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Blueprint for Disaster

This article is reprinted with permission from Government Executive
As Washington considers an overhaul of the nation’s health care system affecting roughly one-seventh of our economy—not to mention cap and trade energy legislation, immigration reform and a host of other big issues—a critical question arises: How effective are we at crafting legislation that can be implemented?
To answer this question, we partnered with Government Executive in 2008 to survey members of the Senior Executive Service. Less than one-third of respondents believed Congress was effective at designing public policy that worked in the real world. We also surveyed members of the National Academy of Public Administration, with similarly grim results. Fully one-third told us Washington was downright poor at policy design.

It turns out if you want to get federal executives angry, ask them what they think of the legislative design process. Their responses can be scathing: “Policy design at the federal level is pathetic.” “Policy design too often is done without consideration of implementation challenges.”

The consequences of poor design can be severe. Like an architectural rendering that looks good on paper but collapses once built, poorly designed legislation can be a blueprint for disaster.

Just ask California. In 1996, Democrats and Republicans in the California legislature worked together to pass a major redesign of the state’s electricity markets. The reforms were intended to introduce competition, spur innovation and lower the cost of electricity by 15 percent—maybe more. That was the intent, anyway. But by 2000, California’s electricity system was in shambles. The new law caused soaring prices, rolling blackouts, and the election recall of Gov. Gray Davis. A government reform launched with high hopes had turned into a total disaster. What went wrong?

The short answer is energy companies like Enron exploited design flaws in the legislation, racking up profits and ripping off consumers. What looked good on paper turned into a fiasco when it was implemented.

It is a pattern that occurs frequently in large public ventures. After reviewing more than 75 significant government reforms since the end of World War II, the findings suggest that the root of many failures actually lies with faulty design. The temptation is to blame legislators, an easy target. But lawmakers and their staffs are in an impossible position. The complexity of even a single program area is often beyond the grasp of all but a handful of experts, and legislators are asked to pass laws under politically driven deadlines.

The problem is the process—a system in which design takes place in a vacuum, largely disconnected from the implementation. At the best private companies, the concept of “design for execution” is second nature, and designers work closely with manufacturing to avoid drawing up something that can’t be built.

“Implementability” simply isn’t on the radar during the policy design process. The California electricity reform that crashed and burned was passed unanimously. But nobody involved in drawing up the legislation had taken the time or made the effort to probe for design weaknesses. So Enron did it for them, with disastrous results.

As one federal executive said, “There is a gap in communication and understanding between a committee drafting legislation and the federal or state agency responsible for the implementation.”

Can the design phase be improved? Yes, but only with a serious commitment from political leaders. These four principles can begin the process of closing the dangerous gulf between those who design public policy and those who implement it.

Think design, not legislation. A bill is really a blueprint for the bureaucracy. “We should be worried about how a bill will work 18 months from now, not just today, but too often we aren’t,” explains former Rep. Tom Davis.

Involve implementers. Good implementation cannot save a poor design. Policy implementers who are handed a flawed design face an uphill battle. For example, the Medicare Part D law included an unrealistic timeline, leading to massive problems during the launch. Bringing implementers into the design process could help avoid these sorts of breakdowns.

Evaluate a bill’s workability. The Congressional Budget Office provides an objective assessment of the cost of proposed legislation. Why not have an independent review board assess the implementability of a new policy? Just as a building department reviews the design of a house before deciding whether to issue a permit, lawmakers might uncover at least some of the design flaws if they had to submit complex initiatives to the scrutiny of a feasibility analysis conducted by implementation-savvy experts. Design review makes sense at the building department, and it makes sense in Congress.

Probe for design weaknesses. Assign someone to shoot holes in the design at an early stage. If someone isn’t looking for the weaknesses during the design phase, rest assured people will be finding weaknesses in the policy after it is launched—with far more serious consequences.

Some readers might find these recommendations hard to take seriously. As one said, “It seems to me that when the two clash, politics is always going to trump design.” Perhaps. But the stakes are high, and the current approach to legislative design isn’t working. These ideas, if taken seriously, could help improve a process badly in need of reform.

William D. Eggers is the global director of Deloitte’s public sector research program. John O’Leary is a research fellow at the Ash Institute of the Harvard Kennedy School. Their new book is – If We Can Put a Man on the Moon: Getting Big Things Done in Government

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