. It also lists specific contracts he received to provide expert consulting services to the government specifically in support of this legislation. This presents him as a very accomplished individual who can speak on his own with authority.
I note that even without the extensive publication and recognition, simply the accomplishment of holding a PhD qualifies one as someone who has demonstrated to a dissertation committee that he is capable of sound original thought. In my mind, a PhD is a credential for being a liberated person, able to speak as an individual with no supervisors or handlers. Of course, that liberated speech should be consistent with the standards of earning the degree: the thoughts should be defensible from sound thinking. But, being so liberated means he alone is the judge of what he can say.
In particular, someone with his accomplishments having a paid role in providing independent advice, he doesn’t need approval from anyone to speak on his own to provide a persuasive defense of his accountability to the role he performed. As a respected authority and a holder of PhD, he should be able to speak on his own, free from any constraints from coaching by political operatives or lawyers.
With that context, his actual written and spoken testimony was disappointing and embarrassing to his credentials. In the project of evaluating his accountability to the role he played in the legislation, he failed to persuade me that he performed his work diligently and with good judgement. Even as I grant him the benefit of doubt, he certainly squandered his opportunity to present a vigorous defense of accountability to the public under oath.
Because he was a paid consultation to provide independent work, he has an obligation to personally accountable for his work. The committee hearing was a request for that accountability.
According to the committee’s rules, the oath contains the following standard wording:
Do you solemnly swear or affirm that the testimony that you are about to give is the truth, the whole truth, and nothing but the truth, so help you God?
The oath obligates the speaker to present the whole truth and nothing but the truth. The two conditions have two separate intentions. The latter condition presents the risk of perjury. The former condition, however, asks for the complete information available to the speaker. When applied to obtain accountability from people in senior positions, the burden of the oath should fall most heavily on the former condition. Our desire for accountability obligates the senior position to provide the whole truth. The goal is to evaluate the quality of judgement and skill of the person we granted independent decision-making roles. The priority of the hearing is to obtain this whole truth, not to prosecute the decision maker as an individual.
As I mentioned earlier, accountability is distinct from justice. I fault the above oath for always insisting on both prongs. We desperately need whole-truth accountability from leadership positions. The legal jeopardy of “nothing but the truth” interferes with this goal at least to the extent of advisability of deferring some questions to legal counsel. For specific cases of senior or independent decision-makers, the oath should demand only the whole truth. In these cases, the testimony should be immune from any use to prosecute the individual. We want to know what went into the work so that we can judge whether the work was valid and done in good judgement.
Dr. Gruber’s written testimony starts with this exerpt:
I am a Professor of Economics at MIT. I am not a political advisor nor a politician. Over the past decade I have used a complex economic microsimulation model to help a number of states and the federal government assess the impact that various legislative options for health care reform might have on the state and federal health care systems, government budgets, and overall economies. I have had the privilege of working for both Democratic and Republican administrations on health care reform efforts. For example, I worked extensively with Governor Romney’s Administration and the Massachusetts legislature to model the impact of Governor Romney’s landmark health reform legislation. I later served as a technical consultant to the U.S. Department of Health and Human Services and provided similar support to both the Administration and Congress through economic microsimulation modeling of the Affordable Care Act.
and closes with this excerpt:
The ACA is a milestone accomplishment for our nation that already has provided millions of Americans with health insurance. Our country is embarking on an exciting second open enrollment period that will provide new opportunities for these individuals, and millions more, to choose the insurance plan that works best for them.
These are valuable statements that describe his expertise and relevance to a critical piece of legislation. He has access to good part of the whole truth that can provide accountability for the wisdom in the crafting of the legislation. He presents himself as a person well qualified to discuss the whole truth of his contributions and considerations for the work he provided.
Instead, the body of the written testimony consists mostly of dismissing his earlier publicized comments. He devoted his most of his time in the hearing to offer apologies and clarifications that his public statements were not statements of fact. His testimony addressed only the second part of the oath “nothing but the truth”: he cleared the record that his public statements were not true:
I would like to begin by apologizing sincerely for the offending comments that I made. In some cases I made uninformed and glib comments about the political process behind health care reform. I am not an expert on politics and my tone implied that I was, which is wrong. In other cases I simply made insulting and mean comments that are totally uncalled for in any situation.
As discussed in this article, the verbal testimony presented him with many questions that he should be in a position to provide substantive whole-truth types of answers. Instead he answered by repeating the above statement that his statements were glib or that his memory was feeble. During this hearing, he successfully avoided the first part of the oath “the whole truth” by avoiding the offering of any truth to replace the statements he dismissed as untrue.
An apology is not accountability. Certainly there are times when decision makers make a decision that they personally regret making. However, the purpose of accountability is to understand what went into the decision. Accountability evaluates the quality of the decision maker’s judgement and consideration of risks (or informed doubts). A regrettable adverse consequence may come from a reasonable decision making process. Accountability gives us a chance to be convinced of that reasonableness of coming up with even a regrettable decision. The opportunity to be held accountable is not an opportunity to withdraw previous decisions. Instead the opportunity is to defend the decision of what went into it. At least in terms of offensive public statements, Dr. Gruber explained his statements as being non-serious glibness. His explanation is basically an apology.
My expectations from the hearing was to obtain the “whole truth” to evaluate the accountability of a senior expert with a paid responsible independent role in the crafting the legislation. Compounding my disappointment is the sense that his deliberate goal was to not offer any substantive addition to the whole truth. I recognize that this is to be expected in the modern government, but I regret the fact that we readily accept this avoidance of accountability.
Despite his earned reputation and his paid contribution as an independent consultant, he presented himself as if he were a junior assistant to some other authority. Given his background, he is the authority for any activity or contribution he made. However, he gave answers that would be expected of a junior staff member (who almost certainly wouldn’t be asked to testify in the first place). The questions should instead have been addressed to his supervisor. Someone who works under a supervisor is not qualified to work as an independent consultant. Because he works under supervision, it is his supervisor who should be held accountable. His testimony effectively demotes himself to an understudy position and thus is a waste of time for the committee’s goal of accountability.
Later the chairman of the oversight committee, Rep. Darrell Issa, issued a subpoena for Gruber to provide detailed documents related to Obamacare. I have mixed feelings about this step. Foremost of my concerns is that this should not be necessary at all. An accountable senior adviser should feel duty-bound to be fully cooperative in the first place to answer each question to his best ability or to promise a follow up. There should be no need for a formal subpoena.
Regrettably, the detailed subpoena appears to be a punitive response by the committee. They may be right to do so, but I think this is unfortunate.
In any event, I doubt Dr. Gruber would actually possess much of the requested documents because he is not a government employee working within a bureaucracy responsible for retention of records. The subpoena may be relatively unproductive because he does not have any but the most basic documents. In particular, the third item is probably not even his property:
3. All documents and communications referring or relating to work product produced to any federal, state, or local government agency, for any purpose, including, but not limited to, the results of any and all economic models or simulations.
Perhaps he does have those records, but being an outside contractor to the government, the contract probably requires the contractor to relinquish all of those results to government after the period of performance of the contract. Alternatively, the contract makes no demands long term retention of actual results that would be proprietary to the contract.
Another argument against the subpoena is Dr. Gruber’s implicit argument in testimony that he worked under close supervision. The appropriate accountable entity to subpoena would be the entity that supervised his work. I suspect this is the only place where this information will found.
In any event, the subpoena should not be necessary for an accountable senior consultant: he should cooperate with the committee to provide the whole truth as requested and make himself available to follow up on questions he needs to research. He should be able to verbally state and defend his answers.
This example is illustrates an opportunity that we can gain from my proposal that government-paid staff or contractors closely record their detailed activities while on duty. This record would accumulate codes for the various detailed activities involved in performing the work. Because the coded records do not expose content, the records can be easily retrieved and evaluated. If there is a case where content is desired, then the subpoena can use these records to specify specific work products on specific dates. Having such an activity-coding practice in place could be a more productive approach obtain accountability than the above subpoena approach asking one person for every relevant thing that one person possesses.
Being placed under oath to tell the whole truth even in an adverse interrogation is a recognition that one is qualified as independent thinker. That recognition deserves reciprocal respect by delivering honest and frank answers from the thoughts, knowledge, doubts, and fears from one’s own person, free from supervision or deferment to political handlers or lawyers. The implicit qualification to work independently is to accept the obligation to be accountable for the independent work performed. If one does not wish to accept this accountability, he should not have accepted a contract to provide independent contributions, and instead work under supervision of someone who will accept this obligation.
When no one has any obligation to be accountable for the work, that work becomes an orphan. The work product has no human available to defend it. This leaves us with a government by orphaned decisions, an orphanocracy. I think a lot of the recent polarization in politics comes from orphan decision making. I think that the lack of accountability for decisions is contributing to the erosion of the super-majority consent to be governed. For stability of the republic, we need to demand that leaders be accountable for their decisions, to explain them in detail, to provide the whole truth.